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Doctrine Of Double Jeopardy: Gadget For Preserving Criminal Justice System

The doctrine of double jeopardy is old common phenomena. The doctrine plays a vital role for the protection of integrity of the criminal justice system including precious human rights of the accused person. The criminal justice system operates on the basis of certain values within which it admits no compromise.

The principle of double jeopardy is one such value protected by the system. It originally flows from common law of rule Nemo Debet Vis Vexari which means that no man should be put twice in peril for the same offence. The core rule includes the old plea in bar of jurisdiction namely, autrefois acquit and autrefois convict. Actually, this principle is very essential for criminal from the harassment and trauma of re-litigation. The existence of the rule is very essential as far as criminal justice system is concerned irrespective of the nature of the system.

Meaning of Double Jeopardy

Jeopardy refers to the danger of conviction that an accused person is subjected to when he is put to trial for a criminal offence.

Double Jeopardy means the act of putting a person through a second trial of an offence for which he or she has already been prosecuted or convicted. It is a procedural defense that prevents an offender from being tried over again on similar charges followed by a legitimate acquittal or conviction. The concept has been dealt with by the Article 20(2) of the Indian constitution as well as Section 300 of the criminal procedure code,1973 and also section 26 of the General clauses Act, 1897.

Application of Doctrine of Double Jeopardy

In order for Double Jeopardy to be applicable, there are certain conditions that need to be fulfilled. A person is required to be charged with a crime, there must be a continuation before the court or tribunal, the court must punish that person with that crime, and the new charge against that person must be the same as the old case that was prosecuted.

If all of these conditions are met then protection against recurring risks can be achieved. It does not apply in cases where different offenses were committed by the same action of the defendant.
Note: It must be noted that the Rights under Article 20 and Article 21 of the constitution cannot be revoked under any circumstances, even in the event of an emergency.

History of Double jeopardy

It is a centuries old principle, and it has been rightly observed that the history of double jeopardy is the history of criminal procedure. The rule is considered the source of the controversy between Henry II and Archbishop Thomas Becket in the 12th century.

But the concept continued to change and develop through many kings and queens in England. Colonial Massachusetts gave birth to the modern American method of double jeopardy in its Body of Liberties published in 1641. In line with earlier declarations, the Body of Liberties provided that ��no man shall be twice sentenced by civil justice for one and the same crime, offense, or trespass.

Over one hundred years later, in 1784, New Hampshire became the first state to protect against double jeopardy in its Bill of Rights, proclaiming that ��no subject shall be liable to be tried, after an acquittal, for the same crime or offense.

The principle was inexistence in India even prior to the commencement of the Constitution, but the same has now been given the status of constitutional, rather than a mere statutory, guarantee. Double Jeopardy is recognized in different countries like U.S., U.K., Canada, Germany, France, Japan etc.

Indian laws and double jeopardy

The protection against double jeopardy is a constitutional as well as a statutory guarantee in India. The rule against double jeopardy has been recognized as a fundamental right in the Constitution of India.

Article 20(2) of the Constitution of India: No person shall be prosecuted or punished for the same offence more than once. The Double Jeopardy principle was existed in India prior to the enforcement of the Constitution of India as well. But it is subjected to certain restrictions. And it is to be noted that Article 20(2) of Constitution of India does not apply to a continuing 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 is itself an offence, the offender shall not be punished of more than one of such his offences, unless it be so expressly provided�.

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.
Therefore, the protection of double jeopardy is made available to a person when they have been convicted of the same crime with the same elements of prosecution, again.

The D�fense provided under Article 20(2) of the Constitution or Sections 300(1) and 26 of the CRPC and general clauses act respectively cannot be made available to a person if a person commits different elements of crime based on the same fact scenarios.

Some landmark judgements
  • In the cases of Maqbool Husain v. State of Bombay, the Court states that maritime administrators are not a court or tribunal and the adjudication law under the Sea Customs Act was not a court order required to take a court application to risk. Therefore, prosecution under the Foreign Exchange Regulation Act is not prohibited.
  • In A.A. Mulla v. State of Maharashtra, the court held that the second trial was not barred as not only were the ingredients of the two separate cases but also the true nature of the cases in the first and second cases were also different.
  • In M. Sharma v. Satish Chandra, the Supreme Court noted that this right consists of the following:
    1. It is a right relating to a person accused of a crime.
    2. It is a protection against compensation for witnessing.
    3. It is a protection against such coercion in connection with giving evidence against himself.
  • In Venkataraman v. Union of India, under investigation before the commission of inquiry under the Public Service Commission of Inquiry into 1960, he was dismissed. He was later charged with felony criminal mischief under the Indian Penal Code & the Prevention of Corruption Act. The court held that the court's proceedings by the commissioner of inquiry were merely a question and not a prosecutor's case. Therefore, the second prosecution did not attract Double Jeopardy doctrine or guaranteed protection under Fundamental Right Article Article 20 (2). It should be noted that Article 20 (2) will apply only where there is a penalty for the same offense.

    In Leo Roy v. Superintendent District Jail, The Court held this:
    If the charges are different the Double Jeopardy law will not apply. Therefore, when a person was persecuted and punished under maritime law, and later prosecuted under the Indian Penal Code on a criminal basis, it was held that the second prosecution was not prevented because it was not the same offense.

Rationale behind this doctrine
The principal reasons for protection of the doctrine are two-fold. Affording protection to the citizens against the repeated state prosecution is at one hand and preserving the moral integrity of the criminal justice process on the other.

The four major rationales for the double jeopardy rule. They are:
  1. Reducing the risk of wrongful conviction
  2. Minimizing the distress of the trial process,
  3. Preventing harassment
  4. The need to encourage efficient investigation
The rationales of the principle of double jeopardy made it clear that, it protects some values of the criminal justice system. It shows concern for the basic human rights of the unfortunate accused persons who are caught in the web of criminal law.

We can conclude that, the Doctrine of double jeopardy has been a part of the legal system since man can remember and is an honest endeavor to shield the non-guilty ones. Doctrine of double jeopardy is a right given to the accused to save him from being punished two times for the same offence and he can take plea of it. The rule of thumb of double jeopardy cannot be made a straitjacket rule and is as a result interpreted in different way for different cases.

The rule towards double jeopardy is a universally accepted principle for the safety of certain values within the criminal justice mechanism. It serves many functions consisting of preventing the arbitrary actions of the state against its subject, guarantees finality in litigations and so on., that are of great significance for the protection of human rights of the accused persons. It can consequently be considered an effective and just doctrine based totally on equity, justice and good conscience.

  • The conceptual analysis of the principle of double jeopardy and the protection of human rights in criminal justice administration - Vijay Vivekanandan
  • Protection Against Double Jeopardy in India � A Critical Analysis � Caesar Roy

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