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Rajiv Gandhi National University of Law

Punjab, Patiala




CONSTITUTIONAL LAW PROJECT
ON
PROTECTION AGAINST DOUBLE JEOPARDY

Submitted to:
Dr. Anirudh Prasad
Ms. Ruchi Sapahia

Submitted by:
Group XIII
Second Year, B.A. LL.B (Honours)
Nikisha Hada-828 Divya Negi-830
Karuna Singh-832 Tanisha Khimesara-834
Ashutosh Mishra-836 Ravi Amitoz-838




ACKNOWLEDGEMENT

We have been taught the subject of Constitutional Law by our respected teachers, Dr. Anirudh
Prasad and Ms. Ruchi Sapahia. Our respected teachers have helped us all through the
accomplishment of this project. Our sincere thanks to our teachers, who helped us to gather the
various sources which we could give final shape to the topic under study. They not only provided
us a platform to compile but also guided us at all levels.
We, also thank the members of the library staff and computer section for the cooperation in
making available the books and accessing the internet even during their free time.








Group XIII
Second Year, B.A. LL.B (Honours)
Nikisha Hada-828 Divya Negi-830
Karuna Singh-832 Tanisha Khimesara-834
Ashutosh Mishra-836 Ravi Amitoz-838





TABLE OF CONTENTS

1. Introduction..4
2. Double Jeopardy In India.9
3. Double Jeopardy and Cr. PC..18
4. Double Jeopardy in USA and European Countries ...25
5. Practice in other countries......30
6. Conclusion.39


2

1. INTRODUCTION

''The constitutional prohibition against 'double jeopardy' was designed to protect an individual
from being subjected to the hazards of trial and possible conviction more than once for an
alleged offense. . . . The underlying idea, one that is deeply ingrained in at least the Anglo-
American system of jurisprudence, 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, 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.''
1

The term "Jeopardy" refers to the "danger" of punishment which is ascribed to any individual
brought to trial before a court of competent jurisdiction. 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. The concept of double
jeopardy is one of the oldest in Western civilization. In 355 BC Athenian statesmen
Demosthenes said that the "law forbids the same man to be tried twice on the same issue."
The Romans codified this principle in the Digest of Justinian in 533 A. D. The principle also
survived the Dark Ages (400-1066 AD) through the Canon Law and the teachings of early
Christian writers, notwithstanding the deterioration of other Greco-Roman legal traditions.
2

The term "double jeopardy" refers to the "danger" of a second punishment whenever an
individual is brought to trial again for the same crime (or a greater or lesser included crime).
This means that there cannot be a second prosecution for the same criminal act (both in fact
and in law) upon which a first prosecution was based. The accused must be released and the

1
Green v. United States, 355 U.S. 184, 187 -88 (1957). The passage is often approvingly quoted by the Court.
E.g., Crist v. Bretz, 437 U.S. 28, 35 (1978); United States v. DiFrancesco, 449 U.S. 117, 127 - 28 (1980)
2
Jordan M. Barry, Prosecuting the Exonerated: Actual Innocence and the Double Jeopardy Clause, San Diego
Legal Studies Paper No. 11-058 (2005).


3

case dismissed. The challenge is determining what constitutes the "same" crime for double
jeopardy purposes.
3

Some of the simpler examples include:
an acquittal or conviction for murder will bar any prosecution for manslaughter if based on
the same facts (lesser included example)
an acquittal or conviction for larceny-theft will bar any prosecution for robbery if based on
the same facts (greater included example)
an acquittal or conviction for burglary will bar any prosecution for robbery (even if the
burglar woke up the sleeping couple and robbed them) unless there are distinct elements in
one crime that are not included in the other (multiple criminal transaction example)
an acquittal or conviction for battery will not bar any later prosecution for murder if the
victims later dies as a result of injuries (separate and distinct new crime example).
It is noted that the above does not deal with Indian laws in specific. Indian stand on doble
jeopardy shall be dealt in the later stages of the project.
One of the most common reasons for a sentencing enhancement is that the defendant has a
prior conviction. Courts have rejected claims that these recidivism enhancements violate the
prohibition against double jeopardy. They have explained that the Double Jeopardy Clause
does not prohibit the legislature from authorizing multiple punishments for one offense and
that; in any event, the Double Jeopardy Clause does not apply at sentencing. It demonstrates
that the central motivation for the Double Jeopardy Clause is the prohibition against multiple
punishments and those allowing recidivism enhancements undermines this protection.
4

Origin of Double Jeopardy
The roots of the doctrine of Double Jeopardy can be traced to the Latin maxim Nemo debet
bis vexari. The meaning of this maxim is that a man should not be put in peril twice for the
same offence. It has been said that the history of double jeopardy is the history of criminal
procedure2. The rule is thought to have its origins in the controversy between Henry II and

3
Anthony J. Colangelo, Double Jeopardy and Multiple Sovereigns: A Jurisdictional Theory, Washington
University Law Review, Vol. 86, No. 4, 2009
4
Carissa Byrne Hessick & F. Andrew Hessick, Double Jeopardy As A Limit On Punishment, Cornell Law
Review Vol. 97:45.


4

Archbishop Thomas a Becket that clerks convicted in the ecclesiastical courts were exempt
from further punishment in the Kings 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 Jeromes commentary in AD 391 on the prophet Nahum: For
God judges not twice for the same offence.
5
The rule later found expression in the common
pleas autrefois convict and autrefois acquit.
6
Based on the concept of merger, autrefois
convict was a plea that the prisoner had already been tried for and convicted of the same
offence. The object sought to be achieved was avoidance of curial imposition of a sentence in
punishment of conduct which had previously been the subject of curial imposition of a
sentence in punishment.
7
Based in estoppel, autrefois acquit was a plea that the prisoner had
already been tried for and acquitted of the same offence.
8

The concept of human rights has assumed very great global importance, be that an advanced
country, developed nation or underdeveloped country. The universal opinion is uniform
relating to protection of human rights. Sir Hersch Lauterpacht was pleased to observe:
"The protection of human personality and of its fundamental rights is the ultimate purpose of
all law, national and international."
The Universal Declaration of Human Rights, The UN Covenant on Economics, Social and
Cultural Rights, the UN Covenant on Civil and Political Rights, the European Convention on
Human Rights, the American Convention on Human Rights, Rules of Procedure of the
Permanent Arab Commission on Human Rights, are a few which may be referred to in this
context.
Historically, the right against double jeopardy was understood to prohibit both multiple
prosecutions and multiple punishments for the same crime.
9
Over time, this view of double
jeopardy has been eclipsed by a narrower vision of the right concerned primarily with
prohibiting multiple prosecutions.
10


5
Friedland M L, Double Jeopardy (1969) Clarendon Press, Oxford at 5.
6
Laws of Australia Chapter 9 at [293]
7
Travers v Wakeham (1991) 28 FCR 425; 54 A Crim R 205 per Jenkinson J at 211.
8
Laws of Australia Chapter 9 at [293]
9
See North Carolina v. Pearce, 395 U.S. 711, 717 (1969).
10
Das, Tirthankar, A Discussion on Law of Double Jeopardy in India (November 18, 2008).


5

Double Jeopardy and Multiple Punishments
The Double Jeopardy Clause provides that nor shall any person be subject for the same
offence to be twice put in jeopardy of life or limb.
11
Although the text of the Double
Jeopardy Clause does not explicitly protect against multiple punishments, the Supreme Court
has repeatedly recognized that the Clause does provide such protection. The Court has
explained that the Clause consists of three separate constitutional protections: It protects
against a second prosecution for the same offense after acquittal. It protects against a second
prosecution for the same offense after conviction. And it protects against multiple
punishments for the same offense.
12
As explained below, the protection against multiple
punishments has a long, though not entirely consistent, historical pedigree. But despite its
occasional statements that the Double Jeopardy Clause protects against multiple punishments,
the Court has repeatedly failed to place any meaningful limitations on a legislatures ability to
punish an individual multiple times for the same offense. In particular, the Court has
repeatedly allowed the imposition of higher punishment on those offenders who have
previously been convicted of a crime.
Stand of Double Jeopardy in Indian Constitution
The principle was in existence in India even prior to the commencement of the Constitution,
but the same has now been given the status of a constitutional, rather than a mere statutory,
guarantee.
The concept of double jeopardy has been enshrined in the Constitution of India in Article
20(2). Article 20 deals with Protection in respect of conviction for offences and the provision
pertaining to double jeopardy states that No person shall be prosecuted and punished for the
same offence more than once.
13

The word and in the above provision is conjunctive and not disjunctive. Both Prosecution
and Punishment should co-exist for Article 20 (2) to be operative. A prosecution without
punishment would not bring the case within Art 20 (2). If a person has been prosecuted for an
offence but acquitted, then he can be prosecuted for the same offence again and be
punished. In order to claim protection under this provision an accused has to prove he was
firstly prosecuted and then punished for the offence.

11
U.S. CONST. amend. V
12
Twice in Jeopardy, 75 YALE L.J. 262, 26566 (1965)
13
Article 20(2), the Constitution of India.


6

Article 20(2) incorporates the principle of autrefois convict. It does not deal or extend the
protection to autrefois acquit.
However, the right not to be punished more than once for the same offence is not a new
guarantee as it already existed in Indian jurisprudence although merely statutorily. The
guarantee against Double jeopardy could be found in Sec. 26 of the General Clauses Act and
Sec.403 (1) of the Cr PC 1898. Reminiscence of this can be still found under Sec. 300 of the
Cr PC, 1973. In fact Sec. 300 elaborates the principle of double jeopardy much better than
does Article 20 (2) of the Constitution. It is also widely believed that Art. 20 (2) of the
Constitution only provides Parliamentary gloss over a prevalent doctrine already incorporated
within the Cr PC. Section 300 of the Cr PC combines autrefois convict and autrefois acquit. It
debars a second trial on the same facts even for a different crime.
A more conservative view is that the intention of the founding fathers appears to have been
not to disturb the existing law which is to be found in Section 403 of the Cr. PC, 1898,
relating to the extent of protection against Double Jeopardy in the criminal law of this
country. Article 20(2) does nothing more than reproduce in effect the provisions of Section
300 of the Cr. PC. 1973. The Supreme Court has explained the legal position as follows in
APTE Case
14

To operate as a bar the second prosecution and the consequential punishment thereunder
must be for the same offence. The crucial requirement therefore for attracting the Article is
that the offences are the same i.e. they should be identical. If however, the two offences are
distinct, then notwithstanding that the allegations of the facts in the two complaints might be
substantially similar, the benefit of the ban cannot be invoked. It is therefore, necessary to
analyse and compare not the allegation in the two complaints but the ingredients of the two
offences and see whether their identity is made out.
In this case, a person was convicted under section 409 I.P.C., for criminal breach of trust. His
later prosecution on the same facts under section 105 of the Insurance act would not be barred
under Art 20 (2) because the ingredients of the two offences were different. The court
emphasized that the crucial requirement for attracting Art 20(2) is that the offences are the
same i.e. they should be identical. If the two offences are distinct, then, notwithstanding that
the allegations of facts in the two complaints are substantially the same; the benefit of the ban

14
State of Bombay v. S.L. APTE (1961) 3 SCR 107.


7

cannot be invoked. It is therefore necessary to analyse and compare not the allegations in the
two complaints but the ingredients of the two offences and see whether their identity is made
out . Prosecution & Punishment Prosecution has no fixed meaning and is susceptible both
of a wide and a narrow meaning. But as used in Art 20 (2) it embodies the following three
essentials
15
:
a) 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.
b) The proceedings should have been taken before a court or judicial tribunal.
c) Proceedings in connection with prosecution and punishment cannot be considered
as proceedings.
d) The proceedings should have been taken before the judicial tribunal or court in
reference to the law which creates offences. Thus, where an enquiry is held before a
statutory authority against a government servant, not for the purposes of punishing for
the offence of cheating and corruption but to advise the government as to the
disciplinary action to be taken against him, it cannot be said that the person has been
prosecuted. It would make no difference even if the enquiry is required to act
judicially.
16

Punishment in this clause means a judicial penalty which must be awarded by a Criminal
Court. It must be distinguished from a statutory authority and would not include other
penalties such as disciplinary action in the case of public servants.
Preventive Detention is not prosecution and punishment and, therefore, it does not bar
prosecution of the person concerned. It has been held that Article 20(2) does not apply to a
continuing offence. Both Prosecution and Punishment should co-exist for Article 20 (2) to be
operative. A prosecution without punishment would not bring the case within Art 20 (2) . If a

15
Hessick, Carissa Byrne and Hessick, F. Andrew, Double Jeopardy as a Limit on Punishment, Cornell Law
Review, Vol. 97, No. 3, 2012 (March 3, 2011)..
16
Ajibade, Idowu Mopelola, Mainstreaming Human Rights into Anti-Corruption: A Strategy for Protecting
Vulnerable Groups from Double Jeopardy (November 19, 2008).


8

person has been prosecuted for an offence but acquitted, then he can be prosecuted for the
same offence again and punished.
17

The American Constitution enshrines this concept of double jeopardy by V
th
amendment. It is
quite broader than the Indian concept. Under the American law, an accused claiming
protection against double jeopardy only by proving he was prosecuted for the same offence.
He does not need to prove or show he was punished under the same as well. In India,
however, both prosecution and punishment is essential to claim protection against double
jeopardy.





17
Hufnagel, Saskia M. and Krebs, Johannes, Double Jeopardy: A Principle in Jeopardy? Legal Date, ANU
College of Law Research Paper No. 09-28 Vol. 20 No. 3 (July 1, 2008).


9

2. GUARANTEE AGAINST DOUBLE JEOPARDY IN INDIA

The ambit of Doctrine of Double Jeopardy is, however, narrower than the English or the
American rule against double jeopardy. The Indian Constitution enunciates only the principle
of autrefois convict but not that of autrefois acquit. In Britain and the U.S.A., both these rules
operate and a second trial is barred even when the accused has been acquitted at the first trial
for that offence. The principle was in existence in India even prior to the commencement of
the Constitution and the various statutory provisions, in Section 26 of the General Clauses
Act, Section 403(1) of the Code Of Criminal Procedure, 1898 and Section 300 of Code Of
Criminal Procedure, 1973. The same has now been given the status of a constitutional, rather
than a mere statutory, guarantee.
Constitutional Provisions in India
Article 20 (2) Constitution of India: Immunity from double punishment.
Both prosecution and punishment should co-exist for Art 20(2) to be operative. A prosecution
without punishment would not bring the case within Art. 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.
The distinct language of Article 20(2) appears to have been overlooked by the Supreme Court
in Mukhtiar Ahmed Ansari v. State (NCT of Delhi)
18
. In connection with an incident of
kidnapping and extortion, the accused was booked under the Arms Act as well as under
TADA. He was also charged in a kidnapping case along with two others. He was acquitted in
the kidnapping case. The Supreme Court set aside the sentence passed against the accused
under TADA as also under the Arms Act on the ground that "once the accused was acquitted
in kidnap-ping case the doctrine of autrefois acquit gets attracted"
19
.
A person accused of committing a murder was tried and acquitted. The State preferred an
appeal against the acquittal. The accused could not plead Art 20(2). Art. 20(2) would not
apply as there was no punishment for the offence at the earlier prosecution; and an appeal
against an acquittal was in substance a continuation of the prosecution. Art. 20(2) would not
bar a second trial for the same offence, as the accused had not been prosecuted and punished

18
AIR 2005 SC 2804
19
M.P. Jain, Indian Constitutional Law, 1519 (6
th
ed 2010)


10

for that offence
20
. When a trial has for some reason become abortive either because of some
inherent defect or illegality affecting the validity of the trial itself, a second trial is not barred
by Art. 20(2). Where there are two distinct offences made up of different ingredients,
embargo under Art. 20(2) or S. 26 General Clauses Act 1897 has no application though the
offences may have some overlapping features. Enhancement of punishment by the revising
authority does not amount to a see6nd punishment. Preventive detention is not 'prosecution
and punishment' and, therefore, it does not bar prosecution of the person concerned
21
.
Further, Art.20(2) can operate as a bar only when the second prosecution and punishment is
for the identical offence for which the person concerned has al-ready been prosecuted and
punished earlier. The same offence means an offence whose ingredients are the same. If the
offences are distinct, there is no question of the rule as to double jeopardy being applicable
22
.
If one and the same act of a person constitutes two different offences, then the punishment for
one offence does not bar prosecution and punishment for the other offence.
The same set of facts, in some cases, can constitute offences under two different flaws. An
act or omission can amount to and may constitute an offence under the Indian Penal Code and
at the same time may constitute an offence under any other law. As the Supreme Court has
observed in Murad Ali
23
. In order that the prohibition [under Art. 20(2)] is attracted the same
act must constitute an offence under more than one Act. If there are two distinct and separate
offences with different ingredients under two different enactments, a double punishment is
not barred.
The Supreme Court has explained the legal position as follows in Apte
24

"To operate as a bar the second prosecution and the consequential punishment thereunder,
must be for the 'same offence'. The crucial requirement therefore for attracting the Article is
that the offences are the same, i.e., they should be identical. If, however, the two offences are
distinct, then notwith-standing that the allegations of facts in the two complaints might be
substantially similar, the benefit of the ban cannot be invoked. It is, therefore, necessary to

20
Baaji Nath v. State of West Bengal, AIR 1957 SC 494
21
Ghulam Ahmed v. State of Jammu & Kashmir, AIR 1954 J&K 59
22
V.N. Shukla, Constitution of India, 188 (11
th
ed 2011)
23
State of Bihar v. Murad Ali Khan, AIR 1989 SC 1
24
State of Bombay v. S.L. Apte, AIR 1961 SC 578


11

analyze and compare not the allegations in the two complaints but the ingredients of the two
offences and see whether their identity is made out
25
.
In the Leo Roy Frey
26
the question arose whether a crime and the offence of conspiracy to
commit the crime are different offences. The petitioner in the instant case was found guilty of
an offence under S. 107(8), Sea Customs Act, 1878, and was punished accordingly.
Thereafter, prosecution for criminal conspiracy under S. 120B, Penal Code, was brought
against him. The Supreme Court ruled that the second prosecution was not barred since it was
not for the same offence. The Court explained the position thus: The offence of a conspiracy
to commit a crime is an offence separate from the crime itself which is the object of the
conspiracy, because the conspiracy precedes the commission of the crime and is complete
before the crime is attempted or committed
27
. Equally the crime attempted or completed does
not require the element of conspiracy as one of its ingredients. The two are therefore quite
separate offences. Accordingly punishment for one offence does not bar punishment later for
the other.
An employee of the Border Road Organization was court-martialled and found to be guilty of
some of the charges framed against him and was sentenced to rigorous imprisonment for one
year. Thereafter, he was dismissed from service under the relevant Service Rules. The
Supreme Court ruled in Union of India v. Sunil Kumar Sarkar
28
that it did not amount to
double jeopardy under Art.20 (2). The two proceedings operated in two different fields even
though the crime or the misconduct might arise out of the same act. The two proceedings did
not overlap court-martial proceedings dealt with penal aspect of the misconduct while the
proceedings under the Service Rules dealt with the disciplinary aspect of the misconduct.
Article 20(2) does not apply to departmental proceedings. So an employee punished by a
reduction of pay because of rash and negligent driving can subsequently be dismissed from
service upon his conviction by a criminal court in respect of the same incident. Then there is
also the concept of a 'continuing offence' which means that where an act or commission
constituting the offence is continued from day to day, a fresh offence is committed every day
and each offence can be punished separately.

25
State of Bombay v. S.L. Apte, AIR 1961 SC 578
26
AIR 1958 SC 119
27
M.P. Jain, Indian Constitutional Law, 1519 (6
th
ed 2010)
28
AIR 2001 SC 1092


12

A limitation read into Art. 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 entertains a
departmental or administrative enquiry, even though set up by a statute, but not required to
proceed on legal evidence given on oath
29
. The words 'before a court of law or judicial
tribunal', though not found specifically in the Article are taken as an important condition.
When a civil servant is dismissed from government service on the ground of misbehavior
after a departmental inquiry, his later prosecution on the same charges which had been earlier
inquired into and for which he was punished by dismissal would not be barred by Art. 20(2).
The earlier 'inquiry' could not be regarded as 'prosecution' for a criminal offence and so Art.
20(2) would not apply. Thus, a departmental inquiry does not bar a later prosecution and
punishment in a court.
The Court has explained the legal position under Art. 20(2) as follows: To invoke the
protection of Art. 20(2), there must have been both prosecution and punishment in respect of
the same offence. The words "prosecuted and punished" are not to be taken disjunctively, so
as to mean 'prosecuted' or punished
30
. Both the factors must co-exist in order that the
operation of Art. 20(2) may be attracted.
Maqbool Hussain
31
is the leading case on this 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 the gold was confiscated. Later he was
prosecuted before a criminal court under 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 the conclusion that the proceedings before the customs authorities did not
constitute 'prosecution' of the appellant, and the penalty imposed on him did not constitute a
'punishment' by a judicial tribunal.
It is thus established that action taken by a 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

29
M.P. Jain, Indian Constitutional Law, 1520 (6
th
ed 2010)
30
V.N. Shukla, Constitution of India, 186 (11
th
ed 2011)
31
Maqkbool Hussain v. State of Bombay, AIR 1953 SC 325


13

will be the position when after 'prosecution and punishment' for an offence, further action is
taken by a quasi-judicial body
32
. This excludes the vast system of inquiries and punishments
by a number of quasi-judicial bodies which operate at present in the country. This is because
the word 'prosecution' in Art. 20(2) have been interpreted restrictively. Hence, Art. 20(2) bars
a second prosecution only where the accused has been both prosecuted and punished for the
same offence previously but this clause does not bar subsequent trial if the ingredients of the
offences in the previous and the subsequent trials are distinct
33
.
Conditions for the application of Cl. (2):
Firstly there must have been previous proceeding before a Court of law or a judicial tribunal
of competent jurisdiction.
Secondly the person must have been 'prosecuted' in the previous proceeding.
Thirdly the conviction or acquittal in the previous proceeding must be in force at the time of
the second trial
Fourthly the 'offence' which is the subject-matter of the second proceeding must be the
same
34
as that of the first proceeding, for which he was 'prosecuted and punished'.
Fifthly the 'offence' must be an offence as defined in s. 3(38) of the General Clauses Act, that
is to say, 'an act or omission made punishable by any law for the time being in force'. It
follows that the prosecution must be valid and not null and void or abortive.
Lastly the subsequent proceeding must be a fresh proceeding where he is, for the second
time, sought to be 'prosecuted and punished' for the same offence. Hence, the clause has no
application where the subsequent proceeding is a mere continuation of the previous
proceeding, e.g., in the case of an appeal against acquittal, or against conviction. Nor does it
bar a retrial, on appeal, with a direction to reframe the Charges, provided the retrial is
confined to the same offence or offences for which he had been tried at the original trial.
In other words, a second punishment for the same offence does not attract the operation of the
clause unless the second punishment is awarded in afresh proceeding.

32
T.K. Tope, Constitutional Law of India, 255 Eastern Law House, Lucknow
33
Mohinder Singh v. State of Punjab (1998) 7 SCC 390
34
Asstt. Collector of Customs, Bombay v. Malwani AIR 1970 SC 962


14

Also, for the same reason, the clause does not prohibit a provision for two penalties for the
same offence in the same proceeding, without involving a double prosecution and conviction;
or conviction of one charge after acquittal of another, at the same trial
35
.
Analysis of the Article
Prosecuted and Punished:
These words indicate that both the proceedings referred to by the clause must be proceedings
before a Court of law or a judicial tribunal
36
. 'Prosecution' in this context, thus, means 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 regulates the punishment.
Hence, the following proceedings do not constitute prosecution within the meaning of Art.
20(2)
The clause is not applicable unless the person has been both prosecuted and punished. Hence
where the previous prosecution was null and void, e.g., for absence of proper sanction, or for
want of jurisdiction of Court, a fresh trial upon the same facts would not be barred, even
though the accused might have served out a part of his sentence before he could obtain his
acquittal on appeal, on the ground of want of sanction or jurisdiction.
Similarly, where there was no punishment in the previous proceedings, e.g., owing to
dismissal for default of the complaint, a fresh prosecution would not be barred. Where a
conviction is set aside and a retrial ordered, the retrial is a continuation of the same
proceedings and not a second prosecution
37
, or where in the previous proceedings ended in
acquittal.
Punishment:
'Punishment' in this clause means a judicial penalty, awarded by a Criminal Court, as
distinguished from a statutory authority and would not include other penalties, such as
disciplinary action in the case of public servants.
Same offence:

35
State of MP v. Vereeshwar Rao Agnihotri, AIR 1957 SC 592
36
Maqbool Hussain v. State of Bombay, 1953 SCR 730
37
Mithailal v. State AIR 1954 All. 689


15

The previous conviction for one offence does not bar a subsequent trial and conviction for a
separate and distinct offence even though the two offences arise out of the same facts, and the
allegations in the two complaints are identical. Distinct offences may be created by different
statutes or by different provisions of the same statute
38
.
What is necessary to determine whether two offences are distinct is to see, whether their
ingredients are not identical. The following have been held to be distinct offences
(a) Possession of firearms without licence and dacoity.
(b) Offence under s. 353, I.P.C. and under s. 26(1) (b), Bihar Sales Tax Act.
(c) An offence and the conspiracy to commit that offence.
(d) An offence under s. 409 of the I.P.C., and an offence under s. 105 of the Indian
Insurance Act; or an offence under s. 5(2) of the Prevention of Corruption Act.
(e) The offence of making an unauthorized construction without obtaining permission
of the Municipal authority and the offence of breach of the Building Rules in making
the construction
39
.
(f) Offences committed on different dates in case of a continuing offence.
More than once:
There is no double punishment to attract the operation of the present clause unless there is a
fresh judicial proceeding for the same offence.
40

Hence, the clause is not attracted, firstly where the sentence provides for imprisonment in
default of payment of the fine awarded. Secondly where the sentence is for fine and also for
recovery of arrears of sales tax as if it was a fine. Thirdly where a person has served out the
sentence but has not paid the penal amount which he was ordered to pay
41
. Lastly where an
army officer has been dismissed from service and also deprived of his pension or gratuity.

38
V.N. Shukla, Constitution of India, 190 (11
th
ed 2011)
39
Ibid
40
Weezul Khan v. State of Bihar AIR 1967 Pat. 368
41
Kripal Singh V. Collecter 1994(3) SCC 52


16

Statutory Provisions in India
The Doctrine of Double Jeopardy has been recognised and incorporated in a few legislations
in India and has been given the status of fundamental right under Article 20(2) of the
constitution of India. The legislation in which the doctrine has been incorporated are: Section
300 of the Code of Criminal Procedure; Section 40 of Indian Evidence Act, 1872, Section 71
of Indian Penal Code, 1860 and Section 26 of the General Clauses Act,1897. All of these
provisions operate in different way aiming towards the same principle.
Protection under General Clauses Act: Section 26
The Section 26 of the general clauses act, 1897 embodies the well settled principle in
criminal jurisprudence that where an act an offender constituted an offence under two or
more enactments, the offence remains liable to be prosecuted and punished under any one of
these enactments.
Section 26 in fact contemplates those cases where the acts alleged fall within the definition of
offences under the two enactments. There is no bar under this Section to a second trial but the
only bar is against two punishments.
In state of Madhya Pradesh v. Veereshwar Rao Agnihotri
42
, it was held by the supreme court
that what is prohibited under this Section is punishment for the same set of facts under two
Sections but not the trial of accused on alternate changes, where acquittal on one charge is no
bar to conviction on the other and in case of identical definition of the offences, the court can
select the law for choice to convict the accused.
Protection under I ndian evidence act, 1872: Section 40
Section 40 of the Indian Evidence Act, 1872 lays down that when the question is whether a
court ought to take cognizance of a suit or hold a criminal trial, and judgement, order or
decree prevents the court from taking cognizance of that suit or holding that trial, the
existence of the judgement, order or decree is relevant fact. It is the existence of the
judgement that is relevant under this Section, the reason for the acquittal or the evidence
recorded in the earlier trial is not relevant.
43
Judgement interprets in previous suit to prove the

42
AIR, 1957 SC 592
43
Ali Husain v. State, 1975 Cr. L.J. 345 (AII)


17

factum of previous suit is admissible. However, the Section which is not necessary for
disposal of the suit is not admissible.
Protection under I ndian Penal Code, 1860: Section 71
The objective of this Section is to confine punishment within reasonable limits. It is based on
the rule that where the intention was to commit an offence, the commission of which involves
the perpetration of acts, by themselves punishable. The offender shall not be punished for
them separately, as his object was to commit one crime and not many. Moreover in such a
case, every criminal act however , subservient to the main design, where penal these would
be no end to punishment, and the most trivial acts might thus be magnified into offences, the
punishment of which might be wholly disproportionate to the nature and gravity of the act
accomplished.
Section 71 of the Indian Penal Code, 1860 deals with three specific cases:
Firstly where a number of acts are committed all of which are offences both collectively and
individually, in which case the offender may be punished for any one of them or all
collectively, but he cannot be punished for all of the acts severally.
Secondly where of such several offences, they not only individually constitute separate
offences but also constitute a different offence, when two or more of them are combined, then
the offender can only be punished for any one of such offences, and not both.
Thirdly, where an act is penal under two or more Acts, the offender cannot be punished under
each of them, for otherwise he would be punished several over for the same acts.









18

3. DOUBLE JEOPARDY AND Cr. PC
In the Cr PC, the provision to prevent punishment for the same offence twice can be found
under Sec. 300
44
. This section of the CrPC incorporates the pleas of autrefois acquit and
autrefois convict. These pleas are taken as a bar to criminal trial on the ground that the
accused person had been once already charged and tried for the same alleged offence and was
either acquitted or convicted.
Interestingly, Sec. 300 also takes care of an anomaly present in Art. 20(2) of the Constitution
which deals with Double Jeopardy. Sec. 300 incorporates acquittal also as bar to criminal trial
whereas Art. 20(2) deals with only previous conviction. Sec. 300 of the Cr PC has six sub-
sections and six illustrations which expansively deal with the principle of Double Jeopardy.
In fact, the CrPC is much more comprehensive than Art. 20 (2) of the Constitution. Here is an
analysis of the provisions of Sec. 300.
Under Sec. 300 - Persons once convicted or acquitted not to be tried for the same offence,
1) A person who has once been tried for 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.

44
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. Explanation The dismissal of a complaint, or the discharge of the accused, is not an
acquittal for the purposes of this section.


19


What this section basically means: a) If a person is convicted or acquitted by a court of
competent jurisdiction, he cannot be tried for the same offence. b) If charge has been made
against a person under sub - section (1) of Sec. 221 and the facts are the same and he has
been charged under sub -section (2) of Sec. 221 then he cannot be tried on the same facts. Of
course this holds true only till the conviction or acquittal remains in force.
For the purpose of Sec. 300 of the CrPC, the term "acquittal" has been explained in negative
terms by saying that the dismissal of a complaint or the discharge of the accused is not
acquittal.
45
This explanation has been repeatedly used in various cases example
Ramasharama v. Pinki Sharma
46
and E.K. Thankappan v. Union of India.
47

In the case of Krishna Sen Gupta v. Manjula Mukherjee,
48
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.
49

However, if a court applies a wrong provision of law erroneously, it would be deemed that
the order in effect, was one under the provisions of law applicable to the facts of the case.
Where in a summons case, the Magistrate passed an order of discharge under Sec. 245 (2)
owing to the absence of the complaint, the order of discharge under Sec. 245 (2) must be read
as an order of acquittal passed under Sec. 256.
50

Also, the word "tried" in Sec. 300 (1) does not mean tried on merit. Example, in the case of
Kashigar Ratangar v. State of Gujarat,
51
withdrawal from the prosecution by the public
prosecutor under Sec. 321 Cr PC resulted in an acquittal of the accused even though the

45
Explanation to S. 300 Cr PC
46
1989 Cr LJ 2153 (Pat.); Ratanlal & Dhirajlal, "The Code ofCriminal Procedure", 16th ed.,2002, rep. 2003, p.
887
47
1989 (3) Crimes 656, 663 (Ker.); Ratanlal & Dhirajlal, "TheCode of Criminal Procedure", 16th ed., 2002, rep.
2003, p. 88721 1997 (1) Crimes 48 (Cal); Ratanlal & Dhirajlal, "The Codeof Criminal Procedure", 16th ed., 2002,
rep. 2003, p. 887
48
1997 (1) Crimes 48 (Cal); Ratanlal & Dhirajlal, "The Codeof Criminal Procedure", 16th ed., 2002, rep. 2003, p.
887
49
R. V. Kelkar, "Criminal Procedure", rev. Dr. K. N.Chandrasekharan Pillai, 4th ed., 2001, p. 479
50
Rabindra Dhal v. Jairam Sethi, 1982 Cri LJ 2144, 2146 (OriHC); R. V. Kelkar, "Criminal Procedure", rev. Dr. K.
N. ChandrasekharanPillai, 4th ed., 2001, p. 479
51
1975 Cri LJ 963


20

accused was not tried on merit. Such an acquittal would bar the trial of the accused on the
same facts on a subsequent complaint.
52

There are two views regarding the word "tried". One view states that the accused must be
present in court on being summoned, before it can be said that the trial has commenced. The
other view is that once the court has taken cognizance of a complaint or a criminal case and
has ordered issue of process for the accused to appear, it has taken steps towards the trial and
what it has done is proceedings in the nature of a trial. Just as it is necessary under Art 20 (2)
to establish the competence of the court which tried the earlier case, in order to get benefit of
the rule contained in Sec. 300 Cr PC it is imperative that the accused establishes that he has
been tried by a competent court.
However, the expression "competent court" to try an offence should not be narrowly
interpreted as to involve merely the consideration of the status or the character of the court,
but in determining the competence it must also be considered whether the court though
otherwise qualified to try the case, could not have done so because certain conditions
precedent for the exercise of the jurisdiction had not been fulfilled.
53

Another crucial element of Sec. 300 is re-punishment for the same offence. The basic rule is
that the offences should be same i.e. identical. It is therefore necessary to analyze and
compare not the allegations in the two complaints but the ingredients of the two offences and
see whether their identity is made out.
54
Sec. 300 bars the trial for same offences and not
different offences which may result from the commission or omission of the same set of acts.
Where the legislature provides that on the same facts proceedings could be taken under two
different sections and the penalties provided under those sections are also different, it is
obviously intended to treat the two sections as distinct. In such a case Sec. 300 cannot apply.
Sub - section 2 of Sec. 300 reads as thus,
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 Sec.
220. Where a person has been acquitted or convicted of any offence and a separate
charge for another offence could have been made but was not made against him in the
former trial, he should not be liable to be again prosecuted for the other offence as a
matter of course because this might lend itself to abuse.

52
Shankar Dattatraya Vaze v. Dattatray Sadashiv Tendulkar,AIR 1929 Bom. 408, 409
53
State v. Birda, (1966) 1 Cr LJ 166, 168; R. V. Kelkar,"Criminal Procedure", rev. Dr. K. N. Chandrasekharan
Pillai, 4th ed. 2001, p. 480
54
State of Bombay v. S. L. Apte, AIR 1961 SC 578


21

To provide a check against such abuse, Sec. 300 (2) makes it obligatory to obtain the consent
of the State Government before a new prosecution is launched against any person for any
distinct offence for which a separate charge might have been made against him at the formal
trial under Sec. 220 (1).
55

Where the charge on the second trial is for a distinct offence the trial is not barred i.e. the
section permits a trial for a distinct offence.
56
Sub - section (3) of Sec. 300 read as thus,
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 he was convicted. This section is applicable only in cases of conviction and
not in cases where there has been an acquittal. This section is best explained by its
illustration: A is tried for causing grievous hurt and convicted. The person injured
afterwards dies. A may be tried again for culpable homicide.
57
This section allows
the re-trial of an accused for acts which did not come to light in front of the court of
prior conviction. A conviction simply in itself does not bar re-trial of the accused for
similar offences which were not bought to the notice of the courts. The facts or the
circumstances must be such as to indicate a different kind of offence of which there
could be no conviction at the first trial. The new evidence must constitute a different
kind of offence for which the accused could not have been tried at the first trial. The
new facts or consequences must have occurred since the conviction or acquittal at the
first trial. For, if the new facts or consequences were known to the court at the time of
the first trial, a second trial for the offence constituted by the new facts would be
barred.
58

Sub -section (4) of Sec. 300 states,
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. This sub - section basically states that if any court is

55
R. V. Kelkar, "Criminal Procedure", rev. Dr. K. N.Chandrasekharan Pillai, 4th ed., 2001, p. 481
56
Kunjilal v. State of M.P., AIR 1955 SC 280; Ratanlal &Dhirajlal, "The Code of Criminal Procedure", 16th ed.,
2002, rep. 2003,p. 890
57
Illustration (b) to S. 300 Cr PC
58
Ratanlal & Dhirajlal, "The Code of Criminal Procedure",17th ed., 2004, p. 572-573


22

incompetent to try an accused of any offence which is the consequence of an offence
for which he has already been convicted or acquitted, the prior acquittal or conviction
would not act as a bar to the proceedings for the consequential offence as the court
could not have possibly tried the accused of that offence. An illustration given with
this sub section explains the fact further thus: A is charged by a magistrate of the
second class with, and convicted by him of, theft of property form person B. A may
subsequently be charged with, and tried for, robbery on the samefacts.
59


Sub - section (5) of Sec. 300 states,
5) A person discharged under Sec. 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. In a summons case instituted
otherwise than upon a complaint the court has got power under Sec. 258 to stop the
proceedings at any stage without pronouncing the judgment. If the stoppage of
proceedings is made before the recording of the evidence of the principal witness, it
shall have the effect of discharge of the accused person. However, according to
Sec.300 (5) such accused person cannot be tried again for the same offence without
the consent of the concerned court. It is believed that this provision will be helpful as
a safeguard against the abuse of power of fresh prosecution in such cases.
60

The last sub -section in the series of sub - section under Sec. 300 CrPC deals with Sec. 26 of
the General Clauses Act, 1897 and Sec. 188 of the CrPC.
The sub -section reads,
6) Nothing in this section shall affect the provisions of Sec. 26 of the General Clauses
Act, 1897 (10 of 1897) or of Sec. 188 of this code. Section 26 of the General Clauses
Act, 1897 referred to above states that: Where an act or omission constitutes an
offence under two or more enactments, then 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.
Although, the above Sec. 26 refers to "acts and omissions constituting an offence under two
or more enactments", the emphasis is not on the facts alleged in the two complaints, but
rather on the ingredients which constitute the two offences with which a person is charged.

59
Illustration (e) to S. 300 Cr PC
60
Ratanlal & Dhirajlal, "The Code of Criminal Procedure",17th ed., 2004, p. 573


23

This is obvious from the concluding portion of the section which refers to "shall not be liable
to be punished twice for the same offence". If the offences are not the same but are distinct,
the ban imposed by Sec. 26 cannot be imposed.
61
The basic point that comes across from
analyzing the entire section is that only sub-section (1) deals with the exact provision relating
to Double Jeopardy. The other sections are merely supplementing the main sub-section as to
the various contingencies which may arise in the actual implementation of the doctrine of
Double Jeopardy.
After analyzing all the various sub-sections of Sec. 300 of the Cr PC and also Article 20(2) of
the Constitution of India which enunciate the doctrine of Double Jeopardy, we have come
across some of the same conclusions which were purported to be researched as mentioned in
the introduction of this project. It is clear from what has been discussed that the Doctrine of
Double Jeopardy has been more clearly elaborated in the CrPC (Section 300) rather than
Article 20 (2) of the Indian Constitution. However, what also comes across is that people
prefer to refer to the Constitution when pleading a case which is covered by Double Jeopardy
than the Cr PC which clearly provides a better safe guard form being convicted twice for the
same offence. The Constitution deals with the entire matter in a few lines. However, these
few lines have been debated about a lot and the kind of judicial scrutiny that has been
received by this is huge. On the same hand there is less debate about Double Jeopardy in the
Cr PC. This is also expected form the fact that the CrPC is more comprehensive about the
whole issue when compared to the Constitution.


61
R. V. Kelkar, "Criminal Procedure", rev. Dr. K. N.Chandrasekharan Pillai, 4th ed., 2001, p. 484


24

4. PROTECTION AGAINST DOUBLE JEOPARDY IN UNITED STATES OF AMERICA
AND EUROPEAN COUNTRIES
Status in America
The concept of Double Jeopardy was introduced in The United States of America in its Fifth
Amendment of its Constitution. Amendment V (1791) of the US Constitution states that,
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a
presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in
the militia, when in actual service in time of war or public danger; nor shall any person be subject for
the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal
case to be a witness against himself, nor be deprived of life, liberty, or property, without due process
of law; nor shall private property be taken for public use, without just compensation.
62

The words nor shall any person be subject for the same offense to be twice put in jeopardy of life or
limb clearly states the idea of double jeopardy in its amendment. The clause as in general is meant to
limit the courts or the government in repeated prosecution for the same offense, as a means of
harassment or oppression. It is also in accord with the common law concept of res judicata, which
means prevention of courts from relegating issues and claims that have already been the subject of a
final judgment.
There are three essential protections included in double jeopardy: protection from being
retried for the same crime after an acquittal; protection from retrial after a conviction; and
protection from being punished multiple times for the same offense.
63
This law is generally
referred to as a legal technicality, because it allows defendants a defense that does not address
whether the crime was actually committed. For example, were police to uncover new
evidence conclusively proving the guilt of someone previously acquitted, there is little they
can do because the defendant may not be tried again.
There are some cases which are dealing with Double Jeopardy. In Benton v Maryland
64
the
Supreme Court of United Nations stated that the fundamental nature of the guarantee against

62
M.V. Pylee. Constitutions of the World. 4
th
Edition, Volume 2.New Delhi Universal Law Publishing Co.,
India
pg2224, 2225. print
63
Retrieved from http://www.danieljensenlaw.com/articles/double-jeopardy/ at 1:00 p.m. on 1 April, 2013
64
395 U.S. 784 (1969)


25

the double jeopardy can be hardly doubted. In Fong Foo v. United States
65
, as the Fifth
Amendment was applied only to the federal government at that time, the Supreme Court
ruled that in the double jeopardy clause Jeopardy attaches in a jury trial once the jury and
alternates are impaneled and sworn in. In a non-jury trial, jeopardy attaches once the first
evidence is put on, which occurs when the first witness is sworn plies to the states as well,
through incorporation by the Fourteenth Amendment (1868).In explanation of U.S. law,
jeopardy does not attach until the jury is sworn in a jury trial or until the first witness is sworn
in a bench trial. Actions before jeopardy attaches will not bar a subsequent prosecution. For
example, if a judge dismisses a prosecution at a preliminary hearing for lack of evidence, this
determination does not bar the government from initiating new charges for the same offense,
since jeopardy will not have attached at that point. Also under U.S. law, conviction or
acquittal in one state or nation does not always bar trial for the same criminal act in another.
66

The fourteenth amendment exemplified the shift in authority from the states to the national
government and became the constitutional basis for much federal legislation and litigation in
future years.
67
The clause applies in juvenile court proceedings which are formally civil.
Breed v. Jones.
68

Also in the case of Green v United States
69
it was stated that 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, 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. The
above quoted lines captures the essential arguments for maintaining the double jeopardy rule.
Foremost among these is that such a rule is necessary to protect against wrongful convictions.
Repeated exposure to the trial process increases such a risk.
70


65
369 U.S. 141 (1962).
66
Retrieved from http://www.britannica.com/EBchecked/topic/169973/double-jeopardy at 2:00 pm on 2
nd
April
4, 2013
67
Melvin Urofsky, Paul Finkelman. A March of Liberty: A Constitutional history of United States.2
nd
edition,
Volume 1.New York:Oxford University Press,2002. Pg 444. Print.
68
421 U.S. 519 (1975)
69
355 US 185 at 187-88 (1957)
70
Roberts P, Double Jeopardy Law Reform: A Criminal Justice Commentary in Modern Law Review
(2002) 65 (3) 393 at 397


26

Comparison Between I ndia
71
& U.S. Constitution
72

The ambit of Art 20 (2)
73
is however, narrower than the American rule against double
jeopardy. Art 20 (2) may be invoked only when there has been prosecution and punishment in
the first instance. In the American system the Constitutional bar applies to the second
prosecution irrespective of the result of the first prosecution. The constitutional safeguard can
be pleaded to the second prosecution whether the accused was acquitted or convicted in the
first prosecution , the Common law Principle is also the same whereas the rule in Indian
Constitution is different . In order to bring the case of a person within the prohibition of
Article 20 ( 2 ) it must be shown that he had been prosecuted before a court and punished
by it for the same offence for which he is prosecuted again. In India the, protection against
double jeopardy is a Fundamental Right guaranteed under Right to Freedom in the
Constitution of India whereas in U.S constitution it is enshrined in US Constitution, Fifth
Amendment.
In U.S Constitution ,in order for the rule of double jeopardy to apply, the subsequent trial
must be based on the exact same facts as the former trial. The trials must be for the same
incidence of the crime. If a defendant is prosecuted for a crime in which he committed
multiple incidences of the same crime, each incidence can be tried separately without double
jeopardy whereas in Indian Constitution the previous conviction for one offence (e.g. hurt )
does not bar a subsequent trial and conviction for a separate and distinct offence (say affray)
even though the two offences arise out of the same facts , and the allegations in the two
complaints are identical . Distinct offences may be created by different statutes or by
different provision of the same statutes. Under the U.S Constitution the protection against
Double jeopardy is given for the second prosecution of the same offence irrespective of
whether an accused was acquitted or convicted in the first trial whereas in article 20 (2) of the
Indian Constitution the protection against double punishment is given only when the accused
has not only been prosecuted but also punished and is sought to be prosecuted second time
for the same offence. Lastly in the U.S Constitution , The double jeopardy principle was

71
M.P Jain. Indian Constitutional Law. India: LexisNexis Butterworths Wadhwa Nagpur, 2010. Print
72
David. S. Rudstein. Double Jeopardy: A Reference Guide to the United States Constitution. Westport: Praeger
Publishers,2004. Print
73
20. Protection in respect of conviction for offences clause(2) no person shall be prosecuted and punished for
the same offence more than once.



27

explicitly incorporated into the Constitution when the Bill of Rights was ratified in 1791.
whereas in India the Principle of Double Jeopardy was in existence in India even prior to the
commencement of the Constitution and is enacted under in S. 26 of the General Clauses Act
74

and S. 403 (1) of Cr. P.C
75
, S. 300 Cr. P.C.
76

Status in Europe
All members of the Council of Europe (which includes nearly all European countries and all
members of the European Union) have signed the European Convention of Human Rights
77
,
which protects against double jeopardy. The Seventh Protocol, Article Four, 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.
This specific optional protocol has been ratified by all EU states except six (namely Belgium,
Germany, Netherlands, Portugal, Spain and the United Kingdom). Those member states may
still have the provision in their respective constitutions providing a prohibition against double
jeopardy.
In many European countries the prosecution may appeal an acquittal to a higher court (similar
to the provisions of Canadian law) - this is not counted as double jeopardy but as a
continuation of the same trial. This is allowed by the European Convention of Human Rights
- note the word finally in the above quote.
78

Issues relating to the prohibition on double jeopardy can arise in the context of the risk of
people being prosecuted again on return to their home state for the offence of which they
have already been convicted and for which they have already served a sentence in the
expelling state. However, Article 4 of Protocol No. 7 only applies to repeated prosecution in

74
1897
75
1898
76
1973
77
The Convention for the Protection of Human Rights and Fundamental Freedoms, also known as the
European Convention on Human Rights (ECHR), was adopted under the auspices of the Council of
Europe[1] in 1950 to protect human rights and fundamental freedoms.
78
K.L. Bhatia. Legal Language and Legal Literature. Delhi: Universal Law Publishing Co. Pvt. Ltd, 2010. Pg
188. Print


28

the same state and not in different states. In case of Amrollahi v. Denmark
79
the Court
declared inadmissible a case where an individual alleged that prosecution for the crime for
which he had already been punished would await him if expelled.
80

In European countries also many cases arose. These are mainly establish that administrative
proceedings which penalize the same conduct in issue in a criminal trial will offend the
prohibition, notwithstanding the differing designations and the allegedly different purpose of
the proceedings. In Gradinger v. Austria
81
, the applicant, who killed a cyclist while driving,
was convicted of causing death by negligence rather than the more serious crime of being
under influence of alcohol since his level was below the prescribed limit. The administrative
authorities proceeded to fine him for driving under the influence of drink on the basis of a
medical report which deduced that in fact he was over the limit. Since both the decisions
were based on the same conduct, there was a violation of Article 4 of Protocol No. 7
82



79
Application no.56811/00, judgment of 11 July 2002.
80
Asylum and the European Convention on Human Rights. Council of Europe Publishing, 2010 Pg 100.
81
Retrieved frm http://echr.ketse.com/doc/15963.90-en-19951023/ at 2:00 pm on 1
st
April 2013
82
Karen Reid.A Practitioner's Guide to the European Convention on Human Rights. 4
th
Edition, Sweet and
Maxwell Publisher . 2012



29

5.PRACTICE IN OTHER COUNTRIES

It is important to consider the current practices in double jeopardy of overseas jurisdictions
because the trend of the international community impacts on the future direction of the
approach to double jeopardy and the exceptions that can be allowed. The following overview
shows the practices in three major countries of the world.
Practice in Australia
The principle of double jeopardy exists under Australias common law.
83
In certain
States, it also exists under statute.
84
In 2007 the Council of Australian Governments (COAG)
agreed that jurisdictions would implement the recommendations of a working group dealing
with double jeopardy reform.
85

R v. Caroll
The leading High Court decision on double jeopardy in Australia is R v. Carroll.
86
Carroll
was convicted by a jury of abducting, sexually abusing and strangling a 17- month-old baby,
Deidre Kennedy. The baby was found dead on the roof of a toilet block in Ipswich. The baby
had bite marks to its legs and a pubic hair was found on her body. At trial, Carroll gave
evidence and denied knowledge of the crime. The jury convicted him.
He appealed the conviction and the Court of Appeal held that the forensic evidence, linking
the crime to Carroll, was unsafe and unsatisfactory. He was acquitted. The rule against
double jeopardy prevented the Director of Public Prosecutions (DPP) from pursuing a re-trial.
Subsequently, advancements in DNA technology and forensic odontology showed that there
was very little doubt that Carroll was responsible for the death. In an attempt to circumvent
the rule against double jeopardy, the DPP successfully prosecuted Carroll for perjury on the
basis of his false testimony at the original trial. An application to stay the perjury
proceedings, as an abuse of process, failed. This conviction was subsequently quashed by the
Court of Appeal. The DPP was granted special leave to appeal to the High Court of Australia.
However, the High Court held that the subsequent perjury proceedings were an abuse of the

83
R v. Carroll, (2002) HCA 55.
84
Criminal Code Act (Queensland), 16-17 (1899).
85
Wayne Martin, Current Issues in Criminal Justice, Speech at Rotary District Conference, March 21, 2009.
86
Supra at 1.


30

court process and that they undermined the rule against double jeopardy by challenging the
finality of the acquittal for murder.
87
Carrolls conviction for perjury remained quashed. The
majority of the High Court explained that the perjury proceedings were vexatious or
oppressive in the sense necessary to constitute an abuse of process; in substance there was an
attempt to re-litigate the earlier prosecution.
88
The High Court also took the view that
allowing an exception to double jeopardy, because of new evidence, lacked cogency.
89
The
public outcry and community dissatisfaction over the decision in Carroll led to a substantial
review of double jeopardy, particularly in Queensland and New South Wales.
Queensland Provisions and New South Wales Provisions
The rule against double jeopardy is found in section 17 of the Criminal Code Act 1899 (QLD)
and in section 156 of the Criminal Procedure Act 1986 (NSW). These provisions confirm the
common law rule against double jeopardy, most notably espoused by the decision in Carroll.
In 2003, New South Wales passed the Criminal Appeal Amendment (Double Jeopardy) Act
2003 (NSW). Four years later in 2007, Queensland passed the Criminal Code (Double
Jeopardy) Act 2007 (QLD). The exceptions to double jeopardy, provided for in the respective
Acts, are very similar. Both states now allow for an acquitted person to be re-tried through an
application to the Court of Appeal. The following safeguards exist:
Only one re-trial will be granted;
The offence must be a very serious offence (i.e. having a head sentence of 25 years or
life);
The DPP must consent to re-investigations;
The DPP must apply to the Court of Appeal for a re-trial;
The evidence must be fresh (not reasonably available at the time of the original trial);
The evidence must be compelling (likely to result in a conviction when put to a reasonably
instructed jury);
Presumption in favor of bail for the person being re-tried;
Certain restrictions on the publication of information about the person being re-tried; and
The re-trial must be in the interests of justice.

87
R v. Carroll, (2002), 118 HCA 55, per McHugh, J.
88
Id. 114 per McHugh J, Gaudron and Gummow JJ.
89
Id.


31

The Queensland and New South Wales provisions comply with article 14(7) of the ICCPR on
the basis that the original acquittals are not final.
90

Proposed Victorian Reform
Victorias Attorney General, Robert Clarke has recently advocated the reform of double
jeopardy.
91
This change has been publicly supported by the father of one of the victims of the
Walsh Street police killings. If Victoria introduces exceptions to double jeopardy, in a similar
way to Queensland and New South Wales, it will be interesting to see how the Supreme
Court resolves a challenge to the legislation on the basis that it the reform is not rights
complaint. In Australia, only Victoria and the Australian Capital Territory (ACT) currently
have a human rights charter. Section 26 of the Charter of Human Rights and Responsibilities
Act 2006 (VIC) states that A person must not be tried or punished more than once for an
offence in respect of which he or she has already been finally convicted or acquitted in
accordance with law.
92
This provision is a reproduction of article 14(7) of the ICCPR.
Under section 7 of the Victorian Charter, all rights are capable of limitation. If there was a
Charter challenge in Victoria, the easy solution for the court would be to follow the Human
Rights Committees interpretation of article 14(7). This would involve them hanging their hat
on the word finally and interpreting it in such a way that allows for an appeal against an
acquittal because the matter is not finally litigated. It is hoped by this writer that if the
reform is passed and a Charter challenge made, the Supreme Court will constructively engage
in a consideration of section 7(2) factors in determining whether the balance between
competing rights and interests is met. This will provide significant authority for double
jeopardy reform in the context of Australias human rights jurisprudence.
South Australia
On the 10th July 2008 the South Australian Parliament passed the Criminal Law
Consolidation (Double Jeopardy) Amendment Act 2008. It is applicable for crimes ranging
from trafficking in a commercial quantity of controlled drugs and aggravated robbery to more
serious crimes such as manslaughter and murder. Retrials will be allowed where there has

90
K. Burton, Double Jeopardy, The Queensland Reform, Proctor, 21-22, (2008).
91
Double Jeopardy, The Age, 6, (2011).
92
Charter of Human Rights and Responsibilities Act (Victoria), 26, (2006).


32

been a conviction for an administration of justice offence relating to the original trial or
where there is fresh and compelling evidence. The law has been introduced retrospectively.
93

Tasmania
On 19 August 2008, amendments were introduced in Tasmania to allow retrial in serious
cases if there is fresh and compelling evidence.
94

Western Australia
On 8 September 2011, amendments were introduced in the Western Australia Parliament to
reform the state's double jeopardy laws. The proposed amendments would allow a retrial if
new and compelling evidence was found. It would apply to serious offences where the
penalty was life imprisonment or imprisonment for 14 years or more. Acquittal because of
tainting (threatening of witnesses, jury tampering, or perjury) would also allow retrial.
95

Practice in Russia
Twelve years ago, the Russian legal system began using juries as part of an effort to move
away from the former Soviet legal system of the 1990s. On paper, it drew widespread
admiration from government leaders. But scholars and human rights activists say the system
still reflects the values of the old communist-era courts, in which a presumption of guilt
prevailed. To them, the jury system's failure to take root, and recent proposals to scale it
back, are part of a broader rollback of democratic practices and institutions. But, in practice,
juries' decisions rarely stand, leaving the Russian trial by jury an empty check on the State.
96

Russian law does not prohibit double jeopardy, and prosecutors as well as defendants can
appeal verdicts. Jury acquittals are almost always appealed. Although the Supreme Court's
power to overturn jury verdicts is supposedly curtailed to a limited number of reasons, the

93
Criminal Law Consolidation (Double Jeopardy) Amendment Act, (2008).
94
Double Jeopardy Law Reform. Tasmanian Government Media Releases,
http://www.media.tas.gov.au/print.php?id=24539.
95
Nicole Cox & Phil Hickey, Attorney General Christian Porter Welcomes Double Jeopardy Law
Reform, Perth Now, Sunday Times, September 08, 2011, http://www.perthnow.com.au/news/westernaustralia/
attorney-general-christian-porter-welcomes-double-jeopardy-law-reform/story-e6frg13u-
1226132121880.
96
Mark Godsey, Russia: Empty Acquittals And Rampant Double Jeopardy,
http://lawprofessors.typepad.com/crimprof_blog/2005/11/russia_empty_ac.html.


33

Court has broadly interpreted its power. For example, Vladislav Kozachenko, who was
recently acquitted by a jury for the third time for a double murder, had his first jury acquittal
in September 2004 overturned because the judge had not notified a relative of one of the
victims of his right to make a final statement to the jury, which voted 11 to 1 to acquit. In
Russia, a jury verdict is decided by a majority vote of the panel. The second acquittal, in
April, was overturned because of errors in the judge's charge to the jury, which had been
unanimous in finding Kozachenko not guilty. After the 8-to-4 vote in favor of the defendant
in November 2005, Kalikanova, the lead prosecutor, said she had discovered that some jurors
on the panel had ''concealed certain information about themselves, criminal records, and
previous service in the police." The discovery of such information after a trial is frequently
invoked in appeals to the Supreme Court.
97
This shows how double jeopardy is rampantly
used in Russia.
Until Jul y 2002, individuals in Russia who were found innocent of criminal charges could be
(and often were) held in jail and retried on the same charges. This practice of double
jeopardy, was then forbidden by Article 405 of Russias new criminal procedure code.
Prosecutors and police but complained about their inability to retry suspects on the same
charges, and they sought to get around the ban by bringing ostensibly different (but in reality
much the same) charges against those who had been acquitted. Although higher courts tended
to discourage blatant attempts to circumvent Article 405, the protection against double
jeopardy was difficult to enforce thus.
98


The Russian Government in 2008 submitted an amendment to the Criminal Procedure Code
that allowed for retrials in criminal cases that end in acquittals. According to proposed
changes, acquittals could be overturned in cases where proper procedures were not followed
in the selection of the judge, lawyers or jury in a trial or where either side in the trial had been
prevented from exercising its rights. The Bill was to amend Article 405 of the code, which
prevented someone tried and acquitted from facing double jeopardy. The amendment was the
result of a decision by the Constitutional Court in May 2005 that declared Article 405

97
Peter Finn, In Russias Courts Double Jeopardy Can Be The Rule, Washington Post, November 1, 2005.
98
Mark Kramer, Rights And Restraints In Russias Criminal Justice System, PONARS Policy Memo 289, 5,
(April 09, 2013), http://www.ponarseurasia.org/sites/default/files/policy-memos-pdf/pm_0289.pdf.


34

unconstitutional.
99
In that case, the Courts view was that Article 405 of the Code of Criminal
Procedure of the Russian Federation was unconstitutional to the extent that it did not allow
material violations that led to incorrect resolution of the case to be eliminated during the
review of a judicial decision by way of supervision on the appeal of the victim or
representative thereof or on the submission of a procurator. The Court added that material
violations were those violations that fell under the criteria provided for by Article 4(2) of
Protocol No.7 to the Convention on the Protection of Human Rights and Fundamental
Freedoms.
100

Practice in Japan
Japanese law does ban double jeopardy. The Constitution of Japan states in Article 39 that,
No person shall be held criminally liable for an act which was lawful at the time it was
committed, or of which he has been acquitted, nor shall he be placed in double jeopardy.
However, the Supreme Court decided on September 27, 1950 that trials in District Court,
Higher Court and the Supreme Court for the same offence constitute a single
jeopardy.
101
Thus, there exists no double jeopardy where the prosecutor appeals the acquittal
at the District Court. There have been many cases where this case law was challenged, but the
Court has constantly upheld the decision. It was not even considered as an issue in the recent
reform efforts. Thus, only the acquittal in the Supreme Court is the final acquittal which
prevents any further retrial. This process sometimes takes decades. The above is not
considered a violation of the Constitution. Because of Supreme Court precedent, this process
is all considered part of a single proceeding.
102

Two recent high-profile exonerations have reignited calls by defense lawyers to require the
full disclosure of evidence, and to let verdicts handed down by lay judges stand.
The lawyers for Nepalese Govinda Prasad Mainali, who on November 7 was finally
exonerated in absentia of a 1997 robbery-murder, went a step further and slammed the
Japanese practice of allowing prosecutors to appeal acquittals something which the other

99
Double Jeopardy Rule Amended In Russia, Legalbrief Today,
http://www.legalbrief.co.za/article.php?story=20080124081506406 .
100
David Sloss, The Role of Domestic Courts In Treaty Enforcement, 416, Cambridge University Press, (2009).
101
Kana Sasakura, Double Jeopardy And The Japanese Law, http://wrongfulconvictionsblog.org/tag/double-
jeopardy/.
102
Wikipedia, Double Jeopardy, http://en.wikipedia.org/wiki/Double_jeopardy#Japan (last updated April 09,
2013).


35

countries ban as double jeopardy. The Tokyo District Court acquitted Mainali in April 2000,
but prosecutors appealed, and the Tokyo High Court using the same evidence sentenced him
to life for killing a woman employed by Tokyo Electric Power Co. who was moonlighting as
a prostitute. Mainali served 15 years in prison before being cleared in a retrial based on
evidence prosecutors had from the get-go but didnt present. That evidence was crucial
because it indicated the woman was killed by someone other than Mainali. Mainali was freed
in June and promptly deported.
103


Then there was the case of ex-Democratic Party of Japan powerbroker Ichiro Ozawa, who
was put through mandatory indictment for allegedly conspiring to falsify his political funds
records. Prosecutors declined to press charges due to lack of evidence, but special public
inquest panels set up to scrutinize the maverick politician decided twice to have him forcibly
indicted. Lawyers appointed by the court to act as the prosecutors tried Ozawa before the
Tokyo District Court and lost. They then appealed to the high court, which on Nov. 12 upheld
his acquittal. Ozawas counsel criticized the court-appointed lawyers for appealing the ruling,
which resulted in the acquitted mans name being dragged through the press for several
months as a perpetual defendant.
104

The prosecutors right to appeal has been taken for granted in Japan and is not a tradition
likely to be easily ended. The Supreme Court has said in its decision on a lay judge trial that
appellate courts must provide concrete reasons to support the overturning of an acquittal. This
landmark decision though, may slowly help change the attitude of prosecutors and courts
toward appeals filed by the state.
105

Double jeopardy has actually been the subject of debate for a long time, because the criminal
procedure law stipulates that both prosecutors and defendants have the right to appeal. And
Article 39 of the Constitution effectively states that no one should be held criminally liable
for an act that was lawful at the time it was committed, or for which an acquittal has been
declared, and no one should be placed in double jeopardy.
Defense lawyers have challenged the constitutionality of appeals filed by prosecutors, but in
1950 and thereafter, the Supreme Court has handed down judgments that upheld that right.

103
Setsuko Kamiya, Double Jeopardy Practice Scrutinized,
http://wrongfulconvictionsblog.org/2012/12/06/double-jeopardy-and-the-japanese-law/#more-8061.
104
Ibid.
105
Ibid.


36

The top court has basically reckoned that one jeopardy continues until a case is finalized. It
means that as long as the system allows three levels of trials, its a matter of course for
prosecutors to appeal not-guilty verdicts as well as cases where the prison term is much
shorter than what prosecution demanded, unless they conclude that winning a reversal is
unlikely.
106


The main problem that is faced in the Japanese legal system is that the judges are so used to
handing down convictions, sometimes when they face cases where they think there are
doubts, those judges dont know whether an acquittal is merited. The judges around them
share the same mindset, and no one recommends an acquittal, so they end up convicting.
Even if a judge who has doubts hands down a not-guilty verdict and that case ends up being
overturned by a higher court, the judge regrets handing down the acquittal based on doubts,
and instead stops handing down acquittals. This is one problem that stems from allowing
double jeopardy.
The February 13 decision by the Supreme Court regarding how high courts should handle
appeals though, may reduce the reversal of acquittals.
107
In that case, the top court overturned
a high court reversal and upheld a lay judge acquittal in a case involving a man indicted for
allegedly smuggling stimulants into Japan. In its decision, which became its first judgment on
how an appeals court should operate, the Supreme Court said the high court must provide
concrete proof that the lower court ruling was irrational in terms of logical consistency and
common sense to reverse a district court ruling on grounds of factual error.
108
The case
involved a 61-year-old man who allegedly smuggled about 1 kg of stimulants from Malaysia
to Japan. Six lay judges and three professional judges at the Chiba District Court gave the
man the benefit of doubt and acquitted him in June 2010. They accepted his argument that a
client gave him canned chocolates as a souvenir for his friend and he was not aware the
package contained stimulants.
Therefore, when it becomes the norm for prosecutors to follow the Supreme Courts
judgment and stop appealing acquittals, then revising the law in order to ban such appeals

106
Shiyuan Huang, Bids To Reverse Acquittals Risk Invalidating The Lay Judges Role, The Japan Times,
December 04, 2012.
107
Ibid.
108
Ibid.


37

may finally become possible but thats still going to take a long time and till then Japan will
keep circumventing the double jeopardy law.








38

6.CONCLUSION

Theoretically, the Constitutions double jeopardy clause is supposed to protect a defendant
from being tried twice for the same offence. In practice, our constitutional protections against
double jeopardy are anaemic. One reason thats true is because the Supreme Court has read
the clause to allow the government to retry a defendant on a charge anytime the bench
doesnt reach unanimous agreement on a defendants innocence with respect to that charge.
This is unjustifiable. Unless there is evidence of their misconduct affecting the integrity of
the initial trial, defendants who are not initially found guilty on a charge deserve finality and
repose with respect to those charges. They shouldnt be dependent on unilateral decisions by
the government after they have already inspired some real doubt in a jury of their peers who
have deliberated and failed to agree upon conviction.
Only a tiny number of nations make it as hard as we do to acquit a defendant as a legal
matter. Consider: Allowing prosecutors to go to trial a second or third time on the same
charges basically rewards prosecutors for failing to screen their cases carefully and to gather
sufficient evidence in the first instance. More importantly, retrials undermine the significance
of the beyond a reasonable doubt standard. Finally, these retrials are expensive for the
public and the defendant, and they waste the time of jurors over charges that were obviously
underwhelming the first time around.
Modern double jeopardy law is complicated. Chief Justice William Rehnquist once
characterized it as a veritable Sargasso Sea which could not fail to challenge the most
intrepid judicial navigator.What is not complicated, however, is the reason for the doctrine.
Although any society requires a high degree of public order to function properlyand we
trust government to enforce laws to ensure our safetyas a nation we have chosen first to
protect individual liberty. We do not allow government to hammer away, trial after trial, at
individuals for the same offence because it would violate our commitment to fairness. The
ban on double jeopardy is no mere technicality. This ancient principle is essential to our
definition of a fair trial and to our sense of justice, and our commitment to these ideals
provides us one of our best guarantees of liberty.
The provision prohibits a person being punished criminally more than once and for the same
offence however, it does not debar the legislature from imposing a criminal and civil sanction
in respect of the act or omission. A provision for forfeiture of property to recover fiscal dues


39

or the recovery of liquidated or penal damages for breach of the statutory obligation is not to
be treated as a criminal punishment for the application of this clause (2) of Article 20. All
such cases should be covered under the protection of double jeopardy. The doctrine of double
jeopardy does not extend to departmental inquiry. The state govt. is competent to order
further inquiry on the same charges. There is a possibility of harassment so the safeguard
should extend to departmental inquiry also. The safeguard of double jeopardy should extend
to retrial also particularly where retrial is initiated by govt.
The expression prosecuted and punished has been interpreted to be suffixed by the
expression court of law and judicial tribunal only and not to be administrative tribunal
functioning judicially. Departmental proceeding is not the prosecution and award of such
proceeding is not a punishment.
109
And there is no bar of clause of Article 20 in holding a
departmental inquiry before commencement and after the conclusion of the criminal
prosecution.
110
But it would be improper if not illegal to hold a departmental inquiry and
departmental action after the criminal prosecution has resulted in acquittal. A criminal
prosecution concludes in either conviction or acquittal and sometimes in the discharge of the
accused. Discharge can by no stretch of imagination mean conviction or acquittal, but to
some extent it may mean deemed acquittal. Where courts discharge the accused to want of
any defect in the prosecution the prosecutor should not be allowed to rectify defect and
recharge the accused on the same facts and evidence. It is submitted that the courts should
wither acquit or convict the accused on the grounds of procedural irregularity of the
prosecution and no order of discharge be passed, for such discharge will result in retrial and
thus fortify the apprehension of conviction in the mind of the person accused of an offence.
Generally, acquittal results from one or the other defects and if the prosecution is allowed to
rectify the defects of the prosecution there will never be an end of the prosecution. And all
prosecutions will invariably result in conviction and the very purpose of the principles of the
presumption of innocence of the accused, benefit of doubt in double jeopardy provision shall
be defeated. Sometimes it happens that the conviction is satisfied and retrial is ordered by the
appellate court when the accused is either served out the entire sentence or most of it, this
makes the accused suspicious of the fairness of justice.
111
This rule need reconsideration by
the Supreme Court.

109
S. A. Venkataraman v. U.O.I. AIR 1964 SC 375
110
Ibid.
111
Ganesh Prasad v. State, 1954 Cr. L. J. 216.


40

Different and distinct offences may be committed in the course of one transaction and the
second trial for distinct and separate offences are not violative of either Article 20(2) of the
Constitution or section 300 of the Code of Criminal Procedure, 1993
112
. But it needs
reconsideration in order to dispel the doubt of double jeopardy from the mind of the accused
who have the right guaranteed to them under law and it must be in tune with the modern trend
of decision in the other countries.
The doctrine of double jeopardy does not extend to execution of the sentence. Thus, a fresh
warrant for electrocution may be issued after a former attempt to electrocute the convict
failed owing to mechanical defeat in the apparatus. Advantage of double jeopardy should
extend in such carrier.
There is a difference of opinion on the point of issue. Estoppel in England as an extension on
the principle of autrefois convict or an extension of the rule res judicata. Similar difference of
approach is also found in the supreme court decisions which need reconsideration in the
interest of justice. In Pritam Singh v. State of Punjab,
113
the accused made a statement leading
to the recovery of a firearm which he was alleged to use against the victims. He was
prosecuted for the possession of firearms but was acquitted. Later on, in the trial of murder
charge against the same accused, the evidence of the firearm was pleaded. It was held that the
evidence was precluded by the rule of estoppels. It has been held that the prosecution could
not adduce evidence to set aside the finding of the fact arrived at in the criminal trial of the
accused.
The rule against double jeopardy should be construed in such a way that it should not only
protect the accused but the legal system as well. By preventing harassment of the accused and
inconsistent judicial results, the rule assists in ensuring that the court proceedings to use Lord
Devlins expression Command the respect and confidence of the public.
114

Additionally, a major problem is that people are not aware of this law related to double
jeopardy and hence they fail to claim the same. As in our legal system the rule of Ignorantia
juris non excusat exists, the advantage of the same cannot even be claimed at a later stage
when they come to know about the same provision.

112
Sec. 403, Code of Criminal Procedure 1898.
113
AIR 1956 SC 415
114
Conelly v. D.P.P. 1964 AC 1254 (1353)