Constitutional Law

 

 

Rajiv Gandhi National University of Law Punjab, Patiala

CONSTITUTIONAL LAW PROJECT ON PROTECTION AGAINST DOUBLE JEOPARDY Submitted to: Dr. Anirudh Prasad Ms. Ruchi Sapahia

Submitted by: Group XIII Second Year, B.A. LL.B (Honours)  Nikisha Hada-828

Divya Negi-830

Karuna Singh-832

Tanisha Khimesara-834

Ashutosh Mishra-836

Ravi Amitoz-838

 

 

ACKNOWLEDGEMENT 

We have been taught the subject of Constitutional Law by our respected teachers, Dr. Anirudh Prasad and Ms. Ruchi Sapahia. Our respected teachers have helped us all through the accomplishment of this project. Our sincere thanks to our teachers, who helped us to gather the various sources which we could give final shape to the topic under study. They not only provided us a platform to compile but also guided us at all levels. We, also thank the members of the library staff and computer section for the cooperation in making available the books and accessing the internet even during their free time.

Group XIII Second Year, B.A. LL.B (Honours)  Nikisha Hada-828

Divya Negi-830

Karuna Singh-832

Tanisha Khimesara-834

Ashutosh Mishra-836

Ravi Amitoz-838

 

 

TABLE OF CONTENTS 

1.  Introduction Introduction………………………………………………………………………………. ………………………………………………………………………………. .4 2.  Double Jeopardy In India………………………………………………………………….9 India………………………………………………………………….9   3.  Double Jeopardy and Cr. PC……………………………………………………… PC……………………………………………………………. ……..18 .18 4.  Double Jeopardy in USA and European Countries .…………………………………… .……………………………………..25 ..25 5.  Practice in other countries.…………………………………………………...…………..30 countries.…………………………………………………...…………..30   6.  Conclusion Conclusion……………………………………………………………………………… ……………………………………………………………………………… .39

 

 

1. INTRODUCTION  ''The constitutional prohibition against 'double jeopardy' was designed to protect an individual  from being subjected to the the hazards of trial and possible co conviction nviction more than o once nce for an alleged offense. . . . The underlying idea, one that is deeply ingrained in at least the Anglo American system of jurisprudence, jurisprudence, is that the State State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby  subjecting him to embarrassment, embarrassment, expense and ordeal ordeal and compelling him to live in a continuing  state of anxiety and insecurity, insecurity, as well as enhancing enhancing the possibility that even though innocent he may be found guilty.'' 1 

The term "Jeopardy" refers to the "danger" of punishment which is ascribed to any individual  brought to trial before a court of competent jurisdiction. Procedural matters m atters prior to trial do not constitute jeopardy, and that's why it's said that jeopardy attaches, or may be asserted by the defendant, once a jury has been sworn in, or the first witness takes the stand, in any original prosecution resulting in any acquittal or conviction. Jeopardy also attaches to any  plea of guilty (treated the same as conviction) even if later withdrawn. The concept of double  jeopardy is one of the oldest in Western civilization. In 355 BC Athenian statesmen Demosthenes said that the "law forbids the same man to be tried twice on the same issue." The Romans codified this principle in the Digest of Justinian in 533 A. D. The principle also survived the Dark Ages (400-1066 AD) through the Canon Law and the teachings of early Christian writers, notwithstanding the deterioration of other Greco-Roman legal traditions. 2  The term "double jeopardy" refers to the "danger" of a second punishment whenever an individual is brought to trial again for the same crime (or a greater or lesser included crime). This means that there cannot be a second prosecution for the same criminal act (both in fact and in law) upon which a first prosecution was based. The accused must be released and the

1

  Green v. United States, 355 U.S. 184, 187 -88 (1957). ( 1957). The passage is often approvingly quoted by the Court. E.g., Crist v. Bretz, 437 U.S. 28, 35 (1978); United States v. DiFrancesco, 449 U.S. 117, 127 - 28 (1980)  2

 Jordan M. Barry, Prosecuting Barry,  Prosecuting the Exonerated: Actual Innocence and the Double Double Jeopardy Clause, Clause, San Diego

Legal Studies Paper No. 11-058 (2005).

2

 

 

case dismissed. The challenge is determining what constitutes the "same" crime for double  jeopardy purposes.3  Some of the simpler examples include: • an acquittal or conviction for murder will bar any prosecution for manslaughter if based on the same facts (lesser included example) • an acquittal or conviction for larceny-theft larceny-theft will bar any prosecution for robbery if based on the same facts (greater included example) • an acquittal or conviction for burglary will bar any prosecution for robbery (even if the  burglar woke up the sleeping couple and robbed them) unless there are distinct elements in one crime that are not included in the other (multiple criminal transaction example) • an acquittal or conviction for battery will not bar any later prosecution for murder if the victims later dies as a result of injuries (separate and distinct new crime example). It is noted that the above does not deal with Indian laws in specific. Indian stand on doble  jeopardy shall be dealt in the later stages of the project. One of the most common reasons for a sentencing enhancement is that the defendant has a  prior conviction. Courts have rejected reje cted claims that these recidivism enhancements violate the  prohibition against double jeopardy. They have explained that the Double Jeopardy Clause does not prohibit the legislature from authorizing multiple punishments for one offense and that; in any event, event, the Double Jeopardy Clause does not apply at sentencing. It demonstrates that the central motivation for the Double Jeopardy Clause is the prohibition against multiple  punishments and those allowing recidivism enhancements undermines undermines this protection.4  Origin of Double Jeopardy

The roots of the doctrine of Double Jeopardy can be traced to the Latin maxim  Nemo debet bis vexari. vexari. The meaning of this maxim is that a man should not be put in peril twice for the same offence. It has been said that the history of double jeopardy is the history of criminal  procedure2. The rule is thought to have its origins in the controversy between Henry II and

3

 Anthony J. Colangelo, Double Colangelo,  Double Jeopardy and Multiple Sovereigns: A Jurisdictional Theory, Theory, Washington

University Law Review, Vol. 86, No. 4, 2009 4

 Carissa Byrne Hessick & F. Andrew Hessick, Double Jeopardy As A Limit On Punishment, Cornell Law

Review Vol. 97:45.

3

 

 

Archbishop Thomas a Becket that clerks convicted in the ecclesiastical courts were exempt from further punishment in the Kings courts because such further punishment would violate the maxim (nimo (nimo bis in idipsum) idipsum) no man ought to be punished twice for the same offence. This maxim stemmed from St Jerome‟s Jerome‟s commentary in AD 391 on the prophet Nahum: ―For God judges not twice for the same offence‖. 5 The rule later found expression in the common  pleas ―autrefois convict‖ and ―autrefois acquit‖.6 Based on the concept of merger, autrefois convict was a plea that the prisoner had already been tried for and convicted of the same offence. The object sought to be achieved was avoidance of curial imposition of a sentence in  punishment of conduct which had previously been the subject of curial imposition of a sentence in punishment.7 Based in estoppel, autrefois acquit was a plea that the prisoner had already been tried for and acquitted of the same sam e offence.8  The concept of human rights has assumed very great global importance, be that an advanced country, developed nation or underdeveloped country. The universal opinion is uniform relating to protection of human rights. Sir Hersch Lauterpacht was pleased to observe: "The protection of human personality and of its fundamental rights is the ultimate purpose of all law, national and international." The Universal Declaration of Human Rights, The UN Covenant on Economics, Social and Cultural Rights, the UN Covenant on Civil and Political Rights, the European Convention on Human Rights, the American Convention on Human Rights, Rules of Procedure of the Permanent Arab Commission on Human Rights, are a few which may be referred to in this context. Historically, the right against double jeopardy was understood to prohibit both multiple  prosecutions and multiple punishments for the same crime.9 Over time, this view of double  jeopardy has been eclipsed by a narrower vision of the right concerned primarily with  prohibiting multiple prosecutions.10 

5

 Friedland M L, Double L,  Double Jeopardy (1969) Clarendon Press, Oxford at 5.

6

 Laws of Australia Chapter 9 at [293]  Laws

7

 Travers v Wakeham (1991) 28 FCR 425; 54 A Crim R 205 per Jenkinson J enkinson J at 211.

8

 Laws of Australia Chapter 9 at [293]  Laws

9

 See North Carolina v. Pearce, 395 U.S. 711, 717 (1969).

10

 Das, Tirthankar, A Tirthankar, A Discussion on Law of Double Jeopardy in India (November 18, 2008).

4

 

 

Double Jeopardy and Multiple Punishments

The Double Jeopardy Clause provides that ―nor shall any person be subject for the same 11

offence to be twice put in jeopardy of life or limb.‖  Although the text of the Double Jeopardy Clause does not explicitly protect against multiple punishments, the Supreme Court has repeatedly recognized that the Clause does provide such protection. The Court has explained that the Clause consists of three separate constitutional protections: ―It protects against a second prosecution for the same offense after acquittal. It protects against a second  prosecution for the same offense after conviction. And it protects against multiple  punishments for the same offense.‖ 12  As explained below, the protection against multiple  punishments has a long, though not entirely consistent, historical pedigree. But despite its occasional statements that the Double Jeopardy Clause protects against multiple punishments, the Court has repeatedly failed to place any meaningful limitations on a legislature‘s abilit ability y to  punish an individual multiple times for the same offense. In particular, the Court has repeatedly allowed the imposition of higher punishment on those offenders who have  previously been convicted of a crime. Stand of Double Jeopardy in Indian Constitution

The principle was in existence in India even prior to the commencement of the Constitution,  but the same s ame has now been given the status of a constitutional, rather than a mere statutory, guarantee. The concept of double jeopardy has been enshrined in the Constitution of India in Article 20(2). Article 20 deals with Protection in respect of conviction for offences and the provision  pertaining to double jeopardy states st ates that ―No person shall be prosecuted and punished for the

same offence more than once.‖ 13  The word ―and‖ in the above provision is conjunctive and not not disjunctive. Both Prosecution and Punishment should co-exist for Article 20 (2) to be operative. A prosecution without  punishment would not bring the case within Art 20 (2). If a person has been prosecuted for an offence but acquitted, then he can be prosecuted for the same offence again and be  punished. In order to claim protection under this provision an accused has to prove he was firstly prosecuted and then punished for the offence. 11

 U.S. CONST. amend. V

12

 Twice in Jeopardy, 75 YALE L.J. 262, 265 –  265 – 66 66 (1965)

13

 Article 20(2), the Constitution of India.

5

 

 

Article 20(2) incorporates the principle of autrefois convict. It does not deal or extend the  protection to autrefois acquit. However, the right not to be punished more than once for the same offence is not a new guarantee as it already existed in Indian jurisprudence although merely statutorily. The guarantee against Double jeopardy could be found in Sec. 26 of the General Clauses Act and Sec.403 (1) of the Cr PC 1898. Reminiscence of this can be still found under Sec. 300 of the Cr PC, 1973. In fact Sec. 300 elaborates the principle of double jeopardy much better than does Article 20 (2) of the Constitution. It is also widely believed that Art. 20 (2) of the Constitution only provides Parliamentary gloss over a prevalent doctrine already incorporated within the Cr PC. Section 300 of the Cr PC combines autrefois convict and autrefois acquit. It debars a second trial on the same facts even for a different crime. A more conservative view is that the intention of the founding fathers appears to have been not to disturb the existing law which is to be found in Section 403 of the Cr. PC, 1898, relating to the extent of protection against Double Jeopardy in the criminal law of this country. Article 20(2) does nothing more than reproduce in effect the provisions of Section 300 of the Cr. PC. 1973. The Supreme Court has explained the legal position as follows in APTE Case14  ―To operate as a bar the second prosecution and the consequential punishment thereunder

must be for the ―same offence.‖ The crucial requirement therefore for attracting attractin g the Article is that the offences are the same i.e. they should be identical. If however, the two offences are distinct, then notwithstanding that the allegations of the facts in the two complaints might be substantially similar, the benefit of the ban cannot be invoked. It is therefore, necessary to analyse and compare not the allegation in the two complaints but the ingredients of the two offences and see whether their identity is made out. In this case, a person was convicted under section 409 I.P.C., for criminal breach of trust. His later prosecution on the same facts under section 105 of the Insurance act would not be barred under Art 20 (2) because the ingredients of the two offences were different. The court emphasized that the crucial requirement for attracting Art 20(2) is that the offences are the same i.e. they should be identical. If the two offences are distinct, then, notwithstanding that the allegations of facts in the two complaints are substantially the same; the benefit of the ban 14

 State of Bombay v. S.L. APTE (1961) 3 SCR 107.

6

 

 

cannot be cannot  be invoked. ―It is therefore necessary to analyse and compare not the allegations in the two complaints but the ingredients of the two offences and see whether their identity is made out ….‖ Prosecution & Punishment Prosecution Punishment  Prosecution has no fixed meaning and is susceptible both of a wide and a narrow meaning. But as used in Art 20 (2) it embodies the following three essentials15: a) There must be a person accused of an offence. The word ―offence‖ has to be taken in the sense in which it is used in the General Clauses Cla uses Act, 1897 as meaning ‗an act or omission made punishable by any law for the time being in force.‘  force.‘    b) The proceedings should have have been taken before a court or judicial tribunal. c) Proceedings in connection with prosecution and punishment cannot be considered as proceedings. d) The proceedings should have been taken before the judicial tribunal or court in reference to the law which creates offences. Thus, where an enquiry is held before a statutory authority against a government servant, not for the purposes of punishing for the offence of cheating and corruption but to advise the government as to the

disciplinary action to be taken against him, it cannot be said that the person has been  prosecuted. It would make no difference even if the enquiry is required to act  judicially.16  Punishment in this clause means a judicial penalty which must be awarded by a Criminal Court. It must be distinguished from a statutory authority and would not include other  penalties such as disciplinary action in the case of public servants. Preventive Detention is not ‗prosecution and punishment‘ and, therefore, it does not bar  prosecution of the person concerned. It has been held that Article 20(2) does not apply to a continuing offence. Both Prosecution and Punishment should co-exist for Article 20 (2) to be operative. A prosecution without punishment would not bring the case within Art 20 (2) . If a

15

 Hessick, Carissa Byrne and Hessick, F. Andrew, Double Andrew,  Double Jeopardy as a Limit on Punishment , Cornell Law

Review, Vol. 97, No. 3, 2012 (March 3, 2011).. 16

 Ajibade, Idowu Mopelola, Mainstreaming Mopelola, Mainstreaming Human Rights into Anti-Corruption: A Strategy for Protecting

Vulnerable Groups  Groups from  from Double Jeopardy (November Jeopardy (November 19, 2008).

7

 

 

 person has been prosecuted for an offence but acquitted, then he can be prosecuted for the same offence again and punished.17  The American Constitution enshrines this concept of double jeopardy by V th amendment. It is quite broader than the Indian concept. Under the American law, an accused claiming  protection against double jeopardy only b by y proving he h e was prosecuted for the t he same s ame offence. He does not need to prove or show he was punished under the same as well. In India, however, both prosecution and punishment is essential to claim protection against double  jeopardy.

17

 Hufnagel, Saskia M. and Krebs, Johannes, Double Johannes,  Double Jeopardy: A Principle in Jeopardy? Legal Date, Date, ANU

College of Law Research Paper No. 09-28 Vol. 20 No. 3 (July 1, 2008).

8

 

 

2. GUARANTEE AGAINST DOUBLE JEOPARDY IN INDIA 

The ambit of Doctrine of Double Jeopardy is, however, narrower than the English or the American rule against double jeopardy. The Indian Constitution enunciates only the principle of autrefois convict but not that of autrefois acquit. In Britain and the U.S.A., both these rules operate and a second trial is barred even when the accused has been acquitted at the first trial for that offence. The principle was in existence in India even prior to the commencement of the Constitution and the various statutory provisions, in Section 26 of the General Clauses Act, Section 403(1) of the Code Of Criminal Procedure, 1898 and Section 300 of Code Of

Criminal Procedure, 1973. The same has now been given the status of a constitutional, rather than a mere statutory, guarantee. Constitutional Provisions in India

Article 20 (2) Constitution of India: Immunity from double punishment. Both prosecution and punishment should co-exist for Art 20(2) to be operative. A prosecution without punishment would not bring the case within Art. 20(2). If a person has been  prosecuted for an offence but acquitted, then he can be prosecuted for the same offence again and punished. The distinct language of Article 20(2) appears to have been overlooked by the Supreme Court in  Mukhtiar Ahmed Ansari v. State (NCT of Delhi) 18 . In connection with an incident of kidnapping and extortion, the accused was booked under the Arms Act as well as under TADA. He was also charged in a kidnapping case along with two others. He was acquitted in the kidnapping case. The Supreme Court set aside the sentence passed against the accused under TADA as also under the Arms Act on the ground that "once the accused was acquitted in kidnap-ping case the doctrine of autrefois acquit gets attracted" 19. A person accused of committing a murder was tried and acquitted. The State preferred an appeal against the acquittal. The accused could not plead Art 20(2). Art. 20(2) would not apply as there was no punishment for the offence at the earlier prosecution; and an appeal against an acquittal was in substance a continuation of the prosecution. Art. 20(2) would not  bar a second trial for the same offence, as the accused had not been prosecuted and punished 18 AIR 19

2005 SC 2804 th

 M.P. Jain, Indian Jain, Indian Constitutional Law, Law, 1519 (6  ed 2010)

9

 

 

for that offence20. When a trial has for some reason become abortive either because of some inherent defect or illegality affecting the validity of the trial itself, a second trial is not barred  by Art. 20(2). Where there are two distinct offences made up of different ingredients, embargo under Art. 20(2) or S. 26 General Clauses Act 1897 has no application though the offences may have some overlapping features. Enhancement of punishment by the revising authority does not amount to a see6nd punishment. Preventive detention is not 'prosecution

and punishment' and, therefore, it does not bar prosecution of the person concerned 21. Further, Art.20(2) can operate as a bar only when the second prosecution and punishment is for the identical offence for which the person concerned has al-ready been prosecuted and  punished earlier. The same offence means an offence whose ingredients are a re the same. If the t he offences are distinct, there is no question of the rule as to double jeopardy being applicable 22. If one and the same act of a person constitutes two different offences, then the punishment for one offence does not bar prosecution and punishment for the other offence. The same set of facts, in some cases, can constitute offences under two different flaws. An act or omission can amount to and may constitute an offence under the Indian Penal Code and at the same time may constitute an offence under any other law. As the Supreme Court has observed in Murad Ali 23. In order that the prohibition [under Art. 20(2)] is attracted the same act must constitute an offence under more than one Act. If there are two distinct and separate offences with different ingredients under two different enactments, a double punishment is not barred. The Supreme Court has explained the legal position as follows in Apte 24  "To operate as a bar the second prosecution and the consequential punishment thereunder, must be for the 'same offence'. The crucial requirement therefore for attracting the Article is that the offences are the same, i.e., they should be identical. If, however, the two offences are distinct, then notwith-standing that the allegations of facts in the two complaints might be substantially similar, the benefit of the ban cannot be invoked. It is, therefore, necessary to

20

 Baaji Nath v. State of West Bengal, AIR 1957 SC 494

21

 Ghulam Ahmed v. State of Jammu & Kashmir, AIR 1954 J&K J &K 59

22

th

 V.N. Shukla, Constitution of India, 188 (11  ed 2011) 23  State of Bihar v. Murad Ali Khan, AIR 1989 SC 1 24

 State of Bombay v. S.L. Apte, AIR 1961 SC 578

10

 

 

analyze and compare not the allegations in the two complaints but the ingredients of the two offences and see whether their identity is made out 25.

In the Leo Roy Frey 26 the question arose whether a crime and the offence of conspiracy to commit the crime are different offences. The petitioner in the instant case was found guilty of an offence under S. 107(8), Sea Customs Act, 1878, and was punished accordingly. Thereafter, prosecution for criminal conspiracy under S. 120B, Penal Code, was brought against him. The Supreme Court ruled that the second s econd prosecution was not barred since iitt was not for the same offence. The Court explained the position thus: The offence of a conspiracy to commit a crime is an offence separate from the crime itself which is the object of the conspiracy, because the conspiracy precedes the commission of the crime and is complete  before the crime is i s attempted or committe committed d27. Equally the crime attempted or completed does not require the element of conspiracy as one of its ingredients. The two are therefore quite separate offences. Accordingly punishment for one offence does not bar punishment later for the other. An employee of the Border Road Organization was court-martialled and found to be guilty of some of the charges framed against him and was sentenced to rigorous imprisonment for one year. Thereafter, he was dismissed from service under the relevant Service Rules. The Supreme Court ruled in Union of India v. Sunil Kumar Sarkar 28  that it did not amount to double jeopardy under Art.20 (2). The two proceedings operated in two different fields even though the crime or the misconduct might arise out of the same act. The two proceedings did not overlap court-martial proceedings dealt with penal aspect of the misconduct while the  proceedings under the Service Rules dealt with the disciplinary aspect of the misconduct. misconduct. Article 20(2) does not apply to departmental proceedings. So an employee punished by a reduction of pay because of rash and negligent driving can subsequently be dismissed from service upon his conviction by a criminal court in respect of the same incident. Then there is also the concept of a 'continuing offence' which means that where an act or commission constituting the offence is continued from day to day, a fresh offence is committed every day and each offence can be punished separately. 25

 State of Bombay v. S.L. Apte, AIR 1961 SC 578   AIR 1958 SC 119

26 27

th

 M.P. Jain, Indian Jain, Indian Constitutional Law, Law, 1519 (6  ed 2010)

28

 AIR 2001 SC 1092

11

 

 

A limitation read into Art. 20(2) is that the former 'prosecution' (which indicates that the  proceedings are of a criminal nature) must be before a court of law, or a judicial tribunal required by law to decide matters in controversy judicially on evidence and on oath which it must be authorized by law to administer, and not before a tribunal which entertains a departmental or administrative enquiry, even though set up by a statute, but not required to  proceed on legal evidence given on oath 29 . The words 'before a court of law or judicial tribunal', though not found specifically in the Article are taken as an important condition. When a civil servant is dismissed from government service on the ground of misbehavior after a departmental inquiry, his later prosecution on the same charges which had been earlier inquired into and for which he was punished by dismissal would not be barred by Art. 20(2). The earlier 'inquiry' could not be regarded as 'prosecution' for a criminal offence and so Art. 20(2) would not apply. Thus, a departmental inquiry does not bar a later prosecution and  punishment in a court. The Court has explained the legal position under Art. 20(2) as follows: To invoke the  protection of Art. 20(2), there must have been both prosecution and punishment in i n respect of the same offence. The words "prosecuted and punished" are not to be taken disjunctively, so as to mean 'prosecuted' or ‗punished‘ 30 . Both the factors must co-exist in order that the operation of Art. 20(2) may be attracted. Maqbool Hussain31is the leading case on this point. A person arrived at an Indian airport from abroad. He was found in possession of gold which was against the law at the time. Action was taken against him by the customs authorities and the gold was confiscated. Later he was  prosecuted before a criminal court under the Foreign Exchange Regulation Act. The question was whether the plea of `autrefois acquit' could be raised under Art. 20(2). The Supreme Court came to the conclusion that the proceedings before the customs authorities did not constitute 'prosecution' of the appellant, and the penalty imposed on him did not constitute a 'punishment' by a judicial tribunal. It is thus established that action taken by a quasi-judicial body does not bar a later  prosecution before a court. Thus, immunity against a second prosecution has become confined to a situation when the first proceeding has been before a court of law. The same 29

th

 M.P. Jain, Indian Jain, Indian Constitutional Law, Law, 1520 (6  ed 2010)

30

th

 V.N. Shukla, Constitution of India, 186 (11  ed 2011)

31

 Maqkbool Hussain v. State of Bombay, AIR 1953 SC 325

12

 

 

will be the position when after 'prosecution and punishment' for an offence, further action is taken by a quasi-judicial body32. This excludes the vast system of inquiries and punishments  by a number of quasi-judicial bodies which operate at present in the country. This is because the word 'prosecution' in Art. 20(2) have been interpreted restrictively. Hence, Art. 20(2) bars a second prosecution only where the accused has been both prosecuted and punished for the same offence previously but this clause does not bar subsequent trial if the ingredients of the offences in the previous and the subsequent trials are distinct 33. Conditions for the application of Cl. (2): Firstly there must have been previous proceeding before a Court of law or a judicial tribunal of competent jurisdiction. Secondly the person must have been 'prosecuted' in the previous proceeding. Thirdly the conviction or acquittal in the previous proceeding must be in force at the time of the second trial Fourthly the 'offence' which is the subject-matter of the second proceeding must be the same34 as that of the first firs t proceeding, for which he was 'prosecuted and punished'. Fifthly the 'offence' must be an offence as defined in s. 3(38) of the General Clauses Act, that is to say, 'an act or omission made punishable by any law for the time being in force'. It follows that the prosecution must be valid and not null and void or abortive. Lastly the subsequent proceeding must be a fresh proceeding where he is, for the second time, sought to be 'prosecuted and punished' for the same offence. Hence, the clause has no application where the subsequent proceeding is a mere continuation of the previous  proceeding, e.g., in i n the case of an appeal against acquittal, or against conviction. Nor does it  bar a retrial, on appeal, with a direction to reframe the Charges, provided the retrial is confined to the same offence or offences for which he had been tried at the original trial. In other words, a second punishment for the same offence does not attract the operation of the clause unless the second punishment is awarded in afresh proceeding.

32

 T.K. Tope, Constitutional Law of India, India , 255 Eastern Law House, Lucknow

33

 Mohinder Singh v. State of Punjab (1998) 7 SCC 390

34

 Asstt. Collector of Customs, Bombay v. Malwani AIR 1970 SC 962

13

 

 

Also, for the same reason, the clause does not prohibit a provision for two penalties for the same offence in the same proceeding, without involving a double prosecution and conviction; or conviction of one charge after acquittal of another, at the t he same trial 35. Analysis of the Article

Prosecuted and Punished: These words indicate that both the proceedings referred to by the clause must be proceedings  before a Court of law or a judicial tribunal36. 'Prosecution' in this context, thus, means an initiation or starting of proceedings of a criminal nature before a Court of law or a judicial tribunal in accordance with the procedure prescribed in the statute which creates the offence and regulates the punishment.

Hence, the following proceedings do not constitute prosecution within the meaning of Art. 20(2) The clause is not applicable unless the person has been both prosecuted and punished. Hence where the previous prosecution was null and void, e.g., for absence of proper sanction, or for want of jurisdiction of Court, a fresh trial upon the same facts would not be barred, even though the accused might have served out a part of his sentence before he could obtain his acquittal on appeal, on the ground of want of sanction or jurisdiction. Similarly, where there was no punishment in the previous proceedings, e.g., owing to dismissal for default of the complaint, a fresh prosecution would not be barred. Where a conviction is set aside and a retrial ordered, the retrial is a continuation of the same  proceedings and not a second prosecution37, or where in the previous proceedings ended in acquittal. Punishment: 'Punishment' in this clause means a judicial penalty, awarded by a Criminal Court, as distinguished from a statutory authority and would not include other penalties, such as disciplinary action in the case of public servants.

Same offence: 35

 State of MP v. Vereeshwar Rao Agnihotri, AIR 1957 SC 592

36

 Maqbool Hussain v. State of Bombay, 1953 SCR 730

37

 Mithailal v. State AIR 1954 All. 689

14

 

 

The previous conviction for one offence does not bar a subsequent trial and conviction for a separate and distinct offence even though the two offences arise out of the same facts, and the allegations in the two complaints are identical. Distinct offences may be created by different statutes or by different provisions of the same statute 38. What is necessary to determine whether two offences are distinct is to see, whether their ingredients are not identical. The following have been held to be distinct offences (a) Possession of firearms without licence and dacoity. (b) Offence under s. 353, I.P.C. and under s. 26(1) (b), Bihar Sales Tax Act. (c) An offence and the conspiracy to commit that offence. (d) An offence under s. 409 of the I.P.C., and an offence under s. 105 of the Indian Insurance Act; or an offence under s. 5(2) of the Prevention of Corruption Act. (e) The offence of making an unauthorized construction without obtaining permission of the Municipal authority and the offence of breach of the Building Rules in making the construction39. (f) Offences committed on different dates in case of a continuing offence.

More than once: There is no double punishment to attract the operation of the present clause unless there is a fresh judicial proceeding for the same offence. 40  Hence, the clause is not attracted, firstly where the sentence provides for imprisonment in default of payment of the fine awarded. Secondly where the sentence is for fine and also for recovery of arrears of sales tax as if it was a fine. Thirdly where a person has served out the

sentence but has not paid the penal amount which he was ordered to pay 41. Lastly where an army officer has been dismissed from service s ervice and also deprived of his pension or gratuity.

38

th

 V.N. Shukla, Constitution of India, 190 (11  ed 2011)

39

 Ibid

40

 Weezul Khan v. State of Bihar AIR 1967 Pat. 368

41

 Kripal Singh V. Collecter 1994(3) SCC 52

15

 

 

Statutory Provisions in India

The Doctrine of Double Jeopardy has been recognised and incorporated in a few legislations in India and has been given the status of fundamental right under Article 20(2) of the constitution of India. The legislation in which the doctrine has been incorporated are: Section 300 of the Code of Criminal Procedure; Section 40 of Indian Evidence Act, 1872, Section 71 of Indian Penal Code, 1860 and Section 26 of the General Clauses Act,1897. All of these  provisions operate in different way aiming towards the same principle. Protecti Protec ti on u nder Gener Gener al Cl ause auses Act: Section Section 26

The Section 26 of the general clauses act, 1897 embodies the well settled principle in criminal jurisprudence that where an act an offender constituted an offence under two or more enactments, the offence remains liable to be prosecuted and punished under any one of these enactments. Section 26 in fact contemplates those cases where the acts alleged fall within the definition of offences under the two enactments. There is no bar under this Section to a second trial but the only bar is against two punishments. In state of Madhya of  Madhya Pradesh v. Veereshwar Rao Agnihotri42, it was held by the supreme court that what is prohibited under this Section is punishment for the same set of facts under two Sections but not the trial of accused on alternate changes, where acquittal on one charge is no  bar to conviction on the other and in case of identical i dentical definition of the offences, the court can select the law for choice to convict the accused.

Protecti Protec ti on u nder I ndi an evidence evidence act, 1872: 1872: Section Section 40

Section 40 of the Indian Evidence Act, 1872 lays down that when the question is whether a court ought to take cognizance of a suit or hold a criminal trial, and judgement, judgement, order or decree prevents the court from taking cognizance of that suit or holding that trial, the existence of the judgement, order or decree is relevant fact. It is the existence of the  judgement that is relevant under this Section, the reason for the acquittal or the evidence recorded in the earlier trial is not relevant. 43 Judgement interprets in previous suit to prove the

42

 AIR, 1957 SC 592

43

 Ali Husain v. State, 1975 Cr. L.J. 345 (AII) ( AII)

16

 

 

factum of previous suit is admissible. However, the Section which is not necessary for disposal of the suit is not admissible. Protecti Protec ti on u nder I ndi an Penal Penal Code, Code, 1860: 1860: Section Section 71

The objective of this Section is to confine punishment within reasonable limits. It is based on the rule that where the intention i ntention was to commit an offence, tthe he commission of which involves the perpetration of acts, by themselves punishable. The offender shall not be punished for them separately, as his object was to commit one crime and not many. Moreover in such a case, every criminal act however , subservient to the main design, where penal these would  be no end to punishment, and the t he most trivial tr ivial acts might thus be magnified into offences, the  punishment of which might be wholly disproportionate to the nature and gravity of the act accomplished. Section 71 of the Indian Penal Code, 1860 deals with three specific cases: Firstly where a number of acts are committed all of which are offences both collectively and individually, in which case the offender may be punished for any one of them or all collectively, but he cannot be punished for all of the acts severally. Secondly where of such several offences, they not only individually constitute separate

offences but also constitute a different diff erent offence, when two or more of them aare re combined, then the offender can only be punished for any one of such offences, and not both. Thirdly, where an act is penal under two or more Acts, the offender cannot be punished under each of them, for otherwise he would be punished several over for the same acts.

17

 

 

3. DOUBLE JEOPARDY AND Cr. PC

In the Cr PC, the provision to prevent punishment for the same offence twice can be found under Sec. 300 44. This section of the CrPC incorporates the pleas of autrefois acquit and autrefois convict. These pleas are taken as a bar to criminal trial on the ground that the accused person had been once already charged and tried for the same alleged offence and was either acquitted or convicted. Interestingly, Sec. 300 also takes care of an anomaly present in Art. 20(2) of the Constitution which deals with Double Jeopardy. Sec. 300 incorporates acquittal also as bar to criminal trial whereas Art. 20(2) deals with only previous conviction. Sec. 300 of the Cr PC has six subsections and six illustrations which expansively deal with the principle of Double Jeopardy. In fact, the CrPC is much more comprehensive than Art. 20 (2) of the Constitution. Here is an analysis of the provisions of Sec. 300. Under Sec. 300 - Persons once convicted or acquitted not to be tried for the same offence, 1) A person who has once been tried for 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, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under sub-section (1) of section 221, or for which he might have been convicted under sub-section (2) thereof. 44

 Section 300 CrPC states: (1) 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, nor on the same facts for any other offence for which a di different fferent charge from the one made against him might have been made under sub section (1) of section 221, or for which he might have been convicted under sub section (2) thereof  (2) A person acquitted or convicted of any offence may be afterwards tried, with the consent of the State Government, for any distinct offence for which a separate charge might have hav e been made against him at the former trial under sub section (1) of section 220 (3) A person convicted of any offence constituted by any act causing consequences which, together with such act, constituted a different offence from that of which he was convicted, may be afterwards tried for such last mentioned offence, if the consequences had not happened, or were not known to the Court to have happened, at the time when he was convicted (4) A person acquitted or convicted of any offence constituted by any acts may, notwithstanding such acquittal or conviction, be subsequently charged with, and tried for, any other ot her offence constituted by the same acts which he may have committed if the Court by which he was first tried was not competent to try the offence with which he is subsequently charged char ged (5) A person discharged under section 258 shall not be tried again for the same offence except with the consent of the Court by which he was discharged or of any other Court to which the first mentioned Court is subordinate (6) Nothing in this section shall affect the provisions of section 26 of the General Clauses Act, 1897 or of section 188 of this Code Explanation –  The dismissal of a complaint, or the discharge of the accused, is not an -

-

.

-

.

-

.

.

-

.

.

.

acquittal for the purposes of this section  

18

 

 

What this section basically means: a) If a person is convicted or acquitted by a court of competent jurisdiction, he cannot be tried for the same offence. b) If charge has been made against a person under sub - section (1) of Sec. 221 and the facts are the same and he has  been charged under sub -section (2) of Sec. 221 then he cannot be tried on the same facts. Of course this holds true only till the conviction or acquittal remains in force. For the purpose of Sec. 300 of the CrPC, the term "acquittal" has been explained in negative terms by saying that the dismissal of a complaint or the discharge of the accused is not acquittal.

45

 This explanation has been repeatedly used in various cases example

Ramasharama v. Pinki Sharma46 and E.K. Thankappan v. Union of India. 47  In the case of Krishna Sen Gupta v. Manjula Mukherjee, 48 the brother of the aggrieved filed a

complaint under Sec. 494 I.P.C. However, the accused was discharged because the complaint was not filed by the complainant. The Calcutta High Court held that a subsequent complaint  by the complainant for the same offence is not barred by the principle of double jeopardy. The reason for having such an explanation is that the dismissal of a complaint or the discharge of the accused is not considered as final decision regarding the innocence of the accused person.49  However, if a court applies a wrong provision of law erroneously, it would be deemed that the order in effect, was one under the provisions of law applicable to the facts of the case. Where in a summons case, the Magistrate passed an order of discharge under Sec. 245 (2) owing to the absence of the complaint, the order of discharge under Sec. 245 (2) must be read as an order of acquittal passed under Sec. 256. 50  Also, the word "tried" in Sec. 300 (1) does not mean tried on merit. Example, in the case of Kashigar Ratangar v. State of Gujarat, 51  withdrawal from the prosecution by the public  prosecutor under Sec. 321 Cr PC resulted in an acquittal of the accused even though the

45

 Explanation to S. 300 Cr PC  1989 Cr LJ 2153 (Pat.); Ratanlal & Dhirajlal, "The Code ofCriminal Procedure", 16th ed.,2002, rep. 2003, p. 887 47  1989 (3) Crimes 656, 663 (Ker.); Ratanlal & Dhirajlal, "TheCode of Criminal Procedure", 16th ed., 2002, rep. 2003, p. 88721 1997 (1) Crimes 48 (Cal); Ratanlal & Dhirajlal, "The Codeof Criminal Procedure", 16th ed., 2002, rep. 2003, p. 887 48  1997 (1) Crimes 48 (Cal); Ratanlal & Dhirajlal, "The Codeof Criminal Procedure", 16th ed., 2002, rep. 2003, p. 887 49  R. V. Kelkar, "Criminal Procedure", rev. Dr. K. N.Chandrasekharan Pillai, 4th ed., 2001, p. 479 50  Rabindra Dhal v. Jairam Sethi, 1982 Cri LJ 2144, 2146 (OriHC); R. V. Kelkar, "Criminal Procedure", rev. Dr. K. 46

N. 51 ChandrasekharanPillai, 4th ed., 2001, p. 479  1975 Cri LJ 963

19

 

 

accused was not tried on merit. Such an acquittal would bar the trial of the accused on the same facts on a subsequent complaint. 52  There are two views regarding the word "tried". One view states that the accused must be  present in court on being summoned, before it ca can n be said s aid that the trial tria l has commenced. The other view is that once the court has taken cognizance of a complaint or a criminal case and has ordered issue of process for the accused to appear, it has taken steps towards the trial and what it has done is proceedings in the nature of a trial. Just as it is necessary under Art 20 (2) to establish the competence of the court which tried the earlier case, in order to get benefit of

the rule contained in Sec. 300 Cr PC it is imperative that the accused establishes that he has  been tried by a competent court. However, the expression "competent court" to try an offence should not be narrowly interpreted as to involve merely the consideration of the status or the character of the court,  but in determining the competence it must also be considered whether the court though otherwise qualified to try the case, could not have done so because certain conditions  precedent for the exercise of the jurisdiction had not been fulfilled.53  Another crucial element of Sec. 300 is re-punishment for the same offence. The basic rule is that the offences should be same i.e. identical. It is therefore necessary to analyze and compare not the allegations in the two complaints but the ingredients of the two offences and see whether their identity is made out. 54  Sec. 300 bars the trial for same offences and not different offences which may result from the commission or omission of the same set of acts. Where the legislature provides that on the same facts proceedings could be taken under two different sections and the penalties provided under those sections are also different, it is obviously intended to treat the two sections as distinct. In such a case Sec. 300 cannot apply. Sub - section 2 of Sec. 300 reads as thus, 2) A person acquitted or convicted of any offence may be afterwards tried, with the consent of the State Government for any distinct offence for which a separate charge might have been made against him at the former trial under sub - section 1 of Sec. 220. Where a person has been acquitted or convicted of any offence and a separate charge for another offence could have been made but was not made against him in the former trial, he should not be liable to be again prosecuted for the other offence as a matter of course because this might lend itself to abuse. 52

 Shankar Dattatraya Vaze v. Dattatray Sadashiv Tendulkar,AIR 1929 Bom. 408, 409

53 State

v. Birda, (1966) 1 Cr LJ 166, 168; R. V. Kelkar,"Criminal Procedure", rev. Dr. K. N. Chandrasekharan Pillai, 4th ed. 2001, p. 480 54  State of Bombay v. S. L. Apte, AIR 1961 SC 578

20

 

 

To provide a check against such abuse, Sec. 300 (2) makes it obligatory to obtain the consent of the State Government before a new prosecution is launched against any person for any distinct offence for which a separate charge might have been made against him at the formal trial under Sec. 220 (1).55  Where the charge on the second trial is for a distinct offence the trial is not barred i.e. the

section permits a trial for a distinct offence. 56 Sub - section (3) of Sec. 300 read as thus, 3) A person convicted of any offence constituted by any act causing consequences which, together with such act, constituted a different offence from that of which he was convicted, may be afterwards tried for such last - mentioned offence, if the consequences had not happened or were not known to the court to have happened, at the time he was convicted. This section is applicable only in cases of conviction and not in cases where there has been an acquittal. This section is best explained by its illustration: ―A is tried for causing grievous hurt and convicted. The person injured i njured afterwards dies. A may be tried again for culpable homicide‖. 57 This section allows the re-trial of an accused for acts which did not come to light in front of the court of  prior conviction. A conviction simply in itself does not bar re-trial r e-trial of the accused for similar offences which were not bought to the notice of the courts. The facts or the circumstances must be such as to indicate a different kind of offence of which there could be no conviction at the first trial. The new evidence must constitute a different kind of offence for which the accused could not have been tried at the first trial. The new facts or consequences must have occurred since the conviction or acquittal at the first trial. For, if the new facts or consequences were known to the court at the time of the first trial, a second trial for the offence constituted by the new facts would be  barred.58  Sub -section (4) of Sec. 300 states, 4) A person acquitted or convicted of any offence constituted by any acts may, notwithstanding such acquittal or conviction be subsequently charged with, and tried for, any other offence constituted by the same acts which he may have committed if the court by which he was first tried was not competent to try the offence with which he is subsequently charged. This sub - section basically states that if any court is 55

 R. V. Kelkar, "Criminal Procedure", rev. Dr. K. N.Chandrasekharan Pillai, 4th ed., 2001, p. 481  Kunjilal v. State of M.P., AIR 1955 SC 280; Ratanlal &Dhirajlal, "The Code of Criminal Procedure", 16th ed., 2002, rep. 2003,p. 890 57  Illustration (b) to S. 300 Cr PC 58  Ratanlal & Dhirajlal, "The Code of Criminal Procedure",17th ed., 2004, p. 572-573

56

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incompetent to try an accused of any offence which is the consequence of an offence

for which he has already been convicted or acquitted, the prior acquittal or conviction would not act as a bar to the proceedings for the consequential offence as the court could not have possibly tried the accused of that offence. An illustration given with this sub section explains the fact further thus: ―A is charged by a magistrate of the second class with, and convicted by him of, theft of property form person B. A may subsequently be charged with, and tried for, robbery on the samefacts.‖ 59 

Sub - section (5) of Sec. 300 states, 5) A person discharged under Sec. 258 shall not be tried again for the same offence except with the consent of the court by which he was discharged or of any other court to which the first mentioned court is subordinate. In a summons case instituted otherwise than upon a complaint the court has got power under Sec. 258 to stop the  proceedings at any stage without pronouncing the judgment. If the stoppage of  proceedings is made before the recording of the evidence of the principal witness, it shall have the effect of discharge of the accused person. However, according to Sec.300 (5) such accused person cannot be tried again for the same offence without the consent of the concerned court. It is believed that this provision will be helpful as a safeguard against the abuse of power of fresh prosecution in such cases. 60  The last sub -section in the series of sub - section under Sec. 300 CrPC deals with Sec. 26 of the General Clauses Act, 1897 and Sec. 188 of the CrPC. The sub -section reads, 6) Nothing in this section shall affect the provisions of Sec. 26 of the General Clauses Act, 1897 (10 of 1897) or of Sec. 188 of this code. Section 26 of the General Clauses Act, 1897 referred to above states that: Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be  prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence. Although, the above Sec. 26 refers to "acts and omissions constituting an offence under two or more enactments", the emphasis is not on the facts alleged in the two complaints, but rather on the ingredients which constitute the two offences with which a person is charged.

59

 Illustration (e) to S. 300 Cr PC  Ratanlal & Dhirajlal, "The Code of Criminal Procedure",17th ed., 2004, p. 573

60

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This is obvious from the concluding portion of the section which refers to "shall not be liable to be punished twice for the same offence". If the offences are not the same but are distinct, the ban imposed by Sec. 26 cannot be imposed.61  The basic point that comes across from analyzing the entire section is that only sub-section (1) deals with the exact provision relating to Double Jeopardy. The other sections are merely supplementing the main sub-section as to the various contingencies which may arise in the actual implementation of the doctrine of Double Jeopardy. After analyzing all the various sub-sections of Sec. 300 of the Cr PC and also Article 20(2) of the Constitution of India which enunciate the doctrine of Double Jeopardy, we have come across some of the same conclusions which were purported to be researched as mentioned in the introduction of this project. It is clear from what has been discussed that the Doctrine of Double Jeopardy has been more clearly elaborated in the CrPC (Section 300) rather than Article 20 (2) of the Indian Constitution. However, what also comes across is that people  prefer to refer to the Constitution when pleading a case which is covered by Double Jeopardy than the Cr PC which clearly provides a better safe guard form being convicted twice for the same offence. The Constitution deals with the entire matter in a few lines. However, these few lines have been debated about a lot and the kind of judicial scrutiny that has been received by this is huge. On the same hand there is less debate about Double Jeopardy in the Cr PC. This is also expected form the fact that the CrPC is more comprehensive about the whole issue when compared to the Constitution.

61

 R. V. Kelkar, "Criminal Procedure", rev. Dr. K. N.Chandrasekharan Pillai, 4th ed., 2001, p. 484

23

 

 

4. PROTECTION AGAINST DOUBLE JEOPARDY IN UNITED STATES OF AMERICA AND EUROPEAN COUNTRIES  Status in America The concept of Double Jeopardy was introduced in The United States of America in its Fifth Amendment Amendm ent of its Constitution. Amendment V (1791) of the t he US Constitution states that, “No person shall be held to answer for a capital, or otherwise infamou s crime, unless on a  presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process 62

of law; nor shall private property be taken for public use, without just compensation.” compensation.”   The words ―nor ―nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb‖ clearly states the idea of double jeopardy in its amendment. amendment. The  The clause as in general is meant to limit the courts or the government in repeated prosecution for the same offense, as a means of harassment or oppression. It is also in accord with the common law concept of ―res judicata‖, which means prevention of courts from relegating issues and claims that have already been the subject of a final judgment. 

There are three essential protections included in double jeopardy: protection from being retried for the same crime after an acquittal; protection from retrial after a conviction; and  protection from being punished multiple times for the same offense.63 This law is generally referred to as a legal technicality, because it allows defendants a defense that does not address whether the crime was actually committed. For example, were police to uncover new evidence conclusively proving the guilt of someone previously acquitted, there is little they can do because the defendant may not be tried again. There are some cases which are dealing with Double Jeopardy. In Benton v Maryland 64 the Supreme Court of United Nations stated that ―the fundamental nature of the guarantee against

62

th

M.V. Pylee. Constitutions of the World . 4   Edition, Volume 2.New Delhi Universal Law Publishing Co.,

India  pg2224, 2225. print

63

 Retrieved from http://www.danieljensenlaw.com/articles/double-jeopardy/  at  at 1:00 p.m. on 1 April, 2013

64

 395 U.S. 784 (1969)

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the double jeopardy can be hardly doubted‖. In Fong Foo v. United States 65, as the Fifth Amendment was applied only to the federal government at that time, the Supreme Court ruled that in the double jeopardy clause Jeopardy attaches in a jury trial once the jury and alternates are impaneled and sworn in. In a non-jury trial, jeopardy attaches once the first evidence is put on, which occurs when the first witness is sworn plies to the states as well, through incorporation by the Fourteenth Amendment (1868).In explanation of U.S. law,  jeopardy does not attach until the jury is sworn in a jury trial or until the first witness is sworn in a bench trial. Actions before jeopardy attaches will not bar a subsequent prosecution. For example, if a judge dismisses a prosecution at a preliminary hearing for lack of evidence, this determination does not bar the government from initiating new charges for the same offense, since jeopardy will not have attached at that point. Also under U.S. law, conviction or acquittal in one state or nation does not always bar trial for the same criminal act in another. 66  The fourteenth amendment exemplified the shift in authority from the states to the national government and became the constitutional basis for much federal legislation and litigation in future years. 67  The clause applies in juvenile court proceedings which are formally civil. Breed v. Jones.68  Also in the case of Green v United States 69 it was stated that ―The underlying idea … is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty‖. The above quoted lines captures the essential arguments for maintaining the double jeopardy rule. Foremost among these is that such a rule is necessary to protect against wrongful convictions. Repeated exposure to the trial process increases such a risk.70 

65

 369 U.S. 141 (1962).

66

nd

 Retrieved from http://www.britannica.com/EBchecked/topic/169973/double-jeopardy http://www.britannica.com/EBchecked/topic/169973/double-jeopardy at  at 2:00 pm on 2  April

4, 2013 67 nd  Melvin Urofsky, Paul Finkelman. A Finkelman.  A March of Liberty: A Constitutional history of United States.2 States.2  edition, Volume 1.New York:Oxford University Press,2002. Pg 444. Print. 68

 421 U.S. 519 (1975)

69

 355 US 185 at 187-88 (1957)

70

 Roberts P, „Double Jeopardy Law Reform: A Criminal Justice Commentary‟ in Modern Law Review

(2002) 65 (3) 393 at 397

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71 

72 

Compari son Betwee Between I ndi a   & U.S. U.S. Cons Constituti tituti on   

The ambit of Art 20 (2) 73  is however, narrower than the American rule against double  jeopardy. Art 20 (2) may be invoked invoked only when there has been pro prosecution secution and punishment in the first instance. In the American system the Constitutional bar applies to the second  prosecution irrespective of the result of the first prosecution. The constitutional safe safeguard guard can  be pleaded to t o the second prosecution whether the accused was acquitted or convicted in the first prosecution , the Common law Principle is also the same whereas the rule in Indian Constitution is different . In order to bring the case of a person within the prohibition of Article 20 ( 2 ) it must be shown that he had been ‗prosecuted‘ before a court and ‗punished‘  by it for the ‗same‘ offence for which he is prosecuted again. In India th the, e, protection against double jeopardy is a Fundamental Right guaranteed under Right to Freedom in the Constitution of India whereas in U.S constitution it is enshrined in US Constitution, Fifth Amendment. In U.S Constitution ,in order for the rule of double jeopardy to apply, the subsequent trial must be based on the exact same facts as the former trial. The trials must be for the same incidence of the crime. If a defendant is prosecuted for a crime in which he committed multiple incidences of the same crime, each incidence can be tried separately without double  jeopardy whereas w hereas in Indian Constitution Constit ution the previous conviction for one offence (e.g. hurt ) does not bar a subsequent trial and conviction for a separate and distinct offence (say affray) even though the two offences arise out of the same facts , and the allegations in the two complaints are identical . Distinct offences may be created by different statutes or by different provision of the same statutes. Under the U.S Constitution the protection against Double jeopardy is given for the second prosecution of the same offence irrespective of whether an accused was acquitted or convicted in the first trial whereas in article 20 (2) of the

Indian Constitution the protection against double punishment is given only when the accused has not only been ‗prosecuted‘ but also ‗punished‘ and is sought to be prosecuted second time for the same offence. Lastly in the U.S Constitution , The double jeopardy principle was 71

 M.P Jain. Indian Jain. Indian Constitutional Law. India: LexisNexis Butterworth‘s Wadhwa Nagpur, 2010. Print

72

 David. S. Rudstein. Double Rudstein. Double Jeopardy: A Reference Guide to the United United States Constitution. Westport: Praeger

Publishers,2004. Print 73

 20. Protection in respect of conviction for offences clause(2) no person shall s hall be prosecuted and punished for

the same offence more than once.

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explicitly incorporated into the Constitution when the Bill of Rights was ratified in 1791. whereas in India the Principle of Double Jeopardy was in existence in India even prior to the commencement of the Constitution and is enacted under in S. 26 of the General Clauses Act 74  and S. 403 (1) of Cr. P.C75, S. 300 Cr. P.C.76  Status in Europe

All members of the Council of Europe (which includes nearly all European countries and all members of the European Union) have signed the European Convention of Human Rights 77, which protects against double jeopardy. The Seventh Protocol, Article Four, says: ―No one shall be liable to be tried or punished again in criminal proceedings under the  jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State.‖  State.‖   This specific optional protocol has been ratified by all EU states except six (namely Belgium, Germany, Netherlands, Portugal, Portugal, Spain and the United Kingdom). Kingdom). Those member states may still have the provision in their respective constitutions providing a prohibition against double  jeopardy. In many European countries the prosecution may appeal an acquittal to a higher hi gher court (similar to the provisions of Canadian law) - this is not counted as double jeopardy but as a continuation of the same trial. This is allowed by the European Convention of Human Rights - note the word finally in the above quote. 78 

Issues relating to the prohibition on double jeopardy can arise in the context of the risk of  people being prosecuted again on return to their home state for the offence of which they have already been convicted and for which they have already served a sentence in the expelling state. However, Article 4 of Protocol No. 7 only applies to repeated prosecution in

74

 1897

75

 1898

76

 1973

77

 The Convention for the Protection of Human Rights and Fundamental Freedoms, also known as the

European Convention on Human Rights (ECHR), was adopted under the auspices of the Council of Europe[1] in 1950 to protect human rights and fundamental freedoms. 78

 K.L. Bhatia. Legal Bhatia. Legal Language and Legal Literature. Literature. Delhi: Universal Law Publishing Co. Pvt. Ltd, 2010. Pg

188. Print

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the same state and not in different states. In case of Amrollahi v. Denmark 79  the Court declared inadmissible a case where an individual alleged that prosecution for the crime for which he had already been punished would await him if expelled.

80

 

In European countries also many cases arose. These are mainly establish that administrative  proceedings which penalize the same conduct in issue in a criminal trial will offend the  prohibition, notwithstanding the differing designations and the allegedly different purpose of the proceedings. In Gradinger v. Austria81, the applicant, who killed a cyclist while driving, was convicted of causing death by negligence rather than the more serious crime of being under influence of alcohol since his level was below the prescribed limit. The administrative authorities proceeded to fine him for driving under the influence of drink on the basis of a medical report which deduced that in fact he was over the limit. Since both the decisions were based on the same conduct, there was a violation of Article 4 of Protocol No. 7 82 

79

 Application no.56811/00, judgment of 11 July 2002.

80

 Asylum and the European Convention on Human Rights. Council of Europe Publishing, 2010 Pg 100.

81

st

 Retrieved frm http://echr.ketse.com/doc/15963.90-en-19951023/  at  at 2:00 pm on 1  April 2013

82

th

 Karen Reid. A  A Practitioner's Guide to the European Convention on Human Rights. Rights. 4  Edition, Sweet and

Maxwell Publisher . 2012

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5.PRACTICE IN OTHER COUNTRIES 

It is important to consider the current practices in double jeopardy of overseas jurisdictions  because the trend of the international community impacts on the future direction of the approach to double jeopardy and the exceptions that can be allowed. The following overview shows the practices in three major countries of the world. Practice in Australia

The principle of double jeopardy exists under Australia‘s common law. 83 In certain States, it also exists under statute.84 In 2007 the Council of Australian Governments (COAG) agreed that jurisdictions would implement the recommendations of a working group dealing with double jeopardy reform. 85  R v. Caroll

The leading High Court decision on double jeopardy in Australia is R v. Carroll. 86 Carroll was convicted by a jury of abducting, sexually abusing and strangling a 17- month-old baby, Deidre Kennedy. The baby was found dead on the roof of a toilet block in Ipswich. The baby had bite marks to its legs and a pubic hair was found on her body. At trial, Carroll gave evidence and denied knowledge of the crime. The jury convicted him. He appealed the conviction and the Court of Appeal held that the forensic evidence, linking the crime to Carroll, was unsafe and unsatisfactory. He was acquitted. The rule against double jeopardy prevented the Director of Public Prosecutions (DPP) from pursuing a re-trial. re -trial. Subsequently, advancements in DNA technology and forensic odontology showed that there was very little doubt that Carroll was responsible for the death. In an attempt to circumvent the rule against double jeopardy, the DPP successfully prosecuted Carroll for perjury on the  basis of his false testimony at the original trial. An application to stay the perjury  proceedings, as an abuse of process, failed. This conviction was subsequently quashed by the Court of Appeal. The DPP was granted special leave to appeal to the High Court of Australia. However, the High Court held that the subsequent perjury proceedings were an abuse of the

83

 R v. Carroll,  Carroll, (2002) HCA 55.

84

 Criminal Code Act  Act  (Queensland), § 16-17 (1899).

85

 Wayne Martin, Current Issues in Criminal Justice, Justice , Speech at Rotary District Conference, March 21, 2009.

86

 Supra at 1.

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court process and that they undermined the rule against double jeopardy by challenging the finality of the acquittal for murder.87 Carroll‘s conviction for perjury remained quashed. The majority of the High Court explained that the perjury proceedings p roceedings were ‗vexatious or oppressive in the sense necessary to constitute an abuse of process; in substance there was an attempt to re-litigate re-litigate the earlier prosecution.‘ 88  The High Court also took the view that allowing an exception to double jeopardy, because jeopardy,  because of new evidence, lacked l acked ‗cogency‘. 89 The  public outcry outcr y and community dissatisfaction dissatisf action over the decision in Carroll led to a substantial review of double jeopardy, particularly in Queensland and New South Wales. Queensland Quee nsland Provision s and and New South Wal es Provisions

The rule against double jeopardy is found in section 17 of the Criminal Code Act 1899 (QLD)

and in section 156 of the Criminal Procedure Act 1986 (NSW). These provisions  provisions confirm the common law rule against double jeopardy, most notably espoused by the  the   decision in Carroll.  Carroll.   In 2003, New South Wales passed the Criminal Appeal Amendment (Double Jeopardy) Act 2003 (NSW). Four years later in 2007, Queensland passed the Criminal Code (Double  Jeopardy) Act 2007 (QLD). The exceptions to double jeopardy, provided for in the respective Acts, are very similar. Both states now allow for an acquitted person to be re-tried through an application to the Court of Appeal. The following safeguards exist:  exist:  

  Only one re-trial will be granted;



  The offence must be a very serious offence (i.e. having a head sentence of 25 years or



life);

  The DPP must consent to re-investigations;



  The DPP must apply to the Court of Appeal for a re-trial;



  The evidence must be fresh (not reasonably available at the time of the original trial);



  The evidence must be compelling (likely to result in a conviction when put to a reasonably



instructed jury);

  Presumption in favor of bail for the person being re-tried;



  Certain restrictions on the publication of information about the person being re-tried; and



  The re-trial must be in the interests of justice.



87

 R v. Carroll ,  , (2002), (2002),  118 HCA 55, per McHugh, J.

88

 Id. 114 per McHugh J, Gaudron and Gummow JJ.

89

 Id.

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The Queensland and New South Wales provisions comply with article 14(7) of the ICCPR on the basis that the original acquittals are not ‗final‘.90  Propose Propos ed Victor ian Refor m

Victoria‘s Attorney  Attorney  General, Robert Clarke has recently advocated the reform of double  jeopardy.91 This change has been publicly supported by the father of one of the victims of the Walsh Street police killings. If Victoria introduces exceptions to double jeopardy, in a similar

way to Queensland and New South Wales, it will be interesting to see how the Supreme Court resolves a challenge to the legislation on the basis that it the reform is not rights complaint. In Australia, only Victoria and the Australian Capital Territory (ACT) currently have a human rights charter. Section 26 of the Charter of Human Rights and Responsibilities  Act 2006 (VIC) states that ‗A person must not be tried or punished more than once for an offence in respect of which he or she has already been finally convicted or acquitted in accordance with law.‘92 This provision is a reproduction of article 14(7) of the ICCPR. Under section 7 of the Victorian Charter, all rights are capable of limitation. If there was a Charter challenge in Victoria, the easy solution for the court would be to follow the Human Rights Committee‘s interpretation of article 14(7). This would involve them hanging their hat on the word ‗finally‘ and interpreting it in such a way that allows for an appeal against an acquittal because the matter is not ‗finally‘ litigated. It is hoped by this writer that if the reform is passed and a Charter challenge made, the Supreme Court will constructively engage in a consideration of section 7(2) factors in determining whether the balance between competing rights and interests is met. This will provide significant authority for double  jeopardy reform in the context of Australia‘s human rights rights jurisprudence.  jurisprudence.  South Au stral ia

On the 10th July 2008 the South Australian Parliament passed the Criminal Law Consolidation (Double Jeopardy) Amendment Act 2008. It is applicable for crimes ranging from trafficking in a commercial comme rcial quantity of controlled drugs and aggravated robbery to more serious crimes such as manslaughter and murder. Retrials will be allowed where there has

90

 K. Burton, Double Burton, Double Jeopardy, The Queensland Reform, Reform, Proctor, 21-22, (2008).

91

 Double Jeopardy,  Double Jeopardy, The Age, Age, 6, (2011).

92

 Charter of Human Rights and Responsibilities Act (Victoria), § 26, (2006).

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 been a conviction for an administration of justice offence relating to the original trial or where there is fresh and compelling evidence. The law has been be en introduced retrospectively. 93  Tasmania

On 19 August 2008, amendments were introduced in Tasmania to allow retrial in serious cases if there is ―fresh and compelling‖ evidence.94  Weste Wes terr n Au str ali a

On 8 September 2011, amendments were introduced in the Western Australia Parliament to reform the state's double jeopardy laws. The proposed amendments would allow a retrial if ―new and compelling‖ evidence was found. It would apply to serious offences where the  penalty was life imprisonment or imprisonment for 14 years or more. Acquittal because of tainting (threatening of witnesses, jury tampering, or perjury) perjur y) would also allow retrial.95 

Practice in Russia Twelve years ago, the Russian legal system began using juries as part of an effort to move

away from the former former Soviet legal system of the 1990s. On paper, it drew widespread admiration from government leaders. But scholars and human rights activists say the system still reflects the values of the old communist-era courts, in which a presumption of guilt  prevailed. To them, the jury system's failure to take root, and recent proposals to scale it  back, are part of a broader rollback of democratic practices pract ices and institutions. But, in practice,  juries' decisions rarely stand, leaving the Russian trial by jury an empty check on the State. 96  Russian law does not prohibit double jeopardy, and prosecutors as well as defendants can appeal verdicts. Jury acquittals are almost always appealed. Although the Supreme Co Court's urt's  power to overturn jury verdicts is supposedly curtailed to a limited number of reasons, the 93

 Criminal Law Consolidation (Double Jeopardy) Amendment Act, (2008).

94

 Double Jeopardy Law Reform.  Double Reform. Tasmanian Government Media Releases,

http://www.media.tas.gov.au/print.php?id=24539. 95

 Nicole Cox & Phil Hickey, Attorney Hickey, Attorney General Christian Porter Welcomes Double Jeopardy Law

 Reform,, Perth Now, Sunday Times, September 08, 2011, http://www.perthnow.com.au/news/westernaustralia/  Reform attorney-general-christian-porter-welcomes-double-jeopardy-law-reform/story-e6frg13u1226132121880. 96

 Mark Godsey, Russia: Godsey, Russia: Empty Acquittals And Rampant Double Jeopardy, Jeopardy,

http://lawprofessors.typepad.com/crimprof_blog/2005/11/russia_empty_ac.html.

32

 

 

Court has broadly interpreted its power. For example, Vladislav Kozachenko, who was

recently acquitted by a jury for the third time for a double murder, had his first jury acquittal in September 2004 overturned because the judge had not notified a relative of one of the victims of his right to make a final statement to the jury, which voted 11 to 1 to acquit. In Russia, a jury verdict is decided by a majority vote of the panel. The second acquittal, in April, was overturned because of errors in the judge's charge to the jury, which had been unanimous in finding Kozachenko not guilty. After the 8-to-4 vote in favor of the defendant in November 2005, Kalikanova, the lead prosecutor, said she had discovered that some jurors on the panel had ''concealed certain information about themselves, criminal records, and  previous service in the police." The discovery of such information after a trial is frequently invoked in appeals to the Supreme Court. 97  This shows how double jeopardy is rampantly used in Russia. Until Jul y 2002, individuals in Russia who were found innocent of criminal charges could be (and often were) held in jail and retried on the same charges. This practice of double  jeopardy, was then forbidden by Article 405 of Russia‘s new criminal criminal procedure code. Prosecutors and police but complained about their inability to retry suspects on the same charges, and they sought to get around the ban by bringing ostensibly different (but in reality much the same) charges against those who had been acquitted. Although higher courts tended to discourage blatant attempts to circumvent Article 405, the protection against double  jeopardy was difficult to enforce thus.98 

The Russian Government in 2008 submitted an amendment to the Criminal Procedure Code that allowed for retrials in criminal cases that end in acquittals. According to proposed changes, acquittals could be overturned in cases where proper procedures were not followed in the selection of the judge, lawyers or jury in a trial or where either side in the trial had been  prevented from exercising its rights. The Bill was to amend Article 405 of the code, which  prevented someone tried and acquitted from facing double jeopardy. The amendment was the result of a decision by the Constitutional Court in May 2005 that declared Article 405

97

 Peter Finn, In Finn, In Russia’s Courts Double Jeopardy Can Be The Rule, Rule, Washington Post, November 1, 2005.

98

 Mark Kramer, Rights Kramer, Rights And Restraints In Russia’s Criminal Justice System, System , PONARS Policy Memo 289, 5,

(April 09, 2013), http://www.ponarseurasia.org/sites/default/files/policy-memos-pdf/pm_0289.pdf.

33

 

 

unconstitutional.99 In that case, the Court‘s view was that Article 405 of the Code of Criminal Procedure of the Russian Federation was unconstitutional to the extent that it did not allow material violations that led to incorrect resolution of the case to be eliminated during the review of a judicial decision by way of supervision on the appeal of the victim or representative thereof or on the submission of a procurator. The Court added that ―material violations‖ were those those violations that fell under the criteria provided for by Article 4(2) of Protocol No.7 to the Convention on the Protection of Human Rights and Fundamental Freedoms.100  Practice in Japan

Japanese law does ban double jeopardy. The Constitution of Japan states in Article 39 that, ―No person shall be held criminally liable for an act which was lawful at the time it was committed, or of which he has been acquitted, nor shall he be placed in double jeopardy.‖ However, the Supreme Court decided on September 27, 1950 that trials in District Court, Higher Court and the Supreme Court for the same offence constitute a single  jeopardy.101 Thus, there exists no double jeopardy where the prosecutor appeals the acquittal at the District Court. There have been many cases where this case law was challenged, but the Court has constantly upheld the decision. It was not even considered as an issue in the recent reform efforts. Thus, only the acquittal in the Supreme Court is the final acquittal which  prevents any further retrial. This process sometimes takes decades. The above is not considered a violation of the Constitution. Because of Supreme Court precedent, this process is all considered part of a single proceeding. 102  Two recent high-profile exonerations have reignited calls by defense lawyers to require the full disclosure of evidence, and to let verdicts handed down by lay judges‘ stand.  stand.  The lawyers for Nepalese Govinda Govinda Prasad Mainali, who on November November

7 was finally

exonerated in absentia of a 1997 robbery-murder, went a step further and slammed the Japanese practice of allowing prosecutors to appeal acquittals something which the other 99

 Double Jeopardy Rule Amended In Russia, Russia, Legalbrief Today,

http://www.legalbrief.co.za/article.php?story=20080124081506406 http://www.legalbrief.co.za/article.php?story =20080124081506406 . 100 David

Sloss, The Role of Domestic Courts In Treaty T reaty Enforcement, 416, Cambridge University Press, (2009).

101

 Kana Sasakura, Double Sasakura,  Double Jeopardy And The Japanese Law, Law, http://wrongfulconvictionsblog.org/tag/double-

 jeopardy/. 102

 Wikipedia, Double  Wikipedia,  Double Jeopardy, Jeopardy, http://en.wikipedia.org/wiki/Double_jeopardy#Japan (last updated April 09,

2013).

34

 

 

countries ban as double jeopardy. The Tokyo District Court acquitted Mainali in April 2000,  but prosecutors appealed, and the Tokyo High Court using the same evidence sentenced him to life for killing a woman employed by Tokyo Electric Power Co. who was moonlighting as a prostitute. Mainali served 15 years in prison before being cleared in a retrial based on evidence prosecutors had from the get-go get- go but didn‘t present. That evidence was crucial  because it indicated the woman was killed by someone other than Mainali. Mainali was freed in June and promptly deported. 103 

Then there was the case of ex-Democratic Party of Japan powerbroker Ichiro Ozawa, who was put through mandatory indictment for allegedly conspiring to falsify his political funds records. Prosecutors declined to press charges due to lack of evidence, but special public inquest panels set up to scrutinize the maverick politician decided twice to have him forcibly indicted. Lawyers appointed by the court to act as the prosecutors tried Ozawa before the Tokyo District Court and lost. They then appealed to the high court, which on Nov. 12 upheld his acquittal. Ozawa‘s counsel criticized the court-appointed court -appointed lawyers for appealing the ruling, which resulted in the acquitted man‘s name being dragged through the press for several months as a perpetual defendant. 104  The prosecutor‘s right to appeal has been taken for granted granted in Japan and is not a tradition likely to be easily ended. The Supreme Court has said in its decision on a lay judge trial that appellate courts must provide concrete reasons to support the overturning of an acquittal. This landmark decision though, may slowly help change the attitude of prosecutors and courts toward appeals filed by the state. 105 

Double jeopardy has actually been the subject of debate for a long time, because the criminal  procedure law stipulates that both prosecutors and defendants have the right to appeal. And Article 39 of the Constitution effectively states that no one should be held criminally liable for an act that was lawful at the time it was committed, or for which an acquittal has been declared, and no one should be placed in double jeopardy. Defense lawyers have challenged the constitutionality of appeals filed by prosecutors, but in 1950 and thereafter, the Supreme Court has handed down judgments that upheld that right. 103

Setsuko Kamiya, Double Kamiya, Double Jeopardy Practice Scrutinized ,

http://wrongfulconvictionsblog.org/2012/12/06/double-jeopardy-and-the-japanese-law/#more-8061. 104

 Ibid.

105

 Ibid.

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The top court has basically reckoned that one ―jeopardy‖ continues until a case is finalized. It means that as long as the system allows three levels of trials, it‘s a matter of course for  prosecutors to appeal not-guilty verdicts as well as cases where the prison term is much shorter than what prosecution demanded,‖ dem anded,‖ unless they conclude that winning a reversal is 106 unlikely.  

The main problem that is faced in the Japanese legal system is that the judges are so used to handing down convictions, sometimes when they face cases where they think there are doubts, those those judges don‘t know whether an acquittal is merited. The judges around them share the same mindset, and no one recommends an acquittal, so they end up convicting. Even if a judge who has doubts hands down a not-guilty verdict and that case ends up being overturned by a higher court, the judge regrets handing down the acquittal based on doubts, and instead stops handing down acquittals. This is one problem that stems from allowing double jeopardy. The February 13 decision by the Supreme Court regarding how high courts should handle appeals though, may reduce the reversal of acquittals.107 In that case, the top court overturned a high court reversal and upheld a lay judge acquittal in a case involving a man indicted for allegedly smuggling stimulants into Japan. In its decision, which became its first judgment on how an appeals court should operate, the Supreme Court said the high court must provide concrete proof that the lower court ruling was irrational in terms of ―logical consistency and common sense‖ to r eeverse verse a district court ruling on grounds of factual error. 108  The case involved a 61-year-old man who allegedly smuggled about 1 kg of stimulants from Malaysia to Japan. Six lay judges and three professional judges at the Chiba District Court gave the man the benefit of doubt and acquitted him in June 2010. They accepted his argument that a client gave him canned chocolates as a souvenir for his friend and he was not aware the  package contained stimulants.

Therefore, when it becomes the norm for prosecutors to follow the Supreme Court‘s

 judgment and stop appealing acquittals, then revising the law in order to ban such appeals

106

 Shiyuan Huang, Bids Huang, Bids To Reverse Acquittals Risk Invalidating The Lay Judges’ Role, Role, The Japan Times,

December 04, 2012. 107

 Ibid.

108

 Ibid.

36

 

 

may finally become possible but that‘s still going to take a long time and till then Japan will keep circumventing the double jeopardy law.