1

DR. RAM MANOHAR LOHIY NATIONAL LAW UNIVERSITY, LUCKNOW

ACADEMIC SESSION: 2015-16

FINAL DRAFT:

ARTICLE-20 OF THE INDIAN CONSTITUTION GUARANTEE AGAINST

DOUBLE JEOPARDY

Submitted To: Submitted By:

Dr. Mahendra Paswan Aditya Joshi

Asst. Professor (Const. Law) B.A. L.L.B. (Hons.)

Dr. Ram Manohar Lohiya National 3rd Semester

Law University, Lucknow Roll No-13

Section-A
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ACKNOWLEDGMENT:

I express my gratitude and deep regards to my teacher for the subject Ms. Mahendra Paswan
for giving me such a challenging topic and also for his exemplary guidance, monitoring and
constant encouragement throughout the course of this thesis. I also take this opportunity to
express a deep sense of gratitude to my seniors in the college for their cordial support,
valuable information and guidance, which helped me in completing this task through various
stages. I am obliged to the staff members of the Madhu Limaye Library, for the timely and
valuable information provided by them in their respective fields. I am grateful for their
cooperation during the period of my assignment. Lastly, I thank almighty, my family and
friends for their constant encouragement without which this assignment would not have been
possible.
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INDEX:-

1. INTRODUCTION.4
2. RIGHT AGAINST DOUBLE JEOPARDY6
3. CASE LAWS.9
4. CONCLUSION.16.
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Introduction

The word Double stands for twice and the term "Jeopardy" refers to the "danger" of
punishment which is endorsed to any individual brought to trial before a court of competent
jurisdiction. Jeopardy cannot be constitute in any procedural matters, and that's why it's said
that jeopardy attaches, or may be asserted by the defendant, once a jury has started the
proceedings, or the first witness takes the stand, in any original prosecution resulting in any
acquittal or conviction. No to be punished for the same offence is a defense (and, in many
countries such as the United States, Canada, Mexico, Japan and India, a constitutional right)
that forbids a defendant from being tried a second time for the same offence.

The ancestry of the doctrine against double jeopardy are to be found in the well- established
maxim of the English Common law, Nemo debet bis vexari, meaning that a man must not be
put twice in peril for the same offence.1 When a person has been convicted for an offence by
a competent court, the conviction serves as a bar to any further criminal proceeding against
him for the same offence. The idea is that no one ought to be punished twice for one and the
same offence. If a person is indicated again for the same offence in a court, ha can take the
plea of autrefois acquit or autrefois convict.

The concept of double jeopardy is one of the oldest in Western civilization. In 355 B. C.
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 A.D.) through the CANON LAW and
the teachings of early Christian writers, notwithstanding the deterioration of other Greco-
Roman legal traditions.2

The principle was inexistence in India even prior to the commencement of the Constitution,
but the right against double jeopardy has been given the status of constitutional, rather than
a mere statutory, guarantee. Double Jeopardy is documented in different countries like United
States, United Kingdom, Canada, Germany, France, Japan, India etc. Further, double
jeopardy is discussed in accordance with Constitutions of different countries.

1
P.K.Majumdar and Kataria R.P, Commentary on the Constitution of India, 10 th Edition, Orient Publication
company, Page no. 897
2
http://www.enotes.com/criminal-law-reference/double-jeopardy
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It is a fundamental principle of the common law that a person cannot be put in jeopardy twice
for the same offence. Almost all common law countries incorporate this protection in their
laws. While some countries have found it necessary to be included in their constitutions,
others have incorporated it in their statutes. All agree that the protection has its origin in the
English common law of the eighteenth century. Though its origin is thus common, it is found
that its reception and implementation have been different.

In India

In India, protection against double jeopardy is a Fundamental Right guaranteed under Article
20 of the Constitution of India.

An article 20(2) of Indian Constitution state that No person shall be prosecuted and punished for the
same offence more than once contains the rule against double jeopardy.3 The Indian
Constitution guarantees to the people certain basic human rights and freedoms, such as inter
alia, equal protection of laws, freedom of speech and expression, freedom of worship and
religion, freedom of assembly and association, freedom to move freely and to reside and
settle anywhere in India, freedom to follow any occupation, trade or business, freedom of
person, freedom, against double jeopardy and against ex post facto laws.

Not to be punished for the same offence more than once. The Right against Double
jeopardy is a fundamental right of every citizen of India which is assured in Article 20(2) of
the Constitution of India enunciates the principle of autrefois convict or double jeopardy.
The principle which is sought to be incorporated into section 300 of the Criminal Procedure
Code (CrPC) is that no man should be vexed with more than one trial for the offences arising
out of same act committed by him.4 Though article 20(2) of the Indian Constitution embodies
a protection against a second trial after a conviction of the same offence, the ambit of the
clause is narrower than the protection afforded by the section 300 of the CrPC. If there is no
punishment for the offence as a result of the prosecution, article 20(2) has no application.

3
Dr. Subash C. Kashyap, Constitutional Law of India, 1 st edition Volume-1, Universal law publishing company
Page Number-649
4
P.K.Majumdar and Kataria R.P., Commentary on the Constitution of India, 10th Edition, Orient Publication
company, Page no. 919
6

While the clause embodies the principle of autrefois convict, section 300 of the CrPC
combines both autrefois convict and autrefois acquit.5

In United States

The DOUBLE JEOPARDY clause in the Fifth Amendment to the U. S. Constitution

prohibits the government from prosecuting individuals more than one time for a single
offense and from imposing more than one punishment for a single offense. It provides that
"No person shall . . . be subject for the same offence to be twice put in JEOPARDY of life or
limb." The Double Jeopardy Clause encompasses four distinct prohibitions: subsequent
prosecution after acquittal, subsequent prosecution after conviction, subsequent prosecution
after certain mistrials, and multiple punishments in the same indictment. Jeopardy "attaches"
when the jury is empaneled, the first witness is sworn, or a plea is accepted.6

Right against Double Jeopardy in India

Article 20 (2) of the constitution of India which runs as No person shall be prosecuted and
punished for the same offence more than once7 contain the right against Double Jeopardy.
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
gurantee. 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 again prosecuted and punished
for the same offence.

Example- If a person was prosecuted and punished under Section 497 Indian penal Code,
1860. On appeal, the High Court quashed the trial holding it void ab- initio as no sanction for
the same had been obtained under the law. Art 20 (2) would not bar a second trial for the
same offence, as the accused had not been prosecuted and punished for the offence. But in the
same example if he was prosecuted and punished then Article 20(2) will come into effect and

5
Dr. Subash C. Kashyap, Constitutional Law of India, 1 st edition Volume-1, Universal law publishing company
Page Number-650
6
http://www.enotes.com/criminal-law-reference/double-jeopardy assessed on 20th of September, 2012
7
Bare Act, The constitution of India,1950
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saves the person from any second prosecution for the same offence. Therefore, Prosecution
and Punishment both should be present in the first trial in order to attract Article 20(2) in the
second trial for the same offence.

Rule of Autrefois Acquit

It is a fundamental principle of the common law that a person cannot be put in jeopardy twice
for the same offence which works on well established maxim, Nemo debet bis Vexari. 8 The
principle has been recognized in the existing law in India and is enacted in Section 26 of the
General Clauses Act, 1897 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. and Section 300 of Criminal Procedure Code, 19739, 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.

(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

8
P.K.Majumdar and Kataria R.P., Commentary on the Constitution of India, 10 th Edition, Orient Publication
company, Page no. 897
9
Bare Act, Criminal Procedure Code, 1873
8

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 CrPC.

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 shown that he had been prosecuted before a court and
punished by it for the same offence for which he is prosecuted again. Accordingly, there
can be no constitutional bar to a second prosecution and punishment for the same offence
unless the accused had already been punished in the first instance. The Supreme Court said:
If there is no punishment for the offence as a result of the prosecution, sub-clause (2) of the
Article20 has no application.

Three essentials of Right against Double Jeopardy are:

a) There must be a person accused of an offence. The word offence is described in the
General Clause Act, 1897 which read as, 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.
Proceedings before tribunal which entertains departmental or administering enquires
cannot be considered as proceedings in connection with prosecution and punishment.
The revenue authorities, like sea customs authorities are not Judicial tribunal.
c) 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.
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Case Laws

Maqbool Hussain v. State of Bombay, 10

It 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 that time. Action was taken against
him by the customs authorities and the gold was confiscated. Later was prosecuted befoe the
criminal court under the Foreign Exchange Act. The question was whether the plea of
autrefois acquit could be raised under article 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

The court ruled that the sea customs authorities are not a judicial tribunal and adjudging by it
of confiscation, increased rate of duty or penalty under the provisions of the Sea Customs Act
do not constitute a judgement or order of a court or judicial tribunal necessary for the purpose
of supporting the plea of double jeopardy. Therefore, when the customs authorities
confiscated the gold ,the proceedings before them neither constituted a prosecution of the
appellant nor did the offer of confiscation constitute a punishment inflicted by a court or
judicial tribunal on the appellant. The appellant could not be said by virtue of these
proceedings to have been prosecuted and punished for the same offence with which he was
charged later before the criminal court under s.23, foreign exchange regulation act

Sangeetaben Mahendrabhai Patel vs. State of Gujarat

(2012) 7 SCC 621

Facts

This appeal of double jeopardy for the reason that the appellant has already been tried and
dealt with under the provisions of Section 138 of Negotiable Instruments Act, 1881 for the
same offence. Respondent filed a complaint dated 22.10.2003 under Section 138 of N.I. Act
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on the ground that the appellant had taken hypothecation loan of Rs. 20 lakhs and had not
repaid the same. In order to meet the said liability, the appellant issued cheque but latter in
the due course the cheque was dishonoured. Subsequent thereto on 6.2.2004, the respondent
filed an FIR under Sections 406/420 read with Section 114 of Indian Penal Code, 1860 with
the for committing the offence of criminal breach of trust, cheating and abetment. In the
criminal case under Section 138 of N.I. Act, the trial court convicted the appellant. Appellant
preferred before the District Judge wherein, he has been acquitted. Against the order of
acquittal, respondent has preferred before the High Court of Gujarat which is still pending
consideration. The appellant stood acquitted in criminal case under Section 138 of N.I. Act.
Thus, he pleaded that he cannot be tried again for the same offence. In the facts of the case,
doctrine of double jeopardy is attracted. The High Court dismissed the said application.

Arguments

The appellant has submitted that the ICR as well as the criminal case pending before the
Chief Judicial Magistrate is barred by the provisions of Section 300 Cr.P.C. and Section 26 of
the General Clauses Act, 1897 as the appellant has already been dealt with/tried under
Section 138 of N.I. Act for the same offence. Thus, the High Court committed an error in not
quashing the said ICR and the criminal case. Two time prosecution for the same offence will
amount to Double Jeopardy.

The respondent, the State of Gujarat, have vehemently opposed the appeal contending that
the provisions of Section 300 Cr.P.C. i.e. `Doctrine of Double Jeopardy are not attracted in
the facts and circumstances of the case, for the reason, that the ingredients of the offences
under Sections 406/420 read with Section 114 IPC are entirely distinct from the case under
Section 138 of N.I. Act, and therefore, do not constitute the same offence.

Laws Applicable

The sole issue raised in this appeal is regarding the scope and application of doctrine of
double jeopardy. The rule against double jeopardy provides foundation for the pleas of
autrefois acquit and autrefois convict. The manifestation of this rule is to be found contained
in Section 300 Cr.P.C; Section 26 of the General Clause Act and Section 71 of IPC.
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Section 300 of CrPC, 1873 reads 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, 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).

Secttion 26 of the General Clause Act, 1897 reads:

Provisions as to offences punishable under two or more enactments where an act 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.

Judgement

The appellant had been tried earlier for the offences punishable under the provisions of
Section 138 N.I. Act and the case is sub judice before the High Court. In the instant case, he
is involved under Sections 406/420 read with Section 114 IPC. In the prosecution under
Section 138 N.I. Act, the mens rea i.e. fraudulent or dishonest intention at the time of
issuance of cheque is not required to be proved. However, in the case under IPC involved
herein, the issue of mens rea may be relevant. The offence punishable under Section 420 IPC
is a serious one as the sentence of 7 years can be imposed. In the case under N.I. Act, there is
a legal presumption that the cheque had been issued for discharging the antecedent liability
and that presumption can be rebutted only by the person who draws the cheque. Such a
requirement is not there in the offences under IPC. In the case under N.I. Act, if a fine is
imposed, it is to be adjusted to meet the legally enforceable liability. There cannot be such a
requirement in the offences under IPC. The case under N.I. Act can only be initiated by filing
a complaint. However, under Indian Penal Code such condition is not necessary.
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There may be some overlapping of facts in both the cases but ingredients of offences are
entirely different. Thus, the subsequent case is not barred by any of the aforesaid statutory
provisions. The appeal is devoid of any merit and accordingly dismissed.

Opinion

The Judgement given by the Supreme Court is not satisfactory as the facts are same but
ingredients of offences are different but ingredients are irrelevant. What is important is two
different cases are established for the same act. If this will be the case a thief committing theft
will be charged for the offence of theft under IPC and also for trespass to property in torts.
This will lead to double punishment for the same offence which is forbidden by law.

Kolla Veera Raghav Rao v/s Gorantla Venkateswara Rao11

(2011) 2 SCC 703

Facts

The appellant was already convicted under Section 138 of the Negotiable Instruments Act,
1881 and hence he pleaded that he should not be again tried or punished on the same facts
under Section 420 or any other provision of IPC or any other statute.

Court Observation and Judgement

The Supreme Court speaking through Justice Markandey Katju and Justice Gyan Sudha
Mishra, in Kolla Veera Raghav Rao vs Gorantla Venkateswara Rao and Ors., has dealt with
the concept of 'Double Jeopardy'. The Supreme Court has held that the provisions of S.

11
http://indiankanoon.org/doc/640825/
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300(1) of the Code of Criminal Procedure, 1973 is much wider than the provisions of Article
20(2) of the Constitution of India.

It may be noticed that there is a difference between the language used in Article 20(2) of the
Constitution of India and Section 300(1) of Cr.P.C.. Article 20(2) states: "no person shall be
prosecuted and punished for the same offence more than once."

On the other hand, Section 300(1) of Cr.P.C. States:

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."

Thus, it can be seen that Section 300(1) of Cr.P.C. is wider than Article 20(2) of the
Constitution. While, Article 20(2) of the Constitution only states that 'no one can be
prosecuted and punished for the same offence more than once', Section 300(1) of Cr.P.C.
states that no one can be tried and convicted for the same offence or even for a different
offence but on the same facts. In the present case, although the offences are different but the
facts are the same. Hence, Section 300(1) of Cr.P.C. applies. Consequently, the prosecution
under Section 420, IPC was barred by Section 300(1) of Cr.P.C. The Double Jeopardy is set
up and appeal was upheld by providing appellant protection under Section 300(1) of CrPC.

Opinion

The decision of the court is satisfactory and logical. The appellant was already prosecuted
and punished for the offence he performed therefore he should not be prosecuted again for
the same offence. And by prosecuting second time for the same offence will lead to Double
Jeopardy. It is important that Supreme Court by the virtue off Section 300(1) held that
appellant cannot be prosecuted again for the same facts. By this Judgement it can be clearly
understood that Article 20(2) of Indian Constitution is narrower than Section 300 of CrPC
regarding the Right against Double Jeopardy.
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Jayantibhai Nagjibhai Patel v/s State of Gujarat12

Facts

The facts which have arisen from the petition are that in pursuance of a written application
given by Bapu Swami Guru Dharma Swarupdasji of Shri Swaminarayan Mandir, Vadtal, to
Police Sub Inspector, Chaklasi Police Station, a complaint was registered for the offences
punishable under Sections 294 and 120-B of IPC and Section 5(1)(a), (b) and (d) of the
Prevention of Immoral Traffic Act against the applicant and other accused persons on 8-1-
2005. During the course of investigation, accused was arrested and was sent to judicial
custody. Another complaint was filed by Police Sub Inspector, Crime Branch, on 15-2-2005
against eight persons for the offences punishable under Sections 120-B, 292, 294, 295 and
420 of IPC, Section 67 of Information Technology Act and Sections 5 and 9 of the
Prevention of Immoral Traffic Act. Petitioner was arrested on 18-2-2005, thereafter applicant
was released on bail by this Court on 25-3-2005. On 10-12-2010 a charge sheet came to be
filed by Nadiad Town Police Station against him before the Court of Judicial Magistrate,
First Class, Nadiad, in Criminal Case and the petition has been filed by the applicant for
quashing the said charge as he is charge twice for the same offence.

Arguements

It was pleaded by the accused that the charge sheet submitted against the petitioner accused
pertaining to 2005 registered with Chaklasi Police Station relates to the same set of evidence
in relation to offence registered of 2005 by DCB Crime Police Station, Ahmedabad, wherein
witnesses and accused are almost the same, which is legally not permissible. When DCB
Crime, Ahmedabad City, has already submitted charge sheet in the same set of evidence and
case was committed to the Sessions Court, Nadiad Town Police Station should not to have
filed charge sheet after a long lapse of time in relation to the same set of evidences and
recovery of muddamal articles. It is further argued that there cannot be two separate charge
sheets by two different agencies in respect of commission of same set of evidences. It is that
in one case, petitioner was discharged by this Court and hence, continuation of proceedings
of 2005 registered by Chaklasi Police Station, being related to the same offence registered of

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2005 by DCB Crime Police Station, Ahmedabad. It was stated by the petitioner that this is
amounting to Double Jeopardy and therefore he shall be discharged by the court.

In this connection, he has relied on a decision of the Hon'ble Apex Court in the case of Kolla
Veera Raghav Rao Vs. Gorantla Venkateswara Rao reported in AIR 2011 Supreme Court
page 641 wherein it has been held by the Hon'ble Apex Court that it can be seen that Section
300(1) of Cr.P.C. is wider than Article 20(2) of the Constitution. While, Article 20(2) of the
Constitution only states that 'no one can be prosecuted and punished for the same offence
more than once', Section 300(1) of Cr.P.C. states that no one can be tried and convicted for
the same offence or even for a different offence but on the same facts.

Judgement

Court relying on Hon'ble Apex Court judgement in Kolla Veera Raghav Rao case that no
person can be prosecuted and punished for the same offence more than once. In the present
case also, even though the offences are different, facts are the same and hence, in view of
judgment reported in Kolla Veera Raghav Rao, proceedings in Criminal Case arising out of
2005 of Chaklasi Police Station charge sheet should not be permitted to continue. This
appellant appeal was upheld.

Opinion

The Judgement of the Supreme Court was agreeable as it is basic principle that a case against
one person should be registered in one place only and that place should have jurisdiction over
that area. Section 300(1) of CrPC protects the petitioner as it states that no one should be
punished twice for the same facts.

LIMITATION OF THE ARTICLE 20(2)

After this project one can conclude that the constitution always had guarded citizens of india
against any injustice and will guard us if something happens in future, as truly said that the
Supreme Court is the guardian of the fundamental rights , one can directly file his suit if his
fundamental rights are being breached directly in supreme court under the articles provided in
the Constitution. But every thing has some limitations this article also has a limitation that is
16

it does not bar proceedings before a civil court for disobedience of an injunction with
criminal proceedings as the former are not in the nature of criminal proceedings13

Conclusion

The crucial requirement for attracting article 20(2) of the Indian Constitution is that the
offences are the same, i.e., they should be 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. The test to ascertain whether two offences are the
same is not the identity of the allegations but the identity of the ingredients of the offences.

The principle which is sought to be incorporated into section 300 of the Criminal Procedure
Code (CrPC) is that no man should be vexed with more than one trial for the offences arising
out of same act committed by him. Though article 20(2) of the Indian Constitution embodies
a protection against a second trial after a conviction of the same offence, the ambit of the
clause is narrower than the protection afforded by the section 300 of the CrPC.

By analyzing recent case it can be figure out that Indian Judiciary is taking Right against
Double Jeopardy in very descriptive way. It is clear from the case like Sangeetaben
Mahendrabhai Patel vs. State of Gujarat14 that offences are treated same if the ingredients of
the offences are same.

But it is clear that a person cannot be punished twice for even different offences if the facts of
the case are same by the virtue of Section 300(1) of Criminal Procedure Code, 1873.
Judiciary has upheld this section in various cases such as Jayantibhai Nagjibhai Patel v/s
State of Gujarat and Kolla Veera Raghav Rao v/s Gorantla Venkateswara Rao15. Therefore, it
can be said that Right against Double jeopardy is very historical concept which is growing up
higher and higher in present scenario and due to that it has given a constitutional status and
that too under the fundamental rights.

13
Bachcha lal v. lalji, AIR 1976 AII 393
14
(2012) 7 SCC 621

15
http://indiankanoon.org/doc/640825/
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