This article has been written by Mayank Singh, pursuing Certificate Course in Advanced Criminal Litigation & Trial Advocacy and has been edited by Oishika Banerji (Team Lawsikho). 

This article has been published by Sneha Mahawar.

Introduction

The term double jeopardy essentially means “the putting of a person on trial for an offence for which he or she has previously been put on trial under a valid charge”. The concept of double jeopardy is a protection to an accused who has already been tried and either convicted or acquitted of an offence from being tried again for the same offence. It served both individual interest as well as societal interest. As it is in the interest of all that judicial proceedings have a certain degree of definiteness attached to them. Under the Indian legal system this concept finds a place in the Indian Constitution as well as the Code of Criminal Procedure, 1973 (CrPC). Article 20(2) of the Constitution provides that no person shall be prosecuted and punished for the same offence more than once. Whereas Section 300 of the Code of Criminal Procedure, 1973 provides that a person once acquitted or convicted not to be tried for the same offence. Both the provisions are essentially addressing the same principle but there is a slight difference. Article 20(2) provides protection from retrial only in case of conviction whereas Section 300 of CrPC is available in case of conviction as well as acquittal. Both these provisions will be dealt with separately. Apart from them this principle has also been incorporated in Section 26 of General Clauses Act. The maxim nemo debet bis puniri pro uno delicto incorporates the essence of double jeopardy and means that no one ought to be punished twice for the same offence. This article delves into the concept of double jeopardy highlighting its constitutionality. 

Section 300 CrPC : an insight

It provides that once an accused is tried by a competent court for an offence and whether he is acquitted or convicted he will not be liable to be tried again for the same offence or any other offence for which a charge might have been created under Section 221(1) of CrPC i.e doubtful offences which might arise from the same set of facts or under Section 221(2)  of CrPC i.e offences which are discovered to have been committed during the investigation of the first mentioned offence.This is the general principle of Section 300 of CrPC.

Further we see that the section itself provides for exceptions to the said principle. The exceptions are five in number:

1. Section 220 (1) of CrPC – An accused can be tried afterwards for an offence for which a separate charge might have been made under Section 220 (1) of CrPC i.e an offence which was committed in the same transaction as that of first mentioned offence. It is immaterial here whether he was acquitted or convicted in the initial trial. The only restriction here is that it can only happen with the consent of the state government.
2. Offence constituted by acts causing consequences – The accused is convicted of offence constituted by act causing consequences and the act together with the consequences constitute a different offence. The accused in such a case may be tried for such last mentioned offence only if such consequences had not happened or were not known to the court to have happened at the time when he was initially convicted. The thing to be seen here is that this clause will not operate in case of acquittals.
3. Incompetency of court – An offence which is constituted by the same facts and may have been committed by the accused but the court trying is not competent to try such offence. Such offences can be tried later.
4. Discharge under Section 258 of CrPC – If an accused is discharged under Section 258  of CrPC then he cannot be tried again for the same offence except with the consent of the discharging court.
5. Section 188 of CrPC – If a person is liable under Section 188 of CrPC for an offence committed outside India then he will not be protected under Section 300 of CrPC i.e he can be tried again if the same offence has been committed again outside India.

Section 300 CrPC further states that it will not affect the provisions of Section 26 of General Clauses Act, 1897. Section 26 provides that if an act or omission is an offence under two or more enactments then the offender is liable to be prosecuted and punished under either or any of those enactments. Meaning thereby that if he is prosecuted and punished for an offence under one act then he cannot be prosecuted and punished for that offence under the other act which also provides for its punishment.

Article 20(2) of the Constitution of India

Article 20(2) prohibits prosecution for an offence more than once only in case prosecution followed by conviction i.e the accused has been both prosecuted as well as punished for the same offence previously. It is also necessary that the first prosecution must be valid and not null and void. Also the second punishment must be awarded in a fresh proceeding and such proceeding cannot be a continuation of the previous prosecution like in cases of appeal or retrial on appeal. The clause also does not prohibit two penalties for the same offence in the same proceeding as long as it does not entail multiplicity of prosecution. 

The term prosecution is 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 regulates the punishment. So the following cannot be said to be prosecution within meaning of Article 20(2) :

• Proceedings for the confiscation of goods or fine under Section 167 of the Sea Customs Act, 1878.
• Proceedings before an administrative or departmental tribunal.

Punishment under this clause includes only the ones granted by a criminal court and not by any statutory authority. Also that this clause has no application in cases of different offences though arising out of the same facts.

Landmark judgements

Maqbool Hussain. v State of Bombay (1950)

The facts of the case were such that the accused had brought undeclared gold into India from another country. Concerned authorities confiscated the gold under the Sea Customs Act VIII, 1878. Later charges were framed against the same person under Section 8 of the Foreign Exchange Regulation Act VII of 1947. Mr. Hussain claimed protection of Article 20 (2) of the Indian Constitution. No protection was granted to him as it was held that the Sea Customs authorities are not a court or tribunal for the application of Article 20(2).

Kalawati and Anr. v. State of Himachal Pradesh (1953)

In this case the accused was charged of murder under Section 114 and Section 302 of the IPC. The accused was acquitted and the state went on appeal. Appeal was challenged on ground of Article 20 (2). It was held in this case that Article 20(2) has no application if the subsequent proceeding is a mere continuation of the previous proceeding as in case of appeal against acquittal. Appeal from acquittal is a continuation of the original prosecution.

Thomas Dana v. State of Punjab (1958)

This case was concerned with smuggling of currency coins and other artefacts out of India. The currency and the goods were first confiscated by the concerned authorities and after that they also faced prosecution and were punished for the same. The plea of double jeopardy was brought before the Supreme Court of India. The Supreme Court held the following points for the applicability of double jeopardy:

• There has to be a previous prosecution.
• There has to be conviction in such prosecution
• The offence involved must be the same.

Conclusion

The role of law in society is irrefutable and thereby the proper functioning of the legal machinery is a sine qua non for the effective disposal of the prescribed functions of the law in maintaining order in the society. The principle of double jeopardy is somewhat at the core of this thought. As multiple prosecution for the same offence will not only affect the litigant/accused adversely rather it will also hamper the definite value that judicial decisions have in our legal system. Not only is it a violation of the legal rights of an individual, it is also a violation of his/her human right. No person should be subjected to the harassment of facing multiple proceedings for the same offence as it will create unimaginable hardships for the litigant. The tool of legal proceedings will no longer be used to serve justice rather only to harass the other party. The Indian legal system has addressed such a scenario by means of Article 20(2) of the Indian Constitution and Section 300 of the CrPC. The Supreme Court has also dealt with the possibilities and intricacies of the same in various judgements clarifying the scope and ambit of the principle of double jeopardy as applicable in the Indian legal context. In this article the author has tried to clarify upon the provisions on double jeopardy in India and also various landmark judgements dealing with the issue. On a bare understanding, double jeopardy can be misunderstood to be only meaning multiple prosecution for an offence but a deeper analysis and study revealed as to how its application will vary depending upon particular fact and case scenario.

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