Double Jeopardy: Introduction

Double Jeopardy is a legal defence in Criminal Law. Meaning of double jeopardy in law can be found in Jurisprudence. Doctrine of double jeopardy means a procedural defence which is primarily in Common Law jurisdiction and the simple double jeopardy meaning in law is it prevents an accused person from proceeding to criminal trial for the second time on the same or similar charges of offence following an acquittal or conviction of the accused person.

Double jeopardy is a common subject in Criminal Law and similar to this there is a doctrine of res judicata in Civil Laws. Therefore, somehow these two doctrines are quite similar.

Meaning of Double Jeopardy

Meaning of double jeopardy has come from the Latin maxim 'nemo debet bis vexari, si constant curice quod sit pro una iti eadem casue'. This means, 'Nobody shall be prosecuted and punished twice for the same offence.' Therefore, it means can be described as no one shall put a person through a second trial of an offence for which he or she has already been prosecuted or convicted.

Therefore, the accused person once prosecuted or convicted for the offence cannot be prosecuted or convicted for the same offence again. This is the plea of the jeopardy doctrine as a valid defence available to the accused person in Criminal Law. This is an examples of double jeopardy.

This doctrine came from the Constitution of India. The doctrine of double jeopardy is specified under article 20(2) of the Indian Constitution and under section 300 of the Criminal Procedure Code, 1973.

As per article 20(2) of the Indian Constitution, No person shall be prosecuted and punished for the same offence more than once.

As per section 300 of the Criminal Procedure Code, 1973, 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.

Therefore, this is a legal term that refers to the constitutional protection against the prosecution or conviction of the accused more than once for the same criminal offence.

Origin of Doctrine of Double Jeopardy

The word 'double jeopardy' has been derived from the English Common Law Rule Nemo debet bis vexari which means 'a man must not be put in peril twice for the same offence' and one Latin maxim Nemo bis punitur pro eodem delicto' which means, 'no one should be punished twice for the same offence.' Therefore, the general meaning of double jeopardy is 'twice penalty' or 'punishment given more than once for the same offence'.

Amendment for Double Jeopardy

Amendment for double jeopardy can be seen in Section 300 of the Amended Criminal Procedure Code, 1973, earlier the principles relating to this doctrine were laid down under section 403(1) of the old CrPC.

Amendment for double jeopardy can be seen in the Fifth Amendment to the United States Constitution which includes legal provisions relating to this doctrine. Double jeopardy is mostly used in Criminal Courts and does not prohibit the defendants from being charged in Civil Court for the same offence.

The origins, essentials, circumstances under which this doctrine cannot be applied, international perspective with other nations, and case laws are all covered in detail in this article.

Applicability of Doctrine of Double Jeopardy

The doctrine of double jeopardy is applicable when there is a danger to the accused person in criminal cases for second time prosecution for the same offence.

There are four situations in which this doctrine is made applicable as a valid defence. These are as follows;

Commission of Offence

The most important thing is that there must be a commission of an offence and the individual must be charged with an offence. The term offence has been defined in the General Clauses Act, 1897 and section 40 of the Indian Penal Code, 1860. Therefore, the word 'offence' means 'when the thing punishable under the special or local law is punishable under such law with imprisonment for a term of six months or upwards, whether with or without fine.'

Court Proceedings

After the commission of an offence, criminal court proceedings and investigation must be initiated against the accused person involved there in the commission of the offence before the criminal court or a judicial tribunal.

Conviction

After the criminal proceedings and the investigation must be completed and the accused person must be convicted or punished by the criminal court for the commission of an offence.

Subsequent Proceedings

There must be subsequent proceedings initiated against the same accused person who has been convicted and punished for the commission of an offence. Therefore, the doctrine of double jeopardy is made applicable and no second criminal proceedings are initiated against that accused person for the same commission of the offence. This is the double jeopardy doctrine.

Non-Applicability of Doctrine of Double Jeopardy

The doctrine of double jeopardy clause protection to the accused person may not be always applicable. there are some conditions where the doctrine of double jeopardy is not made applicable. These are;

Civil Lawsuit

The defence of double jeopardy can only be used in criminal court and cannot be used in civil court. Therefore, in the civil court, the defendant cannot defend himself against the punishment in civil court for the same crime committed in the criminal court.

Example - A killed B, while driving a car on B and A was drunk while driving a car, therefore B's family members can file a criminal complaint under section 304a of the Indian Penal Code, 1860 for the punishment and conviction of the accused person or can file a claim petition for the compensation to recover the B's financial damage from A. In civil court, A cannot use the defence of double jeopardy to protect him from punishment but he could use double jeopardy to defend himself in the criminal court.

However, there is a defence available in the civil matter only to defend himself from civil proceedings again against the person the same civil proceedings already proceeded. He could use the doctrine of res judicata to protect himself from second proceedings on a similar cause of action. The doctrine of res judicata has been provided under section 11 of the Civil Procedure Code, 1908.

Jeopardy must begin

The defendant must first be put in jeopardy by the executive authorities before applying the doctrine of double jeopardy. It is important and required that the defendant must be tried before claiming the defence of the doctrine of double jeopardy.

Jeopardy must end

It is important that the jeopardy must begin and conclude in the same way. To put it in another way, before the double jeopardy doctrine may be utilized to prevent the defendant from being arrested and punished for the same offence, the case must come to a final decision.

When a judge enters an acquittal judgment before submitting the matter to the jury or when the sentence has been served. When the court renders a decision, jeopardy is usually over.

Judicial View on Double Jeopardy

In India, the courts have made certain observations relating to the double jeopardy doctrine through their judgments and decisions in various cases, the court in Union of India v/s P.D. Yadav, 2001, embedded the maxim, nemo debet bit vexari si constant curiae quod sit pro una et eadem causa, which literally means, that no one should be vexed twice if it appears to be for some cause.

In Venkatraman v/s Union of India, 1954, it was held that a mere investigation does not the same as a prosecution. Where the accused person was subjected to an investigation by the inquiry officer after being fired from his job. Following his discharge, he was accused of violating the Indian Penal Code, 1860 and the Prevention of Corruption Act, 1988. He argued on the applicability of the doctrine of double jeopardy, but the Supreme Court decided that the investigation conducted by the inquiry officer to end his employment was not prosecution and therefore the charges may be brought, and the defence of double jeopardy was dismissed.

Double Jeopardy Case Laws

Maqbool Hussain v/s State of Bombay, 1953

Facts - The petitioner is an Indian citizen and travelled from Jeddah to Santacruz Bombay Airport. He did not indicate that he had taken 1.2 kg of gold with him when he landed, but when he was searched, he was discovered with gold and this is an infringement of the Indian Government's Notification.

The gold was seized from the petition by the Customs Authorities under Article 167 (8) of the Sea Customs Act, 1878. The gold owner had the option of paying a fine of Rs. 12000/- which had to be paid within four months of the order's date. But no one came to claim gold.

Whereas, the Supreme Court of India ordered that the plea be considered by the Bank of the Constitution, together with Criminal Appeal, because the same issue was made in reference to “autrefois convict” or “double jeopardy.”

Kalawati v/s State of Himachal Pradesh, 1953

In this case, the accused (plaintiff) murdered her spouse (defendant) in order to protect her from the cruelty. The fact is that she was attempting to protect herself from cruelty after being abused by her husband. In this instance, the accused killed her husband in reaction to his harassment. She was acquitted owing to a lack of evidence. However, the state eventually filed an appeal against her at the Higher Court.

International view on Double Jeopardy

All the nations contain double jeopardy which follows the common law. But, there are some nations like the USA that have made it essential to include the doctrine of double jeopardy in their constitutions.

Japan

Article 39 of the Japanese Constitution deals with the doctrine of double jeopardy. It stated that no one can be held criminally punished for an act that was legal in the first place it was performed or for which he was acquitted, and that one can be put in no double jeopardy.

United States

The double jeopardy law is defined by the Fifth Amendment of the United States Constitution, which covers continued prosecution after acquittal, conviction, certain procedural errors, and repeated penalties in the same accusation. The double jeopardy constitution rule prevents the government from ‘punishing’ someone twice or seeking to ‘punish’ someone criminally for the same offence.

England

After the murder of Stephen Lawrence, the Macpherson Report suggested that the double jeopardy rule be repealed in murder cases and that it should be permissible to retry an acquitted murder suspect if “fresh and valid” new evidence becomes available later. In its report ‘double jeopardy and Prosecution Appeals’, the Law Commission eventually backed this conclusion in 2001. If “new, compelling, reliable, and significant evidence” is discovered that was not previously known and comes to knowledge later, the accused suspect might be tried afresh under the new circumstances.

Germany

This doctrine is mentioned in Article 103(3) of Germany’s Constitution, which prevents penalties for the same offence committed more than once under general legislation.

Conclusion

Double Jeopardy is a legal defence in Criminal Law. The meaning of double jeopardy in law can be found in Jurisprudence. The doctrine of double jeopardy is a procedural defence which is primarily in Common Law jurisdiction and the simple meaning of the doctrine is it prevents an accused person from proceeding to criminal trial for the second time on the same or similar charges of offence following an acquittal or conviction of the accused person.

After a conviction, every accused individual has the option of at least one appeal. If the conviction is found unconstitutional due to a lack of evidence in an appeal, it is termed an acquittal, and no further prosecution is allowed.