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1|Page

LAW OF CRIMES II: CRPC

64
RESEARCH TOPIC: PRINCIPLE OF DOCTRINE OF
DOUBLE JEOPARDY IN CRPC: ANALYSIS

SUBMITTED BY:
ELSA SHAIKH B.A., LL. B, 2ND YEAR 4TH SEM (I026)
38
K.P. MEHTA, SCHOOL OF LAW, NMIMS (DEEMED TO BE
UNIVERSITY)

SUBMITTED TO:
PROF. AMANDEEP SINGH
38
K.P. MEHTA, SCHOOL OF LAW, NMIMS (DEEMED TO BE
UNIVERSITY)
2|Page

ABSTRACT
4
Double jeopardy is a hotly contested legal principle in India. The concept of double jeopardy
114 40
was developed in law as a safeguard against multiple prosecutions by the state. The rule of
double jeopardy states that a person cannot be tried twice for the same offence based on the
same conduct in countries that uphold this principle. A person can only face one robbery trial
67
for a given incident, such as a bank heist. Furthermore, a person cannot be tried for multiple
crimes based on the same conduct unless the crimes are defined in such a way as to prohibit
10
very different types of actions. The rule against double jeopardy is a common law principle
71
that has been around for centuries and states that a person cannot be tried twice for the same
53
crime. For the sake of the criminal justice system and the fundamental rights of those who
have been wrongfully accused, this rule is absolutely essential. A rule of some sort is crucial
to any criminal justice administration, no matter how it is structured. This means that a single
34
killing cannot give rise to charges of both murder and culpable homicide, but a robbery that
34 15
results in a murder can. A person who has been acquitted of a crime is protected by the
27
double jeopardy clause from being retried by the state for the same offence. In Article 20(2)
80
of Part III of the Indian Constitution, the concept of Double Jeopardy is defined. The concept
106
of double jeopardy is also defined in section 300 of the Criminal Procedure Code of 1973. No
78
person shall be subjected to double punishment, or be tried twice for the same offence.
Individuals who have already been found not guilty or found guilty of a particular crime
14
cannot be found guilty of that crime a second time. In order to safeguard the criminal justice
104
system and the fundamental rights of those who have been wrongfully accused, the principle
33
of double jeopardy was established. Therefore, the purpose of this work is to elaborate on the
concept of double jeopardy and what it means in practise. A quick overview of the concept's
development over time and the current legal status in India. Each and every developed nation
113
has some sort of criminal justice system in place to keep the lawbreakers in check and punish
those who break the rules. The term "criminal justice" refers to the set of policies, procedures,
43
and institutions established by governments for the purpose of maintaining law and order,
punishing criminals, and rehabilitating those who have been convicted of a crime. To be
24
legitimate, however, a criminal justice system must adhere to the letter of the law as laid out
22
in the Constitution. The principles upon which the criminal justice system is based allow for
11
no wiggle room. One such value that the system safeguards is the precept of "double
107
jeopardy." As a matter of procedure, once an accused person has been tried and found guilty
23
or innocent by a court of competent jurisdiction, they cannot be tried again. The paper also
11
delves into some seminal rulings that clarify the concept of double jeopardy in constitutional
and criminal law.
So, the paper explains the fundamentals of India's double jeopardy laws.
7
Keywords: Double Jeopardy, Criminal Justice, Fundamental Rights, Criminal Justice
System, Constitution of India.
3|Page

4
1. INTRODUCTION
The constitutional protection against "double jeopardy" was established to shield defendants
84 39
from the risk of being tried and found guilty of the same crime twice. The underlying idea,
which is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the
2
State should not be allowed to make repeated attempts to convict an individual for an alleged
offence, thereby subjecting him to embarrassment, expense, and ordeal and compelling him
to live in a continuing state of anxiety and insecurity, as well as increasing the possibility that
even though innocent he may be found guilty.
65
The Latin adage "Nemo debet bis vexari" is the progenitor of the concept of double jeopardy.
This proverb means that a person shouldn't have to face danger twice for the same
20
transgression. Article 20 (2) of our Constitution establishes the principle that "no person shall
be prosecuted and punished for the same offence more than once" (or something to that
effect).
73
This is not a new guarantee, however, as the right not to be punished twice for the same
63
offence has long existed in Indian jurisprudence, albeit only in the form of statute. Double
49
jeopardy protections are codified in Section 403 (1) of the Criminal Procedure Code of 1898
and Section 26 of the General Clauses Act. Section 300 of the Criminal Procedure Code (Cr
PC) of 1973 contains a reference to this. To be more precise, Section 300 provides a more
4
thorough explanation of the double jeopardy principle than does Article 20 (2) of the United
States Constitution. There is also a common belief that Article 20 (2) of the Constitution
merely provides parliamentary gloss over a widely held doctrine that is already codified in
the Criminal Procedure Code.
One conservative interpretation of the Constitution's intent is that the existing law regarding
1
the scope of protection against Double Jeopardy in the Criminal Procedure Code of 1898
2
(Section 403) should not be changed. The only thing that article 20(2) does is restate the
provisions of section 300 of the Criminal Procedure Code of 1973. . To be considered
legitimate, a criminal justice system must adhere to a number of legal and constitutional
mandates. The principles upon which the criminal justice system is based allow for no room
for negotiation. Such a value is the double jeopardy principle, which the system strives to
uphold. This safeguard prevents a retrial in the event that the defendant receives a not-guilty
28 10
verdict following a full trial in a court of law. From the Latin phrase "nemo debet bis vexari
pro uno et eadem causa," which means "no person shall be vexed twice for the same cause,"
110
the principle prohibiting double jeopardy was derived. "double jeopardy" refers to a situation
54 70
in which a person faces the possibility of being convicted of the same crime twice. The old
pleas in bar of jurisdiction, autrefois acquit and autrefois convict, are part of this fundamental
28
rule. The purpose of these two doctrines is to spare criminal defendants the ordeal of having
10
their cases retried. A criminal charge that has been adjudicated by a competent court, whether
10
through acquittal or conviction, is final and may be pleaded in bar of further prosecution
when it is for the same offence. It is a fundamental and human right not to be prosecuted
more than once by the state for the same crime.
90
The rights of convicted criminals are addressed in Article 20 of the Indian Constitution.
There are three parts to it:
4|Page

26
1: No one can be found guilty of a crime that didn't exist at the time it was committed, and
the punishment for that crime can't be harsher than it was at the time it was committed.
6
2: A person may not be punished more than once for the same offence.
14
3: The accused may not be compelled to testify against themselves. One has a right not to
incriminate oneself.
Conceptual Analysis: The "danger" of being found guilty during a criminal trial is what gives
rise to the term "jeopardy." In other words, "double jeopardy" means subjecting someone to a
second trial for the same crime after they have already been prosecuted or convicted of it
7
once. Retrial for the same crime after an earlier acquittal or conviction, or receiving
additional punishments for the same crime. Prohibiting double jeopardy is an attempt to
7
prevent the evil of double trial and double conviction, rather than necessarily double
punishment. This means that a person can only be punished once for the same criminal act if
they have already been prosecuted or convicted once. And if the same crime is brought up in
court twice, the defendant can raise the Double Jeopardy defence both times. The double
jeopardy doctrine is based on the following five policy considerations:
7
1. preventing the government from employing its superior resources to wear down and
erroneously convict innocent persons;
2. protecting individuals from the financial, emotional, and social consequences of successive
prosecutions;
3. preserving the finality and integrity of criminal proceedings, which would be compromised
were the state allowed to arbitrarily ignore unsatisfactory outcomes;
4. restricting prosecutorial discretion over the charging process; and
5. eliminating judicial discretion to impose cumulative punishments that the legislature has
not
authorized.
2. RESEARCH OBJECTIVE
99
Whether there exists a line of difference between the provisions of Constitution of India and
Criminal Procedure Code?
89
Whether or not Doctrine of Double Jeopardy satisfies the rights of accused in said
punishment and principles?
Whether Court are justified in announcing the judgement in said cases?
3. MEANING
2
To subject someone to a second trial or punishment for the same offence after they have
previously been tried or punished for it is to put them to double jeopardy. It's a legal
101
protection against being tried twice for the same crime after having either been found not
55
guilty or found guilty. This means that a person who has already been tried and convicted for
2
a given crime cannot be tried again for the same crime. Double jeopardy is defined as "the
 5|Page

fact of being prosecuted or sentenced twice for practically the same offence" by Black's Law
Dictionary.1
2
Article 20(2) of the Indian Constitution, Section 300 of the Criminal Procedure Code, 1973,
41
and Section 26 of the General Clauses Act, 1897 all address the notion. No person shall "be
subject for the same offence to be twice put in risk of life and limb." (Amendment V, Clause
5, United States Constitution) Double jeopardy is forbidden under U.S. law.
102
This provision prohibits multiple convictions for the same offence and prevents a person
from being prosecuted again after an earlier acquittal or conviction.

4. HISTORY
The 12th century squabble between Henry II and Archbishop Thomas Becket is where this
regulation first appeared. There were two sources of law at the time: the royal and the
religious. After the clergyman had already been chastised by the church's legal system, the
king still wanted him to face further punishment in the royal court. Becket said that Nahum
forbade "two judgements," citing St. Jerome's translation of the Hebrew text. He believed that
22
doing so would go against the principle that "no one ought to be punished twice for the same
offence," or the maxim nimo bis in idipsum.
5
As a result of the argument, King's knights killed Becket in 1170, but King Henry pardoned
those responsible for the crime in 1176. King Henry's allowance is often credited with
introducing the concept into English common law. The theory of res judicata, which
originated in Roman law, was adopted into English civil and criminal law in the twelfth
2 2
century. Judgment of acquittal or conviction in a suit brought by an appellant or King during
the thirteenth and part of the fourteenth centuries banned a future suit. In the fifteenth
97
century, a person could not be tried again for the same crime if they had previously been
acquitted at trial or convicted on appeal. Henry VII's law largely ignored the idea, leading to
severe setbacks in the rational evolution of the rule in the sixteenth century. An
31
understanding of the significance of the rule against double jeopardy emerged in the latter
half of the seventeenth century. Lord Coke's teachings played a role, but public discontent
with the rise of anarchy in the early part of the century was also crucial. The concept of
double jeopardy does not appear to have become an established element of common law until
the late seventeenth century. This drastic treatment was commonly used in the 18th century.
Before the eighteenth century, a person who had been exonerated because of a flaw in the
indictment or a discrepancy between the allegations and the evidence faced almost no
safeguards against a retrial.2
36
It is important to remember that the concept of double jeopardy was acknowledged in
5
Continental law. "No person legally acquitted can be a second time arrested or indicted by

142
Garner, B. A. (2008). Black's Law Dictionary.
https://books.google.com/books/about/Black_s_Law_Dictionary.html?id=weU2AQAAIAAJ 8 th Ed. p. 528.
213
Double Jeopardy. By Martin L. Friedland, Faculty of Law, University of Toronto. [Oxford: at the Clarendon
Press. 1969. xxix, 428 and (Index) 11 pp. 90s.net.]: The Cambridge Law Journal.
13
https://www.cambridge.org/core/journals/cambridge-law-journal/article/double-jeopardy-by-martin-l-friedland-
faculty-of-law-university-of-toronto-oxford-at-the-clarendon-press-1969-xxix-428-and-index-11-pp-
90snet/7282FB3A312C56E201DCD1852FA11B8F
6|Page

2
reason of the same act," Article 360 of the Napoleonic "code d'instruction criminelle" (French
Civil Code established under Napoleon I in 1804) said. There were mentions of double
jeopardy in Spanish law from the 1930s. It's worth noting that the idea has been adopted by
both Continental and Common law, with its origins in Canon law. As early as 847 A.D.,
83
church canons had included the adage "not even God judges twice for the same act."
Similarly, the Roman law provided the same safeguards. Indeed, the Bible contains
51
rudimentary ideas of double peril. The Digest of Justinian (a compilation of foundational
51
works in law released between 529 and 534 AD at the behest of Justinian I, Eastern Roman
2
Emperor) contains the earliest known statutory reference to double jeopardy. He who has
been accused of a crime cannot be complained of for the same offence by another person, as
stated in the Justinian Code.
Many English monarchs saw further development and refinement of the notion. As a result,
2
the ideas of Lord Coke and William Blackstone were combined to create the contemporary
2
concept of double jeopardy. In today's era, the concept of double jeopardy applies to all
criminal prosecutions and punishments where an individual's liberty is at risk on several
2
occasions. In its publication of the Body of Liberties in 1641, Colonial Massachusetts gave
46
birth to the contemporary American approach to double jeopardy. No man shall be again
sentenced by civil justice for the same crime, offence, or trespass, as stated previously in the
2
Body of Liberties. Over a century and a half later, in 1784, New Hampshire was the first state
to include a protection against double jeopardy in its Bill of Rights, stating that "no person
shall be liable to be prosecuted, after an acquittal, for the same crime or offence." However, a
121
phrase similar to our present phraseology did not emerge until the Pennsylvania Declaration
25
of Rights in 1790. There is a clear guarantee that "no person shall, for the same offence, be
twice put in risk of life or limb" in the Pennsylvania Declaration of Rights. Double jeopardy
23
is still practised in some form or another in the present day in many nations, including the
United States, Canada, the United Kingdom, and even portions of Asia.
27
The earliest consistent judicial expression of general concept on the rule was found in the
case of Connelly v. Director of Public Prosecutions (UK)3.
54
It was decided that the idea of autrefois only applies if the defendant faced the possibility of
being convicted of the same crime for which he is now being prosecuted. The circumstances
that make up a crime and its specific legal qualities are both included in the definition of
"offence."
32
The doctrine only applies if the act in question is the same as the crime under
2
the
law. In Green v. United States4, the United States Supreme Court ruled that the state should
not be allowed to make multiple attempts to convict an individual for an alleged offence,
thereby subjecting him to embarrassment, expense, and ordeal and compelling him to live in
a continuous state of anxiety and insecurity, as well as increasing the possibility that even
though innocent he may be found guilty.
Even though the principle did not exist in India before the start of the Constitution5, it has
4
been accorded the status of a constitutional guarantee rather than a mere legislative guarantee.
96
The United States, the United Kingdom, Canada, Germany, France, Japan, and a number of

3 5
[1964] AC 1254……
4
355 US 184 (187-188)……
5
Sec. 26 of General Clauses Act and S. 403(1) of the Criminal Procedure Code, 1898; S. 300, Criminal Procedure
Code, 1973…
7|Page

87
other countries all accept the concept of double jeopardy. Furthermore, the topic of double
jeopardy is explored in light of the Constitutions of many countries.
However, when it comes to the definition of "jeopardy," the English and American
viewpoints diverge significantly. English law, which follows the common law tradition,
2
prohibits a second trial for the same offence if the defendant has already been found guilty or
acquitted.
2
In other words, according to the English rule, a trial must be conducted in its entirety. In
25 116
contrast, in a trial before a judge or jury in the United States, the defendant is presumed to be
2
in jeopardy as soon as the jury is sworn in or the prosecution presents its first piece of
evidence. This means that in the American legal system, the concept of peril attaches far
earlier than in the English legal system. Although the idea of double jeopardy appears to be
here to stay, England's double jeopardy protection was recently watered down by the
Criminal Justice Act of 2003. When new and strong evidence emerges, a previous acquittal
can be overturned in England for certain crimes like murder, rape, kidnapping, and
98
manslaughter. This is in contrast to the more stringent version in the United States. As an
added bonus, the statute may be applied retroactively to prosecute anyone who were
exonerated before to 2003. Some high-profile cases in England led to a rethinking of the
system after innocent defendants ultimately admitted their guilt. As public outrage mounted
over what many saw as unfair trials, victims' rights organisations pressured English
lawmakers into softening their stance on double jeopardy.
The Fundamental Rights of India can trace their ancestry back to a wide variety of
44
documents, including the English Bill of Rights, the American Bill of Rights, and the French
26
Declaration of the Rights of Man. Double jeopardy, it has been argued, is a microcosm
17
of the
6
development of criminal law and process. It is believed that the rule stating that clerks
convicted in ecclesiastical courts were exempt from further punishment in the King's courts
22 61
originated from a dispute between Henry II and Archbishop Thomas a Becket, on the grounds
53
that no man ought to be punished twice for the same offence (nimo bis in idipsum). For God
66
does not judge twice for the same offence, a dictum traced back to St. Jerome's exegesis on
the prophet Nahum, written in 391 AD.
4
The common pleas "autrefois convict" and "autrefois acquit" codified the rule in the future.
15
The principle of merging underpinned the plea of autrefois convict, which stated that the
defendant had been tried and convicted of the identical crime previously. "The goal was to
prevent the imposition of a curial sentence as punishment for conduct that had previously
been punished by the imposition of a curial sentence," The plea of autrefois acquit was based
on the doctrine of estoppel, and it was used when a prisoner claimed that he or she had been
tried and found not guilty of the same crime before.

75
6
The State of Queensland;Department of Justice and Attorney-General;Queensland Courts (2023) Publications,
62
Queensland Courts. The State of Queensland; jurisdiction=Queensland. Available at:
https://www.courts.qld.gov.au/about/publications (Accessed: February 6, 2023).
 8|Page

Pleas were used under a system where there were few criminal offences and few ways in
which a single set of circumstances might give birth to many crimes. However, throughout
the past century, criminal law has flourished, criminal procedure has advanced, and new
criminal institutions have been established. As a result, a more robust double jeopardy rule
35
has emerged, one that more accurately implements the rule's core principle—that no
individual shall be plagued twice for the same offence.
69
The first cogent explanation of general concept on the rule was supplied by the court in
Connelly v. Director of Public Prosecutions (UK) [1964] AC 1254.
2
The defendant must have been threatened with conviction for the same offence for which he
is now charged in order for the doctrine of autrefois to apply, as stated in Rule. The term
"offence" encompasses both the acts that give rise to criminal liability and the features
imposed by law that define criminal behaviour. In order for the concept to apply, there must
12
be no difference between the actual and legal nature of the crime. "The basic idea... is that
the State, with all its resources and power, should not be allowed to make repeated attempts
to convict an individual for an alleged offence, thereby subjecting him to humiliation,
expense, and ordeal, and forcing him to live in a perpetual state of anxiety and insecurity, and
increasing the possibility that even though innocent he may be found guilty."
35
This statement sums up the key justifications for preserving the double jeopardy principle.
First and foremost is the fact that a law of this kind is essential for preventing innocent people
from being thrown in jail by mistake. The chance of this happening grows with repeated use
of the (not perfect) trial system.

68
5. INDIAN LAWS ON DOUBLE JEOPARDY
2
The "double jeopardy" clause in Article 20(2) of the Constitution states that no one should be
2
put in danger twice. The founding fathers did not want to change Section 403 of the Code of
36
Criminal Procedure (Old) on "double jeopardy" in this country's criminal code. Article 20(2)
replicates Section 300 (403 old) of the Code of Criminal Procedure. The Code allows retrial
48
of discharged defendants. Only if the accused has been prosecuted and punished for the same
100
offence is a second trial forbidden under Article 20(2). Benefit eligibility requires prosecution
2
and punishment for the same offence. Section 403(1) covers more than Article 20. (2). Article
2
20(2) prohibits retrial for the same offence after conviction and sentence, but Section 403(1)
specifically integrates the principle that gives effect to the pleas (autrefois acquit as well as
autrefois convict).
111 77
Section 300 of the Code of Criminal Procedure should ensure that no one is tried twice for
the same offence.
47
Section 300 of the Procedure Code provides broader protection against a second trial
29
following a conviction than Article 20(2) of the Constitution of India. Section 220(1) of the
105
Code of Criminal Procedure allows a person to be charged and tried for multiple offences in
one transaction.
9|Page

24
Despite the fact that Section 26 of the General Clauses Act allows a second trial after an
2
acquittal, it is not unlawful. Under the General Clauses Act and Article 20(2) of the
Constitution, double penalty is allowed but void.
43
5.1. DOUBLE JEOPARDY‟ IN CRIMINAL PROCEDURE CODE
34
Section 3007 of the Criminal Procedure Code is the section of law that prohibits multiple
85
punishments for the same crime. Both the pleas of autrefois acquit and autrefois convict are
68
incorporated into this provision of the Criminal Procedure Code. These pleas are used to
19
prevent a criminal trial from proceeding on the grounds that the defendant has been charged
with and tried for the same alleged offence before, and was either found not guilty or found
guilty.
1
Paradoxically, Art. 20(2) of the Constitution, which deals with Double Jeopardy, is also
addressed by Sec. 300. Unlike Article 20(2), which solely addresses prior convictions,
56
Section 300 includes acquittal as a bar to criminal trial. Double jeopardy is dealt with in
4
depth throughout Section 300 of the Criminal Procedure Code, which has six subsections and
47
six illustrations. The CrPC actually goes beyond than Article 20 (2) of the Constitution. The
provisions of Section 300 are dissected below.
1
While a prior conviction or acquittal is still in effect, a person may not be tried again for the
same offence, nor on the same facts for any other offence for which a different charge from
1
the one made against him might have been made under Section 300 - Persons once convicted
or acquitted not to be tried for the same offence.
19
As a general rule, this provision means that a person who has already been tried and found
guilty of an offence by a court of competent jurisdiction cannot be tried again for the same
offence.

73
Section 300 CrPC states:
(1) 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.
(2) 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.
(3) 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.
(4) 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.
(5) 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.
(6) Nothing in this section shall affect the provisions of section 26 of the General Clauses Act, 1897 or of
section 188 of this Code.
10 | P a g e

8
b) A person cannot be tried twice for the same conduct if he has been charged under both
subsections (1) and (2) of Section 221. Of course, this only stays true for as long as the
verdict of guilt or innocence is still in effect.
4
Dismissal of a complaint or discharge of the accused are not acquittals for the purposes of
Section 300 of the CrPC.8
1
Ramasharama v. Pinki Sharma9 and E.K. Thankappan v. Union of India10 are just two
examples where this justification has been employed. If a court accidentally applies the
wrong legislation to a given set of facts, the resulting order will be treated as though it had
been issued in accordance with the correct law.
1
In the case of Krishna Sen Gupta v. Manjula Mukherjee,11 the brother of the aggrieved filed a
complaint under Sec. 494 I.P.C. However, the accused was discharged because the complaint
was not filed by the complainant. The Calcutta High Court held that a subsequent complaint
by the complainant for the same offence is not barred by the principle of double jeopardy.
The reason for having such an explanation is that the dismissal of a complaint or the
discharge of the accused is not considered as final decision regarding the innocence of the
accused person.12
59
A Magistrate's ruling of discharge under Section 245(2) in a summons case when the
complaint was not filed should be interpreted as an acquittal under Section256.13
It's important76to note that "tried" under Section 300 (1) does not imply a trial based on merit.
For instance, in the case of Kashigar Ratangar v. State of Gujarat14, the accused was found
not guilty because the public prosecutor withdrew from the prosecution under Sec. 321 Cr
17
PC. If the defendant were to be acquitted in such a manner, he or she could not be tried again
for the same offence based on a new complaint.15
The meaning of the term "tried" is contested. One school of thought holds that the trial does
not officially begin until the accused person appears in court after being summoned.
1
On the other hand, some people believe that once a court has accepted jurisdiction over a
complaint or criminal matter and ordered issue of process for the accused to appear, it has
begun procedures in the type of a trial. To take advantage of the provision in Sec. 300 Cr PC,
1 1
the accused must demonstrate that he has been tried by a competent court, just as it is
essential under Art. 20 (2) to establish the competence of the court which tried the previous
case.

8 1
Explanation to S. 300 Cr PC
9
Ratanlal & Dhirajlal, "The Code ofCriminal Procedure”
10 4
Ratanlal & Dhirajlal, "TheCode of Criminal Procedure", 16th ed., 2002
1188
1997 (1) Crimes 48 (Cal)
12 4
R. V. Kelkar, "Criminal Procedure" 4th ed., 2001, p. 479
13
Rabindra Dhal v. Jairam Sethi, 1982 Cri LJ 2144, 2146 (OriHC)
14 1
1975 Cri LJ 963
15
Shankar Dattatraya Vaze v. Dattatray Sadashiv Tendulkar,AIR 1929 Bom. 408, 409
11 | P a g e

When determining whether a court is "competent" to try a crime, it's important to take into
account not just the
15
court's status or its reputation, but also whether it would have been able
to try the case had certain conditions precedent to the exercise of its jurisdiction been met.16
Re-sentencing for the same offence is also an important part of Sec. 300.
The rule of thumb is that the infractions must be identical. Rather than comparing the claims
made in the two complaints, it is required to examine the components of the two offences to
see if there is sufficient evidence to establish identification.17 When two or more crimes result
from the same set of activities, the defendant cannot be tried for both of them at the same
time under Section 300. Obviously, the legislature's intention is to classify as separate any
provisions that allow for procedures to be initiated under more than one section based on the
same facts, especially if the punishments given by the various sections are different.
1
Therefore, Section 300 does not apply.
Sub-section 2 of Section 300 says: 2) A person who has been acquitted or convicted of a
crime can be tried again, with the permission of the State Government, for a different crime
for which a separate charge could have been brought against him at the first trial, according
to Sub-section 1 of Section 220. If a person has been found not guilty or found guilty of a
1
crime, but could have been charged with another crime but wasn't in the first trial, he
shouldn't be able to be prosecuted again for the other crime as a matter of course, because this
could lead to abuse. As a check against this kind of abuse, Sec. 300 (2) makes it necessary to
get permission from the State Government before bringing a new charge against someone for
4
a different crime that could have been charged separately at the formal trial under Sec. 220.
(1).18
If the charge on the second
4
trial is for a different crime than the first, the trial is not thrown
out. This means that the section allows a trial for a different crime.19
Sub - section (3) of Sec. 300 read as thus
2) A person who was found guilty of a crime because of an action that led to consequences
14
that, along with the action, made up a different crime from the crime for which he was found
guilty can be tried for the other crime if the consequences hadn't happened yet or the court
didn't know that they had. This section only applies to people who have been found guilty
1
and not to people who have been found not guilty. This part is best explained by its example:
"A is tried and found guilty of causing great harm. After that, the person who was hurt dies.
A could be tried again for committing murder.20 This part of the law says that a person can be
tried again for actions that did not come up in the first trial. A conviction does not stop a
person from being tried again for similar crimes that were not brought to the court's attention
74
the first time. The facts or circumstances must point to a different kind of crime for which the
1
first trial could not lead to a conviction. The new evidence must point to a different kind of
crime for which the accused could not have been tried at the first trial. The new facts or
results must have happened since the first trial, when the person was found guilty or not

16 1
State v. Birda, (1966) 1 Cr LJ 166
17 1
State of Bombay v. S. L. Apte, AIR 1961 SC 578
18 1
Dr. K. N.Chandrasekharan Pillai, 4th ed., 2001, p. 481
19 1
Ratanlal &Dhirajlal, "The Code of Criminal Procedure", 16th ed., 2002, rep. 2003,p. 890
20
Illustration (b) to S. 300 Cr PC
12 | P a g e

1
guilty. For, if the new facts or results were known to the court at the time of the first trial, a
second trial for the crime caused by the new facts would not be allowed.21
31
Section 300, subsection (4), says that a person who has been acquitted or convicted of a crime
14
can still be charged with and tried for another crime based on the same actions, if the court
1
that tried him the first time was not qualified to try the new crime. This sub-section basically
16
says that if a court is unable to try an accused person for a crime that is a result of a crime for
which he has already been convicted or acquitted, the prior conviction or acquittal would not
stop the proceedings for the subsequent crime because the court could not have tried the
accused person for that crime. In this subsection, there is an example that shows how this
37
works: "A is charged with and found guilty of stealing property from person B by a
16
magistrate of the second class. A may then be charged with and tried for robbery based on the
same facts."22
8
Subsection (5) of Section 300 says, "A person who has been released under Section 258 may
not be tried again for the same offence without the permission of the court that released him
or of any court that is subordinate to that court." In a summons case that was started without a
14
complaint, Section 258 gives the court the power to stop the case at any time without giving a
verdict. If the proceedings are stopped before the main witness's testimony is recorded, the
79
accused person will be freed. But Section 300(5) says that a person who has already been
91
tried for the same crime cannot be tried again for the same crime without the court's
permission. People think that this rule will help stop people from abusing their power by
going after the same person again.23
103 1
The last of the sub-sections under Section 300 of the Criminal Procedure Code deals with
Section 26 of the General Clauses Act of 1897 and Section 188 of the Criminal Procedure
Code. The sub-section says, 6) Nothing in this section changes the rules of Section 26 of the
General Clauses Act, 1897 (10 of 1897), or Section 188 of this code. Section 26 of the
General Clauses Act, 1897, which was mentioned above, says: "Where an act or omission
constitutes an offence under two or more enactments, the offender shall be liable to be
prosecuted and punished under either or any of those enactments, but shall not be liable to be
punished twice for the same offence."
Even though the above Section 26 talks about "acts and omissions constituting an offence
under two or more enactments," the focus is not on the facts alleged in the two complaints,
but on the ingredients that make up the two offences with which a person is charged. This is
clear from the last part of the section, which says, "shall not be punished twice for the same
offence." If the crimes are different and not the same, then the ban in Section 26 cannot be
put in place.24
When you look at the whole section, you can see that subsection (1) is the only part that talks
1
about the exact rule about Double Jeopardy. The other sections just add to the main section
by talking about different things that could happen when the Double Jeopardy doctrine is put
into practise.

21 1
Ratanlal & Dhirajlal, "The Code of Criminal Procedure",17th ed., 2004, p. 572-573
22
Illustration (e) to S. 300 Cr PC
23
Ratanlal & Dhirajlal, "The Code of Criminal Procedure",17th ed., 2004, p. 573
24 1
Dr. K. N.Chandrasekharan Pillai, 4th ed., 2001, p. 484
13 | P a g e

1
5.2.DOUBLE JEOPARDY IN INDIAN CONSTITUTION
The basic idea behind the Double Jeopardy clause in the Constitution is that if a person has
1
already been found guilty of a crime by a court of law, he or she cannot be tried again for the
same crime. The idea behind this is that no one should be punished twice for the same crime.
115
If a person is charged with the same crime again in court, he can use his formal acquittal or
56
conviction as a full defence. In legal terms, he can take the "autrefois acquit or autrefois
convict" plea.25
58
The rule against Double Jeopardy is found in Article 20 (2), which says, "No person shall be
prosecuted more than once for the same offence." As was said in the introduction to this
project, the article's main idea didn't exist in India before the Constitution.
1
Art. 20(2), on the other hand, doesn't cover as much as the English or American rules against
double jeopardy. The Indian provision only talked about the principle of autrefois convict,
not the principle of autrefois acquit. This means that you can't use Art. 20.2) unless you've
already been charged and punished in the first place.
1
But later in the project, when the idea of "Double Jeopardy" as it is written into the Cr PC is
talked about, it comes up that the principle of "Already Acquitted" is written into Sec. 300 of
the Cr PC.
When used in Art. 20(2), the word "prosecution" means the following three things:
30
There must be someone who is charged with a crime. The word "offence" must be taken in
the way it is used in the General Clauses Act of 1897, which says that it means "any act or
omission that is punishable by any law in force at the time." 26
1
The trial or proceeding should have been held in front of a "court" or "judicial tribunal." Like
the seacustom authorities, the revenue authorities are not courts. 27
1
In the same way, proceedings before a tribunal that hears departmental or administrative
inquiries can't be thought of as proceedings for prosecution and punishment.28
According to the law that makes the offences, the case should have been brought before a
court or other judicial body. So, you can't say that a government worker has been prosecuted
64
when an inquiry is held before a statutory authority, but not to punish the person for cheating
1
or corruption, but to tell the government what disciplinary action should be taken against
them.29 It wouldn't make a difference if the person doing the investigation was required to act
in a fair way. 30

25 1
M. P. Jain, "Indian Constitutional Law", Vol. I, 5th ed.,2003, p. 1238
26
S. A. Venkataraman v. Union of India, AIR 1954 SC 375; V. N.Shukla, "Constitution of India", 10th ed., 2001,
rep. 2004, p. 156
27
Maqbool Hussain v. State of Bombay, AIR 1952 SC 325
28 1
S. A. Venkataraman v. Union of India, AIR 1954 SC 375; V. N.Shukla, "Constitution of India", 10th ed., 2001,
rep. 2004, 1p. 325
29
Thomas Dane v. State of Punjab, AIR 1959 SC 375
30
Leo Roy Frey v. Supdt., Distt. Jail, AIR 1958 SC 119; V. N.Shukla, "Constitution of India", 10th ed., 2001, rep.
2004, p. 157
 14 | P a g e

52
A lot of case law has been used to explain what Art. 20.(2) means. If a person has been
57
charged with a crime but found not guilty, he can be charged with
20
the same crime again and
31
punished. In Kalawati v. State of Himachal Pradesh , a person was tried and found not guilty
of murder. The state wanted to file an appeal against the verdict of not guilty. The accused
couldn't use Article 20:2 as an argument against the appeal. Article 20(2) wouldn't apply
because the crime wasn't punished when it was first tried.
Offenses under both statutes may be possible when identical circumstances are present.
17 1
The Supreme Court ruled in State of Bihar v. Murad Ali Khan32 that for the ban to apply
under Article 20(2), the identical act must constitute an offence.
72 50
The Supreme Court, in Rao Shiv Bahadur singh v. State of V.P33., ruled that only conviction
or punishment under an ex post facto statute is prohibited by article 20, and not the trial
thereof. It's impossible to argue that this is the case that two separate proceedings cannot
result in the same punishment if both occur after the Constitution was ratified. Laws with
retroactive effect should be limited to article 20, notwithstanding the fact that article 20 itself
does not have retroactive implications. The constitutional sovereignty is not undermined by
statutes enacted before or after the document was drafted. In addition, the court ruled that any
109
ex post facto laws enacted after the Constitution would render article 20 null and void. It
45
might be argued that via such retrospective operation, the law becomes the law in force at the
2
time of the start of the Act, and this is true of any ex post facto law if it is to govern acts
performed prior to the actual enactment of the Act. An interpretation that would nullify
Article 20 is obviously unacceptable.
1
Under numerous statutes There is no prohibition on double punishment if there are two
separate offences with elements under two different statutes.
24
According to the Supreme Court's ruling in State of Bombay v. S.L. Apte34, the law reads as
82
follows: "The second prosecution and any sentence imposed under it must be for the
"identical offence" for the bar to take effect. Therefore, the key criteria for the Article to
apply is that the offences must be equivalent. However, the benefit of the suspension cannot
59
be used if the two offences are different, even if the facts alleged in the two complaints are
quite similar. Accordingly, we need to look at the elements of the two offences, rather than
the claims in the two complaints, to determine if there is any likelihood of confusion "
65
Criminal proceedings, as indicated by the term "prosecution" in Article 20 (2), can only take
8
place in a court of law or a judicial tribunal required by law to decide matters in controversy
judicially on evidence and on oath which it must be authorised by law to administer, and not
in a tribunal that entertains a departmental or administrative enquiry, even if set up by a
statute, but not required to proceed on legistlation.
6
The protagonist in the seminal case Maqbool Hussain v. State of Bombay35 was a foreign
national who arrived at an Indian airport. Gold was illegal at the time and he was caught with
86
it. The customs officers took action against him and seized the gold. Then, some time later,

31 1
M.P. Jain, "Indian Constitutional Law",2003, 5th ed., p. 1239
32
AIR 1989 SC 1
33 2
AIR 1953 SC 394
34
AIR 1961 SC 578
35
AIR 1953 SC 325
15 | P a g e

11
he faced criminal charges for violating the Foreign Exchange Regulation Act. The issue was
whether or not Art. 20 allowed for the autrefois acquit plea to be used. The Supreme Court
95
ruled that the appellant had not been "prosecuted" in the proceedings before the customs
1
officials, and that the penalty imposed on him had not been "punished" by a judicial body.
118
Given these facts, the petitioner was not immune from prosecution in a criminal court. The
52 9
Supreme Court made the following observation: "It is clear that in order for a citizen to
invoke the protection of Art. 20 (2), there must have been a prosecution and punishment in
respect to the same offence before a court of law or a tribunal, required by law to decide the
matters in controversy judicially on oath which it must be authorised by law to administer
and not before a tribunal which entertains a department or an administrative enquiry even
1
though set up by a department or an administrative inquiry." The very language of Article 20
and the words used therein suggest that the proceedings envisioned therein are of a criminal
6
nature before a court of law or a judicial tribunal, and prosecution in this context would mean
an initiation or starting of proceedings of a criminal nature before a court of law or a judicial
tribunal in accordance with the procedure prescribed in the statute which creates the offence
and regulated the procedure.36
In the case of Thomas Dane v. State of Punjab37, which was similar to the case of Maqbool
Hussain, the appellant tried to take some money out of India, but the customs officials took it
1
away after following the Sea Customs Act. Later, he was taken to a criminal court and
1
charged with breaking the Foreign Exchange Regulation Act and the Sea Customs Act. He
6
was found guilty of the crime and sentenced to prison. His case was turned down by the High
1
Court of Punjab. The person who wanted to appeal filed a writ petition with the Supreme
6
Court, saying that Article 20(2) stopped him from being prosecuted. The Supreme Court
92
turned down the petition because the authorities who seized the goods and gave fines under
the Sea Customs Act and the FERA were acting in a legal way, but they were not a court.
So, it's clear that something done by a quasi-judicial body doesn't stop a court from
32
prosecuting the same person later. So, immunity from a second prosecution is now only
available when the first case was heard in a court of law.
The same thing will happen when a quasi-judicial body takes more action after a crime has
been "prosecuted and punished."38
6. DOUBLE JEOPARDY AND ISSUE ESTOPPELS
37
As a matter of fact, Section 300 of the Criminal Procedure Code, 1973 does not recognise the
legal doctrine of issue estoppel
120
as a valid basis for preventing a retrial.
21
The Supreme Court
39
made some observations in Pritam Singh v. State of Punjab , citing the Privy Council's
decision in Sambashivam v. Public Prosecutor Federation of Malaya40, in which Lord Dermot
noted that the maxim res judicata pro veritate accipitur is no less applicable to criminal
proceedings than it is to civil proceedings. Issue estoppel's relevance to the application of
29
Section 300, Cr.P.C. is demonstrated by the specific facts of the case involving Pritam Singh.

36
AIR 1953 SC 325
3760
AIR 1959 SC 375
38
Joginder Singh v. Bar Council of India, AIR 1975 Del
39
AIR 1956 SC 415
40
[1950] AC 458
 16 | P a g e

Numerous Supreme Court rulings later, the issue-estoppel principle was upheld. According to
2
the rule, "where an issue has been tried by a competent Court on a previous occasion and the
finding of fact has been reached in favour of the accused, such finding would constitute an
estoppel or res judicata against the prosecution; not as a bar to the trial and conviction of the
accused for different or distinct offences but as precluding the reception of evidence to
disturb the finding of fact when the accused is tried subsequently,"
94
It should be noted, however, that the rule of issue estoppel can only be used if the same
parties are involved in both trials and if the same fact is at issue in both, whether or not it was
112
proven in the first trial.
5
Double jeopardy is distinct from issue estoppel. Where an issue of fact has been tried by a
competent court on a former occasion and a finding has been reached in favour of an accused,
such a finding would constitute an estoppels or res-judicata against the prosecution not as a
bar to the trial and conviction of the accused for a different or distinct offence but as
precluding the reception of evidence to disturb that finding of fact.41
The rule of issue estoppels forbids the state and the accused from relitigating
23
an issue that
42
was previously decided at trial. The rule of issue estoppels forbids a second trial on the
117
same or similar charges if the first trial resulted in the defendant's acquittal and the second
trial would require the court to reach a finding contradictory with that reached at the first
trial.

1
In contrast to the plea of double jeopardy, this rule only prevents evidence from being led to
prove a fact in issue as regards which evidence has already been led and a specific finding
recorded at an earlier trial before a competent clerical authority. Neither the investigation nor
the enquiry nor the trial itself are affected by this rule. That's why this regulation is limited to
issues of admission.
The rule is based on well-established legal rules governing the relitigation of matters
previously decided in court.43
119
The2 Supreme Court distinguished between Issue Estoppel and autrefois acquit 2in its decision
on the case Lalta v. State of U.P44. The Supreme Court has previously decided that "where an
issue of fact has been tried by a competent Court on a previous occasion and a finding of fact
has been reached in favour of the accused, such a finding would constitute an estoppels or
res-judicata" (Pritam Singh v. State of Punjab45, Manipur Administration v. Thokehom Bira
Singh46, and Sambasivam v. Public Prosecutor47.)

41 2
Piara Singh v. The State of Punjab, AIR 1969 SC 961
42
The State of Andhra Pradeh v. Kokkiligada Meeraiah & Another, AIR 1970 SC 771
43
Mahendra P, Eastern Book Company, Lucknow, 2006, pp. 158-159
44
AIR 1970 SC 1381
45
AIR 1956 SC 415
46
AIR 1965 SC 87
47
(1950) AC 458
17 | P a g e

There is no statute to credit with creating the issue estoppels rule. Originating in English, the
63
term has been adopted. In criminal cases, as in civil ones, the rule of "res judicata pro
vertitate accipitur" applies.
7. CONCLUSION
Some of the same findings that were supposed to be investigated after looking at all the
4
different subsections of Sec. 300 of the Cr PC and also Article 20(2) of the Constitution of
India which explain the idea of Double Jeopardy have been found. The discussion above
11
makes it abundantly evident that Section 300 of the CrPC, rather than Article 20 (2) of the
1
Indian Constitution, provides the clearest and most comprehensive articulation of the
Doctrine of Double Jeopardy.
108
While it is evident that the Cr PC is the superior safeguard against being convicted twice for
11
the same offence, it is also clear that people prefer to cite the Constitution when litigating a
case that falls under Double Jeopardy. The entire issue is addressed with a handful of
sentences of the Constitution. While only a few lines long, this has generated extensive
discussion and legal scrutiny. However, the issue of Double Jeopardy receives less discussion
in the Cr PC. Furthermore, this makes sense given that the CrPC provides greater detail on
93
the topic than the Constitution does. No one should ever be punished twice for the same
26
crime, which is why "double jeopardy" is a standard feature of all legal systems. A person
28
accused of a crime has the right to raise the defence of "doctrine of double jeopardy," which
prevents him from being penalised twice for the same act. The context of each individual case
66 81
determines how it is understood. Likewise, our Constitution's protection of the accused's right
to a speedy and public trial is a fundamental right. For the sake of preserving particular
2
principles within the criminal justice system, the rule against double jeopardy is commonly
recognised as a best practise. The protection of human rights of the accused is greatly aided
2
by its numerous functions, such as preventing arbitrary actions of the state against its subject,
ensuring finality in litigations, etc. It's an idea that's centuries old and has stuck around
2
because it works. It follows that a person cannot be convicted twice for the same crime based
33
on the same conduct in countries that adhere to the law of Double Jeopardy. The Double
Jeopardy defence also prohibits a second trial for the same offence after an individual has
been found not guilty first. A verdict of not guilty in one jurisdiction does not necessarily
exclude trial in another.
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National Law School of India University, Bangalore on 2010-09-11

112 <1%
Submitted works

National Law School of India University, Bangalore on 2010-09-19

113 <1%
Submitted works

Queen Mary and Westfield College on 2020-05-14

114 <1%
Submitted works

Symbiosis International School on 2013-09-27

115 <1%
Submitted works

The Judge Advocate General's Legal Center and School on 2010-03-02

116 <1%
Submitted works

Sources overview
 Similarity Report

University of Dundee on 2023-01-05

117 <1%
Submitted works

amu.ac.in
118 <1%
Internet

rajnisinhablog.wordpress.com
119 <1%
Internet

v1.lawgazette.com.sg
120 <1%
Internet

law.cornell.edu
121 <1%
Internet

Sources overview