UNIVERSITY OF PETROLEUM & ENERGY STUDIES

COLLEGE OF LEGAL STUDIES

B.B.A., LL.B (HONS.) CORPORATE LAWS, SECTION B -2

SEMESTER - III

ACADEMIC YEAR: 2017-18 SESSIONS: JULY-

DECEMBER, 2017

FOR
Constitution Law

UNDER THE SUPERVISION OF: Ms Bharti Nair

NAMES SAP ID ROLL NO

NAMES: Raghav Gupta (500055233) (085)

Kriti Agarwal (500053938) (134)
 Abstract
Protection against double jeopardy
The concept of protection against double jeopardy originates form the article 20(2) of the Indian
constitution which states, that no person shall be prosecuted and punished for the same offence
more than once. This is given to every citizen as a fundamental right conferred in part 3 of the
constitution. This right protects citizens from being prosecuted and punished for a crime that
they have already been charged for that is if a person is prosecuted and punished for a crime then
they cannot be prosecuted and punished for the same case with the same evidence.

Like all the fundamental rights this is also a negative right, which means, it curtails the power of
the state and freedom to citizens. This concept was added believing on the principle that no
innocent person should be punished for a crime he/ she didnt commit.

In this project we are going to present the principle of Double Jeopardy and its place in the
Indian constitution how it works in the present scenario and our thoughts on the matter as a
whole in the conclusion.
 Synopsis
Chapterisation
Introduction
Principle of double jeopardy
Insight into article 20 (2)
Practical scenario/ judicial approach
Conclusion
 Introduction
Article 20(2) of the constitution which deals with the fundamental rights clearly states that no
person shall be prosecuted and punished for the same offence more than once. This provides
you with the basic concept of the double jeopardy. Double jeopardy is also a legal term which is
also known as autrefois convict. But what is double jeopardy? It is a term which means that no
person shall be punished twice for the same offence for which he/she has been already
prosecuted/convicted. Therefore, if a person is convicted for the same offence then the person
convicted can take the plea of Double Jeopardy. But as any other law it also has some
exceptions-

It cannot convict/ prosecute or even punish a person for the same offence by using the
same bunch of evidence.
A person can be convicted/tried twice based on the same facts as long as the facts of each
and every case/crime are different.
Different jurisdictions can convict the same person on the basis of the same crime based
on same facts and circumstances without violating the Double Jeopardy.

As we are aware of the fact that all the fundamental rights are the negative rights, similarly, this
right being a part of fundamental rights is a negative right. It restricts/curtails many acts of the
state and the government. It prohibits the state from re-prosecuting for the same offense/crime a
defendant who has already been acquitted/convicted. It also prevents state and federal
governments from imposing more than one punishment for the same offense.

If we talk about the Indian perspective then, the concept of double jeopardy existed in India prior
to the commencement of the Constitution of India. It was enacted under section 26(3).
Section 26 clearly states that provisions as to offences punishable under two or more
enactments- where an act or omission of an act constitutes to be an offence under two or
more enactments, then the person committing the offence/offender shall be liable to be
prosecuted or punished under any of those enactments, but the offender shall not be liable
to be punished twice for the same crime/offence.
Section 403(1) of the old CrPC 1898, which clearly states in section 300(1)- a person who has
once been tried/acquitted by the court of law of competent jurisdiction for an
offence/crime, should not be liable to be tried again for the same offence nor on the
different facts for any offence made against one under sub-section(1)or (2) of section
221. Along with this section 71 of IPC discusses about the punishment for the same.

The project will also be highlighting the Article 20(2) in detail and will also be discussing the
history, the origin of double jeopardy along with the related case laws.
 PRINCIPLE OF DOUBLE JEOPARDY

Double Jeopardy is based on the maxim nemo debet bis vexari prouna eteadem causa which
states that a man shall not be brought into danger for the same offence more than once also he
should not be punished for the same offence more than once.

The clause of double jeopardy came from the fifth amendment of the US Constitution which
prohibits the government from prosecuting individuals more than one time for a single offence
and for imposing more than one punishment for a single offence.

The concept of double jeopardy is one of the oldest prevailing concept of the western
civilization. In 335 B.C. Athenian statesmen Demosthenes said that the law forbids the same
man to be tried for the same issue/conflict/offence. The Romans codified this principle of
double jeopardy in the Digest of Justinian in 533 A.D. The principle also survived the Dark
Ages i.e. the period from 400-1066 A.D. as per the canon law and the teachings of early
Christian writers notwithstanding the deterioration of other Greco-Roman legal traditions.

As it is well established that the principle of double jeopardy is one of the well-known principles
of the criminal jurisprudence. The main objectives of Double Jeopardy that provide the
protection to the citizens are discussed as follows

The criminal while undergoing successive criminal proceedings for the fact that only one
crime has been committed, might undergo unnecessary harassment which can either be
physical or mental. Therefore, a persons right to life and liberty shall not be put in
jeopardy twice where the facts and circumstances are the same.
The Indian judicial system is already suffering from a long backlog, so, in such a
situation the legislation should be put to an end once the litigation comes to a logical
conclusion which is either conviction or acquittal of the person who has been accused for
committing an offence/crime.
Double Jeopardy in England

In England the protection against double jeopardy was considered a universal maxim of the
common law and was embraced by eminent jurists Henry de Bracton (1250), Sir Edward Coke
(1628), Sir Matthew Hale (1736), and Sir William Blackstone (1769). However, the English
double jeopardy doctrine was extremely narrow. It afforded protection only to defendants
accused of capital felonies and applied only after conviction or acquittal. It did not apply to cases
dismissed prior to final judgment and was not immune to flagrant abuse by the British Crown.

Double Jeopardy in the American Colonies

The American colonists were intimately familiar with the writings of Bracton, Coke, and Hale.
Copies of Blackstone's Commentaries on English law were available in most of the colonies, and
Blackstone's teachings were often quoted by the colonists in support of their claims that
Parliament was exceeding its lawful authority.

The colonists were also familiar with how narrowly the right against double jeopardy had been
defined in England. During the constitutional convention James Madison sought to enlarge the
definition by making the right against double jeopardy applicable to all crimes not just capital
felonies. Yet Madison's original draft of the Double Jeopardy Clause was perceived by some as
too restrictive. It provided that "No person shall be subject ... to more than one punishment or
one trial for the same offense" (United States v. Halper1, Several House members objected to this
wording, arguing that it could be misconstrued to prevent defendants from seeking a second trial
on appeal following conviction. Although the language of the Fifth Amendment was modified to
address this concern, the final version ratified by the states left other questions for judicial
interpretation.

1
490 U.S. 435, 109 S. Ct. 1892, 104 L. Ed. 2d 487 [1989]).
 INSIGHT INTO ARTICLE 20 (2)
Article 20 -

Protection in respect of conviction for offences

(1) 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

(2) No person shall be prosecuted and punished for the same offence more than once

(3) No person accused of any offence shall be compelled to be a witness against himself

Article 20(2) says that no individual should be arraigned and rebuffed for a similar offense more
than once. This is called Doctrine of Double Jeopardy. The target of this article is to maintain a
strategic distance from provocation, which must be caused for progressive criminal procedures,
where the individual has carried out just a single wrongdoing. There is a law adage identified
with this nemo debet bis vexari. This implies no man might be placed twice in hazard for a
similar offense. There are two parts of Principle of Risk viz. autrefois convict and autrefois
vindicate. Autrefois convict implies that the individual has been already indicted regard for a
similar offense. The autrefois absolve implies that the individual has been vindicated on a same
charge on which he is being indicted. If you don't mind take note of that Constitution bars double
jeopardy discipline for a similar offense. The conviction for such offense does not bar for
ensuing trial and conviction for another offense and it doesn't make a difference the a few
elements of these two offenses are normal. The guideline of double jeopardy danger is a piece of
basic rights and as our standards of central rights are acquired from USA this is additionally one
of them rule of double jeopardy peril is consolidated into the U.S. constitution in the Fifth
Revision, which says that "no individual should be twice placed in peril of life or appendage."
The guideline is more grounded in US and UK states as there a man can't be indicted for a
similar offense twice regardless of conviction or exoneration however in India a man must be
both arraigned and rebuffed for him to be qualified for this rule.
The guideline of double jeopardy under Article 20(2) does not matter to a proceeding with
offense that is an alternate run after is laid for a similar activity or same offense.

The State of Bombay v. S.L. Apte and Anr.2

The Constitution Bench of this Court while dealing with the issue of double jeopardy
under Article 20(2), held: 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. The next point to be
considered is as regards the scope of Section 26 of the General Clauses Act. Though Section 26
in its opening words refers to the act or omission 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 made clear
by 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 this
provision also cannot be invoked.

Here, my opinion is that, there is a need of active participation of Judges; they have to keep in
mind of those offences which constitute the same offence & those too which do not. But it is
clear in the study that if a person has been prosecuted for an offence but acquitted, then only he
can be prosecuted for the same offence again & punished.

2
AIR 1961 SC 578
 Prior to constitution

The principle of Double Jeopardy existed in India before the implementation of the Constitution
of India. It was instituted under section 26. Section 26 expresses that "arrangement as to offenses
culpable under at least two authorizations, - where a demonstration or exclusion constitutes an
offense under at least two establishments, at that point the guilty party might be at risk to be
indicted or rebuffed under either or any of those institutions, yet should not be subject to be
rebuffed twice for a similar offense.

What's more, area 403(1) of the old CrPC,1898 (Section 300 of the changed CrPC , which states,
300(1) a man who has once been attempted by a court of able purview for an offense and
indicted absolved for offense should, while such conviction or exoneration stays in constrain, not
to be at risk to be attempted again for a similar offense, nor on similar realities for some other
offense for which an alternate charge from the one made against him may have been under sub-
segment (1) of the section 221 or for sub-section (2) thereof, It is to be noticed that, the Code of
Criminal methodology perceive both the requests of autrefois vindicate and autrefois convict.
The conditions which ought to be fulfilled for raising both of the request under the Code are:
right off the bat; that there ought to be past conviction or exoneration, besides; the conviction or
vindication must be by be a court of capable locale, and thirdly; the consequent continuing must
be for a similar offense. The articulation "same offense" demonstrates that the offense for which
the charged should be attempted and the offense for which he is again being attempted must be
indistinguishable, and in light of a similar arrangement of actualities.

Section 71 of IPC keeps running as-points of confinement of discipline of offense made up of a

few offenses where anything which is an offense is comprised of parts is itself an offense; the
wrongdoer should not be rebuffed of more than one of such his offenses, unless it be so explicitly
gave.
 JUDICIAL APPROACH
In Venkataraman v. Union of India3-

An enquiry was made before the enquiry official on the appealing party under The general
population Enquiry Act, 1960 and thus, he was expelled from the administration. He was later
on, charge for submitted the offense under the Indian Penal Code and anticipation of Defilement
Act. The court held that the Procedure held by the enquiry official was just a minor enquiry and
did not add up to an arraignment for an offense. Subsequently, the second indictment did not
draw in the teaching of Double Jeopardy or assurance ensured under major rights as said in the
Article 20 (2).

When the case is of two different offences

In Roshan Lal & Ors v. State of Punjab4

The blamed had vanished the confirmation for two separate offenses under area 330 and segment
348 Indian Penal Code. Thus, it was held by the court that the denounced was at risk to be
indicted for two separate sentences.

For this situation, the appellants were charged under area 409 IPC and Segment 5 of the
avoidance of Corruption Act,1947 for making false panchnama in which they have indicated
recuperation of 90 gold gold scones while as indicated by the indictment case, they had
recovered 99 gold scones. The appellants were striven for the same and vindicated. The
appellants were again striven for the offense under segment 120-B of Indian Penal Code, Area
135 and 136 of the Traditions Demonstration, Segment 85 of the Gold (control) Act and Segment
23(1-An) of FERA and Segment 5 of Import Fare (control) Act,1947. The legitimacy of the
consequent indictment was tested by the litigant by the appealing party on the ground that it
negated the protected ensured epitomized in Article 20(2). The court held: "Subsequent to giving
our watchful thought to the actualities and conditions of the case and the entries made by the
educated guidance for the individual gatherings, it appears to us that the elements of the offenses
for which the appellants were charged in the principal trial are completely extraordinary. The
second trial with which we are worried in this interest, visualizes an alternate actuality
circumstance and the enquiry for discovering constituting offenses under the Traditions
Demonstration and the Gold (Control) Act in the second trial is of an alternate sort. Not just the
elements of offenses in the past and the second trial are unique, the authentic establishment of
the principal trial and such establishment for the second trial is additionally not indented (sic).
Appropriately, the second trial was not banned under Segment 403 CrPC OF 1898 as charged by
the appellants."

3
AIR 1954 SC 375
4
AIR 1965 SC 1413
Union of India & Anr. v. P.D. Yadav5

the benefits(pension) of the officer, who was indicted by a Court-Military, had been relinquished.
The court held: "This guideline is typified in the notable saying nemo debet bis vexari si constat
curiae quod sit genius una et eadem causa, which means nobody should be vexed twice on the
off chance that it appears to the court that it is for one and a similar reason. Doctrine of Double
Jeopardy is an assurance against arraignment twice for a similar offense. Under Article 20-22 of
the Indian Constitution, arrangements are made identifying with individual freedom of residents
and others offenses, for example, criminal rupture of put stock in, misappropriation, deceiving,
slander and so on., may offer ascent to indictment on criminal side and furthermore for activity
in common court/other discussion for recuperation of cash by method for harms and so on.,
unless there is a bar made by law. In the procedures under the watchful eye of General Court
Military, a man is striven for an offense of unfortunate behavior and though in passing request
under Direction 16 (a) for relinquishing annuity, a man isn't striven for a similar offense of
wrongdoing after the discipline is forced for a demonstrated wrongdoing by the General Court
Military bringing about cashiering, expelling or expelling from benefit. Just further move is
made under Direction 16 (an) are completely unique. Henceforth, there is no doubt of applying
standard of Double jeopardy Peril to the present cases."

In Jitendra Panchal v. Intelligence Officer N.C.B. 6

17th October, 2002, officers of the US Medication Implementation Organization, alongside

officers of the Opiates Agency, India, grabbed a committal of 1243 pounds proportional to 565.2
Kgs. of Hashish in Newark, USA. Amid the examination, it seems to have happened that one
Niranjan Shah and the appealing party were occupied with trafficking Hashish out of India into
the USA and Europe and that the seized stash had been pirated out of India by the litigant and the
said Niranjan Shah alongside one Kishore. The litigant was captured in Vienna in Austria by
officers of the Medication Authorization Organization, USA on fifth December, 2002 and was
removed to the USA. Before long, from that point, on 25th Walk, 2003, the Appointee Executive
General of the Opiates Control Agency, hereinafter alluded as `the NCB', went to the USA and
recorded the appealing party's announcement. Along these lines, on ninth April, 2003, officers of
the NCB captured Niranjan Shah, Kishore Joshi and Irfan Gazali in India and arraignment was
propelled against them in India. On fifth September, 2003, an objection was recorded by the
NCB under the watchful eye of the scholarly Uncommon Judge, Mumbai, against Niranjan Shah,
Kishore Joshi and two others under Segments 29/20/23/27A/24 read with Segment 8(c)/12 of the
Opiate Medications and Psychotropic Substances Act, 1985, hereinafter alluded to as `the NDPS
Act', regarding the previously mentioned episode. While the said Niranjan Shah and others were
5
(2002)1SSC 405
6
(2002)1SSC 405
being continued with under the watchful eye of the scholarly Exceptional Judge in Mumbai, the
appealing party, who had been removed to the USA, was attempted under the watchful eye of the
Locale Court at Michigan, USA,[14] On confessing of the charge of connivance to have with
expectation to disperse controlled substances, which is an offense under USC Controlled
Substances Act[15], the litigant was condemned to detainment on 27th June, 2006, for an
aggregate term of 54 months. In the wake of serving out the previously mentioned sentence, the
appealing party was expelled to India on fifth April, 2007, and on his landing in New Delhi, he
was captured by officers of the NCB and was taken to Mumbai and on tenth April, 2007, he was
delivered before the educated Boss Metropolitan Judge and was remanded to legal custody. At
this point, it might be demonstrated that in spite of the fact that the litigant could have been
arraigned for different offenses under Title 21 USC, alternate charges against the appealing party
were dropped as he had confessed to the offense of planning to have controlled substances. On
25th April, 2007, on the appealing party's application that the procedures against the litigant in
India would add up to double jeopardy risk, the scholarly Exceptional Judge, Mumbai, dismissed
the appealing party's conflict after holding that the charges which had been dropped against the
appealing party in the procedures in the USA had not been managed while forcing sentence
against him in the Region Court of Michigan, USA. The Unique Judge expanded the legal care
of the appealing party and accordingly dismissed his petition for abandon seventeenth May,
2007.
 CONCLUSION

This project shows a detailed analysis of the principle of double jeopardy with the constitution of
India as its base giving an origin, history and different countries stand on the principle as a
statute and judicial working.

The point which was required to be highlighted is that Article 20 (2) is applicable only when and
where the punishment is for the same offence and not for different scenarios. This is supported
by the following case law

Leo Roy v. Superintendent District Jail7

In this case the Court held that if the offenses are unmistakable the govern of Double Jeopardy
won't make a difference. Along these lines, where a man was arraigned and rebuffed under sea
customs act, and was later on indicted under the Indian Penal Code for criminal connivance, it
was held that second arraignment was not banned since it was not for a similar offense.

It is also shown that the laws regarding double jeopardy are more lenient in India than in other
UK colonies as well as in USA, because of the simple fact that, both these countries do not allow
a second prosecution and the decision of the case is immaterial to this matter.

7
AIR 1958 SC119