Sunday, 23 January 2022

Double Jeopardy

 Principles of sssDouble Jeopardy in Indian Law

By Shreya Verma

Double jeopardy is a principle of common law that relates to the rights of the person who has been convicted or acquitted for an offence. It is believed to have been originated from the ancient Roman law which lays down the principle 'non bis in idem' which means, 'not twice against the same'. legal Maxim'. It is a sort of legal defence available in the hands of the defendant once he is presented before the court that he has already been punished and must not be vexed again for the same matter. It is used as a peremptory plea of autrefois acquit ('previously acquitted') or autrefois convict ('previously convicted'). The legal maxim ‘Nemo debet bis vexari' which means that no one shall be tried twice for the same offence aptly defines the meaning of the maxim.

Double Jeopardy in Indian Law:

The constitution of India guarantees protection against double Jeopardy as a fundamental right, enshrined under Article 20 (2) of the constitution. It states that:

CONSTITUTIONAL PROVISION-: Art. 20(2): “No person shall be prosecuted and punished for the same offence more than once.”

 The policy behind the concept of double Jeopardy is that, the life and the personal liberty of a person can be curtailed only in accordance with the procedure established by law. For example, the maximum punishment for theft provided in Indian Penal Code is 3 years, so if a person has already been sentenced for 3 years then punishing him again would amount to putting an excessive restrain upon the life and personal liberty. It is violative of Article 20(2) as well as Article 21 of the constitution.

PROVISION UNDER CRIMINAL PROCEDURE-: Section 300 Criminal Procedure code: “Person once convicted or acquitted not to be tried for same offence:

(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 different charge from the one made against him might have been.”

As per the provision of Section 300, if accused has been tried and have been either convicted or acquitted after trial, if not set aside by the court, the judgement continues in force and it is reasonably expected that the accused will not be tried again in the same court or in any other court as long as the judgement remains in force. However, this does not bar the appellate court to hear and try the matter if required. 

The key difference between the above provisions is that, Article 20(2) prevents double jeopardy by preventing subsequent punishment and Section 300 CrPC prevents double jeopardy by preventing subsequent trial for the same offence. It is not that all the cases of Section 300 CrPC are attracted by the Art. 20 (2)’s constitutional provision as, Article 20 (2) deals only with those cases where there has been previous conviction, so, where there was a trial but the accused was released then the provision of Art. 20(2) will not apply. In this sense, Section 300 CrPC has broader perspective as it talks about the trial, irrespective of conviction or acquittal of the accused. However, the broad spirit between the two is the same i.e., to protect a person from being put in into peril more than once for the same offence.

The principle of double jeopardy ensures judicial certainty and unnecessary multiplicity of proceedings by disallowing subsequent trial for the same offence. Moreover, it guards the accused from being unnecessarily vexed more than once for the same offence.


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