DOUBLE JEOPARDY: A person, once convicted, can not be tried for the same offence

Article authored by Ishvarya Sugunasekar, law student from Ramaiah College of Law

Introduction:

Every country requires law and order to maintain society in an organized and peaceful manner. The most important organization to fulfil a peaceful society is the criminal justice system. The constitution of India is superior to all other laws of the country. Any new law and the existing law must be in accordance with the constitution of India. One of the principles used to protect the citizens is the rule against “Double Jeopardy”. This principle protects the citizen from convicting more than once for the same offence. The principle is originally from the common law maxim “Nemo debet bis vexari pro uno et eadem causa” which means that no person shall be vexed twice for the same cause. The exact meaning of the term “double jeopardy” is twice in danger. The Code of Criminal Procedure, 1973 (CrPC) lays down the criminal justice system’s procedure. In section 300(1) a person either acquitted or convicted, once tried in a competent court is not liable to be tired again for the same offence. 

Evolution (History):

The history of Double Jeopardy is as old as the criminal procedure is in itself. It is a very old legal concept. The concept was originated from the controversy between King Henry and Archbishop Thomas Becket back in 12 century. The act of the king, to punish the subject again under different court made St. Thomas contends against the king, that the repeated punishment for the same offence would violate the maxim nimo bis in idipsum. As the conclusion of the case, the principle was imbibed in English common law. 

As the principal was present in English common law, it existed before the drafting of India’s Constitution. The concept was adopted and recognized in CrPC under section 300 and in Indian Penal Code s.71.

Double Jeopardy in Indian laws:

The concept of double jeopardy is a constitutional right, and similar concepts are imbibed in some of the statutes and enactments.

The Himachal Pradesh Panchayat raj act, 1994

Section 51 of chapter IV provides that, where a case is pending in any court against an accused person in respect of any offence or where an accused person had been tried for any offence, no gram panchayat shall take cognizance of any such offence, or on the same facts, or other offence, of which the accused might have been charged.

The Indian Penal Code, 1860

Section 71 deals with limits of punishment of offences made up of several offences, where anything which is an offence is made up of parts, any of which parts itself an offence, the offender shall not be punished with the punishment of more than one of such his offences, unless it is so expressly provided.

The code of Criminal Procedure, 1973

S.300(1) states as follows “A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under sub-section (1) of section 221, or for which he might have been convicted under sub-section (2) thereof.”

Constitution of India

Art 20 protects offenders in a conviction for offences. Art 20(2) explains the rule against double jeopardy, which states that no person shall be prosecuted for the same offence more than once.

Provision of CrPC in accordance with Constitution of India:

The provision of CrPC is wider when compared to the Constitution of India. The Constitution of India provides that “no person shall be convicted more than once form the same offence”, but the framers’ actual object is not to prosecute the person twice for the same offence if he is convicted formerly. This principle of the rule against double jeopardy does not apply to the acquitted persons.

There are two plea maxims namely “autrefois acquit and autrefois convict, which means the plea used by the accused that he has been acquitted previously for the same offence in a competent jurisdiction and the plea-bargained by the accused that he has been convicted previously for the same offence in a competent jurisdiction respectively. 

In India’s Constitution, the maxim autrefois convict is recognized, and autrefois acquit is not considered. But in The Code of Criminal Procedure, both autrefois acquit and autrefois convict are recognized. According to the basic law principle, a new charge sheet cannot be filed based on the same facts even if the person is not punished or charged for all offences done in the crime scene under section 300 of CrPC. 

Application of double jeopardy:

In India’s constitution,, the protection for offenders under Art 20(2) is narrower than American laws. The protection is provided irrespective of convicted or acquired when tired for the same offence in American laws. But under Art 20, protection is provided only when the offender is punished. Autrefois convict is a fundamental right provided by the constitution of India. 

Conditions required to plead under Art 20(2) are:

  1. He must be accused of an offence.
  2. The proceedings should have taken place in the court of competent jurisdiction.
  3. He should be convicted in earlier proceedings. 

The conditions required to raise either of the pleas are:

  1. He should be previously convicted or acquitted.
  2. He must be convicted or acquitted in a court of competent jurisdiction.
  3. Second proceedings must be for the same offence.

Conclusion:

 If all the above conditions are satisfied, they can plead for the rule against double jeopardy. The Code of Criminal Procedure recognises both autrefois acquit and autrefois convict. Hence autrefois acquit is a statutory right. It is recognised in sec.300 of CrPC. Therefore such law should be practised, and accordingly, justice should be fundamentally given.

4 comments

  1. Really a good article Ishvarya. Very fine work done here . Good to know about double jeopardy and you made it very exciting author.

    Like

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