Nobody can be twice punished for the same offence

INTRODUCTION

There are different theories of punishment like Deterrent, Retributive and Reformative etc. Reformative approach is common in many countries. In this theory, Motive behind Pronouncement of any sentence by judiciary,is ‘reform of the culprit’. If any offender after completion of his or her sentence, it is assumed that he or she has been reformed but if thesystem again punishes that person for the same offence then the possibility of reformation will be low and it will be injustice with him or her.  So this doctrine of Double jeopardy is very necessary and important for any judicial system.

This Doctrine is not a new concept. It was formally recognized in common law in 13th Century in England. American constitution adopted it in 1791 in its fifth constitutional amendment. As far as Indian law is concerned, this doctrine is not clearly mentioned in Constitution but Article 20(2) talks about the same principle as this doctrine speaks. In India, It came in 26 January 1950 with Fundamental Rights.

Indian Perspective on this Principle. –

Indian constitution is world’s largest written constitution and it contains the qualities of different constitution of different countries. It gives its citizens the Fundamental rights from Article 12-32. Article 22(2)[1] deals with the principle of Double jeopardy. This has been given as fundamental right so under any circumstances it cannot be suspended. It proves that this doctrine has been given a significant importance.

It restricts the prosecution and punishment after an earlier punishment for the same offence. Here offence does not possess any general meaning. It has been clarified that the definition of offence will be takenfrom section 3(8)[2] of General clauses act, 1897 and section 2(n)[3] of the Criminal procedure code, 1973. Section (300)[4] of Criminal procedure code is also speaks about this principle. But there are some exceptions in section 300(1) of Cr.P.C… Section 300(2). Person can be prosecuted with the permission of state government for distinct offence. Section 300(3) says that if someone has been punished for lighter offence but consequence is heavy then Trial can be againinitiated. Section 300(4) is also an exception of Section 300(1) and it says that previous court is not competent to pronounce the sentence. According to Section 300(5), any higher court can order for initiate the proceeding again on same fact. All these are some exceptions.

 There are some similarity in Article 20(2) and Section 300(1) of Cr.P.C. But in case of Karawati v. State of Himanchal Pradesh[5], Apex court said that Article 20(2) does not apply when there was no punishment for the offence at the earlier prosecution. In one more case SupremeCourt[6] said that the scope of section 300(1) is wider than Article 20(2).There are two meaning one is, No one will be convicted twice for the same offence whereas second is, No one will be convicted for the same offence after acquittal. Both are covered by Section 300 of Cr.P.C. but only first part is covered by the Article 20(2).

Some important judicial precedents on Doctrine of Double jeopardy

Makbool v. State of Bombay[7]

Facts-

  • A person arrested inMumbai with 107.2 tolas of gold without having any authorization.
  • Sea custom authority confiscated all the gold and initiated the proceeding before custom officer. After that, case came before the Chief Presidency Magistrate and convicted. He claimed that he was punished for same offence by two different authority.
  • Supreme Court faced the question of Double jeopardy under article 20(2) in this case.

Held- It was a landmark judgement. Honorable court held that proceeding before Custom authority was not amount to “prosecution” mentioned in article 20(2). And also distinguish the administrative action and judicial action.

State of Bombay v. S.L. Apte[8]

Facts-

  • A person was charged under Section 105 of Insurance act and Section 409 of Indian penal code. During trial, Session court dropped the charge under Section 105[9].
  • Fresh appeal was filed before Magistrate and Magistrate dismissed the appeal on the ground of Article 20(2). State appealed before High court but High court rejected the plea.
  • Matter came before the Highest court.

Held- Apex court held that it is required to analyze the ingredients of the offences, so here Section 409 of I.P.C. and Section 105 of Insurance act, are difference in nature and both are not identical. Same view was taken by American court in case of Albrecht v. United State.[10]

Some other important judicial pronouncement on this issue.

  • Jitendra Panchal v. Intelligence officer,NCB[11]– In this case court propounded that if anyone is tried or convicted in any foreign court, he or she can be tried in India as well because it is distinct in nature.
  • If an appellant has been convicted under Negotiable instrument act, He cannot be tried under section 420 or any provisions of Indian Penal Code.[12]
  • Wife of deceased asked for compensation and accused was convicted under Section 304 of IPC. Here, rule of Double Jeopardy would not be applied.[13]

INTERNATIONAL PERSPECTIVE ON THIS

On international level, article 14 (7) of ICCPR[14] says that No one can be punished or convicted twice according to the law of each countries. Article 4 of the European Convention on Human Rightsbars the member state for taking action against the principle of Double jeopardy.

American constitution adopted this principlein its fifth amendment with the two exceptions one is, when acquitted person bribed the judges and second is related to trial of any person related to army officer.

Doctrine of double jeopardy already existed in Common law but formally Criminal justice act 2003 was brought and it was included with certain exceptions were added after recommendation of law commission. And UK has taken wider approach in cases related to Alrefois acquit.

CONCLUSION

Now we are moving as progressive society where individual’s rights prevail. Positivist approach towards the implementation of law is very less relevant in modern era. The interference of the State in the life of Citizens, is being disliked. So the doctrine of double jeopardy is very important and also one of the human rights. As far as India is concerned, Pending cases are increasing so this doctrine can also help in decreasing the number of cases and this doctrine prevents the injustice with any human life this is the reason as why, it was mentioned in constitution as fundamental rights.


[1]Article 20(2)- No person shall be prosecuted and punished for the same offence more than once.

[2] Section- 3(38)- “offence” shall mean any act or omission made punishable by any law for the time being in force.

[3]Section 2(n)-“offence” means any act or omission made punishable by any law for the time being in force and includes any act in respect of which a complaint may be made under section 20 of the Cattle-trespass Act, 1871 (1 of 1871);

[4] Section 300 of Cr.P.C-.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.

[5]1953 AIR 131

[6]Kolla Veera Raghav Rao v. Gorantla Venkateswara Rao and Anr. Crl.A. No.-001160-001160 / 2006

[7] AIR 1953 SC 325

[8] AIR 1961 SC 578

[9] Insurance act

[10] (1927) 273 U.S. 1: 71 law ed. 505

[11] 2009 SC 1938

[12] Kolla Raghav Rao v. Gorantla Venkateswara Rao, AIR 2011 SC 641

[13]Subha Singh v. Davinder Kaur, AIR 2011 SC 3163(3165)

[14]InternationalCovenants on Civil and political rights

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s