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DOUBLE JEOPARDY

HISTORICAL BACKGROUND OF DOUBLE JEOPARDY


It has been said that the history of double jeopardy is the history of criminal procedure. The rule
is thought to have its origins in the controversy between Henry II and Archbishop Thomas a
Becket that clerks convicted in the ecclesiastical courts were exempt from further punishment in
the King's courts because such further punishment would violate the maxim (nimo bis in
idipsum) no man ought to be punished twice for the same offence. This maxim stemmed from St
Jerome's commentary in AD 391 on the prophet Nahum: For God judges not twice for the same
offence". The rule later found expression in the common pleas autrefois convict and autrefois
acquit.
INTRODUCTION
Fundamental right which is guaranteed under Article 20(2) of Constitution of India incorporates
the principles of autrefois convict or Double jeopardy which means that person must not be
punished twice for the offence. Doctrine against Double Jeopardy embodies in English common
laws maxim nemo debet bis vexari, si constat curice quod sit pro una iti eadem causa (no man
shall be punished twice, if it appears to the court that it is for one and the same cause). It also
follows the audi alterum partem rule which means that no person can be punished for the same
offence more than ones. And if a person is punished twice for the same offence it is termed
Double jeopardy.
DOUBLE JEOPARDY IN INDIAN CONSTITUTION
The basic premise of Double Jeopardy in the Constitution is that when a person has been
convicted of an offence by a competent court, the conviction serves as a bar to any further
criminal proceedings against him for the same offence. The idea is that no one ought to be
punished twice for one and the same offence. If a person is indicted again for the same offence in
a court, he can plead, as a complete defense, his formal acquittal or conviction, or, as it is
technically expressed, he can take the plea of autrefois acquit or autrefois convict.
Article 20 (2) of the Constitution which runs as, "No person shall be prosecuted for the same
offence more than once", contains the rule against Double Jeopardy.
The principle elaborated in the said article was inexistence in India even prior to the
commencement of the Constitution. The ambit of Art. 20(2) is, however, narrower than the
English or the American rule against Double Jeopardy. The Indian provision enunciated only the
principle of autrefois convict and not the principle of autrefois acquit. This basically means that
Art. 20 (2) can be invoked only when there has been prosecution and punishment in the first
instance. However, later on in the project, when the discussion revolves around the concept of
Double Jeopardy as ingrained in the Cr PC, one comes across the fact that the principles of
autrefois acquit has been embedded in Sec. 300 Cr PC. The word prosecution as used in Art. 20
(2) embodies the following three essentials:
There must be a person accused of an offence. The word 'offence' has to be taken in
the sense in which it is used in the General Clauses Act.1897 as meaning "an act or
omission made punishable by any law for the time being in force".
The proceeding or the prosecution should have taken place before a 'court' or 'judicial
tribunal'. The revenue authorities like the sea custom authorities, are not judicial
tribunals.
Likewise proceedings before a tribunal which entertains departmental or
administrative enquiries cannot be considered as proceedings in connection with
prosecution and punishment.

CAN DIFFERENT CHARGE CAN BE LAID FOR THE SAME OFFENCE
Doctrine against Double Jeopardy in Constitution of India, Article 20(2) says that no person
shall be prosecuted and punished for the same offence more than once. 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.
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.
CONCLUSION:
In every legal system there is provision for double jeopardy as no person should be punished
twice for the same offence .Doctrine of double jeopardy is a right given to the accused to save
him from being punished twice for the same offence and he/she can take plea of it. In different,
cases it is interpreted in different manner due to the circumstances of the cases. Our Constitution
also provides such right guaranteed under Fundamental Rights to safeguard the interest of the
accused person. While interpreting the provision judges always keeps a watch that innocent does
not gets punished. Finally, it can be concluded that it is a positive right provided to an individual.








LIST OF CASES:
Roshan Lal & ors v. State of Punjab
Maqubool Hussain Vs Bombay.
S A Venkataraman Vs Union of India
AA Mulla Vs Maharashtra
Union of India .v. P.D. Yadav
Jitendra Panchal v. Intelligence Officer N.C.B
Kalawati & Another V. State of Himachal pradesh
State of Rajasthan v. Hat Singh
Connelly v Director of Public Prosecutions (UK)
State of Bihar v. Murad Ali Khan
State of Bombay v. S.L. Apte
Thomas Dane v. State of Punjab