Central University of South Bihar: Freedom Against Double Jeopardy
Central University of South Bihar: Freedom Against Double Jeopardy
Ms.Poonam Kumari
Mayank Shekhar
Assistant Professor, Law
BA.LLB.(Hons.)
School Of Law And Governance 2nd Semester
Subject- Contract-I Enrollment No. CUSB1613125029
Continuous Assessment-II
Again I would like to thank all mighty and my parents for supporting me in
whole process of this project completion. At last, my deep sense of gratitude
also goes to my friends, institution and every single person who are related
with this project in any way and without whom this project would have been
a distant reality.
INTRODUCTION
Double jeopardy is a procedural defense that prevents an accused person from being tried again
on the same (or similar) charges and on the same facts, following a valid acquittal or conviction.
"The protection of human personality and of its fundamental rights is the ultimate purpose of all
law, national and international."
The Universal Declaration of Human Rights, The UN Covenant on Economics, Social and
Cultural Rights, the UN Covenant on Civil and Political Rights, the European Convention on
Human Rights, the American Convention on Human Rights, Rules of Procedure of the
Permanent Arab Commission on Human Rights, are a few which may be referred to in this
context1.
The roots of the doctrine against Double Jeopardy are to be found in the well-established maxim
of the English Common Law Nemo Debet Bis Vexari a man shall not be brought into danger
for one and the same offence more than once . If a person is charged again for the same offence
in an English Court , he can plead , as a complete defense , his former acquittal or conviction , or
as it is technically Expressed , take the plea of auterifois acquit or autrefois convict . In India,
protection against double jeopardy is a Fundamental Right guaranteed under Right to Freedom in
the Constitution of India. The term "double jeopardy" refers to the "danger" of a second
punishment whenever an individual is brought to trial again for the same crime (or a greater or
lesser included crime). This means that there cannot be a second prosecution for the same
criminal act (both in fact and in law) upon which a first prosecution was based. The accused
must be released and the case dismissed. . In India, protection against double jeopardy is a
Fundamental Right guaranteed under Right to Freedom in the Constitution of India.
ARTICLE 20
1 International Covenant on Economic, Social and Cultural Rights available on
(https://en.wikipedia.org/wiki/International_Covenant_on_Economic,_Social_and_Cultural_Rights)
1) No person shall be convicted of any offence except for violation of the law in force at the
time of the commission of the act charged as an offence, nor be subjected to a penalty
greater than that which might have been inflicted under the law in force at the time of the
commission of the offence.
2) No person shall be prosecuted and punished for the same offence more than once.
3) No person accused of any offence shall be compelled to be a witness against himself.
As regards article 20(2) dealing with double jeopardy what it bars is prosecution and punishment
after an earlier punishment for the same offence. Offence here means an offence as defined in
section 3(38) of the general clauses Act. 1897 applied to the constitution by article 367. Art. 20
(2 ) which runs as No person shall be prosecuted and punished for the same offence more than
once contain the rule against double jeopardy .
. The challenge is determining what constitutes the "same" crime for double jeopardy purposes.
Some of the simpler examples include:
an acquittal or conviction for murder will bar any prosecution for manslaughter if based on the
same facts (lesser included example)
an acquittal or conviction for larceny-theft will bar any prosecution for robbery if based on the
same facts (greater included example)
an acquittal or conviction for burglary will bar any prosecution for robbery (even if the burglar
woke up the sleeping couple and robbed them) unless there are distinct elements in one crime
that are not included in the other (multiple criminal transaction example) .
an acquittal or conviction for R.I.C.O. will bar any prosecution for conspiracy or attempted
R.I.C.O. (continuing crime example)
An acquittal or conviction for battery will not bar any later prosecution for murder if the
victims later dies as a result of injuries (separate and distinct new crime example)
ANALYSIS OF DOUBLE JEOPARDY IN INDIAN CONSTITUTION
Art . 20 (2 ) which runs as No person shall be prosecuted and punished for the same offence
more than once contain the rule against double jeopardy .
1) Maneka Gandhis v. Union of India3 - Article 21 ( Life and liberty not to be deprived
except according to procedure established by law.
2) Maqbool Hussain v. State of Bombay4 - . In that case, the appellant, a citizen of India ,
on arrival at the airport , did not declare that he had brought in gold with him . But on the
search it was found that he was carrying 107 tolls of gold in contravention of the
Government notification. The customs authorities thereupon took action against him
under Section 167(8) of the Sea Customs Act , 1878 , and confiscated the gold.
The court held that the Sea Customs authorities is not a court or judicial tribunal and the
ad3judging of confiscation or the increased rate of duty or penalty under the provision of the Sea
Customs Act did not constitute a judgement or order of a court or judicial tribunal necessary for
the purpose of supporting a plea of Double Jeopardy.
3) S.A. Venkataraman v. Union of India 5 - In this an enquiry had been made against the
appellant under the Public Servants (Inquiries) Act , 1850 . On receiving the report of the
Enquiry Commissioner an opportunity was given to the appellant under Article 311(2) to
show cause and ultimately the appellant was dismissed.
His plea was rejected on the ground that the proceeding taken against him before the
Commissioner under the Enquiries Act did not amount to a prosecution because in an enquiry
under the act there was neither any question of investigating an offence in the sense of an act or
ommission punishable by any law which made that act or omission an offence . The rule is the
same even if the departmental enquiry is set up after the acquittal of the accused in a criminal
prosecution on the same facts.
3 AIR,1978,SC,597
4 AIR,1953,SC,325
5 AIR,1953,SC,375
6AIR,1996,SC,143
The right not to be tried twice for the same offence is a fundamental legal and human right
recognised in many Bills of Rights and human rights treaties. Here's a sample of them:
1. UN International Covenant on Civil and Political Rights, Article 14(7)
No one shall be liable to be tried or punished again for an offence for which he has already been
finally convicted or acquitted in accordance with the law and penal procedure of each country.
2. Bill of Rights Act 1990 (NZ) Section 26(2)
No one who has been finally acquitted or convicted of, or pardoned for, an offence shall be tried
or punished for it again.
3. Charter of Fundamental Rights of the European Union (2000) Article 50
No one shall be liable to be tried or punished again in criminal proceedings for an offence for
which he or she has already been finally acquitted or convicted within the Union in accordance
with the law.
4. Canadian Charter of Rights and Freedoms (1982) Section 11(h)
Any person charged with an offence has the right...if finally acquitted of the offence, not to be
tried for it again and, if finally found guilty and punished for the offence, not to be tried or
punished for it again.
1. The ambit of Art 20 (2) is however, narrower than the American rule against double jeopardy.
2. Indian Provision enunciates only the principle of autrefois convict but not that of autrefois
acquit whereas in American constitution both these rules operate and second trial is barred even
when the accused has been acquitted at the first trial for that offence In India ,
on the other hand , the rule autrefois acquit is not incorporated in Art 20 ( 2 ) . Art 20 (2 ) may be
invoked only when there has been prosecution and punishment in the first instance .
3. In the American system the Constitutional bar applies to the second prosecution irrespective of
the result of the first prosecution . The constitutional safeguard can be pleaded to the second
prosecution whether the accused was acquitted or convicted in the first prosecution , the
Common law Principle is also the same whereas the rule in Indian Constitution is different . In
order to bring the case of a person within the prohibition of Article 20 ( 2 ) it must be shown that
he had been prosecuted before a court and punished by it for the same offence for which he
is prosecuted again .
4. In India the, protection against double jeopardy is a Fundamental Right guaranteed under
Right to Freedom in the Constitution of India.
And is enshrined in Art . 20 (2 ) which runs as No person shall be prosecuted and punished for
the same offence more than once contain the rule against double jeopardy whereas in U.S
constitution it is enshrined in US Constitution, Fifth Amendment as No person shall be...subject
for the same offence to be twice put in jeopardy of life or limb...
5. In U.S constitution The clause, however, has been interpreted as providing protection
regarding "every indictment or information charging a party with a known and defined crime or
misdemeanor." The clause, it has been held, does not prevent separate trials by different
7. Under the U.S Constitution the protection agaist Double jeopardy is given for the second
prosecution of the same offence irrespective of whether an accused was aquitted or convicted in
the first trial wheras in article 20 (2) of the Indian Constitution the protection against double
punishment is given only when the accused has not only been prosecuted but also punished
and is sought to be prosecuted second time for the same offence .
8. In the U.S Constitution , The double jeopardy principle was explicitly incorporated into the
Constitution when the Bill of Rights was ratified in 1791. whereas in India the Principle of
Double Jeopardy was in existence in India even prior to the commencement of the Constitution
and is enacted under in S. 26 of the General Clauses Act and S. 403 (1) of Cr. P.C, 1898 , S. 300
Cr. P.C. , 1973.
Books:
Dr. J. N. Pandey, 53rdedn. (2016), Constitutional Law of India, Allahabad,
Central Law Agency
Websites
www.e-lawresources.com
www.iloveindia.com
www.legalservicesindia.com