This article explains the Doctrine of Double Jeopardy in India. This article has been written by Ashwin Pandey, associated with The West Bengal National University of Juridical Sciences
Introduction
Article 20 of the Constitution of India deals with the protections that are afforded with respect to the conviction of offenses. It is made up of 3 elements:
- That no person can be convicted of an offence other than one that was in force at the time when the offence had been committed, and the penalty given to such a person cannot be greater than that which had been in force when the offence had been committed.[1]
- No person can be punished for the same offence more than once.[2]
- No accused can be forced to be a witness against themselves. This is the right against self-incrimination.[3]
In this article we seek to take a closer look at Article 20 (2), and what is more commonly known as the doctrine of double jeopardy.
Origins of the doctrine and its relevance today
On the question of where this doctrine first originated, there does not seem to be any clear consensus. Courts have claimed that the contours of the doctrine have been a product of history, but have not been able to trace it to any specific origin with it being noted by one court that it seems to have always been a part of the common law in England in addition to every other system of jurisprudence, they conclude that instead of having an origin it is something that has always existed.[4]
However, the doctrine finds mention in the ‘Digest of Justinian’ which had stated that the government ought not to allow a person to be accused of a crime of which he has previously been acquitted. The criminal procedures of the time were different to what we have today with the defendant being liable to prosecution by the prosecutor within 30 days of the acquittal.[5]
Furthermore, it is also theorized that the phrase ‘Nemo debit bis puniri pro uno delicto’ or ‘No man ought to be punished for the same offense twice’ was a part of the Roman Law.[6] It is believed that the Continental, as well as English legal systems, adopted the doctrine of double jeopardy from canon law which had stated, as early as 847 A.D that not even God judges a person for the same crime twice.[7]
In India, even before being enacted in the constitution, the principle had existed in the form of Section 403 (1) of the old Code of Criminal Procedures,[8] which became what we see in the form of Section 300 today post amendment, as well as Section 26 of the General Clauses Act.
Today, the doctrine exists in the form of a Constitutional Right not only in India but in other countries such as the United States and Canada. It has also found recognition on a plethora of international documents such as The International Covenant on Civil and Political Rights, European Convention of Human Rights, and The Charter of Fundamental Rights of the European Union.[9]
The doctrine of double jeopardy in India
As we have already discussed, Article 20 talks about the protection that ought to be given to those who have been accused or convicted of having committed an offense. One of the protections that the article talks about is autrefois convict or double jeopardy. What this means is a person cannot be punished for the same offense more than once.
Not only is this right a Constitutional one, but it is also a Fundamental Right guaranteed under Part III of the Constitution. We took the doctrine from the Fifth Amendment to the Constitution of the United States of America,[10] however our version of the doctrine is narrower in nature than that of the United States because in America a second trial is not permitted if the accused has been acquitted in the first trial, in India the second trial can only be stopped if the accused has been punished in the first trial if they were acquitted originally then a fresh case can be brought.[11]
Protection against Double Jeopardy is not only given by the Constitution, Section 26 of the General Clauses Act[12] states that when a person commits an offence under more than one enactment, they must be prosecuted under one of the provisions but not both.
Further, Section 300 of the Code of Criminal Procedures[13] also states that once a person has been convicted or acquitted of an offence, they cannot be tried for the same offence again, or even a different offence based on the same set of facts, so long as the original conviction or acquittal remains in force.
This makes Section 300 wider in scope than Article 20 (2), as was backed up by the court as well in the Kolla Veera Raghav Rao case.[14] The Indian Penal Code also has a provision against Double Jeopardy in the form of Section 71,[15] the section states that in a case where an offence is made up of several offences, the offender cannot be punished for more than one of these offences unless it has expressly been provided so.
In order for Double Jeopardy to be applicable, there are certain conditions that need to be fulfilled. The person needs to have been accused of an offense, there ought to have been proceedings before a court or tribunal, the court must have punished the person for the offense, and the new charge on the person must be the same as the old offense for which they had been prosecuted, this was stated in the case State of Bombay V. S.L. Apte.[16]
If all of these conditions are fulfilled then the defense of double jeopardy can be availed. It is not applicable to situations where distinct offenses have been committed by the same act of the accused, the court clarified this point in their judgment in Bhagwant Swarup V. State of Maharashtra.[17]
Judicial perspective on Double Jeopardy?
In addition to the discussion above, the Courts in India have also made certain observations pertaining to the doctrine through their judgments in various cases, some of these cases will be discussed below.
The courts state that the doctrine of double jeopardy is enshrined in the maxim, nemo debet bis vexari si constat curiae quod sit pro una et eadem causa, this means that no person should be vexed twice if it so appears that it is for the same cause. This was stated by the court in the case Union of India V. P.D Yadav.[18] Post this, there were finer details pertaining to the doctrine that the courts looked into and clarified in other judgments.
The courts clarify than an enquiry made is not equivalent to prosecution. This was done in the case Venkatraman V UOI[19] when the accused underwent an enquiry by the enquiry commissioner after which he was dismissed from his service. Post dismissal, he was charged under the IPC and Prevention of Corruption Act. He pleaded double jeopardy but the courts stated that the enquiry that had been carried out by the enquiry commissioner to terminate his service was not tantamount to prosecution and the charges could be applied and the defence of double jeopardy was rejected.
Next, the doctrine of double jeopardy can only be applied when the punishment is for the same offense. If the offenses are distinct in nature then the doctrine cannot be applied, this was stated in the case Leo Roy V. Superintendent District Jail,[20] where the court said that even though the person had been prosecuted under the Sea Customs Act, they could be prosecuted again under the IPC since there were 2 distinct charges and offenses.
A similar case arose in Assistant Collector of Customs V. L.R Malwani,[21] here the accused had been charged with smuggling of foreign goods and penalized by the customs authority. A petition was then filed against the accused and he was held guilty by the magistrate, with no relief at the High Court, he filed a petition before the Supreme Court and pleaded double jeopardy.
The court held that in order for double jeopardy to be made applicable, the accused ought to have been prosecuted by a court with the competent jurisdiction, and the conviction or acquittal ought to be in force. In the given case, it was decided by the court that the penalty imposed by the customs authority was not tantamount to prosecution and the accused could be tried before the court, hence his plea of double jeopardy was rejected.
We cannot apply the doctrine in a case where an acquittal has been appealed. This was stated in the case Kalwati V. State of Himachal Pradesh,[22] where the accused and acquitted of the charge of committing a murder. The state appealed this decision by the court and the accused pleaded double jeopardy. It was held that here, since the accused had not been originally punished, double jeopardy could not be applied and the appeal was allowed.
The Courts have gone on to clarify in the case State of Rajasthan V. Hat Singh[23] that prosecution and punishment that is carried out under 2 different sections of the same Act, so long as the offenses in the two sections are distinct, would not amount to double jeopardy. If, however, the accused was neither convicted nor acquitted during the course of their trial, then bringing a fresh trial against them would not amount to double jeopardy, this was laid down in O.P Dhaiya V UOI.[24]
If there is a case where the offense is continuing, then it is said that each day constitutes a new offense and the accused can be punished for each one separately, and this would not amount to double jeopardy, this was said by the court in the case Mohammad Ali vs. Sri Ram Swaroop.[25]
The case of Jitendra Panchal v. Intelligence Officer N.C.B[26] is an especially interesting one with regards to double jeopardy. In the case, the drug enforcement agency of the United States, working alongside the NCB from India had confiscated a significant amount of Hashish in Newark.
Through the course of the investigation, it was found that the appellant, working with a couple of accomplices, trafficked hashish out of India into the United States as well as parts of Europe. The appellant was arrested in Austria a few months later by the Drug Enforcement Agency of the USA and extradited to the US.
Post this the NCB Chief recorded the statement of the appellant in the United States itself and proceedings were started in India against the other accomplices of the appellant. Meanwhile, the appellant pleaded guilty before the District Court of Michigan on the charge of conspiracy to possess along with the intention to distribute narcotics and was incarcerated for a total of 54 months. At the end of the term, he was deported to India where he was arrested by the NCB and produced before the learned special judge, Mumbai.
The appellant pleaded double jeopardy since he had already been punished in the United States, but this was rejected by the court since when the appellant pleaded guilty in America, the charges against him had been dropped and had not been dealt with by the Court of Michigan, hence he could be tried for the same in India.
While Section 26 of the General Clauses Act does state that when an act constitutes an offence under two or more laws, the accused can only be prosecuted and punished under one of them, it is crucial to understand that it cannot be applied in a situation where there are two distinct offences with their own distinct elements, despite the fact that there might be some overlaps between the two.
If a person, through the same set of facts, commits different offences through the violation of different laws, cannot plead the doctrine of double jeopardy, this was stated by the court in the Monica Bedi Case,[27] in this case the accused had falsely obtained a passport and had been tried for the offence in Portugal, when the Indian Courts began proceedings against her she pleaded double jeopardy, but it was stated by the court that despite the fact that she had already been tried in a different country, it did not bar the Indian Courts from punishing her, and double jeopardy could not be made available. Hence, if the facts are the same but the elements of the crime are different, this defence cannot be made available.
Double Jeopardy | International Perspective
As stated before, the doctrine of double jeopardy can be found in almost all common law countries. It does however vary in the manner in which it is implemented in different countries, with some making it a part of their Constitutions and others incorporating it through the medium of Statutes.
Until the enactment of the Criminal Justice Act, 2003, the English common law rule of nemo debet bis vexari permitted both autrefois convict as well as autrefois acquit. Post the murder of Stephen Lawrence, it was recommended by the Macpherson report that in a case of murder, the doctrine of double jeopardy ought to be abrogated, making it possible to subject an accused who has been acquitted to a fresh trial in a situation where new, viable evidence has been discovered. These suggestions were incorporated into the act making retrials for those acquitted possible.[28]
The doctrine of double jeopardy is also found in the Constitution of Germany, Article 103(3), which states that in pursuance of general legislation, no person can be punished for the same act more than once.[29]
Article 39 of the Constitution of Japan states that no person can be punished for an act that was deemed to be lawful at the time of commission, or for an act that he has been acquitted for, and the accused shall not be placed in double jeopardy.[30] However, acquittal here refers to the acquittal granted by the Supreme Court; decisions of the lower courts can still be challenged in higher courts without violating the doctrine.
As we have already seen, the doctrine of double jeopardy is also enshrined in the Constitution of the United States of America, through the Fifth Amendment.
Conclusion
Thus, as we have seen from the discussions above, the defense of double jeopardy is made available to a person when they have been convicted of the same crime with the same elements of prosecution, again. The defense provided under Article 20(2) of the Constitution or Sections 300(1) and 26 of the CrPC and general clauses act respectively cannot be made available to a person if a person commits different elements of crime based on the same fact scenarios.
We have also seen through the cases that the doctrine is interpreted on a case-to-case scenario depending on the facts before the court, but at all points, it seeks to protect the innocent and ensure that there is no miscarriage of justice.
The doctrine is extremely crucial to our legal system since once a person has been convicted and punished for their crimes, they ought to know that they have paid their dues and need not fear further punishments. The doctrine has been a part of legal systems for time immemorial and represents a just provision that finds its roots in justice and equity.
[1] India const. art. 20, cl. 1.
[2] India const. art. 20, cl. 2.
[3] India const. art. 20, cl. 3.
[4] Jay A. Sigler, A History of Double Jeopardy, The American Journal of Legal History, Vol. 7, No. 4 (Oct., 1963), at p. 283.
[5] Id.
[6] Id. at 284.
[7] Sonakshi Verma, Guarantee against Double Jeopardy, academike (Apil 8, 2015), Guarantee Against Double Jeopardy – Academike (lawctopus.com).
[8] R. K. P. Sarup, ‘Double Jeopardy’ in Indian law concerning offences committed abroad: Need for a fresh approach, Journal of the Indian Law Institute, Vol. 6, No. 1 (Jan.-Mar., 1964), at p. 105.
[9] Mohini Chaturvedi, Doctrine of Double Jeopardy, law times journal (September 25, 2019), Doctrine of Double Jeopardy – Law Times Journal.
[10] Amartya Bag, Double Jeopardy and the Law in India, ipleaders (August 12, 2014), Double jeopardy and the law in India – iPleaders
[11] Id.
[12] The General Clauses Act, No. 10 of 1897, India Code, §26.
[13] The Code of Criminal Procedures, No. 2 of 1974, India Code (2018), §300.
[14] Kolla Veera Raghav Rao v. Gorantla Venkateswara Rao, AIR 2011 SC 641 (India).
[15] The Indian Penal Code, No. 45 of 1860, india code (2019), §71.
[16] State of Bombay v S.L. Apte, AIR 1961 SC 578 (India).
[17] Chaturvedi, supra note 9.
[18] Union of India & Anr. v. P.D. Yadav, (2002)1SSC 405 (India).
[19] Venkataraman v Union of India, (1954) SCR1150 (India).
[20] Leo Roy v. Superintendent District Jail, AIR 1958 SC119 (India).
[21] Assistant Collector of Customs v L. R. Malwani, (1969) 2 SCR 438 (India).
[22] Kalawati v State of Himachal Pradesh, AIR 1953 SC 131 (India).
[23] State of Rajasthan V Hat Singh, AIR 2003 SC 791 (India).
[24] O.P.Dahiya V Union of India , (2003)1 SCC 122 (India).
[25] Mohd. Ali v Sri Ram Swarup, AIR 1965 All 161 (India).
[26] Jitendra Panchal v Narcotics Control Bureau, (2009) 3 SCC 57 (India).
[27] Monica Bedi v State of Andhra Pradesh, 2011 1 SCC 284 (India).
[28] Verma, supra note 7.
[29]Grundgesetz [GG] [Basic Law], translation at http://www.gesetze -im-internet.de/englisch_gg/index.html, art. 103(3) (Germany).
[30] Nihonkoku Kenpō [Kenpō] [Constitution], art. 39 (Japan).
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