Constitution: Double Jeopardy

INTRODUCTION:

In India, protection against double jeopardy is a Fundamental Right guaranteed under Article 20 of the Constitution of India. An article 20(2) state that “No person shall be prosecuted and punished for the same offence more than once” contains the rule against double jeopardy. The Indian Constitution guarantees to the people certain basic human rights and freedoms, such as inter alia, equal protection of laws, freedom of speech and expression, freedom of worship and religion, freedom of assembly and association, freedom to move freely and to reside and settle anywhere in India, freedom to follow any occupation, trade or business, freedom of person, freedom, against double jeopardy and against ex post facto laws. Untouchability, the age old scourge afflicting the Hindu Society, has been formally abolished. A person can claim Fundamental Rights against the state imposing some permissible restrictions in the interests of social control. The grounds for imposing these restrictions on Fundamental Rights are expressly mentioned in the Constitution itself and, therefore, these rights can be abridged only to the extent laid down. The Constitution- makers decided to incorporate Fundamental Rights in the Constitution because of several reasons, such as, consciousness of massive minority problem in India; memories of the protracted struggle against the despotic British rule; acknowledgement of the Gandhian ideals; the climate of international opinion and the American experience. These Fundamental Rights have been conceived in a liberal spirit and seek to draw a reasonable balance between individual freedom and social control. These rights constitute a counterpart of the American Bill of Rights and though there are quite a few signs of resemblance between the two, the Fundamental Rights in India cover a much wider ground and are expressed in much greater detail than is the case in the U.S.A. The Bill of Rights in U.S.A. has served as bulwark against abuse of authority by the organs of government and has made a tremendous contribution to the promotion of a regime of freedom and liberty. The Fundamental Rights also play a similar role and promote rule of law in India. The roots of the doctrine against double jeopardy are to be found in the well- established maxim of the English Common law, Nemo debet bis vexari, meaning that a man must not be put twice in peril for the same offence. When a person has been convicted for an offence by a competent court, the conviction serves as a bar to any further criminal proceeding against him for the same offence. The idea is that no one ought to be punished twice for one and the same offence. If a person is indicated again for the same offence in a court, ha can take the plea of autrefois acquit or autrefois convict.

The principle was inexistence in India even prior to the commencement of the Constitution,1 but the same has now been given the status of constitutional, rather than a mere statutory, guarantee. Double Jeopardy is recognized in different countries like U.S., U.K., Canada, Germany, France, Japan etc. Further, double jeopardy is discussed in accordance with Constitutions of different countries.

1

S. 26 of General Clauses Act and S. 403(1) of the Cr.PC, 1898; S. 300, Cr.PC 1973.

RULE OF Autrefois Acquit: It is a fundamental principle of the common law that a person cannot be put in jeopardy twice for the same offence. Almost all common law countries incorporate this protection in their laws. While some countries have found it necessary to be included in their constitutions, others have incorporated it in their statutes. All agree that the protection has its origin in the English common law of the eighteenth century. Though its origin is thus common, it is found that its reception and implementation have been different. Both in America and India, the protection against double jeopardy is accepted as a constitutional right and incorporated in the constitutions. Under Article 20(2) which states “No person shall be prosecuted and punished for the same offence more than once” contains the rule against double jeopardy. The corresponding provision in the American Constitution is embodied in that part of the Fifth Amendment2 which declares that no person shall be subject for the same offence to be put twice in jeopardy of life or limb. The principle has been recognized in the existing law in India and is enacted in Section 26 of the General Clauses Act, 1897 states,” 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.” and Section 300 of Criminal Procedure Code, 1973, states, (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 subsection (1) of Section 221, or for which he might have been convicted under sub-section (2) thereof. (2) A person acquitted or convicted of any offence, may be afterwards tried, with the consent of the State Government, for any distinct offence for which a separate charge might have been made against him at the former trial under sub-section (1) of Section 220. (3) A person convicted of any offence constituted by any act causing consequences which, together with such act, constituted a different offence from that of which he was convicted, may be afterwards tried for such last mentioned offence, if the consequences had not happened, (4) A person acquitted convicted of any offence constituted by any acts may, notwithstanding such acquittal or conviction, be subsequently charged with, and tried for, any other offence constituted by the same acts which he may have committed if the Court by which he was first tried was not competent to try the offence with which he is subsequently charged. (5) A Person discharged under Section 258 shall not be tried again for the same offence except with the consent of the Court by which he was discharged or of any other Court to which the first mentioned Court is subordinate. (6) Nothing in this Section shall affect the provisions, of Section 26 of the General Clauses Act, 1897 (10 of 1897) or of Section 188 of this Code. In the American system the constitutional bar applies to the second prosecution irrespective of the result of the first prosecution. The constitutional safeguard can be pleaded to the second prosecution irrespective of whether the accused was acquitted or convicted in the first 2

M.V. PYLEE, Select Constitutions of the World, 2nd Edition, p.777

prosecution. The rule in Indian Constitution is different. In order to bring the case of a person within the prohibition of Article 20(2) it must shown that he had been “prosecuted” before a court and “punished” by it for the “same offence” for which he is prosecuted again. Accordingly, there can be no constitutional bar to a second prosecution and punishment for the same offence unless the accused had already been punished in the first instance. The Supreme Court said: “If there is no punishment for the offence as a result of the prosecution, sub-clause (2) of the Article 20 has no application.” Earliest judgment of the Supreme Court on the subject is in a case Kalawati & Another Vs State of HP3, Kalawati had been charged for offences under Section 302, 114 & 201 IPC. At her trial she was acquitted of charge under Section 302 r/w 114 IPC but convicted and sentenced to 5 years RI under Section 201 IPC by the trial court. Later on the matter went into appeal from both Accused against the conviction while from the STATE against acquittal before the Judicial Commissioner, who after re-appreciation of the matter set aside conviction of Kalawati under Section 114 IPC but convicted her of offence under 302 r/w 114 IPC and sentenced her for transportation for life. The matter had been taken to the Apex Court where Kalawati had been acquitted of charges under Section 302 IPC but conviction under Section 201 IPC was again slapped / restored by the Apex Court. In this scenario it was urged on behalf of Kalawati that having been acquitted of the charge under Section 201 IPC by the trial court and the STATE did not prefer appeal against such acquittal before the Judicial Commissioner, the matter stood settled and slapping conviction by the Judicial Commissioner on the charge under Section 201 IPC, acquittal whereupon by the Trial Court had become final, amounted to double jeopardy. The Apex Court dealt with the matter in the following words; “This argument proceeds on a fallacy. Section 201 is not restricted to the case of a person who screens the actual offender; it can be applied even to a person guilty of the main offence, though as a matter of practice a Court will not convict a person both of the main offence and under section 201. The Judicial Commissioner acquitted Kalawati of the offence under section 201 for which the Sessions Judge, only because he thought that the main offence itself, namely, murder, was brought home to her, convicted her. But if we think for the reasons given above that it would not be safe to convict her of the main offence, the acquittal is no legal impediment to her conviction under section 201. It was held by the Privy Council in Begu v.King-Emperor4 that in a charge of murder under section 302 a conviction under section 201 without a further charge being made was warranted by the provisions of section 237, Criminal Procedure Code. If Kalawati had been acquitted of an offence under section 201 independently of the charge of murder against her, it would have been a different matter. But as her acquittal is so intimately related to the charge of the main offence, and as it took place only for the reason that she was held guilty of murder, there is no bar to the restoration of the conviction under section 201IPC.” But, as used in Article 20(2), it embodies the following three essentials: (a) There must a person accused of an offence. The word “offence” has to be taken in the

sense in which it is used in the General Clauses Act, 1897 as meaning “an act or omission made punishable by any law for the time being in force”.5 3

Kalawati v. State of H.P., AIR 1953 SC 131,132

4

Privy Council, Begu v. King Emperor,(1925) 52 I.A. 191

5

S.A. Venkataraman v. Union of India, AIR 1953 SC 375

(b) The proceeding or the prosecution should have taken place before a “court” or “judicial

tribunal”. The revenue authorities, like the sea customs authorities, are not judicial tribunals.6 Likewise proceedings before a tribunal which entertains departmental or administrative enquiries cannot be considered as proceedings in connection with prosecution and punishment.7 (c) The proceeding should have been taken before the judicial tribunal or court in reference to the law which creates offences. Thus, where an enquiry is held before a statutory authority against a government servant, not for the purposes of the punishing for the offence of cheating and corruption but to advise the government as to the disciplinary action to be taken against him, it cannot be said that the person has been prosecuted.8 It would make no difference even if the authority making the enquiry is required to axct judicially.9 Double Jeopardy and issue estoppel:The plea of double jeopardy is to be distinguished from the rule of issue in a criminal trial.10 The rule of issue estoppel is that where an issue of fact has been decided by a competent court on a former occasion and a finding has been reached in favour of an accused, such a finding would constitute an estoppel or res judicata against the prosecution, not as a bar to the trail and conviction of the accused for a different or distinct offence but as tried subsequently even at a different trail. The rule is not the same as the plea of double jeopardy, because, firstly, the rule does not introduce any variation in the Code of Criminal Procedure, either in investigation, enquiry or trial and secondly, it does not prevent the trail of any offence as does the rule of double jeopardy, but only precludes evidence being led to prove a fact in issue as regards which, evidence has already been led and a specific finding recorded at an earlier trial before a competent court. The rule, thus relates only to the admissibility. The rule depends upon wellknown doctrines which controls the re- litigation of issues which are settled by prior litigation. In Pritam Singh v. State of Punjab11, the accused made the statement leading to the recovery of firearm which he was alleged to have used against the victims. He was prosecuted for possession of the firearm and was acquitted, but the evidence of possession of the firearm was used in trail of murder charge against the same accused. This was held to be not permissible. The reasoning is that the acquittal in respect of the possession of firearm affected the admissibility of the same evidence in connection with the murder case, because the firearm could not at the same time be possessed as well as not possessed by the accused.12

6

Maqbool Hussain v. State of Bombay, AIR 1953 SC 325

7

Thomas Dana v. State of Punjab, AIR 1959 SC 375; Maqbool Hussain v. State of Bombay, AIR 1953 SC 325

8

Ibid.

9

Leo Ray Frey v. Suptd., Distt. Jail, AIR 1958 SC 119

10

Piara Singh v. State of Punjab,(1969) 1 SCC 379, 383: AIR 1969 SC 961 and State of A.P. v. Kokkiliagada Meerayya, (1969) 1 SCC 161,166: AIR 1970 SC 771

11

AIR 1956 SC 415

In Manipur Admn. v. Nila Chandra Singh13, an order under Section 144, Criminal Procedure Code had been promulgated in Manipur on April 25. The respondent was taken into custody for defying the order and certain other acts done as a member of an unlawful assembly and charged under Sections 114, 149, 307, 332 and 342 of the Indian Penal Code and sentenced to varying terms of imprisonment. The respondent however, been prosecuted earlier under Section 188, Indian Penal Code, for participation as a member of the same crowd as in the second prosecution but was acquitted by the appellate Court on the finding that he was not present at the place. The S.C. held that the rule of issue estoppel would apply, and the prosecution could not adduce evidence to set aside the finding of fact arrived at the previous criminal trial of the accused. The Court made it clear that the principle of issue estoppel was different from the rule of double jeopardy incorporated in Article 20(2). To operate as a bar under Article 20(2), the second prosecution and the consequential punishment there under must be for the same offence, i.e., an offence whose ingredients are the same.

BACKGROUND:-

12 Mohinder Singh v. state of Punjab, AIR 1965 SC 79 13 AIR 1964 SC 1533

Double jeopardy is neither a new nor uniquely American concept. Rather, the principle of double jeopardy dates back to the early Roman period and has a historical pedigree spanning well over one thousand years. In fact, there are primitive notions of double jeopardy appearing in the Bible. The first known codified reference to double jeopardy was set forth in the Digest of Justinian. The concept continued to change and improve through many kings and queens in England. Thereafter, the writings of Lord Coke and William Blackstone were commingled to provide us with the modern day concept of double jeopardy. Lord Coke is credited with carrying out three categories to which double jeopardy historically applied: autrefois acquit, autrefois convict, and former pardon. Blackstone further advanced the doctrine by pronouncing that “the plea of autrefois acquits, or a formal acquittal, is grounded on the universal maxim…that no man is to be brought into jeopardy of his life more than once for the same offence.” A main distinction between historical doctrine and modern double jeopardy provisions is that former only applied to capital crimes. In modern times, double jeopardy is not limited only to crimes affecting “life or limb” but, rather, applies to all criminal prosecutions and punishments in which an individual is at risk of multiple attacks on his or her liberty. Colonial Massachusetts gave birth to the modern American approach to double jeopardy in its Body of Liberties published in 164114. As one author noted ,this document bears a close resemblance to the Bill of Rights later to become a stock feature of American constitutions, state and federal.’’ Similar to prior pronouncements, the Body of Liberties provided that ‘‘no man shall be twice sentenced by civil justice for one and the same crime, offense, or trespass.’’ Over one hundred years later, in 1784, New Hampshire became the first state to protect against double jeopardy in its Bill of Rights15, proclaiming that ‘‘no subject shall be liable to be tried, after an acquittal, for the same crime or offense.’’ James Madison’s16 proffering at the Constitutional Convention five years later was strikingly similar to the previous colonial offerings declaring that ‘‘no personal shall be subject, except in case of impeachment, to more than one trial, or one punishment for the same offense.’’ Yet, it was not until 1790 in the Pennsylvania Declaration of Rights that a phrase resembling our modern phraseology appeared. The Pennsylvania Declaration of Rights succinctly stated that ‘‘no person shall, for the same offense, be twice put in jeopardy of life or limb.’’ From these ideals sprang the modern protection contained in twenty simple words. In modern times, remnants of double jeopardy exist in many countries, including Australia, Canada, the United Kingdom, parts of Asia, and the United States. In fact, protection against double jeopardy is now provided for in the International Covenant on Civil and Political Rights and the European Union Constitution and numerous documents governing international criminal tribunals, including the International Criminal Tribunal for Yugoslavia, the International Criminal Tribunal for Rwanda, and the nascent International Criminal Court. There are significant differences, however, between the English and American perspective of precisely when ‘‘jeopardy’’ attaches. The English rule, which retains the common-law approach, limits application of double jeopardy to instances in which a defendant has been acquitted or convicted. In other words, the English rule requires a full, completed trial. In contrast, the American rule attaches jeopardy as soon as the jury is sworn, in a jury trial, or when the prosecution offers its first piece of evidence in a trial before the court. Thus, the concept of jeopardy attaches much 14

Massachusetts Body of Liberties of 1641

15 New Hampshire Constitution of 1784

16 James; Magna Carta

earlier in the American legal system than in its English counterpart. Despite the apparent staying power of the general double jeopardy concept, England recently diluted its double jeopardy protection with parliamentary passage of the Criminal Justice Act 2003. England’s departure from the stricter version existing in the United States permits a subsequent prosecution following acquittal for certain offenses, such as murder, rape, kidnapping and manslaughter, when new and compelling evidence arises. Additionally, individuals acquitted prior to 2003 may nonetheless be subject to prosecution retroactively under the act. The revised English approach was motivated by notorious trials in which individuals adjudged not guilty later confessed to committing the crimes for which they were accused. Societal tolerance for such perceived travesties of justice waned and the English legislators responded to victims’ rights groups in altering their previously steadfast approach to double jeopardy.17 In India, The Fundamental Rights have their origins in many sources, including England’s Bill of Rights, the United States Bill of Rights and France’s Declaration of the Rights of Man. In 1928, an All Parties Conference of representatives from Indian political parties proposed constitutional reforms for India. This 11-member committee, led by Motilal Nehru, had been called into existence as a formal instrument to complement the widespread Civil disobedience campaigns of the 1920s. These mass campaigns had originally been a response to the Rowlatt Act, which in 1919 had given the British colonial government the powers of arrest and detention, conduction of searches and seizures without warrants, restriction of public gatherings and censorship of the press. Demanding Dominion status and elections under universal suffrage, the committee called for guarantees of rights deemed fundamental, representation for religious and ethnic minorities and limitations on government powers. In 1931, the Indian National Congress, at its Karachi session, adopted resolutions defining, as well as committing itself to the defence of fundamental civil rights, including socio-economic rights such as minimum wage, the abolition of untouchability. Committing themselves to socialism in 1936, the leaders of the Congress party took examples from the Soviet Constitution, which inspired the fundamental duties of citizens as a means of collective, patriotic responsibility. The task of developing a constitution for an independent India was undertaken by the Constituent Assembly of India, which composed of elected representatives under the presidency of Rajendra Prasad. The assembly appointed a constitution drafting committee headed by B.R. Ambedkar. The process was influenced by the adoption of the Universal Declaration of Human Rights by the U.N. General Assembly on 10 December 1948. The declaration called upon all member States to adopt these rights in their constitutions. The Fundamental Rights and Directive Principles were included in the final draft of the constitution promulgated on 26 November 1949.

THE RULE OF Autrefois Acquit in different countries:-

UNITED STATES OF AMERICA While numerous countries maintain variations of double jeopardy, the American approach remains one of the more potent provisions. The American interpretation, however, has not always provided criminal defendants a formidable defense. For nearly two hundred years, the 17 The Encyclopedia of American Civil Liberties, Paul Finklman

Fifth Amendment’s double jeopardy protection was limited solely to actions by the federal government and its subdivisions. Not until the Supreme Court’s 1969 decision in Benton v. Maryland18, did the Double Jeopardy Clause extend equally to state governments. Benton considered the Fifth Amendment promise against multiple prosecutions and multiple punishments to ‘‘represent a fundamental ideal in our constitutional heritage’’ and, accordingly, held double jeopardy to be applicable to the states through incorporation of the Fourteenth Amendment. Having so found, the Supreme Court decision in Benton mandates that double jeopardy determinations now be governed by federal standards rather than state nuances. Nonetheless, states retain certain flexibility under double jeopardy due to the dual sovereignty doctrine. In 1922, the Supreme Court explicitly recognized the power of distinct sovereigns to prosecute an individual for criminal conduct falling within the jurisdiction of both in United States v. Lanza,19. Thereafter, in 1985, the Court further expanded the dual sovereignty doctrine to permit separate prosecutions by distinct state sovereigns in Heath v. Alabama,20. By holding that each state has independent power to determine an individual’s guilt or innocence under the state’s criminal code for all conduct occurring within that state, the Supreme Court permitted a subsequent prosecution of Heath for murder, which resulted in a much harsher sentence than had been received in the other state prosecution. The Supreme Court held that separate, independent sovereigns possess the right to try a criminal defendant for conduct occurring within their separate borders. The conduct, constituting independent criminal acts in each state, is not protected by double jeopardy because the conduct offends both sovereigns equally. The dual sovereignty doctrine was extended recently to embrace dual prosecution by the federal government and tribal courts on Indian reservations in United States v. Lara.21 Thus, although the Fifth Amendment protects against multiple prosecutions by the same sovereign—or subdivisions thereof—double jeopardy poses no bar to separate prosecutions by independent sovereigns. Two of the more renowned instances of separate prosecutions by independent sovereigns include the Rodney King case defendants’ subsequent federal trials following state acquittals and Terry Nichols’s subsequent state capital trial following a federal trial resulting in a life sentence. Finally, double jeopardy does not affect the ability of a private individual to sue civilly for conduct that may be prohibited by criminal and civil law. The paradigm example continues to be the O. J. Simpson case, in which Simpson was subsequently sued civilly for wrongful death following his acquittal for murder. Multiple Prosecutions:In its most literal sense, the Double Jeopardy Clause protects against multiple prosecutions after an individual has been acquitted. Double jeopardy ensures that the prosecution will put forth its strongest case first and allow a jury, rightly or wrongly, to assess the defendant’s guilt. In the United States, jeopardy attaches once the jury is sworn or once the prosecution introduces evidence in a trial before the court. Once jeopardy attaches, courts and prosecutors are prevented 18

395 U.S. 784 (1969)

19

260 U.S. 377 (1922)

20

474 U.S. 82 (1985)

21 541 U.S. 193 (2004)

from retrying an individual for the same offense unless: (1) the jury is unable to return a verdict, or (2) a mistrial is granted and there is a manifest necessity to retry the defendant in the interest of justice. This second category presumes the absence of prosecutorial or judicial misconduct in securing the mistrial. Finally, although the ability of the government to appeal criminal convictions is extremely limited, a defendant’s successful appeal will not bar his or her reprosecution on double jeopardy grounds as voluntary appeal operates as a waiver to reprosecution. The double jeopardy limitation of the same offense does not preclude multiple counts emanating from a single criminal episode and does not prohibit multiple prosecutions for separate crimes against separate individuals, even when there was but a single criminal act, such as two murders during a single robbery. Rather, the ‘‘same offense’’ test as set forth in Blockburger v. United States,22 to ‘‘determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not.’’ A good example of the Blockburger test in application is the Supreme Court’s decision in Brown v. Ohio,23 where the Court determined that an attempted second prosecution for stealing an automobile was barred by double jeopardy when the defendant had previously been convicted of operating the same vehicle without the owner’s consent. Finding that them is demeanor count of joyriding was a lesser-included offense of auto theft, the Court held that the defendant had been twice put in jeopardy for the same offense and reversed the subsequent prosecution. As a reminder that double jeopardy operates as a imitation on courts and prosecutors, the Brown Court struck down the state court’s interpretation of double jeopardy, stating that the ‘‘Double Jeopardy Clause is not such a fragile guarantee that prosecutors can avoid its limitations by the simple expedient of dividing a single crime into a series of temporal or spatial units.’’ Likewise, the Supreme Court found in Ashe v. Swenson,24 that the doctrine of collateral estoppel is embodied by the Double Jeopardy Clause. In Ashe, the defendant had been accused of participating in the robbery of six men at a poker game. Prosecutors decided to try the defendant for only one of the robberies first. At this trial, the main issue was identity and the jury returned a verdict of not guilty due to insufficient evidence. During the subsequent trial, defendant raised the defense of double jeopardy when the state presented a much stronger argument regarding identification. The Court had no difficulty finding this second attempted trial to be barred by double jeopardy through the application of collateral estoppel (the issue of identity having been resolved in the first trial), remarking that ‘‘for whatever else that constitutional guarantee may embrace, it surely protects a man who has been acquitted from having to ‘run the gauntlet’ a second time.’’ UNITED KINGDOM The doctrines of autrefois acquit and autrefois convict persisted as part of the common law from the time of the Norman Conquest; they were regarded as essential elements of protection of the

22

284 U.S. 299 (1932),

23

432 U.S. 161(1977),

24

397 U.S. 436,

liberty of the subject and respect for due process of law in that there should be finality of proceedings. There were only three exceptions, all relatively recent, to the rules The prosecution has a right of appeal against acquittal in summary cases if the decision appears to be wrong in law or in excess of jurisdiction.  A retrial is permissible if the interests of justice so require, following appeal against conviction by a defendant.  A "tainted acquittal", where there has been an offence of interference with, or intimidation of, a juror or witness, can be challenged in the High Court. CANADA In Constitution of Canada, double jeopardy is recognized under Title 5- Legal Rights, Section 11(h)-“ Any person charged with the offence has the right- if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again.”25 JAPAN In the Constitution of Japan, ”Diet”, double jeopardy is recognized in Chapter III, Article 39as “No person shall be held criminally liable for an act which was lawful at the time it was committed, or of which he had been acquitted, nor shall he be placed in double jeopardy.”26 GERMANY In Germany, also principle of double jeopardy is stated in Article 103(3) “No one may be punished for the same act more than once in pursuance of general legislation.”27

PRESENT SCENARIO IN INDIA: BRIEF ANALYSIS WITH CASE LAWS; Now, it is evident from the above that “double jeopardy”- it a Fundamental Right guaranteed under Article 20(2), but it is interpreted differently in number of cases. Here, we are going to discuss the cases in context to double jeopardy and its meaning in different cases. Why it is different? It is because of circumstances of the cases. But, its interpretation it strictly adhered to the scope of Article 20(2). CASES:

25

M.V. PYLEE, Select Constitutions of the World, 2nd Edition, p. 152

26 Ibid. p.254 27 Ibid. P.232

1. S.A. Venkataraman v. Union of India28 Facts of case in brief: An enquiry had been made against the appellant under the Public Servants (Inquiries) Act, 1850. Appellant was given an opportunity under Article 311(2) to show cause. Soon thereafter the police submitted a charge-sheet against him for having offences under Section 161 and 165, Penal Code and Section 5(2) of the Prevention of Corruption Act, 1947. The validity of subsequent prosecution was challenged by the appellant on the ground that it contravened the constitutional guarantee embodied in Article 20(2). Judgment:- Court rejected his plea on the ground that the proceeding taken against him before the Commissioner under the Enquiries Act did not amount to prosecution because in an enquiry under the Act there was neither any question of investigating an offence in the sense of an act or omission punishable by law which made that act or omission an offence. 2. State of Rajasthan v. Hat Singh29 Judgment:- Court held that different offences and punishments for two offences have different ingredients and the same set of facts may give rise to both without violating Article 20(2) 3. Leo Roy Frey v. Supdt. Distt. Jail30 Facts of the case in brief:- The petitioner, Leo, purchased a car in Paris. On transfer, the car was registered on the name of Thomas Dana. Both the petitioners booked the car from Geneva to Bombay via sea route. After the car reached the Bombay, both the petitioners took the car left for Delhi. From Delhi they went to Amritsar and after a night stay there, they arrived Attari Road Land Customs Station on their way to Pakistan. Custom official asked the petitioners to fill the baggage declaration forms, but subsequently they check the car and a pistol with live bullets were recovered and some other items too which they did not mentioned. After that their car was properly checked and large amount of Indian & foreign currency was recovered. They were arrested under Section 167(8) of the Sea Customs Act and collector issued a notice asking show cause. The collector ordered confiscation of the currency and also of the motor car with an option to the petitioner Dana to redeem the car on payment of Rs. 50,000 and also ordered confiscation of articles other than the currency recovered from the car subject to redemption on payment of Rs. 100. The Collector was also satisfied that each of the two petitioners was equally guilty of an offence under s. 167(8) of the Sea Customs Act and imposed a personal penalty of Rs. 25,00,000 on each of the petitioners, to be paid within two months from the date of the order or such extended period as the adjudicating officer might allow. Collector lodged a complaint against the petitioners before the Additional District Magistrate under 23 read with s. 8 of the Foreign Exchange Regulations Act, 1947, and s. 167(81) of the Sea Customs Act and s. 120-B of the Indian Penal Code, real with s. 23/23-B, Foreign Exchange Regulations Act and s. 167(81), 28 AIR 1954 SC 375 29 AIR 2003 SC 791 30 AIR 1958 SC 119

Sea Customs Act, 1878. A case was also started against the petitioner Frey under the Indian Arms Act for being in possession of the pistol and the cartridges in contravention of the provisions of s. 20 of that Act.. The petitioners contend that in this case there has been a violation of their fundamental right under Art. 20(2) of the Constitution. Judgment:-the Court held that the fact that the Collector of Customs acted judicially is not decisive and does not necessarily attract the protection guaranteed by Art. 20(2)and the question still remains whether the petitioners' case comes within the provisions of Art.20(2). That article protects a person from being "prosecuted and punished for the same offence more than once". The question has to be answered as to whether the petitioners had previously been prosecuted and punished for the same offence for which they are now being prosecuted before the Additional District Magistrate. The proceedings before the Customs authorities were under s. 167(8) of the Sea Customs Act. Under s. 186 of that Act, the award of any confiscation, penalty or increased rate of duty under that Act by an officer of Customs does not prevent the infliction of any punishment to which the person affected thereby is liable under any other law. The offences with which the petitioners are now charged include an offence under s. 120B, Indian Penal Code. Criminal conspiracy is an offence created and made punishable by the Indian Penal Code. It is not an offence under the Sea Customs Act. The offence of a conspiracy to commit a crime is a different offence from the crime that is the object of the conspiracy because the conspiracy precedes the commission of the crime and is complete before the crime is attempted or completed, equally the crime attempted or completed does not require the element of conspiracy as one of its ingredients. They are, therefore quite separate offences. The offence of criminal conspiracy was not the subject matter of the proceedings before the Collector of Customs and therefore it cannot be said that the petitioners have already been prosecuted and punished for the "same offence". It is true that the Collector of Customs has used the words "punishment" and "conspiracy", but those words were used in order to bring out that each of the two petitioners was guilty of the offence under s. 167(8) of the Sea Customs Act. The petitioners were not and could never be charged with criminal conspiracy before the Collector of Customs and therefore Art. 20(2) cannot be invoked. It is the latest case on double jeopardy decided by J. Markandey Katju 4. Jitendra Panchal v. Intelligence Officer, NCB and Anr. 31 Fact of the case in brief:- On 17th October, 2002, officers of the US Drug Enforcement Agency, along with officers of the Narcotics Bureau, India, seized a consignment of 1243 pounds equivalent to 565.2 Kgs. of Hashish in Newark, USA. During the investigation, it appears to the appellant were engaged in trafficking Hashish out of India into the USA and Europe and that the seized contraband had been smuggled out of India by the appellants. The appellants were arrested in Vienna in Austria by officers of the Drug Enforcement Agency, USA on 5th December, 2002 and was extradited to the USA. Soon, thereafter, on 25th March, 2003, the Deputy Director General of the Narcotics Control Bureau, hereinafter referred as 'the NCB', visited the USA and recorded the appellant's statement. Subsequently, on 9th April, 2003, officers of the NCB arrested the Appellants in India and prosecution was launched against them in India. 31 AIR2009SC1938

On 5th September, 2003, a complaint was filed by the NCB before the learned Special Judge, Mumbai, against the appellants under Sections 29,20,23,27A,24 read with Section 8,12 of the Narcotic Drugs and Psychotropic Substances Act, 1985, in connection with the abovementioned incident. The appellant, who had been extradited to the USA, was tried before the District Court at Michigan, USA, in Case No. 04 CR 80571-1. On pleading guilty of the charge of conspiracy to possess with intention to distribute controlled substances, which is an offence under Section 846 of Title 21, United States Code (USC) Controlled Substances Act, the appellant was sentenced to imprisonment on 27th June, 2006, for a total term of 54 months. After serving out the aforesaid sentence, the appellant was deported to India on 5th April, 2007, and on his arrival at New Delhi, he was arrested by officers of the NCB and was taken to Mumbai and on 10th April, 2007, he was produced before the learned Chief Metropolitan Magistrate and was remanded to judicial custody. On 25th April, 2007, on the appellant's application that the proceedings against the appellant in India would amount to double jeopardy, the learned Special Judge, Mumbai, rejected the appellant's contention upon holding that the charges which had been dropped against the appellant in the proceedings in the USA had not been dealt with while imposing sentence against him in the District Court of Michigan, USA. The Special Judge extended the judicial custody of the appellant and subsequently rejected his prayer for bail. The appellant then approached the Bombay High Court, praying for quashing of the proceedings initiated by the NCB and also praying for interim bail on the ground of double jeopardy. A complaint was filed by the NCB against the appellant in the Court of Special Judge, Mumbai, against which the appellant filed Criminal Writ Petition, praying for quashing of the said complaint. Judgment:- The Bombay High Court dismissed the writ petition upon holding that the ingredients of the offences with which the appellant had been charged in India were totally different from the offences with which he had been charged and punished in the USA. The High Court also held that the acquisition and possession of Hashish in India and importation of the same into India from Nepal and the export of the contraband out of India, as well as sale thereof in the USA, could not be said to be the subject matter of an offence under Section 846 read with Section 841 of Title 21 USC Controlled Substances Act, nor was the appellant subjected to prosecution in respect of any of such offences in the USA. Consequently, conspiracy for all those acts in India was not the subject matter of prosecution in the District Court, New York, USA. Similarly, the Special Judge, Mumbai, was not competent to deal with the offence' under Section 846 read with Section 841 of Title 21 USC Controlled Substances Act, nor was the District Court in New York competent to take cognizance of any of the offences alleged to have been committed under the NDPS Act, 1985. The High Court came to the conclusion that merely because the same set of facts gives rise to different offences in India under the NDPS Act and in the USA under its drug laws, the different circumstances and the law applicable would not debar the Special Judge, Mumbai, from dealing with matters which attracted the provisions of the local laws and hence the application of the principle of double jeopardy was not available in the facts of the present case and Supreme Court relied on the judgment and dismissed the appeal.

CONCLUSION:In every legal system there is provision for “double jeopardy” as no person should be punished twice for the same offence .Doctrine of double jeopardy is a right given to the accused to save him from being punished twice for the same offence and he/she can take plea of it. In different, cases it is interpreted in different manner due to the circumstances of the cases. Our Constitution also provides such right guaranteed under Fundamental Rights to safeguard the interest of the accused person. While interpreting the provision judges always keeps a watch that innocent does not gets punished. Finally, it can be concluded that it is a positive right provided to an individual.