Operation of Double Jeopardy in India

Introduction

Double Jeopardy is a right secured to every individual under Article 20(2) of the Indian Constitution. It is grounded in the common law maxim nemo debet bis vexari which means “a man shall not be brought into danger for one and the same offence more than once.” If done so, he can plead as a complete defence his previous acquittal or conviction.

Article 20(2) corresponds to the 5th Amendment of the U.S. Constitution which declares that no one shall be punished for the same offence twice. This principle has been recognised in existing laws of India and find its embodiment in Section 26, General Clauses Act, 1897 and Section 300 CrPC.

Article 20(2) vis-à-vis 5th Amendment Rights

As mentioned above, Article 20(2) in India corresponds to 5th Amendment in U.S. However, the concept of double jeopardy as understood in USA is slightly broader than that in India.[1] In U.S. the bar against second prosecution applies irrespective of the fact that whether the first prosecution ended in acquittal or conviction. This is the common law principle, also followed in United Kingdom.

Despite the fact that India is partly a common law country, Article 20(2) does not provide complete immunity against second prosecution. To plead double jeopardy, one must be “prosecuted” before the court and “punished” by the court for the “same offence” for which he is being prosecuted again. The Supreme Court has held on this point, “If there is no punishment for the offence as a result of the prosecution, sub-clause (2) of Article 20 has no application. Following this, in Zahira Habibullah H. Sheikh v State of Gujrat[2], the Supreme court directed the retrial of an accused who was acquitted in the first prosecution. The situation would have been different in USA.

To claim protection under Article 20(2) of the Indian Constitution, following elements must be present:

  • The person must be accused of a particular offence. The term “offence” here would mean same as that defined under General Clauses Act, 1897.[3]
  • The proceeding for such an offence must have taken place before a “court” or a “judicial tribunal”. Departmental proceedings do not  amount to prosecution.[4]
  • The proceeding must be in reference to the law which creates an offence.
  • The second prosecution must be in reference to same offence for which the accused has already been punished by the court or the appropriate tribunal.

Important Case Laws

The courts over years have developed a massive jurisdiction over the operation of Double Jeopardy in India. A few most important among them are:

Maqbool Hussain v State of Bombay[5]

In this case, the appellant who was a citizen of India, on arrival on airport did not declare that he was carrying gold. During the search, it was found that he was in fact carrying 107 tolas of gold which was in direct contravention to the government notification. The gold hence was ceased under Section 167(8), Sea Customs Act, 1878. Later, a case was filed in against him in the court of the Chief Presidency Magistrate and he was charged under Section 8, Foreign Exchange Regulation Act, 1947. The appellant pleaded protection under Article 20(2) of the Indian Constitution citing that the punishment would amount to double jeopardy owing to the fact that he has already been prosecuted and punished inasmuch his gold was already confiscated by the Custom Authorities.

The Court held that confiscation of gold under Sea Customs Act, 1878 does not amount to a “proceeding before the court” and therefore cannot be called as actual “prosecution”. This principle would also be applicable where assets of a public servant were confiscated which were disproportionate to his income.[6]

Leo Roy Frey v Supt., District Jail[7]

The petitioner in this case was found guilty of an offence under Section 107(8), Sea Customs Act, 1878 and was punished accordingly. Later, he was prosecuted under Section 120-B, IPC. He pleaded protection under Article 20(2). The Court here held that under Article 20(2), the person must be being punished for the second time for the same offence. However, here, the person is being punished for two separate offences consecutively and therefore, he cannot plead any protection under Article 20(2) of the Constitution.

Conclusion

In the case of Raja Narayanlal Bansilal v Maneck Phiroz Mistry[8] Ganjendragadkar J held that, “The constitutional right guaranteed by Article 20(2) against double jeopardy can be successfully invoked only where the prior proceeding on which reliance is placed must be of a criminal nature must be instituted or continued before a court of law or a judicial tribunal in accordance with procedure prescribed in the statute which creates the offence and regulates the procedure.”

Considering this, the ambit of double jeopardy is very narrow in India and one can argue that following the precedents of Common law countries, India should widen the protection guaranteed. However, yet there has been no such instances by the court where this has been proposed and the law remains intact by the black letters of law.


[1] Rao Shiva Bahadur Singh v State of Vindhya Prades AIR 1955 SC 446

[2] (2004) 4 SCC 158

[3] S.A. Venkataraman v Union of India, AIR 1954 SC 375

[4] Thomas Dana v State of Punjab AIR 1959 SC 375

[5] AIR 1953 SC 325

[6] Yogendra Kumar Jaiswal v State of Bihar (2016) 3 SCC 183

[7] AIR 1958 SC 119

[8] AIR 1961 SC 29

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