DOUBLE JEOPARDY

What Is Double Jeopardy under Article 20(2) of Indian Constitution | Meaning

Article 20 (2) of Indian Constitution talks about the Double Jeopardy. Where no man shall not be punished twice for same offence.

Meaning of Double Jeopardy

The right secured under Article 20 clause (2) is grounded on the common law maxim 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 autrefois acquit or autrefois convict.

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. The principle has been recognized in the existing law in India and is enacted in Section 26, General Clauses Act, 1897, and Section 300 CrPC.

Although these were the materials which formed the background of the fundamental right given in Article 20(2) of the Constitution, the ambit and content of guarantee are much narrower than those of the common law in England or the doctrine of ”double jeopardy” in the US Constitution or Section 300 (old Section 403) CrPC.

Under U.S Constitution

DOUBLE JEOPARDY

In the US 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 irrespective of whether the accused was acquitted or convicted in the first prosecution. The common-law principle is also the same. The rule in the 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. Accordingly, there can be no constitutional bar to a second prosecution and punishment for the same offence unless the accused had already been punished in the first instance. The Supreme Court has said: ”If there is no punishment for the offence as a result of the prosecution, sub-clause (2) of Article 20 has no application”. The much publicised Zahira Habibullah H. Sheikh v. State of Gujarat (Best Bakery case), in which the Supreme Court directed retrial of the accused after their acquittal by the trial court and the High Court would have fallen in this category. Obviously for this reason Article 20(2) was not even invoked in that case.

Essentials of Double Jeopardy

Subject to this qualification there must be a prosecution in both the instances. Prosecution has no fixed meaning and is susceptible both of a wide and a narrow meaning But, as used in Article 20(2), it embodies the following three essentials:

  • 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 proceedings or the prosecution should have taken place 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 administrative enquiries cannot be considered as proceedings in connection with prosecution and punishment
  • 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 authority making the enquiry is required to act judicially.

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Gajendragadkar J has stated the protection under Article 20(2) as follows:

The constitutional right guaranteed by Article 20(2) against double jeopardy can be successfully invoked only where the prior proceedings on which reliance is placed must be of a criminal nature instituted or continued before a Court of law or a Judicial Tribunal in accordance with the procedure prescribed in the statute which creates the offence and regulates the procedure.

There is no punishment within the meaning of Article 20(2) unless it is preceded by a prosecution in the sense explained above. It is well illustrated in Maqbool Hussain v. State of Bombay”. 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. 

To attract the provision of clause (2), it is necessary that the first trial should have been before a court competent to hear and determine the case and to record ?verdict of conviction or acquittal. If the court is not so competent, the whole trial 18 null and void and it cannot be said that there has been prosecution and punishment for the same offence.88 It has been held that Article 20(2) does not apply to a continuing offence. “

THIS ARTICLE IS WRITTEN WITH THE HELP OF V.N SHUKLA CONSTITUTION OF INDIA

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