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INTRODUCTION:

In India, protection against double jeopardy is a Fundamental Right guaranteed under Article 20
of the Constitution of India. An article 20(2) state that “No person shall be prosecuted and
punished for the same offence more than once” contains the rule against double jeopardy.
The Indian Constitution guarantees to the people certain basic human rights and freedoms, such
as inter alia, equal protection of laws, freedom of speech and expression, freedom of worship
and religion, freedom of assembly and association, freedom to move freely and to reside and
settle anywhere in India, freedom to follow any occupation, trade or business, freedom of person,
freedom, against double jeopardy and against ex post facto laws. Untouchability, the age old
scourge afflicting the Hindu Society, has been formally abolished.

A person can claim Fundamental Rights against the state imposing some permissible restrictions
in the interests of social control. The grounds for imposing these restrictions on Fundamental
Rights are expressly mentioned in the Constitution itself and, therefore, these rights can be
abridged only to the extent laid down.

The Constitution- makers decided to incorporate Fundamental Rights in the Constitution because
of several reasons, such as, consciousness of massive minority problem in India; memories of the
protracted struggle against the despotic British rule; acknowledgement of the Gandhian ideals;
the climate of international opinion and the American experience.

These Fundamental Rights have been conceived in a liberal spirit and seek to draw a reasonable
balance between individual freedom and social control. These rights constitute a counterpart of
the American Bill of Rights and though there are quite a few signs of resemblance between the
two, the Fundamental Rights in India cover a much wider ground and are expressed in much
greater detail than is the case in the U.S.A. The Bill of Rights in U.S.A. has served as bulwark
against abuse of authority by the organs of government and has made a tremendous contribution
to the promotion of a regime of freedom and liberty. The Fundamental Rights also play a similar
role and promote rule of law in India.

The roots of the doctrine against double jeopardy are to 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. When a person has been convicted for an offence by a competent
court, the conviction serves as a bar to any further criminal proceeding against him for the same
offence. The idea is that no one ought to be punished twice for one and the same offence. If a
person is indicated again for the same offence in a court, ha can take the plea of autrefois acquit
or autrefois convict.
The principle was inexistence in India even prior to the commencement of the Constitution,1 but
the same has now been given the status of constitutional, rather than a mere statutory, guarantee.
Double Jeopardy is recognized in different countries like U.S., U.K., Canada, Germany, France,
Japan etc. Further, double jeopardy is discussed in accordance with Constitutions of different
countries.

1 S. 26 of General Clauses Act and S. 403(1) of the Cr.PC, 1898; S. 300, Cr.PC 1973.
RULE OF Autrefois Acquit:

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. Both in America and India, the protection against double
jeopardy is accepted as a constitutional right and incorporated in the constitutions.
Under Article 20(2) which states “No person shall be prosecuted and punished for the same
offence more than once” contains the rule against double jeopardy. The corresponding provision
in the American Constitution is embodied in that part of the Fifth Amendment2 which declares
that no person shall be subject for the same offence to be put twice in jeopardy of life or limb.
The principle has been recognized in the existing law in India and is enacted in Section 26 of the
General Clauses Act, 1897 states,” 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.” and
Section 300 of Criminal Procedure Code, 1973, states,
(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.
(2) A person acquitted or convicted of any offence, may be afterwards tried, with the consent of
the State Government, for any distinct offence for which a separate charge might have been
made against him at the former trial under sub-section (1) of Section 220.
(3) A person convicted of any offence constituted by any act causing consequences which,
together with such act, constituted a different offence from that of which he was convicted, may
be afterwards tried for such last mentioned offence, if the consequences had not happened,
(4) A person acquitted convicted of any offence constituted by any acts may, notwithstanding
such acquittal or conviction, be subsequently charged with, and tried for, any other offence
constituted by the same acts which he may have committed if the Court by which he was first
tried was not competent to try the offence with which he is subsequently charged.
(5) A Person discharged under Section 258 shall not be tried again for the same offence except
with the consent of the Court by which he was discharged or of any other Court to which the first
mentioned Court is subordinate.
(6) Nothing in this Section shall affect the provisions, of Section 26 of the General Clauses Act,
1897 (10 of 1897) or of Section 188 of this Code.
In the American system the constitutional bar applies to the second prosecution irrespective of
the result of the first prosecution. The constitutional safeguard can be pleaded to the second
prosecution irrespective of whether the accused was acquitted or convicted in the first

2 M.V. PYLEE, Select Constitutions of the World, 2nd Edition, p.777


prosecution. The rule in Indian Constitution is different. In order to bring the case of a person
within the prohibition of Article 20(2) it must shown that he had been “prosecuted” before a
court and “punished” by it for the “same offence” for which he is prosecuted again. Accordingly,
there can be no constitutional bar to a second prosecution and punishment for the same offence
unless the accused had already been punished in the first instance. The Supreme Court said: “If
there is no punishment for the offence as a result of the prosecution, sub-clause (2) of the Article
20 has no application.”
Earliest judgment of the Supreme Court on the subject is in a case Kalawati & Another Vs State
of HP3, Kalawati had been charged for offences under Section 302, 114 & 201 IPC. At her trial
she was acquitted of charge under Section 302 r/w 114 IPC but convicted and sentenced to 5
years RI under Section 201 IPC by the trial court. Later on the matter went into appeal from both
Accused against the conviction while from the STATE against acquittal before the Judicial
Commissioner, who after re-appreciation of the matter set aside conviction of Kalawati under
Section 114 IPC but convicted her of offence under 302 r/w 114 IPC and sentenced her for
transportation for life. The matter had been taken to the Apex Court where Kalawati had been
acquitted of charges under Section 302 IPC but conviction under Section 201 IPC was again
slapped / restored by the Apex Court. In this scenario it was urged on behalf of Kalawati that
having been acquitted of the charge under Section 201 IPC by the trial court and the STATE did
not prefer appeal against such acquittal before the Judicial Commissioner, the matter stood
settled and slapping conviction by the Judicial Commissioner on the charge under Section 201
IPC, acquittal whereupon by the Trial Court had become final, amounted to double jeopardy.
The Apex Court dealt with the matter in the following words; “This argument proceeds on a
fallacy. Section 201 is not restricted to the case of a person who screens the actual offender; it
can be applied even to a person guilty of the main offence, though as a matter of practice a Court
will not convict a person both of the main offence and under section 201. The Judicial
Commissioner acquitted Kalawati of the offence under section 201 for which the Sessions Judge,
only because he thought that the main offence itself, namely, murder, was brought home to her,
convicted her. But if we think for the reasons given above that it would not be safe to convict
her of the main offence, the acquittal is no legal impediment to her conviction under section 201.
It was held by the Privy Council in Begu v.King-Emperor4 that in a charge of murder under
section 302 a conviction under section 201 without a further charge being made was warranted
by the provisions of section 237, Criminal Procedure Code. If Kalawati had been acquitted of an
offence under section 201 independently of the charge of murder against her, it would have been
a different matter. But as her acquittal is so intimately related to the charge of the main offence,
and as it took place only for the reason that she was held guilty of murder, there is no bar to the
restoration of the conviction under section 201IPC.” But, as used in Article 20(2), it embodies
the following three essentials:
(a) There must a person accused of an offence. The word “offence” has to be taken in the
sense in which it is used in the General Clauses Act, 1897 as meaning “an act or omission
made punishable by any law for the time being in force”.5

3 Kalawati v. State of H.P., AIR 1953 SC 131,132

4 Privy Council, Begu v. King Emperor,(1925) 52 I.A. 191

5 S.A. Venkataraman v. Union of India, AIR 1953 SC 375


(b) The proceeding or the prosecution should have taken place before a “court” or “judicial
tribunal”. The revenue authorities, like the sea customs authorities, are not judicial
tribunals.6 Likewise proceedings before a tribunal which entertains departmental or
administrative enquiries cannot be considered as proceedings in connection with
prosecution and punishment.7
(c) The proceeding should have been taken before the judicial tribunal or court in reference
to the law which creates offences. Thus, where an enquiry is held before a statutory
authority against a government servant, not for the purposes of the punishing for the
offence of cheating and corruption but to advise the government as to the disciplinary
action to be taken against him, it cannot be said that the person has been prosecuted.8 It
would make no difference even if the authority making the enquiry is required to axct
judicially.9

Double Jeopardy and issue estoppel:-

The plea of double jeopardy is to be distinguished from the rule of issue in a criminal trial.10 The
rule of issue estoppel is that where an issue of fact has been decided by a competent court on a
former occasion and a finding has been reached in favour of an accused, such a finding would
constitute an estoppel or res judicata against the prosecution, not as a bar to the trail and
conviction of the accused for a different or distinct offence but as tried subsequently even at a
different trail. The rule is not the same as the plea of double jeopardy, because, firstly, the rule
does not introduce any variation in the Code of Criminal Procedure, either in investigation,
enquiry or trial and secondly, it does not prevent the trail of any offence as does the rule of
double jeopardy, but only precludes evidence being led to prove a fact in issue as regards which,
evidence has already been led and a specific finding recorded at an earlier trial before a
competent court. The rule, thus relates only to the admissibility. The rule depends upon well-
known doctrines which controls the re- litigation of issues which are settled by prior litigation.

In Pritam Singh v. State of Punjab11, the accused made the statement leading to the recovery of
firearm which he was alleged to have used against the victims. He was prosecuted for possession
of the firearm and was acquitted, but the evidence of possession of the firearm was used in trail
of murder charge against the same accused. This was held to be not permissible. The reasoning is
that the acquittal in respect of the possession of firearm affected the admissibility of the same
evidence in connection with the murder case, because the firearm could not at the same time be
possessed as well as not possessed by the accused.12

6 Maqbool Hussain v. State of Bombay, AIR 1953 SC 325

7 Thomas Dana v. State of Punjab, AIR 1959 SC 375; Maqbool Hussain v. State of Bombay, AIR 1953 SC 325

8 Ibid.

9 Leo Ray Frey v. Suptd., Distt. Jail, AIR 1958 SC 119

10 Piara Singh v. State of Punjab,(1969) 1 SCC 379, 383: AIR 1969 SC 961 and State of A.P. v. Kokkiliagada Meerayya, (1969) 1 SCC
161,166: AIR 1970 SC 771

11 AIR 1956 SC 415


In Manipur Admn. v. Nila Chandra Singh13, an order under Section 144, Criminal Procedure
Code had been promulgated in Manipur on April 25. The respondent was taken into custody for
defying the order and certain other acts done as a member of an unlawful assembly and charged
under Sections 114, 149, 307, 332 and 342 of the Indian Penal Code and sentenced to varying
terms of imprisonment. The respondent however, been prosecuted earlier under Section 188,
Indian Penal Code, for participation as a member of the same crowd as in the second prosecution
but was acquitted by the appellate Court on the finding that he was not present at the place. The
S.C. held that the rule of issue estoppel would apply, and the prosecution could not adduce
evidence to set aside the finding of fact arrived at the previous criminal trial of the accused. The
Court made it clear that the principle of issue estoppel was different from the rule of double
jeopardy incorporated in Article 20(2). To operate as a bar under Article 20(2), the second
prosecution and the consequential punishment there under must be for the same offence, i.e., an
offence whose ingredients are the same.

BACKGROUND:-

12 Mohinder Singh v. state of Punjab, AIR 1965 SC 79

13 AIR 1964 SC 1533


Double jeopardy is neither a new nor uniquely American concept. Rather, the principle of double
jeopardy dates back to the early Roman period and has a historical pedigree spanning well over
one thousand years. In fact, there are primitive notions of double jeopardy appearing in the Bible.
The first known codified reference to double jeopardy was set forth in the Digest of Justinian.
The concept continued to change and improve through many kings and queens in England.
Thereafter, the writings of Lord Coke and William Blackstone were commingled to provide us
with the modern day concept of double jeopardy. Lord Coke is credited with carrying out three
categories to which double jeopardy historically applied: autrefois acquit, autrefois convict, and
former pardon. Blackstone further advanced the doctrine by pronouncing that “the plea of
autrefois acquits, 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 former only applied 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. Colonial Massachusetts gave birth to the modern
American approach to double jeopardy in its Body of Liberties published in 164114. As one
author noted ,this document bears a close resemblance to the Bill of Rights later to become a
stock feature of American constitutions, state and federal.’’ Similar to prior pronouncements, the
Body of Liberties provided that ‘‘no man shall be twice sentenced by civil justice for one and the
same crime, offense, or trespass.’’
Over one hundred years later, in 1784, New Hampshire became the first state to protect against
double jeopardy in its Bill of Rights15, proclaiming that ‘‘no subject shall be liable to be tried,
after an acquittal, for the same crime or offense.’’ James Madison’s16 proffering at the
Constitutional Convention five years later was strikingly similar to the previous colonial
offerings declaring that ‘‘no personal shall be subject, except in case of impeachment, to more
than one trial, or one punishment for the same offense.’’ Yet, it was not until 1790 in the
Pennsylvania Declaration of Rights that a phrase resembling our modern phraseology appeared.
The Pennsylvania Declaration of Rights succinctly stated that ‘‘no person shall, for the same
offense, be twice put in jeopardy of life or limb.’’ From these ideals sprang the modern
protection contained in twenty simple words.
In modern times, remnants of double jeopardy exist in many countries, including Australia,
Canada, the United Kingdom, parts of Asia, and the United States. In fact, protection against
double jeopardy is now provided for in the International Covenant on Civil and Political Rights
and the European Union Constitution and numerous documents governing international criminal
tribunals, including the International Criminal Tribunal for Yugoslavia, the International
Criminal Tribunal for Rwanda, and the nascent International Criminal Court. There are
significant differences, however, between the English and American perspective of precisely
when ‘‘jeopardy’’ attaches. The English rule, which retains the common-law approach, limits
application of double jeopardy to instances in which a defendant has been acquitted or convicted.
In other words, the English rule requires a full, completed trial. In contrast, the American rule
attaches jeopardy as soon as the jury is sworn, in a jury trial, or when the prosecution offers its
first piece of evidence in a trial before the court. Thus, the concept of jeopardy attaches much

14 Massachusetts Body of Liberties of 1641

15 New Hampshire Constitution of 1784

16 James; Magna Carta


earlier in the American legal system than in its English counterpart. Despite the apparent staying
power of the general double jeopardy concept, England recently diluted its double jeopardy
protection with parliamentary passage of the Criminal Justice Act 2003. England’s departure
from the stricter version existing in the United States permits a subsequent prosecution following
acquittal for certain offenses, such as murder, rape, kidnapping and manslaughter, when new and
compelling evidence arises. Additionally, individuals acquitted prior to 2003 may nonetheless be
subject to prosecution retroactively under the act. The revised English approach was motivated
by notorious trials in which individuals adjudged not guilty later confessed to committing the
crimes for which they were accused. Societal tolerance for such perceived travesties of justice
waned and the English legislators responded to victims’ rights groups in altering their previously
steadfast approach to double jeopardy.17
In India, The Fundamental Rights have their origins in many sources, including England’s Bill of
Rights, the United States Bill of Rights and France’s Declaration of the Rights of Man. In 1928,
an All Parties Conference of representatives from Indian political parties proposed constitutional
reforms for India. This 11-member committee, led by Motilal Nehru, had been called into
existence as a formal instrument to complement the widespread Civil disobedience campaigns of
the 1920s. These mass campaigns had originally been a response to the Rowlatt Act, which in
1919 had given the British colonial government the powers of arrest and detention, conduction of
searches and seizures without warrants, restriction of public gatherings and censorship of the
press. Demanding Dominion status and elections under universal suffrage, the committee called
for guarantees of rights deemed fundamental, representation for religious and ethnic minorities
and limitations on government powers. In 1931, the Indian National Congress, at
its Karachi session, adopted resolutions defining, as well as committing itself to the defence of
fundamental civil rights, including socio-economic rights such as minimum wage, the abolition
of untouchability. Committing themselves to socialism in 1936, the leaders of the Congress party
took examples from the Soviet Constitution, which inspired the fundamental duties of citizens as
a means of collective, patriotic responsibility. The task of developing a constitution for an
independent India was undertaken by the Constituent Assembly of India, which composed of
elected representatives under the presidency of Rajendra Prasad. The assembly appointed
a constitution drafting committee headed by B.R. Ambedkar. The process was influenced by the
adoption of the Universal Declaration of Human Rights by the U.N. General Assembly on 10
December 1948. The declaration called upon all member States to adopt these rights in their
constitutions. The Fundamental Rights and Directive Principles were included in the final draft
of the constitution promulgated on 26 November 1949.

THE RULE OF Autrefois Acquit in different countries:-

UNITED STATES OF AMERICA

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 defense. For nearly two hundred years, the

17 The Encyclopedia of American Civil Liberties, Paul Finklman


Fifth Amendment’s double jeopardy protection was limited solely to actions by the federal
government and its subdivisions. Not until the Supreme Court’s 1969 decision in Benton v.
Maryland18, did the Double Jeopardy Clause extend equally to state governments. Benton
considered the Fifth Amendment promise against multiple prosecutions and multiple
punishments to ‘‘represent a fundamental ideal in our constitutional heritage’’ and, accordingly,
held double jeopardy to be applicable to the states through incorporation of the Fourteenth
Amendment. Having so found, the Supreme Court decision in Benton mandates that double
jeopardy determinations now be governed by federal standards rather than state nuances.
Nonetheless, states retain certain flexibility under double jeopardy due to the dual sovereignty
doctrine. In 1922, the Supreme Court explicitly recognized the power of distinct sovereigns to
prosecute an individual for criminal conduct falling within the jurisdiction of both in United
States v. Lanza,19. Thereafter, in 1985, the Court further expanded the dual sovereignty doctrine
to permit separate prosecutions by distinct state sovereigns in Heath v. Alabama,20. By holding
that each state has independent power to determine an individual’s guilt or innocence under the
state’s criminal code for all conduct occurring within that state, the Supreme Court permitted a
subsequent prosecution of Heath for murder, which resulted in a much harsher sentence than had
been received in the other state prosecution. The Supreme Court held that separate, independent
sovereigns possess the right to try a criminal defendant for conduct occurring within their
separate borders. The conduct, constituting independent criminal acts in each state, is not
protected by double jeopardy because the conduct offends both sovereigns equally.

The dual sovereignty doctrine was extended recently to embrace dual prosecution by the federal
government and tribal courts on Indian reservations in United States v. Lara.21 Thus, although
the Fifth Amendment protects against multiple prosecutions by the same sovereign—or
subdivisions thereof—double jeopardy poses no bar to separate prosecutions by independent
sovereigns. Two of the more renowned instances of separate prosecutions by independent
sovereigns include the Rodney King case defendants’ subsequent federal trials following state
acquittals and Terry Nichols’s subsequent state capital trial following a federal trial resulting in a
life sentence. Finally, double jeopardy does not affect the ability of a private individual to sue
civilly for conduct that may be prohibited by criminal and civil law. The paradigm example
continues to be the O. J. Simpson case, in which Simpson was subsequently sued civilly for
wrongful death following his acquittal for murder.

Multiple Prosecutions:-

In its most literal sense, the Double Jeopardy Clause protects against multiple prosecutions after
an individual has been acquitted. Double jeopardy ensures that the prosecution will put forth its
strongest case first and allow a jury, rightly or wrongly, to assess the defendant’s guilt. In the
United States, jeopardy attaches once the jury is sworn or once the prosecution introduces
evidence in a trial before the court. Once jeopardy attaches, courts and prosecutors are prevented

18 395 U.S. 784 (1969)

19 260 U.S. 377 (1922)

20 474 U.S. 82 (1985)

21 541 U.S. 193 (2004)


from retrying an individual for the same offense unless: (1) the jury is unable to return a verdict,
or (2) a mistrial is granted and there is a manifest necessity to retry the defendant in the interest
of justice. This second category presumes the absence of prosecutorial or judicial misconduct in
securing the mistrial.

Finally, although the ability of the government to appeal criminal convictions is extremely
limited, a defendant’s successful appeal will not bar his or her reprosecution on double jeopardy
grounds as voluntary appeal operates as a waiver to reprosecution. The double jeopardy
limitation of the same offense does not preclude multiple counts emanating from a single
criminal episode and does not prohibit multiple prosecutions for separate crimes against separate
individuals, even when there was but a single criminal act, such as two murders during a single
robbery. Rather, the ‘‘same offense’’ test as set forth in Blockburger v. United States,22 to
‘‘determine whether there are two offenses or only one is whether each provision requires proof
of an additional fact which the other does not.’’ A good example of the Blockburger test in
application is the Supreme Court’s decision in Brown v. Ohio,23 where the Court determined that
an attempted second prosecution for stealing an automobile was barred by double jeopardy when
the defendant had previously been convicted of operating the same vehicle without the owner’s
consent. Finding that them is demeanor count of joyriding was a lesser-included offense of auto
theft, the Court held that the defendant had been twice put in jeopardy for the same offense and
reversed the subsequent prosecution. As a reminder that double jeopardy operates as a imitation
on courts and prosecutors, the Brown Court struck down the state court’s interpretation of double
jeopardy, stating that the ‘‘Double Jeopardy Clause is not such a fragile guarantee that
prosecutors can avoid its limitations by the simple expedient of dividing a single crime into a
series of temporal or spatial units.’’ Likewise, the Supreme Court found in Ashe v. Swenson,24
that the doctrine of collateral estoppel is embodied by the Double Jeopardy Clause. In Ashe, the
defendant had been accused of participating in the robbery of six men at a poker game.
Prosecutors decided to try the defendant for only one of the robberies first. At this trial, the main
issue was identity and the jury returned a verdict of not guilty due to insufficient evidence.
During the subsequent trial, defendant raised the defense of double jeopardy when the state
presented a much stronger argument regarding identification. The Court had no difficulty finding
this second attempted trial to be barred by double jeopardy through the application of collateral
estoppel (the issue of identity having been resolved in the first trial), remarking that ‘‘for
whatever else that constitutional guarantee may embrace, it surely protects a man who has been
acquitted from having to ‘run the gauntlet’ a second time.’’

UNITED KINGDOM

The doctrines of autrefois acquit and autrefois convict persisted as part of the common law from
the time of the Norman Conquest; they were regarded as essential elements of protection of the

22 284 U.S. 299 (1932),

23 432 U.S. 161(1977),

24 397 U.S. 436,


liberty of the subject and respect for due process of law in that there should be finality of
proceedings. There were only three exceptions, all relatively recent, to the rules-

 The prosecution has a right of appeal against acquittal in summary cases if the decision
appears to be wrong in law or in excess of jurisdiction.
 A retrial is permissible if the interests of justice so require, following appeal against
conviction by a defendant.
 A "tainted acquittal", where there has been an offence of interference with, or intimidation of,
a juror or witness, can be challenged in the High Court.

CANADA
In Constitution of Canada, double jeopardy is recognized under Title 5- Legal Rights, Section
11(h)-“ Any person charged with the offence has the right- if finally acquitted of the offence, not
to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or
punished for it again.”25
JAPAN
In the Constitution of Japan, ”Diet”, double jeopardy is recognized in Chapter III, Article 39-
as “No person shall be held criminally liable for an act which was lawful at the time it was
committed, or of which he had been acquitted, nor shall he be placed in double jeopardy.”26
GERMANY
In Germany, also principle of double jeopardy is stated in Article 103(3) “No one may be
punished for the same act more than once in pursuance of general legislation.”27

PRESENT SCENARIO IN INDIA: BRIEF ANALYSIS WITH CASE LAWS;


Now, it is evident from the above that “double jeopardy”- it a Fundamental Right guaranteed
under Article 20(2), but it is interpreted differently in number of cases. Here, we are going to
discuss the cases in context to double jeopardy and its meaning in different cases. Why it is
different? It is because of circumstances of the cases. But, its interpretation it strictly adhered to
the scope of Article 20(2).
CASES:

25 M.V. PYLEE, Select Constitutions of the World, 2nd Edition, p. 152

26 Ibid. p.254

27 Ibid. P.232
1. S.A. Venkataraman v. Union of India28
Facts of case in brief: An enquiry had been made against the appellant under the Public
Servants (Inquiries) Act, 1850. Appellant was given an opportunity under Article 311(2) to show
cause. Soon thereafter the police submitted a charge-sheet against him for having offences under
Section 161 and 165, Penal Code and Section 5(2) of the Prevention of Corruption Act, 1947.
The validity of subsequent prosecution was challenged by the appellant on the ground that it
contravened the constitutional guarantee embodied in Article 20(2).
Judgment:- Court rejected his plea on the ground that the proceeding taken against him before
the Commissioner under the Enquiries Act did not amount to prosecution because in an enquiry
under the Act there was neither any question of investigating an offence in the sense of an act or
omission punishable by law which made that act or omission an offence.
2. State of Rajasthan v. Hat Singh29
Judgment:- Court held that different offences and punishments for two offences have different
ingredients and the same set of facts may give rise to both without violating Article 20(2)

3. Leo Roy Frey v. Supdt. Distt. Jail30


Facts of the case in brief:- The petitioner, Leo, purchased a car in Paris. On transfer, the car was
registered on the name of Thomas Dana. Both the petitioners booked the car from Geneva to
Bombay via sea route. After the car reached the Bombay, both the petitioners took the car left for
Delhi. From Delhi they went to Amritsar and after a night stay there, they arrived Attari Road
Land Customs Station on their way to Pakistan. Custom official asked the petitioners to fill the
baggage declaration forms, but subsequently they check the car and a pistol with live bullets
were recovered and some other items too which they did not mentioned. After that their car was
properly checked and large amount of Indian & foreign currency was recovered. They were
arrested under Section 167(8) of the Sea Customs Act and collector issued a notice asking show
cause. The collector ordered confiscation of the currency and also of the motor car with an
option to the petitioner Dana to redeem the car on payment of Rs. 50,000 and also ordered
confiscation of articles other than the currency recovered from the car subject to redemption on
payment of Rs. 100. The Collector was also satisfied that each of the two petitioners was equally
guilty of an offence under s. 167(8) of the Sea Customs Act and imposed a personal penalty of
Rs. 25,00,000 on each of the petitioners, to be paid within two months from the date of the order
or such extended period as the adjudicating officer might allow. Collector lodged a complaint
against the petitioners before the Additional District Magistrate under 23 read with s. 8 of the
Foreign Exchange Regulations Act, 1947, and s. 167(81) of the Sea Customs Act and s. 120-B of
the Indian Penal Code, real with s. 23/23-B, Foreign Exchange Regulations Act and s. 167(81),

28 AIR 1954 SC 375

29 AIR 2003 SC 791

30 AIR 1958 SC 119


Sea Customs Act, 1878. A case was also started against the petitioner Frey under the Indian
Arms Act for being in possession of the pistol and the cartridges in contravention of the
provisions of s. 20 of that Act.. The petitioners contend that in this case there has been a
violation of their fundamental right under Art. 20(2) of the Constitution.
Judgment:-the Court held that the fact that the Collector of Customs acted judicially is not
decisive and does not necessarily attract the protection guaranteed by Art. 20(2)and the question
still remains whether the petitioners' case comes within the provisions of Art.20(2). That article
protects a person from being "prosecuted and punished for the same offence more than once".
The question has to be answered as to whether the petitioners had previously been prosecuted
and punished for the same offence for which they are now being prosecuted before the
Additional District Magistrate. The proceedings before the Customs authorities were under s.
167(8) of the Sea Customs Act. Under s. 186 of that Act, the award of any confiscation, penalty
or increased rate of duty under that Act by an officer of Customs does not prevent the infliction
of any punishment to which the person affected thereby is liable under any other law. The
offences with which the petitioners are now charged include an offence under s. 120B, Indian
Penal Code. Criminal conspiracy is an offence created and made punishable by the Indian Penal
Code. It is not an offence under the Sea Customs Act. The offence of a conspiracy to commit a
crime is a different offence from the crime that is the object of the conspiracy because the
conspiracy precedes the commission of the crime and is complete before the crime is attempted
or completed, equally the crime attempted or completed does not require the element of
conspiracy as one of its ingredients. They are, therefore quite separate offences. The offence of
criminal conspiracy was not the subject matter of the proceedings before the Collector of
Customs and therefore it cannot be said that the petitioners have already been prosecuted and
punished for the "same offence". It is true that the Collector of Customs has used the words
"punishment" and "conspiracy", but those words were used in order to bring out that each of the
two petitioners was guilty of the offence under s. 167(8) of the Sea Customs Act. The petitioners
were not and could never be charged with criminal conspiracy before the Collector of Customs
and therefore Art. 20(2) cannot be invoked.
It is the latest case on double jeopardy decided by J. Markandey Katju
4. Jitendra Panchal v. Intelligence Officer, NCB and Anr. 31
Fact of the case in brief:- On 17th October, 2002, officers of the US Drug Enforcement Agency,
along with officers of the Narcotics Bureau, India, seized a consignment of 1243 pounds
equivalent to 565.2 Kgs. of Hashish in Newark, USA. During the investigation, it appears to the
appellant were engaged in trafficking Hashish out of India into the USA and Europe and that the
seized contraband had been smuggled out of India by the appellants. The appellants were
arrested in Vienna in Austria by officers of the Drug Enforcement Agency, USA on 5th
December, 2002 and was extradited to the USA. Soon, thereafter, on 25th March, 2003, the
Deputy Director General of the Narcotics Control Bureau, hereinafter referred as 'the NCB',
visited the USA and recorded the appellant's statement. Subsequently, on 9th April, 2003, officers
of the NCB arrested the Appellants in India and prosecution was launched against them in India.

31 AIR2009SC1938
On 5th September, 2003, a complaint was filed by the NCB before the learned Special Judge,
Mumbai, against the appellants under Sections 29,20,23,27A,24 read with Section 8,12 of the
Narcotic Drugs and Psychotropic Substances Act, 1985, in connection with the abovementioned
incident. The appellant, who had been extradited to the USA, was tried before the District Court
at Michigan, USA, in Case No. 04 CR 80571-1. On pleading guilty of the charge of conspiracy
to possess with intention to distribute controlled substances, which is an offence under Section
846 of Title 21, United States Code (USC) Controlled Substances Act, the appellant was
sentenced to imprisonment on 27th June, 2006, for a total term of 54 months. After serving out
the aforesaid sentence, the appellant was deported to India on 5th April, 2007, and on his arrival
at New Delhi, he was arrested by officers of the NCB and was taken to Mumbai and on 10th
April, 2007, he was produced before the learned Chief Metropolitan Magistrate and was
remanded to judicial custody.
On 25th April, 2007, on the appellant's application that the proceedings against the appellant in
India would amount to double jeopardy, the learned Special Judge, Mumbai, rejected the
appellant's contention upon holding that the charges which had been dropped against the
appellant in the proceedings in the USA had not been dealt with while imposing sentence against
him in the District Court of Michigan, USA. The Special Judge extended the judicial custody of
the appellant and subsequently rejected his prayer for bail.
The appellant then approached the Bombay High Court, praying for quashing of the proceedings
initiated by the NCB and also praying for interim bail on the ground of double jeopardy. A
complaint was filed by the NCB against the appellant in the Court of Special Judge, Mumbai,
against which the appellant filed Criminal Writ Petition, praying for quashing of the said
complaint.
Judgment:- The Bombay High Court dismissed the writ petition upon holding that the
ingredients of the offences with which the appellant had been charged in India were totally
different from the offences with which he had been charged and punished in the USA. The High
Court also held that the acquisition and possession of Hashish in India and importation of the
same into India from Nepal and the export of the contraband out of India, as well as sale thereof
in the USA, could not be said to be the subject matter of an offence under Section 846 read with
Section 841 of Title 21 USC Controlled Substances Act, nor was the appellant subjected to
prosecution in respect of any of such offences in the USA. Consequently, conspiracy for all those
acts in India was not the subject matter of prosecution in the District Court, New York, USA.
Similarly, the Special Judge, Mumbai, was not competent to deal with the offence' under Section
846 read with Section 841 of Title 21 USC Controlled Substances Act, nor was the District Court
in New York competent to take cognizance of any of the offences alleged to have been
committed under the NDPS Act, 1985. The High Court came to the conclusion that merely
because the same set of facts gives rise to different offences in India under the NDPS Act and in
the USA under its drug laws, the different circumstances and the law applicable would not debar
the Special Judge, Mumbai, from dealing with matters which attracted the provisions of the local
laws and hence the application of the principle of double jeopardy was not available in the facts
of the present case and Supreme Court relied on the judgment and dismissed the appeal.
CONCLUSION:-
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. In different,
cases it is interpreted in different manner due to the circumstances of the cases. Our Constitution
also provides such right guaranteed under Fundamental Rights to safeguard the interest of the
accused person. While interpreting the provision judges always keeps a watch that innocent does
not gets punished. Finally, it can be concluded that it is a positive right provided to an individual.