This article endeavours to analyse the principle of ‘autrefois convict’, commonly ushered as ‘double jeopardy’ and its implementation in India. The principle, precisely, means that a person who has been tried and convicted of a criminal offence once cannot be tried or convicted for the same offence again. The principle of double jeopardy is not a new concept. It existed under the Government of India Act, 1935 and was duly accepted as a fundamental right as well as a legal right.
The etymology of Double Jeopardy
The term ‘jeopardy’ is defined as “hazard, danger or peril”[1]. With respect to criminal law, jeopardy means “the risk of conviction and punishment”[2]. The expression is defined in Black’s Law Dictionary as “a second prosecution after the first trial for the same offence”[3]. The principle derives its origin from the English common law principle of ‘nemo debet vexari’ meaning a man may not be put twice in peril for the same offence. The principle has also been accepted as a part of the 5th Amendment right under the United States Constitution.
In Mohinder Pratap Singh v. Director, Health Services[4], the court held that ‘no person shall be prosecuted or punished for the same offence more than once’. This was a significant case where the right against double jeopardy was upheld as a basic human right.
Double Jeopardy under the Constitution
Article 20 (2) states that no person shall be prosecuted and punished for the same offence more than once. This provision forms part of Part III of the Constitution which means that it is a fundamental right and it is the duty of the State to ensure that no action is taken that violates this right. This right was incorporated form the inspiration gained from the English common law principle of nemo debet vexari and 5th Amendment of the U.S. Constitution. However, the right under the Indian Constitution is narrower than that bestowed by the other English or the U.S. laws.
Under the English and American laws, a person cannot be tried for an offence and convicted if he has earlier been tried of the same offence. Under Article 20(2), the person should not only be tried but also convicted of the offence in the previous occasion to claim the right in any subsequent trial for the same offence.
The essential features of right against double jeopardy under Article 20(2) are:
- The right applies only when a person tried for an offence for which a conviction order has already been passed by a trial court. In Venkataraman v. Union of India[5], the accused was first subjected to a departmental enquiry and suspended from work, and subsequently tried for a criminal charge. The court held that the previous sanction does not amount to trial or conviction but a mere departmental proceeding.
- The conviction must be after a complete and fair trial. Any appeal or review or revision against the conviction does not amount to subsequent trial.
- The Article does not apply to the continuing offence. In Kolla Veera Rao v. Gorantla Venkateshwara Rao[6], the accused was charged with the offences of ‘voluntarily causing hurt’ and ‘wrongful confinement’. He first tried to destroy evidence in the first case and was caught and tried for it. Later, he tried to destroy the evidence in the second case as well and was again tried for it. Thus, the question was whether the second trial is for the same offence, i.e. destruction of evidence. The court held that the offence was a continuing one and hence, does not constitute two trials.
- The conviction must be for the same offence. If the offences are distinct, this provision is inapplicable. In Leo Roy v. Supt. District Jail[7], the accused was convicted under the Sea Customs Act for evading custom duty and later convicted for criminal conspiracy under IPC. The court held that the offences are distinct.
Double Jeopardy under Cr.P.C
Section 300 of the Code of Criminal Procedure, 1973 abounds with two essential legal principles called ‘autrefois convict’ and ‘autrefois acquit’.
It means that the provision puts a bar on the trial of a charge against a person who has already been charged for the same offence and either has been convicted or acquitted. The provision has been divided into six clauses and each of them is discussed in detail herein under:
Clause 1, Section 300
This clause implies that a person should not be tried for the same offence twice if he has already been tried for that offence. The essentials to apply to this section are:
- The person must be either convicted or acquitted of the offence,
- The offence must be tried by a court of competent jurisdiction,
- The two offences should be the same or at least identical. In ICAI v. Vimal Surana[8], the accused was convicted for offences under Sections 24 & 26 of the Chartered Accountants Act and was subsequently, tried for the similar offences under IPC (Sections 419 & 420). The conviction was held to be a bar on the second trial.
- If more than one offence can be made out from a given fact of the case; conviction for one offence shall act as a bar on the trial for other offences resulting from the same facts.
Clause 2, Section 300
The clause provides that where a person is convicted or acquitted of an offence and a distinct charge could be made out against such person but was actually not made in the previous trial, he cannot be prosecuted for the same. The intention of this clause is to prevent abuse of criminal administration to continue prosecuting a person by building up charges against him.
For instance, imagine five friends plan to rob a rich merchant and execute their plan. While committing robbery, the merchant sees them and they hit him making him unconscious. They abduct him into their vehicle and throw into a waterfall and kill him. Here, the five friends can be charged with ‘formation of unlawful assembly, dacoity, murder, abduction, abduction in order to murder and dacoity with murder (Sections 149, 393, 302, 364 & 396)’.
Thus, if the prosecution was to misuse criminal administration, the five friends will be tried for each offence separately and each trial will take around 4 to 5 years.
To avoid the above situation the code provides Section 300 (2). Moreover, if at all, the prosecution has reasonable grounds to initiate a subsequent trial against the same person for a charge which was earlier omitted, it has been made obligatory for the prosecution to acquire a consent from the State Government to do so.
Clause 3, Section 300
This clause lays down a situation where the accused can be retried for an offence which arises from the same facts of the case but is distinct in nature.
According to this clause, a person convicted of any offence constituted by any act causing consequences which, together with such act, constituted a different offence from that of which he was convicted, maybe afterwards tried for such last-mentioned offence, if the consequences had not happened, or were not known to the Court to have happened, at the time when he was convicted.
For e.g. A ravished B in a moving bus and threw her out of the bus. Later, A is caught, tried and convicted for rape under IPC. However, if B dies in the hospital during treatment, A can be retried for murder since this a new consequence arising from the same act which was not brought to light on the prior occasion. This clause is applicable only on convictions and no acquittals.
Clause 4, Section 300
This clause is a continuation of the previous clause and lays down another exception where double jeopardy rule does not apply. According to this provision, if a person is convicted or acquitted or any offence, notwithstanding such conviction or acquittal, if the offence has given rise to subsequent consequences (like the above example) and if the court convicting or acquitting the accused was incompetent to try him for the subsequent offence, there is no bar on the second trial.
Thus, the only requirement for this section is that the court trying the accused must be incompetent and without jurisdiction to try the subsequent case.
Clause 5, Section 300
The clause extends the right against double jeopardy in certain cases where the accused is discharged though not acquitted. Section 258 of the code provides that a court shall be empowered to discharge the accused in a summons case and let him free even before the principal witnesses are examined. This is called discharge and happens when the court hears the prosecution and believes that no grounds exist to try the accused for the offence because the prosecution’s evidence is not sufficient to prove anything and it will be a waste of time to continue the trial.
Power to discharge can be exercised when the case instituted is a summons case, warrant case or even a sessions case. However, Section 300(5) applies only when the accused is discharged in a summons case.
The clause provides that any person accused of an offence in a summons case and discharge after trial, cannot be prosecuted for the same offence again except without the consent of the concerned court. The provision was inscribed in the code to ensure safeguard against unnecessary misuse of power to prosecute.
Clause 6, Section 300
This is a savings clause which ensures that certain provisions of the same Act or any other Act will not be affected by this section. This section saves Section 26 of the General Clauses Act, 1897 and Section 188 of the Cr.P.C
Section 26, General Clauses Act, 1897
The section provides that where an act constitutes offences under different laws and are punishable with different laws, the person accused of such act shall be tried and convicted under either of the laws but shall not be liable for prosecution twice. Thus, the case of ICAI v. Vimal Surana is ideal for this clause.
Section 188, Cr.P.C
According to this section, if an offence has been committed by a person outside India either in some other country or in a vessel or aircraft registered in India and India has exclusive jurisdiction to try that person, any prosecution or conviction or acquittal by a foreign court shall not bar the prosecution in Indian courts and it shall not amount to double jeopardy.
In Monica Bedi v. State of Andhra Pradesh[9], the accused had obtained a passport with a false name and was already tried for the offence in Lisbon. However, the court held that she can be tried in India as well and the right against double jeopardy shall not be applicable.
[1] P Ramanatha Aiyar, Concise Law Dictionary 692 (5th ed. 2014).
[2] Ibid.
[3] Bryan A. Garner, Black’s Law Dictionary 396 (10th ed. 2014).
[4] Mohinder Pratap Singh v. Director, Health Services, AIR 1956 Punj 81.
[5] Venkataraman v. Union of India, AIR 1954 SC 375.
[6] Kolla Veera Rao v. Gorantla Venkateshwara Rao, (2011) 2 SCC 703.
[7] Leo Roy v. Supt. District Jail, AIR 1958 SC 119.
[8] ICAI v. Vimal Surana, (2011) 1 SCC(Cri) 442.
[9] Monica Bedi v. State of Andhra Pradesh, (2011) 1 SCC 284.
