By Sonakshi Verma, National Law University Jodhpur
Editor’s Note: A sentence, whether absolvitor or condemnatory, is a complete bar, not only to any subsequent trial for the same offence, but for any other crime involving the same species facti, whether at the instance of the public or private property. This principle of double jeopardy has been a part of the legal system since man can remember and is an honest endeavour to protect the non-guilty ones. It can therefore be considered a positive and just doctrine based on equity, justice and good conscience.
Double jeopardy is a procedural defence that forbids a defendant from being tried twice for the same crime for the same set of facts. It refers to the concept that it is wrong for a man to be subjected more than once to the danger of being punished for an offense. The roots of the doctrine against double jeopardy can be found in the well-established maxim of the English Common law, Nemo debet bis vexari, meaning that a man must not be put twice in peril for the same offence.
At Common Law a defendant may plead autrefois acquit and autrefois convict (peremptory plea), meaning the defendant has been acquitted or convicted of the same offence. If this issue is raised, evidence will be placed before the court, which will normally rule as the preliminary matter whether the plea is sustained, and if it so finds, the projected trial will be prevented from proceeding.
The principle was inexistence in India even prior to the commencement of the Constitution- Section 26 of the General clause Act 1897 says: 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
Article 20 of the Constitution of India provides protection against double jeopardy. It has been enshrined as a part of the Fundamental Right by the fathers of our Constitution. The Indian Constitution, which has been beautifully written as poetry-in-prose, guarantees to the people certain basic human rights and freedoms, inter alia freedom against double jeopardy. Accordingly, no person can be prosecuted and punished for the same offence more than once. The provision apotheosizes the principle that a person cannot be tried twice for the same offence by an equally competent court.
When a person has been convicted for an offence by a competent court, the conviction serves a bar to any further criminal proceedings against him for the same offence. The idea is that no one ought to be punished twice for one and the same offence.
In India, a partial protection against double jeopardy (Autrefois convict) is a Fundamental Right guaranteed under Article 20 (3) of the Constitution of India. It states that “No person shall be prosecuted and punished for the same offence more than once”. However it does not extend to autrefois acquit, and so if a person is ‘acquitted’ of a crime can be retried. The protection against autrefois acquit is a statutory right in our country and not a fundamental right.
As per Indian Constitutions Article 20 “Protection in respect of conviction for offences” in the Constitution of India 1949 says,
- No person shall be convicted of any offence except for violation of the law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.
- No person shall be prosecuted and punished for the same offence more than once
- No person accused of any offence shall be compelled to be a witness against himself
A similar provision for the protection of those who have been already acquitted or convicted by a court has been provided for the U.S Constitution as well. The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution provides: “[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb . . . .” The four essential protections included are prohibitions against, for the same offense: (i) retrial after an acquittal; (ii) retrial after a conviction; (iii) retrial after certain mistrials; and (iv) multiple punishments.”
The conceptual muddle of the Double Jeopardy Clause generates a willingness on the part of the Court periodically to rethink its jurisprudence, presumably for the purpose of replacing one failed logical scheme with a better one, and similarly stimulates scholarly calls for the adoption of general theories that presumably are designed to replace the chaos with logical orderliness.[i]
The criminal justice system operates on the basis of certain values within which it admits no compromise. The double jeopardy principle is one such value protected by the system. It is a procedural safeguard, which bars a second trial then an accused person is either convicted or acquitted after a full-fledged trial by a court of competent jurisdiction[ii]
It is apparent that the guarantee serves the basic values on which all constitutional rights of the detained and accused persons are based: (1) minimisation of the possibility that an innocent person be convicted; and (2) treatment of the individual with dignity and respect. It has been suggested that the consideration that the innocent person should be protected from wrongful conviction ‘lies at the core of the double jeopardy problem’.[iii]
There is an important difference between the guarantee against double jeopardy and most of the other constitutional rights of the accused person. The guarantee against double jeopardy determines the number of times that a person may be tried and not the way in which he may be tried.
[A] History and origin of this principle
Judicial and academic statements on the principle that a person should be protected against double jeopardy tend to either assume or imply unquestioningly the belief that the rule is one with a long historical background and sound doctrinal foundations.[iv]
The principle of double jeopardy was not entirely unknown to the Greeks and Romans, although the legal environment was quite different.[v] This principle found final expression in the Digest of Justinian as the precept that “the governor should not permit the same person to be again accused of a crime of which he had been acquitted.”[vi] No statement of the double jeopardy clause appears in Magna Charta, nor can it be discovered by implication.
During the eighteenth century, the extreme procedure was generally followed. It should be noted that, in eighteenth century, Blackstone stated thus:
“First, the plea of autrefois acquit, or a former acquittal, is grounded on this universal maxim of the common law of England, that no man is to be brought into jeopardy of his life for more than once for the same offence and hence it is allowed as a consequence that when a man is once fairly found not guilty upon any indictment or other prosecution, before any court having competent jurisdiction of the offence he may plead such acquittal in bar of any subsequent accusation for the same crime.”[vii]
Both the continental and the English systems drew the doctrine of double jeopardy from the common source of Canon law.[viii] The origin of the maxim that, “not even God judges twice for the same act” was present in church canons as early as 847 A.D[ix]
The concept of double jeopardy was prevalent in the Roman law in the Justinian Code.
The classical argument for the need of maintaining the rule is apparent in the observation of the court in Green v. United States[x]. The Court observed thus:
“The underlying idea… is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offence, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.”
Blackstone further advanced the doctrine by pronouncing that “the plea of autrefois acquittal, or a formal acquittal, is grounded on the universal maxim…that no man is to be brought into jeopardy of his life more than once for the same offence.” A main distinction between historical doctrine and modern double jeopardy provisions is that the former only applies to capital crimes. In modern times, double jeopardy is not limited only to crimes affecting “life or limb” but, rather, applies to all criminal prosecutions and punishments in which an individual is at risk of multiple attacks on his or her liberty.
In modern times, remnants of double jeopardy exist in many countries, including Australia, Canada, the United Kingdom, parts of Asia, and the United States. It exists as a constitutional right is many countries such as United States, Canada, Mexico and India.
The protection is also given under this rule has gained international recognition also through various international documents, for instance, Article 14(7) of the International Covenant on Civil and Political Rights, Article 4(1), Protocol 7 to the European Convention of Human Rights and Article 50 of the Charter of Fundamental Rights of the European Union. The states are bound to cope with the relevant provisions of the conventions to which they are parties
Scope of Article 20(3)
The object of this clause is to protect an individual from being subjected to prosecution and conviction more than once for the same offence.[xi] The ambit of Article 20(3) is narrower than the English or the American rule against double jeopardy. The Indian provision enunciates only the principle of autrefois acquit. In Britain and in U.S.A., both these rules operate and a second trial is barred even when the accused has been acquitted at the first trial for that offence. In India, however, Article 20(2) may be invoked only if when there has been a prosecution and punishment in the first instance.[xii]
In the case of Kalawati v State of Himachal Pradesh[xiii], a person accused of committing murder was tried and acquitted. The State preferred an appeal against the acquittal. The accused could not plead Article 20(2) against the State preferring an appeal against the acquittal. Article 20(2) would not apply as there was no punishment for the offence at the earlier prosecution: and an appeal against an acquittal was in substance a continuation of the prosecution.
Where there are two distinct offences made up of different ingredients, embargo under Article 20(2) or Section 26 General Clauses Act 1897 has no application, though the offences may have some overlapping features. The doctrine of double jeopardy protects a person from being tried and punished twice for the same offence but not from different offences arising out of violation of different laws by the same set of facts. The Supreme Court in the recent case of Monica Bedi v State of Andhra Pradesh[xiv] has ruled that a passport on fictitious name amounted to a double jeopardy for her as a Portuguese court too had earlier convicted her for owning forged passport.
A limitation read into the Article 20(2) is that the former ‘prosecution’ (which indicates that the proceedings are of a criminal nature) must be before a court of law, or a judicial tribunal which it is authorised to administer.
There is also the concept of ‘continuing offence’ which means that where an act or commission constituting the offence is continued from day to day, a fresh offence is committed every day and each offence can be punished separately.[xv]
Enhancement of punishment by the revising authority does not amount to second punishment.[xvi] Preventive Detention is not ‘prosecution and punishment’ and, therefore, it does not bar prosecution of the person concerned.[xvii] In the case of State of Bombay v S.L. Apte[xviii], the Supreme Court explained the legal position as follows:
“The crucial requirement for attracting Article 20(2) is that the offences are the same, i.e., they should be identical. It is therefore, necessary to analyse and compare not the allegations in the two complaints but the ingredients of the two offences and see whether their identity is made out…”
For instance, the offence under Section 161 I.P.C., is different from the offence of criminal misconduct punishable under Section 5(2) of the Prevention of Corruption Act, though some of the ingredients of the two offences may be common.[xix] When a person was convicted in U.S.A. under its drug laws and on the same set of facts tried in India under the Narcotics Drugs and Psychotropic Substances Act, 1985, it was held that the application of the principle of double jeopardy was not available since the offences in USA and India are distinct and separate.[xx]
Under the provisions of the Indian Constitution, the conditions that have to be satisfied for raising the plea of autrefois convict are firstly; there must be a person accused of an offence; secondly; the proceeding or the prosecution should have taken place before a ‘court’ or ‘judicial tribunal’ in reference to the law which creates offences and thirdly; he accused should be convicted in the earlier proceedings. The requirement of all these conditions have been discussed and explained in the landmark decision, Maqbool Hussain v. State of Bombay[xxi] In this case, the appellant, an Indian citizen, was arrested in the airport for the illegal possession of gold under the provisions of the Sea Customs Act, 1878. Thereupon, an action was taken under section 167(8) of the Act, and the gold was confiscated. Sometimes afterwards, he was charge sheeted before the court of the Chief Presidency Magistrate under section 8 of the Foreign Exchange Regulation Act, 1947. At trial, the appellant raised the plea of autrefois convict, since it violates his fundamental right guaranteed under article 20(2) of the constitution. He sought the constitutional protection mainly on the ground that he had already been prosecuted and punished inasmuch as his gold has been confiscated by the customs authorities. By rejecting his plea, the court held that the proceedings of the Sea Customs Authorities cannot be considered as a judicial proceedings because it is not a court or judicial tribunal and the adjudgment of confiscation or the increased rate of duty or penalty under the provisions of the Sea Customs Act does not constitute a judgment or order of a court or judicial tribunal necessary for the purpose of supporting a plea of double jeopardy. The court also held that the proceedings conducted before the sea customs authorities were, therefore, not ‘prosecution’ and the confiscation of gold is not punishment inflicted by a ‘court’ or ‘judicial tribunal’. The appellant, therefore, cannot be said to have been prosecuted and punished for the same offence with which he was charged before the Chief Presidency Magistrate Court.
The presence of the phrase, ‘prosecuted and punished’ in Article 20(2) indicates that the proceedings so contemplated are of the nature of a criminal proceedings in front of a court of law, or a judicial tribunal, and the prosecution in that context means an initiation or starting of a proceeding of a criminal nature in accordance with the procedure prescribed in the statute which created the offence.
The view taken in the Maqbul Hussain case has been taken in several cases like the case of Thomas Dana v Punjab[xxii]which said that ‘prosecution’ in Article 20(2) means “a proceeding by way either of indictment or of information in the criminal courts, in order to put an offender on his trial; the exhibition of a criminal charge against a person before a court of justice. Gajendragadkar J. in Narayanlal Bansilal v M.P. Mistry also followed the same principle.
The requirement of Article 20(3) that a person must have been prosecuted and punished is conjunctive and not disjunctive.[xxiii] Thus, Article 20(3) prohibits the prosecution and punishment of a person more than once for the same offence. It does not, however prohibit a second prosecution and punishment for an offence for which he was previously prosecuted and acquitted.
To operate as a bar under Article 20(3), the second prosecution and the consequential punishment must be for the same offence, i.e., an offence whose ingredients are the same.[xxiv] One of the important conditions to attract the provision under clause (3) of article is that, the trial must be conducted by a court of competent jurisdiction. If the court before which the trial had been conducted does not have jurisdiction to hear the matter, the whole trial is null and void and it cannot be said that there has been prosecution and punishment for the same offence.
Thus, the three conditions for the application of this clause are:
- The person should be ‘prosecuted and punished’.
- It should be for the ‘same offence’.
- The offence should be committed ‘more than once’.
The Criminal Procedure Code, 1973 of India also makes a provision for the doctrine. The ambit of the clause 3 of Article 20 is narrower than the protection afforded by s. 300 of the Criminal Procedure Code. Section 300, Cr.P.C combines both autrefois convict and autrefois acquit. It states that:
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.
[C] Double Jeopardy and Res Judicata/ Issue Estoppel
In essence, the policy of protection against double jeopardy expounds that a matter, once put to an end, may not be reopened or re litigated. The finality principle found expression in the Roman-law doctrine of res judicata. The basic tenet of the doctrine is that a matter or question raised by one’s adversary who has already been the subject of adjudication in previous legal proceedings, cannot be raised once again. Roman texts on the principle of res judicata reveal a concern that a community ought to be protected against what may be regarded as oppressive multiplication of suits.[xxv]
Our Supreme Court has held that the application of the above rule of res judicata in India is not excluded by the fact that the rule against double jeopardy has been codified in s. 300 of the Cr. P.C., and also guaranteed by Article 20(2) of the Constitution[xxvi] because the scope of the two principles is not identical. For, the rule of res judicata rests on the principle where an issue of fact has been tried by a competent court on a former occasion and the finding of that court has been in favour of the accused, such finding would constitute an estoppels against the prosecution- not as a bar to the trial but as a precluding the reception if evidence to disturb the finding of fact when the accused is tried subsequently even for a different offence. Since the doctrine of res judicata rests on the identity of the issues at the two trials, it is also known as the doctrine of ‘issue estoppel’.
The basic difference between the principle of double jeopardy and res judicata is that while the rule of double jeopardy is not applicable unless the offence involved in the subsequent proceeding is not the same as in the former proceeding, the rule of res judicata applies even though the offence for which the subsequent proceeding has been brought is a different one.[xxvii]
In India, the starting point of issue estoppels was the Privy Council decision in Sambasivam v Public Prosecutor, Federation of Malaya[xxviii]. Lord MacDermott in this judgement said that:
“The effect of a verdict of acquittal pronounced by a competent court on a lawful charge and after a lawful trial is not completely stated by saying that the person acquitted cannot be tried again for the same offence. To that it must be added that the verdict is binding and conclusive in all the subsequent proceedings between the parties to the adjudication. The maxim, ‘Res judicata pro veritate accipiture’ is no less applicable to criminal as to civil proceedings.”
Hedge J. in Assistant Collector, Customs v Malwani[xxix]has also observed that the issue estoppel rule was but a facet of the doctrine of autrefois acquit. And that it was based on the principle of res judicata.
[D] The subsequent position of Law.
The Supreme Court in Venkataraman v Union of India[xxx], laid down that Art.20(3) refers to judicial punishment and gives immunity to a person from being prosecuted and punished for the same offence more than once. In other words, if a person has been prosecuted and punished in a previous proceeding of an offence, he cannot be prosecuted and punished for the same offence again in subsequent proceedings. If any law provides for such double punishment, such law would be void. The Article however does not give immunity from proceedings other than proceedings before a Court of law or a judicial tribunal. Hence a government servant who has been punished for an offence in a Court of law may be subjected to departmental proceedings for the same offence or conversely.
In O.P.Dahiya V Union of India[xxxi], it was held that if the accused was neither convicted nor acquitted of the charges against him in the first trial his retrial would not amount to double jeopardy and in State of Rajasthan V Hat Singh[xxxii], it was said that prosecution and other punishment under two sections of an Act, the offences under the two Sections being distinct from each other, does not amount to double jeopardy.
The Supreme Court in a recent decision of Kolla Veera Raghav Rao v. Gorantla Venkateswara Rao[xxxiii], explaining this proposition of law inter alia observed that a person cannot be convicted even for a different offence under a different statute if the facts leading to the conviction under both the statutes are the same. This decision does not discuss aspect of double jeopardy and is in considerable contrast from the earlier enunciation of law and it has been criticized.
Comparison with other countries
It is a fundamental principle of the common law that a person cannot be put in jeopardy twice for the same offence. Almost all common law countries incorporate this protection in their laws. While some countries have found it necessary to be included in their constitutions, others have incorporated it in their statutes. All agree that the protection has its origin in the English common law of the eighteenth century. Though its origin is thus common, it is found that its reception and implementation have been different. The purpose for which the protection has been accepted, the problems arising out of the implementation of these purposes and the resolution of these problems etc., are dealt with differently.
The above provision of the American Constitution is indeed founded on the English Common Law rule ‘nemo debet bis vexari’.
It enabled an accused to raise a plea not only for autrefois convict but also of autrefois acquit before the implementation of the Criminal Justice Act, 2003.
Following the murder of Stephen Lawrence, the Macpherson Report recommended that the double jeopardy rule should be abrogated in murder cases, and that it should be possible to subject an acquitted murder suspect to a second trial if “fresh and viable” new evidence later came to light. The Law Commission later added its support to this in its report “Double Jeopardy and Prosecution Appeals” (2001).
These recommendations were implemented—not uncontroversial at the time—within the Criminal Justice Act 2003 and this provision came into force in April 2005. It opened certain serious crimes (including murder, manslaughter, kidnapping, rape, armed robbery, and serious drug crimes) to a retrial, regardless of when committed. Under the new system, a suspect can be tried again for the same offence if there is “new, compelling, reliable and substantial evidence”, which had not been previously available.
In Germany, also principle of double jeopardy is stated in Article 103(3) of the Germany’s Constitution:
“No one may be punished for the same act more than once in pursuance of general legislation.[xxxiv]
The Constitution of Japan states in Article 39 that
“No person shall be held criminally liable for an act which was lawful at the time it was committed, or of which he has been acquitted, nor shall he be placed in double jeopardy.”
However, if someone is acquitted in a lower District Court, then the prosecutor can appeal to the High Court, and then to the Supreme Court. Only the acquittal in the Supreme Court is the final acquittal which prevents any further retrial.
While numerous countries maintain variations of double jeopardy, the American approach remains one of the more potent provisions. The American interpretation, however, has not always provided criminal defendants a formidable defence.
The Fifth Amendment to the United States Constitution provides:
“Nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb.”
The Double Jeopardy Clause encompasses four distinct prohibitions: subsequent prosecution after acquittal, subsequent prosecution after conviction, subsequent prosecution after certain mistrials, and multiple punishments in the same indictment. Jeopardy “attaches” when the jury is empanelled, the first witness is sworn, or a plea is accepted.
The protection has been held to be not only from punishment but also from a second trial, which commences when a man is charged before a competent tribunal. But, a retrial does not come within the rule nor does the doctrine extend to the execution of the sentence.
The Double Jeopardy clause prevents the State from ‘punishing’ twice or attempting a second time to ‘punish’ criminally for the same offence.
There are two pillars found in every legal system. One is legal certainty and the other is equity. When the offender is prosecuted and punished, he must know that, by paying the punishment, he has expiated his guilt and need not fear further sanction. If he is acquitted, he must have the certainty that he will not be prosecuted again in further proceedings. A sentence, whether absolvitor or condemnatory, is a complete bar, not only to any subsequent trial for the same offence, but for any other crime involving the same species facti, whether at the instance of the public or private property.[xxxv] In every legal system there is provision for Double jeopardy as no person should be punished twice for the same offence. Doctrine of double jeopardy is a right given to the accused to save him from being punished twice for the same offence and he/she can take plea of it. Different cases present different circumstantial situations. Therefore, the rule of double jeopardy cannot be made a strait-jacket rule and is hence interpreted differently for different cases. While interpreting the provision judges always keep a watch that innocent does not gets punished. The principle of double jeopardy has been a part of the legal system since man can remember and is an honest endeavour to protect the non-guilty ones. It can therefore be considered a positive and just doctrine based on equity, justice and good conscience.
Edited by Kanchi Kaushik
[i] Ronald Jay Allen, Bard Ferrall & John Ratnaswamy, The Double Jeopardy Clause, Constitutional Interpretation and the Limits of Formal Logic, Valparaiso University Law Review, Vol. 26, No.1, Page 282
[ii] Lawrence Newman, “Double Jeopardy and the Problem of Successive Prosecutions”, 34 S.Cal.R , p.252
[iii] Friedland, Double Jeopardy,(1969) at 4
[iv] Jill Hunter, The Development of Rule Against Double Jeopardy.
[v] Jay A. Sigler, A History of Double Jeopardy, The American Journal of Legal History, Vol. 7, No. 4 (Oct., 1963), p. 283
[vi] Digest of Justinian, Book 48, Title XVII, as translated in Scott, The Civil Law (1932)
[vii] Blackstone, Commentaries, 335, (1889), excerpt by Lawrence Newman, “Double Jeopardy and the Problem of Successive Prosecutions”, 34 S.Cal.R , p.252.
[viii] Radin, Anglo- American Legal History 228 (1936)
[ix] Brooke, The English Church and the Papacy 205 (1952)
[x] (1957) 355 US 185
[xi] A.A. Mulla v State of Maharashtra, AIR 1997 SC 1441
[xii] M.P. Jain
[xiii] Kalawati v State of Himachal Pradesh , AIR 1953 SC 131
[xiv] Monica Bedi v State of Andhra Pradesh , 2011 1 SCC 284
[xv] Mohd. Ali v Sri Ram Swarup, AIR 1965 All 161
[xvi] D.A. Kelshikar v State of Bombay, AIR 1960 Bom 225
[xvii] Ghulam Ahmad v State of Jammu and Kashmir, AIR 1954 J&K 59
[xviii]State of Bombay v S.L. Apte AIR 1961 SC 578
[xix] Kunji Lal v State of Madhya Pradesh, AIR 1955 SC 280
[xx] Jitendra Panchal v Narcotics Control Bureau, (2009) 3 SCC 57
[xxi]Maqbool Hussain v. State of Bombay, A.I.R. 1953 S.C. 325
[xxii] Narayanlal Bansilal v M.P. Mistry , (1959) 1 SCR 274
[xxiii] Gopalakrishna Naidu v M.P., (1952) A.N. 170
[xxiv] Manipur Administration v Nila Chandra Singh, AIR 1964 SC 1533
[xxv] 32 Comp. & Int’l L.J. S. Afr. 1 (1999) Appeal by the Prosecution and the Right of the Accused to be Protected against Double Jeopardy: A Comparative Perspective; Jordaan, Louise
[xxvi] Manipur Administration v Thokchom Bira Singh, AIR 1965 SC 87(90)
[xxviii] Sambasivam v Public Prosecutor, Federation of Malaya , (1950) A.C. 458
[xxix] Assistant Collector, Customs v Malwani , (1969) 2 SCR 438
[xxx] Venkataraman v Union of India , (1954)SCR1150
[xxxi]O.P.Dahiya V Union of India , (2003)1 SCC 122)
[xxxii]State of Rajasthan V Hat Singh, AIR 2003 SC 791
[xxxiii] Kolla Veera Raghav Rao v. Gorantla Venkateswara Rao , AIR 2011 SC 641
[xxxiv] M.V. PYLEE, Select Constitutions of the World, 2nd Edition, p. 232
[xxxv] Archibald Alison, Practice of the Criminal Law of Scotland, (1833; reprinted 1989) p.652