Q. Explain the doctrine of protection against Double Jeopardy.

Answer

 

The doctrine of Double jeopardy or principle of “autrefois convict”, has been conceptualized in the Constitution of India under Article 20(2) which provides that no person shall be prosecuted and punished for the same offence more than once.

Doctrine of double jeopardy has been incorporated from 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.

Essentials for the applicability for this doctrine

A.      The person must be accused of an offense. The word ‘offense’ as defined in general clauses Act, means ‘any act or omission made punishable by law for the time being in force.

B.      The proceeding or prosecution must have taken place before a Court or Judicial Tribunal

C.      The person must have been prosecuted and punished in the previous proceeding.

D.      The offense must be the same as of before compulsorily for which he was prosecuted and punished.

 

Imp cases

I.                     Kalawati v State of Himachal Pradesh:

In this case a person accused of committing murder was tried and acquitted. The State preferred an appeal against the acquittal. The accused could not plead Article 20(2) against the State preferring an appeal against the acquittal. Article 20(2) would not applicable as there was no punishment for the offence at the earlier prosecution.

II.                   In Venkataraman v. Union of India: An enquiry was made before the enquiry commissioner on the appellant under the Public Service Enquiry Act,1960 & as a result, he was dismissed from the service. He was later on, charged for committed the offence under Indian Penal Code & the Prevention of Corruption Act. The court held that the proceeding held by the enquiry commissioner was only a mere enquiry & did not amount to a prosecution for an offence. Hence, the second prosecution did not attract the doctrine of Double Jeopardy or protection guaranteed under Fundamental Right Article 20 (2).

III.                 In O.P.Dahiya V Union of India: it was held that if the accused was neither convicted nor acquitted of the charges against him in the first trial, his retrial would not amount to double jeopardy.

IV.                In case of State of Rajasthan V Hat Singh: it was said that prosecution and other punishment under two sections of an Act, the offences under the two Sections being distinct from each other, does not amount to double jeopardy.

 

 

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