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, 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". 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
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
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
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
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
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
Recently, in a case o Institute of Chartered Accountants of India v. Vimal
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.
Which means formerly convicted
Article 20(2) of Indian Constitution
CRIMINAL APPEAL NO.1660 OF 2007
O.P. No. 4444 of 1988-D
S.L.P. (Crl.) Nos.3411-3412 of 2009