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A CONCEPT OF DOUBLE JEOPARDY

Introduction

Black’s law dictionary defines Double Jeopardy as: – A second prosecution after a first trial for the same offense.


In India, protection against double jeopardy could be an elementary right secured under Article 21 of the Constitution of India. “No person shall be prosecuted and punished for constant offence over once” contains the rule against double jeopardy.

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The Indian Constitution guarantees to the individual basic human rights and freedoms.The Fundamental Rights conjointly play a significant role and promote rule of law in Republic of India. The roots of the school of thought against double jeopardy could be found within the well- established maxim of nation Common law, Nemo debet bis vexari, that means that a person should not be place doubly in peril for constant offence. Once someone has been guilty for associate degree offence by a competent court, the conviction is a bar any extent further criminal continuing against him for constant offence.


Origin of the doctrine

The principle of double jeopardy was bit known to the Greeks and Romans, and thus this principle was finally recognized in the Digest of Justinian as the precept that the governor should not permit the same person to be again accused of a crime of which he had been acquitted earlier. In Magna Charta, the clauses related to double jeopardy have not been discussed nor by implication it can be interpreted.


Several provisions relating to double jeopardy


ARTICLE 20(2) OF THE CONSTITUTION

Article 20(2) provides that “No person shall be prosecuted and fined for constant offence over once.”The elementary conditions for the relevance of Article 20(2) square measure that:

• There should are a previous prosecution,

• The suspect should are fined at such prosecution,

• The subsequent proceeding should even be one for the prosecution and penalization of the suspect, and

• Proceedings on each the occasions should in reference to constant offence.


SECTION 300 CODE OF CRIMINAL PROCEDURE, 1973

On constant lines Section 300 of Code of Criminal Procedure, 1973 give protection against double jeopardy. It says, person once guilty or innocent to not be tried for same offence. One United Nations agency has once been tried by a Court of competent jurisdiction for associate degree offence and guilty or innocent of such offence shall, whereas such conviction or final decision remains good, not be susceptible to be tried once more for constant offence, nor on constant facts for the other offence that a special charge from the one created against him might need been created.


In Kolla Veera Raghav Rao vs Gorantla Venkateswara Rao and Ors (2011) 2 SCC 703, has addressed the idea of 'Double Jeopardy'. The Supreme Court has control that the provisions of S. 300(1) of the Code of Criminal Procedure, 1973 is way wider than the provisions of Article 20(2) of the Constitution of Republic of India.


SECTION 71 OF INDIAN PENAL CODE

Limit of punishment of offence created of many offences: The section says that wherever associate degree offence is formed of elements, associate degree of that element is an offence, the penalization which may be awarded to the wrongdoer shall be for one offence and less, unless expressly provided. wherever something is associate degree offence below over one separate definitions of law good at the time, or wherever over one act, of that one or additional represent associate degree offence, once combined represent a special offence, the Court is authorized to award solely such penalization because it might award for anybody of such offences, and therefore the wrongdoer shall not be fined with a additional severe punishment.


The Supreme Court within the case of Sangeetaben Mahendrabhai Patel Vs. State of Gujarat (2012) 7 SCC 621 has held that the only issue raised during this charm is concerning the scope and application of school of thought of prosecution. The rule against prosecution provides foundation for the pleas of autrefois acquit and autrefois convict. The manifestation of this rule is to be found contained in Section 300 of IPC; Section 26 of the General Clauses Act; and Section 71 I.P.C.


Judicial perspective on Double Jeopardy?

In addition to the discussion above, the Courts in India have also made certain observations concerning the doctrine through their judgments in various cases, a number of these cases are going to be discussed below.


The courts state that the doctrine of prosecution is enshrined within the maxim, nemo debet bis vexari si constat curiae quod sit pro una et eadem causa, this suggests that nobody should be vexed twice if it so appears that it's for an equivalent cause. This was stated by the court within the case Union of India V. P.D Yadav (2002 1 SCC 405). Post this, there have been finer details concerning the doctrine that the courts looked into and clarified in other judgments. The courts clarify than a search made isn't like prosecution.


This was wiped out the case Venkatraman V. UOI (1959, SCR, 1150) when the accused underwent a search by the enquiry commissioner after which he was dismissed from his service. Post dismissal, he was charged under the IPC and Prevention of Corruption Act. He pleaded prosecution but the courts stated that the enquiry that had been administered by the enquiry commissioner to terminate his service wasn't tantamount to prosecution and therefore the charges might be applied and therefore the defense of prosecution was rejected.


Next, the doctrine of prosecution can only be applied when the punishment is for an equivalent offense. If the offenses are distinct in nature then the doctrine can't be applied, this was stated within the case Leo Roy V. Superintendent District Jail (1958 AIR 119) where the court said that albeit the person had been prosecuted under the ocean Customs Act, they might be prosecuted again under the IPC since there have been 2 distinct charges and offenses.


A similar case arose in Assistant Collector of Customs V. L.R Malwani 1999 (110) e.l.t. 317 (sc) here the accused had been charged with smuggling of foreign goods and penalized by the customs authority. A petition was then filed against the accused and he was held guilty by the magistrate, with no relief at the Supreme Court, he filed a petition before the Supreme Court and pleaded prosecution.


The court held that so as for prosecution to be made applicable, the accused need to are prosecuted by a court with the competent jurisdiction, and therefore the conviction or acquittal need to be effective. Within the given case, it had been decided by the court that the penalty imposed by the customs authority wasn't tantamount to prosecution and therefore the accused might be tried before the court, hence his plea of prosecution was rejected.


We cannot apply the doctrine during a case where an acquittal has been appealed. This was stated within the case Kalwati V. State of Himachal Pradesh (AIR 1953 SC 131), where the accused and acquitted of the charge of committing a murder. The state appealed this decision by the court and therefore the accused pleaded prosecution. It had been held that here, since the accused had not been originally punished, prosecution couldn't be applied and therefore the appeal was allowed.


The Courts have gone on to clarify within the case State of Rajasthan V. Hat Singh (2003) 2 SCC 152 that prosecution and punishment that's administered in 2 different sections of an equivalent Act, goodbye because the offenses within the two sections are distinct, wouldn't amount to prosecution. If, however, the accused was neither convicted nor acquitted during the course of their trial, then bringing a fresh trial against them wouldn't amount to prosecution, this was laid down in O.P Dhaiya V UOI (2003)1 SCC 122.


If there's a case where the offense is constant, then it's said that every day constitutes a replacement offense and therefore the accused are often punished for every one separately, and this is able to not amount to prosecution, this was said by the court within the case Mohammad Ali vs. Sri Ram Swaroop (AIR 1965 All 161).



Double Jeopardy and it’s International Perspective

As stated before, the doctrine of prosecution are often found in most common law countries. It does however vary within the manner during which it's implemented in several countries, with some making it a neighborhood of their Constitutions and others incorporating it through the medium of Statutes.


Until the enactment of the Criminal Justice Act, 2003, English common law rule of nemo debet bis vexari permitted both autrefois convict also as autrefois acquit. Post the murder of Stephen Lawrence, it had been recommended by the Macpherson report that during a case of murder, the doctrine of prosecution need to be abrogated, making it possible to subject an accused who has been acquitted to a fresh trial during a situation where new, viable evidence has been discovered. These suggestions were incorporated into the act making retrials for those acquitted possible.

The doctrine of prosecution is additionally found within the Constitution of Germany, Article 103(3), which states that in pursuance of general legislation, nobody are often punished for an equivalent act quite once.


Article 39 of the Constitution of Japan states that nobody are often punished for an act that was deemed to be lawful at the time of commission, or for an act that he has been acquitted for, and therefore the accused shall not be placed in prosecution. However, acquittal here refers to the acquittal granted by the Supreme Court; decisions of the lower courts can still be challenged in higher courts without violating the doctrine.

As we've already seen, the doctrine of prosecution is additionally enshrined within the Constitution of the United States of America, through the Fifth Amendment.


Conclusion

There are two pillars found in each system. One is legal certainty and the other is equity. In each system there's provision for prosecution as no one ought to be fined doubly for constant offence. The school of thought of prosecution could be a right given to the suspect to avoid wasting him from being fined twice for constant offence and he/she will take plea of it. Totally different cases show different specific things. Therefore, the rule of double jeopardy can't be created a strait-jacket rule and is therefore understood otherwise for various cases. Whereas decoding the availability judges continually keep a watch that innocent doesn't gets fined. The principle of double jeopardy has been a locality of the system since man will bear in mind and is an honest endeavor to guard the non-guilty ones. It will thus be thought of a positive and simply school of thought supported equity, justice and good conscience.


References

Bryan A Garner & Henry Campbell Black, Black’s law dictionary (1 ed. 1999).

Double Jeopardy - Legal Service India < http://www.legalserviceindia.com >


Double jeopardy and the law in India – iPleaders < https://blog.ipleaders.in >


Explained: The Doctrine of Double Jeopardy in India – LexForti < https://lexforti.com >


The Concept of Double Jeopardy: Background – FindLaw < https://www.findlaw.com >

AUTHOR- PRITIKA NAGPAL

UNIVERSITY- JIMS SCHOOL OF LAW, NOIDA

COURSE- BALLB, 4TH YEAR







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