DOCTRINE OF DOUBLE JEOPARDY

INTRODUCTION

The doctrine of double jeopardy is old common phenomena. The doctrine plays a vital role for the
protection of integrity of the criminal justice system including precious human rights of the accused
person. The criminal justice system operates on the basis of certain values within which it admits no
compromise. The principle of double jeopardy is one such value protected by the system. It originally
flows from common law of rule “Nemo debet vis vexari” which means that no man should be put twice in
peril for the same offence. The core rule includes the old plea in bar of jurisdiction namely, autrefois
acquit and autrefois convict. Actually, this principle is very essential for criminal from the harassment and
trauma of re-litigation. The existence of the rule is very essential as far as criminal justice system is
concerned irrespective of the nature of the system.

Meaning of Double Jeopardy

Jeopardy refers to the danger of conviction that an accused person is subjected to when he is put to trial
for a criminal offence.

Double Jeopardy means the act of putting a person through a second trial of an offence for which he or
she has already been prosecuted or convicted. It is a procedural defense that prevents an offender from
being tried over again on similar charges followed by a legitimate acquittal or conviction. The concept
has been dealt with by the Article 20(2) of the Indian constitution as well as Section 300 of the criminal
procedure code,1973 and also section 26 of the General clauses Act, 1897.

Application of Doctrine of Double Jeopardy

In order for Double Jeopardy to be applicable, there are certain conditions that need to be fulfilled. The
person needs to have been accused of an offense, there ought to have been proceedings before a court or
tribunal, the court must have punished the person for the offense, and the new charge on the person must
be the same as the old offense for which they had been prosecuted. If all of these conditions are fulfilled
then the defense of double jeopardy can be availed. It is not applicable to situations where distinct
offenses have been committed by the same act of the accused.

It must be noted that Rights under Article 20 and Article 21 of the constitution cannot be suspended
under any circumstance, even during emergency.

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HISTORY OF DOUBLE JEOPARDY

It is a centuries old principle, and it has been rightly observed that the history of double jeopardy is the
history of criminal procedure. The rule is considered to have its origin in the controversy between Henry
II and Archbishop Thomas Becket in 12th century. But the concept continued to change and improve
through many kings and queens in England.

Colonial Massachusetts gave birth to the modern American approach to double jeopardy in its Body of
Liberties published in 1641. Similar to prior pronouncements, the Body of Liberties provided that ‘‘no
man shall be twice sentenced by civil justice for one and the same crime, offense, or trespass.’’ Over one
hundred years later, in 1784, New Hampshire became the first state to protect against double jeopardy in
its Bill of Rights, proclaiming that ‘‘no subject shall be liable to be tried, after an acquittal, for the same
crime or offense.’’

The principle was inexistence in India even prior to the commencement of the Constitution, but the same
has now been given the status of constitutional, rather than a mere statutory, guarantee. Double Jeopardy
is recognized in different countries like U.S., U.K., Canada, Germany, France, Japan etc.

INDIAN LAWS AND DOUBLE JEOPARDY

The protection against double jeopardy is a constitutional as well as a statutory guarantee in India. The
rule against double jeopardy has been recognized as a fundamental right in the Constitution of India.

Article 20(2) of the Constitution of India: No person shall be prosecuted or punished for the same offence
more than once. The Double Jeopardy principle was existed in India prior to the enforcement of the
Constitution of India as well. But it is subjected to certain restrictions. And it is to be noted that Article
20(2) of Constitution of India does not apply to a continuing offence.

Section 300(1) of Criminal Procedure Code, 1973 provides that “a person who has once been tried by a
court of competent jurisdiction for an offence and convicted or acquitted of offence shall, while such
conviction or acquittal remains in force, not to be liable to be tried again for the same offence...”

Section 71 of Indian Penal Code provides that, “where anything which is an offence is made up of parts is
itself an offence, the offender shall not be punished of more than one of such his offences, unless it be so
expressly provided”.

Section 26 of the General Clauses Act states that as to offences punishable under two or more enactments,
where an act or omission constitutes an offence under two or more enactments, then the offender shall be
liable to be prosecuted or punished under either or any of those enactments, but shall not be liable to be
punished twice for the same offence.

Therefore, the protection of double jeopardy is made available to a person when they have been convicted
of the same crime with the same elements of prosecution, again. The Défense provided under Article
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20(2) of the Constitution or Sections 300(1) and 26 of the CRPC and general clauses act respectively
cannot be made available to a person if a person commits different elements of crime based on the same
fact scenarios.

JUDGEMENTS

In Venkataraman v. Union of India, An enquiry was made before the enquiry commissioner on the
appellant under the Public Service Enquiry Act,1960 & as a result, he was dismissed from the service. He
was later on, charged for committed the offence under Indian Penal Code & the Prevention of Corruption
Act. The court held that the proceeding held by the enquiry commissioner was only a mere enquiry & did
not amount to a prosecution for an offence. Hence, the second prosecution did not attract the doctrine of
Double Jeopardy or protection guaranteed under Fundamental Right Article 20 (2).

It is to be noted that Article 20 (2) will applicable only where punishment is for the same offence, In Leo
Roy v. Superintendent District Jail, The Court held: if the offences are distinct the rule of Double
Jeopardy will not apply. Thus, where a person was prosecuted and punished under sea customs act, and
was later on prosecuted under the Indian Penal Code for criminal conspiracy, it was held that second
prosecution was not barred since it was not for the same offence.

In Roshan Lal & ors v. State of Punjab, The accused had disappeared the evidence of two separate
offences under section 330 & section 348 Indian Penal Code. So, it was held by the court that the accused
was liable to be convicted for two separate sentences.

RATIONALE BEHIND THIS DOCTRINE

The principal reasons for protection of the rule are two-fold. Affording protection to the citizens against
the repeated state prosecution is at one hand and preserving the moral integrity of the criminal justice
process on the other.

The four major rationales for the double jeopardy rule. They are;

i) Reducing the risk of wrongful conviction,

ii) Minimizing the distress of the trial process,

iii) Preventing harassment

iv) The need to encourage efficient investigation

The rationales of the principle of double jeopardy made it clear that, it protects some values of the
criminal justice system. It shows concern for the basic human rights of the unfortunate accused persons
who are caught in the web of criminal law.

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OPINION

In my opinion, As Every coin has two sides. Similarly, in rule of double jeopardy there are two sides.

On the Pro side, if it was you who was tried and found innocent because of lack of proof, but you actually
did it, you get a pass and get away with murder. If it was someone else who killed your family member,
then you would consider that a con. However, if it was you on trial and you didn’t do it, but were found
guilty, it is a Con for you. If it was someone else on trial who killed your family member or friend, then it
would be a Pro. It depends on which side you are on if it is a pro or a con.

CONCLUSION

The principle of double jeopardy has been a part of the legal system since man can remember and is an
honest endeavour to protect the non-guilty ones. Doctrine of double jeopardy is a right given to the
accused to save him from being punished twice for the same offence and he can take plea of it. The rule
of double jeopardy cannot be made a straitjacket rule and is hence interpreted differently for different
cases. The rule against double jeopardy is a universally accepted principle for the protection of certain
values within the criminal justice system. It serves many purposes such as preventing the arbitrary actions
of the state against its subject, ensures finality in litigations etc., which are of great importance for the
protection of human rights of the accused persons. It can therefore be considered a positive and just
doctrine based on equity, justice and good conscience.

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