This article has been written by Ms. Leezer Kaur, a 3rd-year student at the Army Institute of Law, Mohali.

INTRODUCTION

The term jeopardy means the danger of being convicted when he commits a crime. The term ‘Double Jeopardy’ refers to an act of putting a person on trial for a second time, for the same offense for which he has already been convicted or prosecuted. It is based on the maxim ‘Nemo bis punitur pro eodem delicto’ which means that no one should be punished twice for the same offense. It is recognized in several countries like the USA, Canada, India, and Mexico. In India, it existed even before the coming into force of our Indian Constitution. It is also an internationally accepted principle under the International Covenant on Civil and Political Rights, the European Convention on Human Rights, and the European Union Charter of Fundamental Rights.

In India, a person who is acquitted in the first trial may be tried again and convicted in the subsequent proceedings but in countries like the USA, the person cannot even be tried again for the same offense even if he has been acquitted in the first trial. It is provided under Article 20(2) of the Constitution of India that no one shall be arrested and punished more than once for the same offense. Section 300 of the Criminal Procedure Code, 1973 also provides for this doctrine.

ESSENTIALS FOR APPLICATION OF THIS DOCTRINE

In the case of Thomas Dana v. State of Punjab, the Supreme Court held essential requirements to be fulfilled for the application of this doctrine The person must have been charged with a crime or of an offense.

• The person must have been tried in a court of law or a judicial tribunal.
• The person must have been punished or convicted for the offense.
• The offense in the subsequent proceedings must be the same offense for which he has been earlier prosecuted.

EXCEPTIONS

The following are the conditions where protection under the doctrine of double jeopardy cannot be claimed:

• If the person was acquitted in the first proceedings then Article 20(2) will not apply.
• If the person is convicted for a different offense or a new offense of the same nature then this doctrine will not apply.
• If the second trial is a mere continuation of the first trial then this doctrine will not act as a protection.
• It applies just in criminal cases and not to civil suits.

CASE LAWS

In the case of Venkataraman v. Union of India, an inquiry was made by the investigating authority due to which the person was dismissed from the services and later, he was charged with an offense under IPC, 1860. The court observed that the first inquiry did not amount to prosecution for an offense and therefore, the protection under Article 20(2) of the Constitution of India cannot be claimed.

In the case of Leo Roy v. Superintendent District Jail, the court held that if a person was tried and convicted before under the Sea Customs Act, 1878 then that person can be tried again under the Indian Penal Code, 1860 if the two charges were different from each other.

The court in the case of Mohammad Ali v. Sri Ram Swaroop observed that if each day, a person committed a new offense then he will not be protected under the doctrine of double jeopardy even though the offense was of the same nature.

In the case of Kalawati v. State of HP, the accused murdered her spouse but due to lack of evidence, she was acquitted then an appeal was filed in the higher court where she claimed protection under the doctrine of double jeopardy. The court observed that this appeal was in continuation of the previous proceedings so protection under the doctrine of double jeopardy cannot be claimed and there was no violation of Article 20(2) of the Indian Constitution.

In the case of Rosher Lal v. State of Punjab, the court held that the protection against double jeopardy cannot be claimed as the accused was held liable for two separate offenses under Sections 330 and 348 of the Indian Penal Code, 1860.

In the Union of India v. P.D. Yadav’s case, the person was convicted of court-martial, and also his pension was forfeited. The court observed that in the case of court-martial, a person is tried for an offense of misconduct, and under Regulation 16(a), an order was passed for forfeiting pension which was an entirely different action. It was held that the protection against double jeopardy cannot be claimed.

In the case of the State of Bombay v. S.L. Apte and anr., the court held that the doctrine of double jeopardy under the Constitution of India will operate as a bar on the second prosecution only if it is concerning the same offense.

In the case of State of Mizoram v. Dr. C. Sangnghina, the court observed that when an accused was released due to lack of proper sanction then the subsequent trial will not attract protection under the doctrine of double jeopardy.

In the case of Shrivardhan Mohta v. Union of India, the court held that there was no bar to trial or conviction of an offense under two different enactments. The only restriction is that the person shall not be punished for the same offense twice.

In the case of Union of India v. Purushottam, the court held that if the first court-martial failed then a second court-martial is not barred and it does not even violate the principle of double jeopardy under the Indian Constitution.

In the case of Shivala Bhikhamsar v. Bablir Kumar Jatti and Ors., the court observed that the continued commission of the crime of conspiracy constituted a separate offense each time.

CONCLUSION

The principle of double jeopardy is a well-accepted principle in different countries like the USA, India, Canada, and Mexico. In the USA, it bars even subsequent trials for the same offense whereas, in India, it bars subsequent trial and conviction only if a person is convicted in the first trial for the same offense. It is considered a concept of natural justice. This principle is given under Article 20(2) of the Indian Constitution which provides that no person shall be convicted of the same offense for which he has already been convicted. It applies mainly to criminal cases. However, if the same offense is committed again by the accused then he will not be liable to claim protection under this provision. It is also an internationally accepted principle in various conventions. Also, the principle is having some exceptions as well where it is not applicable. For ex- if the offense is not the same as the previous offense, if he was not convicted in the earlier trial, or when the subsequent trial is a continuation of the previous trial.

REFERENCES

1. Kalawati v. State of HP.
2. Leo Roy v. Superintendent District Jail.
3. Mohammad Ali v. Sri Ram Swaroop.
4. Rosher Lal v. State of Punjab.
5. Shivala Bhikhamsar v. Bablir Kumar Jatti and Ors
6. Shrivardhan Mohta v. Union of India
7. State of Bombay v. S.L. Apte and anr.
8. State of Mizoram v. Dr. C. Sangnghina
9. Thomas Dana v. State of Punjab.
10. Union of India v. P.D. Yadav.
11. Union of India v. Purushottam
12. Venkataraman v. Union of India.

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