Tag: #doublejeopardy

Double Jeopardy

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Introduction 

Every society has its rules and regulations to control crime and punishments for the violation of the law. Criminal Justice is the system of practices and institutions of government directions to control crime. Double jeopardy is also part of the criminal justice system. The double jeopardy concept came to the abolition of double conviction for the same offense. It is based on the legal maxim ‘Nemo debet bis vexari, si constat curice quod sit pro una it made causa’ means man cannot be punished twice if the court has convicted him for the same offense. This maxim is mentioned in Section 26 of the General Clause Act and Section 300(1) of CrPC. It also follows the “Audi alteram” that no person can be convicted for the same offense. The doctrine of double jeopardy is defined under Section 300 of CrPC. 

Under the Constitution of India

Double jeopardy is the fundamental right (Part III) under Article 20(2). Article 20(2) defines double jeopardy “no person shall be charged and punished again for the same offense.” The term prosecution has three essential components under this article. 

Three essential components of prosecution have: 

  • The person should be accused of an offence. The term an act or omission is punishable by law. 
  • There should be a proceeding and prosecution of the case before the court or judicial tribunal. The defence of double jeopardy is only for those cases that have been decided under the judicial tribunal.
  • When the tribunal accepts the administrative and departmental inquiry, these inquiries are not considered as proceedings of the court.

The Constitution of India is considered only autrefois convict and not autrefois acquit, which means the concept is for those a person is prosecuted and convicted by the court.

In the case, Maqbool Hussain v. the State of Bombay, the appellant came from abroad and brought some gold. He does not mention to the airport authority that he had brought gold. The customs authority impounded the gold under the Sea Customs Act. After some time, he was charged under the Foreign Exchange Regulations Act. The appellant contended that the second prosecution was a violation of his fundamental right, Article 20(2). The court held that the Sea Custom authorities are not a court or judicial tribunal. The prosecution under the Foreign Exchange Act is not a violation of Article 20(2). 

In this case, Venkataraman v. Union of India, the appellant, who was dismissed from her service after an inquiry by the Public Service Enquiry Act, 1960. Later, she was prosecuted under IPC and the Prevention of Corruption Act for corruption. The court held that the proceeding under the Enquiry Act did not amount to a prosecution. Hence, the second prosecution is not a violation of Article 20(2). 

Criminal Procedure Code

The concept of double jeopardy is defined under Section 300 of CrPC and its exceptions. 

  • Section 300(1) – It states that if any person is found guilty under the competent court and convicted for an offence, then a person cannot be acquitted for the same facts. The second trial against the person shall be for different facts or charges.  Illustration – if a person is convicted under Section 221(1) then in the second trial he cannot be convicted again for Section 221(2) of the same Act. 

This section does not include dismissal of a complaint or discharge of accusation. 

  • Section 300(2) – It states that if the person has committed many offences but was not tried in the first trial then he cannot be prosecuted for other charges in the second trial. It means that when a person is convicted in the first trial, he cannot be convicted under the same facts with another offence separately. Before the second trial of a convicted person then it is necessary to take the consent of the State government.
  • Section 300(3) – It permits the second trial of a convict in those cases where new facts came and those facts did not exist in the first trial. This section is applicable for a conviction not in acquittal offences. The case will be retried only in those cases where some facts relating to the case have not come before the court. 
  • Section 300(4) – This prescribes that after the new facts the person cannot be tried in the same court which does not have jurisdiction. The person shall be retried in a competent court which has jurisdiction. 
  • Section 300(5) – It states that if any person is discharged under Section 258 of CrPC (the court has the power to stop the proceeding of the case at any stage with judgment). The stoppage could be after recording the evidence of a witness, the decision of acquittal or release of the accused has the effect of discharge. A person shall not be tried again for the same offence without the consent of the court.
  • Section 300(6) – It states that Section 300 of CrPC shall not affect Section 26 of the General Clauses Act. Section 26 of the General Clauses Act prescribed that if the offence which is committed by the accused falls under two enactments then the accused shall be punished under one enactment. But the dismissal of the complaint and discharge of the accused is not an acquittal. Illustration – A tried for grievous hurt and was convicted. The injured person has died. Then he will be convicted for homicide.

Institute of Chartered Accountants of India v. Vimal Kumar Surana, in this case, the court held that if a person is convicted again for different laws, it cannot amount to double jeopardy. The defendant was charged under the Chartered Accountant Act. The court held that it did not mean he is convicted under the Chartered Accountant Act, so he cannot be convicted under the Indian Penal Code. The accused cannot take defense under Section 300 of Cr.PC because the accused is charged under two different laws.

Conclusion

The concept of double jeopardy protects the accused so that he should not be convicted twice. Double jeopardy is defined under the Constitution and Cr. PC. In the case, Kolla Veera Raghav Rao v. Gorantla Venkateswara Rao, the court held that clause 1 under Section 300 is wider than Article 20(2). Article 20(2) states only a person shall not be prosecuted twice for the same offense. Section 300(1) states a person shall not be tried and convicted for the same offense or same facts but a different offense. If a person is convicted twice for the same offense, it is a violation of the fundamental right. 

The concept intends to protect a person from multiple punishments for the same offense or to maintain the integrity of the justice system and to protect against the abuse of powers granted to criminal administration.

The article has been written by Prachi Yadav, a 2nd-year student from Mody University of Science and Technology, Lakshmangarh, Rajasthan.

The article has been edited by Shubham Yadav, a 4th-year law student at Banasthali Vidyapith.

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