duble jeopardy

8/10/2019 duble jeopardy

1/19Electronic copy available at: http://ssrn.com/abstract=1303324

Introduction

''The constitutional prohibition against 'double jeopardy' was designed toprotect an individual from being subjected to the hazards of trial andpossible conviction more than once for an alleged offense. . . . The

underlying idea, one that is deeply ingrained in at least the Anglo-

American system of jurisprudence, is that the State with all its resourcesand power should not be allowed to make repeated attempts to convict an

individual for an alleged offense, thereby subjecting him to

embarrassment, expense and ordeal and compelling him to live in a

continuing state of anxiety and insecurity, as well as enhancing thepossibility that even though innocent he may be found guilty.''

1

The roots of the doctrine of Double Jeopardy can be traced to the Latin

maxim 'Nemo debet bis vexari'. The meaning of this maxim is that a man should not be

put in peril twice for the same offence. This doctrine has been incorporated in our

Constitution as a Fundamental Right under Article 20 (2), which runs as thus, "No person

shall be prosecuted and punished for the same offence more than once".

However, the right not to be punished more than once for the same offence

is not a new guarantee as it already existed in Indian jurisprudence although merely

statutorily. The guarantee against Double jeopardy could be found in Sec. 26 of the

General Clauses Act and Sec.403 (1) of the Cr PC 1898. Reminiscence of this can be still

found under Sec. 300 of the Cr PC, 1973. In fact Sec. 300 elaborates the principle of

double jeopardy much better than does Art. 20 (2) of the Constitution. It is also widely

believed that Art. 20 (2) of the Constitution only provides Parliamentary gloss over a

prevalent doctrine already incorporated within the Cr PC.

A more conservative view is that the intention of the founding fathers

appears to have been not to disturb the existing law which is to be found in Section 403

of the Cr. PC, 1898, relating to the extent of protection against Double Jeopardy in the

1Green v. United States, 355 U.S. 184, 187 -88 (1957). The passage is often approvingly quoted by the

Court. E.g., Crist v. Bretz, 437 U.S. 28, 35 (1978); United States v. DiFrancesco, 449 U.S. 117, 127 - 28

(1980)


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Double Jeopardy and CrPC

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criminal law of this country. Article 20(2) does nothing more than reproduce in effect the

provisions of section 300 (403 old) of the Cr. PC. 1973.

Historical source of the concept of Double Jeopardy

It has been said that the history of double jeopardy is the history of criminal

procedure2. The rule is thought to have its origins in the controversy between Henry II

and Archbishop Thomas a Becket that clerks convicted in the ecclesiastical courts were

exempt from further punishment in the Kings courts because such further punishment

would violate the maxim (nimo bis in idipsum) no man ought to be punished twice for

the same offence. This maxim stemmed from St Jeromescommentary in AD 391 on the

prophet Nahum: For God judges nottwice for the same offence.3The rule later found

expression in the common pleas autrefoisconvict and autrefois acquit.4Based on the

concept of merger, autrefois convict was a plea that the prisoner had already been tried

for and convicted of the same offence. The object sought to be achieved was

avoidance of curial imposition of a sentence in punishment of conduct which had

previously been the subject of curial imposition of a sentence in punishment5. Based in

estoppel, autrefois acquit was a plea that the prisoner had already been tried for and

acquitted of the same offence6.

The pleas operated in the context of a criminal law with relatively few offences

and limited opportunities for a given fact situation to give rise to multiple offences7. The

last 100 years, however, have seen the proliferation of criminal law, the modernization of

criminal procedure, and the development of modern criminal process and institutions8.

The consequence has been the development of a more extensive double jeopardy rule

2http://www.courts.qld.gov.au/publications/articles/speeches/2003/atkin090703.pdf

3Friedland M L,Double Jeopardy (1969) Clarendon Press, Oxford at 5.

4Laws of Australia Chapter 9 at [293]

5Travers v Wakeham (1991) 28 FCR 425; 54 A Crim R 205 per Jenkinson J at 211.

6Laws of Australia Chapter 9 at [293]

7Friedland M L (1969) at 14

8Laws of Australia Chapter 9


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which more properly gives effect to its underlying principle: that no person shall be

troubled twice for the same offence.9 The decision in Connelly v Director of Public

Prosecutions (UK) [1964] AC 1254 provided the first judicial statement of coherent

general principle on the rule10

:

For the doctrine of autrefois to apply it is necessary that the a ccused

should have been put in peril of conviction for the same offence as that

which he is then charged. The word offence embraces both the facts

which constitute the crime and the legal characteristics which make it an

offence. For the doctrine to apply it must be the same offence both in fact

and in law.11

The underlying idea is that the State with all its resources and power should not be

allowed to make repeated attempts to convict an individual for an alleged offense [sic],

thereby subjecting him to embarrassment, expense and ordeal and compelling him to live

in a continuing state of anxiety and insecurity, as well as enhancing the possibility that

even though innocent he may be found guilty.12

This statement captures the essential arguments for maintaining the double

jeopardy rule. Foremost among these is that such a rule is necessary to protect against

wrongful convictions. Repeated exposure to the (fallible) trial process increases such a

risk.13

9OSullivan v Rout [1950] SASR 4 per Napier CJ at 5-6.

10Laws of Australia Chapter 9 at [293]11At 39-40 per Lord Devlin in OSullivan v Rout

12Green v United States (1957) 355 US 185 at 187-88

13 Roberts P, Double Jeopardy Law Reform: A Criminal Justice Commentary in Modern Law Review

(2002) 65 (3) 393 at 397


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Double Jeopardyin Indian Constitution

The basic premise of Double Jeopardy in the Constitution is that when a person

has been convicted of an offence by a competent court, the conviction serves as a bar to

any further criminal proceedings against him for the same offence. The idea is that no one

ought to be punished twice for one and the same offence. If a person is indicted again for

the same offence in a court, he can plead, as a complete defense, his formal acquittal or

conviction, or, as it is technically expressed, he can take the plea of autrefois acquit or

autrefois convict.14

Article 20 (2) of the Constitution which runs as, "No person shall be prosecuted

for the same offence more than once", contains the rule against Double Jeopardy. As

already mentioned in the introduction to this project, the principle elaborated in the said

article was inexistence in India even prior to the commencement of the Constitution.

The ambit of Art. 20(2) is, however, narrower than the English or the American rule

against Double Jeopardy. The Indian provision enunciated only the principle of autrefois

convictand not the principle of autrefois acquit. This basically means that Art. 20 (2) can

be invoked only when there has been prosecution and punishment in the first instance.

However, later on in the project, when the discussion revolves around the concept of

Double Jeopardy as ingrained in the Cr PC, one comes across the fact that the principles

of autrefois acquithas been embedded in Sec. 300 Cr PC.

The word prosecution as used in Art. 20 (2) 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

14M. P. Jain, "Indian Constitutional Law", Vol. I, 5th ed.,2003, p. 1238


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meaning "an act or omission made punishable by any law for thetime being in

force".15

The proceeding or the prosecution should have taken place before a 'court' or

'judicial tribunal'. The revenue authorities like the seacustom authorities, are not

judicial tribunals.16

Likewise proceedings before a tribunal which entertains departmental or

administrative enquiries cannot be considered as proceedings in connection with

prosecution and punishment.17

The proceedings should have been taken before the judicial tribunal or court in reference

to the law which creates the offences. Thus, where an enquiry is held before a statutory

authority against a government servant, not for the purpose of punishing for the offence

of cheating and corruption but to advise the government as to disciplinary action to be

taken against him, it cannot be said that the person has been prosecuted.18

It would make

no difference even if the authority making the enquiry is required to act judicially.19

The ambit of Art. 20 (2) has been defined via a wide range of case law. If aperson has been prosecuted for an offence but acquitted, then he can be prosecuted for the

same offence again and punished. In Kalawati v. State of Himachal Pradesh20

a person

accused of committing murder was tried and acquitted. The state preferred an appeal

against the acquittal. The accused could not plead Article 20(2) against the appeal.

15S. A. Venkataraman v. Union of India, AIR 1954 SC 375; V. N.Shukla, "Constitution of India", 10th ed.,

2001, rep. 2004, p. 156

16Maqbool Hussain v. State of Bombay, AIR 1952 SC 325

17ibid., p. 325

18Thomas Dane v. State of Punjab, AIR 1959 SC 375

19Leo Roy Frey v. Supdt., Distt. Jail, AIR 1958 SC 119; V. N.Shukla, "Constitution of India", 10th ed.,

2001, rep. 2004, p. 157

20AIR 1953 SC 546; M.P. Jain, "Indian Constitutional Law",2003, 5th ed., p. 1239


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Article 20(2) would not apply as there was no punishment for the offence at the earlier

prosecution.

The same set of facts can, in some cases, constitute offences under the two different laws.

In the case of State of Bihar v. Murad Ali Khan21

the Supreme Court held that in order

for the prohibition to apply under Article 20(2), the same act must constitute an offence

under more than one Act. If there are two distinct separate offences with ingredients

under two different enactments, a double punishment is not barred.

In the case of State of Bombay v. S.L. Apte22

, the Supreme Court explained the legal

position as follows:

"To operate as a bar the second prosecution and the consequential

punishment there under, must be for the 'same offence'. The crucial

requirement therefore, for attracting the Article is that the offences are the

same, i.e., they should be identical. If, however, the two offences are

distinct, then notwithstanding that the allegations of facts in the two

complaints might be substantially similar, the benefit of the ban cannot be

invoked. It is, therefore, necessary to analyze and compare not the

allegations in the two complaints but the ingredients of the two offences

and see whether their identity is made out."

A limitation read into Art. 20 (2) is that the former 'prosecution'(which indicates

that the proceedings are of a criminal nature) must be before a court of law, or a judicial

tribunal required by law to decide matters in controversy judicially on evidence and on

oath which it must be authorized by law to administer, and not before a tribunal which

entertains a departmental or administrative enquiry, even though set up by a statute, but

not required to proceed on legal evidence given on oath.23



23Ibid p. 1241


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In the leading case ofMaqbool Hussain v. State of Bombay24

, a person arrived at

an Indian airport from abroad. He was found in possession of gold which was against the

law at the time. Action was taken against him by the customs authorities and the gold was

confiscated. Later he was prosecuted before a criminal court under the Foreign Exchange

Regulation Act. The question was whether the plea of autrefois acquit could be raised

under Art. 20(2). The Supreme Court came to the conclusion that the proceedings before

the customs authorities did not constitute 'prosecution' of the appellant, and the penalty

imposed on him did not constitute 'punishment' by a judicial tribunal. In these

circumstances, the trial of the petitioner before the criminal court was not barred. The

Supreme Court observed as follows:

It is clear that in order that the protection of Art. 20 (2) be invoked by a

citizen there must have been a prosecution and punishment in respect of

the same offence before a court of law or a tribunal, required by law to

decide the matters in controversy judicially on oath which it must be

authorized by law to administer and not before a tribunal which entertains

a department or an administrative enquiry even though set up by a statute

but not required to proceed on legal evidence given on oath. The very

wording of Art 20 and the words used therein would indicate that the

proceedings therein contemplated are of the nature of criminal

proceedings before a court of law or a judicial tribunal and the

prosecution in this context would mean an initiation or starting of

proceedings of a criminal nature before a court of law or a judicial

tribunal in accordance with the procedure prescribed in the statute which

creates the offence and regulated the procedure.25

The Supreme Court ruled that the sea customs authorities are not a judicial tribunal and

adjudging by it of the confiscation, increased rate of duty or penalty under the provisions

24AIR 1953 SC 32525AIR 1953 SC 325 at p. 327


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Double Jeopardyin Criminal Procedure Code

In the Cr PC, the provision to prevent punishment for the same offence twice

can be found under Sec. 30028

. This section of the CrPC incorporates the pleas of

autrefois acquit and autrefois convict. These pleas are taken as a bar to criminal trial on

the ground that the accused person had been once already charged and tried for the same

alleged offence and was either acquitted or convicted.

Interestingly, Sec. 300 also takes care of an anomaly present in Art. 20(2) of the

Constitution which deals with Double Jeopardy. Sec. 300 incorporates acquittal also as a

28Section 300CrPC states:

(1) 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.

(2) A person acquitted or convicted of any offence may be afterwards tried, with the consent of the

State Government, for any distinct offence for which a separate charge might have been made against himat the former trial under sub-section (1) of section 220.

(3) 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, may be 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.

(4) A person acquitted or convicted of any offence constituted by any acts may, notwithstanding such

acquittal or conviction, be subsequently charged with, and tried for, any other offence constituted by the

same acts which he may have committed if the Court by which he was first tried was not competent to try

the offence with which he is subsequently charged.

(5) A person discharged under section 258 shall not be tried again for the same offence except with theconsent of the Court by which he was discharged or of any other Court to which the first-mentioned Court

is subordinate.

(6) Nothing in this section shall affect the provisions of section 26 of the General Clauses Act, 1897 or

of section 188 of this Code.

Explanation The dismissal of a complaint, or the discharge of the accused, is not an acquittal for the

purposes of this section.


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bar to criminal trial whereas Art. 20(2) deals with only previous conviction. Sec. 300 of

the Cr PC has six sub-sections and six illustrations which expansively deal with the

principle of Double Jeopardy. In fact, the CrPC is much more comprehensive than Art.

20 (2) of the Constitution. Here is an analysis of the provisions of Sec. 300.

Under Sec. 300- Persons once convicted or acquitted not to be tried for the same offence,

1) A person who has once been tried for 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.

What this section basically means:

a) If a person is convicted or acquitted by a court of competent jurisdiction, he cannot be

tried for the same offence.

b) If charge has been made against a person under sub - section (1) of Sec. 221 and the

facts are the same and he has been charged under sub -section (2) of Sec. 221 then he

cannot be tried on the same facts. Of course this holds true only till the conviction or

acquittal remains in force.

For the purpose of Sec. 300 of the CrPC, the term "acquittal" has been explained in

negative terms by saying that the dismissal of a complaint or the discharge of the accused

is not acquittal.29

This explanation has been repeatedly used in various cases example

Ramasharama v. Pinki Sharma30

and E.K. Thankappan v. Union of India.31

29Explanation to S. 300 Cr PC

301989 Cr LJ 2153 (Pat.); Ratanlal & Dhirajlal, "The Code ofCriminal Procedure", 16th ed.,2002, rep.

2003, p. 887

311989 (3) Crimes 656, 663 (Ker.); Ratanlal & Dhirajlal, "TheCode of Criminal Procedure", 16th ed.,

2002, rep. 2003, p. 88721 1997 (1) Crimes 48 (Cal); Ratanlal & Dhirajlal, "The Codeof Criminal

Procedure", 16th ed., 2002, rep. 2003, p. 887


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In the case of Krishna Sen Gupta v. Manjula Mukherjee,32

the brother of the aggrieved

filed a complaint under Sec. 494 I.P.C. However, the accused was discharged because the

complaint was not filed by the complainant. The Calcutta High Court held that a

subsequent complaint by the complainant for the same offence is not barred by the

principle of double jeopardy. The reason for having such an explanation is that the

dismissal of a complaint or the discharge of the accused is not considered as final

decision regarding the innocence of the accused person.33

However, if a court applies a wrong provision of law erroneously, it would be

deemed that the order in effect, was one under the provisions of law applicable to the

facts of the case. Where in a summons case, the Magistrate passed an order of discharge

under Sec. 245 (2) owing to the absence of the complaint, the order of discharge under

Sec. 245 (2) must be read as an order of acquittal passed under Sec. 256.34

Also, the word "tried" in Sec. 300 (1) does not mean tried on merit. Example, in the case

of Kashigar Ratangar v. State of Gujarat,35

withdrawal from the prosecution by the public

prosecutor under Sec. 321 Cr PC resulted in an acquittal of the accused even though the

accused was not tried on merit. Such an acquittal would bar the trial of the accused on the

same facts on a subsequent complaint.36

There are two views regarding the word "tried". One view states that the accused must be

present in court on being summoned, before it can be said that the trial has commenced.

The other view is that once the court has taken cognizance of a complaint or a criminal

case and has ordered issue of process for the accused to appear, it has taken steps towards

the trial and what it has done is proceedings in the nature of a trial. Just as it is necessary

321997 (1) Crimes 48 (Cal); Ratanlal & Dhirajlal, "The Codeof Criminal Procedure", 16th ed., 2002, rep.

2003, p. 887

33R. V. Kelkar, "Criminal Procedure", rev. Dr. K. N.Chandrasekharan Pillai, 4th ed., 2001, p. 479

34Rabindra Dhal v. Jairam Sethi, 1982 Cri LJ 2144, 2146 (OriHC); R. V. Kelkar, "Criminal Procedure",

rev. Dr. K. N. ChandrasekharanPillai, 4th ed., 2001, p. 479

351975 Cri LJ 963

36Shankar Dattatraya Vaze v. Dattatray Sadashiv Tendulkar,AIR 1929 Bom. 408, 409


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under Art 20 (2) to establish the competence of the court which tried the earlier case, in

order to get benefit of the rule contained in Sec. 300 Cr PC it is imperative that the

accused establishes that he has been tried by a competent court.

However, the expression "competent court" to try an offence should not be

narrowly interpreted as to involve merely the consideration of the status or the character

of the court, but in determining the competence it must also be considered whether the

court though otherwise qualified to try the case, could not have done so because certain

conditions precedent for the exercise of the jurisdiction had not been fulfilled.37

Another crucial element of Sec. 300 is re-punishment for the same offence.

The basic rule is that the offences should be same i.e. identical. It is therefore necessary

to analyze and compare not the allegations in the two complaints but the ingredients of

the two offences and see whether their identity is made out.38Sec. 300 bars the trial for

same offences and not different offences which may result from the commission or

omission of the same set of acts. Where the legislature provides that on the same facts

proceedings could be taken under two different sections and the penalties provided under

those sections are also different, it is obviously intended to treat the two sections as

distinct. In such a case Sec. 300 cannot apply.

Sub - section 2 of Sec. 300 reads as thus,

2) A person acquitted or convicted of any offence may be afterwards tried, with the

consent of the State Government for any distinct offence for which a separate charge

might have been made against him at the former trial under sub - section 1 of Sec.

220. Where a person has been acquitted or convicted of any offence and a separate

charge for another offence could have been made but was not made against him in

the former trial, he should not be liable to be again prosecuted for the other offence

as a matter of course because this might lend itself to abuse. To provide a check

against such abuse, Sec. 300 (2) makes it obligatory to obtain the consent of the State

Government before a new prosecution is launched against any person for any distinct

37State v. Birda, (1966) 1 Cr LJ 166, 168; R. V. Kelkar,"Criminal Procedure", rev. Dr. K. N.

Chandrasekharan Pillai, 4th ed. 2001, p. 480

38State of Bombay v. S. L. Apte, AIR 1961 SC 578


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offence for which a separate charge might have been made against him at the formal

trial under Sec. 220 (1).39

Where the charge on the second trial is for a distinct offence the trial is not barred i.e.

the section permits a trial for a distinct offence.40

Sub - section (3) of Sec. 300 read as thus,

2) 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, may be 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 he was convicted. This section is applicable only in cases of conviction

and not in cases where there has been an acquittal. This section is best explained

by its illustration: A is tried for causing grievous hurt and convicted. The person

injured afterwards dies. A may be tried again for culpable homicide.41

This

section allows the re-trial of an accused for acts which did not come to light in

front of the court of prior conviction. A conviction simply in itself does not bar re-

trial of the accused for similar offences which were not bought to the notice of the

courts. The facts or the circumstances must be such as to indicate a different kind

of offence of which there could be no conviction at the first trial. The new

evidence must constitute a different kind of offence for which the accused could

not have been tried at the first trial. The new facts or consequences must have

occurred since the conviction or acquittal at the first trial. For, if the new facts or

consequences were known to the court at the time of the first trial, a second trial

for the offence constituted by the new facts would be barred.42


40Kunjilal v. State of M.P., AIR 1955 SC 280; Ratanlal &Dhirajlal, "The Code of Criminal Procedure",

16th ed., 2002, rep. 2003,p. 890

41Illustration (b) to S. 300 Cr PC

42Ratanlal & Dhirajlal, "The Code of Criminal Procedure",17th ed., 2004, p. 572-573


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Sub -section (4) of Sec. 300 states,

4) A person acquitted or convicted of any offence constituted by any acts may,

notwithstanding such acquittal or conviction be subsequently charged with, and tried

for, any other offence constituted by the same acts which he may have committed if

the court by which he was first tried was not competent to try the offence with which

he is subsequently charged. This sub - section basically states that if any court is

incompetent to try an accused of any offence which is the consequence of an offence

for which he has already been convicted or acquitted, the prior acquittal or

conviction would not act as a bar to the proceedings for the consequential offence as

the court could not have possibly tried the accused of that offence. An illustration

given with this sub section explains the fact further thus: A is charged by a

magistrate of the second class with, and convicted by him of, theft of property form

person B. A may subsequently be charged with, and tried for, robbery on the

samefacts.43

Sub - section (5) of Sec. 300 states,

5) A person discharged under Sec. 258 shall not be tried again for the same offence

except with the consent of the court by which he was discharged or of any other

court to which the first mentioned court is subordinate. In a summons case instituted

otherwise than upon a complaint the court has got power under Sec. 258 to stop the

proceedings at any stage without pronouncing the judgment. If the stoppage of

proceedings is made before the recording of the evidence of the principal witness, it

shall have the effect of discharge of the accused person. However, according to

Sec.300 (5) such accused person cannot be tried again for the same offence without

the consent of the concerned court. It is believed that this provision will be helpful as

a safeguard against the abuse of power of fresh prosecution in such cases.44

43Illustration (e) to S. 300 Cr PC

44Ratanlal & Dhirajlal, "The Code of Criminal Procedure",17th ed., 2004, p. 573


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The last sub -section in the series of sub - section under Sec. 300 CrPC deals with Sec. 26

of the General Clauses Act, 1897 and Sec. 188 of the CrPC. The sub -section reads,

6) Nothing in this section shall affect the provisions of Sec. 26 of the General

Clauses Act, 1897 (10 of 1897) or of Sec. 188 of this code. Section 26 of the General

Clauses Act, 1897 referred to above states that:

Where an act or omission constitutes an offence under two or more

enactments, then the offender shall be liable to be prosecuted and punished

under either or any of those enactments, but shall not be liable to be punished

twice for the same offence.

Although, the above Sec. 26 refers to "acts and omissions constituting an offence

under two or more enactments", the emphasis is not on the facts alleged in the two

complaints, but rather on the ingredients which constitute the two offences with

which a person is charged. This is obvious from the concluding portion of the section

which refers to "shall not be liable to be punished twice for the same offence". If the

offences are not the same but are distinct, the ban imposed by Sec. 26 cannot be

imposed.45

The basic point that comes across from analyzing the entire section is that only sub-

section (1) deals with the exact provision relating to Double Jeopardy. The other sections

are merely supplementing the main sub-section as to the various contingencies which

may arise in the actual implementation of the doctrine of Double Jeopardy.



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Double Jeopardy as practiced in other countries

Australia:

Australian double jeopardy jurisprudence is very similar to other common law

countries. While there is no constitutional protection against re-trials following acquittal,

there have been few examples of statutory exceptions.

In all state jurisdictions prosecutors can appeal against the sentence handed down

by the trial judge and in South Australia and Tasmania the prosecution can appeal against

an error of law made by the trial judge in certain situations. However the acquittal will

still stand valid and the purpose of the appeal is merely to clarify the relevant laws.

In contrast to other common law jurisdictions, Australian double jeopardy law has

been held to extend to prevent prosecution for perjury following a previous acquittal

where a finding of perjury would controvert the previous acquittal. This was confirmed

in the case of The Queen v Carroll46

, where the police found new evidence convincingly

disproving Caroll's sworn alibi two decades after he had been acquitted of the murder of a

young girl and successfully prosecuted him for perjury. Public outcry following the

overturning of his conviction by the High Court has led to widespread calls for reform of

the law along the lines of the UK legislation.

Canada:

The Canadian Charter of Rights and Freedom47s includes provisions such as

section 11(h) prohibiting double jeopardy. But often this prohibition applies only after the

trial is finally concluded, in contrast to the laws of the United States; Canadian law

allows the prosecution to appeal from an acquittal. If the acquittal is thrown out, the new

trial is not considered to be double jeopardy because the first trial and its judgment would

have been annulled. In rare circumstances, a court of appeal might also substitute a

conviction for an acquittal. This is not considered to be double jeopardy either - in this

46R v Carroll (2002) 213 CLR 635; [2002] HCA 55 at http://en.wikipedia.org/wiki/The_Queen_v_Carroll47The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada


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case the appeal and subsequent conviction are deemed to be a continuation of the original

trial.

Europe:

All members of the Council of Europe (which includes nearly all European

countries and all members of the European Union) have signed the European Convention

of Human Rights48

, which protects against double jeopardy. The Seventh Protocol,

Article Four, says:

No one shall be liable to be tried or punished again in criminal

proceedings under the jurisdiction of the same State for an offence for

which he has already been finally acquitted or convicted in accordance

with the law and penal procedure of that State.49

This specific optional protocol has been ratified by all EU states except six

(namely Belgium, Germany, Netherlands, Portugal, Spain and the United Kingdom).

Those member states may still have the provision in their respective constitutions

providing a prohibition against double jeopardy.

In many European countries the prosecution may appeal an acquittal to a higher

court (similar to the provisions of Canadian law) - this is not counted as double jeopardy

but as a continuation of the same trial. This is allowed by the European Convention of

Human Rights - note the word finally in the above quote.

France:

Once all appeals have been exhausted on a case, the judgment is final and the

action of the prosecution is closed (Code of Penal Procedure, art. 6), except if the final

ruling was forged. Prosecution for an already judged crime is impossible even though

48 The Convention for the Protection of Human Rights and Fundamental Freedoms, also known as the

European Convention on Human Rights (ECHR), was adopted under the auspices of the Council of

Europe[1] in 1950 to protect human rights and fundamental freedoms

49http://en.wikipedia.org/wiki/Double_jeopardy#External_links visited on July 11, 2006


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new incriminating evidence has been found. However, a person who has been convicted

may request another trial on grounds of new exculpating evidence.

United Kingdom:

The Parliament of the United Kingdom passed legislation in the Criminal Justice

Act 2003 introduced by then Home Secretary David Blunkett to abolish the previously

strict form of prohibition of double jeopardy in England. Retrials are now allowed if

there is 'new and compelling evidence'.All cases must be approved by the Director of

Public Prosecutions and the Court of Appeal must agree to quash the original acquittal.50

United States of America:

The phrase "double jeopardy" stems from the Fifth Amendment to the U.S.

Constitution: "nor shall any person be subject for the same offence to be twice put in

jeopardy of life or limb." This clause is intended to limit prosecutorial abuse by the

government in repeated prosecution for the same offense, as a means of harassment or

oppression. It is also in harmony with the common law concept of res judicata, which

prevents courts from relegating issues and claims that have already been the subject of a

final judgment.

There are three essential protections included in double jeopardy: protection from

being retried for the same crime after an acquittal; protection from retrial after a

conviction; and protection from being punished multiple times for the same offense.

This law is occasionally referred to as a legal technicality, because it allows

defendants a defense that does not address whether the crime was actually committed.

For example, were police to uncover new evidence conclusively proving the guilt of

someone previously acquitted, there is little they can do because the defendant may not

be tried again (at least, not on the same or substantially similar charge) Fong Foo v.

United States, 369 U.S. 141 (1962).

Though the Fifth Amendment applies only to the federal government, the Supreme

Court has ruled that the double jeopardy clause applies to the states as well, through

incorporation by the Fourteenth Amendment.

50http://www.cps.gov.uk/legal/section19/chapter_j.html


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Jeopardy attaches in a jury trial once the jury and alternates are impaneled and

sworn in. In a non-jury trial, jeopardy attaches once the first evidence is put on, which

occurs when the first witness is sworn.

Conclusion

After analyzing all the various sub-sections of Sec. 300 of the Cr PC and also

Article 20(2) of the Constitution of India which enunciate the doctrine of Double

Jeopardy, we have come across some of the same conclusions which were purported to

be researched as mentioned in the introduction of this project. It is clear from what has

been discussed that the Doctrine of Double Jeopardy has been more clearly elaborated in

the CrPC (Section 300) rather than Article 20 (2) of the Indian Constitution.

However, what also comes across is that people prefer to refer to the

Constitution when pleading a case which is covered by Double Jeopardy than the Cr PC

which clearly provides a better safe guard form being convicted twice for the same

offence. The Constitution deals with the entire matter in a few lines. However, these few

lines have been debated about a lot and the kind of judicial scrutiny that has been

received by this is huge. On the same hand there is less debate about Double Jeopardy in

the Cr PC. This is also expected form the fact that the CrPC is more comprehensive about

the whole issue when compared to the Constitution.

duble jeopardy

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