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
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
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
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
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
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
The Défense 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
Rationale behind this doctrine
- 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
- In M. Sharma v. Satish Chandra, the Supreme Court noted that this right
consists of the following:
- It is a right relating to a person accused of a crime.
- It is a protection against compensation for witnessing.
- 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.
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:
- Reducing the risk of wrongful conviction
- Minimizing the distress of the trial process,
- Preventing harassment
- 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.
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 –