Introduction:
Criminal law serves the purpose of maintaining law and order by providing predictability. It protects individual rights. Criminal law makes it possible to resolve conflicts and disputes between quarreling citizens. It provides a peaceful, orderly way to handle grievances. It also provides protection, to society from criminals, who inflict harms to others. For this there are penal laws which prohibit doing of certain acts by declaring those as offences and punishable with penalty. To put in other words, Criminal law deals with offences and helps to protect the society from falling into the state of anarchy.
This part of law is substantive law but for implementing it someone is to be authorized who can punish the guilty by adopting certain specified procedure. This aspect is dealt with by other part of law i.e. procedural law.
Procedural law provides machinery for the implementation of substantive criminal law. In absence of procedural laws, the substantive laws are of no use. Without it no one will be able to know the way how the offenders will be prosecuted and by whom. In fact both the laws are complementary to each other. The procedural law is contained in Code of Criminal Procedure 1973. (hereinafter referred as Cr.P.C.)
The main objective of criminal procedure is to provide a fair trial to the accused by taking into consideration the principles of natural justice and to carry out the spirit of Article 22 of the Constitution. There are various processes that need to be followed to administer justice. It includes pre-trial procedure and procedures for various trials. Trial procedure is initiated by taking cognizance of offence and then by beginning of proceedings and finally arriving a decision by following the procedure laid in the code.
Autrefois acquit and autrefois convict are French terms. “Autrefois” means once or formerly. Accordingly, autrefois acquit and convict means formerly or once acquitted or convicted. Both the terms relate to the concept of double jeopardy. Double jeopardy prosecution or punishment for the person twice for the same offence. I will delve deep into this topic in the later section of the essay.
Meaning of Autrefois Acquit and Autrefois Convict
Autrefois Acquit and Autrefois Convict are french terms meaning “previously acquitted” and “previously convicted” respectively. These terms owe their birth to the common law systems where they have been accepted as doctrines that govern criminal trials. Autrefois Acquit refers to that a person cannot be put on a trial for an offence, he has been previously acquitted for, similarly, Autrefois Convict refers to that a person cannot be put on trial for the same offence, he has been previously convicted for. The combination of both the doctrines gave birth to the Rule against double jeopardy. This Rule refers to that a person cannot be tried for the same offence again if previously he has been either convicted or acquitted.
The rule of double jeopardy is based on the principle that once a person convicted or acquitted cannot be subjected to a criminal prosecution for the same offence. The terms ‘autrefois acquit’ and ‘autrefois convict’ mean previously acquitted and previously convicted respectively which have been accepted as doctrines that govern the field of criminal trials. In fact, Article 20 of the Constitution of India, 1950 protects in respect of conviction of offences. Article 20(2) contains the rule against double jeopardy which enumerates that no person shall be convicted for the same offence more than once which has in fact been borrowed from the 5th Amendment of the US Constitution. Likewise, the Cr.P.C. inculcates the principle of autrefois convict as well as autrefois acquit which has a wider reach under the criminal jurisprudence, whereas, Article 20 of the Constitution of India, 1950 outlines general rule against double jeopardy.
History of Double Jeopardy
There is no unanimity of opinions regarding the origin of double jeopardy principle since it obscure in the mists of time. It is a centuries old principle, and it has been rightly observed that the history of double jeopardy is the history of criminal procedure . The rule is considered to have its origin in the controversy between Henry II and Archbishop Thomas Becket in 12th century[1] . At that time two courts of law have existed, the royal and the ecclesiastical. The king wanted the clergy subject to be punished in the royal court even after the ecclesiastical court punished him. Becket relied on St. Jerome’s interpretation of Nahum and declared that the ancient text prohibitted “two judgments”[2] . He had viewed that the repeated punishments would violate the maxim nimo bis in idipsum that means no man ought to be punished twice for the same offence. Followed by the dispute, King’s knights murdered Becket in 1170, and despite of this King Henry exempted the accused from further punishment in 1176. This concession given by King Henry is considered as responsible for the introduction of the principle in English common law. In the twelfth century, the res judicata doctrine had been introduced in English civil as well as criminal law due to the influence of teachings of Roman law in England. During the thirteenth and part of the fourteenth centuries, a judgment of acquittal or conviction in a suit brought by an appellant or King barred a future suit. During the fifteenth century, an acquittal or conviction on an appeal after a trial by jury was a bar to a prosecution for the same offence. The sixteenth century witnessed significant lapses in the rational development of the rule partly due to the statute of Henry VII, by totally disregarding the principle. Further, it was during that period the famous Vaux’s case was decided to the effect that a new charge could be brought even after a meritorious acquittal on a defective indictment. The last half of the seventeenth century was the period of enlightenment regarding the significance of the rule against double jeopardy. Lord Coke’s writings contributed to it partly and of course, the rest was due to the public dissatisfaction against the lawlessness in the first half of the century. It is only by seventeenth the century, the principle of double jeopardy seems to have developed into a settled principle of the common law[3] .
During the eighteenth century, the extreme procedure was generally followed. It should be noted that, in eighteenth century, Blackstone stated thus:
“First, the plea of autrefois acquit, or a former acquittal, is grounded on this universal maxim of the common law of England, that no man is to be brought into jeopardy of his life for more than once for the same offence and hence it is allowed as a consequence that when a man is once fairly found not guilty upon any indictment or other prosecution, before any court having competent jurisdiction of the offence he may plead such acquittal in bar of any subsequent accusation for the same crime.”[4]
Until the nineteenth century, the accused was provided with virtually no protection against a retrial when he or she was discharged due to a defect in the indictment or a variation between what was alleged and proved[5].
It must be noted that Continental law recognised the principle of double jeopardy. Article 360 of the Napoleonic “code d’instruction criminalle” provided that, “No person legally acquitted can be a second time arrested or accused by reason of the same act.” In Spanish law also, there were references to double jeopardy in the thirtieth century. It is noteworthy that both the Continental as well as the Common law have adopted the doctrine from the common source of Canon law. The origin of the maxim that, “not even God judges twice for the same act” was present in church canons as early as 847 A.D. The protection under the rule was also available in Roman law. As per the Justinian Code, “He who has been accused of a crime cannot be complained of for the same offence by another person.”[6]
The classical argument for the need of maintaining the rule is apparent in the observation of the court in Green v. United States[7]. The Court observed thus:
“The underlying idea… is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offence, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.”
The protection given under this rule has gained international recognition also through various international documents[8]. Today, almost all civilized nations incorporate protection against double jeopardy in their municipal laws. While some of these countries have provided the protection through their constitution and others have incorporated it into their statute law[9].
Doctrine of Autrfois convict under Article 20(2) of the Constitution of India
The fundamental right which is guaranteed in article 20(2) enunciates the principle of “autrefois convict” or “double jeopardy”. The roots of that principle are to be found in the well established rule of the common law of England “that 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.”[10] To the same effect is the ancient maxim “Nemo bis debet punire pro uno delicto”, that is to say that no one ought to be twice punished for one offence or as it is sometimes written “pro eadem causa”, that is, for the same cause.
Rule Against Double Jeopardy in Indian Criminal Jurisprudence
Black’s law dictionary defines Double Jeopardy as: – A second prosecution after a first trial for the same offense. Double Jeopardy follows the principle of Nemo Debet Bis Puniri Pro Uno Delicto which means no man ought to be punished twice for one offense[11].It would be fair to say that the right against double jeopardy has been provided in all progressive states in the world. In United States of America, the 5th schedule contains double jeopardy clause[12] which gives right against double conviction for a same crime.[13]
Laws in India and standard test followed in USA
Constitution of India guarantees right against double jeopardy under article 20(2) which states as under:
“20(2) :No person shall be prosecuted and punished for the same offence more than once[14].”
General Clauses Act, 1897 also provides protection against double jeopardy. Though the specific section is not very well drafted but it does maintain that if a person deserve to be prosecuted due to an act or omission under two or more enactment, then the offender should be punished under any of those provisions [but not under both].[15]
Section 26 of General Clauses act reads as under:
“About Provision as to offences punishable under two or more enactments:Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence.”[16]
In State of Rajasthan v. Hat Singh[17] case this Court discussed the doctrine of double jeopardy and Section 26 of the General Clauses Act to observe that prosecution under two different Acts is permissible if the ingredients of the provisions are satisfied on the same facts. While considering a dispute about the prosecution of the Respondent therein for offences under the Mines and Minerals (Development and Regulation) Act 1957 and Indian Penal Code, the apex Court in State (NCT of Delhi) v. Sanjay[18] held that there is no bar in prosecuting persons under the Penal Code where the offences committed by persons are penal and cognizable offences.
The apex court in The State of Maharashtra vs Sayyed Hasan Syed Subhan has observed “Where an act or an omission constitutes an offence under two enactments, the offender may be prosecuted and punished under either or both enactments but shall not be liable to be punished twice for the same offence. The same set of facts, in conceivable cases, can constitute offences under two different laws. An act or an omission can amount to and constitute an offence under the IPC and at the same time, an offence under any other law”.[19]
On the same lines section 300 of Code of Criminal Procedure, 1973 (hereinafter referred as Cr.PC) provide protection against double jeopardy. It reads as under:
Section 300:- 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 made under sub-section (1) of section 221, or for which he might have been convicted under sub-section (2) thereof.”[20]
The Supreme court of India in Kolla Veera Raghav Rao cas[21]e has affirmed that Section 300(1) CrPC is wider in its scope than Article 20(2)[22] of the Constitution. While Article 20(2) of the Constitution only says that “no person shall be prosecuted and punished for the same offence more than once”, Section 300(1) Cr.PC[23] states that no one can be tried and convicted for the same offence or even for a different offence but on the same facts.
Double Jeopardy clause under article 20(2) of Indian Constitution is closely similar to 5th amendment[24] of United States [specifically the double Jeopardy clause in it]. Also, the definition and scope of double jeopardy in India is greatly covered and defined under section 300 of Cr.PC, similarly in US, almost a same type of procedure was first evolved as element test[25]in the case of Blockburger v. United States.[26]
Essentials of Double Jeopardy
As it is very clear from the cases mentioned above that one can take the defence of double jeopardy when one is convicted again for a same crime having same elements of prosecution. If a person who has been prosecuted based on same facts but in an offence having different elements of crime, he would not be able to claim a defence under article 20(2) or section 300 of Cr.PC or Section 26 of General Clauses Act, 1897.
By now, it is certainly clear that the scope of Section 300 in Cr.PC is much wider than article 20(2) of Indian Constitution. But, applying the same principles of Hart’s theory of primary and secondary, it is the constitution in article 20(2) that empowers Section 300 or Cr.PC and section 26 of General Clauses Act.
As mentioned before, the supreme court in Kolla Veera Raghav Rao case has already observed that the scope of section 300 is wider[27] than article 20(2) and it is important to notice that the even though section 300 provides wider definition of double Jeopardy, it does also ensures some protections under Cr.PC. The bare reading of section 300 clarifies that, based on same facts of a case, a separate charge cannot be framed by prosecution. Also, if the elements of a crime is same as that to, for which the accused is being prosecuted, the accused cannot be held guilty or a separate charge cannot be initiated against that person.
On the contrary, it is also important to know that if the elements of an offence are different from which the accused is being charged, then he will not be able to please defence under section 300 of Cr.PC as it clearly lays down the condition that a person can be prosecuted based on same facts, if an offence involve different elements that satisfies different charge under a penal law.
Having said that, it is also important that the matter should be tried by a competent jurisdiction for an offence. And that authority itself should decide about the conviction or acquittal of an accused. In Assistant Collector of Customs v L. R. Malwani[28] that the proceeding before the Sea Customs authorities was not a “prosecution” and the order for confiscation was not a “punishment” inflicted by a Court or judicial tribunal within the meaning of Art. 20(2) of the Constitution and hence his subsequent prosecution was not barred.
Double jeopardy protection under Indian law
In India, the protection against the double jeopardy is a constitutional[29] as well as a statutory guarentee.[30] The principle has also been recognized under the provision of General Clauses Act.[31] The Constitution of India recognize only autrefois convict whereas the Code of Criminal Procedure, 1973 incorporates autrefois acquit as well. The rule against double jeopardy has been recognized as a fundamental right in the Constitution of India. A person can claim fundamental rights against the state and the state can abridge those rights only to the extent laid down. Even though its origin can be trace back in the common law principles, the ambit and content of guarantee are much narrower than those of the common law in England. Under Indian law, when a person has been convicted of an offence by a court of competent jurisdiction, the conviction serves as a bar to any further criminal proceeding against him for the same offence. The most important thing to be noted is that, sub-clause (2) of Article 20 has no application unless there is no punishment for the offence in pursuance of a prosecution.
Under the provisions of the Indian Constitution, the conditions that have to be satisfied for raising the plea of autrefois convict are firstly; there must be a person accused of an offence; secondly; the proceeding or the prosecution should have taken place before a ‘court’ or ‘judicial tribunal’ in reference to the law which creates offences and thirdly; he accused should be convicted in the earlier proceedings. The requirement of all these conditions have been discussed and explained in the landmark decision, Maqbool Hussain v. State of Bombay.[32] In this case, the appellant, an Indian citizen, was arrested in the airport for the illegal possession of gold under the provisions of the Sea Customs Ac, 1878. Thereupon, an action was taken under section 167(8) of the Act, and the gold was confiscated. Sometimes afterwards, he was charge sheeted before the court of the Chief Presidency Magistrate under section 8 of the Foreign Exchange Regulation Act, 1947. At trial, the appellant raised the plea of autrefois convict, since it violates his fundamental right guaranteed under article 20(2) of the constitution. He sought the constitutional protection mainly on the ground that he had already been prosecuted and punished inasmuch as his gold has been confiscated by the customs authorities. By rejecting his plea, the court held that the proceedings of the Sea Customs Authorities cannot be considered as a judicial proceedings because it is not a court or judicial tribunal and the adjudgment of confiscation or the increased rate of duty or penalty under the provisions of the Sea Customs Act does not constitute a judgment or order of a court or judicial tribunal necessary for the purpose of supporting a plea of double jeopardy. The court also held that the proceedings conducted before the sea customs authorities were, therefore, not ‘prosecution’ and the confiscation of gold is not punishment inflicted by a ‘court’ or ‘judicial tribunal’. The appellant, therefore, cannot be said to have been prosecuted and punished for the same offence with which he was charged before the Chief Presidency Magistrate Court.
To operate as a bar under Article 20(2), the second prosecution and the consequential punishment must be for the same offence, i.e., an offence whose ingredients are the same.[33] One of the important conditions to attract the provision under clause (2) of article is that, the trial must be conducted by a court of competent jurisdiction. If the court before which the trial had been conducted does not have jurisdiction to hear the matter, the whole trial is null and void and it cannot be said that there has been prosecution and punishment for the same offence.[34] Gajendragadkar, J. has stated the protection under Article 20(2) as follows:
“The constitutional right guaranteed by Article 20(2) against double jeopardy can be successfully invoked only where the prior proceedings on which reliance is placed are of a criminal nature instituted or continued before a court of law or a tribunal in accordance with the procedure prescribed in the statute which creates the offence and regulates the procedure.”[35]
However, the Code of Criminal procedure recognize both the pleas of autrefois acquit as well as autrefois convict. The conditions which should be satisfied for raising either of the plea under the Code are: firstly; that there should be previous conviction or acquittal, secondly; the conviction or acquittal must be by be a court of competent jurisdiction, and thirdly; the subsequent proceeding must be for the same offence. The expression “same offence” shows that the offence for which the accused shall be tried and the offence for which he is again being tried must be identical, and based on the same set of facts.[36]
Double Jeopardy Protection under English Law
In England, the pleas of autrefois acquit and autrefois convict are understood as they have been understood in the common law.[37] In Sambasivam[38], Lord McDermott stated thus;
“The effect of a verdict of acquittal pronounced by a competent court on a lawful charge and after a lawful trial is not completely stated by saying that the person acquitted cannot be tried again for the same offence”.
As per the decision of Sambasivam, the effect of a final verdict of acquittal after a lawful trial by a competent court is binding and conclusive in all subsequent proceedings between the parties to the adjudication. The House of Lords affirmed the rule in Humphry’s case[39] and thus the rule came into force in English law. Further, in English law, the rule against double jeopardy is supplemented by the doctrine of abuse of process[40], laid down by the House of Lords in Connelly v. DPP[41]. In this case, the Crown had charged Connelly, and three other defendants with two indictments: one for robbery and one for murder. These indictments arose out of an office robbery in which an employee had been killed. Initially, the Crown proceeded on the murder indictment alone. The jury returned a guilty verdict and Connelly appealed to the Court of Criminal Appeal. The Court quashed Connelly’s conviction and directed a verdict of acquittal. A month later, the state tried and convicted Connelly on the second indictment for robbery. Connelly appealed his robbery conviction. The House of Lords dismissed Connelly’s appeal and held that the autrefois plea was a limited doctrine that did not prevent Connelly’s retrial. In this case the House of Lords found that the traditional autrefois rule did not developed in England as had in other countries and instead of enlarging its scope, they favored supplementing the rule with the inherent power to stop abuse of process.
In another case, the House of Lords observed that the inherent power, which a court of justice must possess to prevent misuse of its procedure, would otherwise bring the administration of justice in to disrepute among right thinking people.[42] The court also held that a second trial is permissible only when special circumstances demand and what is meant by this phrace is not settled. However, it would mean to includes acquiescence by the defendant in separate trials of two indictments, cases where in a subsequent event occurred in relation to and after the first trial (say for instance, the death of an assault victim of which the defendant has already been convicted for the offence of assault). The English rule against double jeopardy is very narrow in the sense that it is restricted to an offence identical in law to the offence of which the person was previously acquitted or convicted. In Beedie,[43]it was held that the protection is not available to an accused who has been acquitted previously for an offence under the Health and Safety at Work Act,1974, in respect of his failure to maintain a gas fire in a house he let out, when later he charged with manslaughter of a tenant who died of poisoness gas from the faulty fire. One of the notable difference between the rule against double geopardy in India and England lies on the prosecution’s right of appeal. Under English law, until the coming into force of Criminal Appeal Act of 1907, neither the prosecution, nor the defense was allowed to appeal. This was mainly due to the fact that an appeal provision would offend the rule against double jeopardy and resulted in difficulties and inconveniences to the defendants. The Act did not provide for the any prosecution appeals instead, the defendant could very well get his conviction vacated by the Court of Appeals on the ground of some errors in the trial. The law operated asymmetrically in the sense that the prosecution could not challenge an acquittal except under very limited situations. At the same time, the defendant has been able to challenge his conviction on appeal[44]as well as post appeal.[45] The rationale underlying behind the rule is that it helps to serve the purposes of double jeopardy protection. However, after coming into force of the Criminal Justice Act, 2003, a new trial is permissible at the instance of finding out “new and compelling piece of evidence”. A retrial is allowed in pursuance of tainted acquittals in serious offences.[46] Under Indian law, any person convicted of an offence may prefer an appeal in accordance with the law subject to certain restrictions. The notable provision with regard to the power of appeal is that the State has given ample power to prefer an appeal against inadequacy[47] in sentencing or acquittal.[48]
Rationale behind the rule against double jeopardy in a human right perspective
The rule serves two reasonably defined objectives. First, it performs a declerative function by informing citizens the boundary, beyond which they can be sure that the criminal process will no longer be levied againt them in respect of the same alleged offence. Secondly, it serves as the safegurd to the subjects’ aginst the abuse of state’s power by making them the illegitimate persuits of suspects leads to undue hardships and harassment[49].
In fact, the principal reasons for protection of the rule are two fold. Affording protection to the citizens against the repeted state prosecution is at one hand and preserving the moral integrity of the criminal justice process on the other[50]. The English Law Commission identifies four major rationales for the double jeopardy rule.[51] They are; i) reducing the risk of wrongful conviction, ii) minimising the distress of the trial process, iii) the need for finality, and iv) the need to encourage efficient investigation. Some scholars are of the opinion that the rule serves many purposes [52].
Landmark judgments Concerning Article 20(2) and section 300 CrPC
Maqbool Hussain v. the State of Bombay[53] – In this case, the appellant, a citizen of India brought some gold without a declaration. The Sea Customs authority took action and the gold was confiscated. Then the appellant was prosecuted under the Foreign exchange Regulation Act, 1947 consequently plea of double jeopardy was raised by the appellant, which was rejected by the court by stating that Sea customs authority was not a Court or Judicial Tribunal and the proceedings before it did not constitute prosecution as mandated by the rule against double jeopardy. The Prosecution under Foreign Exchange Regulation Act, 1947, was the first prosecution and not barred by Article 20(2).
Kalawati v. the State H.P [54]– In this case, the appellant was accused of committing murder and was prosecuted, later acquitted by the district judge. The State appealed against the decision. The defendants took the plea of double jeopardy. The Court held that the appeal against acquittal cannot be considered to be the second prosecution, but the continuation of original prosecution, Therefore the rule against double jeopardy will not play a role in this situation.
Thomas Dana v. the State of Punjab[55] – In this case, it was held by the Apex Court that to claim the protection of the rule against double jeopardy enumerated under Article 20(2), it is necessary to show that there was a previous prosecution and that the prosecution led to punishment and the accused is being punished for the same offence again.
Baij Nath v. the State of Bhopal[56] – In this case, the accused was a government servant prosecuted under the Indian Penal Code and punished, In an appeal in the High Court the prosecution was set aside for lack of sanction. Subsequently, the accused was again prosecuted with a valid sanction. The court held that the earlier prosecution was null and void and the subsequent prosecution cannot be challenged on the grounds of double jeopardy.
Kolla Veera Raghav Rao v.Gorantla Venkateswara Rao[57]– In this case, the difference between Article 20(2) and Section 300 CrPC was discussed and was held that Section 300 CrPC is wider in the sense that no one can be tried and convicted for the same offence or a different offence on the same facts. Article 20(2) leaves a doubt in the minds as to whether a person can be prosecuted for the same offence on different facts, the section makes it amply clear that as long as facts are the same, the person cannot be prosecuted at all.
Institute of Chartered accountants v. Vimal Surana[58] – In this case, a gentleman was found to be impersonating a chartered accountant and entering into agreements with people. He was prosecuted under Section 24 and 26 of the chartered accountant’s act. He was also liable to be prosecuted to be under Sections 419 and 420 of the Indian Penal Code. The Court held that a person can be convicted for the same actions under different acts as apply to the offences. The Court recognized the inequality if someone who had committed an offence similar to the sections under IPC but could also fall under the law in another act with lesser punishment.
The State of Maharashtra vs Sayyed Hasan Syed Subhan[59]: The apex court has held that Food Safety Violations can be prosecuted under IPC as well and has observed “Where an act or an omission constitutes an offence under two enactments, the offender may be prosecuted and punished under either or both enactments but shall not be liable to be punished twice for the same offence. The same set of facts, in conceivable cases, can constitute offences under two different laws. An act or an omission can amount to and constitute an offence under the IPC and at the same time, an offence under any other law” the court has observed holding that there is no bar for prosecution under the IPC merely because the provisions in the FSS Act prescribe penalties.
Conclusion
The rule of double jeopardy is based on the principle that once a person convicted or acquitted cannot be subjected to a criminal prosecution for the same offence. The terms ‘autrefois acquit’ and ‘autrefois convict’ mean previously acquitted and previously convicted respectively which have been accepted as doctrines that govern the field of criminal trials. In fact, Article 20 of the Constitution of India, 1950 protects in respect of conviction of offences. Article 20(2) contains the rule against double jeopardy which enumerates that no person shall be convicted for the same offence more than once which has in fact been borrowed from the 5 th Amendment of the US Constitution. Likewise, the Cr.P.C. inculcates the principle of autrefois convict as well as autrefois acquit which has a wider reach under the criminal jurisprudence, whereas, Article 20 of the Constitution of India, 1950 outlines general rule against double jeopardy.
The rule against double jeopardy is a universally accepted principle for the protection of certain values within the criminal justice system. It serves many purposes such as preventing the arbitrary actions of the state against its subject, ensures finality in litigations etc., which are of great importance for the protection of human rights of the accused persons. It is a centuries old principle, which survived not by chance, but for many good reasons. It must be noted that when the English legislatures intended to introduce an exception to the rule, strong criticism was raised from the part of legal fraternities as well as human rights activists. Thus, existence of such a rule is inevitable for the integrity of the criminal justice system itself.
[1] Excerpt by Justice Roslyn Atkinson at Australian Law Student’s Association (ALSA) Double Jeopardy Forum, 9 July 2003, Brisbane, available at http://archive.sclqld.org.au/judgepub/2003/atkin090703.pd, visited on 6/12/2009.
[2] Nyssa Taylor, “England and Australia relax the double jeopardy privilege for those Convicted of Serious Crimes”, [2005] 19 Temp. Int’l & Comp. L. J., p.195.
[3] Charles Parkinson, “Double Jeopardy Reform: The New Evidence Exception for the Acquittals”, (2003) UNSW Law Journal,p.,605
[4] Blackstone, Commentaries, 335, (1889), excerpt by Lawrence Newman, “Double Jeopardy and the Problem of Successive Prosecutions”, 34 S.Cal.R [1960], p.252.
[5] Supra 6, p.3
[6] Lawrence Newman, “Double Jeopardy and the Problem of Successive Prosecutions”, 34 S.Cal.R [1960], p.254, See also; Peter Westen, Richard Druben, “Toward A General Theory of Double Jeopardy”, Sup. Ct. Rev.(1978), p.81.
[7] (1957) 355 US 185
[8] The states are bound to cope with the relevant provisions of the conventions to which they are parties. For instance, Article 14(7) of the International Covenant on Civil and Political Rights; Article 4(1) , Protocol 7 to the European Convention of Human Rights; Article 50 of the Charter of Fundamental Rights of the European Union.
[9] For instance, in countries such as U.S.A and India, it is accepted as a constitutional right. In particular, Fifth Amendment to constitution of USA and article 20(2) of the constitution of India. Conversely, in England and Canada, it is the part of common law and statute law
[10] Per Charles J. in Beg. v. Miles
[11] Bryan A Garner & Henry Campbell Black, Black’s law dictionary (1 ed. 1999)
[12] Findlaw, The Concept of Double Jeopardy: Background, http://criminal.findlaw.com/criminal-rights/the-concept-of-double-jeopardy-background.html (last visited May 15, 2014).
[13] Law.cornell.edu, Fifth Amendment, http://www.law.cornell.edu/wex/fifth_amendment (last visited May 15, 2014).
[14] Constitution of India, 1950.
[15] The General Clauses Act, 1897.
[16] Ibid
[17] (2003) 2 SCC 152
[18] (2014) 9 SCC 772
[19] [Arising out of Special Leave Petition (Criminal) No.4475 of 2016]
[20] Code of Criminal Procedure,1973
[21] Kolla Veera Raghav Rao v. Gorantla Venkateswara Rao, (2011) 2 SCC 703, at P.g. 704
[22] Constitution of India, 1950
[23] Supra note 11
[24] Law.cornell.edu, Double Jeopardy, http://www.law.cornell.edu/wex/double_jeopardy (last visited November 16, 2022).
[25] Kirstin Pace, Fifth Amendment. The Adoption of the” Same Elements” Test: The Supreme Court’s Failure to Adequately Protect Defendants from Double Jeopardy, Journal of Criminal Law and Criminology 769–804 (1994).
[26] Blockburger v. United States,284 U.S. at 304.
[27] (2011) 2 SCC 703, at P.g. 704
[28] (1969) 2 SCR 438, (1970) Bom LR 782, 1970 Cri 885, AIR 1970 SC 962
[29] Article 20(2) of the Constitution of India articulates that, “No person shall be prosecuted and punished for the same offence more than once”
[30] See, Section 300(1) , Code of Criminal procedure, 1973.
[31] General Clauses Act, 1897, Section 26 provides,” Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence.”
[32] A.I.R. 1953 S.C. 325
[33] Manipur Administration v Nila Chandra Singh, AIR 1964 SC 1533
[34] Bai Nath Prasad Tripathi v. Statel, A.I.R. 1967 S.C. 494
[35] Raja Narayanlal Bansilal v M.P. Mistry, AIR 1961 SC 29
[36] State of Rajasthan v Hat Singh, (2003) 2 SCC, 152
[37] Dr. K.N. Chandrasekharan Pillai, Double Jeopardy Protection: A Comparative Overview, Mittal Publications, Delhi (1stedn- 1988), p.28.
[38] Sambasivam v Public Prosecutor, Federation of Malaya, [1950] AC 458
[39] [1977] AC 1 H.L.
[40] Abuse of process means abuse of process of the court by the parties to the litigation. The court has the inherent power to stop proceedings if it is an abuse of process of the court
[41] [1964] A.C. 1254
[42] Hunter v. Chief Constable of the West Midlands Police [1982] AC 529
[43] [1998] Q.B. 356
[44] The Criminal Appeal Act, 1907.
[45] David Hamer, “The Expectation of Incorrect Acquittals and the “New and Compelling Evidence” Exceptio n to Double Jeopardy” [2009] Crim. L. R., 64, the post appeal provision is administered in England by the Criminal Cases Review Commission which commenced operation on January 1, 1997 under the Criminal Appeal Act,1995 (UK).
[46] Part10 of the Criminal Justice Act, 2003 sets out a statutory framework, which enables retrial of a defendant who has been secured a cloudy acquittal at trial. But the process is available only for the so called “qualifying offences” as specified in the legislation, i.e., the offences listed in Part 1 of Schedule 5 to the Act. Section 75 of the Act deals with the cases that may be retried and section 76 provides for certain procedure for making the application to Court of Appeal. As per section 76, the prosecutor may apply to the court for quashing a person’s acquittal for a qualifying offence and ordering him to be retried. Such an application must be pursued only with the leave of the Director of Public Prosecution, who must issue a written consent. The DPP may give consent if he satisfied that there is new and compelling evidence against an acquitted person in relation to the qualifying offence. Section78 of the Act deals with the expression, new and compelling evidence. Accordingly, evidence is new if it was not adduced in the proceedings in which the person was acquitted (nor, if those were appeal proceedings, in earlier proceedings to which the appeal related).
[47] Section 377 , Code of Criminal Procedure, 1973
[48] Ibid
[49] Ben Fitzpatrick, “Tinkering or Transformation? Proposals and Principles in the White Paper, Justice for All”, [2002] 5 Web JCLI.
[50] A.L-T. Choo, “Abuse of process and Stays of Criminal Proceedings”, as quoted by Gavin Dingwall in “Prosecutorial Policy, Double Jeopardy and Public Interest”,[2000] MLR Vol. 63, p.268.
[51] Law Commission (UK), Double Jeopardy, Consultation Paper No 156 (1999)
[52] David S. Rudstein, “Retrying the Acquitted in England, Part I: The Exception to the Rule against Double Jeopardy for New and Compelling Evidence”, (2007) 8 San Diego Int’l L.J., 387. The author identifies eight rationales for the rule. They are: a) preserving the finality of judgments, b)minimizing personal strain, c)reducing the risk of an erroneous conviction, d)protecting the power of the jury to acquit against the evidence, e)encouraging efficient investigation and prosecution, f)conserving scarce prosecutorial and judicial resources, g) preventing harassment, and h) maintaining the public’s respect and confidence in the legal system.
[53] 1953 AIR 325, 1953 SCR 730
[54] 1953 AIR 131, 1953 SCR 546
[55] AIR 1959 SC 375
[56] Delivered on Feb 13, 1957 available at https://indiankanoon.org/doc/1261450/
[57] CRIMINAL APPEAL NO. 1160 OF 2006 rendered on on 1 February, 2011
[58] SLP Criminal Nos.3411-3412 of 2009 dated 1st December, 2010
[59] (2019) 18 SCC 145