Clause (2) of Article 20 of our Constitution says that "no person shall be prosecuted and punished for the same offence more than once". This clause embodies the common law rule of Nemo Debet Vis Vexari which means that no man should be put twice in peril for the same offence. If he is prosecuted again for the same offence for which he has already been prosecuted he can take complete defence of his former acquittal or conviction.
The American Constitution incorporates the same rule in the Fifth Amendment that "no person shall be twice put in jeopardy of life or limb." The protection under clause (2) of Article 20 is narrower than that given in American and British laws. Under the American and the British Constitution the protection against double jeopardy is given for the second prosecution for the same offence irrespective of whether an accused was acquitted or convicted in the first trial. But under Article 20(2) the protection against double punishment is given only when the accused has not only been "prosecuted" but also "punished", and is sought to be prosecuted second time for the same offence. The use of the word "prosecuted" thus limits the scope of the protection under clause (1) of Article 20. If there is no punishment for the offence as a result of the prosecution clause (2) of Article 20 has no application and an appeal against acquittal, if provided by the procedure is in substance a continuance of the prosecution. The word 'prosecution' as used with the word 'punishment' embodies the following essentials for the application of double jeopardy rule. They are:
- The person must be accused of an 'offence'. The word 'offence' as defined in General Clauses Act means 'any act or omission made punishable by law for the time being in force.'
- The proceeding or the prosecution must have taken place before a "court" or "judicial tribunal".
- The person must have been prosecuted and punished in the previous proceeding.
- The offence must be the same for which he was prosecuted and punished in the previous proceedings.
In Maqbool Husain v. State of Bombay, the appellant brought some gold into India. He did not declare that he had brought gold with him to the customs authorities on the airport. The customs authorities confiscated the gold under the Sea Customs Act. He was later on charged for having committed an offence under the Foreign Exchange Regulations Act. The appellant contended that second prosecution was in violation of Article 20(2) as it was for the same offence, i.e., for importing gold in contravention of Government notification for which he had already been prosecuted and punished as the gold had been confiscated by the customs authorities. The Court held that the Sea Custom Authorities were not a court or judicial tribunal and the adjudging of confiscation under the Sea Customs Act did not constitute a judgment of judicial character necessary to take the plea of the double jeopardy. Hence, the prosecution under the Foreign Exchange Regulation Act is not barred.
Similarly, proceedings before departmental and administrative authorities cannot be a proceeding of judicial nature.
In Venkataraman v. Union of India, the appellant was dismissed from service as a result of an inquiry under the Public Service Enquiry Act, 1960, after the proceedings were held before the Enquiry Commissioner. Later on, he was prosecuted for having committed the offence under Indian Penal Code and the Prevention of Corruption Act. The Court held that the proceedings taken against the appellant before the Enquiry Commissioner did not amount to a prosecution for an offence. The enquiry held by the Commissioner was in the nature of fact finding to advise the Government for disciplinary action against the appellant. It cannot be said that the person has been prosecuted. Hence, the second prosectuion of the appellant was held not to attract the application of the double jeopardy protection guarateed by Article 20(2).
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. Thus, where a person was prosecuted and punished under Sea Customs Act; and was later on prosecuted under the Indian Penal Code for criminal Conspiracy, it was held that second prosecution was not barred since it was not for the same offence.
Likewise, clause (2) of Article 20 does not apply when the person is prosecuted and punished for the second time and subsequent proceeding is mere continuation of the previous proceeding, e.g., in the case of an appeal against acquittal. Thus where a number of persons were punished for smuggling currency notes, arms and ammunition, and were later on prosecuted for criminal conspiracy for carrying out their trade, it was held that the second prosecution was not forbidden although it related to the same offence, i.e. smuggling currency notes, etc. for which they had already been prosecuted and punished.
In A.A Mulla v. State of Maharastra, the appellants were charged under Section 409. I.P.C. and Section 5 of the Prevention of Corruption Act for making false panchnama disclosing of recovery of 90 gold although according to prosecution case the appellants had recovered 99 gold biscuits. They webiscuitsre tried for retaining 9 gold biscuits before the Special Judge but appellants were acquitted on the ground that the prosecution had failed to prove misappropriation the appellants were again tried under the Customs Act and the Foreign Exchange Regulation Act (FERA). The appellants challenged the validity of their second trial on the ground that it was violative of Article 20(2) of the Constitution. It was held that the second trial was not barred as not only the ingredients of the offence of two trial were different but the factual situation of offences in the first and the second trial were also different.
The conviction of the accused under Section 304 IPC for the death of deceased does not deprive the wife of the deceased to claim compensation. A decree of damages is not a punishment and the rule of double jeopardy has no application.
Offences committed at different places and periods by different persons pursuant to a conspiracy - The accused persons were convicted in one of criminal cases arising out of a case, known as Fodder Scam under Sections 120-B, 409, 420, 467, 468, 471, 477, 477-A of IPC. for being involved in large scale defalcation of public funds, fraudulent transactions and fabrication of accounts in Animal Husbandry Department of State. The accused took the defence that once they were punished for a single general conspiracy with respect to defalcation at different treasuries, they could no be punished for the same offence. The Court held that since each defalcation constituted independent offence, as offences were committed at different places, by different accused persons at different periods resulting into various offences, to be dealt in separate trials, the doctrine of double jeopardy was held not to apply. It would be question of fact in each case and there was no question of double jeopardy.
Article 20(2) and Section 300(1) of Cr.P.C. - The language used in Section 300(1) of Cr.P.C. is different from the language used in Article 20(2) of the constitution. The former is wider than the later. Article 20(2) of the Constitution states that 'no one can be prosecuted and punished for the same offence more that once.' Section 300 (1) of Cr.P.C. states that 'A person who has once been tried by a Court of competent jurisdition 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". So where the appellant had already been convicted under Section 138 of the Negotiable Instruments Act, 1881, he could not be tried and punished on the same facts under Section 420 or any other provision of IPC or any other statute.
Issue Estoppel and Double Jeopardy - The principle of "issue estoopel" also known as 'cause of action estoppel' is different from the priciple of double jeopardy or, autre fois acquint, as embodied in Section 300(2) of Cr.P.C. This principle of issue estoppel applies where an issue of fact was tried by a competent Court and a finding was given in favour of accused which would operate an estoppel or res judicata against the prosecution. It would not bar the trial or conviction of the accused for a different or distinct offence. It would only preclude the reception of evidence that will disturb that finding of fact, even for a different offence which might be permitted by Section 300(2) Cr.P.C. The rule of issue estoppel prevents re-litigation of an issue which has been determined in a Criminal Trial between the parties.
The 'issue estoppel' does not bar second proceeding but merely acts estoppel qua prior findings.
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