Date: 30 November, 2020
by Shwas Bajaj, UILS, Panjab University
Clause (2) of Article 20 of the Constitution of India provides protection against “double jeopardy”. The Clause provides that: “No person shall be prosecuted and punished for the same offence more than offence.” It is based on the Common Law Maxim “Nemo debet bis vexari”.
This Clause enacts the well-known principle of criminal jurisprudence that “no one shall be put in jeopardy twice for the same offence.”
The object of this doctrine is to avoid the harassment which must be caused to a person for successive criminal proceedings where only one crime has been committed.
The provision of Article 20(2) is identical with the English doctrine of autrefois convict which is also embodied in Section 300 of the Cr.P.C., 1974.
ESSENTIALS OF DOUBLE JEOPARDY
The protection contained in Article 20(2) would be available only if the following essentials are complied with-
1. The person must be accused of an “offence”:
The term “offence” means “any act or omission made punishable by any law for the time being in force”.
2. The person must have been prosecuted before a Court or a judicial tribunal:
The term “Prosecution” means initiation or starting of any proceeding, criminal in nature, before a court, or a judicial tribunal. It means that Article 20(2) would have no application where the proceedings are held under any executive authority like a revenue authority.
3. The person must have been punished after the prosecution before a Court or a judicial tribunal:
The protection against double jeopardy would be available only when the accused has been not only prosecuted but also convicted, i.e., punished after such prosecution. Therefore, if there is no punishment for the offence as a result of the prosecution, Clause (2) of Article 20 would have no application. Both prosecution and punishment must co-exist for the operation of Article 20(2). It, thus, follows that where a person having been prosecuted for an offence is acquitted, he can be prosecuted for the “same offence” again.
It must be noted that an appeal against an acquittal is, in substance, a continuance of prosecution. A prosecution starts at the Court of first instance and concludes at the final Court of appeal.
4. The person must be prosecuted for the second time before the a Court or a judicial tribunal:
Article 20(2) would have no application where the person is prosecuted and punished for the second time, but the subsequent proceeding is merely the continuation of the previous proceeding, as is the case of an appeal against acquittal or an appeal against conviction.
5. The “Offence” must be the same in both the proceedings:
When one and the same act of a person constitutes two different offences, the punishment for one offence does not bar the prosecution for the other offence. It may be noted that offences may be distinct although some ingredients of the two offences are common.
To attract the provisions of Article 20(2), the ingredients of the offences in the earlier case as well as in the latter case must be the same and not different. The test to ascertain this is not the identity of the allegations but the identity of the ingredients of the offence.