“no person shall be prosecuted and punished for the same offence more than once.”
The doctrine of double jeopardy finds place in almost all civilized systems of law. Natural justice requires that the one act must result in one consequence only. If an act is a legal wrong, the law must provide punishment only once. This is what justice demands and public policy supports. The principle of double jeopardy is to protect a defendant “against a second prosecution for the same offense after conviction”. This doctrine is necessary to provide a protection to an accused from the conduct of sovereign power which imperils him. In fact it is designed to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an offence. Moreover, Double Jeopardy plays an important role for the protection of integrity of the criminal justice system including precious fundamental rights of the accused persons.
Meaning of the term Double Jeopardy
Double Jeopardy is a legal term which means that a person cannot be punished for the same offence more than once. It’s based on the maxim: NEMO DEBET BIS VEXARI which means Man must not be put twice in peril for the same offence. The term ‘jeopardy’ is defined as “hazard, danger or peril”. With respect to criminal law, jeopardy means “the risk of conviction and punishment”. Thus, Double jeopardy‟ simply refers to the act of putting a person through a second trial of an offence for which he or she has already been prosecuted or convicted.
History and Background
The doctrine of Double Jeopardy has usually been dealt with in England and United States. The doctrine of Double Jeopardy has its origin in English Common Law maximum NEMO DEBET BIS VEXARI PRO UNA ET EDEM CAUSA. Hence it is usual to say that the Britishers brought it to India. But, it’s not only rooted in common law principle of English law but also recognized and applied in ancient Indian law, as it is evident from spiritual literature. In ancient times, Prangnyaya (res judicata) has been referred to as one of the possible defenses to an action. Once a decision has been given, it becomes final and cannot be reopened by leading fresh evidence.
In India, Double Jeopardy had been first introduced in the year 1793 by Section 16 of the Bengal Regulation, III of 1793 which prohibited Zila and City Courts from entertaining any cause, which from any decree or record produced before the court appeared to have heard and determined by any judge or any superintendent of a court having competent jurisdiction.
Moreover, the doctrine of double jeopardy found recognition in form of statutory protection for the very first time under the Code of Criminal Procedure, 1861 which was later amended and codified. But the protection against double jeopardy provided by Code of Criminal Procedure, 1861 was always incorporated. This doctrine also mention in the Indian Evidence Act, 1872 as well. The law of the same is contained in Section 40 of the Act. In addition to this, The Indian Penal Code, 1860 is another significant legislation that provides protection against multiple punishments under Section 71. Although this provision was not there in the original Code but the same was inserted after amendment in the year 1861.
After independence, fundamental rights were guaranteed under the Part III of the Constitution. The doctrine of double jeopardy found its place under Part III in Article 14(2) of the Draft Constitution in the following words No person shall be punished for the same offence more than once. After considering the proposed amendments, the Constituent Assembly adopted the Article 14(2) of the Draft Constitution, which now finds its final shape in Article 20(2) of the Constitution in the following words: No person shall be prosecuted and punished for the same offence more than once.
Provisions under Indian Law
Under the Indian Law, Double Jeopardy has been incorporated in Article 20(2) of the Constitution of India, Section 300 of the Criminal Procedure Code, Section 26 of the General Clauses Act, 1897 and Section 71 of Indian Penal Code.
- Article 20(2) of the Constitution of India: No person shall be prosecuted or punished for the same offence more than once.
It is to be noted that this provision does not provide for a continuing offence.
- Section 26 of the General Clauses Act: states that as to offences punishable under two or more enactments, where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted or punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence.
- Section 300(1) of Criminal Procedure Code, 1973: provides that “a person who has once been tried by a court of competent jurisdiction for an offence and convicted or acquitted of offence shall, while such conviction or acquittal remains in force, not to be liable to be tried again for the same offence…”
- Section 71 of Indian Penal Code: provides that, “where anything which is an offence is made up of parts, any of which parts is itself an offence, the offender shall not be punished of more than one of such his offences, unless it be so expressly provided”.
Cases related to Double Jeopardy
Some of the landmark judgments delivered by the Supreme Court of our country for the protection of Double Jeopardy as enshrined in the Constitution of India are given below:
In Venkataraman v. Union of India[i], an enquiry was made before the enquiry commissioner on the appellant under the Public Service Enquiry Act, 1960 & as a result, he was dismissed from the service. He was later on, charged for committed the offence under Indian Penal Code & the Prevention of Corruption Act. The court held that the proceeding held by the enquiry commissioner was only a mere enquiry & did not amount to a prosecution for an offence. Hence, the second prosecution did not attract the doctrine of Double Jeopardy or protection guaranteed under Fundamental Right Article 20 (2).
In the case of Kalawati v. State of Himachal Pradesh[ii], a person accused of committing murder was tried and acquitted. The State preferred an appeal against the acquittal. The accused could not plead Article 20(2) against the State preferring an appeal against the acquittal. Article 20(2) would not applicable as there was no punishment for the offence at the earlier prosecution.
However,In the case of Mohinder Singh V. State of Punjab[iii], The appellant was tried for Section 399 and 402 of Indian Penal Code + Section 3 of TADA because he had a firearm in his possession. Later he was tried under Section 5 of TADA because he had a stengun in his possession. He challenged this. The court held that it is not double jeopardy because the offences ARE NOT SAME.
In addition to this, In the case of Mohammad Ali v. Sri Ram Swaroop[iv], the court held that in cases of Continuing offense, each day is counted as a fresh offense and each can be punished separately so double jeopardy doctrine is not permissible in continuing offences.
The “underlying idea” of double jeopardy includes the desire to protect an individual from repeat prosecutions that would subject him to live in a continuing state of anxiety and insecurity. It is revealed that a partial protection against double jeopardy is a Fundamental Right guaranteed under Article 20 (2) of the Constitution of India. There is a need of active participation of Judges; they have to keep in mind of those offences which constitute the same offence & those too which do not.
(Author: Rajat Kumar, pursuing B.Com LLB from Rayat Bahra University, Mohali.)
[i] AIR 1954 SC 375
[ii] AIR 1953 SC 131
[iii](1998) 7 SCC 390, 1999
[iv] AIR 1965 All 161