Short Speech on ‘Protection against Double Jeopardy’

If a man is charged again for the same offence In an English Court, he can plead, as a complete defense to his former acquittal or conviction, as the case may be. In Indian Constitution Article 20 (2) lays down, “No person shall be prosecuted and punished for the same offence more than once.” This section contains the Indian version of the rule against double jeopardy.

The roots of this principle, are to be found in the settled rule of common law maxim, “Nemo debet bis vaxar C’, which means that a man must not be put twice in peril for the same offence. Where a person has been convicted of an offence by a court of competent jurisdiction, the conviction is a bar to all further criminal proceedings for the same offence. The idea is that no one ought to be twice punished for one offence or for the same cause.

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In Kalawati v. State of Himachal Pradesh, AIR 1953 S.C. 131, a person accused of committing a murder was tried and acquitted. The State preferred an appeal against the acquittal. It was argued on behalf of the accused that due to Article 20 (2), the State is debarred from preferring an appeal.

The Supreme Court rejected the argument and held that Article 20 (2) does not apply when there is no punishment for the offence as a result of prosecution, and further, an appeal against acquittal is in substance, a continuation of the prosecution.

Article 20 (2) will have no application where punishment is not for the same offence. Thus, if the offences are distinct, the rule of double jeopardy will not apply. In Leo Roy v. Superintendent, Dist. Jail, 1958 S.C. 119, a person was prosecuted and punished under Sea Customs Act, and was later on prosecuted under Sea Customs Penal Code for criminal conspiracy. It was held that second prosecution was not barred since it was not for the same offence.

In State of M.P. vs. Veereshwar, AIR 1957 S.C. 592, it has been held that Article 20 (2) does not apply where a person Is prosecuted and punished for the second time and subsequent proceeding Is a mere continuation of the previous proceeding, e.g., in a case of an appeal against acquittal.

In A.A. Mulla v. State of Maharashtra, AIR 1997 S.C. 1441, the appellants were charged under section 409, I.P.C. and Section 5 of the Corruption Act for making false Panchanama disclosing recovery of 90 biscuits although according to prosecution case, the appellant had recovered 99 biscuits. On the ground that the prosecution had failed to prove misappropriation, the appellants were again tried under the Customs Act and Foreign Exchange Regulations Act.

The appellants challenged the validity of second trial on the ground that it was violative of Article 20(2) of the Constitution. The Supreme Court held in this case that the second trial was not barred as not only the ingredients of the offence of two trials were different but the factual situation of offences in the first and second trial was also different.

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