The Constitutional Right of Protection Against Double Jeopardy

    The Constitution of India, being one of its kind and as the most comprehensive constitution in the world, has been founded on the cardinal principles of democracy and the Rule of Law. Thereby, by encompassing the concept of free and fair trial, the Constitution has not only established that the supreme law of the nation is in consonance with the principles of natural justice, but by incorporating the fundamental words said by Blackstone that “it is better that ten guilty persons escape than that one innocent suffer” [1], it has also committed itself to the rights of the accused at all stages of the trial, who in the eyes of the law shall be presumed innocent until proven guilty beyond reasonable doubt. According to Black’s Law Dictionary double jeopardy means “the fact of being prosecuted or sentenced twice for substantially the same offence.” [2]

    In layman’s terms, it means subjecting an individual to a second trial, for an offence, for which he has already been tried earlier, and has subsequently been acquitted or convicted by a competent court. This procedural defence intends to protect the accused from undergoing a trial for an offence or a charge already decided by the court.

    The right against double jeopardy is a post-trial right of the convict or the acquitted, that aims to secure him against further criminal charges, enquiries or trials. It has been enshrined under “Article 20(2) of the Constitution of India, as well as Section 300 of the Criminal Procedure Code, 1973 and also Section 26 of the General Clauses Act, 1897”. The fact that this doctrine was incorporated in the CrPC 1898, under section 408(1), is a proof that the Indian law makers had sought to equally protect the accused from multiple trials and unnecessary vexation. Doctrine of double jeopardy has been derived from the recognised maxim of the English Common law, “nemo debet bis vexari”, meaning that “a man must not be put twice in peril for the same offence”. [3] With the increasing number of criminal cases around the world, various legal systems have incorporated this doctrine, either in their constitution or other statutes. Thus, although the doctrine of double jeopardy has an English origin, its reception and implementation has varied over time and across borders.

    Origin of the Doctrine of Double Jeopardy

    The doctrine of double jeopardy originated in its earliest form during the 12th century, as a result of a controversy between King Henry II and Archbishop Thomas Becket. The former wanted the clergy, already punished by the ecclesiastical court to be punished by the royal court, while the latter, sought for their exemption based on the maxim “nimo bis in idipsum”, that meant “no man ought to be punished twice for the same offence”, said to have stemmed from St Jerome‟s commentary in AD 391 on the prophet Nahum, that dictated “For God judges not twice for the same offence”. [4] Although Becket was killed by the King’s men, the clergy members however were spared from being convicted again for the same offences. This exemption is said to have introduced the doctrine of double jeopardy into the English Common law. Subsequently, the King found expression in the common pleas “autrefois convict” and “autrefois acquit”. [5] “Autrefois acquit” was a plea that the prisoner had already been tried for and acquitted of the same offence, while “autrefois convict” was a plea that the prisoner had already been tried for and convicted of the same offence. [6]

    The French Civil Code of 1804, enacted during the reign of Napoleon I, called the Napoleonic “code d’instruction criminelle” under Article 360, expounded this doctrine in the following words, “No person legally acquitted can be a second time arrested or accused by reason of the same act.”

    Interestingly, there are accepted primeval beliefs that the concept of double jeopardy has been interpreted in the Holy Bible as well. Amidst the various speculations, the earliest recognized and codified reference to this doctrine was laid in the Digest of Justinian, issued from 529 to 534 by order of Justinian I, Eastern Roman Emperor. [7] As per the Justinian Code, “He who has been accused of a crime cannot be complained of for the same offence by another person.” [8]

    Scope of the Doctrine of Double Jeopardy under Art. 20(2) & S. 300 CrPC

     Article 20(2) of the Constitution of India lays down the fundamental right of protection against double jeopardy in the following words, “No person shall be prosecuted and punished for the same offence more than once.” [9] The inclusion of the doctrine of double jeopardy in the Constitution is a testament to the fact that the Indian law makers intended to not only accord protection to an individual being tried for the same charges again, but to also keep intact the trust of the public in the decisions of a competent judiciary, and the overall functioning of the nation’s legal system. Unlike the English and the American interpretations of this Doctrine, the ambit of article 20(2) is narrower as it enunciates only the principle of “autrefois convict” and not the principle of “autrefois acquit”. This implies that an individual is entitled to invoke this article only after he or she has been prosecuted and punished. However, the principle of “autrefois acquit” has been embedded in Sec. 300 of CrPC.

    Upon closely analyzing and interpreting Article 20(2), it becomes evident that the article itself bestows certain inherent restrictions on the application of the doctrine. The term “prosecution” are indicative to the application of the article only to criminal proceedings, that must be conducted before a “court of law”, wherein evidence has been recorded on oath, that can be administered before the neutral judge at any time during the court proceedings, 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”. [10] Like for instance, in the case of Maqbool Hussain v. State of Bombay, [11] action was taken by the customs check department against an Indian citizen returning to India from Santa Cruz, who upon verification was found to be possessing illegal gold, which was confiscated by the authorities. Upon prosecution by a criminal court under the Foreign Exchange Regulation Act, the issue that was raised was whether the plea of “autrefois acquit” could be invoked 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. Under such circumstances, the trial of the petitioner before the criminal court was not barred. It was further observed:

    “It is clear that in order for 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 regulates the procedure.” [12]

    Moreover, the Supreme Court has adjudged that the sea customs authorities are not a judicial tribunal and the pronouncement of any confiscation, increased rate of duty or penalty under the provisions of the Sea Customs Act do not constitute a judgment or order of a court or judicial tribunal necessary for invoking the plea of double jeopardy. [13] Thus, it can be concluded that any action or decision by a quasi-judicial body does not impede a subsequent prosecution of an individual before a court in the future. Thus, Article 20(2), as per the Supreme Court’s pronouncement shall immune an individual to a second prosecution, only when he or she had been previously prosecuted for the same offence by a court of law. Similar would be the position when after “prosecution and punishment” for an offence, further action is taken by a quasi-judicial body. [14]

    On the other hand, the essential ingredients of Section 300(1) of CrPC are:

    1. a) “If a person is convicted or acquitted by a court of competent jurisdiction, he cannot be tried for the same offence.
    2. b) If charge has been made against a person under Section 221(1) and the facts are the same and he has been charged under Section 221(2), 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, 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, [15] as was in the cases of Ramasharama v. Pinki Sharma [16] and E.K. Thankappan v. Union of India. [17] In Krishna Sen Gupta v. Manjula Mukherjee, [18] 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”. Such an explanation is included in the CrPC because the dismissal of a complaint or the discharge of the accused is not considered as a final decision regarding the innocence of the accused person, as scope for further appeal and retrial persists. [19]

    Moreover, like under Art 20(2), it is requisite to establish that the court which tried the earlier case was competent to try it, for applying Sec. 300 Cr PC, it is imperative that the accused establishes that he has been tried by a competent court. While determining 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”. [20] While deciding whether this provision can be applied, the punishment for the same or similar offence also must be taken into consideration. “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”. [21] 

    Section 300 bars the “trial for the 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, it is not possible to successfully apply the said section. 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. In order to prevent such abuse, Section 300(2) makes it a statutory mandate to obtain the State Government’s permission before seeking a second or subsequent prosecution against an individual for a particular offence, for which a separate charge might have been made against him at the formal trial under Sec. 220(1). [22] The said provision, however, allows a trial for a distinct offence. [23]

    Section 300(3), implicitly states its application only in cases where the accused has been adjudged guilty by the court of law. This can be understood by taking the illustration of this section into consideration: “A is tried for causing grievous hurt and convicted. The person injured afterwards dies. A may be tried again for culpable homicide”. [24] Thus, this provision allows the retrial of an accused for acts which did not come to light in front of the court of prior conviction. Nonetheless, “a conviction simply in itself is not an adequate prohibition for the retrial of the accused for similar offences, which were not brought to the notice of the courts –the acts/circumstances must be such as to indicate a different kind of offence of which there could be no conviction at the first trial”. [25]

    The essence of section 300(4) is that if any court lacks competence to try an accused of any offence, which is the consequence of an offence for which the latter has already been convicted/acquitted, such prior acquittal/ 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.

    Finally, Section 300(6) refers to “Section 26 of the General Clauses Act, 1897” and “Section 188 of the CrPC”. Though the said Section 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. Such a conclusion can safely be drawn from the reference to “shall not be liable to be punished twice for the same offence”.

    https://legalreadings.com/general-defenses-8-defense-against-tortious-liability/

    Protection Against Double Jeopardy around the Globe

    The United Kingdom

    The doctrine of double jeopardy has stood the test of time and persevered to be in the English Common Law system since the Norman Conquest. The principles of “autrefois acquit” and “autrefois convict”; are regarded as essential elements of protection of the liberty of the subjects and respect for due process of law in that there should be finality of proceedings. In 2003, the Criminal Justice Act was introduced in the UK parliament, a move to bring a permanent and long awaited end to the stringent and restricted form of prohibition of double jeopardy in England. Upon this enactment, retrials have been allowed in cases where the parties are able to produce ‘new and compelling evidence’. However, all cases must be approved by the Director of Public Prosecutions and the Court of Appeal must agree to quash the original acquittal. [26]

    The United States of America

    The 5th Amendment to the U.S. Constitution, lays down the doctrine of double jeopardy in the following words, “nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb”, intended to prevent the harassment or oppression of its citizens in the form of governmental abuse, particularly by those involved in the prosecution of offences. In the U.S., this doctrine grants the following safeguards viz. “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”. Whereas the 5th Amendment is applicable only to the federal government, following the 14th Amendment, the double jeopardy, in spite of being a clause to the 5th Amendment, is applicable to the individual states as well. With regard to procedural details, “jeopardy attaches in a jury trial once the jury panel has been constituted and the swearing in has been complete, while in case of a non-jury trial, jeopardy attaches once the first evidence is put on, which occurs when the first witness is sworn”. [27]

    Canada

    Section 11(h) of the Canadian Charter of Rights and Freedoms lays down the principle of double jeopardy. [28] Nevertheless, contrary to the USA, Canada allows appeals in cases where the accused has been acquitted. This is because the Canadian laws do not perceive the second or subsequent trial as double jeopardy, since the previous trial leading to the acquittal has stood negated. Also, in rarest of rare cases, a court of appeal might also substitute a conviction for an acquittal. This is not considered to be double jeopardy either as in this case the appeal and subsequent conviction are deemed to be a continuation of the original trial. Lastly, the Supreme Court of Canada statutorily obliges the Crown Court to prove that a key mistake of law has been made during the trial, which otherwise has the leverage to alter the verdict, for an appeal against an acquittal order to be accomplished.

    Australia

    The principle of double jeopardy, incorporated as a statutory provision in Australia, is quite similar to that in most common law countries. In South Australia and Tasmania, one can only  appeal to the higher courts in cases where a mistake of law has been made by the trial judge, which are heard only to provide a clarification of the applicable laws to the prosecution without any alteration to the acquittal order, while in other states, appeals against the sentence imposed by the trial judge are also maintained. In 2002, in the landmark case of the Queen v. Carroll, [29] the police had 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, however, the subsequent conviction of the accused was overturned by the high court. Thus, unlike other nations, the Australian counterpart of double jeopardy enables a previously acquitted individual to escape scot free, even when post acquittal he has been found to have committed perjury, without a second prosecution. Following this 2002 decision, there has been an ongoing public outrage seeking the reformation of the Australian laws.

    Conclusion

    The main objective behind affording the plea of “autrefois acquit” or “autrefois convict” is to safeguard an individual from being vexed twice for the same crime. Like other democratic republic nations, India, as the largest democracy in the world has endeavored to protect the accused at every stage of a criminal trial, and thus, has incorporated the doctrine of double jeopardy as a protection to the citizens encompassed as a Fundamental Right under the Constitution. The rule against double jeopardy is a universally accepted principle for the protection of certain values within the criminal justice system. It serves many purposes such as preventing the arbitrary actions of the state against its subject, ensures finality in litigations etc., which are of great importance for the protection of human rights of the accused persons. It is a centuries old principle, which survived not by chance, but for many good reasons.

    Moreover, in a country like India, with a population in billions, and the rising number of conflicts and litigations, proper and efficient implementation of the doctrine of double jeopardy eventuates as a necessity. Avoiding trials where not required will not only save the courts’ time, but also the state’s and parties’ expenses. The doctrine of double jeopardy comes as an aiding mechanism, in one way or another to all the stakeholders involved in the legal system of the country, to be ployed not only as a defence in a criminal proceeding, but also as an exercisable Fundamental Right under the Constitution, by every citizen of the country. 

    REFERENCES

    1. Gursimran Kaur, “Rights of Accused Persons” Legal Service India, available at: http://www.legalserviceindia.com/legal/article-219-rights-of-accused-persons.html (last visited January 18, 2021).
    2.   B. A. Garner, Black’s Law Dictionary 528 (West Publishing Co., U.S.A., 8th edn., 2008).
    3. Mohini Chaturvedi,”Doctrine of Double Jeopardy” Law Times Journal (2019) available at: http://lawtimesjournal.in/doctrine-of-double-jeopardy/ (last visited January 18, 2021).
    4. Tirthankar Das, “A Discussion on Law of Double Jeopardy in India” SSRN (2008) available at: https://ssrn.com/abstract=1303324 (last visited January 18, 2021).
    5.   Shouvik Kr. Guha, “Thy Cause shall not be heard Twice: Exploring the Doctrines of Res Judicata and Double Jeopardy, the Counterparts in Civil and Criminal Laws in India” 2 International Journal of Law and Legal Jurisprudence Studies 2 (2015).
    6.   Supra note 4.
    7.   Caesar Roy, “Protection against Double Jeopardy in India – A Critical Analysis” 6 Indian Journal of Law and Justice 1 (2015).
    8.   Ibid.
    9.   The Constitution of India, art. 20(2), available at: https://www.constitutionofindia.net/constitution_of_india/20/articles/Article%2020 (last visited January 19, 2021).
    10. M.P. Jain, Indian Constitutional Law 1241 (LexisNexis, India, 5th edn., 2003).
    11. AIR 1953 SC 325.
    12. Id. at 327.
    13. Thomas Dane v. State of Punjab, AIR 1959 SC 375.
    14. Joginder Singh v. Bar Council of India, AIR 1975 Del. 192; see Supra note 10, 1243 and V. N. Shukla, Constitution of India 158-159 (Eastern Book Company, India, 10th edn., 2004).
    15. The Code of Criminal Procedure, 1973, s. 300.
    16. 1989 Cr LJ 2153 (Pat.); Ratanlal & Dhirajlal, The Code of Criminal Procedure 887 (LexisNexis, 16th edn., 2003).
    17. 1989 (3) Crimes 656, 663 (Ker.); Ibid.
    18. 1997 (1) Crimes 48 (Cal); Ibid.
    19. R. V. Kelkar, Criminal Procedure, Rev. Dr. K. N.Chandrasekharan Pillai, 479 (Eastern Book Company, India, 4th edn., 2001).
    20. State v. Birda, (1966) 1 Cr LJ 166, 168; Id. at 480.
    21. State of Bombay v. S. L. Apte, AIR 1961 SC 578.
    22. Supra note 11, 481.
    23. Kunjilal v. State of M.P., AIR 1955 SC 280; Supra note 8, 890.
    24. The Code of Criminal Procedure, 1973, s. 300, illustration (b).
    25. Supra note 8, 887.
    26. The Criminal Justice Act, 2003, s. 76, available at: https://www.legislation.gov.uk/ukpga/2003/44/enacted (last visited January 20, 2021).
    27. Crist v. Bretz, 437 U.S. 28 (1978).
    28. Government of Canada, “The Canadian Charter of Rights and Freedoms” (Department of Justice, 2020) available at: https://www.justice.gc.ca/eng/csj-sjc/rfc-dlc/ccrf-ccdl/index. (last visited January 20, 2021).
    29. The Queen v. Raymond John Carroll, (2002) 213 CLR 635.

    BY SHRISHTI DAS | SCHOOL OF LAW, KIIT UNIVERSITY

     

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