The doctrine of Double jeopardy has been conceptualized in the Constitution of India under Article 20(2) which provides that no person shall be prosecuted and punished for the same offence more than once. It has been enshrined as a part of the Fundamental Right by the fathers of our Constitution under Part III. When a person has been convicted for an offence by a competent court, the conviction serves a bar to any further criminal proceedings against him for the same offence. No one ought to be punished twice for one and the similar offence.
The criminal justice system operates on the principles of certain values where no compromise works and such is the double jeopardy principle in which values are protected by the system. It acts as a procedural safeguard, which bars a second trial then an accused person is either convicted or acquitted after a full-fledged trial by a court of competent jurisdiction. Doctrine of double jeopardy has been incorporated from 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.
Ingredients applicable for double Jeopardy Rule –
A) The person must be accused of an offense. The word ‘offense’ as defined in general clauses Act means ‘any act or omission made punishable by law for the time being in force.
B) The preceding or prosecution must have taken place before a Court or Judicial Tribunalhttps://78e8bec0ecba7318ad165f994f15b688.safeframe.googlesyndication.com/safeframe/1-0-38/html/container.html
C) The person must have been prosecuted and punished in the previous proceeding.
D) The offense must be the same as of before compulsorily for which he was prosecuted and punished
Origin of the doctrine
The principle of double jeopardy was bit known to the Greeks and Romans, and thus this principle was finally recognized 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 earlier. In Magna Charta, the clauses related to double jeopardy have not been discussed nor by implication it can be interpreted.https://78e8bec0ecba7318ad165f994f15b688.safeframe.googlesyndication.com/safeframe/1-0-38/html/container.html
The doctrine of double jeopardy has been derived from the common source of Canon law by continental and the English systems. In the Roman law under Justinian Code this doctrine has been adopted.
It exists as a constitutional right is many countries such as United States, Canada, Mexico and India and on the international platform also, it has been recognized through various international documents, 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 and Article 50 of the Charter of Fundamental Rights of the European Union and the party states are bounded with the relevant provisions of the conventions.
Kalawati v State of Himachal Pradesh[i]
In this case a person accused of committing murder was tried and acquitted. The State preferred an appeal against the acquittal. The accused could not plead Article 20(2) against the State preferring an appeal against the acquittal. Article 20(2) would not applicable as there was no punishment for the offence at the earlier prosecution.
Monica Bedi v State of Andhra Pradesh[ii]
In this case the Apex Court ruled that a passport enrolled on fictitious name amounted to a double jeopardy as a Portuguese court too had earlier convicted her for owning forged passport.
State of Bombay v S.L Apte[iii]
In this case, the Supreme Court explained the legal position and stated that for applicability of Article 20(2) the requisites must be that the offences are identical and analysis of ingredients of the two offences must be done, not the allegations in the two complaints.
P.Dahiya vs. Union of India[iv]
It was held that if the accused was neither convicted nor acquitted of the charges against him in the first trial his retrial would not constitute double jeopardy and in State of Rajasthan V Hat Singh[v], it was said that prosecution and other punishment under two sections of an Act, the offences under the two Sections being different from each other, does not amount to double jeopardy.
State of Haryana vs. Bhagwant Singh
In this case, Court held that the prohibition under Article 20 is not applicable to departmental proceedings.
Mohammad Ali vs. Sri Ram Swaroop
In this case Court held that in cases of Continuing offense, each day is counted as a fresh offense and each can be punished separately so double jeopardy doctrine is not permissible in continuing offences.
Bhagwant Swarup vs. State of Maharashtra
In this case, Court held that the second prosecution, as well as punishment, should be regarding the same offense for which the person has been prosecuted and punished before and Article 20(2) is applicable. The same offence here means that the ingredients of the offense are same. It does not apply to different offences committed by the same act of that person.https://78e8bec0ecba7318ad165f994f15b688.safeframe.googlesyndication.com/safeframe/1-0-38/html/container.html
Comparison with other countries
Almost all common law countries incorporate this protection in their laws, while some countries have found it mandatory to be included in their constitutions whereas others have incorporated it in their statutes. Though its origin is thus common, it is found that its reception and implementation have been different.
The Macpherson Report recommended after the murder of Stephen Lawrence that the double jeopardy rule should be abrogated in murder cases, and that it should be possible to subject an acquitted murder suspect to a second trial if “fresh and viable” new evidence comes in knowledge later on .The Law Commission later added its support to this in its report “Double Jeopardy and Prosecution Appeals” (2001). Under the new context, if there is “new, compelling, reliable and substantial evidence” found out which had not been previously available and came in limelight later on then the accused suspect can be tried again.
In Article 103(3) of the Germany’s Constitution, principle of double jeopardy has been stated which prohibits punishment for the same offence more than once in pursuance of general legislation.
The Constitution of Japan under Article 39 deals with the doctrine of double jeopardy.
The Fifth Amendment to the Constitution of United States provides for the concept Double Jeopardy clause and thus encompasses subsequent prosecution after acquittal, after conviction, after certain mistrials, and multiple punishments in the same indictment. The Double Jeopardy clause prevents the State from ‘punishing’ twice or attempting a second time to ‘punish’ criminally for the identical offence.https://78e8bec0ecba7318ad165f994f15b688.safeframe.googlesyndication.com/safeframe/1-0-38/html/container.html
Frequently Asked Questions (FAQs)-
What is double jeopardy in the 5th amendment?
The Double Jeopardy Clause in the Fifth Amendment to the US Constitution mandatorily prohibits any individual from being prosecuted twice for second time substantially for the same offence. Only sanctions which can be considered as “punishment” would qualify under the rule of double jeopardy.
[i] Kalawati v State of Himachal Pradesh , AIR 1953 SC 131
[ii] Monica Bedi v State of Andhra Pradesh , 2011 1 SCC 284
[iii] State of Bombay v S.L. Apte AIR 1961 SC 578
[iv] O.P.Dahiya V Union of India , (2003)1 SCC 122)
[v] State of Rajasthan V Hat Singh, AIR 2003 SC 791
I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.
If you are interested in participating in the same, do let me know.
The copyright of this Article belongs exclusively to Ms. Aishwarya Sandeep. Reproduction of the same, without permission will amount to Copyright Infringement. Appropriate Legal Action under the Indian Laws will be taken.
If you would also like to contribute to my website, then do share your articles or poems at firstname.lastname@example.org
We also have a Facebook Group Restarter Moms for Mothers or Women who would like to rejoin their careers post a career break or women who are enterpreneurs.
We are also running a series Inspirational Women from January 2021 to March 31,2021, featuring around 1000 stories about Indian Women, who changed the world. #choosetochallenge