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Double jeopardy: Concept and Analysis

The doctrine of Double Jeopardy is one of the most debated concepts in India. The concept of Double Jeopardy in defined in Indian Constitution under Part III, Article 20(2) of the constitution. Section 300 of CrPC, 1973 also defines on the concept of Double Jeopardy. In its general sense, Double Jeopardy is defined as that no person shall be convicted for one offence more than once. Any person who has been acquitted or convicted of any offence once shall not be convicted again for the same offence for which he/she is already acquitted or convicted.

The present work therefore aims to detail on the doctrine of Double Jeopardy, its nature and meaning. A brief historical evolution of the concept along with the current position of laws in India. The paper also focuses on some landmark judgments which simplifies and clarifies the concept of double jeopardy under constitutional and criminal law. The paper therefore throws a light on basic concept of the Double Jeopardy laws in India.

In every criminal justice system, the aim of the justice system is to punish the convicts of the crime for their wrongful act and rehabilitate with the purpose of their recovery. The system does not intent to harm the convicts by unnecessarily punishing them and making their living difficult. But there are some instances where the convicts of the crimes maybe repeat offenders are convicted for their acts multiple times even for the same offence.

This act of granting multiple punishments for same offences violates offenders one of the Fundamental rights granted under constitution of India. Part III of the Indian Constitution provides certain fundamental rights available to citizens of India. Under these fundamental rights, article 20(2) of the Indian Constitution provides that No person Shall be prosecuted and punished for the same offence more than once.[1]

This article of the constitution provides for the basis of double jeopardy laws in India. The principle of autrefois convict[2] or double jeopardy means that no person can be punished twice for the same offence. 'Double Jeopardy' is the act of putting a person on second trial for an offence of which he or she was already been tried and prosecuted or convicted. The doctrine lays that if a person is charged for an offence and tried in the court of law of which he has been declared innocent or guilty cannot be tried again for the similar offense.

The concept of double jeopardy marks its existence from the Latin maxim Nemo Debet bis Vexari.[3] This doctrine states that a man should not be present in court of law twice for the same offence. This maxim however also exist in S. 26 of the General Clause Act and S. 403(1) of CrPC 1898. S. 26 states that where an or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments but shall not be liable twice for the same offence.[4]

The doctrine of double jeopardy is now defined under S 300 of CrPC which will be discussed in detail later in the paper. The concept however evolved more and took various changes in its form and definition leading to the current position under Indian laws on criminal procedure code and the Constitution of India.

Double Jeopardy laws in India

Double Jeopardy: Constitution of India

Part III of Indian Constitution defines on fundamental rights available to people within the territory of India. Under these fundamental rights, one of the right which is defined in Art 20(2) states that:
No person shall be prosecuted and punished for the same offence more than once.[5]

The clause (2) of Art 20 provides that a person cannot be prosecuted and punished more than once for the same offence. The word 'Prosecution' under this article consist of three essential components to categorize the concept under this article.

Three essential components of prosecution are:

  1. The first requirement is that a person must be an accused of any offence. The word is defined as act or omission which is punishable by law, also defined under General clause Act.
  2. The next essential is that there should be a proceeding or prosecution of the case before a competent court or a judicial tribunal. These judicial tribunal does not include departmental and administrative authorities. The defense of double jeopardy for second prosecution only exist against the cases which are tried at judicial courts or tribunals.
  3. The third essential is that when a tribunal accepts the administrative and departmental enquires, these enquires are not considered as proceedings and therefore cannot be the part of proceedings with respect to prosecution and punishment.
These three essentials under the prosecution makes it clear that the concept of double jeopardy under constitution of India only satisfy the maxim of autrefois convict and not the maxim of autrefois acquit. This means that the concept can be invoked only for the cases under which the person is prosecuted and punished in their first proceeding.

The constitutional provision of double jeopardy is only applicable for the cases which are tried under judicial courts and tribunals. These does not include enquiry or even punishments given by statutory bodies like departmental or administrative bodies.

The doctrine of double jeopardy is therefore a narrow concept as compared to English law. The broad spectrum of the concept is however mentioned in S. 300 of CrPC which widens the ambit of the provision in India.

Double Jeopardy: Criminal Procedure Code

The position of double Jeopardy laws under Criminal procedure code is much wider than what is given in constitution. The concept is defined under S. 300 of CrPC and give a detail analysis by giving provisions on what will form a part of double jeopardy and what all are the exceptions made under it. One of the major point of emphasis is under CrPC, double jeopardy laws deal with both the issues of autrefois convict and autrefois acquit. Therefore double jeopardy is applicable to all those who can are either acquit or convict of the offence.

The doctrine of double jeopardy is found under S. 300 of CrPC.[6] There are six sub clause under this section which aims to provide an exhaustive view on the concept. All the sub clause will be explained in this part of the paper.

Clause (1)
S 300(1) of CrPC provides that if any person is tried under the court of competent jurisdiction and found acquitted of convicted for an offense committed, and when such acquittal or conviction remains in force cannot be tried again for the same offence twice. Second trial cannot be made on that person for the same set of facts and same offence and nor he\she shall be tried again for the same set of facts for different charges made against him under sub section (1)[7]of 221or for sub section (2)[8]of 221. This means that if a person is convicted of an offence under sub section (1) of 221 then he cannot be convicted under sub section (2) of 221 in the second trial for the same set of facts.

Some other essentials to this section includes that 'acquittal' for the purpose of this section does not include dismissal of a complaint nor does it include discharge of accused. The case in its first trial should be tried under the court of competent jurisdiction. The section also requires that fall under this concept, the facts of the case should be identical. This means a person will one be barred under this section from second trial if the facts of the case under second trial is identical to the facts of first trial.

Clause (2)
Clause (2) of this section provides that if a person has committed several offences but he was not tried for all such offences in the first trial then he cannot be prosecuted for other charges in the second trial. This means that when a person is acquitted or convicted for any offence and then he is charged with another offence separately then he cannot be charged for another offence under second trial as it is an abuse in itself. A person cannot be always made under prosecution for different charges separately. So to provide a check against this abuse, section 300(2) make it obligatory to obtain consent of state government before a new prosecution is launched against any person for any distinct offence for which a separate charge might have been made against the person at the former trial.[9]

The clause therefore provides that this section does not bar the prosecution under second trial for distinct offence but it should be initiated only after the consent of state government.

Clause (3)
Clause (3) of the section permits for the second trial of the convict only in the cases where some new facts came into existence as a consequence of already existing offence. Firstly, this section is only applicable to the convicts of the offence and not to the acquits of the offence. The second element of this clause is that a person can only be re-tried in the cases where some facts relating to the offence were not came into the notice of the courts.

This means that a convict can be taken for re-trial if some new facts were noticed in the case and these new facts were not known to the courts in the first trial. It mandates that the new facts or consequences must have occurred since the conviction or acquittal of first trail was going and these were not brought in the notice of the court. it therefore says that if some new offense took place in the course of first trial, as a result of already known offence, but not known to the courts in the first trial, then the convict can be re-tried in the second trial only for the newly observed offence which was not known in the first trial. Second trial would be barred if the consequences and offences of the second trial were already known to the courts in the first trial.

Clause (4)
Clause (4) of this section is in continuance with clause (3) and act as an exception to the rule of double jeopardy. This clauses states that if any court is incompetent to try the accused of any offence which is actually the consequence of the offence which the court is taking trial, the first acquittal or conviction will not bar the competent court to take cognizance of consequential offence. This basically means that if the court under which first trial was made was not competent enough to try the second offence which was the consequence of the first offence can be tried in other competent court and the first trial will not act as a bar on second trial.

Clause (5)
Clause (5) of the section says that if a person is discharged under S. 258 of CrPC[10] which talks about the courts power to stop the proceedings of the case at any stage without pronouncing the judgment. The stoppage can however be made after recording the evidence of principle witness, pronouncement of acquittal or release of the accused have the effect of discharge. This clause (5) therefore states that no such accused person under S 258 shall be tried again for the same offense unless the consent of the court from which such discharge was made is obtained. This provision is made to protect the person against the abuse of power of fresh prosecution in such cases.

Clause (6)
This is the last clause of S. 300 which provides that nothing in this S 300 of CrPC shall affect the provisions of S 26 of General Clause ACT, 1897.[11] S 26 provides for an acts or omission constituting an offence under two or more enactments. This means that if the offence which is committed by the accused falls under two or more enactments then that accused shall be charged with either of the two enactments. The emphasis is made on the ingredients of the two offences with which the accused is charged. It is also provided that the accused shall not be made liable and punished for the same offence twice, but if there exist two distinct offence that the ban imposed by S 26 cannot be imposed.

Landmark Judgment

Maqbool Hussain v. State of Bombay [12]

In this case, the appellant Maqbool Hussain, a citizen of India arrived at an airport of Santa Cruz from a place from abroad. Upon his landing, he did not declare that he has brought gold from abroad. However on search it was discovered that he brought 107.2 tolas of gold which was in contravention to government notification dates August 25, 1948. Action was taken against the appellant by the custom authorities and the gold was thereafter confiscated. Later the appellant was prosecuted by the criminal court under the Foreign exchange Regulation Act. The question was whether the plea of autrefois acquit be raised under Art 20(2) of the Indian Constitution or not.

The Supreme Court in this case concluded that the proceedings made before any custom authorities does not constitute 'prosecution' of appellant and the penalty imposed by such authorities does fall within the category of 'punishment' as under Art 20(2) of Constitution of India. It was therefore said that in this case where the case was first presented under custom authorities and then before the criminal court does not constitute as second trial and Art 20

(2) does not act as a bar on second trial.
The Supreme Court therefore pronounced that It is clear that in order that the protection of Art. 20 (2) be invoked by a citizen there must have been a prosecution and punishment in respect of the same offence before a court of law or a tribunal, required by law to decide the matters in controversy judicially on oath which it must be authorized by law to administer and not before a tribunal which entertains a department or an administrative enquiry even though set up by a statute but not required to proceed on legal evidence given on oath. The very wording of Art 20 and the words used therein would indicate that the proceedings therein contemplated are of the nature of criminalproceedings before a court of law or a judicial tribunal and the prosecution in this context would mean an initiation or starting of proceedings of a criminal nature before a court of law or a judicial tribunal in accordance with the procedure prescribed in the statute which creates the offence and regulated the procedure.[13]

The court therefore excludes departmental and administrative authorities from this provision of double jeopardy and only considers proceedings which are made before judicial courts and judicial tribunals.

Roshan Lal & ors v. State of Punjab[14]

In this case there were three appellants who were charged under S 409, IPC and S 5 of Prevention of corruption Act, 1947 for making false panchnama in which they have shown the recovery of 90 gold biscuits while as per the prosecution case 99 gold biscuits were recovered. The appellants are therefore tried for the same and acquitted thereafter. However, the appellants were again tried under S 120-B, IPC and S 135 & 136 of Custom act, Section 85 of Gold(control) Act and some other offences. The validity of this second trial was challenged by the appellants on the ground that it is in contravention of their constitutional right guaranteed under Art 20(2) of the Constitution of India.

The court in this case observed the facts and held that:
After giving our careful consideration to the facts and circumstances of the case and the submissions made by the learned counsel for the respective parties, it appears to us that the ingredients of the offences for which the appellants were charged in the first trial are entirely different. The second trial with which we are concerned in this appeal, envisages a different fact- situation and the enquiry for finding out constituting offences under the Customs Act and the Gold (Control) Act in the second trial is of a different nature. Not only the ingredients of offences in the previous and the second trial are different, the factual foundation of the first trial and such foundation for the second trial is also not indented (sic). Accordingly, the second trial was not barred under Section 403 CrPC OF 1898 as alleged by the appellants.[15]

From the judgment of this case it can be said that courts clear on the views that a person can be prosecuted again if the offences and facts of the second trial are different from the first trail. In this case it was found that both the facts and offences charged in second trial are different from first trial and therefore there cannot be any bar for the prosecution of the case in second trial.

From the above findings and analysis made in the paper it can be observed that the concept and doctrine of double jeopardy lays that a person shall not be prosecuted twice for same offence. The concept is defined in the constitution of India under Art 20(2) and in Criminal Procedure Code under S 300. The concept defined under constitution is narrower than what is laid in criminal procedure code.

It however requires certain essentials conditions to take the defense of double jeopardy under the said law. On subsequent fulfillment of such requirements a person shall be barred from second prosecution and no other criminal proceedings can be made against him for that offence.

The intention of defining the concept so exhaustively under both the laws is to protect individuals from multiple punishments for same offence. The concept is necessary to protect individuals from emotional, social, and financial losses which a person might incur during such multiple prosecutions. The intention is to preserve the finality and integrity of the criminal justice system and to safeguard and govern the abuse of powers granted to criminal administration.

So to safeguard the interest of all those who are once acquitted or convicted from multiple prosecution and to create a check on the criminal administrative system, the doctrine of double jeopardy is made necessary and therefore defined exhaustively under Indian Laws.

  1. Article 20(2), Constitution of India
  2. A defendant's plea stating that he or she has already been tried for and convicted of the offence.
  3. A man should not be put in peril twice for the same offence
  4. S 26 of General Clause Act, 1897
  5. Art 20(2) Constitution of India
  6. Person once convicted or acquitted not to be tried for same offence:
    1. A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under sub- section (1) of section 221, or for which he might have been convicted under sub- section (2) thereof.
    2. A person acquitted or convicted of any offence may be afterwards tried, with the consent of the State Government, for any distinct offence for which a separate charge might have been made against him at the former trial under sub- section (1) of section 220.
    3. A person convicted of any offence constituted by any act causing consequences which, together with such act, constituted a different offence from that of which he was convicted, may be afterwards tried for such last- mentioned offence, if the consequences had not happened, or were not known to the Court to have happened, at the time when he was convicted.
    4. A person acquitted or convicted of any offence constituted by any acts may, notwithstanding such acquittal or conviction, be subsequently charged with, and tried for, any other offence constituted by the same acts which he may have committed if the Court by which he was first tried was not competent to try the offence with which he is subsequently charged.
    5. A person discharged under section 258 shall not be tried again for the same offence except with the consent of the Court by which he was discharged or of any other Court to which the first- mentioned Court is subordinate.
    6. Nothing in this section shall affect the provisions of section 26 of the General Clauses Act, 1897, (10 of 1897 ) or of section 188 of this Code. Explanation.- The dismissal of a complaint, or the discharge of the accused, is not an acquittal for the purposes of this section.
  7. Where it is doubtful what offence has been committed.
    If a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged with having committed all or any of such offences, and any number of such charges may be tried at once; or he may be charged in the alternative with having committed some one of the said offences.
  8. If in such a case the accused is charged with one offence, and it appears in evidence that he committed a different offence for which he might have been charged under the provisions of sub- section (1), he may be convicted of the offence which he is shown to have committed, although he was not charged with it
  9. R. V. Kelkar, "Criminal Procedure", rev. Dr. K. N.Chandrasekharan Pillai, 4th ed., 2001, p. 481
  10. Power to stop proceedings in certain cases. In any summons- case instituted otherwise than upon complaint, a Magistrate of the first class or, with the previous sanction of the Chief Judicial Magistrate, any other Judicial Magistrate, may, for reasons to be recorded by him, stop the proceedings at any stage without pronouncing any judgment and where such stoppage of proceedings is made after the evidence of the principal witnesses has been recorded, pronounce a judgment of acquittal, and in any other case, release the accused, and such release shall have the effect of discharge.
  11. Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence.
  12. AIR 1953 SC 325
  13. AIR 1953 SC 325 at p 327
  14. AIR 1965 SC 1413
  15. Roshan Lal & ors v. state of Punjab AIR 1965 SC 1413

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