DAMODARAM SANJIVAYYA NATIONAL LAW

UNIVERSITY
VISAKHAPATANAM,AP.,INDIA

PROJECT TITLE
DOUBLE JEOPARDY

SUBJECT
LEGAL METHODS

NAME OF FACULTY
 MS.SOMA BHATTACHARJYA

NAME OF STUDENT
P.MAHESH BABU

ROLL NO:20LLB083

SEMESTER:1
--ACKNOWEDGEMENT--

This project ‘’DOUBLE JEOPARDY’’is completed successfully with

the help and support from many people whose knowledge and
guidance have helped me47 throught the development of this
articles.I wish to acknowledge all those people.

Firstly,I express my gratitude to my legal methods madam

MS.SOMA BHATTACHARJYA who took responsibility to supervise
and guide us in the selection of the material and method and
inserting it in blank white.she has been sparing her precious time
when I needed her guidance and support helped to complete my
project.
 --TABLE OF CONTENTS--

1.ABSTRACT
2.INTRODUCTION
3.CONCEPTUAL ANALYSIS
4.HISTORICAL BACKGROUND
5.JURISPRUDENTIAL ANGLE
6.ROLE OF INDIAN JUDICIARY

ABSTRACT:-

Double jeopardy is a legal term which simply

Means that a person cannot be punished for the same offence more
than once .the double jeopardy rule,known in law as autrefois
acquit,developed over centuries as a protection against oppressive
prosecution.The principle of double jeopardy plays an important role
for the prosecution of integrity of the criminal justice system
including precious fundamental rights of the accused person .The
under Indian law with special reference to the constitution of india
and examines how it protects the fundamental rights of the persons
accused of crime.It also makes an in-depth analysis of judicial
pronouncement on the limits and boundaries of doctrine of double
jeopardy.

OBJECT OF STUDY
To analyse double jeopardy in Indian law and developments or
drafts from centuries.

SCOPE OF STUDY
This study is going to cover historical background to present status of
double jeopardy

SIGNIFICANCE OF THE STUDY

This study making an attempt to explain all aspects of double
jeopardy

LITERATURE REVIEW
The researcher has collected information from online sources and
cases relevant to topic and books.
DOUBLE JEOPARDY:THE HISTORY,the law by George C.Thomas
Online sources like Wikipedia and legal services india and manipatra.
RESEARCH METHODOLOGY
The study is a doctrinal study
TYPES OF RESEARCH
The research is a basic research

RESEARCH QUESTION
What role double jeopardy plays in judiciary?

INTRODUCTION:-
Even the man in the street knowns what
‘’double jeopardy’’means. He is rightly shocked when he hears that
somebody has been tried twice for the same offence .He does not
question the right against double jeopardy as,he question the right
agnaistself-incrimination .All adavanced systems of law agree with
him in abhorring the second prosecution of a man who has already
been determined innocent.
The reason given by the judges and text writers are weighty but do
not seem to fully adequate to justify the repugnance of lawyers and
laymen.It is said that to harass an individual with the anxiety and
expense of repeated prosecution is intolerable.It as been pointed out
that repeated increases the likelihood of convicting an innocent man.

ORIGINS OF THE GUARNTEE:-

Origin of the double
jeopardy are unclear .Early in the twentieth century,one American
court declared that the doctrine ‘’seems to have been always
embedded in the common law of England , as well as in the roman
law,and doubtless in every other system of jurisprudence,and,instead
of having a specific origin ,it simply always existed’’
It as been rightly observed that the history of double jeopardy is the
history of criminal procedure The rule is considered to have its origin
in the controversy between HenryII and Archbishop Thomos Becket
in 12th century .At that time two courts of law existed,the royal and
the ecclesiastical.The king wanted the clergy subject to be punished
in the royal court even after the ecclesiastical court punished
him.Becket relied on St.jeromes’s interpretation of nahum and
declared that the ancient text prohibited ‘’two judgements’’.He had
viewed that the repeated punishment would violate the maximnimo
bis in idipsum that means no man ought to be punished twice for the
same offence.Followed by the dispute,king’s knights murded becket
in 1170,and despite of this king Henry exempted the accused from
further punishment in 1176.This concession given by king Henry is
considered as responsible for the introduction of the principle in
English common law In the twelfth century ,the res judicata doctrine
had been introduced in English civil as well as criminal law due to
influence of teachings of roman law in England.During the thirteenth
and part of fourteenth centuries,a judgement of acquittal or
conviction in a suit brought by an appellant or king barred a future
suit.During the fifteenth century,an acquittal or conviction on an
appeal after a trail by jury was a bar to a prosecution for the same
offence .The sixteenth century witnessed significant lapses in the
rational development of the rule party due to the statute of Henry
VII,by totally disregarding the principle.Further ,it was during the
period the famous vaux’s case was decided to the effect that a new
change could be brought even after a meritorious acquittal on a
defective indictment.The last of the seventeenth century was the
period of enlightenment regarding the significance of the rule against
double jeopardy.Lord Coke’s writings contributed to its partly and of
course, ythe rest was due to the public dissatisfaction against
lawlessness in the first half of the century.It is only the seventeenth
century the principle of double jeopardy seems to have developed
into the settled principle of common law.
During the eighteenth century,the extreme procedure was generally
followed.It showed be noted that,in eighteenth century,Blackstone
stated that
“First, the plea of autrefois acquit,or a former acquittal,is grounded
on this universal maxim of the common law England,that no man is
to be brought into jeopardy of his life for more than once for the
same offence and hence it is allowed has as a consequence that
when a men is once fairly found not guilty upon any indictment or
other prosecution,before any court having competent jurisdiction of
the offence and he may plead such acquittal in bar of any subsequent
accusation for the same crime.
Until the nineteenth century, the accused was provided with virtually
no protection against a retrial when he or she was discharged due
defect in the indictment or a variation between what was alleged and
proved.
The protection given under the rule has gained international
recognition also through various international
documents.Today,almost all civilized societies incorporate protection
against double jeopardy in their local laws.While some of these
nations have provided the protection under their constitution and
others have incorporated it into their statute law system.
Neverthless,there can be doubt that the protection against double
jeopardy possesses a long history.For example ancient jewish law
contains several references to principles encompassed by double
jeopardy law.The Talmud, a compilation of the teaching of the
rabbinic sages,proclamsthat in capital cases,an acquittal may not be
reversed.In the old testament,Deuteronomy 25:2 states that when a
dispute between men brought before a court,a guilt man who
deserves to be beaten shall be flogged in the presence of the judge
according to the measures of his misdeeds.

We can say that double jeopardy is among one of the

principles which have been more deeply rooted in traditions and
conscience of the people.This doctrine has usually been dealt with in
England and united states as belonging to the law of evidence instead
of procedural law
ORIGIN OF DOUBLE JEOPARDY IN INDIA

In india ,however the doctrine of double jeopardy not confined

merely to law of procedure and evidence but it is a rule of
substantive law.It has been incorporated in article 20(2) of the
constitution of india ,section 300 of criminal procedure code and
section26 of general clauseAct,1897.
The doctrine of double jeopardy in India, like its counterparts in
other common law regimes, has its origin English common law
maximum nemo debet bis vexari pro una et edem causa. Hence it
is not unusual to say that the Britishers brought it to India with
clarity, as a part of their laws. The common law principles of autrefois
acquit and autrefois convict deeply embodied in principle
of English law were recognised in India in Section 300 of the
Code of Criminal Procedure, 1973. It will not be out of place to
mention that the above principle is an offshoot of the doctrine
of res judicata not only rooted in common law principle of English
law but also recognised and applied in ancient Indian law,
as it is evident from spiritual literature. In ancient times, Prangnyaya
(res judicata) has been referred to as one of the possible defences to
an action.10 once a decision has been given, it becomes
final and can not be reopened by leading fresh evidence.
The Britishers ruled India till 1947, but the Government of India Acts
of 1909, 1919 and 1935 did not guarantee rights relating to personal
liberty to the citizens. But it does not mean that
the Britishers did not bring this principle to India. As a matter
of fact, the well established principles of English criminal
jurisprudence were given statutory recognition under various
legislations. It was a well-established rule even before the enactment
of
the Code of Criminal Procedure, 1861 that a court cannot entertain
any cause, which shall appear to have been heard and determined by
any judge before. This rule of English law had been
applied by judges in our country. The English judges administering
justice in India were well acquainted with the rule of res judicata in
civil and criminal law.
In the rule of res judicata had been first introduced in the year
1793 by Section 16 of the Bangal Regulation, III of 1793 which,
prohibited Zila and City Courts from entertaining any cause,
which from any decree or record produced before the court
appeared to have heard and determined by any judge or any
superintendent of a court having competent jurisdiction.11
The doctrine of double jeopardy found recognition in form of
statutory protection for the very first time under the Code of
Criminal Procedure, 1861 which was later amended and codified on
several occasions to regulate procedural law for criminal trials. But
the protection against double jeopardy provided
by Code of Criminal Procedure, 1861 was always incorporated.
The provisions of Section 403 of the Code of Criminal Procedure,
1898 were, however more explicit and detailed one so far as the
principle of double jeopardy is concerned. In the independent
India once again the new Code of Criminal Procedure, 1973 took
proper care of the principle of double jeopardy and incorporated
the same in the Code in Section 300.
Besides the Code of Criminal Procedure the doctrine of double
jeopardy found place in the Indian Evidence Act, 1872 as well.
The law of the same is contained in Section 40 of the Act. This
Section recognises both the pleas of autrefois convict and autrefois
acquit known under English criminal law. Therefore it can be
said that the Evidence Act gives due respect to a previous judgment
whereby a person has either been convicted or acquitted.
It creates a complete bar for second trial irrespective of the result of
the previous trial. The only requirement is that there shall
be a previous judgement delivered on the same facts.
The Indian Penal Code, 1860 is another significant legislation
that provides protection against multiple punishments under
Section 71. Although this provision was not there in the original Code
but the same was inserted after amendment in the
year 1861. However it will be pertinent to mention here that the
provision of Section 71 of the Indian Penal Code, 1860 contains
the substantial law as compared to the provisions of the Code of
Criminal Procedure and the Evidence Act, which contains law
relating to procedure and law relating to evidence respectively.
The doctrine of double jeopardy also found place Section 26 of
the General Clauses Act, 1897. It simply provides that if an act or
omission is an offence under two or more enactments then the
offender shall not be punished more than once for the offence.
After independence, fundamental rights were guaranteed under
the Part III of the Constitution. These rights owe their existence
to the recommendations made by the sub-committee on
fundamental rights appointed by Advisory Committee of the
Constituent Assembly. The sub-committee submitted its report on
February 27, 1947.12 In the Annexure attached with the Draft
Report,
fundamental rights were mentioned. The Clause 28(2) of the
same under the head “Miscellaneous Rights” provided the principle
of double jeopardy in the following words:
No person shall be tried for the same offence more than once nor
be compelled in any criminal case to be witness against himself.
On February 21, 1948 the draft was produced before the Constituent
Assembly for consideration. Finally, the doctrine of double jeopardy
found its place under Part III in Article 14(2) of the
Draft Constitution in the following wordsNo person shall be punished
for the same offence more than
once.
After considering the proposed amendments, the Constituent
Assembly adopted the Article 14(2) of the Draft Constitution,
which now finds its final shape in Article 20(2) of the Constitution in
the following words:
No person shall be prosecuted and punished for the same offence
more than once
Protection Against Double Jeopardy-Article 20(2)
Fundamental right which is guaranteed under Article 20(2) of
Constitution of India incorporates
the principles of “autrefois convict” or Double jeopardy which means
that person must not be
punished twice for the offence. Doctrine against Double Jeopardy
embodies in English common
law’s maxim ‘nemo debet bis vexari, si constat curice quod sit pro
una iti eadem causa” (no man
shall be punished twice, if it appears to the court that it is for one
and the same cause). It also
follows the “audi alterum partem rule” which means that no person
can be punished for the same
offence more than ones. And if a person is punished twice for the
same offence it is termed
Double jeopardy.
The corresponding provision in the US Constitution is embodied in
that part of the 5th
Amendment which declares that no person shall be subject for the
same offence to be put twice
in jeopardy of life or limb.
Article 20(2)- No person shall be prosecuted and punished for the
same offence more than once.
The expression ‘double jeopardy’ is used in the American law but not
in our Constitution . Under
our law the principle has been recognised in Article 20 (2) of our
Constitution alongwith section
26 of the General Clauses Act 1897 and Sec. 300 of the Cr. P.C. 1973.
Ambit and Scope of Article 20(2)
The ambit of Art-20(2) is however, narrower than the English or the
American rule against
double jeopardy. The Indian provision enunciates only the principle
of ‘autrefois convict’ but not
that of ‘atrefois acquit’. In England and the USA, both these rules
operate and a second trial is
barred even when the accused had been acquitted at the first trial
for that offence. In India on the
other hand, the rule of ‘autrefois acquit’ is not incorporated in Art. 20
(2). Art 20 (2) can be
invoked only when there has been prosecution and punishment in
the first instance. Both
prosecution and punishment must co-exist for Art. 20 (2) to be
operative.
Essentials of Article 20(2)
Same Offence
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”.
The protection granted to an accused under Article 20 (2) of the
Constitution of India is against
the second prosecution and punishment for the same offence. The
underlying idea is that the
coercive power of the State is not used against an individual for
harassment through A multiple
prosecutions for a wrong which was committed only once.
In State ofBombay v. S.L. Apte (1961) , the respondent a managing
director of an insurance
company along with others was tried for the offences under section
409, IPC and section 105,
Insurance Act and was convicted; on appeal, the Session Judge,
Poona, affirmed the sentence
under section 409 of IPC but set aside the conviction under section
105 of Insurance Act on the
ground that sanction required under section 107 of the Act was not
complied with. The Insurance
Company after obtaining the requisite sanction lodged a complaint
under section 105 of the
Insurance Act in the Court of Judicial Magistrate. The accused were
acquitted as the Magistrate
was of the view that prosecution and punishment under section 105,
Insurance Act would be
offending Article 20 (2) of the Constitution. Against the order of
acquittal an appeal was filed in
the High Court which was dismissed. In appeal filed under Art 132 to
the Supreme Court, it was
held that the offences under Sec. 409, IPC and Sec. 105 of Insurance
Act, respectively, were two
distinct offences. The trail and conviction under one would not be a
bar to prosecute and punish
under the other. In order to avail the benefit of Article 20 (2), it is
necessary that the second
prosecution and punishment must be for the 85 same offence as that
of the first prosecution and
punishment.

In Mohinder Singh Vs State Of Punjab( 1998) the appellant was tried

for Section 399 and 402 of
Indian Penal Code + Section 3 of TADA because he had a firearm in
his possession. Later he
was tried under Section 5 of TADA because he had a stengun in his
possession. He challenged
this. The Court held that it is not double jeopardy because the
offences are not same.
The Allahabad High Court, in State of U.P. v. Prabhat Kumar (1966)
where the respondant
(accused) was tried for being in possession of stolen revolver under.
section 25 of the Arms Act
and was acquitted, but he was again tried for being in possession of
the same revolver at the
same time and place under section 411 of IPC, held that the second
trial under section 411 of
Penal Code was not barred by either the provision of section 40.3 of
the Code or section 26 ofthe
General Clauses Act so as to attract Article 20 (2).
Prosecution and Punishment by Competent Court
In order to invoke the protection conferred by Art. 20 (2) of the
Constitution there must have
been a prosecution and punishment in respect of the same offence
before a court of law or a
judicial tribunal required by the law to decide the matters in
controversy judicially on evidence
on oath authorised by law to administer and not before a tribunal
which entertains a departmental
or an administrative enquiry even though set up by a statute, but not
required on legal evidence
on oath. The words ‘before a court of law or judicial tribunal’, though
not found specifically in
the article, have, nevertheless, been read therein by the Supreme
Court mainly because of the
word ‘prosecution’ found therein. When a civil servant is dismissed
from government service on
the ground of misbehaviour after an inquiry, his later prosecution on
the same charges which had
been earlier inquired into and for which he was punished with
dismissal would not be barred by
Art. 20 (2). The earlier ‘inquiry’ could not be regarded as
‘prosecution’ for a criminal offence so
Art. 20 (2) did not apply.
The immunity against a second prosecution has become confined to
a situation when the first
proceeding has been before a court of law. The same will be the
position when after ‘prosecution
and punishment’ for an offence, further action is taken, by a quasi
judicial body. This excludes
the vast system of inquiries and punishments by a number of
quasi-judicial bodies which operate
at present m the country. This is because the word ‘prosecution’ in
Article 20 (2) has been
interpreted restrictively. The scope of Art 20 (2) has thus been very
much narrowed by judicial
interpretation.
Art. 20 (2) is limited to indictment before a criminal court. Therefore,
Art- 20 (2) does not bar
proceedings before a civil court for disobedience of an injunction
along with criminal
proceedings as the former are not in the nature of criminal
proceedings.
Prosecution and Punishment Necessary Requisites
One of the requisites to invoke Art- 20 (2) of the Constitution is that
the person seeking the
benefit must have been prosecuted and punished. Thus, initiation of
a criminal action against a
person or an information or indictment in a court of law and
consequent upon such proceeding
the person should be punished so as to attract the doctrine of double
jeopardy. Prosecution
means:
A proceeding either by way of indictment or information, in the
Criminal Courts, in order to put
an offender upon his trial
In Rajjab Ali v. State(1973) the petitioner was prosecuted in an earlier
case under See. 14 of
Foreigners Act and was ordered to be acquitted and hence his second
prosecution under section
14 of the Act and contravention of the passport rule does not attract
the application of Article
20(2) because the words “prosecuted” and “punished are not to be
read disjunctively so as to
mean “prosecuted” or “punished” but to be read conjunctively. Both
the factors must co-exist in
order to attract the invocation of Art- 20 (2) of the Constitution.
In A.A. Mulla v. State of Maharashra (1997) the appellants were
charged under section 409 IPC
and section 5 of the Prevention of Corruption Act for making false
panchnama disclosing of
recovery of 90 gold biscuits although according to the prosecution
case the appellant had
recovered 99 gold biscuits. They were tried for retaining 9 gold
biscuits before the Special Judge
but appellants were acquitted. On the ground that prosecution had
failed to prove
misappropriation the appellants were again tried under the Customs
Act and Foreign Exchange
Regulation Act (FERA). The appellants challenged the validity of their
second trial on the
ground that it was violative of Art. 20 (2) of the Constitution. It was
held that the second trial
5
was not barred as not only the ingredients ofthe offence oftwo trial
were different but the factual
position in the first and second trial were also different.
Maqbool Hussain v. State of Bombay (1953). 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 search it was
found that he was carrying 107 total 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
the Chief Presidency Magistrate against the appellant charging him
with the offence under
Section 8, Foreign Exchange Regulation Act, 1947. The appellant
pleaded that his prosecution
before the Magistrate was in violation of the fundamental right
guaranteed under Article 20(2)
because he had already been prosecuted and punished in as such as
his gold had been confiscated
by the customs authorities. The court held at the sea customs
authority is not a court or judicial
tribunal and the adjudging Confiscation or the increased rate of duty
or penalty under the
provisions of the Customs Act, 1878 did not constitute a judgment or
order of a court
or Judicial tribunal necessary for the purpose of supporting a plea of
double jeopardy.
Other Cases
In Venkataraman v. Union of India,(1954) An enquiry was made
before the enquiry
commissioner on the appellant under the Public Service Enquiry
Act,1960 & as a result, he was
dismissed from the service. He was later on, charged for committed
the offence under Indian
Penal Code & the Prevention of Corruption Act. The court held that
the proceeding held by the
enquiry commissioner was only a mere enquiry & did not amount to
a prosecution for an
offence. Hence, the second prosecution did not attract the doctrine
of Double Jeopardy or
protection guaranteed under Fundamental Right Article 20 (2).
It is to be noted that Article 20 (2) will applicable only where
punishment is for the same
offence, In Leo Roy v. Superintendent District Jail,(1958) The Court
held: if the offences are
distinct the rule of Double Jeopardy will not apply. Thus, where a
person was prosecuted and
punished under sea customs act, and was later on prosecuted under
the Indian Penal Code for
criminal conspiracy, it was held that second prosecution was not
barred since it was not for the
same offence.

In Roshan Lal & ors v. State of Punjab,(1965) the accused had

disappeared the evidence of two
separate offences under section 330 & section 348 Indian Penal
Code. So, it was held by the
court that the accused was liable to be convicted for two separate
sentences.
Union of India & Anr. v. P.D. Yadav, (2002) In this case, the pension of
the officer, who was
convicted by a Court-Martial, had been forfeited. The court held:
“This principle is embodied in
the well-known maxim nemo debet bis vexari si constat curiae quod
sit pro una et eadem causa,
meaning no one ought to be vexed twice if it appears to the court
that it is for one and the same
cause. Doctrine of Double Jeopardy is a protection against
prosecution twice for the same
offence. Under Article 20-22 of the Indian Constitution, provisions
are made relating to personal
liberty of citizens and others offences such as criminal breach of
trust, misappropriation,
cheating, defamation etc., may give rise to prosecution on criminal
side and also for action in
civil court/ other forum for recovery of money by way of damages
etc., unless there is a bar
created by law. In the proceedings before General Court Martial, a
person is tried for an offence
of misconduct and whereas in passing order under Regulation 16 (a)
for forfeiting pension, a
person is not tried for the same offence of misconduct after the
punishment is imposed for a
proven misconduct by the General Court Martial resulting in
cashiering, dismissing or removing
from service. Only further action is taken under Regulation 16 (a) are
entirely different. Hence,
there is no question of applying principle of Double Jeopardy to the
present cases.”
In Jitendra Panchal v. Intelligence Officer N.C.B.,(2009) on 17th
October, 2002, officers of the
US Drug Enforcement Agency, along with officers of the Narcotics
Bureau, India, seized a
consignment of 1243 pounds equivalent to 565.2 Kgs. of Hashish in
Newark, USA. During the
investigation, it appears to have transpired that one Niranjan Shah
and the appellant were
engaged in trafficking Hashish out of India into the USA and Europe
and that the seized
contraband had been smuggled out of India by the appellant and the
said Niranjan Shah along
with one Kishore. The appellant was arrested in Vienna in Austria by
officers of the Drug
Enforcement Agency, USA on 5th December, 2002 and was extradited
to the USA. Soon,
thereafter, on 25th March, 2003, the Deputy Director General of the
Narcotics Control Bureau,
hereinafter referred as `the NCB', visited the USA and recorded the
appellant's statement.
Subsequently, on 9th April, 2003, officers of the NCB arrested
Niranjan Shah, Kishore Joshi and
Irfan Gazali in India and prosecution was launched against them in
India. On 5th September,
2003, a complaint was filed by the NCB before the learned Special
Judge, Mumbai, against
Niranjan Shah, Kishore Joshi and two others under Sections
29/20/23/27A/24 read with Section
8(c)/12 of the Narcotic Drugs and Psychotropic Substances Act, 1985,
hereinafter referred to as
`the NDPS Act', in connection with the above-mentioned incident.
While the said Niranjan Shah
and others were being proceeded with before the learned Special
Judge in Mumbai, the appellant,
who had been extradited to the USA, was tried before the District
Court at Michigan, USA,[14]
On pleading guilty of the charge of conspiracy to possess with
intention to distribute controlled
substances, which is an offence under USC Controlled Substances
Act[15], the appellant was
sentenced to imprisonment on 27th June, 2006, for a total term of 54
months. After serving out
the aforesaid sentence, the appellant was deported to India on 5th
April, 2007, and on his arrival
at New Delhi, he was arrested by officers of the NCB and was taken
to Mumbai and on 10th
April, 2007, he was produced before the learned Chief Metropolitan
Magistrate and was
remanded to judicial custody.At this juncture, it may be indicated
that although the appellant
could have been prosecuted for other offences under Title 21 USC,
the other charges against the
appellant were dropped as he had pleaded guilty to the offence of
conspiring to possess
controlled substances. On 25th April, 2007, on the appellant's
application that the proceedings
against the appellant in India would amount to double jeopardy, the
learned Special Judge,
Mumbai, rejected the appellant's contention upon holding that the
charges which had been
dropped against the appellant in the proceedings in the USA had not
been dealt with while
imposing sentence against him in the District Court of Michigan, USA.
The Special Judge
extended the judicial custody of the appellant and subsequently
rejected his prayer for bail on
17th May, 2007.
Probable Questions
1.Define Double Jeopardy and discuss its Constitutional position in
India
2. Critically evaluate the concept of double jeopardy in article 20(2)
of Indian Constitution.
3. Explain the objective of Article 20(2) and distinguish if from
American Constitution
4. Explain in detail the essential requirements of Article 20(2) with
help of decided cases

Conclusion: The “underlying idea” of double jeopardy includes the

desire to protect an individual
from repeat prosecutions that would subject him to live in a
continuing state of anxiety and insecurity.
A critical analysis of the Indian law relating to the protection of
double jeopardy as enunciated in
Section 300 of the Code of Criminal Procedure and Article 20(2) of
the Constitution of India, it is
revealed that a partial protection against double jeopardy is a
Fundamental Right guaranteed under
Article 20 (2) of the Constitution of India. This provision enshrines the
concept of autrefois convict,
that no one convicted of an offence can be tried or punished a
second time. However it does not
extend to autrefois acquit, and so if a person is acquitted of a crime,
he can be retried. In India,
protection against autrefois acquit is a statutory right, not a
fundamental one. Such protection is
provided by provisions of the Code of Criminal Procedure rather than
by the Constitution. Recently
the Supreme Court of India in Kolla Veera Raghav Rao case36 has also
affirmed that Section 300(1)
Cr. PC is wider in its scope than Article 20(2) 37of the Constitution.
While Article 20(2) of the
Constitution only says that “no person shall be prosecuted and
punished for the same offence more
than once”, Section 300(1) Cr. PC states that no one can be tried and
convicted for the same offence
or even for a different offence but on the same facts.
Double Jeopardy law in India essentially protects a person from
multiple punishments or
successive prosecution based on same facts of a case where the
elements of multiple prosecutions are
similar to those for which the accused has already been prosecuted
or has been acquitted by the court.
Going by the basic principle of law, a new charge cannot be framed
against a person under Section
300 of Cr. PC based on same facts. It is essentially the duty of police
who files the charge sheet to
ensure that all the charges are framed against an accused properly;
also it is the responsibility of the
magistrate to ensure that the charge sheet has been filed without an
error. So it creates extra burden on
both i.e., accused and the state machinery if the charges are not
framed cautiously, as it sometimes
leads to the double victimization of an accused and on the other side,
it also creates problem for state
to prosecute a person as it should be