CENTRAL UNIVERSITY OF SOUTH BIHAR

FREEDOM AGAINST DOUBLE

JEOPARDY

Submitted To Course Instructor Submitted By Student

Ms.Poonam Kumari
Mayank Shekhar
Assistant Professor, Law
BA.LLB.(Hons.)
School Of Law And Governance 2nd Semester
Subject- Contract-I Enrollment No. CUSB1613125029
Continuous Assessment-II

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 ACKNOWLEDGEMENT

I owe a sincere thanks to many people who helped me and guided me in

writing of this project. My deepest thanks to my course instructor Mrs.
Poonam Kumari for guiding and helping at every stage during the completion
of this project with sincere attention and care.

Again I would like to thank all mighty and my parents for supporting me in
whole process of this project completion. At last, my deep sense of gratitude
also goes to my friends, institution and every single person who are related
with this project in any way and without whom this project would have been
a distant reality.

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 INDEX
Introduction
Article 20
Annalysis of double Jeopardy in Indian Constitution
Prosecution and Punishment
Double Jeopardy and the ban of issue Estoppel
Double Jeopardy followed in other country
Double Jeopardy as a fundamentallegal right
Comparision between Indian and U.S. Constitution
Conclusion

INTRODUCTION

Double jeopardy is a procedural defense that prevents an accused person from being tried again
on the same (or similar) charges and on the same facts, following a valid acquittal or conviction.

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It is too late to overemphasize or stress on the growing importance of the subject human rights
and the different facets and dimensions thereof, both in the national and international spheres as
well. The basic needs of the human beings are well recognized in almost every Constitution of
the world and though the form or language may be different, the basic structure appears to be one
and the samethe basic requirements and needs of the human beings.
The concept of human rights has assumed very great global importance, be that an advanced
country, developed nation or underdeveloped country. The universal opinion is uniform relating
to protection of human rights. Sir Hersch Lauterpacht was pleased to observe:

"The protection of human personality and of its fundamental rights is the ultimate purpose of all
law, national and international."
The Universal Declaration of Human Rights, The UN Covenant on Economics, Social and
Cultural Rights, the UN Covenant on Civil and Political Rights, the European Convention on
Human Rights, the American Convention on Human Rights, Rules of Procedure of the
Permanent Arab Commission on Human Rights, are a few which may be referred to in this
context1.
The roots of the doctrine against Double Jeopardy are to be found in the well-established maxim
of the English Common Law Nemo Debet Bis Vexari a man shall not be brought into danger
for one and the same offence more than once . If a person is charged again for the same offence
in an English Court , he can plead , as a complete defense , his former acquittal or conviction , or
as it is technically Expressed , take the plea of auterifois acquit or autrefois convict . In India,
protection against double jeopardy is a Fundamental Right guaranteed under Right to Freedom in
the Constitution of India. The term "double jeopardy" refers to the "danger" of a second
punishment whenever an individual is brought to trial again for the same crime (or a greater or
lesser included crime). This means that there cannot be a second prosecution for the same
criminal act (both in fact and in law) upon which a first prosecution was based. The accused
must be released and the case dismissed. . In India, protection against double jeopardy is a
Fundamental Right guaranteed under Right to Freedom in the Constitution of India.

ARTICLE 20
1 International Covenant on Economic, Social and Cultural Rights available on
(https://en.wikipedia.org/wiki/International_Covenant_on_Economic,_Social_and_Cultural_Rights)

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Protection in respect of conviction for offences2

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.

As regards article 20(2) dealing with double jeopardy what it bars is prosecution and punishment
after an earlier punishment for the same offence. Offence here means an offence as defined in
section 3(38) of the general clauses Act. 1897 applied to the constitution by article 367. Art. 20
(2 ) which runs as No person shall be prosecuted and punished for the same offence more than
once contain the rule against double jeopardy .

. The challenge is determining what constitutes the "same" crime for double jeopardy purposes.
Some of the simpler examples include:
an acquittal or conviction for murder will bar any prosecution for manslaughter if based on the
same facts (lesser included example)
an acquittal or conviction for larceny-theft will bar any prosecution for robbery if based on the
same facts (greater included example)
an acquittal or conviction for burglary will bar any prosecution for robbery (even if the burglar
woke up the sleeping couple and robbed them) unless there are distinct elements in one crime
that are not included in the other (multiple criminal transaction example) .
an acquittal or conviction for R.I.C.O. will bar any prosecution for conspiracy or attempted
R.I.C.O. (continuing crime example)
An acquittal or conviction for battery will not bar any later prosecution for murder if the
victims later dies as a result of injuries (separate and distinct new crime example)
ANALYSIS OF DOUBLE JEOPARDY IN INDIAN CONSTITUTION

Art . 20 (2 ) which runs as No person shall be prosecuted and punished for the same offence
more than once contain the rule against double jeopardy .

2 P.M BAKSHI, The Constitution Of India,97 (Universal Law Publishing)

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The principle was in existence in India even prior to the commencement of the Constitution , but
the same has now been given the status of a constitutional , rather than a mere statutory ,
guarantee .
Both Prosecution and Punishment should co-exist for Article 20 (2) to be operative, A
prosecution without punishment would not bring the case within Art 20 (2 ) . If a person has been
prosecuted for an offence but acquitted , then he can be prosecuted for the same offence again
and punished .
Ex- a person was prosecuted and punished under S.161 I.P.C . On appeal , the High Court
quashed the trial holding it void ab- initio as no sanction for the same had been obtained under
the law . Art 20 (2) would not bar a second trial for the same offence , as the accused had not
been prosecuted and punished for that offence .
Enhancement of punishment by the revising authority does not amount to a second punishment .
Preventive Detention is not prosecution and punishment and , therefore , it does not bar
prosecution of the person concerned .
The Supreme Court has explained the legal position as follows in Apte Case
To operate as a bar the second prosecution and the consequential punishment thereunder 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 the 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 allegation in the two the allegation in the two complaints but the ingredients of
the two offences and see whether their identity is made out ..
In APTE case, a person was convicted under S. 409 I.P.C . , for criminal breach of trust . His
later prosecution on the same facts under S.105 of the Insurance act would not be barred under
Art 20 (2) because the ingredients of the two offences were different. The court emphasized that
the crucial requirement for attracting Art 20(2) is that the offence are the same i.e. they should be
identical . If the two offences are distinct, then , notwithstanding that the allegations of facts in
the two complaints are substantially the same , the benefit of the ban cannot be invoked . It is
therefore necessary to analyze and compare not the allegations in the two complaints but he
ingredients of the two offences and see whether their identity is made out.
Prosecution & Punishment.

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Prosecution has no fixed meaning and is susceptible both of a wide and a narrow meaning . But
as used in Art 20 (2) it embodies the following THREE ESSENTIALS :
a) 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 meaning an act or omission made
punishable by any law for the time being in force
b) The proceedings should have been taken before a court or judicial tribunal . The revenue
authorities like the sea customs authorities , are not judicial tribunals . . Likewise proceedings
before a tribunal which entertains departmental or administering enquiries
c) It cannot be considered as proceedings in connection with proceedings in connection with
prosecution and punishment.
d) The proceedings should have been taken before the judicial tribunal or court in reference to
the law which creates offences. Thus, where an enquiry is held before a statutory authority
against a government servant, not for the purposes of punishing for the offence of cheating and
corruption but to advise the government as to the disciplinary action to be taken against him , it
cannot be said that the person has been prosecuted . It would make no difference even if the
enquiry is required to act judicially.
. Punishment in this clause means a judicial penalty , awarded by a Criminal Court , as
distinguished from a statutory authority and would not include other penalties , such as
disciplinary action in the case of public servants , ( including penalty imposed under S. 22 of the
Public Servants ( Inquiries ) Act 1850 ; or action against a lawyer under the Legal Practitioners
Act or penalties for the jail offences under disciplinary rules of jail or under the Prisons Act or
penalties under s. 167 ( 8) of the Sea Customs Act , 1878 or under S. 23 (1)(a) of the Foreign
Exchange Regulation Act , 1947 or penalties prescribed by the Rules of a Legislature for the
Breach of privilege ; or removal under the Influx of Pakistan ( Control ) Act or binding down for
good behavior under S. 110 or taking security under S. 107 of the Criminal Procedure Code.
Gajendragadkar . J. has rightly stated the protection under Art 20 (2) as follows :
The constitutional right guaranteed by Article 20 (2) against double jeopardy can be
successfully invoked only where the prior proceedings on which reliance is placed are of a
criminal nature instituted or continued before a court of law or a tribunal in accordance with the
procedure prescribed in the statute which creates the offence and regulates the procedure .

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Article 359 deals with Suspension of the enforcement of the rights conferred by Part III during
emergencies.
The clause permits permits suspension of the right move court but excludes Article 20
(retrospectivity of law relating to offences, double to jeopardy and self-incrimination).

1) Maneka Gandhis v. Union of India3 - Article 21 ( Life and liberty not to be deprived
except according to procedure established by law.
2) Maqbool Hussain v. State of Bombay4 - . In that case, the appellant, a citizen of India ,
on arrival at the airport , did not declare that he had brought in gold with him . But on the
search it was found that he was carrying 107 tolls of gold in contravention of the
Government notification. The customs authorities thereupon took action against him
under Section 167(8) of the Sea Customs Act , 1878 , and confiscated the gold.
The court held that the Sea Customs authorities is not a court or judicial tribunal and the
ad3judging of confiscation or the increased rate of duty or penalty under the provision of the Sea
Customs Act did not constitute a judgement or order of a court or judicial tribunal necessary for
the purpose of supporting a plea of Double Jeopardy.
3) S.A. Venkataraman v. Union of India 5 - In this an enquiry had been made against the
appellant under the Public Servants (Inquiries) Act , 1850 . On receiving the report of the
Enquiry Commissioner an opportunity was given to the appellant under Article 311(2) to
show cause and ultimately the appellant was dismissed.
His plea was rejected on the ground that the proceeding taken against him before the
Commissioner under the Enquiries Act did not amount to a prosecution because in an enquiry
under the act there was neither any question of investigating an offence in the sense of an act or
ommission punishable by any law which made that act or omission an offence . The rule is the
same even if the departmental enquiry is set up after the acquittal of the accused in a criminal
prosecution on the same facts.

3 AIR,1978,SC,597

4 AIR,1953,SC,325

5 AIR,1953,SC,375

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 4) A.A Mulla v. State of Maharashtra 6 - In this case the appellants were charged under the
Section 409 I.P.C. and Section 5 of the Prevention of Corruption Act for making false
panchnama disclosing of recovery of 90 Gold Biscuits although to prosecution case the
appellant had recovered 99 Gold Biscuits.
It was held that the second trial was not barred as not only the ingredients of the offence of
two trials were different but the factual situation of the offences in the first and the second
trial were also different.
Double Jeopardy and the Bar of Issue Estoppel
While Art.20 (2) bars double punishment , the rule of issue estoppel is a facet of the doctrine of
autrefois acquit and bars reception of evidence on an issue on which finding was in favor of the
accused at a previous trial . Art. 20(2) have no direct bearing on the question at issue; it operates
as soon as a person had previously been punished in a previous proceeding. Identity of the issue
and the acquittal of the person at a previous trial on the same issue is the condition for the
application of the rule of issue estoppel while identity of the same offence is a requisite for the
application of Art. 20 (2).
DOUBLE JEOPARDY FOLLOWED IN OTHER COUNTRIES
1. Australia7
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 aquittal will still stand valid and the
purpose of the appeal is merely to clarify the relevant law for future cases.
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, where the police found new evidence convincingly disproving Caroll's sworn alibi two

6AIR,1996,SC,143

7 Australia Double Jeopardy-available at (http://www.abc.net.au/news/2016-05-

07/why-australia-watered-down-double-jeopardy-laws/7392372)

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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.
2) 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.
3) 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 new incriminating evidence
has been found. However, a person who has been convicted may request another trial on grounds
of new exculpating evidence.
4) Canada
The Canadian Charter of Rights and Freedoms 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 judgement 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 case the appeal and subsequent conviction are
deemed to be a continuation of the original trial.

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DOUBLE JEOPARDY AS A FUNDAMENTAL LEGAL RIGHT

The right not to be tried twice for the same offence is a fundamental legal and human right
recognised in many Bills of Rights and human rights treaties. Here's a sample of them:
1. UN International Covenant on Civil and Political Rights, Article 14(7)
No one shall be liable to be tried or punished again for an offence for which he has already been
finally convicted or acquitted in accordance with the law and penal procedure of each country.
2. Bill of Rights Act 1990 (NZ) Section 26(2)
No one who has been finally acquitted or convicted of, or pardoned for, an offence shall be tried
or punished for it again.
3. Charter of Fundamental Rights of the European Union (2000) Article 50
No one shall be liable to be tried or punished again in criminal proceedings for an offence for
which he or she has already been finally acquitted or convicted within the Union in accordance
with the law.
4. Canadian Charter of Rights and Freedoms (1982) Section 11(h)
Any person charged with an offence has the right...if finally acquitted of the offence, not to be
tried for it again and, if finally found guilty and punished for the offence, not to be tried or
punished for it again.

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COMPARISON BETWEEN INDIA & U.S. CONSTITUTION8

1. The ambit of Art 20 (2) is however, narrower than the American rule against double jeopardy.

2. Indian Provision enunciates only the principle of autrefois convict but not that of autrefois
acquit whereas in American constitution both these rules operate and second trial is barred even
when the accused has been acquitted at the first trial for that offence In India ,
on the other hand , the rule autrefois acquit is not incorporated in Art 20 ( 2 ) . Art 20 (2 ) may be
invoked only when there has been prosecution and punishment in the first instance .

3. In the American system the Constitutional bar applies to the second prosecution irrespective of
the result of the first prosecution . The constitutional safeguard can be pleaded to the second
prosecution whether the accused was acquitted or convicted in the first prosecution , the
Common law Principle is also the same whereas the rule in Indian Constitution is different . In
order to bring the case of a person within the prohibition of Article 20 ( 2 ) it must be shown that
he had been prosecuted before a court and punished by it for the same offence for which he
is prosecuted again .

4. In India the, protection against double jeopardy is a Fundamental Right guaranteed under
Right to Freedom in the Constitution of India.
And is enshrined in Art . 20 (2 ) which runs as No person shall be prosecuted and punished for
the same offence more than once contain the rule against double jeopardy whereas in U.S
constitution it is enshrined in US Constitution, Fifth Amendment as No person shall be...subject
for the same offence to be twice put in jeopardy of life or limb...

5. In U.S constitution The clause, however, has been interpreted as providing protection
regarding "every indictment or information charging a party with a known and defined crime or
misdemeanor." The clause, it has been held, does not prevent separate trials by different

8 Comparison between India and us constitution available at

(http://www.preservearticles.com/201012301970/difference-between-indian-
constitution-and-american-constitution.html)

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governments, and the state and federal governments are considered "separate sovereigns".
Therefore, one may be prosecuted for a crime in a state court, and also prosecuted for the same
crime in another state, a foreign country, or (most commonly) in a federal court. Whereas in
India Both Prosecution and Punishment should co-exist for Article 20 (2) to be operative . A
prosecution without punishment would not bring the case within Art 20 (2 ) . If a person has been
prosecuted for an offence but acquitted , then he can be prosecuted for the same offence again
and punished Ex- a person was prosecuted and punished under S.161 I.P.C . On appeal , the High
Court quashed the trial holding it void ab- initio as no sanction for the same had been obtained
under the law . Art 20 (2 ) would not bar a second trial for the same offence , as the accused had
not been prosecuted and punished fot that offence .
6. In U.S Constitution ,In order for the rule of double jeopardy to apply, the subsequent trial must
be based on the exact same facts as the former trial. The trials must be for the same incidence of
the crime. If a defendant is prosecuted for a crime in which he committed multiple incidences of
the same crime, each incidence can be tried separately without double jeopardy whereas in
Indian Constitution the previous conviction for one offence ( e.g. hurt ) does not bar a subsequent
trial and conviction for a separate and distinct offence ( say affray ) even though the two offences
arise out of the same facts , and the allegations in the two complaints are identical . Distinct
offences may be created by different statutes or by different provision of the same statutes

7. Under the U.S Constitution the protection agaist Double jeopardy is given for the second
prosecution of the same offence irrespective of whether an accused was aquitted or convicted in
the first trial wheras in article 20 (2) of the Indian Constitution the protection against double
punishment is given only when the accused has not only been prosecuted but also punished
and is sought to be prosecuted second time for the same offence .

8. In the U.S Constitution , The double jeopardy principle was explicitly incorporated into the
Constitution when the Bill of Rights was ratified in 1791. whereas in India the Principle of
Double Jeopardy was in existence in India even prior to the commencement of the Constitution
and is enacted under in S. 26 of the General Clauses Act and S. 403 (1) of Cr. P.C, 1898 , S. 300
Cr. P.C. , 1973.

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CONCLUSION
Double Jeopardy is concept originated from Natural Justice which follows the audi alterum
partem rule, which says that person persecuted once cannot be punished again for same offence,
but this concept is subjected to certain restriction. Thus where a number of persons were
punished for smuggling currency notes , arms and ammunition and were later on prosecuted for
criminal conspiracy for carrying out their trade , it was held that prosecution was not forbidden
although it related to the same offence , i.e smuggling currency notes , etc for which they had
already been prosecuted and punished . Art 20(2) deals with this subject .The Court has to keep
in mind what offences constitutes same offence and which do not .if certain person is acquitted
before court of law in India then it is to be shown that he was prosecuted and punished ,simply
proving that accused was prosecuted cast no defense of double jeopardy .
To claim Double Jeopardy accused has proved that he was:-
(1) Firstly prosecuted and
(2) Awarded punishment.
If any of these is absent it will not amount to Double Jeopardy Enhancement of punishment by
the revising authority does not amount to a second punishment. Preventive Detention is not
prosecution and punishment and, therefore, it does not bar prosecution of the person concerned.
It has been held that Article 20(2) does not apply to a continuing offence. Both Prosecution and
Punishment should co-exist for Article 20 (2) to be operative. A prosecution without punishment
would not bring the case within Art 20 (2) . If a person has been prosecuted for an offence but
acquitted , then he can be prosecuted for the same offence again and punished . Ex- a person was
prosecuted and punished under S.161 I.P.C. On appeal , the High Court quashed the trial holding
it void ab- initio as no sanction for the same had been obtained under the law persecution amount
only before court of law not any official of state like Police inspector .American constitution
enshrine this concept of double jeopardy by Vth amendment ,which is quite broader than Indian .
It amount when person is persecuted only. Accused can take defense when he is prosecuted
only ,he need not to show that he was punished .
The Court made it clear that the principle of Issue of Estoppel is different from the rule of
Double Jeopardy incorporated under Art. 20 (2).

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I my opinion I consider that Art 20(2) is quite concept which requires to prove that persecution
was of same crime for which he was punished. Here I would like to comment that for judges
should take active part and form bench or jury in order to decide the case in accordance with
natural justice. In my opion Indian constitutional maker laid down proper condition for double
jeopardy, which was in accordance with condition of India, autrefois convict is upheld not
autrefois acquit. According to that second trail is not barred even when accused has been
acquitted at the first trail for that offence.

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 Bibliography

Books:
Dr. J. N. Pandey, 53rdedn. (2016), Constitutional Law of India, Allahabad,
Central Law Agency

V. N. Shukl , 12thedn. (2016), Constitutional Law Of India, Lucknow,

Eastern Book Company

P. M. Bakshi, 13thedn. (2016), The Constitution of India, Harayana, Lexis

Nexis

Websites
www.e-lawresources.com
www.iloveindia.com
www.legalservicesindia.com

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