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Double Jeopardy

Double jeopardy is a procedural defence that prevents an accused person from being tried again on the same (or similar) charges and on the same facts, following a valid acquittal or conviction.

If this issue is raised, evidence will be placed before the court, which will normally rule as a preliminary matter whether the plea is substantiated; if it is, the projected trial will be prevented from proceeding. In some countries, including Canada, Mexico and the United States, the guarantee against being "twice put in jeopardy" is a constitutional right. In other countries, the protection is afforded by statute.

In common law countries, a defendant may enter a per emptory plea of autrefo is acquit (formerly acquitted) orautrefo is convict[1], with the same effect.

The doctrine appears to have originated in Roman law, in the principle non bis in idem ("an issue once decided must not be raised again").

Double Jeopardy In India

A partial protection against double jeopardy is a Fundamental Right guaranteed under Article 20 (2) of the Constitution of India, which states "No person shall be prosecuted and punished for the same offence more than once"[2]. This provision enshrines the concept of autrefois convict, that no one convicted of an offence can be tried or punished a second time. However, it does not extend to autrefo is acquit, and so if a person is acquitted of a crime he can be retried. In India, protection against autrefois acquitis a statutory right, not a fundamental one. Such protection is provided by provisions of the Code of Criminal Procedure rather than by the Constitution.

There are several reasons for double jeopardy protection:
# To prevent the government from using its superior resources to wear down and erroneously convict innocent persons.

# To protect individuals from the financial, emotional, and social consequences of successive prosecutions.

# To preserve the finality and integrity of criminal proceedings, which would be compromised if the government were allowed to ignore verdicts it did not like.

# To restrict prosecutorial discretion over the charging process and

# To eliminate judicial discretion to impose cumulative punishments otherwise not clearly prohibited by law.

Eligibility For Double Jeopardy Protection:

Only certain types of criminal cases qualify for double jeopardy protection. If a particular proceeding does not place an individual in jeopardy, then subsequent proceedings against that individual for the same conduct are not prohibited. Although the text of the Fifth Amendment suggests that double jeopardy protection extends only to proceedings threatening "life or limb," the Supreme Court has established that the right is not limited to capital crimes or corporeal punishment. Instead, protection extends to all felonies, misdemeanors, and juvenile delinquency adjudications, regardless of the punishments they prescribe.

It is not just a question of which proceedings are subject to double jeopardy, but also when jeopardy begins, or attaches. This question is crucial because actions taken by the government before jeopardy attaches, such as dismissing the indictment, will not prevent later proceedings against the same person for the same offense. Once jeopardy has attached, the full array of Fifth Amendment protections against multiple prosecutions and multiple punishments takes hold.

For jury trials, jeopardy attaches when the jury is sworn. In criminal cases tried by a judge without a jury, jeopardy attaches when the first witness is sworn in. If a defendant enters a plea agreement with the prosecution, jeopardy does not attach until the court accepts the plea.

It is just as important to determine when double jeopardy protection ends as when it begins, but it can be little more complicated. Once jeopardy has ended, the government cannot detain someone for additional court proceedings on the same issue.

Jeopardy can terminate in four instances:
1. After a jury’s verdict of acquittal.
2. After a trial court’s dismissal.
3. After a trial court grants a mistrial and
4. On appeal after conviction.

In Jitendra Panchal vs Intelligence Officer, Ncb & Anr on 3 February, 2009[3]
proceedings against the appellant in India would amount to double jeopardy, the learned Special Judge, Mumbai, rejected the appellant ... also praying for interim bail on the ground of double jeopardy.

Also in C.J. Palu vs The Assistant Collector Of .. on 4 April, 1990[4]
Constitution of India. The principle of double jeopardy would apply and the prosecution in the criminal court is incompetent ... Shri Roy Chacko contends that while considering cases of double jeopardy what the court has to see is the substance.

Recently, in a case o Institute of Chartered Accountants of India v. Vimal kumar Surana [5]the court held that if a person is convicted under a different law, it cannot be said to be a double jeopardy. The defendant was charged under provisions of Chartered accountant act 1949. The court held that merely because he is charged by the provision of said act, it does not give him immunity from prosecution as the element of the offence differs and he can be accused for number of different offences and in different laws including Indian Penal Code.

On the contrary, it is also important to know that if the elements of an offence are different from which the accused is being charged, then he will not be able to please defence under section 300 of Cr.PC as it clearly lays down the condition that a person can be prosecuted based on same facts, if an offence involve different elements that satisfies different charge under a penal law.

Having said that, it is also important that the matter should be tried by a competent jurisdiction for an offence. And that authority itself should decide about the conviction or acquittal of an accused. As it has been discussed inAssistant Collector of Customs v L. R. Malwanithat the proceeding before the Sea Customs authorities was not a “prosecution” and the order for confiscation was not a “punishment” inflicted by a Court or judicial tribunal within the meaning of Art. 20(2) of the Constitution and hence his subsequent prosecution was not barred.

[1]Which means formerly convicted
[2]Article 20(2) of Indian Constitution
[4]O.P. No. 4444 of 1988-D
[5]S.L.P. (Crl.) Nos.3411-3412 of 2009

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