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Author: Jasdeep kaur Advocate, Advocate with Government of Delhi NCT.


Double jeopardy is protection from the state's use of multiple forms of prosecution. A person cannot typically be tried twice for the same offense based on the same behavior in countries that adhere to the rule of double jeopardy. A person who commits a robbery of a financial institution cannot be tried twice for the same crime. In addition, a person cannot be tried for two distinct offenses based on the same act unless the two offenses are defined to prohibit significantly distinct acts. As a result, a person cannot be tried for murder and culpable homicide for the same crime, but they can be tried for robbery and murder if the robbery led to the murder. The defense of double jeopardy also prevents the state from retrying an individual who has been found not guilty of the same crime.

History of double jeopardy

History of double jeopardy Due to its obscurity in the mists of time, there is no consensus regarding the principle's origin. The history of double jeopardy is also the history of criminal procedure, according to a well-established principle. The dispute that erupted between Henry II and Archbishop Thomas Becket in the 12th century is thought to be the source of the rule. The royal and the ecclesiastical courts of law existed at that time. Even after the clergy subject was punished by the ecclesiastical court, the king wanted him punished in the royal court. Becket asserted that the ancient text forbade "two judgments" based on St. Jerome's interpretation of Nahum. He thought that reprimands would go against the maxim nimo bis in idipsum, which says that no man should be punished twice for the same crime. After the argument, King's knights killed Becket in 1170. Despite this, King Henry spared the accused in 1176 from further punishment. The principle was believed to have been introduced into English common law as a result of King Henry's concession.

Due to the influence of Roman law's teachings in England, the res judicata doctrine was implemented in English civil and criminal law in the 12th century. A ruling of acquittal or conviction in a suit brought by an appellant or King barred future suits in the thirteenth and part of the fourteenth centuries. In the fifteenth century, a jury verdict of acquittal or conviction on appeal prevented a subsequent prosecution for the same offense. Due in part to Henry VII's law, which completely ignored the principle, significant lapses in the rational development of the rule occurred in the sixteenth century. In addition, it was during that time that the well-known Vaux case was decided, stating that a new charge could still be brought after a just acquittal on a flawed indictment. The rule against double jeopardy became more widely recognized in the latter half of the seventeenth century. The writings of Lord Coke played a part in it, and the rest, of course, was the public's dissatisfaction with lawlessness in the first half of the century. The idea of double jeopardy didn't seem to become a well-established rule of common law until the seventeenth century. In general, the extreme procedure was followed in the eighteenth century. It should be noted that Blackstone made the following statement in the eighteenth century: First, the plea of autrefois acquittal, or a previous acquittal, is based on the universal English common law maxim that "no man is to be brought into jeopardy of his life for more than once for the same offence." This means that a person can "pledge such acquittal in bar of any subsequent accusation for the same crime" in any court with competent jurisdiction "when a man is once fairly found not guilty upon any indictment

The court's observation in Green v. United States demonstrates the traditional justification for the necessity of maintaining the rule. The Court remarked as follows: The fundamental idea is that the State, with all of its resources and power, should not be allowed to repeatedly attempt to convict a person for an alleged offense, putting him in a position of shame, expense, and ordeal, causing him to live in an ongoing state of anxiety and insecurity, and increasing the likelihood that he will be found guilty even though he is innocent. Through a variety of international documents, this rule's protection has also gained international recognition. Almost every civilized nation today has municipal laws that protect against double jeopardy. While some of these nations have incorporated the protection into their statutes, others have done so through their constitutions.

A rule known as the doctrine of double jeopardy states that no one should be put in danger twice for the same offense. Article 20(2) of the Indian Constitution states, "No person shall be arrested and punished for the same offense more than once." The Fifth Amendment to the United States Constitution was the source of the doctrine; however, there are differences between the United States and England. The extent of protection is restricted or limited in India. As demonstrated by the General Clauses Act of 1897 and Sections 300 and 26 of the Criminal Procedure Code of 1973, the doctrine existed in India prior to the Indian Constitution.

A person cannot be prosecuted and punished for the same offense more than once, as stipulated in clause (2) of Article 20. In order to classify the idea discussed in this article, the term "Prosecution" has three essential parts.

The following are the three essential aspects of prosecution:

The first requirement is that an individual have been charged with an offense. The word is also defined in the General Clause Act as an act or omission that is punishable by law.

The next essential is that the case should be brought before a competent court or judicial tribunal for a proceeding or prosecution. There are no departmental or administrative authorities included in this judicial tribunal. The second-prosecution defense of double jeopardy only applies to cases that are tried in judicial courts or tribunals.

The third essential is that administrative and departmental inquiries are not considered proceedings when a tribunal accepts them, so they cannot be part of prosecution and punishment proceedings.

The prosecution's three essentials make it abundantly clear that the Indian constitution's concept of double jeopardy only satisfies the autrefois convict maxim, not the autrefois acquit maxim. As a result, the idea can only be applied to cases in which a person is prosecuted and punished in their initial proceeding.

Position Double Jeopardy of the Criminal Procedure Code The double jeopardy clause in the Constitution only applies to cases that are tried by judicial courts and tribunals. These do not include inquiries or even penalties imposed by statutory bodies like administrative or departmental bodies.

When compared to English law, the concept of double jeopardy is therefore narrow. However, S. 300 of the CrPC mentions the concept's broad scope, which expands the scope of the provision in India.

Double-jeopardy laws have a much broader role in the Criminal Procedure Code than in the Constitution. S. 300 of the CrPC provides a definition of the concept and a detailed analysis by defining what constitutes double jeopardy and the various exceptions to it. The fact that double jeopardy laws in the CrPC address the issues of autrefois acquittal and autrefois conviction is one of the main points of emphasis. As a result, double jeopardy applies to anyone who can be found not guilty or found guilty.

Under S. 300 of the CrPC, the doctrine of double jeopardy can be found. This section's six subclauses aim to provide an exhaustive overview of the concept. The entire subclause is discussed below.

According to S. 300(1) of the CrPC, a person cannot be tried again for the same offense if they are found guilty or acquitted in a court of competent jurisdiction. This means that a person cannot be tried again for the same offense if they are found guilty or acquitted. That person cannot be tried again for the same set of facts and the same crime, nor can he or she be tried again for the same set of facts for different charges brought against him under section 221(1) or 221. This means that a person cannot be convicted in a second trial for the same set of facts if he is convicted of an offense under section 221 subsection (1).

Other essentials of this section include the fact that the term "acquittal" does not refer to the dismissal of a complaint or the release of the accused. The case should be tried in the court with the proper jurisdiction for the first time. The section also stipulates that the case's facts must be identical to fit this idea. This means that a person will not be allowed to testify at a second trial under this section if the facts of the second trial are the same as those of the first trial.

According to clause (2) of this section, a person cannot be prosecuted for additional charges in a subsequent trial if he or she has committed multiple offenses but was not tried for all of them in the first trial. This means that a person cannot be charged with another crime during a second trial because doing so would be an abuse in and of itself if he was acquitted or convicted of one crime and then charged separately with another. A person cannot always be charged with multiple offenses separately. Therefore, in order to prevent this kind of abuse, the state government must consent in accordance with section 300(2) before a person is charged with a new offense for which a separate charge may have been brought against them at a previous trial.

As a result, the clause says that this section doesn't prevent a second trial for a different crime, but that it should only be started with the state government's approval.

The section's third clause only allows for the convict to be tried again in cases where new information emerged as a result of an earlier crime. First, this section only applies to those who were found guilty of the crime, not to those who were found not guilty. The second part of this clause says that a person can only be tried again if some facts about the crime didn't come to the courts' attention.

This means that a convict can be taken back to court for a second trial if there were new facts discovered in the case that the courts did not know about at the first trial. It requires that any new information or consequences that emerged following the first trial's conviction or acquittal were brought to the court's attention. As a result, it states that the convict can be retried in the second trial only for the newly observed offense that was not known during the first trial if some new offense occurred during the first trial as a result of an already known offense. If the courts were already aware of the second trial's consequences and violations during the first trial, a second trial would be ineffective.

This section's clause (4) is an exception to the rule against double jeopardy and continues on from clause 3. According to this clause, the first acquittal or conviction will not prevent the competent court from taking cognizance of the consequential offense if any court is unable to try the accused of an offense that is actually the consequence of the offense being tried. This basically means that the first trial will not prevent a second trial from taking place if the court where the first offense was tried was not competent enough to try the second offense, which was the result of the first offense.

According to clause (5) of the section, if a person is discharged in accordance with Section 258 of the Criminal Procedure Code, which refers to the court's authority to halt the case at any stage without rendering a verdict, However, the stoppage can be initiated following the recording of the primary witness' evidence, the announcement of an acquittal, or the accused's release, all of which have the same effect as discharge. As a result, this clause (5) stipulates that unless the consent of the court from which the discharge was made is obtained, no such accused person under S 258 shall be tried again for the same offense. The purpose of this provision is to safeguard the individual from the misuse of new prosecution power in such instances.

Clause (6) is the final clause in S. 300. It states that nothing in S. 300 of the CrPC will affect the provisions of S. 26 of the General Clause ACT, 1897[11]. S. 26 defines an offense as an act or omission that violates more than one statute. This indicates that the accused shall be charged with either of the two enactments if the offense committed by the accused falls under two or more enactments. The components of the two offenses against which the accused is charged are emphasized. Additionally, the accused cannot be held liable and punished twice for the same offense; however, the prohibition imposed by S. 26 cannot be enforced if there are two distinct offenses.

The following scenarios can be used to end a threat:

– Following the acquittal verdict of a jury.

– After a dismissal by a trial court.

– After a trial court grants a mistrial, and – After a conviction, on appeal.

Case laws

Kalawati v. State of Himachal Pradesh, 1953 The Supreme Court ruled that the appeal is a continuation of the previous trial rather than a new trial for the same crime, and that the appeal against the acquittal judgment will not be subject to Article 20(2) because the previous trial did not include a penalty. Therefore, an appeal of a murder trial acquittal would not be in violation of Article 20(2) of the Constitution.

In Thomas Dana v. State of Punjab, 1959, the Supreme Court ruled that the following conditions must be met in order to request protection under Article 20(2).

1) That an earlier prosecution occurred.

2) The accused was punished as a result.

3) That the offense was the same as the punishment.

In the case of Institute of Chartered Accountants of India v. Vimal Kumar Surana, the court decided that a person cannot be said to be in double jeopardy if they are convicted under a different law. The Chartered Accountants Act of 1949 contained the charges against the defendant. The court decided that just because he is charged by the provision of the aforementioned act does not give him immunity from prosecution because the elements of the crime are different and he can be accused of a variety of crimes under various laws, including the Indian Penal Code.


The above-mentioned analysis reveals that the principle of double jeopardy states that a person may not be prosecuted twice for the same offense. Article 20(2) of the Indian Constitution addresses the concept of double jeopardy and does not prohibit the holding of a departmental inquiry either prior to or following the commencement of a criminal investigation. Therefore, this doctrine plays a significant role in our judicial system following a person's conviction and punishment. All over the world, the doctrine has been incorporated into legal systems.

References jeopardy-and-the-protection-of-human-rights-in-criminal-justice-administration.pdf

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