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PERSON ONCE CONVICTED CANNOT BE TRIED FOR SAME OFFENCE

PERSON ONCE CONVICTED CANNOT BE TRIED FOR SAME OFFENCE

Author : Khwaish Dhingra

ABSTRACT

The Principle of “Double Jeopardy” means the person once convicted for an offence cannot be convicted or tried for the same offence again. It is a legal term. This Principle of Double Jeopardy is known as “Autrefois Convict” means person cannot be convict or tried again and again for the same offence or it also means “previously convicted” and “previously acquitted” for the offence. As this is the fundamental right provides us in the constitution of India. But This Rule of Double Jeopardy also has some exceptions not in all the situations where person is tried for the same offence is called Double Jeopardy. And there are three provisions in India which deals with the Rule of Double jeopardy.

INTRODUCTION

Jeopardy means danger of law being tried for the criminal offence. Double jeopardy means when anyone is convicted or tried for the same offence more than once. Our constitution provides Fundamental Right under Article 20(2) that the principle of Autrefois convict commonly known as the principle of Double Jeopardy which means that the person once convicted for an offence cannot be tried for the same offence again.

This Principle of Double Jeopardy is based on the maxim if English law “nemo dedet bis vexari, si constat curie quod sit pro una iti eadem causa” It means that no person will be tried twice if it proves that the person once convicted for the offence.

As the of “audi alterum partem rule” also followed here which means the person cannot punished for the same offence more than once. If a person is convicted more than once then the principle of Double Jeopardy applies here.

As If we do any mistake then also we punished for that mistake only once. So as same like the accused if they do any offence then they will be punished for that offence only once that was their fundamental right they don’t be punished for the same offence more than once. As they already convicted for that offence. So this the principle of Double jeopardy that a person for doing an criminal offence convicted only once they not convict for the same offence again and again. In India their was three provisions which deals with Double jeopardy first is Article 20(2) of the constitution of India, second in section 300 of Code of Criminal Procedure and the third one in section 26 of General Clause Act.

Firstly in India the Principle of Double Jeopardy was enacted under the Section 26 of the General Clause Act, 1897 where from any omission constitute any offence under more than one enactments, then the person or offender can be Punished in any one of the enactments, but not be punished in both the enactments[1].

As the like this same as Section 300 of the Code of Criminal Procedure, 1973 provides protection to offender from Double Jeopardy as,

Section 300 of Crpc, A person who has once been tried by a court of competent Jurisdiction for an offence and that the person was either convicted or acquitted of that offence, at the formal trial. That such conviction or acquittal still remains in force when a subsequent proceeding has been brought against him or that at the subsequent proceeding he is being tried again, for the same offence or on the same facts for any other offence for which a different charge might have been made under Sec 221(1) – 221(2) not be entitled to be tried for the same offence again[2].

And in Article 20(2) of Constitution of India the Principle of Double Jeopardy is provides as the fundamental right of a person who is acquitted It was taken from the U.S. Constitution It was added by the fifth amendment in the U.S. constitution which says that a person is not put in the jeopardy twice.

As like that in Indian laws it was said that no person can be prosecuted or punished more than once for the same offence[3]. The protection provides in India against Double Jeopardy is lower then the Protection provides against Double Jeopardy in American and British Law.

As in American law or British law the protection from Double Jeopardy is provided no matter the person is acquitted  or convicted but Under Article 20(2) of Constitution the protection of Double jeopardy is provided only when the person is acquitted as well as punished/convicted for the same offence.

As in the case of “Yusofalli Mulla Noorbhoy v. R.[4]” the court explained the common law of autrefois acquit and autrefois convict.  Court says it was applied only when it was first trial3ed against the competent court and the valid order of acquittal and conviction was passed.

But the Principle of Double Jeopardy also has some restrictions and the principle of Double Jeopardy has not been applied on the continuing offences.

In the case of S.A. Venkataraman v. Union of India[5] In this case firstly the enquiry was made under Public service enquiry Act and than the appellant was executed under IPC and under the prevention of corruption Act. So the Court held that the principle of double jeopardy is not applied here because the enquiry was only a mere trial. A person must be acquitted or convicted for applying the principle of Double jeopardy.

As like that in many cases the double jeopardy principle is not applied like court says if the offence is distinct the principle of Double jeopardy is not applied[6]. And if it is there are evidence of two other offences was their then the person is convicted for both the offences. As like this there are many cases in which the principle of Double jeopardy is not applied.

CONCLUSION

This rule of Double Jeopardy is originated to protect the criminal justice system so that the person who convicted for the offence cannot be tried twice for the same offence by this principle the principle of Natural justice also protected. It originated so that the accused also have right to live a life after getting convict for an offence.


[1] Section 26 of General Clause Act, 1897

[2] Section 300 of Code of Criminal Procedure, 1973

[3] Article 20(2) of Constitution of India

[4] AIR 1949 PC 264

[5] AIR 1954 SC 375

[6] Leo Roy v. Superintendent District Jail