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The doctrine of Double Jeopardy has roots in the Latin maxim “nemo debet bis vexari”, which means that a man should not be put in peril twice for the same offence. This doctrine has been incorporated in the Constitution of India as a Fundamental Right, provided under Article 20(2), which says: “No person shall be prosecuted and punished for the same offence more than once”.
The idea that a person should not be punished more than once for the same offence was present as early as in the time of King Henry II in the maxim “ne bis in idem” which means that no man ought to be punished twice for the same offence. This maxim originated from St Jerome’s commentary in 391 CE on the prophet Nahum: “For God judges not twice for the same offence”.[1] This rule was later expressed in the common pleas autrefois convict and autrefois acquit. The plea of autrefois convict was based on the concept of merger, and by this it was plead that the accused has already been tried for and convicted of the same offence, therefore he may not be further punished for the same offence again. The plea of autrefois acquit was based on the concept of estoppel, and it meant that the accused had already been tried for and acquitted of the same offence, and thus he should not be punished for the same offence as the issue has already been decided.
These two pleas operated in the context of criminal law and were applicable in very few offences[2]. In the recent times, criminal law has seen a lot of modification. The laws related to criminal liability as well as procedures have undergone several changes so as to suit the needs of the time. As a consequence of these changes in criminal law, the law against double jeopardy has also evolved. The double jeopardy rule present in different countries today properly gives effect to its underlying principle: that no person shall be troubled twice for the same offence[3].
An important observation regarding double jeopardy was made in the case of Green v United States[4]:
“The underlying 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 offense [sic], thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty”.
Thus, a law against double jeopardy is needed so that the accused gets a protection in case the State repeatedly tries to convict him/her for the same offence. Also, a law against double jeopardy is needed because the legal system of any country is not infallible, and it may happen that even after being adjudged not guilty, the accused may be made guilty at any subsequent prosecution if he is prosecuted repeatedly for the same offence.
Human Right in respect of Double Jeopardy
The ICCPR, which forms a part of the International Bill of Human Rights, provides for the right against Double Jeopardy. Clause 7 of Article 14 of the ICCPR says that: “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”[5]. Thus, it prohibits the punishment as well as the trial of a person for an offence for which he has already been convicted or acquitted. It is pertinent to mention that this clause provides for both autrefois acquit as well as autrefois convict.
Double Jeopardy in the Indian Constitution
Article 20(2) of the Indian Constitution contains the rule against Double Jeopardy. It runs as follows: “No person shall be prosecuted and punished for the same offence more than once”. This article contains only the principle of autrefois convict and not the principle of autrefois acquit. This means that Article 20(2) can be invoked by an accused in a subsequent prosecution only when he has been punished for the same offence in the former prosecution, so as to prevent himself from being punished twice for the same offence. The Article cannot be invoked by an accused in a subsequent prosecution when he has been acquitted in the former prosecution, so as to prevent himself from unnecessary harassment of litigation.
The scope of Art. 20 (2) has been laid down by means of various case laws. If a prosecution is launched against a person for an offence and he is acquitted, then he can be prosecuted again for the same offence and punished. In Kalawati v. State of Himachal Pradesh[6], a person who was accused of committing murder was tried and acquitted. An appeal was preferred by the state against the acquittal. The accused plead Article 20(2) against the appeal but the court held that it would not be applicable in this case as there was no punishment for the offence at the previous prosecution.
The Supreme Court explained the legal position regarding Article 20(2) in State of Bombay v. S.L. Apte[7]. It said that for it to be barred under Article 20(2), the second prosecution and the consequential punishment should be for the “same offence” as the first one. If the two offences are distinct, then even if the facts in the two complaints are substantially similar, the second prosecution won’t be barred under Article 20(2).
An important requirement for the applicability of Article 20(2) is that the former prosecution should have been launched 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 has been set up for entertaining a departmental or administrative enquiry, and is not required to proceed on legal evidence given on oath, even though it is set up by a statute.
Double Jeopardy in the CrPC
A provision against double jeopardy has also been provided in Section 300 of the Code of Criminal Procedure, 1973. Clause (1) of section 300 runs as: “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”. As we can see from the words of this provision, it provides protection from further prosecution in both situations i.e., when the first prosecution results in an acquittal as well as well as when the first prosecution results in a conviction. Thus, section 300 of CrPC includes within it the concept of autrefois convict as well as the concept of autrefois acquit.
Contradiction between the Constitution and the CrPC
As discussed above, both the Constitution [under Article 20(2)] and the CrPC [under section 300] contain provisions against double jeopardy. However, there is a difference between the two provisions. The constitution provides protection from further prosecution only in cases where the previous prosecution results in conviction, and not when the previous prosecution results in acquittal. It provides for autrefois convict but does not provide for autrefois acquit. On the other hand, the CrPC provides protection from further prosecution in both cases i.e., when the previous prosecution results in conviction as well as when the previous prosecution results in acquittal. It provides for autrefois convict as well as autrefois acquit. So, on the issue of double jeopardy, the Constitution and the CrPC differ from each other as CrPC provides a wider protection while the constitution provides a narrow protection.
While the Constitution of India has a narrow version of the law against double jeopardy, the situation is different in other countries. In many countries, laws against double jeopardy are wider in nature. For e.g., in Europe, all the members of the Council of Europe (which includes nearly all of the European Countries and all the members of the European Union) have signed the European Convention of Human Rights, which provides a protection against double jeopardy. Article 4 of the Seventh Protocol of the convention says:
“No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State.”
Thus, the European Convention allows for autrefois convict as well as autrefois acquit. Similarly, the US constitution provides protection against double jeopardy by its fifth amendment, which says that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb”. This prohibition applies when the former trial results in a conviction as well as when it results in an acquittal. Thus, both autrefois convict and autrefois acquit are present in the US Constitution as well.
Another contradiction between the Constitution of India and the CrPC as regards the law against double jeopardy occurs between Article 20(2) of Constitution and Section 377 of CrPC. Section 377 talks about appeal by the state government against a sentence of a court. It says that in any case of conviction on a trial held by any court other than a High Court, the State Government may direct the Public prosecutor to present an appeal against the sentence on the ground that the sentence is inadequate. Now, the words of Article 20(2) are that: no person shall be prosecuted and punished for the same offence more than once. But, Section 377 of CrPC clearly provides the power to the state government that it can appeal against any sentence provided by a court on the ground that the sentence provided was inadequate. This amounts to the re-prosecution of a person for an offence for which he has already been prosecuted and punished. This is in clear and direct contradiction to Article 20(2) of our constitution.
The above discussion shows that there are some provisions of the CrPC which are in contradiction to the protection against double jeopardy provided under Article 20(2) of our Constitution. Although, between CrPC and the Constitution the latter will prevail, but these contradictory provisions for sure create confusion regarding the true position of the law against double jeopardy in India. Also, considering the fact that the work of the trial courts and police in India is mostly based on CrPC and seldom does any situation arise before them where they have to take the constitution into account, there is a high possibility that the accused has to suffer repeated prosecution because of this contradiction between the Constitution and the CrPC and the resultant confusion regarding the true position of the law against Double Jeopardy in India.
Conclusion
Double jeopardy is an inhumane, degrading and unjust practice which is antithesis to rule of law. India has provided a protection against double jeopardy by introducing it as a Fundamental Right in her Constitution. But, the protection against double jeopardy provided by the Constitution is limited as compared to other countries, as it provides protection only when the accused is convicted in the previous prosecution and not when he is acquitted. Also, as discussed in the paper, there are some provisions in the Code of Criminal Procedure which are in contradiction to the protection provided under the Constitution against double jeopardy. These contradictions between the Constitution and the CrPC tend to create confusion regarding the true position of the protection against double jeopardy in India and they are also detrimental to the interests of the people as the protection is sometimes negated due to the contradictory provisions. These contradictory positions should be addressed and solutions should be found so as to provide a clear and unambiguous remedy against double jeopardy in India.
Author: Rohit Ranjan, NUSRL, Ranchi
[1] M L Friedland, Double Jeopardy 5(Clarendon Press, Oxford,1969)
[2] Id. at 14
[3] O’Sullivan v Rout,[1950] SASR 4
[4] (1957) 355 US 185
[5] International Covenant on Civil and Political Rights, available at: https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx (last visited on February 13,2021).
[6] AIR 1953 SC 546
[7] AIR 1961 SC 578
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