Double Jeopardy under article 20(2)

Double Jeopardy under article 20(2)

Introduction

A person commits crime is liable to be prosecuted and if found guilty, be punished by the state. Principle of Natural Justice provided that one action must result in one ramification. That means if an action is legally wrong then the punishment should be provided only once. It is a cardinal principle of criminal justice that a person shall never be punished twice for the same offence. This concept is known as the Doctrine against Double Jeopardy.

The doctrine of double jeopardy is incorporated in English common laws “Nemo debet lis vexari pro una et eadem casua” which literally means no man shall be punished twice, if it appears to the court that it is for the one and the same cause.

The word Jeopardy refers to danger, here it connotes the danger of conviction. Double jeopardy means an act of putting the person for second trial for offence he or she has been already prosecuted. Basic purpose behind the doctrine is to protect defendant against second prosecution for the same cause. The term ‘Double Jeopardy’ is also known as “Jeopardy of life and limb”, “Jeopardy for the same offence” and other akin expression used in various Constitutions and Statutes.

There is a crucial difference between double jeopardy and double punishment, they cannot be considered to be the same. A person can be both imprisoned and fined for the same offence, is called double punishment. Double punishment also can arise when the person is guilty of two or more crime charged in one indictment (We can call it charge sheet to understand). Whereas the question of double jeopardy only arises when the second trial is sought for the same offence.

The doctrine does not protect an accused from being tried and punished second time for an offence. Which means a person tried for an offence let’s say theft and prosecuted and punished. The same accused again involved in the act of theft after serving his term, then he is liable to be prosecuted and punished.

History and Origin

There is no agreement of opinions as to the origin of double jeopardy doctrine as it is one of the oldest legal concepts. We can see the fragments of double jeopardy dated back to thousands of years in the Code of Hammurabi, 19th Century B.C.E which sought to prohibit judges from changing their judgments.

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The Greek Philosopher Demosthenes in 355 B.C.E said “Law Forbid the same man to be tried twice on the same issue”[1]. In Roman Republic St Jerome in A.D 391 interpreted the old testament, that meant, that not even god judges twice for the same act.

The doctrine of double jeopardy in English common law has its origin during the conflict between King Henry II and St Thomas Becket occurred between 1164 and 1170. King Henry II enacted a law which provided punishment to the clergy in king’s court who had already been punished in church courts. Becket was opposed to this law and relied his contention on the interpretation of St Jerome’s of forbidding more than one judgment for the same act. Becket was killed by Henry’s II knights. Pope condemned the Henry’s law for double punishment of clergy.[2]

The doctrine of double jeopardy in India existed prior to the enactment of Indian Constitution. We can trace back doctrine of double jeopardy in section 300 of CrPC, 1973[3] , Section 403(1) of old CrPC, 1898 and Section 26 of the General Clauses Act[4]. Hence it would not be wrong to say that Britishers brought the concept of Double Jeopardy into light and manifested it in India law. Section 300 of CrPC, 1973 states that a person who has once been tried by a competent court for an offence and convicted and acquitted of an offence shall not be liable to be tried again for the same offence.

Doctrine of Double Jeopardy under Indian Constitution

Part III of Indian Constitution deals with the Fundaments Rights. Article 12 to 35 falls under Part III of Indian Constitution. Article 20(2) of Indian Constitution under Part III of Indian Constitution deals with protection against double jeopardy and states “No person shall be prosecuted and punished for the same offence more than once[5]”. This Article was inserted in the Indian Constitution with the view to protect life and liberty of an individual.

This article provides protection of a ‘person’ from being ‘prosecuted’ and ‘punished’ for the ‘same offence’. The main question arises regarding Clause 2 of Article 20 is weather “person” only includes citizen of India or it includes non-citizen as well. The term “person” is not defined under the Indian Constitution but this term is defined under Section 3(42) of General Clauses Act, 1897 as “person shall include any company or body of individuals, whether incorporated or not”[6]. According to the definition protection under article 20(2) is available to citizen and non-citizen and also the artificial entity. In the landmark judgment of Madras Court where it was held that partnership firm shall be prosecuted on the non-payment of sales tax because it is “person” for a criminal matter also.

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In US protection against double jeopardy[7] to the second prosecution irrespective of the outcome of the first trial that means it doesn’t matter weather the person convicted or acquitted in the first prosecution but in India according to the constitution protection of double jeopardy only applies to the person ‘prosecuted’ and ‘punished’ for the ‘same offence’ means there will be no constitutional bar to the second prosecution for the same offence unless the accused had already been punished.

For application of double jeopardy there must be prosecution in both instances. Prosecution is not defined anywhere and has no fixed meaning but term ‘prosecution’ in Article 20(2) embodies three essentials-

  1. There must be a person accused of an offence. General Clauses Act, 1897 define offence as “an act or omission made punishable by any law for the time being in force”.
  2. The prosecution or proceedings should have taken place before a ‘judicial tribunal’ or ‘court’. Tribunals which takes up departmental and administrative enquires cannot be considered as proceedings or in regards with prosecution and punishment.

In Maqbool Hussain vs State of Bombay[8], appellant brought in concealed gold with him, which was found by the customs authority as a result took action under Section 167(8) of Sea Customs Act, 1878[9] and confiscated the gold. Later on complaint was filed to the court of chief presidency against the appellant. The appellant pleaded he had been already punished and prosecuted and so his prosecution before the court is in violation of Fundament Rights under Article 20(2). Court held that sea customs authorities is not a court or judicial tribunal.

In Venkataraman vs Union of India[10], accused was first subjected to departmental enquiry and suspended from the office and later on charged with criminal case. Court held that departmental enquiry does not amount to judicial trial or conviction

  1. Proceeding should take place in reference to the law which creates offences.
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Gajendragadkar state the protection against double jeopardy under article 20(2) as – “The constitutional right guaranteed by Article 20(2) against double jeopardy can be successfully invoked only where the prior proceedings on which reliance is placed are of a criminal nature instituted or continued before a court of law or a tribunal in accordance with the procedure prescribed in the statute which creates the offence and regulates the procedure26.”[11]

In Leo Roy vs The Superintendent, District Jail,[12] court held that petitioner was punished under Sea Customs Act and soon thereafter was charged with criminal conspiracy under Section 120-B of IPC[13]. Court held that second prosecution is not barred since it was not for the same offence.

Conclusion

The concept behind the idea of double jeopardy is to protect an individual from the second prosecution for the same offence. Principle of double jeopardy founds its place in Indian Legislations [Section 300 of CrPC, 1973] as well as Indian Constitution [Article 20(2) of Indian Constitution]. This provision under Article 20(2) of Indian Constitution enshrined on the concept of Autrefois Convict, which means that no one convicted of an offence can be tried or punished second time for the same offence. However, Article 20(2) does not extend to the concept of Autrefois Acquit, which means no person acquitted of an offence can be tried or punished second time. In India protection against Autrefois Acquit is a statutory right and not constitutional right or fundamental right. This means that the person acquitted of an offence, can be subjected to second prosecution. It can be easily concluded that protection against double jeopardy under Article 20(2) of Indian Constitution has a restrictive and limited scope. Whereas doctrine of double jeopardy in CrPC provides for complete protection includes Autrefois Convict and Autrefois Acquit.

 

[1] https://www.encyclopedia.com/social-sciences-and-law/law/law/double-jeopardy#:~:text=The%20Code%20of%20Hammurabi%2C%20for,St.

[2] https://law.jrank.org/pages/1019/Double-Jeopardy.html

[3]https://indiankanoon.org/doc/741791/#:~:text=Section%20300%20in%20The%20Code%20Of%20Criminal%20Procedure%2C%201973&text=300.,be%20tried%20for%20same%20offence.&text=He%20cannot%20afterwards%2C%20while%20the,with%20criminal%20breach%20of%20trust.

[4]https://www.indiacode.nic.in/bitstream/123456789/5523/1/general_clauses_act%2C_1977.pdf

[5] https://indiankanoon.org/doc/17858/

 

[6] http://comtax.up.nic.in/Comtaxtrg/PDF/the-general-clauses-act-1897.pdf

[7]https://www.law.cornell.edu/wex/double_jeopardy#:~:text=The%20Double%20Jeopardy%20Clause%20in,or%20limb%20.%20.%20.%20.%20%22

[8] 1953 AIR 325, 1953 SCR 730

[9] https://www.wipo.int/edocs/lexdocs/laws/en/in/in125en.pdf

 

[10] 1954 AIR 375, 1954 SCR 1150

[11] Raja Narayanlal Bansilal v. M.P. Mistry, AIR 1961 SC 29

[12] 1958 AIR 119, 1958 SCR 822

[13]https://indiankanoon.org/doc/1897847/#:~:text=(1)%20Whoever%20is%20a%20party,manner%20as%20if%20he%20had

Author: sarthbodhi wankhade,
Symbiosis Law School and 5th Year (BA LLB)

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