DOUBLE JEOPARDY – A GURANTEE AGAINST MISCARRIAGE OF JUSTICE
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 same—the 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 context.
The term "Jeopardy" refers to the "danger" of punishment which is ascribed to any individual brought to trial before a court of competent jurisdiction. Procedural matters prior to trial do not constitute jeopardy, and that's why it's said that jeopardy attaches, or may be asserted by the defendant, once a jury has been sworn in, or the first witness takes the stand, in any original prosecution resulting in any acquittal or conviction. Jeopardy also attaches to any plea of guilty (treated the same as conviction) even if later withdrawn. Jeopardy does not attach to any proceedings resulting in nolle prosequi, mistrial, hung jury, or termination for any other "legally sufficient" reason. Double jeopardy is a procedural defense (and, in many countries such as the United States, Canada, Mexico, Japan and India, a constitutional right) that forbids a defendant from being tried a second time for the same crime..
The concept of double jeopardy is one of the oldest in Western civilization. In 355 B. C. Athenian statesmen Demosthenes said that the "law forbids the same man to be tried twice on the same issue." The Romans codified this principle in the Digest of Justinian in 533 A. D. The principle also survived the Dark Ages (400-1066 A.D.) through the CANON LAW and the teachings of early Christian writers, notwithstanding the deterioration of other Greco-Roman legal traditions.
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 defence , 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.
In terms of criminal process, the plea of double jeopardy is a valid defense response to a felony arraignment, and like the prosecutor's assertion of nolle prosequi (no prosecution), the claim of prior jeopardy must be made before a jury is impaneled and sworn in on a second prosecution; i.e., prior to commencement of the second trial. If the claim of double jeopardy is made after the trial begins, the rule of manifest necessity applies, making it a matter of discretion for the court, and any subsequent dismissal of the case or discharge of the jury must be treated as an acquittal.
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. 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 .
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 , gurantee .
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 .
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 analyse 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
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) 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 .
1. 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 ( Conrol ) Act or binding down for good behaviour 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 guranteed 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 .” Article 359 deals with “Suspension of the enforcement of the rights conferred by Part III during emergencies”. Clause
(1) permits suspension of the right to move court but excludes Article 20 (retrospectivity of law relating to offences, double jeopardy and self-incrimination) and Article 21 ( Life and liberty not to be deprived except according to procedure established by law which after Maneka Gandhi’s v. Union of India .
In Maqbool Hussain v. State of Bombay
It is the leading case on this point . 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 tolas 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 . Sometime afterwards a complaint was filed in the court of Chief Presidency Magistrate against the appellant charging him with the offence under section 8 of the Foreign Exchange Regulation Act , 1947 . The appellant pleaded that his prosecution before the magistrate was in violation of the fundamental rights guranteed under Article 20 (2) because he had already been prosecuted and punished in as much as his gold had been confiscated by the Custom authorities . the court held that the Sea Customs authorities is not a court or judicial tribunal and the adjudging 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 . The proceedings taken before the sea customs authorities were , therefore not prosecution of the appellant nor did the order of confiscation constitute a punishment inflicted by the court or a judicial tribunal on the appellant . The appellant could not , therefore , be said to have been prosecuted and punished for the same offence with which he was charged before the Chief Presidency magistate .
In S.A. Venkataraman v. Union of India ,
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 . Soon thereafter the police submitted a charge sheet against him for having committed offences under Section 161 and 165 , Penal Code , 1860 and Section 5 (2) of the Prevention of Corruption Act , 1947 . The validity of the subsequent prosecution was chaalenged by the appellant on the ground that it contravened the constitutional gurantee embodied in Article 20 (2). 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.
In A.A Mulla v. State of Maharashtra
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 . They were tried for retaining remaining 9 Gold Biscuit before the special judge but the appellant were aquitted . On the ground that the prosecution have failed to prove misappropriation the appellant were again tried under Customs Act and the Foreign Exchange Regulation Act ( FERA ) . The appellants challenged th validity of there second trial on the ground that it was violative of Art. 20 ( 2 ) of the Constitution . It was held that the second trial was not barred as not only the ingredients of the offence of two trial 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 favour of the accused at a previous trial . Art. 20(2) has 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
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 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.
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.
All members of the Council of Europe (which includes nearly all European countries, and all members of the European Union) have signed the European Convention of Human Rights, which protects against double jeopardy. The Seventh Protocol, Article Four, says:
“No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State.”
This specific optional protocol has been ratified by all EU states except six (namely Belgium, Germany, The Netherlands, Portugal, Spain and the United Kingdom). Those members states may still have the provision in their respective constitutions providing a prohibition against double jeopardy.
In many European countries the prosecution may appeal an acquittal to a higher court (similar to the provisions of Canadian law) - this is not counted as double jeopardy but as a continuation of the same trial. This is allowed by the European Convention of Human Rights - note the word finally in the above quote.
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.
5. 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.
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.
DOUBLE JEOPARDY IN U.S CONSTITUTION
Generally, individuals may be tried only once for a particular offense under the double jeopardy clause. Originally, the protection against double jeopardy did not extend to prosecutions in state courts. In Benton v. Maryland , the Supreme Court "incorporated" the clause under the Fourteenth Amendment, meaning that state courts were now required to honor the protections of the Fifth Amendment in state criminal proceedings as well.
The Fifth Amendment refers to being put in "jeopardy of life or limb." 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 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.
Once acquitted, a defendant may not be retried for the same offense: Ball v. U.S . "A verdict of acquittal, although not followed by any judgment, is a bar to a subsequent prosecution for the same
offense.". Acquittal by a jury is generally final and cannot be appealed by the prosecution, Fong Foo v. United States, An acquittal in a trial by judge (bench trial) is also generally not appealable by the prosecution, United States v. Jenkins, A trial judge may normally enter an acquittal if he deems the evidence insufficient for conviction. If the judge makes this ruling before the jury reaches its verdict, the judge's determination is final. If, however, the judge overrules a conviction by the jury, the prosecution may appeal to have the conviction reinstated.
Defendants may not be retried following conviction except in limited circumstances. Bribing a judge to get an acquittal is not valid because the party acquitted has prevented themselves from being placed into "jeopardy" in the first place. Harry Aleman v. Judges of the Criminal Division, Circuit Court of Cook County, Illinois, et al., . If a defendant appeals a conviction and is successful in having it overturned, they are subject to retrial. An exception arises if the verdict is overturned on the grounds of evidentiary insufficiency, rather than on the grounds of procedural faults. As noted above, if the trial court made a determination of evidentiary insufficiency, the determination would constitute a final acquittal; in Burks v. United States , it was held that "it should make no difference that the reviewing court, rather than the trial court, determined the evidence to be insufficient". Another exception arises in cases of conviction for lesser offenses. For instance, if a defendant is charged with murder in the first degree, and is convicted by the jury of murder in the second degree, and later the jury's conviction is overturned on procedural grounds, the defendant may be retried for second degree but not first degree murder; the jury, by convicting the defendant of second degree murder, is deemed to have implicitly acquitted them of first degree murder.
The defendant may not be punished twice for the same offense. In certain circumstances, however, a sentence may be increased. It has been held that sentences do not have the same "finality" as
acquittals, and may therefore be reviewed by the courts. Sentence increases may not, however, be made once the defendant has already begun serving his term of imprisonment. If a defendant's conviction is overturned on procedural grounds, the retrial may result in a harsher penalty than the original trial. The only exception is that the prosecution may not seek capital punishment in the retrial if the jury did not impose it in the original trial. The reason for this exception is that before imposing the death penalty the jury has to make several factual determinations and if the jury does not make these it is seen as the equivalent of an acquittal of a more serious offense.
In Arizona v. Rumsey, , it was ruled that in a bench trial, when a judge was holding a separate hearing after the jury trial, to decide if the defendant should be sentenced to death or life imprisonment, the judge decided that the circumstances of the case did not permit death to be imposed. On appeal the judge's ruling was found to be erroneous. However, even though the decision to impose life instead of death was based on an erroneous interpretation of the law by the judge, the finding of life imprisonment in the original case constituted an acquittal of the death penalty and thus death could not be imposed upon a subsequent trial. Even though the acquittal of the death penalty was erroneous in that case, the acquittal must stand.
Mistrials are generally not covered by the double jeopardy clause. If a judge dismisses the case or terminates the trial without deciding the facts in the defendant's favor (for example, by dismissing the case on procedural grounds), the case is a mistrial and may normally be retried. Furthermore, if a jury cannot reach a verdict, the judge may declare a mistrial and order a retrial. When the defendant moves for a mistrial, there is no bar to retrial, even if the prosecutor or judge caused the error that forms the basis of the motion. An exception exists, however, where the prosecutor or judge has acted in bad faith. In Oregon v. Kennedy, the Supreme Court held that "only where the governmental conduct in question is intended to 'goad' the defendant into moving for a mistrial may a defendant raise the bar of double jeopardy to a second trial after having succeeded in aborting the first on his own motion."
Defendants may not more than once be placed in jeopardy for the "same offense". Sometimes, however, the same conduct may violate different statutes. In Blockburger v. United States, the Supreme Court held that "where the same act or transaction constitutes a violation of two distinct
statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof and love of a fact which the other does not". For example, the test was applied in Brown v. Ohio, . The defendant had first been convicted of operating an automobile without the owner's consent, and later of stealing the same automobile. The Supreme Court concluded that the same evidence was necessary to prove both offenses, and that in effect there was only one offense. Therefore, it overturned the second conviction.
In other cases, the same conduct may constitute multiple offenses under the same statute, for instance where one robs many individuals at the same time. There is no explicit bar to separate prosecutions for different offenses arising under the same "criminal transaction", but it is not permissible for the prosecution to re-litigate facts already determined by a jury. In Ashe v. Swenson, the defendant
was accused of robbing seven poker players during a game. John Ashe was first tried for, and acquitted of, robbing only one of the players; the defense did not contest that a robbery actually took place. The state then tried the defendant for robbing the second player; stronger identification evidence led to a conviction. The Supreme Court, however, overturned the conviction. It was held that in the first trial, since the defense had not presented any evidence that there was no robbery, the jury's acquittal had to be based on the conclusion that the defendant's alibi was valid. Since one jury had held that the defendant was not present at the crime scene, the State could not re-litigate the issue.
A defendant's right to freedom from double jeopardy begins when jeopardy attaches. Jeopardy attaches in a jury trial when the jury is sworn. Jeopardy attaches in a judge trial (also called a bench trial or nonjury trial) when the first witness is sworn. If a defendant pleads to the crime charged (or to a lesser crime, as is often the case in a plea agreement), then jeopardy attaches when the court accepts the defendant's plea.
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. However, even if the incidences of the crime can be tried separately, if the defendant was already tried on a material fact of the crime and acquitted of that material fact, then in most cases, any subsequent trial is barred from prosecuting that material fact.
Two or More Prosecutions
The Fifth Amendment does not protect a person from being tried by two or more separate governments. Thus, both the federal government and the state government are able to charge and prosecute one person for the same criminal act, which is often the case for drug related crimes. As well, two or more states can prosecute and try a person for the same criminal act.
A local government is not separate from a state government, therefore double jeopardy would apply in a situation in which a person was prosecuted, tried, and acquitted by a local government. The double jeopardy rule would prevent the state government from subsequently prosecuting and trying that same person for that same crime.
Trial after Successful Appeal
An appeal will not bar a subsequent trial of the same crime if the defendant was not acquitted. Therefore, if a defendant is prosecuted and found guilty, and then successfully appeals the conviction (the appellate court reverses the conviction), the government is not barred from retrying the defendant for the crime, unless the government failed to introduce sufficient evidence at trial which then in turn became the grounds upon which the appellate court reversed the conviction.
Grand Jury Proceedings
Double jeopardy does not apply to grand jury proceedings. A person who is subpoenaed to, testifies before, and is acquitted of charges brought to the grand jury can be repeatedly retried by that same grand jury.
COMPARISON BETWEEN INDIA & U.S. CONSTITUTION
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 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
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 defence 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 defence 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).
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. In