The legal system across the nation is formulated on two basic principles, one is of legal certainty and the other one is of equity. If an offender is prosecuted he should have the certainty within himself that he would not be prosecuted any further under the same offence. Also, if the same persons get acquitted of the charges framed against him, he should be certain that no other prosecution shall be conducted on him regarding the same offence. Article 20 of the Indian constitution mentions about double jeopardy and its implication in the legal system. It states that
- No person shall be convicted of any offence except for violation of the law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.
- No person shall be prosecuted and punished for the same offence more than once.
- No person accused of any offence shall be compelled to be a witness against himself.
Thus, double jeopardy can be understood as the protection for a person against trying him for the same offence more than once if, he has been convicted or acquitted for the same. If the person is again charged for the same offence, then evidence shall be placed before the court, which shall then be decided accordingly. Double jeopardy in India ensures partial protection of a person, that is, it follows the principle of autrefois convict. This means that the person convicted of an offence, only he is protected under article 20 of the constitution, not the person acquitted. Autrefois acquit, is a statutory right not a fundamental right, hence it is ensured by the code of criminal procedure.
There are also several reasons for double jeopardy, such as,
- Preventing the government from using its superior power to wear down and erroneously convict innocent people.
- Protection of convicts from financial, emotional, and social consequences of successive prosecutions.
- Restriction of prosecutorial discretion over charging process.
- Elimination of cumulative punishments which might be imposed according to the discretion of the judicial system.
Hence, the crux of double jeopardy is to protect an individual from further conviction if he has been convicted once. Double jeopardy has a narrower ambit in India than the US or the English constitution. The Indian provision enunciates only about autrefois convict, while the US and the English constitution bars second trial of a person even if he is acquitted of an offence. However, in India, Article 20(2) shall be invoked only if a person is convicted or prosecuted of offence. It was in the case of Kalawati v State of Himachal Pradesh, in which a person was tried of murder but due to lack of evidence he was acquitted. But, later the state went for an appeal against him in a higher court. The person questioned the appeal under article 20(2) of the constitution to which the court responded that since there was no punishment of an offence during the first instance due to which article 20(2) holds no power in that particular situation.
SCOPE OF ARTICLE 20
Double jeopardy protects a person from conviction of a same offence twice, but it does not applies to cases where there is commission of two offences of two different ingredients, that is, two offences of different natures. In the case of Monica Bedi v State of Andra Pradesh, the person was accused of forging with the passport. But the Supreme Court stated that the conviction has already been done before in the Portuguese court, thus article 20(2) applies and the person should not be convicted again of that offence. Hence, we come to a conclusion that there is a limitation in double jeopardy which is “former prosecution”.
If there has been a former prosecution of the accused of a criminal nature in a court of jurisdiction or in any tribunal then article 20(2) shall be applied in that situation. In addition to this, there is also a concept of “continuing offence”. This states that if the act or commission of an offence is continued day by day, or is enhanced subsequently and a fresh offence is committed every day, then each offence can be tried separately. It was in State of Bombay v S.L. Apte, where the Supreme Court stated that “The crucial requirement for attracting Article 20(2) 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”.
For instance, though the ingredients under section 161 of the IPC and under Section 5(2) of Prevention of Corruption Act may be similar, but the offence committed are undertaken as two different offences. So, the provisions of autrefois convict to withhold, there should be three basic necessities for it. Firstly, there should be a person accused of an offence; secondly, that person should be tried under a court or a judicial tribunal in reference to the law that creates offences, and lastly, that person should have been convicted of the same offence before. If all the three conditions suffice, then the principle of autrefois convict shall apply and the person can be relieved of the offence charged against him.
The requirement of the three conditions have been discussed and explained in the landmark case of Maqbool Hussain v State of Bombay. In this specific case, an Indian citizen was arrested from the airport for illegal possession of certain amount of gold. Due to this, the accused was tried under section 167(8) of the Sea Customs Act, 1878 and thus according to the provision his gold was confiscated. Later, he was further charged in the court of Chief Presidency Magistrate under section 8 of Foreign Exchange Regulations Act, 1947. During the trial the accused pleaded the court that he has been convicted before therefore should be relieved from another prosecution under his fundamental right of 20(2). But, the court rejected his plea and stated that his trial under the sea customs act does not amount to prosecution. The Sea Customs Authorities cannot be considered to be competent court or judicial proceeding under which prosecution is possible. Also, confiscation of gold was no punishment that was charged upon the accused. His confiscation of gold does not amount to a judgment or a judicial order. Thus, there was no support to his plea of protection under article 20(2) due to which it cannot be said that the accused was prosecuted and punished for the same offence twice.
The presence of the term, “prosecuted and punished” under article 20(2) clearly states that the proceedings that are considered are to be of criminal nature in the court of law, or a judicial proceeding or any intimidation or start of prosecution. In reference to this, the court has cited the principle established in Maqbool Hussain case in many other cases such as the case of Narayanlal Bansilal v M.P. Mistry. Further, clause 3 of article 20 is in conjunctive of the earlier clauses. That is, it prohibits the prosecution and punishment of the convict for the second offence. Also, one of the special ingredients to this is that the court trying the offence should be of a competent jurisdiction, if not, whole proceedings the court shall be treated as null and void.
Hence there are three essentialities for the application of double jeopardy:
1. The person should be prosecuted and punished,
2. It should be for the same offence,
3. The offence should have committed more than once.
 Kalawati v State of Himachal Pradesh, AIR 1953 SC 131.
 Monica Bedi v State of Andra Pradesh, (2011) 1 SCC 284.
 Mohammad Ali v Shri Ram Swaroop, AIR 1965 All 161.
 State of Bombay v S.L. Apte, AIR 1961 SC 578.
 Kunji Lal v State of Madhya Pradesh, AIR 1955 SC 280.
 Maqbool Hussain v. State of Bombay, AIR 1953 SC 325.
 Narayanlal Bansilal v M.P. Mistry, (1959) 1 SCR 274.
 Gopalakrishna Naidu v State of Madhya Pradesh, 1925 AN 170.
 Manipur Administration v Nila Chandra Singh, AIR 1964 SC 1533.
Author Details: Sarthak Sharma (National Law University Odisha)
The views of the author are personal only. (if any)