The Evolution of Doctrine of Double Jeopardy

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The Evolution of the Doctrine of Double Jeopardy

Bipluv Jhingan Roll no. 666, semester II National University of Advanced Legal Studies, Kochi

Introduction

C
offences.

offey describes double jeopardy as, a principle or maxim of the common law (as opposed to a rule per se) thus incorporates a multitude of substantive and procedural rules pertaining to the investigation, indictment and trial of criminal Double jeopardy is a procedural defence that forbids a defendant from

being tried again on the same or similar charges following a legitimate acquittal or conviction. At common law a defendant may plead autrefois acquit or autrefois convict (a peremptory plea), meaning the defendant has been acquitted or convicted, respectively, of the same offense. If this issue is raised, evidence will be placed before the court, which will normally rule as a preliminary matter whether the plea is substantiated, and if it so finds, the projected trial will be prevented from proceeding. In many countries the guarantee against being "twice put in jeopardy" is a constitutional right; these include Canada, India, Mexico, and the United States. In other countries, the protection is afforded by statute law. The principle of double jeopardy dates back to early Roman period and has a history spanning well over one thousand years. In fact there are primitive notions of the principle 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 Coke and Blackstone were commingled to provide us with the modern day concept of double jeopardy. Though this principle is several centuries old, there is a difference between the current understandings of the concept of Double Jeopardy as it was compared to earlier times. In modern times double jeopardy is not limited only to crimes affecting life or limb but rather applies to all criminal prosecutions
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and punishments in which an individual is at risk of multiple attacks on his or her liberty.

The roots of the doctrine of Double Jeopardy can be traced to the Latin maxim 'Nemo debet bis vexari'. The meaning of this maxim is that a man should not be put in peril twice for the same offence. In India, protection against double jeopardy is a Fundamental Right guaranteed under Article 20 of the Constitution. Article 20 (2) states that No person shall be prosecuted and punished for the same offence more than once contains the rule against double jeopardy. However, the right not to be punished more than once for the same offence is not a new guarantee as it already existed in Indian jurisprudence although merely statutorily. The guarantee against Double jeopardy could be found in Sec. 26 of the General Clauses Act and Sec.403 (1) of the Cr PC 1898. Reminiscence of this can be still found under Sec. 300 of the Cr PC, 1973. In fact, Section 300 elaborates the principle of double jeopardy much better than does Article 20(2) of the Constitution. It is also widely believed that Art. 20(2) of the Constitution only provides Parliamentary gloss over a prevalent doctrine already incorporated within the Criminal Procedure Code (hereinafter, referred to as CrPC).

Origin of Double Jeopardy In view of the present-day meaning of double jeopardy, many courts have asserted that changing times cannot affect the original protection against double jeopardy "whose contours are the product of history." 1 others have said that it is impossible to trace the doctrine to any distinct origin, one court blithely announcing that "it seems to have been always embedded in the common law of England, as well as in the roman law, and doubtless in every other system of jurisprudence, and instead of having a specific origin, it simply always existed." 2 According to Professor Jay. A Sigler it has always been an accepted judicial technique to have resort to the common law in order to ascertain the true meaning of the double jeopardy clause. More adequate historical research is needed, however, to prop up the historical assertions made in judicial opinions. The protection against Double Jeopardy possesses a long history. Ancient Jewish law contains several references to principles encompassed by double jeopardy law. Like Professor Rudstein mentioned in his article that, the Talmud which was an assemblage of the
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1 2

Green v. United States, 355 U.S. 184 at 215 (1957), dissent. Stout v. State, 36 Okla. 744 at 756 (1913).

knowledge of the rabbinic sages, proclaims that in capital cases, an acquittal may not be upturned3. In the Old Testament, Deuteronomy 25:2 states that when a dispute between men is brought before a court, a guilty man who deserves to be beaten shall be flogged in the presence of the judge according to the measure of his misdeeds. The Talmud relates that Rabbi Akiba relied upon this verse to explain why Jewish law prohibited a person liable to a death penalty by a human tribunal from also being flogged 4by interpreted the verse to mean that you make [the guilty man] liable to punishment for one misdeed, but you cannot hold him liable [in two ways as] for two misdeeds . . . [i].e., death and lashes. This was interpreted by George Horowitz in his book The Spirit of Jewish Law that two punishments cannot be given for the same crime. The traces of the doctrine can also be seen in the bible as is the case in the story of Abel and Cain. The principle of double jeopardy was not entirely unknown to the Greeks and Romans, although the legal environment was quite different. The prohibition against double jeopardy in early Greek law was partial and incomplete. In 355 B.C., the Greek orator and pleader in law courts Demosthenes, in a speech stated that the laws forbid the same man to be tried twice on the same issue, be it a civil action, a scrutiny, a contested claim, or anything else of the sort. 5 Two years later, in a speech he wrote to be given by Diodorus in opposition to Timocrates, Demosthenes stated: The legislator does not permit any question once decided by judgement of the court to be put a second time . . . .6 . In the Roman Republic, an acquittal by a magistrate in a criminal prosecution barred further proceedings of any kind against the accused.
7

The Roman Empire also provided some

protection against double jeopardy. This principle also found 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."8 Criminal procedures were quite unlike modern state-directed prosecutions. Since "after a public acquittal a defendant could again be

Babylonian Talmud, Sanhedrin 32a, 33b (Isidore Epstein ed., Jacob Shachter trans., Soncino Press 1935); see also Hyman E. Goldin, Hebrew Criminal Law and Procedure 108-09 & n.6 (1952); Samuel Mendelsohn, The Criminal Jurisprudence of the Ancient Hebrews 150 & n.358 (2d ed. 1968). 4 Babylonian Talmud, Makkoth 13b (Isidore Epstein ed., H.M. Lazarus trans., Soncino Press 1935). 5 Demosthenes, Against Leptines, in Olynthiacs, Philippics, Minor Public Speeches, Speech Against Leptines, XX 147, at 589 (J.H. Vince trans., Harvard Univ. Press 1998) (1930). 6 Demosthenes, Against Timocrates, in Against Meidias, Androtian, Aristocrates, Timocrates, Aristogeiton, XXIV 55, at 407 (J.H. Vince trans., Harvard Univ. Press 1986) (1935).
7

H.F. Jolowicz, Historical Introduction to the Study of Roman Law 325 (2d corrected ed. 1954); 1 James Leigh Strachan-Davidson, Problems of the Roman Criminal Law 155 (1912). 8 Digest of Justinian, Book 48, Title 2, Note 7, as translated in Scott, the Civil Law (1932), XVII.

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prosecuted by his informer within thirty days, but after that time this cannot be done," according to the Roman jurist Paulus9. The Maxim "nemo debit bis puniri pro uno delicto," (meaning that [n]o one ought to be punished twice for the same offense10.)beloved of later English legal writers, was probably a part of Roman Law, but one cannot assume that the maxims carried the same legal force and significance among the ancients as they bear today. Notions of constitutionalism or of bills of rights were still primitive. More importantly, the criminal procedure pattern was not as formal as our own, nor as that found much later in England. The significance and weight accorded the double jeopardy maxim is conditioned by the state of criminal procedure which it affects. The canon law, which began its development at the close of the Roman Empire11, opposed placing a man twice in jeopardy, based upon a reading given by St. Jerome to I Nahum 9 (as set forth in the Douay Version) in 391 A.D., "there shall not rise up a double affliction." The King James version reads: "Affliction shall not rise up a second time." Around 1140, Gratian, a Camaldolese monk , published his Concordantia discordantium canonum (Concordance of discordant canons), The Decretum contains at least two references to double jeopardy. It states, The Scripture holds, God does not punish twice in the same matter, 12while at another it proclaims, Whether one is condemned or absolved, there can be no further action involving the same crime.13 The Gregorian Decretals, a compilation of papal decretals promulgated by Pope Gregory IX in 1234, contains a chapter, taken from a canon of an earlier church council, proclaiming: An accusation cannot be repeated with respect to those crimes of which the accused has been absolved. 14The commentary on this chapter states the principle as: [I]f anyone is absolved of a crime of which he was accused, he should not again be accused of the same thing.15 Professor Jay Sigler has 16observed that there is some possibility that Thomas Beckett's disagreement with Henry II, maintaining that clerks should be tried once, and then only in courts established under church law, may have foreshadowed the current legal doctrine. The principle of double jeopardy may, however,

The Opinions of Paulus, Title XVII, ibid., I, p. 323. Black's Law Dictionary 1736 (8th ed. 2004). This maxim is based upon the more general maxim nemo debet bis vexari pro una et eadem causa, which Black's translates as *n+o one ought to be twice troubled for one and the same cause. 11 R.H. Helmholz, The Spirit of Classical Canon Law 284, 286-87 (1996) 12 citing Decretum Gratiani, Distinctio 81, canon 12).
10 13 14

citing Decretum Gratiani, Causa 2, quaestio 1, canon 14 citing Decretals Gregorii IX 5.1.6 15 discussing the glossa ordinaria, or gloss, to Decretals Gregorii IX 5.1.6

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have been derived from the continent through the canon law, rather than being native to England. Speculation on this point is difficult to resolve since much of Western law derives from a common fund of shared judicial concepts. Jay .A Sigler commented about the history of Double Jeopardy doctrine in English Law: Yet, double jeopardy is not mentioned in English statute law before its adoption into the American Constitution. From this it may be concluded that either it was not so fundamental a privilege, or that it was obvious and well-established before the great writs of English history. Both propositions are tenable, but the former is much more probable than the latter in view of the development of English criminal law itself. Indeed as Marion S. Kirk suggested the doctrines English roots probably did not reach their full maturity until after the turn of the century. It is therefore very apparent that, although there were rules which prescribed when a second prosecution for the same offence was barred, it was not a correct statement of the law to say that during this period of year books and, infact until the abolitions of the appeal in 1819, a mans life was never to be put twice in jeopardy for the same offence. And it was not until 1845, in Brooms Legal Maxim that the concept of "nemo debit bis vexari pro uno et eadem causa ," was mentioned. The uncertainty regarding the timing other development of the contemporary doctrine has led courts o the common law jurisdiction to look back into the 18th century English law to seek the common doctrine. In examining the law, they have relied primarily upon its description in the works of the 18th century commentators, such as Blackstone, Hale and Hawkins. However Blackstone got much more popularity as compared to the other commentators. According to Blackstone17 there were four pleas in bar which meant to the merits of indictment and assigned reasons why the prisoner should not answer at all, nor put himself upon his trial for the crime alleged .These pleas were:1. Former acquittal 2. Former conviction 3. Former attainder 4. Pardon

16 17

A History of Double Jeopardy Author(s): Jay A. Sigler The Commentaries on the Laws of England of Sir William Blackstone, Adapted to the Present

Public Wrongs, pp 349-350. The spelling auterfois appears in the text.

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State of the Law by Robert Malcolm Kerr, 4th Edition, 1876, John Murray: London, Volume IV: Of

Former Acquittal Former acquittal or autrefois acquit was founded on the maxim that no man is to be brought into jeopardy of his life more than once for the same offence. Historically speaking, when a man was once found not guilty upon any indictment, or other prosecution, before any court having jurisdiction of the offences; he might plead such acquittal in bar to any subsequent accusation for the same offence. In this context it may be mentioned that prior to 1819, the acquittal was not always a final bar. Before then, a criminal prosecution in England was conducted by a dual system, i.e. by grand jury indictment and by private prosecution (described as by appeal) the person to whom the suit of vengeance was allowed could take out a writ of appeal and frame a charge thereafter against the defendant. The system of appeals came to be abolished by legislation in 1819.

Former conviction The plea of Former conviction or autrefois convict for the same crime was a good plea in bar of a new indictment. This was to be available as bar even though there was no judgment ever given or the judgment is being suspended by Benefit of Clergy of other cause. The rational of this plea was that no man should be twice brought in danger of his life for one and the same crime. Both these pleas of autrefois acquit and autrefois convict was to be raised upon a prosecution for the same identical act and crime. Former attainder The plea of autrefois attaint or former attainder, on the contrary, was a good plea in bar, whether it was raised against reprosecution for the same or any other felony. Blackstone states: Wherever a man is attained of felony, by judgement of death, either upon a verdict or confession by outlawry, or heretofore abjuration and whether upon an appeal or an

same or any other felony. The rationale of the plea was that the prisoner was dead by law by

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indictment, he may plead such attainder in bar of any subsequent indictment of appeal, for the

the first attainder 18his blood was corrupted and his property was forfeited. In such a situation the second proceeding would be unnecessary but to this rule there were some exceptions, wherein the reasons ceasing, the law itself ceases.

Pardon A pardon could be pleaded in court, if the accused remits to the punishment that was intended to be asked for by the prosecution. The pardon should be pleaded before the conviction or else he loses his right to pardon. This was to prevent him from being declared dead under law, which would happen if he were convicted. However, the Kings right to grant pardon is restricted to a certain extent. For example, the king could not, by previous pardon, make an offence dispunishable which was malum in se, as being against the law of nature, or so far against the public good, as to be indictable. Nor could the king bar any action on statute by the aggrieved party of commenced before the pardon was granted. The Kings pardon could not slave the corruption of blood by the attainder of treason or felony. But leaving apart some such restriction, the king could pardon any offense whether against common law, or statute law so far as the public was concerned and consequently could prevent any popular action on a penal statute by the pardon of the offense before the commencement of any suite. In interpreting the scope of the present day double jeopardy doctrine , the nature of these pleas is quite pertinent in as much as the doctrine is generally viewed as incorporating the three pleas of autrefois acquit, autrefois convict, and pardon. 19 English Common Law

According to Rudstein scholars have advanced three distinct theories elucidating the introduction of the double jeopardy principle into English common law. One theory holds that the principle came from the Continent, via canon law, which was introduced into

18

A person capitally sentenced for treason was said attained, attinctus, stained or blackened, and by an anticipation of his punishment was already dead in law . see kynnaird v. leslie L.R. I.C.P. 397 19 The plea of autrefois attain has seemed to become defunct in the course of time

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England after the Norman conquest in 1066 20 , or through Roman law, which influenced treatise writers and judges. Sir Edward Coke, a later oracle of the common law discovered some double jeopardy principles in his perusal of Bracton's works 21 , a highly personal interpretation. Legal critics have declared that "the influence of Roman upon English law was exercised through the founders of the English common law long after the Norman Conquest through Glanville and Bracton, but especially Bracton." These writers, as the theory goes, supplemented the relatively undeveloped common law with the more refined and sophisticated jurisprudence of the Roman law. In addition, the earliest judges of the common law courts, as well as the chancellors in England, were members of the clergy who had studied Roman law. When called upon to formulate principles, it is contended, they naturally turned to the ideas with which they were familiar from their studies. The second theory apostle that the post obituary victory of Thomas a Becket, the Archbishop of Canterbury, in the twelfth century power struggle between the Church and King Henry II, led to the introduction of the double jeopardy principle22. Following his conquest of England, William the Conqueror (William I) appointed his right-hand man, Lanfranc, an Italian lawyer and theologian, to the post of Archbishop of Canterbury. 23 Perhaps to pay back the Pope for partisan his take-over or perhaps to help him gain control over the English Church, William encouraged Lanfranc to establish a system of ecclesiastical courts to exist side by side with the royal courts. These ecclesiastical courts claimed jurisdiction not only over spiritual matters but also over all criminal and civil cases in which a clerk committing a crime or a wrong. The relationship between the Church and the King deteriorated after William's bereavement in 1087. In the middle of the twelfth century, Henry II sought to regain jurisdiction over clerics who committed secular offenses. What enthused Henry remains a matter of speculation. Some contend he sought to restrain the power of the Church generally. 24Others maintain that he wanted to strengthen law enforcement in the realm and believed that ecclesiastical courts did not punish criminal clerics severely enough because they could stood accused of

20

Helmholz, supra note 55, at 286; Radin, supra note 10, at 228; Sigler, supra note 10, at 3; Note, supra note 18, at 446-47; see also Friedland, supra note 15, at 6.
21 22

Coke, The Third Part of the Institutes of the Laws of England (4th ed., 1669), pp. 212Friedland, supra note 15, at 5-6, 328; Helmholz, supra note 55, at 284-85; Sigler, supra note 10, at 3 23 Theodore F.T. Plucknett, A Concise History of the Common Law 11, 297 (5th ed. 1956); 1 Frederick Pollock & Frederic William Maitland, The History of English Law 77 (2d ed. Cambridge, Cambridge Univ. Press 1898); Goldwin Smith, A Constitutional and Legal 24 . Austin Lane Poole, From Domesday Book to Magna Carta 1087-1216, at 200-02 (2d ed. 1955)

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impose neither the death penalty nor a penalty involving the shedding of blood 25 . Henry allegedly quipped that it took two crimes to hang a priest. By this he meant that a cleric could be defrocked for committing one crime and only if he thereafter committed a second crime could he, as a former cleric no longer protected by the Church, be hanged. Still others claim that Henry sought to regain jurisdiction over clerics because he needed money to finance overseas campaigns and coveted the revenue generated for the Church through fines and forfeitures imposed by ecclesiastical courts. Whatever his motivation, Henry held a council of the magnates of the realm in 1164 and caused to be issued the Constitutions of Clarendon, a formal statement embodying the previous customs relating the jurisdiction of the Church in certain matters. 26 One scholar puts it in these terms: Henry . . . sought to restore the jurisdiction of the King's courts to the position prior to Stephen's disastrous reign. The third clause of that document provided: Clergyman charged and accused of anything shall, on being summoned by a justice of the king, come into his court, to be responsible there for whatever it may seem to the king's court they should there be responsible for; and [to be responsible] in the ecclesiastical court [for what] it may seem they should there be responsible for - so that the king's justice shall send into the court of holy church to see on what ground matters are there to be treated. And if the clergyman is convicted, or [if he] confesses, the church should no longer protect him. 27 Historians have read this clause in various ways. One scholar maintained that Henry intended that clerical criminals should be tried in the ordinary courts of the country. Others disputed this interpretation. While admitting that Henry may at one time have gone as far as this, Pollock and Maitland could not doubt that the clause in the Constitutions meant that a clergyman suspected of committing a crime had to be brought to the royal court and accused there. Unless he admitted his guilt, he would be sent to the ecclesiastical court for trial in the presence of royal officers; if convicted in the ecclesiastical court, he would be stripped of his clerical status and returned to the royal court and then be sentenced - it is unclear whether there would be a further trial - to the layman's punishment, either death or mutilation. In

25 26

W.L. Warren, Henry II 461, 464-65 (1973 . Id. at 5. Stephen of Blois, the grandson of William the Conqueror, succeeded Henry I in 1135 and reigned until 1154. See 1 William Stubbs, The Constitutional History of England 360-81 (4th ed. 1883) (discussing Stephen's reign); see also 1 Pollock & Maitland, supra note 100, at 449 (*Henry II's scheme+ does not profess to represent the practice of Stephen's day. For legal purposes, Stephen's reign is to be ignored, not because he was an usurper, but because it was a time of war and of unlaw.). 27 The Constitutions of Clarendon c.3 (1164), reprinted in Michael Evans & R. Ian Jack, Sources of English Legal and Constitutional History 12 (1984) (brackets included in reprint).

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addition, he would forfeit his property to the King. This latter interpretation of the clause has become almost universally regarded as the proper interpretation by legal historians. Archbishop Becket, whom ironically Henry had appointed to his position in 1162, 28objected to this scheme. He claimed, among other things, that clerics could be tried and punished only in an ecclesiastical court and that a cleric convicted in such a court and deposed from his orders could not subsequently be brought to the royal court for punishment. To do so, argued Becket, would be to punish him twice for the same offense in violation of the maxim nec enim Deus iudicat bis in idipsum (or a variation thereof) and of canon law29. The conflict between Henry and Becket continued for several years, with Becket at one point fleeing to France and excommunicating several of the King's ministers after Henry seized the revenues of the sea of Canterbury. Becket and the King eventually reached a compromise, and Becket returned to England. Shortly thereafter, in 1170, four of Henry's knights murdered Becket inside Canterbury Cathedral. Six years later, and after the canonization of Becket by Pope Alexander III, Henry renounced the provision in the Constitutions that allowed a degraded cleric to be further punished in the royal court30. Archbishop Becket's martyrdom and Henry's capitulation, this theory argues, must have made an impression on the King's judges, many of whom were bishops and archdeacons, and convinced them that the maxim which Becket was espousing was worthy of consideration. The third theory, according to Rudstien, explaining the introduction of the protection against double jeopardy into English common law suggests that the protection evolved from Anglo-Saxon criminal procedure as a practical and obvious procedural assumption by the courts. The proponent of this theory argues that the unimportance of the protection during the first five hundred years of its existence, as illustrated by its numerous exceptions and its vulnerability to legislative interference on two occasions without public or judicial uproar over the loss of liberties, in conjunction with its slow development, points towards procedural evolution rather than introduction from Roman law. Had the protection been a product of
28

Henry II appointed Becket his Chancellor in 1154 and upon the death of Theobald, the Archbishop of Canterbury, in 1161, Henry persuaded a reluctant Becket to assume the Archbishopric 29 Pollock and Maitland had grave doubts that Becket's claims in fact were sanctioned by canon law. They wrote that in asserting that the state could not punish a criminal cleric for a crime for which he already had been deposed from his orders, Becket propounded a doctrine which, so far as we are aware, had neither been tolerated by the state nor consecrated by the church. . Moreover, because Becket was willing to add life imprisonment as an additional sanction in the ecclesiastical courts, the principle for which he contended was a highly technical principle condemning not two punishments but two judgments. 30 The resolution of the conflict between Henry II and Becket could be seen to constitute a complete rejection of the so-called dual sovereignty doctrine that subsequently developed in the United States. See supra note 2 (discussing the so-called dual sovereignty doctrine); infra text accompanying notes 240-42 (discussing the rejection of the dual sovereignty doctrine in England by the Court of King's Bench).

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Roman law, the proponent contends, it probably would have established a rule of fundamental doctrine from its inception. Similarly, she claims that the appearance of the plea of a former acquittal in 1203, so soon after the clash between Becket and Henry II, shows that that conflict could not have played a major role in the introduction of the protection into English common law. She reasons that to establish itself as a commonplace rule . . ., such a novel principle would take much longer to percolate through to courts. Regardless of the theory to which they subscribe, scholars generally agree that the origin of the protection against double jeopardy in English law is, and undoubtedly will remain, a matter of speculation, because much of Western law derives from a common fund of shared judicial concepts. Present day scenario in the English law is that 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 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(1) 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. (2) 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

Doctrine of Double Jeopardy in India Today In India, The Fundamental Rights have their origins in many sources, including Englands Bill of Rights, the United States Bill of Rights and Frances Declaration of the Rights of Man. 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.

religion, freedom of assembly and association, freedom to move freely and to reside and

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alia, equal protection of laws, freedom of speech and expression, freedom of worship and

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The Indian Constitution guarantees to the people certain rights freedoms, such as inter

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. 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. In Thomas Dana v The State of Punjab31, it was held by the court that to avail the protection of Article 20(2) of the constitution, it was necessary to show that (1) There was a previous prosecution, (2) A punishment and (3) That for the same offence, and unless all the three conditions were fulfilled the Article did not come into operation. The word 'prosecution' as used in that Article contemplated a proceeding of a criminal nature either before a court or a judicial tribunal.

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 Amendment32 , 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

31 32

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

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1959 AIR 375/

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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 omitted 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 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 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.

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the first prosecution. The rule in Indian Constitution is different. In order to bring the case of

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.

Conclusion After having looked the evolution of the concept of Double Jeopardy, it is safe to say that this principle has evolved after years of debating, changes, and modifications by different legislatures, kings and statutes. Its existence in the current times implies that the judiciary all over the world considers this as an important part of the rights of an individual. Though the principle in its application has variations in different legal systems and countries, its basic essence is the same which is no person shall be punished twice for the same offense. The principle is well recognized by most of the major countries, and is also recognized by certain international treaties. Hence, the concept of Double Jeopardy is as important and as necessary as any other law to protect an individuals right as any other fundamental right would aim at.

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