Electronic copy available at: http://ssrn.

com/abstract=1303324

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 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. This doctrine has been incorporated in our
Constitution as a Fundamental Right under Article 20 (2), which runs as thus, "No person
shall be prosecuted and punished for the same offence more than once".
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 Art. 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.
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

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)
Electronic copy available at: http://ssrn.com/abstract=1303324
Double Jeopardy and CrPC
2
criminal law of this country. Article 20(2) does nothing more than reproduce in effect the
provisions of section 300 (403 old) of the Cr. PC. 1973.

Historical source of the concept of Double Jeopardy

It has been said that the history of double jeopardy is the history of criminal
procedure
2
. The rule is thought to have its origins in the controversy between Henry II
and 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.
3
The rule later found
expression in the common pleas autrefois convict and autrefois acquit.
4
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
5
. Based in
estoppel, autrefois acquit was a plea that the prisoner had already been tried for and
acquitted of the same offence
6
.
The pleas operated in the context of a criminal law with relatively few offences
and limited opportunities for a given fact situation to give rise to multiple offences
7
. The
last 100 years, however, have seen the proliferation of criminal law, the modernization of
criminal procedure, and the development of modern criminal process and institutions
8
.
The consequence has been the development of a more extensive double jeopardy rule

2
http://www.courts.qld.gov.au/publications/articles/speeches/2003/atkin090703.pdf
3
Friedland M L, Double Jeopardy (1969) Clarendon Press, Oxford at 5.
4
Laws of Australia Chapter 9 at [293]
5
Travers v Wakeham (1991) 28 FCR 425; 54 A Crim R 205 per Jenkinson J at 211.
6
Laws of Australia Chapter 9 at [293]
7
Friedland M L (1969) at 14
8
Laws of Australia Chapter 9
Double Jeopardy and CrPC
3
which more properly gives effect to its underlying principle: that no person shall be
troubled twice for the same offence.
9
The decision in Connelly v Director of Public
Prosecutions (UK) [1964] AC 1254 provided the first judicial statement of coherent
general principle on the rule
10
:

For the doctrine of autrefois to apply it is necessary that the accused
should have been put in peril of conviction for the same offence as that
which he is then charged. The word offence embraces both the facts
which constitute the crime and the legal characteristics which make it an
offence. For the doctrine to apply it must be the same offence both in fact
and in law.
11


The underlying idea is that the State with all its resources and power should not be
allowed to make repeated attempts to convict an individual for an alleged offense [sic],
thereby subjecting him to embarrassment, expense and ordeal and compelling him to live
in a continuing state of anxiety and insecurity, as well as enhancing the possibility that
even though innocent he may be found guilty.
12


This statement 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 (fallible) trial process increases such a
risk.
13




9
OSullivan v Rout [1950] SASR 4 per Napier CJ at 5-6.

10
Laws of Australia Chapter 9 at [293]
11
At 39-40 per Lord Devlin in OSullivan v Rout
12
Green v United States (1957) 355 US 185 at 187-88
13
Roberts P, Double Jeopardy Law Reform: A Criminal Justice Commentary in Modern Law Review
(2002) 65 (3) 393 at 397

Double Jeopardy and CrPC
4


Double Jeopardy in Indian Constitution


The basic premise of Double Jeopardy in the Constitution is that when a person
has been convicted of an offence by a competent court, the conviction serves as a bar to
any further criminal proceedings 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 indicted again for
the same offence in a court, he can plead, as a complete defense, his formal acquittal or
conviction, or, as it is technically expressed, he can take the plea of autrefois acquit or
autrefois convict.
14

Article 20 (2) of the Constitution which runs as, "No person shall be prosecuted
for the same offence more than once", contains the rule against Double Jeopardy. As
already mentioned in the introduction to this project, the principle elaborated in the said
article was inexistence in India even prior to the commencement of the Constitution.
The ambit of Art. 20(2) is, however, narrower than the English or the American rule
against Double Jeopardy. The Indian provision enunciated only the principle of autrefois
convict and not the principle of autrefois acquit. This basically means that Art. 20 (2) can
be invoked only when there has been prosecution and punishment in the first instance.
However, later on in the project, when the discussion revolves around the concept of
Double Jeopardy as ingrained in the Cr PC, one comes across the fact that the principles
of autrefois acquit has been embedded in Sec. 300 Cr PC.
The word prosecution as used in Art. 20 (2) embodies the following three
essentials:
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

14
M. P. Jain, "Indian Constitutional Law", Vol. I, 5th ed.,2003, p. 1238
Double Jeopardy and CrPC
5
meaning "an act or omission made punishable by any law for thetime being in
force".
15


The proceeding or the prosecution should have taken place before a 'court' or
'judicial tribunal'. The revenue authorities like the seacustom authorities, are not
judicial tribunals.
16


Likewise proceedings before a tribunal which entertains departmental or
administrative enquiries cannot be considered as proceedings in connection with
prosecution and punishment.
17


The proceedings should have been taken before the judicial tribunal or court in reference
to the law which creates the offences. Thus, where an enquiry is held before a statutory
authority against a government servant, not for the purpose of punishing for the offence
of cheating and corruption but to advise the government as to disciplinary action to be
taken against him, it cannot be said that the person has been prosecuted.
18
It would make
no difference even if the authority making the enquiry is required to act judicially.
19


The ambit of Art. 20 (2) has been defined via a wide range of case law. If a
person has been prosecuted for an offence but acquitted, then he can be prosecuted for the
same offence again and punished. In Kalawati v. State of Himachal Pradesh
20
a person
accused of committing murder was tried and acquitted. The state preferred an appeal
against the acquittal. The accused could not plead Article 20(2) against the appeal.

15
S. A. Venkataraman v. Union of India, AIR 1954 SC 375; V. N.Shukla, "Constitution of India", 10th ed.,
2001, rep. 2004, p. 156
16
Maqbool Hussain v. State of Bombay, AIR 1952 SC 325
17
ibid., p. 325
18
Thomas Dane v. State of Punjab, AIR 1959 SC 375
19
Leo Roy Frey v. Supdt., Distt. Jail, AIR 1958 SC 119; V. N.Shukla, "Constitution of India", 10th ed.,
2001, rep. 2004, p. 157
20
AIR 1953 SC 546; M.P. Jain, "Indian Constitutional Law",2003, 5th ed., p. 1239
Double Jeopardy and CrPC
6
Article 20(2) would not apply as there was no punishment for the offence at the earlier
prosecution.

The same set of facts can, in some cases, constitute offences under the two different laws.
In the case of State of Bihar v. Murad Ali Khan
21
the Supreme Court held that in order
for the prohibition to apply under Article 20(2), the same act must constitute an offence
under more than one Act. If there are two distinct separate offences with ingredients
under two different enactments, a double punishment is not barred.
In the case of State of Bombay v. S.L. Apte
22
, the Supreme Court explained the legal
position as follows:

"To operate as a bar the second prosecution and the consequential
punishment there under, 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 facts in the two
complaints might be substantially similar, the benefit of the ban cannot be
invoked. 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."

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.
23


21
AIR 1989 SC 1; M.P. Jain, "Indian Constitutional Law",2003, 5th ed., p. 1239
22
AIR 1961 SC 578; M.P. Jain, "Indian Constitutional Law",2003, 5th ed., p. 1239
23
Ibid p. 1241
Double Jeopardy and CrPC
7
In the leading case of Maqbool Hussain v. State of Bombay
24
, 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 'punishment' by a judicial tribunal. In these
circumstances, the trial of the petitioner before the criminal court was not barred. The
Supreme Court observed as follows:

It is clear that in order that the protection of Art. 20 (2) be invoked by a
citizen there must have been a prosecution and punishment in respect of
the same offence before a court of law or a tribunal, required by law to
decide the matters in controversy judicially on oath which it must be
authorized by law to administer and not before a tribunal which entertains
a department or an administrative enquiry even though set up by a statute
but not required to proceed on legal evidence given on oath. The very
wording of Art 20 and the words used therein would indicate that the
proceedings therein contemplated are of the nature of criminal
proceedings before a court of law or a judicial tribunal and the
prosecution in this context would mean 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 regulated the procedure.
25


The Supreme Court ruled that the sea customs authorities are not a judicial tribunal and
adjudging by it of the confiscation, increased rate of duty or penalty under the provisions

24
AIR 1953 SC 325
25
AIR 1953 SC 325 at p. 327
Double Jeopardy and CrPC
8
of the Sea Customs Act do not constitute a judgment or order of a court or judicial
tribunal necessary for the purpose of supporting the plea of Double Jeopardy.


In Thomas Dane v. State of Punjab
26
, a case similar to the case of Maqbool
Hussain, the appellant sought to take out some foreign exchange from India which was
confiscated by the customs authorities after following due process under the Sea Customs
Act. Later he was prosecuted before a criminal court under the Foreign Exchange
Regulation Act and the Sea Customs Act and he was duly convicted for the offence. The
High Court of Punjab dismissed his appeal. The appellant preferred filed a writ petition in
the Supreme Court on the ground that Art 20 (2) barred his prosecution. The Supreme
Court dismissed the petition on the ground that in imposing confiscation and penalty
under the Sea Customs Act and the FERA, the concerned authorities acted judicially but
did not constitute a court.

It is thus established that action taken by a quasi-judicial body does not bar a
latter 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 will be the position when after 'prosecution and punishment' for an offence,
further action is taken by a quasi-judicial body.
27













26
AIR 1959 SC 375
27
Joginder Singh v. Bar Council of India, AIR 1975 Del. 192;M.P. Jain, "Indian Constitutional Law",
2003, 5th ed., p. 124317 V. N. Shukla, "Constitution of India", 10th ed., 2001, rep.2004, p. 158 - 159
Double Jeopardy and CrPC
9






Double Jeopardy in Criminal Procedure Code

In the Cr PC, the provision to prevent punishment for the same offence twice
can be found under Sec. 300
28
. 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 a

28
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.

Double Jeopardy and CrPC
10
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.

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.
29
This explanation has been repeatedly used in various cases example
Ramasharama v. Pinki Sharma
30
and E.K. Thankappan v. Union of India.
31


29
Explanation to S. 300 Cr PC
30
1989 Cr LJ 2153 (Pat.); Ratanlal & Dhirajlal, "The Code ofCriminal Procedure", 16th ed.,2002, rep.
2003, p. 887
31
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
Double Jeopardy and CrPC
11
In the case of Krishna Sen Gupta v. Manjula Mukherjee,
32
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.
33


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.
34


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,
35
withdrawal from the prosecution by the public
prosecutor under Sec. 321 Cr PC resulted in an acquittal of the accused even though the
accused was not tried on merit. Such an acquittal would bar the trial of the accused on the
same facts on a subsequent complaint.
36


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

32
1997 (1) Crimes 48 (Cal); Ratanlal & Dhirajlal, "The Codeof Criminal Procedure", 16th ed., 2002, rep.
2003, p. 887
33
R. V. Kelkar, "Criminal Procedure", rev. Dr. K. N.Chandrasekharan Pillai, 4th ed., 2001, p. 479
34
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
35
1975 Cri LJ 963
36
Shankar Dattatraya Vaze v. Dattatray Sadashiv Tendulkar,AIR 1929 Bom. 408, 409
Double Jeopardy and CrPC
12
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.
37

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.
38
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. 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

37
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
38
State of Bombay v. S. L. Apte, AIR 1961 SC 578
Double Jeopardy and CrPC
13
offence for which a separate charge might have been made against him at the formal
trial under Sec. 220 (1).
39

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.
40


Sub - section (3) of Sec. 300 read as thus,

2) 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.
41
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.
42



39
R. V. Kelkar, "Criminal Procedure", rev. Dr. K. N.Chandrasekharan Pillai, 4th ed., 2001, p. 481
40
Kunjilal v. State of M.P., AIR 1955 SC 280; Ratanlal &Dhirajlal, "The Code of Criminal Procedure",
16th ed., 2002, rep. 2003,p. 890
41
Illustration (b) to S. 300 Cr PC
42
Ratanlal & Dhirajlal, "The Code of Criminal Procedure",17th ed., 2004, p. 572-573
Double Jeopardy and CrPC
14
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
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.
43


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.
44



43
Illustration (e) to S. 300 Cr PC
44
Ratanlal & Dhirajlal, "The Code of Criminal Procedure",17th ed., 2004, p. 573
Double Jeopardy and CrPC
15
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. 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.
45


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.







45
R. V. Kelkar, "Criminal Procedure", rev. Dr. K. N.Chandrasekharan Pillai, 4th ed., 2001, p. 484
Double Jeopardy and CrPC
16




Double Jeopardy as practiced in other countries

Australia:
Australian double jeopardy jurisprudence is very similar to other common law
countries. While there is no constitutional protection against re-trials following acquittal,
there have been few examples of statutory exceptions.
In all state jurisdictions prosecutors can appeal against the sentence handed down
by the trial judge and in South Australia and Tasmania the prosecution can appeal against
an error of law made by the trial judge in certain situations. However the acquittal will
still stand valid and the purpose of the appeal is merely to clarify the relevant laws.
In contrast to other common law jurisdictions, Australian double jeopardy law has
been held to extend to prevent prosecution for perjury following a previous acquittal
where a finding of perjury would controvert the previous acquittal. This was confirmed
in the case of The Queen v Carroll
46
, where the police found new evidence convincingly
disproving Caroll's sworn alibi two decades after he had been acquitted of the murder of a
young girl and successfully prosecuted him for perjury. Public outcry following the
overturning of his conviction by the High Court has led to widespread calls for reform of
the law along the lines of the UK legislation.
Canada:
The Canadian Charter of Rights and Freedom
47
s includes provisions such as
section 11(h) prohibiting double jeopardy. But often this prohibition applies only after the
trial is finally concluded, in contrast to the laws of the United States; Canadian law
allows the prosecution to appeal from an acquittal. If the acquittal is thrown out, the new
trial is not considered to be double jeopardy because the first trial and its judgment would
have been annulled. In rare circumstances, a court of appeal might also substitute a
conviction for an acquittal. This is not considered to be double jeopardy either - in this

46
R v Carroll (2002) 213 CLR 635; [2002] HCA 55 at http://en.wikipedia.org/wiki/The_Queen_v_Carroll
47
The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada
Double Jeopardy and CrPC
17
case the appeal and subsequent conviction are deemed to be a continuation of the original
trial.
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
48
, 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.
49


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.

France:
Once all appeals have been exhausted on a case, the judgment is final and the
action of the prosecution is closed (Code of Penal Procedure, art. 6), except if the final
ruling was forged. Prosecution for an already judged crime is impossible even though

48
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
49
http://en.wikipedia.org/wiki/Double_jeopardy#External_links visited on July 11, 2006
Double Jeopardy and CrPC
18
new incriminating evidence has been found. However, a person who has been convicted
may request another trial on grounds of new exculpating evidence.

United Kingdom:
The Parliament of the United Kingdom passed legislation in the Criminal Justice
Act 2003 introduced by then Home Secretary David Blunkett to abolish the previously
strict form of prohibition of double jeopardy in England. Retrials are now allowed if
there is 'new and compelling evidence'. All cases must be approved by the Director of
Public Prosecutions and the Court of Appeal must agree to quash the original acquittal.
50


United States of America:
The phrase "double jeopardy" stems from the Fifth Amendment to the U.S.
Constitution: "nor shall any person be subject for the same offence to be twice put in
jeopardy of life or limb." This clause is intended to limit prosecutorial abuse by the
government in repeated prosecution for the same offense, as a means of harassment or
oppression. It is also in harmony with the common law concept of res judicata, which
prevents 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.
This law is occasionally 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 (at least, not on the same or substantially similar charge) Fong Foo v.
United States, 369 U.S. 141 (1962).
Though the Fifth Amendment applies only to the federal government, the Supreme
Court has ruled that the double jeopardy clause applies to the states as well, through
incorporation by the Fourteenth Amendment.

50
http://www.cps.gov.uk/legal/section19/chapter_j.html
Double Jeopardy and CrPC
19
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.

Conclusion

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.