Double Jeopardy

UNIVERSITY OF PETROLEUM AND ENERGY STUDIES
COLLEGE OF LEGAL STUDIES
DEHRADUN

CONSTITUTIONAL LAW: I
RIGHT AGAINST DOUBLE JEOPARDY

Submitted to: Ms. Kavya Salim Course : BBA LLB [ 2nd sem]

INDEX

Introduction
Double Jeopardy in General
Right against Double Jeopardy in India
History

Scope of article 20(2)
Autrefois convict and Autrefois acquit
Prosecution
Double jeopardy protection in India: A comparison with English law
Conclusion
Bibliography

INTRODUCTION

Double Jeopardy in general

The word ‘double’ stands for twice and the term "Jeopardy" refers to the "danger" of punishment which is ascribed to any individual brought to trial before a court of competent jurisdiction. It is a procedural safeguard, which bars a second trial then an accused person is either convicted or acquitted after a full-fledged trial by a court of competent jurisdiction1 Procedural matters prior to trial do not constitute jeopardy, and that's why it's said that jeopardy attaches, or may be asserted by the defendant, once a jury has been sworn in, or the first witness takes the stand, in any original prosecution resulting in any acquittal or conviction. Jeopardy also attaches to any plea of guilty (treated the same as conviction) even if later withdrawn. Jeopardy does not attach to any proceedings resulting in nolle prosequi, mistrial, hung jury, or termination for any other "legally sufficient" reason.
The ancestry of the doctrine against double jeopardy are to be found in the well-established maxim of the English Law “ Nemo Debet Bis Vexari” – a man shall not be brought into danger for one and the same offence more than once. When a person has been convicted for 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 ought to be punished twice for one and the same offence. If a person is indicated again for the same offence in a court, he can take a plea of autrefois acquit or autrefois convict.
The principal was in existence in India even prior to the commencement of the constitution, but the right against double jeopardy has been given the status of constitutional, rather than a mere statutory, guarantee. Double jeopardy is documented in different countries like United States, United Kingdom, Canada, Germany, France, Japan, India etc. Further, double jeopardy is discussed in accordance with constitutions of different countries.
It is a fundamental principal of the common law that a person cannot be put in jeopardy twice for the same offence. Almost all common law countries incorporate this protection in their laws. While some countries have found it necessary to be included in their constitution, other has incorporated it in their statutes. All agree that the protection has its origin in the English common law of the eighteenth century. Though its origin is thus common, it is found that its reception and implementation have been different.

Right against Double Jeopardy in India
In India, protection against double jeopardy is a Fundamental Right guaranteed under Article 20of the Constitution of India. An article 20(2) state that “No person shall be prosecuted and punished for the same offence more than once” contains the rule against double jeopardy. A person can claim Fundamental Rights against the state imposing some permissible restrictions in the interests of social control. The grounds for imposing these restrictions on Fundamental Rights are expressly mentioned in the Constitution itself and, therefore, these rights can be abridged only to the extent laid down.
Every civilized society maintains a system of criminal justice administration in order to punish the guilty and make the life of common man safe. The criminal justice system operates in accordance with the specific criminal statutes. A valid criminal justice system must satisfy certain legal as well as constitutional requirements. The criminal justice system operates on the basis of certain values within which it admits no compromise. The double jeopardy principle is one such value protected by the system.
Not to be “punished for the same offence more than once”. The right against double jeopardy is a fundamental right of every citizen of India which is assumed in Article 20(2) of the constitution of India enunciates the principal of double jeopardy. The principal is sought to be incorporated into section 300 of the criminal Procedure Code (CrPC) is that no man should be vexed with more than one trail for the offence arising out of same act committed by him. 2 Though article 20(2) of the Indian Constitution embodies a protection against a second trail after a conviction of the same offece, the ambit of the clause is narrower than the protection afford by section 300 of the CrPC. If there is no punishment for the offence as the result of the prosecution, article 20(2) has no application. While the clause embodies the principal of autrefois acquit, section 300 of the CrPC combines both the autrefois acquit or autrefois convict.
Both prosecution and punishment should co- exist for article 20(2) to be operative. A prosecution without punishment would not brig the case within article 20(2). If a person has been prosecuted for an offence but acquitted, then he can be prosecuted for the same offence again and punished.
For example:- If a person was prosecuted under and punished under section 497 IPC, 1860. On appeal, the High Court quashed the trail holding it void ab initio as no sanction for the same had been obtained under the law. Article 20(2) would not bear a second trail for the same offence, as the accused had not been prosecuted and punished for the same. But in the same example if he was prosecuted and punished then article 20(2) will come into effect and saves the person from any second prosecution for the same offence. The roots of the doctrine against double jeopardy are to be found in the well- established maxim of the English Common law, Nemo debet bis Vexari , meaning that a man must not be put twice in peril for the same offence. When a person has been convicted for an offence by a competentcourt, the conviction serves as a bar to any further criminal proceeding 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 indicated again for the same offence in a court, ha can take the plea of autrefois acquit or autrefois convict.

History
There is no unanimity of opinions regarding the origin of double jeopardy principle since it obscure in the mists of time. It is a centuries old principle, and it has been rightly observed that the history of double jeopardy is the history of criminal procedure6. The rule is considered to have its origin in the controversy between Henry II and Archbishop Thomas Becket in 12th century.
At that time two courts of law have existed, the royal and the ecclesiastical. The king wanted the clergy subject to be punished in the royal court even after the ecclesiastical court punished him. Becket relied on St. Jerome’s interpretation of Nahum and declared that the ancient text prohibitted “two judgments”3

. He had viewed that the reputed punishments would violate the maxim nimo bis in idipsum that means no man ought to be punished twice for the same offence. Followed by the dispute, King’s knights murdered Becket in 1170, and despite of this King Henry exempted the accused from further punishment in 1176. This concession given by King Henry is considered as responsible for the introduction of the principle in English common law. In the twelfth century, the res judicata doctrine had been introduced in English civil as well as criminal law due to the influence of teachings of Roman law in England. During the thirteenth and part of the fourteenth centuries, a judgment of acquittal or conviction in a suit brought by an appellant or King barred a future suit. During the fifteenth century, an acquittal or conviction on an appeal after a trial by jury was a bar to a prosecution for the same offence.
The sixteenth century witnessed significant lapses in the rational development of the rule partly due to the statute of Henry VII, by totally disregarding the principle. Further, it was during that period the famous Vaux’s case was decided to the effect that a new charge could be brought even after a meritorious acquittal on a defective indictment. The last half of the seventeenth century was the period of enlightenment regarding the significance of the rule against double jeopardy. Lord Coke’s writings contributed to it partly and of course, the rest was due to the public dissatisfaction against the lawlessness in the first half of the century. It is only by seventeenth the century, the principle of double jeopardy seems to have developed into a settled principle of the common law4.

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SCOPE OF ARTICLE 20(2)
The rule against double jeopardy is a centuries old common law principle, which bars repeated criminal prosecution for the same offence. The rule plays a vital role for the protection of integrity of the criminal justice system including human rights of the accused persons. Under Indian law, when a person has been convicted of an offence by a court of competent jurisdiction, the conviction serves as a bar to any further criminal proceeding against him for the same offence.
The ambit of the Article 20(2) is, however narrower than the English or the American rule against double Jeopardy. The Indian Provisions enunciates only the principals of autrefois convict but not that of autrefois acquit.
Both the prosecution and punishment should co-exist for the Article 20(2) to be operative. A prosecution without punishment would not bring the case within Article 20 (2).
In Leo Roy Frey v. Suptd5, the Court held that the fact that the Collector of Customs acted judicially is not decisive and does not necessarily attract the protection guaranteed by Art. 20(2) and the question still remain whether the petitioners' case comes within the provisions of Art.20 (2). That article protects a person from being "prosecuted and punished for the same offence more than once”. The question has to be answered as to whether the petitioners had previously been prosecuted and punished for the same offence for which they are now being prosecuted before the Additional District Magistrate. The offence of criminal conspiracy was not the subject matter of the proceedings before the Collector of Customs and therefore it cannot be said that the petitioners have already been prosecuted and punished for the "same offence". It is true that the Collector of Customs has used the words “punishment" and "conspiracy", but those words were used in order to bring out that each of the two petitioners was guilty of the offence under s. 167(8) of the Sea Customs Act. The petitioners were not and could never be charged with criminal conspiracy before the Collector of Customs and therefore Art. 20(2) cannot be invoked.

AUTREFOIS CONVICT AND AUTREFOIS ACQUIT

A plea of autrefois convict (Law French for "previously convicted") is one in which the defendant claims to have been previously convicted of the same offence and that he or she therefore cannot be tried for it again. A plea of autrefois convict can be combined with a plea of not guilty.
A plea of autrefois acquit (Law French for "previously acquitted") means the defendant claims to have been previously acquitted of the same offence, on substantially the same evidence, and that he or she therefore cannot be tried for it again. A plea of autrefois acquit can be combined with a plea of not guilty. he rule in Indian Constitution is different. In order to bring the case of a person within the prohibition of Article 20(2) it must have shown that he had been “prosecuted” before court and “punished” by it for the “same offence” for which he is prosecuted again. Accordingly, there can be no constitutional bar to a second prosecution and punishment for the same offence unless the accused had already been punished in the first instance. The Supreme Court said: “If there is no punishment for the offence as a result of the prosecution, sub-clause (2) of the Article20 has any application.
Earliest judgment of the Supreme Court on the subject is in a case Kalawati & another vs. State of HP6, The Apex Court dealt with the matter in the following words; “This argument proceeds on fallacy. Section 201 is not restricted to the case of a person who screens the actual offender; it can be applied even to a person guilty of the main offence, though as a matter of practice a Court will not convict a person both of the main offence and under section 201. The Judicial Commissioner acquitted Kalawati of the offence under section 201 for which the Sessions Judge, only because he thought that the main offence itself, namely, murder, was brought home to her, convicted her. But if “we think for the reasons given above that it would not be safe to convict her of the main offence, the acquittal is no legal impediment to her conviction under section 200”.

PROSECUTION

A limitation read into Article 20(2) is that the former ‘prosecution’ (which indicates that the proceedings are of a criminal nature) must be before 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 authorized by law to administer, and not before a tribunal which entertain a department mental or administrative enquiry, even though set up by a statue, but not required to proceed on legal evidence given on oath.
Article 20(2) is limited to indictment before a criminal court. Therefore, Article 20(2) does not bar proceedings before a civil court for disobedience. The word ‘before a court of law or a judicial tribunal’ though not found especially in the Article, has, nevertheless, been read herein. In S.A Venkataraman v. Union of India7: when a civil agent is dismissed from governmental services on the grounds of misbehavior after a departmental inquiry, his later prosecution on charges which had earlier inquired into and for which h as punished by dismal was not barred by Act. 20(2). The earlier ‘inquiry’ could not be regarded as ‘prosecution’ for a criminal offence and so article 20(2) would not apply. Thus, a departmental inquiry does not bar a letter prosecution and punishment in court. The opinion expressed by the commissioner after the inquiry is not binding. “This is a mere expression of opinion and it lacks both finally and authoritativeness which are the essential tests of a judicial pronouncement”.
In Maqbool Hussain v. state of Bombay8 is a leading case on the point. A person arrived at an Indian airport from abroad. He was found in possession of gold which was against the law at the time. Action was taken against him by the customs authorities and gold was confiscated. Later he was prosecuted before a criminal court the Foreign Exchange Regulation Act. The question was whether the plea of ‘autrefois acquit’ could be raised under art. 20(2). The Supreme Court came to a conclusion that the proceeding before the custom authorities did not constitute ‘prosecution’ of appellant, and the penalty imposed on him did not constitution a ‘punishment’ by a a judicial tribunal. In these circumstances, the trail of the petitioner before the criminal court was not barred.
It is thus established that action taken by quasi- judicial body does not bar a later prosecution before a court. Thus, immunity against a second prosecution has become confined to a situation when the first proceeding has been before a court of law. The same will be the position when after ‘prosecution and punishment’ for an offence, further action is taken by a quasi-judicial body. This is because the word ‘prosecution’ in a art. 20(2) has been interpreted restrictively.
Therefore, art.20(2) does not bar proceeding before a civil court for discobience of an injection along with criminal proceedings, as the former are not in nature of criminal proceedings.

Double jeopardy protection in India: A comparison with English law
In India, the protection against the double jeopardy is a constitutional16 as well as a statutory guarentee.17 The principle has also been recognized under the provision of General Clauses Act.18 The Constitution of India recognize only autrefois convict whereas the Code of Criminal Procedure, 1973 incorporates autrefois acquit as well. The rule against double jeopardy has been recognized as a fundamental right in the Constitution of India. A person can claim fundamental rights against the state and the state can abridge those rights only to the extent laid down. Under Indian law, when a person has been convicted of an offence by a court of competent jurisdiction, the conviction serves as a bar to any further criminal proceeding against him for the same offence. The most important thing to be noted is that, sub-clause (2) of Article 20 has no application unless there is no punishment for the offence in pursuance of a prosecution.
In England, the pleas of autrefois acquit and autrefois convict are understood as they have been understood in the common law.
“The effect of a verdict of acquittal pronounced by a competent court on a lawful charge and after a lawful trial is not completely stated by saying that the person acquitted cannot be tried again for the same offence”. As per the decision of Sambasivam, the effect of a final verdict of acquittal after a lawful trial by a competent court is binding and conclusive in all subsequent proceedings between the parties to the adjudication. The House of Lords affirmed the rule in Humphry’s case and thus the rule came into force in English law. Further, in English law, the rule against double jeopardy is supplemented by the doctrine of abuse of process, laid down by the House of Lords.
The English rule against double jeopardy is very narrow in the sense that it is restricted to an offence identical in law to the offence of which the person was previously acquitted or convicted.
One of the notable difference between the rule against double jeopardy in India and England lies on the prosecution’s right of appeal. Under English law, until the coming into force of Criminal Appeal Act of 1907, neither the prosecution, nor the defense was allowed to appeal. This was mainly due to the fact that an appeal provision would offend the rule against double jeopardy and resulted in difficulties and inconveniences to the defendants. The Act did not provide for the any prosecution appeals instead, the defendant could very well get his conviction vacated by the Court of Appeals on the ground of some errors in the trial. The law operated asymmetrically in the sense that the prosecution could not challenge an acquittal except under very limited situations. At the same time, the defendant has been able to challenge his conviction on appeal as well as post appeal. The rationale underlying behind the rule is that it helps to serve the purposes of double jeopardy protection. However, after coming into force of the Criminal Justice Act, 2003, a new trial is permissible at the instance of finding out “new and compelling piece of evidence”. A retrial is allowed in pursuance of tainted acquittals in serious offences.
Under Indian law, any person convicted of an offence may prefer an appeal in accordance with the law subject to certain restrictions. The notable provision with regard to the power of appeal is that the State has given ample power to prefer an appeal against inadequacy34 in sentencing or acquittal.

CONCLUSION
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. Existence of such a rule is inevitable for the integrity of the criminal justice system itself.
It is a concept originated from “Natural Justice System” for the protection of integrity of the “Criminal Justice System. 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.
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.

BIBLIOGRAPHY
Website:-
http://www.legalservicesindia.com/article/article/double-jeopardy-in-india-1633-1.html// http://www.lawcollegedehradun.com/lawreview/vol4_issue1_nov12/article6.html/ http://lawprojectsforfree.blogspot.in/2010/08/constitution-of-india-double-jeopardy.html
Books:-
M P Jain, Indian Constitutional Law( fifth edition,2009)