INTRODUCTION
According to clause (2) of Article 20, no person can be arrested and prosecuted for the same offense more than once[i]. This clause embodies the common law rule of “nemo debet vis vexari” which means that no man should be put twice in peril for the same offense. Double jeopardy is a defense provided to accused/defendants to prevent them from being tried again for the same offense.
The same rule of double jeopardy is also incorporated in the American and British Constitutions but the protection under Article 20 (2) of the Indian constitution has much narrower than these. In India, the protection under this clause is given to the accused if he was prosecuted and punished in the first trial. However, under American and British constitutions, a person cannot be prosecuted for the same offense for the second time irrespective of whether he was acquitted or convicted in the first trial.[ii]
ESSENTIALS OF RULE OF DOUBLE JEOPARDY
- OFFENSE: The person must be convicted of an offense. Offense means any act or omission which is punishable by law.
- PROSECUTION: The prosecution or proceeding must have taken place before any court or tribunal.
- PUNISHMENT: The person must have also been punished for the offense.
- SAME OFFENSE: Prosecution for the same offense for which he was previously convicted.
JUDICIAL PERSPECTIVE ON THE RULE OF DOUBLE JEOPARDY
The doctrine of double jeopardy has embedded the maxim, ‘nemo debet bis vexari si constat curiae quod sit pro una et eadem causa’, which means that no one should be punished twice if it’s the same offense. The court made it clear that the departmental investigations cannot be considered as the prosecution in the case of Venkataraman v. Union of India, where the appellant was dismissed from the service due to an inquiry going on against him before the inquiry commissioner under the Public service inquiry act, 1960. Later, he was charged under the Indian penal code and the Prevention of corruption act. The court held that the departmental and administrative proceedings did not amount to prosecution.[iii]
Maqbool Hussain v. State of Bombay: In this case, the appellant brought some gold to India but did not declare this to the customs authorities at the airport. He was caught and his gold was confiscated by the authorities under the sea customs Act. Later, he was charged under the Foreign Exchange Regulations Act (FERA). The appellant argued that his being charged under FERA again for importing gold against the government guidelines was a violation of clause (2) of Article 20 as his gold was already confiscated. The court held that confiscation of gold under the sea custom act does not amount to punishment as customs authorities are not a judicial authority. Hence, the prosecution under FERA is not a violation of Article 20 (2).
In the case of Thomas Dana v. State of Punjab, 1959, the police detained two petitioners who were attempting to smuggle Indian and foreign currency as well as other illegally imported goods out of India. The goods were seized by The Collector of Central Excise and Land Customs and also heavy penalties were imposed on them. Later on, they were charged and convicted by the additional district magistrate. As a result, the appellant filed an appeal in the supreme court contending that this is a violation of Article 20 (2). The supreme court held that in order to claim protection under the rule of double jeopardy, an accused has to prove that he was previously prosecuted for the same offense and that prosecution led to punishment.
Clause (2) of Article 20 does not apply in cases where the subsequent proceedings were a mere continuation of previous proceedings. In the case of Kalawati v. the State H.P., an accused was prosecuted for committing murder but later on, he was acquitted by the district judge. To challenge the decision, an appeal was filed by the state in the higher court. The accused claimed that this is a violation of the rule of double jeopardy but the court dismissing the claim held that the appeal filed by the state against acquittal cannot be termed as second prosecution.[iv]
ARTICLE 20 (2) AND SECTION 300 (1)
The scope of section 300 (1) is much wider than that of Article 20 (2). Under Article 20 (2), it has been provided that no person can be prosecuted and punished for the same offense more than once. Whereas, section 300 (1) of Cr.P.C. states that if a person has been tried by a competent court once irrespective of the fact that whether acquitted or convicted, while such acquittal or conviction remains in force cannot be tried again for the same offense.
Autrefois acquit and Autrefois convict are French which means previously acquitted and previously convicted respectively. Autrefois acquit means a person cannot be tried again for the same offense if he was previously acquitted by the court. Whereas, autrefois convict means a person cannot be tried again for the same offense if he was previously convicted.
CONCLUSION
Protection under Article 20 (2) which talks about the rule of double jeopardy is a fundamental right provided to ensure that no person is prosecuted and punished for the same offense more than once. In simple terms, the punishment is given more than once for the same offense. However, the doctrine does not consider departmental proceedings and any action taken by a non-judicial authority as prosecution, and a person has no right to claim protection under the rule of double jeopardy in such cases.
Author – Neha Dulani
University five year law college, University of Rajasthan
[i] THE CONSTITUTION OF INDIA, 1950
[ii] THE CONSTITUTIONAL LAW OF INDIA BY J.N. PANDEY
[iii] https://www.legalservicesindia.com/article/1633/Double-Jeopardy-in-India.html
[iv] https://blog.ipleaders.in/the-doctrine-of-double-jeopardy/