DOUBLE JEOPARDY

AUTHOR : LIPI SHARMA

A historical common rule prohibition on multiple trials is known as double jeopardy or stated as the person once committed cannot be tried for same offense.

The doctrine of double jeopardy has been conceptualized in the constitution of India under article 20(2) which clearly states that no person shall be subjected to the same offense or to be put twice in jeopardy of life or limb. It has been enshrined as part of the fundamental right by the fathers of our constitution under part III.

Double Jeopardy has been taken from well- established maxim of the English Common Law “Nemo Debet Bis Vexari” meaning that a man must not be put twice in peril for the same offense.

Ingredients applicable for double jeopardy rule

• A person must be accused of an offense. The word ‘offense’ as defined in General Clauses Act means any act or omission made punishable by law for the time being in force.
• The proceeding or prosecution must have been taken place before a court or judicial tribunal.
• The person must have been prosecuted and punished in the previous proceeding.

It is a procedure that forbids the prosecution of an offense for an unlawful offense.

Double Jeopardy arises when a person is punished twice for the same offense. In many countries double jeopardy, a constitutional right is protected while in other countries it is not. The underlying view of the Anglo-American System, double jeopardy can be a state when a person or an individual is subjected to shame, embarrassment, and compelling them to live in a continuous situation of anxiety insecurity and enhancing the possibility that although they might be innocent.

The state may find them guilty. It also increases the risk of wrong conviction. Post acquittal retrials encourages the threat of wrongful conviction of justice in a situation where there is a weak case offered.

Most of the defendants having already involved in a lengthy and demanding trial, may lack the resources needed to stand strong and defend a retrial. In such a case, the prosecution will have a direct or indirect benefit at the retrial making a high probability of the justice convicting the offender unfairly.

Whereas the existing advantages will make it easier for the discharge of the burden of evidence and highlights the need of judicial awareness when considering applications on the basis of statutory exclusion to the principle. Hence, there is a need to discourage double jeopardy or the practice of the re-trials unless there is a fresh and compelling proof.

Therefore, legal advisors on double jeopardy state that retrials would contribute a significant encroachment on the fundamental process right of the accused. In many cases, an accused may lack resources to fight for a second chance, He is pre-disposed to lose as a compared to the first trial due to the disclosed defence at the first trial.

If the double jeopardy clause was used to bar parallel federal prosecution, the defendant in this situation would be free regardless of the overwhelming evidence of his involvement in the crime. That is the criminal justice system in the country would have exercised a great level of injustice. While the double jeopardy clause is used to protect an accused form embarrassment insecurity and anxiety using it to protect parallel state and federal prosecutions.

For example

In the case of Lemrick Nelson Jr. , justice would not have been served if the verdict of the first trial was allowed to stand . The different interests of the federal law enforcement in the case resulted in the eventual conviction of Nelson who was guilty of the alleged crime. Consequently, due to these different interests of the state and federal government in the case justice was served.

CASE LAWS

Kalawati Vs  State of Himachal Pradesh

In this case a person accused of committing was tried and acquitted. The state preferred an appeal against the acquittal. The accused could not plead article 20(2) against the state preferring an appeal against the acquittal. Article 20(2) would not be applicable as there was no punishment for the offense at the earlier prosecution.

P. Dahiya Vs Union of India

It was held that if the accused was neither convicted nor acquitted of the charges against him in the first trial, his re-trial would not constitute double jeopardy and in the case of State of Rajasthan Vs Hat Singh, it was said that prosecution and other punishment under two sections of an act, the offenses under the two sections being different from each other does not amount to double jeopardy.

State of Haryana Vs Bhagwant Singh

In this case, court held that the prohibition under article 20(2) is not applicable to the departmental proceedings.

Mohammad Ali Vs Sri Ram Swaroop

In this case the court held that in cases of continuing offense, each day is counted as a fresh offense and each can be punished separately. So double jeopardy doctrine is not permissible in continuing offense.

Bhagwant Swarup Vs State of Maharashtra

It was held that the second prosecution as well as the punishment should be regarding the same offense for which the person has been prosecuted and punished before and article 20(2) is applicable. The same offense here means that the ingredients that the ingredients of the offense are same. It does not apply to different offenses committed by the same act of the person.

CONCLUSION

Every defendant has the right to at least one appeal after conviction. If the conviction is reversed on appeal for insufficient evidence it is treated as an acquittal and further prosecution is not permitted.

Therefore, the concept of double jeopardy of clause (2) of article 20 of the constitution of India does not stand as a bar to hold a departmental enquiry either before the commencement or after the conclusion of the criminal prosecution.

Double Jeopardy is a powerful tool for protection against governmental abuse and if it applies to your case it can make all the difference!!