The article has been written by Mr. Rajdeep Hembram, a 1st year LLM student from University Law College, Hazaribagh, Jharkhand
Introduction
Geoffrey Chaucer employed the word jeopardy in his late 14th-century masterpiece, The Canterbury Tales, but its Middle English form can make it hard to spot: it appears in the phrase “in jupartie” with a meaning very much akin to the word’s meaning in the modern phrase “in jeopardy”—that is, “in danger.”
The concept of double jeopardy has been observed in many countries for a long time. The main origin of the doctrine is from ancient roman law from the principle of “non-bis in idem” which means no twice punishment should be given for the same offense. A trace of double jeopardy was also seen in the case of Connelly v. DPP.
Double jeopardy is a common concept in Criminal law. In Civil law, a similar concept is that of res judicata .
In fact the 72 Signatories and 166 parties to the International convents on civil and political rights recognise, under Article 14 (7): “No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.”
In Article 20[2] of Constitution of India protects against double jeopardy no person shall be prosecuted for the same offense more than once. For the application of double jeopardy, the person must be accused of an offense, the accused person must have faced judicial trial previously, the accused must have been prosecuted or punished for the same offense, offense committed by the accused must be the same. It is one of the most important and integral parts of criminal law. The doctrine also supports the concept of Audi alteram partem which means the other side should be listened to by the law.
What Article 20 of Constitution of India is all about ?
Article 20 is a part of the right to freedom, as it establishes three types of safeguards to accused person.
Article 20 of the Constitution provides for the protection in respect of conviction for offences. No one can be convicted for an act that was not an offence at the time of its commission, and no one can be given punishment greater than what was provided in the law prevalent at the time of its commission. Also, no one can be prosecuted and punished for the same offence more than once and can be forced to give witness against his or her own self.
- a) Article 20(1) talks about Ex-Post facto Law.
Article 20 clause (1) provides that no person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.
It states that a person can neither be punished for any offence which was at the time of commission not charged as an offence nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. Hence termed as Ex-Post facto Law.
- b) Article 20(2) talks about Double Jeopardy
In general, the rule of double jeopardy, a person cannot be tried twice for the same crime based on the same conduct. If a person robs a bank, that individual cannot twice be tried for robbery for the same offense.
- c) Article 20(3) talks about self- discrimination
According to Black’s Law Dictionary, a declaration or an act that occurs during an investigation where a person or witness incriminates themselves either explicitly or implicitly is known as self-incrimination. In simpler words, it is the act of implicating or exposing one’s own self to criminal prosecution.
The Indian Constitution provides immunity to an accused against self-incrimination under Article 20(3) – ‘No person accused of an offence shall be compelled to be a witness against himself’. It is based on the legal maxim “nemo teneteur prodre accussare seipsum”, which means “No man is obliged to be a witness against himself.”
History of Double Jeopardy
The concept of double jeopardy marks its existence from the Latin maxim Nemo Debet bis Vexari. This doctrine states that a man should not be present in court of law twice for the same offence. This maxim however also exist in Section 26 of the General Clause Act and Section 403(1) of CrPC 1898. Section 26 states that where an 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 twice for the same offence.
The doctrine of double jeopardy is now defined under Section 300 of CrPC. The concept however evolved more and took various changes in its form and definition leading to the current position under Indian laws on criminal procedure code and the Constitution of India.
What section 300 of Criminal procedure code 1973 is all about ?
Section 300 of crpc includes six sub section
Person once convicted or acquitted not to be tried for same offence.
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 sub- section (1) of section 221, or for which he might have been convicted under sub- section (2) thereof.
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.
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, or were not known to the Court to have happened, at the time when he was convicted.
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.
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.
Nothing in this section shall affect the provisions of section 26 of the General Clauses Act, 1897 , of section 188 of this Code. Explanation.- The dismissal of a complaint, or the discharge of the accused, is not an acquittal for the purposes of this section. Illustrations
A is tried upon a charge of theft as a servant and acquitted. He cannot afterwards, while the acquittal remains in force, be charged with theft as a servant, or, upon the same facts, with theft simply, or with criminal breach of trust.
A is tried for causing grievous hurt and convicted. The person injured afterwards dies. A may be tried again for culpable homicide.
A is charged before the Court of Session and convicted of the culpable homicide of B. A may not afterwards be tried on the same facts for the murder of B.
A is charged by a Magistrate of the first class with, and convicted by him of, voluntarily causing hurt to B. A may not afterwards be tried for voluntarily causing grievous hurt to B on the same facts, unless the cage comes within sub- section (3) of this section.
A is charged by a Magistrate of the second class with, and convicted by him of, theft of property from the person of B. A may subsequently be charged with, and tried for, robbery on the same facts.
A, B and C are charged by a Magistrate of the first class with, and convicted by him of, robbing D. A, B and C may afterwards be charged with, and tried for, dacoity on the same facts.
Court judgement
Maqbool Hussain v. State of Bombay, 1953
Court ruled that the Sea Customs Authorities don’t seem to be a judicial Tribunal and adjudging by it of the confiscation, increased rate of duty or penalty under the provisions of the Sea Customs Act don’t constitute a judgment or order of a Court or judicial Tribunal necessary for supporting the Plea of Prosecution.
The Court further ruled that it’s clear that so as that the protection of Art. 20 (2) to be invoked by a citizen there must are prosecution and punishment concerning the identical offense committed by the identical person before a Court of law. The very wording of Article 20 of the Constitution and therefore the words used therein would indicate that the proceedings therein contemplated are of the character of criminal proceedings before a Court of law or a judicial Tribunal and also the prosecution during this context would mean an initiation or start of proceedings of a criminal nature before a Court of law or a judicial Tribunal following the procedure prescribed within the statute which creates the offense and controlled the procedure.
Kalawati v. State of Himachal Pradesh,1953
The Supreme Court decided that the appeal is a continuation of the prior trial rather than a new trial for the same offence, and that the appeal against the acquittal judgement would not be subject to Article 20(2) as there was no penalty in the earlier trial. Thus, an appeal against an acquittal order in a murder trial would not violate Article 20(2) of the Constitution.
Conclusion
From the above discussion it is clear that double jeopardy is doctrine which means that no person to be tried twice. It is also a fundamental right which is guaranteed by the Constitution of India. And if looking around Criminal procedure code and Indian Penal Code there also there is section which contains the principle of double jeopardy.
References
jeopardy meaning
Double jeopardy meaning
https://en.wikipedia.org/wiki/Double_jeopardy
Maqbool Hussain v. State of Bombay, 1953
https://lawsisto.com/legalnewsread/OTAzNA==/Case-Analysis-Maqbool-Hussain-vs-The-State-Of-Bombay
Kalawati v. State of Himachal Pradesh,1953
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