Double jeopardy, in law, protection against the use by the state of certain multiple forms of prosecution. In general, in countries observing the rule of double jeopardy, a person cannot be tried twice for the same offence based on the same conduct. If a person robs a financial institution, that individual cannot twice be tried for robbery for the same offense. Nor can one be tried for two different offences based upon the same conduct unless the two are offences defined so as to prohibit conduct of significantly different kinds. Thus, one cannot be tried for both murder and culpable homicide for the same killing but can be tried for both murder and robbery if the murder arose out of the robbery. The defence of double jeopardy also prevents the state from retrying a person for the same crime after he has been acquitted.
History of double jeopardy
There is no unanimity of opinions regarding the origin of double jeopardy principle since it obscure in the mists of time. 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 to have its origin in the controversy between Henry II and Archbishop Thomas Becket in 12th century. At that time two courts of law have existed, the royal and the ecclesiastical. The king wanted the clergy subject to be punished in the royal court even after the ecclesiastical court punished him. Becket relied on St. Jerome’s interpretation of Nahum and declared that the ancient text prohibited “two judgments”. He had viewed that the repeated punishments would violate the maxim nimo bis in idipsum that means no man ought to be punished twice for the same offence. Followed by the dispute, King’s knights murdered Becket in 1170, and despite of this King Henry exempted the accused from further punishment in 1176. This concession given by King Henry is considered as responsible for the introduction of the principle in English common law.
In the twelfth century, the res judicata doctrine had been introduced in English civil as well as criminal law due to the influence of teachings of Roman law in England. During the thirteenth and part of the fourteenth centuries, a judgment of acquittal or conviction in a suit brought by an appellant or King barred a future suit. During the fifteenth century, an acquittal or conviction on an appeal after a trial by jury was a bar to a prosecution for the same offence. The sixteenth century witnessed significant lapses in the rational development of the rule partly due to the statute of Henry VII, by totally disregarding the principle. Further, it was during that period the famous Vaux’s case was decided to the effect that a new charge could be brought even after a meritorious acquittal on a defective indictment. The last half of the seventeenth century was the period of enlightenment regarding the significance of the rule against double jeopardy. Lord Coke’s writings contributed to it partly and of course, the rest was due to the public dissatisfaction against the lawlessness in the first half of the century. It is only by seventeenth the century, the principle of double jeopardy seems to have developed into a settled principle of the common law. 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.”
The classical argument for the need of maintaining the rule is apparent in the observation of the court in green v. United States. 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.” The protection given under this rule has gained international recognition also through various international documents. Today, almost all civilized nations incorporate protection against double jeopardy in their municipal laws. While some of these countries have provided the protection through their constitution and others have incorporated it into their statute law.
The doctrine of double jeopardy is a rule that states that no one should be put twice in peril for the same offence. “No individual shall be arrested and punished for the same offence more than once,” the Indian Constitution said in article 20(2). The doctrine evolved from the Fifth Amendment of the United States Constitution, however, there are differences between the United States and England. In India, the scope of protection is restricted or limited. The doctrine existed in India prior to the Constitution of India, as evidenced by the General Clauses Act of 1897, Sections 300 and 26 of the Criminal Procedure Code of 1973.
The clause (2) of Art 20 provides that a person cannot be prosecuted and punished more than once for the same offence. The word ‘Prosecution’ under this article consists of three essential components to categorize the concept under this article.
The Three essential components of prosecution are:
The first requirement is that a person must be an accused of any offence. The word is defined as act or omission which is punishable by law, also defined under General clause Act.
The next essential is that there should be a proceeding or prosecution of the case before a competent court or a judicial tribunal. These judicial tribunal does not include departmental and administrative authorities. The defence of double jeopardy for second prosecution only exist against the cases which are tried at judicial courts or tribunals.
The third essential is that when a tribunal accepts the administrative and departmental enquires, these enquires are not considered as proceedings and therefore cannot be the part of proceedings with respect to prosecution and punishment.
These three essentials under the prosecution makes it clear that the concept of double jeopardy under constitution of India only satisfy the maxim of autrefois convict and not the maxim of autrefois acquit. This means that the concept can be invoked only for the cases under which the person is prosecuted and punished in their first proceeding.
Position Double Jeopardy of Criminal Procedure Code
The constitutional provision of double jeopardy is only applicable for the cases which are tried under judicial courts and tribunals. These does not include enquiry or even punishments given by statutory bodies like departmental or administrative bodies.
The doctrine of double jeopardy is therefore a narrow concept as compared to English law. The broad spectrum of the concept is however mentioned in S. 300 of CrPC which widens the ambit of the provision in India.
The position of double Jeopardy laws under Criminal procedure code is much wider than what is given in constitution. The concept is defined under S. 300 of CrPC and give a detail analysis by giving provisions on what will form a part of double jeopardy and what all are the exceptions made under it. One of the major points of emphasis is under CrPC, double jeopardy laws deal with both the issues of autrefois convict and autrefois acquit. Therefore, double jeopardy is applicable to all those who can are either acquit or convict of the offence.
The doctrine of double jeopardy is found under S. 300 of CrPC. There are six sub clause under this section which aims to provide an exhaustive view on the concept. All the sub clause is explained below.
S 300(1) of CrPC provides that if any person is tried under the court of competent jurisdiction and found acquitted of convicted for an offense committed, and when such acquittal or conviction remains in force cannot be tried again for the same offence twice. Second trial cannot be made on that person for the same set of facts and same offence and nor he\she shall be tried again for the same set of facts for different charges made against him under sub section (1) of 221or for sub section (2) of 221. This means that if a person is convicted of an offence under sub section (1) of 221 then he cannot be convicted under sub section (2) of 221 in the second trial for the same set of facts.
Some other essentials to this section include that ‘acquittal’ for the purpose of this section does not include dismissal of a complaint nor does it include discharge of accused. The case in its first trial should be tried under the court of competent jurisdiction. The section also requires that fall under this concept, the facts of the case should be identical. This means a person will one be barred under this section from second trial if the facts of the case under second trial is identical to the facts of first trial.
Clause (2) of this section provides that if a person has committed several offences but he was not tried for all such offences in the first trial then he cannot be prosecuted for other charges in the second trial. This means that when a person is acquitted or convicted for any offence and then he is charged with another offence separately then he cannot be charged for another offence under second trial as it is an abuse in itself. A person cannot be always made under prosecution for different charges separately. So, to provide a check against this abuse, section 300(2) makes it obligatory to obtain consent of state government before a new prosecution is launched against any person for any distinct offence for which a separate charge might have been made against the person at the former trial.
The clause therefore provides that this section does not bar the prosecution under second trial for distinct offence but it should be initiated only after the consent of state government.
Clause (3) of the section permits for the second trial of the convict only in the cases where some new facts came into existence as a consequence of already existing offence. Firstly, this section is only applicable to the convicts of the offence and not to the acquits of the offence. The second element of this clause is that a person can only be re-tried in the cases where some facts relating to the offence were not came into the notice of the courts.
This means that a convict can be taken for re-trial if some new facts were noticed in the case and these new facts were not known to the courts in the first trial. It mandates that the new facts or consequences must have occurred since the conviction or acquittal of first trail was going and these were not brought in the notice of the court. it therefore says that if some new offense took place in the course of first trial, as a result of already known offence, but not known to the courts in the first trial, then the convict can be re-tried in the second trial only for the newly observed offence which was not known in the first trial. Second trial would be barred if the consequences and offences of the second trial were already known to the courts in the first trial.
Clause (4) of this section is in continuance with clause (3) and act as an exception to the rule of double jeopardy. This clauses states that if any court is incompetent to try the accused of any offence which is actually the consequence of the offence which the court is taking trial, the first acquittal or conviction will not bar the competent court to take cognizance of consequential offence. This basically means that if the court under which first trial was made was not competent enough to try the second offence which was the consequence of the first offence can be tried in other competent court and the first trial will not act as a bar on second trial.
Clause (5) of the section says that if a person is discharged under S. 258 of CrPC which talks about the courts power to stop the proceedings of the case at any stage without pronouncing the judgment. The stoppage can however be made after recording the evidence of principle witness, pronouncement of acquittal or release of the accused have the effect of discharge. This clause (5) therefore states that no such accused person under S 258 shall be tried again for the same offense unless the consent of the court from which such discharge was made is obtained. This provision is made to protect the person against the abuse of power of fresh prosecution in such cases.
This is the last clause of S. 300 which provides that nothing in this S 300 of CrPC shall affect the provisions of S 26 of General Clause ACT, 1897. S 26 provides for an acts or omission constituting an offence under two or more enactments. This means that if the offence which is committed by the accused falls under two or more enactments, then that accused shall be charged with either of the two enactments. The emphasis is made on the ingredients of the two offences with which the accused is charged. It is also provided that the accused shall not be made liable and punished for the same offence twice, but if there exist two distinct offence that the ban imposed by S 26 cannot be imposed.
Termination of jeopardy can be done in following instances:
– After a jury’s verdict of acquittal.
– After a trial court’s dismissal.
– After a trial court grants a mistrial and
– On appeal after conviction.
Kalawati v. State of Himachal Pradesh,1953
The Supreme Court held that the appeal is a continuation of the prior trial rather than a new trial for the same offence, and that the appeal against the acquittal judgement would not be subject to Article 20(2) as there was no penalty in the earlier trial. Thus, an appeal against an acquittal order in a murder trial would not violate Article 20(2) of the Constitution.
Thomas Dana v. State of Punjab, 1959
The Supreme Court decided that in order to request protection under Article 20 (2), the following requirements must be met.
1)That there was a previous prosecution.
2)As a result of this the accused was punished.
3)That the punishment was for the same offence.
Institute of Chartered Accountants of India v. Vimal Kumar Surana
The court held that if a person is convicted under a different law, it cannot be said to be a double jeopardy. The defendant was charged under provisions of Chartered accountant act 1949. The court held that merely because he is charged by the provision of said act, it does not give him immunity from prosecution as the element of the offence differs and he can be accused for number of different offences and in different laws including Indian Penal Code.
From the above analysis made it can be noted that the concept and doctrine of double jeopardy lays that a person shall not be prosecuted twice for same offence.The doctrine of double jeopardy is dealt with under Article 20(2) of the Indian Constitution, which does not restrict or limit the holding of a departmental inquiry either after or before the start of criminal prosecution. therefore, after a person has been convicted and punished, this doctrine plays a major role in our judicial system. The doctrine has been incorporated into legal systems all over the world.