Doctrine of Double Jeopardy
The Doctrine of Double Jeopardy as conceptualized and mentioned under Article
20(2) of the Constitution of India, provides that no person shall be prosecuted
and punished for the same offence more than once. It has been set out as a part
of the Fundamental Rights by the fathers of our Constitution under Part III.
The concept of double jeopardy marks its existence from the Latin maxim Nemo Debet bis Vexari.
This doctrine states that a man should not be present in court of law twice for
the same offence. This maxim however also exists in Section 26 of the General
Clause Act and Section 403(1) of CrPC 1898. Section 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.
The doctrine of double jeopardy is now defined under Section 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
It provides and states that:
No person shall be prosecuted and punished for the same offence more than once.
The clause explores the well-known principle of criminology Sit Constat
Curiae Quod Sit Pro Una Et Eadem Causa which means that no one should be put
in jeopardy or punished twice for the same offence and is based on the common
law maxim 'Nemo Debet Bis Vexari' which means a man must
not be put twice in peril for the same offence.
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 act's 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.
It means that there are two facets for the protection against double jeopardy.
Firstly, it will not punish the person who has been previously convicted in
respect of the same offence and secondly, it will not inquire into the person
who has been acquitted on a same charge on which he is being prosecuted. The
Constitution bars double punishment for the same offence.
Relevance of this Doctrine:
With notions of fairness and finality in mind, the Framers of the Constitution
included the Double Jeopardy Clause to prevent the government from trying or
punishing a defendant more than once. Specifically, double jeopardy protects
against: a prosecution for the same offense after an acquittal.
In India, even before being enacted in the constitution, the principle had
existed in the form of Section 403 (1) of the old Code of Criminal Procedures,
which became what we see in the form of Section 300 today post amendment, as
well as Section 26 of the General Clauses Act.
Today, the doctrine exists in the form of a Constitutional Right not only in
India but in other countries such as the United States and Canada. It has also
found recognition on a plethora of international documents such as The
International Covenant on Civil and Political Rights, European Convention of
Human Rights, and The Charter of Fundamental Rights of the European Union.
Special Exception with Regards to Double Jeopardy:
It is clarified in Article 359 that the right to life (Article 21) and the right
against double jeopardy and self-incrimination (Article 20) cannot be suspended
even during an emergency.
The impact of 44th Amendment Act, 1978 provides that under the Presidential
order made in the exercise of powers under Article 359, the enforcement of
Articles 20 and 21 shall never be suspended.
Personal Opinion on this Doctrine:
In my opinion the doctrine of double jeopardy is extremely essential and crucial
for our legal system since after a person has been convicted and punished for a
particular crime, they ought to know that they have paid off their dues and need
not fear further punishments with regards to that crime. The doctrine has been a
part of legal systems for time immemorial and represents a just provision that
finds its roots in justice and equity, and helps deliver the kind of justice
that we have envisioned since the beginning of time.
Case Law: Maqbool Hussain v. State of Bombay
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
Thus, it can be concluded that the defence of double jeopardy is made available
to a person when they have been convicted of the same crime with the same
elements of prosecution. The defence 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.
We have also seen through the cases that the doctrine is interpreted on a
case-to-case scenario depending on the facts before the court, but at all
points, it seeks to protect the innocent and ensure that there is no miscarriage
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