RESEARCH TOPIC

DOUBLE JEOPARDY

Submitted by
Monika Kumari (A-44), Yash Nagmote (A-38)
BBA.LLB Second Year (2022-2023), Division- A

Under the Subject of

ICT and Legal Research

Submitted to
Prof. Puja Mathur
Abstract
Double jeopardy is a legal term and simply means that a person is not punished or offended many
times. A double jeopardy rule, known in law as Haute Foix acquittal, evolved Century as protection
from repressive persecution. The double jeopardy principle plays a critical role in protecting the
integrity of the criminal justice system, including valuables Fundamental rights of defendants. The
essay attempts to analyse the concept of Double jeopardy under Indian law examined, specifically
referring to Indian constitution and how to protect the basic rights of people accused of crimes. Also
make a call on analysis of court decisions regarding the limits and limitations of the double jeopardy
doctrine.
Keywords: Double jeopardy, conviction, Fundamental rights, criminal justice system, Constitution
of India.

Introduction:
All civilized societies maintain criminal justice systems to manage crime and punish those who break
the law. Criminal justice is a system of practice, a government agency for the purpose of maintaining
social control, deterring and mitigating crime, or punish those who break the law with criminal
sanctions and rehabilitation efforts1.But any effective criminal law system must meet constitutional
requirements or the criminal justice system operates on certain uncompromising values. The "double
jeopardy" principle is one of the assets protected by the system procedure. If you take protective
measures to prevent a second trial, the defendant will either be convicted or acquitted after a full-
fledged trial by competent court2. The basic idea of Double Jeopardy is deceptively simple: A
prosecutor should be given only one chance to convict someone. The rule opposing the double
jeopardy originally stems from the maxim "nemo debet bis vexari pro uno et eadem causa" means
that you should not be bothered by the same thing twice. The word "double jeopardy" expresses the
idea that a person is in danger of being convicted more than once for the same crime3. The core rules
include the old jurisdictional defences, namely autrefois acquit and autrefois convict4. These two
doctrines are intended to protect criminal suspects from boredom and reprocessing trauma5. If
criminal liability is determined by a court of competent jurisdiction,

Citations
1
Available at http://en.wikipedia.org/wiki/Criminal_justice. 2 Lawrence Newman, “Double Jeopardy
and the Problem of Successive Prosecutions”, 34 S.Cal.R [1960], p.252. 3 Ian Dennis, “Rethinking
Double Jeopardy: Justice and Finality in Criminal Process”, [2000] Crim. L.R. 993. For the
applicability of the principle, the conviction must be for the same offence: “For the doctrine of
autrefois to apply it is necessary that the accused should have been put in peril of conviction for the
same offence as that with which he is then charged. The word 'offence' embraces both the facts, which
constitute the crime, and the legal characteristics, which make it an offence. For the doctrine to apply
it must be the same offence both in fact and in law.” See, Lord Devlin in Connelly v. Public
Prosecutions, [1964] A.C 1254. 4Autrefois acquit is a defence plea available to the accused in a
criminal case, that he has been acquitted previously for the same offence and thus entitling a
discharge. Likewise, Autrefois convict discharges an accused, as he has been convicted previously for
the same offence. 5Daniel K. Mayers and Fletcher L.Yarbrough, “Bisvexari: New Trials and
Successive Prosecutions”, [1960] Harv. L. Rev.74
whether it is acquittal or conviction, in the end I am not seeking further prosecution if the same crime
is involved6.

“Double Jeopardy”: A Conceptual Analysis:

The word jeopardy refers to the “Danger” of belief what the accused is exposed to when they are
tried for a crime. So “Double jeopardy” simply refers to the act of bringing a person to their second
trial for a crime for which he or she has already been prosecuted or convicted7. A second indictment
for the same crime after acquittal or conviction or multiple punishments for the same crime. The evil
required to be avoided by prohibiting double jeopardy means double trial and double conviction, not
necessarily double punishment. This means if a person once indicted or convicted cannot be re-
punished for that crime. However if a person is brought to court again for the same crime, they have a
double-jeopardy plea as a legitimate defence. Five key considerations underpin the double jeopardy
principle8 :
1. Prevent the government from wearing itself out with its superior resources and falsely convicting
innocent people.
2. Protection of individuals from economic, emotional and social influences basis;
3. Preserve the finality and integrity of criminal proceedings that may be at risk States can arbitrarily
ignore unsatisfactory results.
4. Limitation of prosecutor discretion over prosecution proceedings.
5. Elimination of judicial discretion to impose cumulative penalties that legislature does not have
authorized.
‘Double Jeopardy’: Historical context:
There is no unanimous opinion on origin of double jeopardy principle as it is one of the oldest legal
concepts. It is correctly stated the history of double jeopardy is the history of criminal proceedings9.
The rule is considered to have its beginning in the dispute between Henry II and Archbishop Thomas
Beckett in the 12th century10. At that time there were two courts for him, royal and ecclesiastical. The
king wanted a priest even after being punished in the church court, they are still punished in the royal
palace. Beckett trusted on St. Jerome’s interpretation of Nahum, and professed that the ancient text
prohibited “two judgment”11. He realized that repeating punishment violated society’s maxims nimo
bis in idipsum means no one should be punished twice.
Citation
6
R V. Miles, 24 Q.B. 423, at p.431, as cited in Broom’s Legal Maxims, R.H.Kersley (Ed), Herbert
Broom, Pakistan Law House, Karachi (10thed), 1998 7The American heritage dictionary. 8 Available
at http://legal-dictionary.thefreedictionary.com/double+jeopardy. 9Martin L.Friedland, “Double
Jeopardy”, (1969) Oxford University Press,p.3. 10Excerpt by Justice Roslyn Atkinson at Australian
Law Student’s Association (ALSA) Double Jeopardy Forum, 9 July 2003, Brisbane, available at
http://archive.sclqld.org.au/judgepub/2003/atkin090703.pd. 11Nyssa Taylor, “England and Australia
relax the double jeopardy privilege for those Convicted of Serious Crimes”, [2005] 19 Temp. Int‟l &
Comp. L. J., p.195.12Res judicata or res iudicata , also known as claim preclusion, is the Latin term for
“a matter [already] Judged”, and may refer to two concepts: in both civil law and common law legal
systems, a case in which there Has been a final judgment and is no longer subject to appeal; and the
legal doctrine meant to bar (or preclude)continued litigation of a case on same issues between the
same parties. In this latter usage, the term is synonymous with “preclusion”.
 The 17th century was a time of enlightenment on the importance of dissent of double jeopardy. Lord
Coke’s writings contributed in part to this and, of course, to the rest public dissatisfaction with the
lawlessness of the first half of the century. Just seventeen over the course of the century, the double
jeopardy principle seems to have become an established principle of history of the common law13. In
the 18th century, extreme procedures were mostly shadowed. Things to watch out for Blackstone
observed in his 18th century: “First, the autrefois acquittal, or earlier petition for acquittal, rests on
this universal maxim of acquittal. Under English common law no person shall be in danger of death
beyond that period for the same crime he is once acquitted upon indictment or other criminal
prosecution in a court of competent jurisdiction, he can refer to such an acquittal to the exclusion of
subsequent prosecution for the same crime14. Until the 19th century, defendants were afforded
virtually no protection. Against a retrial even if released due to wrong or inconsistent charges was
claimed and proven15. The protection provided by this regulation has also received various
international recognitions also through various international document16. Almost all civilized
countries today have protection against double jeopardy of municipal laws. Among these countries
some of them have provided through its constitution and others have incorporated it into their laws17.

“Double Jeopardy”: Protection by Indian Law:

The Double Jeopardy principle is applicable in India before the Constitution of India was
enacted. The principle is already recognized under the provisions of the General Clauses
Act18. And (Old) Section 403(1) of CrPC, 189819(Section 300 of the Code of Criminal
Procedure, amended, 197320), provided that the person has been tried once convicted of a
criminal offense and acquitted or convicted by a court of competent jurisdiction; any such
conviction or acquittal will remain valid and you will not be prosecuted for the same crime
again. Also, other crimes charged with different crimes than those charged with, on the same
factual basis.

Citation
13
Charles Parkinson, “Double Jeopardy Reform: The New Evidence Exception for the Acquittals”,
(2003) UNSW Law Journal,p.,605. 14Blackstone, Commentaries, 335, (1889), excerpt by Lawrence
Newman, “Double Jeopardy and the Problem of Successive Prosecutions”, 34 S.Cal.R [1960], p.252.
15
Supra note 9, p.3. 16The states are bound to cope with the relevant provisions of the conventions to
which they are parties. For instance, Article 14(7) of the International Covenant on Civil and Political
Rights; Article 4(1) , Protocol 7 to the European Convention of Human Rights; Article 50 of the
Charter of Fundamental Rights of the European Union. 17For instance, in countries such as U.S.A and
India, it is accepted as a constitutional right. In particular, Fifth Amendment to Constitution of USA
and Article 20(2) of the Constitution of India. Conversely, in England and Canada, it is the part of
Common Law and Statute Law. 18 Section 26 of the General Clauses Act, 1897 provides: “ 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.” 19 Act No. 5 of 1898. 20Act No.2 of I974.
 Also, the protection under Section 20(2) of the Indian Constitution is narrower. American and British
law against double jeopardy in comparison to the laws under the American and British constitutions,
Double jeopardy protection is granted against for the second indictment of the same crime, also, it
doesn't matter if the defendant is acquitted or convicted at first trial. However, subject to Article
20(2), Double jeopardy protection only applies if the defendant is not alone just "indicted" but
"punished" and charged again for the same crime. Therefore, the use of the word "fee" limits the
scope of protection under clause (1) of Article 20. Cases not subject to punishment under Article
20(2) if the procedure is continued of prosecution21. Therefore, we should pay attention to that sub-
clause (2) of Article 20 above all else. Article 20 does not apply unless the breach is punishable under
the foundation. As stipulated in the Indian Constitution, conditions for collection must be met for
raising the plea of autrefois convict are

• First, there must be someone accused of the crime.

• Second, the trial or prosecution should have taken place in a “court” or “judicial tribunal” in
relation to the law creating criminal offences, and
• Third, the defendant must be convicted in a previous trial.
The requirements for all these conditions are discussed and explained in landmark decision, Maqbool
Hussain v State of Bombay22. In this case the applicant was an Indian national was arrested at the
airport for illegal possession of gold under the provisions of the Customs Law, 1878. A lawsuit was
subsequently filed under Section 167(8) of the Act and the money was confiscated. He was later
indicted in the Presidential Magistrate's Court. Under Section 8 of the Foreign Exchange Control Act
of 1947. At trial, the appellant raised the plea of autrefois convict, since it violates his fundamental
right violating his fundamental rights under Article 20(2) of the Law Constitution. He sought
primarily constitutional protection on the ground that he was already prosecuted and punished because
his money was confiscated by the customs authorities. In the above context, the court said by rejecting
his plea, the court held that the proceedings of the Sea Customs Authorities cannot be considered as a
judicial proceeding because it is not a court or judicial tribunal and the adjudgment of confiscation or
the increased rate of duty or penalty under the provisions of the Sea Customs Act does not constitute a
judgment or order of a court or judicial tribunal necessary for the purpose of supporting a plea of
double jeopardy. Additionally, the conditions should be met: First, a prior conviction or acquittal is
required. Second, conviction or acquittal must be by a court of competent jurisdiction. Third, follow-
up proceedings must relate to the same crime. The expression “same crime” means that the crime for
which the defendant is to be tried and the crimes against which he is tried must be identical and based
on the same facts23.

Citation
21
Smt. Kalawati v. state of H.P., AIR 1953 SC 131
22
AIR 1953 SC 325
23
State of Rajasthan v. Hat Singh, AIR 2003 SC 791

‘Double Jeopardy’: The Role of India’s Judiciary:

Some of India’s Landmark Judgments in order to clarify the response of the Indian judiciary
authorities, the judgment of our country’s Supreme Court is quoted below in connection with the
double hazard protection enshrined in the Indian Constitution.
Venkataraman v. Indian Union24 conducted investigation with investigators petitioner under the
Public Service Investigations Act 1960, as a result of which he was dismissed from the service. He
was later charged with committing a crime under the Indian Penal Code Anti-Corruption Law. The
court ruled that the hearing was conducted by a commission of inquiry. The court held that it was a
mere request and did not constitute criminal prosecution and the law enforcement has not attracted the
Double jeopardy principle and the protection guaranteed under the Fundamental Rights of Article
20(2).
It should be noted that Article 20(2) only applies if the penalties apply to the same. In Leo Roy v.
Superintendent District Jail25, the court held that, if the crimes are different, Double Jeopardy rules do
not apply. Where people were prosecuted and punished at sea Violated Customs Act and later charged
with conspiracy under Indian Penal Code, it ruled that a second indictment cannot be ruled out
because the crimes are not the same.
In Roshan Lal & ors v. State of Punjab26, the accused had lost his two pieces of evidence separate
offense under Sections 330 and 348 of the Indian Penal Code. The court ruled that the defendant said
he faced two separate sentences.
In A.A. Mulla vs State of Maharashtra27, Complainant indicted under Section 409 IPC & Section 5
Anti-Corruption Act 1947, making false punchnama in which they have shown recovery of 90 Gold
biscuits, but prosecutors say he recovered 99 Golden biscuits. The applicant was tried and acquitted
on the same grounds. Applicant brought before court again offenses under Section 120-B of the
Indian Penal Code, Sections 135 and 136 of the Customs Code Section 85 of the Gold
(Administration) Act, Section 23(1-A) of FERA, Section 5 of the Export and Import Act
(Administrative) Act, 1947. On the grounds that it violates the constitutional guarantees provided for
in Article 20(2). The court ruled that: “After careful consideration of the facts and circumstances of
the incident, Submission by each party’s expert counsel, it seems to us the elements of the criminal
offense charged against the applicant at the first trial are completely wrong. His second process
dealing with this appeal is different facts and under Customs Act and the gold (control) law of the
second instance is of a different nature. More than just ingredients if the contents of the crime in the
previous trial and the second trial are different, the factual basis of the first trial is the second try’s
trials and such bases are also not indented. So, the second trial was not barred under Section 403 of
CrPC 1898, as complainants allege.
Citation
24
AIR 1954 SC 375
25
AIR 1958 SC119.
26
AIR 1965 SC 1413, 27AIR 1997 SC 1441.

Union of India v. PD Yadav28, in this case, the pension of the officer, who was convicted by a Court-
Martial, had been forfeited. The court held: “This principle is embodied in the well-known maxim
nemo debet bis vexari si constat curiae quod sit pro una et eadem causa, meaning no one ought to be
vexed twice if it appears to the court that it is for one and the same cause. Doctrine of Double
Jeopardy is a protection against prosecution twice for the same offence.

Conclusion:
The “underlying idea” of double jeopardy includes the desire to protect an individual from repeat
prosecutions that would subject him to live in a continuing state of anxiety and insecurity. A critical
analysis of the Indian law relating to the protection of double jeopardy as enunciated in Section 300 of
the Code of Criminal Procedure and Article 20(2) of the Constitution of India, it is revealed that a
partial protection against double jeopardy is a Fundamental Right guaranteed under Article 20 (2) of
the Constitution of India. This provision enshrines the concept of autrefois convict, that no one
convicted of an offence can be tried or punished a second time. However, it does not extend to
autrefois acquit, and so if a person is acquitted of a crime, he can be retried. In India, protection
against autrefois acquit is a statutory right, not a fundamental one. provided by provisions of the Code
of Criminal Procedure rather than by the Constitution. Recently the Supreme Court of India in Kolla
Veera Raghav Rao case29 has also affirmed that Section 300(1) Cr. PC is wider in its scope than
Article 20(2)30 of the Constitution. While Article 20(2) of the Constitution only says that “no person
shall be prosecuted and punished for the same offence more than once”, Section 300(1) Cr. PC states
that no one can be tried and convicted for the same offence or even for a different offence but on the
same facts. Double Jeopardy law in India essentially protects a person from multiple punishments or
successive prosecution based on same facts of a case where the elements of multiple prosecutions are
similar to those for which the accused has already been prosecuted or has been acquitted by the court.
Going by the basic principle of law, a new charge cannot be framed against a person under
Section300 of Cr. PC based on same facts. It is essentially the duty of police who files the charge
sheet to ensure that all the charges are framed against an accused properly; also it is the responsibility
of the magistrate to ensure that the charge sheet has been filed without an error. So, it creates extra
burden on both i.e., accused and the state machinery if the charges are not framed cautiously, as it
sometimes leads to the double victimization of an accused and on the other side, it also creates
problem for state to prosecute a person as it should be.

Citation
28
(2002)1SSC 405
29
(2011) 2 SCC 703.
30
Available at ndiankanoon.org, Article 20(2) in The Constitution of India 1949,
http://indiankanoon.org/doc/17858