Right Against Double Jeopardy: India

Introduction
The word Double stands for twice and the term "Jeopardy" refers to the "danger" of punishment which is endorsed to any individual brought to trial before a court of competent jurisdiction. Jeopardy cannot be constitute in any procedural matters, and that's why it's said that jeopardy attaches, or may be asserted by the defendant, once a jury has started the proceedings, or the first witness takes the stand, in any original prosecution resulting in any acquittal or conviction. No to be punished for the same offence is a defense (and, in many countries such as the United States, Canada, Mexico, Japan and India, a constitutional right) that forbids a defendant from being tried a second time for the same offence. The ancestry 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.1 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 concept of double jeopardy is one of the oldest in Western civilization. In 355 B. C. Athenian statesmen Demosthenes said that the "law forbids the same man to be tried twice on the same issue." The Romans codified this principle in the Digest of Justinian in 533 A. D. The principle also survived the Dark Ages (400-1066 A.D.) through the CANON LAW and the teachings of early Christian writers, notwithstanding the deterioration of other Greco-Roman legal traditions.2 The principle was inexistence in India even prior to the commencement of the Constitution, but the right against double jeopardy has been given the status of constitutional, rather than a mere
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P.K.Majumdar and Kataria R.P, Commentary on the Constitution of India, 10 th Edition, Orient Publication company, Page no. 897 2 http://www.enotes.com/criminal-law-reference/double-jeopardy assessed on 20th of September, 2012

statutory, guarantee. Double Jeopardy is documented in different countries like United States, United Kingdom, Canada, Germany, France, Japan, India etc. Further, double jeopardy is discussed in accordance with Constitutions of different countries. It is a fundamental principle of the common law that a person cannot be put in jeopardy twice for the same offence. Almost all common law countries incorporate this protection in their laws. While some countries have found it necessary to be included in their constitutions, others have incorporated it in their statutes. All agree that the protection has its origin in the English common law of the eighteenth century. Though its origin is thus common, it is found that its reception and implementation have been different.

In India In India, protection against double jeopardy is a Fundamental Right guaranteed under Article 20 of the Constitution of India. An article 20(2) of Indian Constitution state that No person shall be prosecuted and punished for the same offence more than once contains the rule against double jeopardy.3 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. Not to be punished for the same offence more than once. The Right against Double jeopardy is a fundamental right of every citizen of India which is assured in Article 20(2) of the Constitution of India enunciates the principle of autrefois convict or double jeopardy. The principle which is sought to be incorporated into section 300 of the Criminal Procedure Code (CrPC) is that no man should be vexed with more than one trial for the offences arising out of same act committed by him.4 Though article 20(2) of the Indian Constitution embodies a protection against a second trial after a conviction of the same offence, the ambit of the clause is narrower than the protection afforded by the section 300 of the CrPC. If there is no punishment for the
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Dr. Subash C. Kashyap, Constitutional Law of India, 1 st edition Volume-1, Universal law publishing company Page Number-649 4 P.K.Majumdar and Kataria R.P., Commentary on the Constitution of India, 10th Edition, Orient Publication company, Page no. 919

offence as a result of the prosecution, article 20(2) has no application. While the clause embodies the principle of autrefois convict, section 300 of the CrPC combines both autrefois convict and autrefois acquit.5

In United States The DOUBLE JEOPARDY clause in the Fifth Amendment to the U. S. Constitution prohibits the government from prosecuting individuals more than one time for a single offense and from imposing more than one punishment for a single offense. It provides that "No person shall . . . be subject for the same offence to be twice put in JEOPARDY of life or limb." The Double Jeopardy Clause encompasses four distinct prohibitions: subsequent prosecution after acquittal, subsequent prosecution after conviction, subsequent prosecution after certain mistrials, and multiple punishments in the same indictment. Jeopardy "attaches" when the jury is empaneled, the first witness is sworn, or a plea is accepted.6

Right against Double Jeopardy in India

Article 20 (2) of the constitution of India which runs as No person shall be prosecuted and punished for the same offence more than once7 contain the right against Double Jeopardy. The principle was in existence in India even prior to the commencement of the Constitution, but the same has now been given the status of a constitutional, rather than a mere statutory gurantee. Both Prosecution and Punishment should co-exist for Article 20 (2) to be operative. A prosecution without punishment would not bring the case within Art 20 (2). If a person has been prosecuted for an offence but acquitted, then he can be again prosecuted and punished for the same offence. Example- If a person was prosecuted and punished under Section 497 Indian penal Code, 1860. On appeal, the High Court quashed the trial holding it void ab- initio as no sanction for the same had been obtained under the law. Art 20 (2) would not bar a second trial for the same offence, as the accused had not been prosecuted and punished for the offence. But in the same example if he
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Dr. Subash C. Kashyap, Constitutional Law of India, 1 st edition Volume-1, Universal law publishing company Page Number-650 6 http://www.enotes.com/criminal-law-reference/double-jeopardy assessed on 20th of September, 2012 7 Bare Act, The constitution of India,1950

was prosecuted and punished then Article 20(2) will come into effect and saves the person from any second prosecution for the same offence. Therefore, Prosecution and Punishment both should be present in the first trial in order to attract Article 20(2) in the second trial for the same offence. 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 which works on well established maxim, Nemo debet bis Vexari.8 The principle has been recognized in the existing law in India and is enacted in Section 26 of the General Clauses Act, 1897 states that, 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, 19739, 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 subsection (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 or 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.

P.K.Majumdar and Kataria R.P., Commentary on the Constitution of India, 10 th Edition, Orient Publication company, Page no. 897 9 Bare Act, Criminal Procedure Code, 1873

(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 CrPC. 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 Article20 has no application.

Three essentials of Right against Double Jeopardy are: a) There must be a person accused of an offence. The word offence is described in the General Clause Act, 1897 which read as, an act or omission made punishable by any law for the time being in force. b) The proceedings should have been taken before a court or Judicial tribunal. Proceedings before tribunal which entertains departmental or administering enquires cannot be considered as proceedings in connection with prosecution and punishment. The revenue authorities, like sea customs authorities are not Judicial tribunal. c) The proceedings 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 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. It would make no difference even if the enquiry is required to act judicially.10

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Case Laws
Sangeetaben Mahendrabhai Patel vs. State of Gujarat (2012) 7 SCC 621
Facts This appeal of double jeopardy for the reason that the appellant has already been tried and dealt with under the provisions of Section 138 of Negotiable Instruments Act, 1881 for the same offence. Respondent filed a complaint dated 22.10.2003 under Section 138 of N.I. Act on the ground that the appellant had taken hypothecation loan of Rs. 20 lakhs and had not repaid the same. In order to meet the said liability, the appellant issued cheque but latter in the due course the cheque was dishonoured. Subsequent thereto on 6.2.2004, the respondent filed an FIR under Sections 406/420 read with Section 114 of Indian Penal Code, 1860 with the for committing the offence of criminal breach of trust, cheating and abetment. In the criminal case under Section 138 of N.I. Act, the trial court convicted the appellant. Appellant preferred before the District Judge wherein, he has been acquitted. Against the order of acquittal, respondent has preferred before the High Court of Gujarat which is still pending consideration. The appellant stood acquitted in criminal case under Section 138 of N.I. Act. Thus, he pleaded that he cannot be tried again for the same offence. In the facts of the case, doctrine of double jeopardy is attracted. The High Court dismissed the said application. Arguments The appellant has submitted that the ICR as well as the criminal case pending before the Chief Judicial Magistrate is barred by the provisions of Section 300 Cr.P.C. and Section 26 of the General Clauses Act, 1897 as the appellant has already been dealt with/tried under Section 138
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of N.I. Act for the same offence. Thus, the High Court committed an error in not quashing the said ICR and the criminal case. Two time prosecution for the same offence will amount to Double Jeopardy. The respondent, the State of Gujarat, have vehemently opposed the appeal contending that the provisions of Section 300 Cr.P.C. i.e. `Doctrine of Double Jeopardy are not attracted in the facts and circumstances of the case, for the reason, that the ingredients of the offences under Sections 406/420 read with Section 114 IPC are entirely distinct from the case under Section 138 of N.I. Act, and therefore, do not constitute the same offence. Laws Applicable The sole issue raised in this appeal is regarding the scope and application of doctrine of double jeopardy. The rule against double jeopardy provides foundation for the pleas of autrefois acquit and autrefois convict. The manifestation of this rule is to be found contained in Section 300 Cr.P.C; Section 26 of the General Clause Act and Section 71 of IPC. Section 300 of CrPC, 1873 reads as: 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 subsection (1) of Section 221, or for which he might have been convicted under sub section (2).

Secttion 26 of the General Clause Act, 1897 reads: Provisions as to offences punishable under two or more enactments where an act 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. Judgement The appellant had been tried earlier for the offences punishable under the provisions of Section 138 N.I. Act and the case is sub judice before the High Court. In the instant case, he is involved under Sections 406/420 read with Section 114 IPC. In the prosecution under Section 138 N.I. Act, the mens rea i.e. fraudulent or dishonest intention at the time of issuance of cheque is not required to be proved. However, in the case under IPC involved herein, the issue of mens rea

may be relevant. The offence punishable under Section 420 IPC is a serious one as the sentence of 7 years can be imposed. In the case under N.I. Act, there is a legal presumption that the cheque had been issued for discharging the antecedent liability and that presumption can be rebutted only by the person who draws the cheque. Such a requirement is not there in the offences under IPC. In the case under N.I. Act, if a fine is imposed, it is to be adjusted to meet the legally enforceable liability. There cannot be such a requirement in the offences under IPC. The case under N.I. Act can only be initiated by filing a complaint. However, under Indian Penal Code such condition is not necessary. There may be some overlapping of facts in both the cases but ingredients of offences are entirely different. Thus, the subsequent case is not barred by any of the aforesaid statutory provisions. The appeal is devoid of any merit and accordingly dismissed. Opinion The Judgement given by the Supreme Court is not satisfactory as the facts are same but ingredients of offences are different but ingredients are irrelevant. What is important is two different cases are established for the same act. If this will be the case a thief committing theft will be charged for the offence of theft under IPC and also for trespass to property in torts. This will lead to double punishment for the same offence which is forbidden by law.

Kolla Veera Raghav Rao v/s Gorantla Venkateswara Rao12 (2011) 2 SCC 703
Facts The appellant was already convicted under Section 138 of the Negotiable Instruments Act, 1881 and hence he pleaded that he should not be again tried or punished on the same facts under Section 420 or any other provision of IPC or any other statute.

Court Observation and Judgement The Supreme Court speaking through Justice Markandey Katju and Justice Gyan Sudha Mishra, in Kolla Veera Raghav Rao vs Gorantla Venkateswara Rao and Ors., has dealt with the concept
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of 'Double Jeopardy'. The Supreme Court has held that the provisions of S. 300(1) of the Code of Criminal Procedure, 1973 is much wider than the provisions of Article 20(2) of the Constitution of India. It may be noticed that there is a difference between the language used in Article 20(2) of the Constitution of India and Section 300(1) of Cr.P.C.. Article 20(2) states: "no person shall be prosecuted and punished for the same offence more than once." On the other hand, Section 300(1) of Cr.P.C. States: 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 subsection (1) of section 221 or for which he might have been convicted under sub-section (2) thereof." Thus, it can be seen that Section 300(1) of Cr.P.C. is wider than Article 20(2) of the Constitution. While, Article 20(2) of the Constitution only states that 'no one can be prosecuted and punished for the same offence more than once', Section 300(1) of Cr.P.C. states that no one can be tried and convicted for the same offence or even for a different offence but on the same facts. In the present case, although the offences are different but the facts are the same. Hence, Section 300(1) of Cr.P.C. applies. Consequently, the prosecution under Section 420, IPC was barred by Section 300(1) of Cr.P.C. The Double Jeopardy is set up and appeal was upheld by providing appellant protection under Section 300(1) of CrPC. Opinion The decision of the court is satisfactory and logical. The appellant was already prosecuted and punished for the offence he performed therefore he should not be prosecuted again for the same offence. And by prosecuting second time for the same offence will lead to Double Jeopardy. It is important that Supreme Court by the virtue off Section 300(1) held that appellant cannot be prosecuted again for the same facts. By this Judgement it can be clearly understood that Article 20(2) of Indian Constitution is narrower than Section 300 of CrPC regarding the Right against Double Jeopardy.

Jayantibhai Nagjibhai Patel v/s State of Gujarat13

Facts The facts which have arisen from the petition are that in pursuance of a written application given by Bapu Swami Guru Dharma Swarupdasji of Shri Swaminarayan Mandir, Vadtal, to Police Sub Inspector, Chaklasi Police Station, a complaint was registered for the offences punishable under Sections 294 and 120-B of IPC and Section 5(1)(a), (b) and (d) of the Prevention of Immoral Traffic Act against the applicant and other accused persons on 8-1-2005. During the course of investigation, accused was arrested and was sent to judicial custody. Another complaint was filed by Police Sub Inspector, Crime Branch, on 15-2-2005 against eight persons for the offences punishable under Sections 120-B, 292, 294, 295 and 420 of IPC, Section 67 of Information Technology Act and Sections 5 and 9 of the Prevention of Immoral Traffic Act. Petitioner was arrested on 18-2-2005, thereafter applicant was released on bail by this Court on 25-3-2005. On 10-12-2010 a charge sheet came to be filed by Nadiad Town Police Station against him before the Court of Judicial Magistrate, First Class, Nadiad, in Criminal Case and the petition has been filed by the applicant for quashing the said charge as he is charge twice for the same offence. Arguements It was pleaded by the accused that the charge sheet submitted against the petitioner accused pertaining to 2005 registered with Chaklasi Police Station relates to the same set of evidence in relation to offence registered of 2005 by DCB Crime Police Station, Ahmedabad, wherein witnesses and accused are almost the same, which is legally not permissible. When DCB Crime, Ahmedabad City, has already submitted charge sheet in the same set of evidence and case was committed to the Sessions Court, Nadiad Town Police Station should not to have filed charge sheet after a long lapse of time in relation to the same set of evidences and recovery of muddamal articles. It is further argued that there cannot be two separate charge sheets by two different agencies in respect of commission of same set of evidences. It is that in one case, petitioner was discharged by this Court and hence, continuation of proceedings of 2005 registered by Chaklasi Police Station, being related to the same offence registered of 2005 by

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DCB Crime Police Station, Ahmedabad. It was stated by the petitioner that this is amounting to Double Jeopardy and therefore he shall be discharged by the court. In this connection, he has relied on a decision of the Hon'ble Apex Court in the case of Kolla Veera Raghav Rao Vs. Gorantla Venkateswara Rao reported in AIR 2011 Supreme Court page 641 wherein it has been held by the Hon'ble Apex Court that it can be seen that Section 300(1) of Cr.P.C. is wider than Article 20(2) of the Constitution. While, Article 20(2) of the Constitution only states that 'no one can be prosecuted and punished for the same offence more than once', Section 300(1) of Cr.P.C. states that no one can be tried and convicted for the same offence or even for a different offence but on the same facts. Judgement Court relying on Hon'ble Apex Court judgement in Kolla Veera Raghav Rao case that no person can be prosecuted and punished for the same offence more than once. In the present case also, even though the offences are different, facts are the same and hence, in view of judgment reported in Kolla Veera Raghav Rao, proceedings in Criminal Case arising out of 2005 of Chaklasi Police Station charge sheet should not be permitted to continue. This appellant appeal was upheld. Opinion The Judgement of the Supreme Court was agreeable as it is basic principle that a case against one person should be registered in one place only and that place should have jurisdiction over that area. Section 300(1) of CrPC protects the petitioner as it states that no one should be punished twice for the same facts.

Conclusion
The crucial requirement for attracting article 20(2) of the Indian Constitution is that the offences are the same, i.e., they should be identical. It is, therefore, necessary to analyze and compare not the allegations in the two complaints but the ingredients of the two offences and see whether their identity is made out. The test to ascertain whether two offences are the same is not the identity of the allegations but the identity of the ingredients of the offences. The principle which is sought to be incorporated into section 300 of the Criminal Procedure Code (CrPC) is that no man should be vexed with more than one trial for the offences arising out of same act committed by him. Though article 20(2) of the Indian Constitution embodies a protection against a second trial after a conviction of the same offence, the ambit of the clause is narrower than the protection afforded by the section 300 of the CrPC. By analyzing recent case it can be figure out that Indian Judiciary is taking Right against Double Jeopardy in very descriptive way. It is clear from the case like Sangeetaben Mahendrabhai Patel vs. State of Gujarat14 that offences are treated same if the ingredients of the offences are same. But it is clear that a person cannot be punished twice for even different offences if the facts of the case are same by the virtue of Section 300(1) of Criminal Procedure Code, 1873. Judiciary has upheld this section in various cases such as Jayantibhai Nagjibhai Patel v/s State of Gujarat and Kolla Veera Raghav Rao v/s Gorantla Venkateswara Rao 15. Therefore, it can be said that Right against Double jeopardy is very historical concept which is growing up higher and higher
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in present scenario and due to that it has given a constitutional status and that too under the fundamental rights.