The doctrine of Double Jeopardy is one of the most debated concepts in India.
The concept of Double Jeopardy in defined in Indian Constitution under Part III,
Article 20(2) of the constitution. Section 300 of CrPC, 1973 also defines on the
concept of Double Jeopardy. In its general sense, Double Jeopardy is defined as
that no person shall be convicted for one offence more than once. Any person who
has been acquitted or convicted of any offence once shall not be convicted again
for the same offence for which he/she is already acquitted or convicted.
The present work therefore aims to detail on the doctrine of Double Jeopardy,
its nature and meaning. A brief historical evolution of the concept along with
the current position of laws in India. The paper also focuses on some landmark
judgments which simplifies and clarifies the concept of double jeopardy under
constitutional and criminal law. The paper therefore throws a light on basic
concept of the Double Jeopardy laws in India.
In every criminal justice system, the aim of the justice system is to punish the
convicts of the crime for their wrongful act and rehabilitate with the purpose
of their recovery. The system does not intent to harm the convicts by
unnecessarily punishing them and making their living difficult. But there are
some instances where the convicts of the crimes maybe repeat offenders are
convicted for their acts multiple times even for the same offence.
This act of
granting multiple punishments for same offences violates offenders one of the
Fundamental rights granted under constitution of India. Part III of the Indian
Constitution provides certain fundamental rights available to citizens of India.
Under these fundamental rights, article 20(2) of the Indian Constitution
provides that No person Shall be prosecuted and punished for the same offence
more than once.
This article of the constitution provides for the basis of
double jeopardy laws in India. The principle of autrefois convict or double
jeopardy means that no person can be punished twice for the same offence.
'Double Jeopardy' is the act of putting a person on second trial for an offence
of which he or she was already been tried and prosecuted or convicted. The
doctrine lays that if a person is charged for an offence and tried in the court
of law of which he has been declared innocent or guilty cannot be tried again
for the similar offense.
The concept of double jeopardy marks its existence from the Latin maxim Nemo Debet bis Vexari
. This doctrine states that a man should not be present in
court of law twice for the same offence. This maxim however also exist in S. 26
of the General Clause Act and S. 403(1) of CrPC 1898. S. 26 states that where an
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 twice for the same offence.
doctrine of double jeopardy is now defined under S 300 of CrPC which will be
discussed in detail later in the paper. The concept however evolved more and
took various changes in its form and definition leading to the current position
under Indian laws on criminal procedure code and the Constitution of India.
Double Jeopardy laws in India
Double Jeopardy: Constitution of India
Part III of Indian Constitution defines on fundamental rights available to
people within the territory of India. Under these fundamental rights, one of the
right which is defined in Art 20(2) states that:
No person shall be prosecuted and punished for the same offence more than
The clause (2) of Art 20
provides that a person cannot be prosecuted and punished more than once for the
same offence. The word 'Prosecution' under this article consist of three
essential components to categorize the concept under this article.
Three essential components of prosecution are:
- The first requirement is that a person must be an accused of any
offence. The word is defined as act or omission which is punishable by law,
also defined under General clause Act.
- The next essential is that there should be a proceeding or prosecution
of the case before a competent court or a judicial tribunal. These judicial
tribunal does not include departmental and administrative authorities. The
defense of double jeopardy for second prosecution only exist against the
cases which are tried at judicial courts or tribunals.
- The third essential is that when a tribunal accepts the administrative
and departmental enquires, these enquires are not considered as proceedings
and therefore cannot be the part of proceedings with respect to prosecution
These three essentials under the prosecution makes it clear that the concept of
double jeopardy under constitution of India only satisfy the maxim of autrefois
convict and not the maxim of autrefois acquit. This means that the concept can
be invoked only for the cases under which the person is prosecuted and punished
in their first proceeding.
The constitutional provision of double jeopardy is
only applicable for the cases which are tried under judicial courts and
tribunals. These does not include enquiry or even punishments given by statutory
bodies like departmental or administrative bodies.
The doctrine of double jeopardy is therefore a narrow concept as compared to
English law. The broad spectrum of the concept is however mentioned in S. 300 of
CrPC which widens the ambit of the provision in India.
Double Jeopardy: Criminal Procedure Code
The position of double Jeopardy laws under Criminal procedure code is much wider
than what is given in constitution. The concept is defined under S. 300 of CrPC
and give a detail analysis by giving provisions on what will form a part of
double jeopardy and what all are the exceptions made under it. One of the major
point of emphasis is under CrPC, double jeopardy laws deal with both the issues
of autrefois convict and autrefois acquit. Therefore double jeopardy is
applicable to all those who can are either acquit or convict of the offence.
The doctrine of double jeopardy is found under S. 300 of CrPC. There are six
sub clause under this section which aims to provide an exhaustive view on the
concept. All the sub clause will be explained in this part of the paper.
S 300(1) of CrPC provides that if any person is tried under the court of
competent jurisdiction and found acquitted of convicted for an offense
committed, and when such acquittal or conviction remains in force cannot be
tried again for the same offence twice. Second trial cannot be made on that
person for the same set of facts and same offence and nor he\she shall be tried
again for the same set of facts for different charges made against him under sub
section (1)of 221or for sub section (2)of 221. This means that if a person
is convicted of an offence under sub section (1) of 221 then he cannot be
convicted under sub section (2) of 221 in the second trial for the same set of
Some other essentials to this section includes that 'acquittal' for the purpose
of this section does not include dismissal of a complaint nor does it include
discharge of accused. The case in its first trial should be tried under the
court of competent jurisdiction. The section also requires that fall under this
concept, the facts of the case should be identical. This means a person will one
be barred under this section from second trial if the facts of the case under
second trial is identical to the facts of first trial.
Clause (2) of this section provides that if a person has committed several
offences but he was not tried for all such offences in the first trial then he
cannot be prosecuted for other charges in the second trial. This means that when
a person is acquitted or convicted for any offence and then he is charged with
another offence separately then he cannot be charged for another offence under
second trial as it is an abuse in itself. A person cannot be always made under
prosecution for different charges separately. So to provide a check against this
abuse, section 300(2) make it obligatory to obtain consent of state government
before a new prosecution is launched against any person for any distinct offence
for which a separate charge might have been made against the person at the
The clause therefore provides that this section does not bar the prosecution
under second trial for distinct offence but it should be initiated only after
the consent of state government.
Clause (3) of the section permits for the second trial of the convict only in
the cases where some new facts came into existence as a consequence of already
existing offence. Firstly, this section is only applicable to the convicts of
the offence and not to the acquits of the offence. The second element of this
clause is that a person can only be re-tried in the cases where some facts
relating to the offence were not came into the notice of the courts.
that a convict can be taken for re-trial if some new facts were noticed in the
case and these new facts were not known to the courts in the first trial. It
mandates that the new facts or consequences must have occurred since the
conviction or acquittal of first trail was going and these were not brought in
the notice of the court. it therefore says that if some new offense took place
in the course of first trial, as a result of already known offence, but not
known to the courts in the first trial, then the convict can be re-tried in the
second trial only for the newly observed offence which was not known in the
first trial. Second trial would be barred if the consequences and offences of
the second trial were already known to the courts in the first trial.
Clause (4) of this section is in continuance with clause (3) and act as an
exception to the rule of double jeopardy. This clauses states that if any court
is incompetent to try the accused of any offence which is actually the
consequence of the offence which the court is taking trial, the first acquittal
or conviction will not bar the competent court to take cognizance of
consequential offence. This basically means that if the court under which first
trial was made was not competent enough to try the second offence which was the
consequence of the first offence can be tried in other competent court and the
first trial will not act as a bar on second trial.
Clause (5) of the section says that if a person is discharged under S. 258 of
CrPC which talks about the courts power to stop the proceedings of the case
at any stage without pronouncing the judgment. The stoppage can however be made
after recording the evidence of principle witness, pronouncement of acquittal or
release of the accused have the effect of discharge. This clause (5) therefore
states that no such accused person under S 258 shall be tried again for the same
offense unless the consent of the court from which such discharge was made is
obtained. This provision is made to protect the person against the abuse of
power of fresh prosecution in such cases.
This is the last clause of S. 300 which provides that nothing in this S 300 of
CrPC shall affect the provisions of S 26 of General Clause ACT, 1897. S 26
provides for an acts or omission constituting an offence under two or more
enactments. This means that if the offence which is committed by the accused
falls under two or more enactments then that accused shall be charged with
either of the two enactments. The emphasis is made on the ingredients of the two
offences with which the accused is charged. It is also provided that the accused
shall not be made liable and punished for the same offence twice, but if there
exist two distinct offence that the ban imposed by S 26 cannot be imposed.
Maqbool Hussain v. State of Bombay 
In this case, the appellant Maqbool Hussain, a citizen of India arrived at an
airport of Santa Cruz from a place from abroad. Upon his landing, he did not
declare that he has brought gold from abroad. However on search it was
discovered that he brought 107.2 tolas of gold which was in contravention to
government notification dates August 25, 1948. Action was taken against the
appellant by the custom authorities and the gold was thereafter confiscated.
Later the appellant was prosecuted by the criminal court under the Foreign
exchange Regulation Act. The question was whether the plea of autrefois acquit
be raised under Art 20(2) of the Indian Constitution or not.
The Supreme Court in this case concluded that the proceedings made before any
custom authorities does not constitute 'prosecution' of appellant and the
penalty imposed by such authorities does fall within the category of 'punishment' as under Art 20(2) of Constitution of India. It was therefore said
that in this case where the case was first presented under custom authorities
and then before the criminal court does not constitute as second trial and Art
(2) does not act as a bar on second trial.
The Supreme Court therefore pronounced that 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 criminalproceedings 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.
The court therefore excludes departmental and administrative authorities from
this provision of double jeopardy and only considers proceedings which are made
before judicial courts and judicial tribunals.
Roshan Lal & ors v. State of Punjab
In this case there were three appellants who were charged under S 409, IPC and S
5 of Prevention of corruption Act, 1947 for making false panchnama in which they
have shown the recovery of 90 gold biscuits while as per the prosecution case 99
gold biscuits were recovered. The appellants are therefore tried for the same
and acquitted thereafter. However, the appellants were again tried under S
120-B, IPC and S 135 & 136 of Custom act, Section 85 of Gold(control) Act and
some other offences. The validity of this second trial was challenged by the
appellants on the ground that it is in contravention of their constitutional
right guaranteed under Art 20(2) of the Constitution of India.
The court in this case observed the facts and held that:
After giving our
careful consideration to the facts and circumstances of the case and the
submissions made by the learned counsel for the respective parties, it appears
to us that the ingredients of the offences for which the appellants were charged
in the first trial are entirely different. The second trial with which we are
concerned in this appeal, envisages a different fact- situation and the enquiry
for finding out constituting offences under the Customs Act and the Gold
(Control) Act in the second trial is of a different nature. Not only the
ingredients of offences in the previous and the second trial are different, the
factual foundation of the first trial and such foundation for the second trial
is also not indented (sic). Accordingly, the second trial was not barred under
Section 403 CrPC OF 1898 as alleged by the appellants.
From the judgment of this case it can be said that courts clear on the views
that a person can be prosecuted again if the offences and facts of the second
trial are different from the first trail. In this case it was found that both
the facts and offences charged in second trial are different from first trial
and therefore there cannot be any bar for the prosecution of the case in second
From the above findings and analysis made in the paper it can be observed that
the concept and doctrine of double jeopardy lays that a person shall not be
prosecuted twice for same offence. The concept is defined in the constitution of
India under Art 20(2) and in Criminal Procedure Code under S 300. The concept
defined under constitution is narrower than what is laid in criminal procedure
It however requires certain essentials conditions to take the defense of
double jeopardy under the said law. On subsequent fulfillment of such
requirements a person shall be barred from second prosecution and no other
criminal proceedings can be made against him for that offence.
The intention of
defining the concept so exhaustively under both the laws is to protect
individuals from multiple punishments for same offence. The concept is necessary
to protect individuals from emotional, social, and financial losses which a
person might incur during such multiple prosecutions. The intention is to
preserve the finality and integrity of the criminal justice system and to
safeguard and govern the abuse of powers granted to criminal administration.
So to safeguard the interest of all those who are once acquitted or convicted
from multiple prosecution and to create a check on the criminal administrative
system, the doctrine of double jeopardy is made necessary and therefore defined
exhaustively under Indian Laws.
- Article 20(2), Constitution of India
- A defendant's plea stating that he or she has already been tried for and
convicted of the offence.
- A man should not be put in peril twice for the same offence
- S 26 of General Clause Act, 1897
- Art 20(2) Constitution of India
- Person once convicted or acquitted not to be tried for same offence:
- 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.
- 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 section 220.
- 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.
- 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.
- A person discharged under section 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.
- Nothing in this section shall affect the provisions of section 26 of the
General Clauses Act, 1897, (10 of 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.
- Where it is doubtful what offence has been committed.
If a single act or series of acts is of such a nature that it is doubtful which
of several offences the facts which can be proved will constitute, the accused
may be charged with having committed all or any of such offences, and any number
of such charges may be tried at once; or he may be charged in the alternative
with having committed some one of the said offences.
- If in such a case the accused is charged with one offence, and it
appears in evidence that he committed a different offence for which he might
have been charged under the provisions of sub- section (1), he may be
convicted of the offence which he is shown to have committed, although he
was not charged with it
- R. V. Kelkar, "Criminal Procedure", rev. Dr. K. N.Chandrasekharan Pillai,
4th ed., 2001, p. 481
- Power to stop proceedings in certain cases. In any summons- case
instituted otherwise than upon complaint, a Magistrate of the first class
or, with the previous sanction of the Chief Judicial Magistrate, any other
Judicial Magistrate, may, for reasons to be recorded by him, stop the
proceedings at any stage without pronouncing any judgment and where such
stoppage of proceedings is made after the evidence of the principal
witnesses has been recorded, pronounce a judgment of acquittal, and in any
other case, release the accused, and such release shall have the effect of
- 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.
- AIR 1953 SC 325
- AIR 1953 SC 325 at p 327
- AIR 1965 SC 1413
- Roshan Lal & ors v. state of Punjab AIR 1965 SC 1413