Based on the Latin term non bis in idem which directly translates to “not twice against the same [thing]”, the Doctrine of Double Jeopardy is a procedural defences that protects an accused person from being tried for the same or similar charges following a conviction or an acquittal.
The Doctrine is also essentially based on the legal term of “autrefois convict” which is a defendant’s plea stating that he or she has already been tried for and convicted of the same offense.
The dictionary meaning of the term jeopardy is “hazard”. The meaning holds the truth with respect to law and criminal offences wherein jeopardy means the risk of conviction and punishment.
According to Blacks Law Dictionary, the expression is defined as “a second prosecution after the first trial for the same offence.”
The expression double jeopardy under the English common law is based on principle laid down by the Latin maxim, “nemo debet vexari” meaning a man may not be put twice in peril for the same offence.
The exact origin of the protection against double jeopardy are still not known. The expression has been a part of various historical legal documents and texts. For instance, Ancient Jewish texts happen to contain references to the principles of the double jeopardy law. The expression is also said to have its origin from the Greeks and Romans, Digest of Justinian, wherein it was mentioned as a precept stating that the governor should not be permitted to convict an accused person for the same offence for which he was earlier acquitted. The origins of the expression can also be traced back to the time of the Old Testament by Saint Jerome, when a reading given to a verse emanated the prohibition against double jeopardy.
HISTORY OF DOUBLE JEOPARDY IN INDIA
The concept of double jeopardy is not new. The principle existed in India prior to the introduction of the Constitution. Under 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 or punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence.
Under Section 300 ( Earlier 403) the Code of Criminal Procedure, it is provided that “a person who has once been tried by a court of competent jurisdiction for an offence and convicted or acquitted of offence shall, while such conviction or acquittal remains in force, not to be liable to be tried again for the same offence, nor on the same facts for any other offence”.
In the Indian Penal Code, under section 71, states that “where anything which is an offence is made up of parts is itself an offence, the offender shall not be punished of more than one of. such his offences unless it be so expressly provided.”
If the protection from double jeopardy does not exist in the laws of the judicial system of the country, it first creates an extra burden on the state machinery as a second trial would utilize the same amount of financial resources and time. It also creates a burden on the accused, as it leads to double victimization if the charges in the first place have not been framed cautiously. Further such successive prosecutions for the same offence also take a financial, emotional, and social toll on the accused. Secondly, when a jury has already pronounced its judgement on a given case, trying an acquitted person for the same offence would indirectly mean undercutting the initial jury’s decision. The credibility of their decisions comes under scrutiny. Thirdly, the protection also prevents judicial discretions which impose multiple punishments for a single crime.
INDIAN CONSTITUTION AND DOUBLE JEOPARDY
Keeping in mind the gravity of the consequences if one is not protected from double jeopardy, the framers of the Indian Constitution inserted Article 20(2) which states that “No person shall be prosecuted and punished for the same offence more than once”.
ESSENTIALS OF THE RIGHT AGAINST DOUBLE JEOPARDY UNDER ARTICLE 20(2)
- The right against double jeopardy applies only when a trial court has already passed an order of conviction against a person after his trial.
Case: Venkataraman v. Union of India
In this case, the accused was first subjected to a departmental inquiry and subsequent criminal charges were framed against him. The accused pleaded defence under Article 20(2) but the court held that the previous sanctioning does not amount to trial or conviction, but it was merely a departmental inquiry and standard of procedure.
- The conviction must be a result of a fair and completed trial. Any appeal, review, or revision after such a conviction does not amount to a subsequent trial.
- The Right against double jeopardy will only be applicable where punishment awarded is for the same crime
Case: Leo Roy v. Superintendent District Jail
The court has held that if there is a difference between the offences the rule of double jeopardy will not apply. Therefore, if a person is prosecuted and punished under the Sea Customs Act, 1878, and later prosecuted for criminal conspiracy under the Indian Penal code, then the second prosecution cannot be barred since it was not for the same crime.
- Article 20(2) does not apply to a continuing offence.
Case: Kolla Veera Rao v. Gorantla Venkateshwara Rao
In this case the accused was charged with the offences of ‘voluntarily causing hurt’ and ‘wrongful confinement’. He first attempted to obliterate evidence in the first case and was caught and tried for it. Thereafter, he attempted to extinguish the evidence in the second case as well and was again tried for it. Thus, the question that arose was whether the second trial is for the same offence, i.e. destruction of evidence. The court held that the offence was a continuing one and hence, does not constitute two trials.
- Venkataraman v. Union of India, AIR 1954 SC 375.
- Kolla Veera Rao v. Gorantla Venkateshwara Rao, (2011) 2 SCC 703.
- Leo Roy v. Supt. District Jail, AIR 1958 SC 119.
- Image Source