The Constitution of India inpart IIIrd provides six fundamental rights one of them is  protectionagainst double jeopardy. This doctrine has been provided under Article 20(2) of The Constitution of India 1950, This Articleprovides that, “No person shall be prosecuted and punished for the same offence more than once”

This protection is available to every person whether that person is a citizen of India or he is a foreigner, so if a person has been prosecuted and punished for any offence by a competent court then he can not be tried again for the same offence. The word “prosecution” is applicable in reference to a crime and it gets start when an F.I.R is registered against a person merely prosecution is not sufficient to avail the protection rather   person must also be convicted after prosecution if the person is not convicted after prosecution, then he will not be entitled for the protection of this doctrine. The word “punishment” means the infliction of some kind of pain or loss upon a person for his unlawful act. As per The Indian Penal Code[2], 1860, there are following kinds of punishment –

1. Death;

2. Imprisonment for life;

3. Imprisonment, which is of two descriptions, namely: —

i. Rigorous, that is, with hard labour;

ii. Simple;

4. Forfeiture of property;

5. Fine.

this clause is based upon the well-known principle of criminal jurisprudence[3], “Nemo debate bis vexari” which means that a man mustnot  be put twice in peril  for the same offence”

The object of this doctrine   is to avoid the harassment which must be cause to a person for the successive criminal proceedings for one crime committed by him.

The principle of double jeopardy is a procedural safeguard in favour of an accused person which prohibits the second trial of an accused person if he has been convicted by a competent court[4]

The protection of this doctrine is available only when the following essentials are fulfilled–

The person must be an accused of an offence – The word accused means a person who has either beenarrested or charged formally for an offence. The word offence as per The Indian Penal Code,1860[5] “Any act or illegal omission which has been madepunishable either by the Indian Penal Code, 1860, or by any other law for the time being in force”. As per Article 13(3) (b) “ of the Constitution of India.

“Laws in force” includes laws enacted by Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas.

The person must have been prosecuted before a court or judicial tribunal–

Term “prosecution” means initiation or starting of any proceeding criminal in the nature before a court or judicial tribunal. Hon’ble Supreme Court in the case of Biswanath v. Union of India,[6] held that, protection of the doctrine of double jeopardy is not applicable if the proceedings are before any revenue authority.

Hon’ble Supreme Court again in the case of Maqbool Hussain v.State of Bombay[7] in this case appellant, a citizen of India brought from a foreign country,some gold without making a declaration in this regard. The Custom Authorities took action against him under the section 167 of the Sea Custom Act, 1878 and confiscated the gold brought by him. He was subsequently charged and prosecuted under section 8 of the Foreign Exchange RegulationAct, 1947 and prosecution started against him. He claimed the protection of doctrine of double jeopardy but Hon’ble Court  did not allow him this defence and held that, proceedings  before the Sea Custom Authorities were not the proceedings before the Court within the meaning of  Article 20(2) of The Constitution of India 1950 and adjudication or confiscation of gold  by  such authorities was not a prosecution and the prosecution under the Foreign Exchange Regulation Act, 1947 was the first prosecution and it was not against Article 20(2) of The Constitution of India 1950.

Hon’ble Supreme Court again in the case of S.A. Venkataraman v. Union of India,[8] in this case the appellant a government servant was charged with the offence of corruption and an enquiry was initiative against him under the Public Servants (Inquiries) Act, 1850 on the basis of the report of the Enquiry Commissioner, he was dismissed from the service. He was subsequently prosecuted before the Court for having committed an offence under section 161 and 165 of the Indian Penal Code, 1860 and section 5 of the Prevention of Corruption Act, 1947.  Appellant in this case  took the defence of Article 20(2) of The Constitution of India 1950  but Hon’ble  Court did not allow him this  defence  and held that,  the proceedings taken before the Enquiry Commissioner did not amount to prosecution within the meaning of Article  20(2) of The Constitution of India,  and it was in the nature of fact finding enquiry which helped the government to take  disciplinary action against the appellant .Subsequently he was prosecuted before the Court for commission of   offence under section 161 and 165 of the Indian Penal Code,  1860 and Section 5(2) of the Prevention of Corruption Act,  1947  Hon’ble ble Supreme Court in this case held that prosecution under section 161 and 160 of Indian Penal Code,  1860  read with section 5 (2)  of the Prevention of Corruption Act,  1947   was the first prosecution and it was not barred by the Article 20 (2)  of the Constitution of India.

Hon’ble Gujarat High Court, in the case of Motising Chhagansing Vaghela v .S.D Mehta, [9] held that, departmental proceedings are not prosecution within the meaning of Article 20 (2) of the Constitution of India.

The person must have been prosecuted and punished beforea judicial tribunal or Court –The protection against the double jeopardy contained inArticle 20(2) of the Constitution of India would be available only when the accused has not only been prosecuted but he has also been punished after the prosecution so if there is no punishment for an offence as the result of prosecution then the protection of given Article 20 (2)   will not be applicable. Prosecution and punishment both must coexist for the application of Article 20 (2). Hon’ble Supreme Court in a case[10] held that, if a person is acquitted after prosecution, then he can be prosecuted again for the same offence and it will not result into the violation of the principle of double jeopardy under Article 20(2) of the Constitution of India.

Hon’ble Supreme Court again in the case of Kalawati v. State of Himachal Pradesh[11] held that, an appeal against the acquittal is the continuation of prosecution and it is not a second trial. In this case appellant was an accused of committing the murder of her husband. She was acquitted by the Court of Session so State preferred an appeal before Hon’ble HighCourt, she contended that, it is the violation of her fundamental right given under Article 20 (2) of the Constitution of India. Hon’ble Supreme Court reiterated that, an appeal against the acquittal is the continuation of prosecution and it is not a second trial, hence she is not entitled for protection of double jeopardy.

Similarly, if an accused is discharged either due to the insufficiency of the evidences against him or due to the failure of prosecution because of any other reason then he can be prosecuted again and it will not result into the violation of his fundamental right of protection against double jeopardy.

If the consent of any competent authority is required for the prosecution of a person and his prosecution is quashed due to the lack of the consent of the competent authoritythen his fresh prosecution after taking consent is not barred under Article 20 (2) of the Constitution of India[12]

Hon’ble Supreme Court again in the case of Vipul bhai Mansingh bhai Choudhary v. State of Gujarat[13] held that, if an order is passed by any authority under a Statute in the breach of the principles of natural justiceand other order is passed the authority by complying the principle of natural justice, then it will not amount to the violation of the protection against double jeopardy.

Hon’ble Bombay High Court in the case of D.A. kelshikar v. State of Bombay[14] held that, enhancement of punishment by the revising authority is not a second punishment and hence not the violation of the protection against double jeopardy.

The person must be prosecuted for the second time before a Court or judicial tribunal–

The doctrine of double jeopardy does not apply where the person is prosecuted and punished second time in continuation of the previous proceedings as in the case of acquittal or conviction.[15]

Hon’ble Supreme Court of India in the case of Central Industrial Security Force v. Abrar Ali[16]

Held that, if an employee is dismissed from the service on the ground of his being indiscipline. It will not amount double jeopardy.

The “offence” must be same in both the proceedings–For the application of doctrine of double jeopardy it is necessary that the offence should be same in both the proceedings if the offences are different then doctrine of double jeopardy will not be applicable.

In the case of Leo Roy Frey v. Superintendent, District Jail[17]  The accused was prosecuted under Sea CustomAct,1878 and he was subsequently prosecuted under section 120B of the Indian Penal Code, 1860.Accused took the defence of double Jeopardy but Court did not accept his defence and held that, both the offences were different. Committing an offence and conspiracy to commit that offence both are different offences and not the same.

Mohinder Singh v State of Punjab,[18] It was held by the Hon’ble Court that if the same fact constitutes two different offences, then doctrine of double jeopardy will not be applied.

Hon’ble Supreme Court of India in the case of State of Rajasthan v. Hat Singh,[19]

Held that, the offence of glorification of Sati under the Rajasthan Sati (Prevention) Act, 1987 and the offence of abetment of Sati under section 6 of the same Act are two different offences and doctrine of double jeopardy is not applicable in this situation.

Hon’ble Supreme Court of India in the case of Jitendra Panchal v. Intelligence officer, NCB[20] held that if aperson has been convicted in U.S.A regarding the commission of an offence and he is also convicted in india in connection with that offence then it will not amount to the violation of double jeopardy.

Doctrine of double jeopardy does not bar the proceedings before a civil court if the two proceedings are initiated against a person one is civil in nature and other is criminal in nature then it will not attract the provisions of double jeopardy[21]

Hon’ble Supreme Court of India in the case of Commissioner Wealth Tax v. Suresh Seth[22]

Held that, doctrine of double jeopardy does not apply in reference of continuing offences like breach of continuing guarantee, refusal by a man to maintain his wife and children whom he is bound to maintain, running a company without complying legal requirements, etc[23]

Hon’ble Supreme Court of India in the case of  Kunji Lal  v. The State of Madhya Pradesh[24] held that the offence undersection 61 of the Indian Penal Code, is different from the criminal misconduct which is punishable under section 5(2) of the Prevention of the Corruption Act, although some of their ingredients may be common. if a person is punished under Indian Penal Code, he can also be punished under the Prevention of the Corruption Act and doctrine of double jeopardy will not be applied.[25]

Hon’ble Supreme Court of India in the case of  Union of India v. Sunil Kumar Sarkar[26]

In this case an employee of Boarder Road Organisation was martialed and convicted in some of the charges levelled against him and he was awarded sentence of rigorous imprisonment. He was subsequently dismissed from the service under the relevant rules. He took the defence of double jeopardy but Court did not allow him this defencebecause dismissal of a person from the service does not amount to prosecution.[27]

Hon’ble Supreme Court of India in the case of Zahira Habibullah H. Sheikh v State of Gujarat[28]

In this case Hon’ble Court ordered the retrial of accused person and did not invoke doctrine of double jeopardy on the basis retrial of the accused persons.

Similarly in the case of  Kalawati v State of H. P[29] Hon’ble Supreme Court held that, for the applicability of doctrine of double jeopardy following conditions must be fulfilled –

There must be a person who is accused of an offence. The definition of offence will be same as given under Indian Penal Code and General Clause Act, means an act or illegal omission made punishable either by the Indian Penal Code or by any other law for the time being in force[30]

The principle of double jeopardy has also been recognised under Section 300 ofThe Code of Criminal Procedure, 1973 [31] herein after referred as Cr. PC.

As per section 300. Person once convicted or acquitted not to be tried for same offence. — This section contains six clauses and its clause (1) provides that, if a person has either been acquitted or convicted by a competent court for an offence then he neither can be tried again for the same offence nor onthe samefacts for any other offence for which different charge could be imposed against him under section 221 clause (1) of the Cr. PC. This limitation is only applicable while such conviction or acquittal remains in force.

For example, if X has been charged for the offence of theft as servant and acquitted by the competent court. He can not be charged for the same offence of theft until this acquittal shall remain in force.

its clause (2) provides that if a person has been either convicted or acquitted by a competent court. He may be tried subsequently for any different offence for which a separate charge might havebeen imposed against him under section 220 clause (1) of the Cr. PC. But it will be allowed only with the consent of the State Government.

Its clause (3) provides that, if from the same facts two consequences arise and the accused was convicted for one consequences and other consequences was not either in the knowledge of the court at the time of first conviction or it has not happened at the time of first conviction, then accused can be convicted for the different consequences that arose subsequently.

For example, X, is charged to cause grievous hurt to Y and he was convicted. Subsequently Y dies in consequences of the injuries caused to him. X now can also be charged and tried for the offence of culpable homicide.

Its clause (4) provides that, if an accused person was either acquitted or convicted by a court not competent to try that matter, then such person can also be convicted by any other competent court irrespective of such conviction or acquittal.

Its clause (5) provides that, if an accused person was discharged[32] under section258 of the Cr. PC for an offence, then he can not be tried again for the same offence without the consent of court by which he was discharged or by any other court to which first mentioned court is subordinate.

There must be trial of an accused. It means hearing and determination of the case on merit. Trial takes place after the framing of charge. In the summon cases an accused is said to be tried when he appears before the court to answer the questions under section 251 of the Cr. PC. In the case of offences exclusively triable by the court of session, the trial commences in such cases after framing of charge under section 228 of the Cr. PC.[33]

Its clause (6) provides that, the provisions of this section shall not affect the provisions of section 26 of the General Clause Act, 1876[34] and section 188[35] of the Cr. PC.

Section 300 of the Code of Criminal Procedure, 1973 is based upon the plea of “Autrefois acquit[36]”. and “Autrefois convict”[37]. It means that if a person has either been acquitted or convicted in an offence then he can not be tried again for the same offence.

The word “tried” in section 300 (1) of the Code of Criminal Procedure,1973 does not mean trial on the merit. Compromise of persons under section 320 of the Code of Criminal Procedure,1973 or withdrawal from prosecution under section 321 of the Code of Criminal Procedure,1973 will result into the acquittal of the accused and it does not mean trial on merit[38] This view was given by Hon’ble Court in the case of  Shankar Dattatriya Vaze v. Dattatray  Sadashiv  Tendulkar[39]

The protection given under section 300 of the Cr. PC, is wider than the protection given under Article 20(2) of the Constitution of India because section 300 of the Cr. PC includes the protection against acquittal as well as conviction but the protection given underArticle 20(2) of the Constitution of India is against conviction only.

To the take benefit ofprovision of section 300(1) of the Code of Criminal Procedure,1973

Accused has to prove that he was convicted by a “competent court” the expression “competent court” should not be interpreted in a narrow manner. For determining the competence of a court  the consideration should not be given only to the status or th character of a court rather it should be considered that if a court is otherwise competent to adjudicate a dispute but it could not adjudicate due to some legal requirements like taking the prior permission of some authority before prosecution it will not affect the competence of the court[40]

The test to determine that whether both the offences are “same ”or not .it has to be decided on the basis of identity of the offences and not on the basis of identity of allegations[41]

Section 71 of the Indian Penal Code, 1860 also forms the part of doctrine of double jeopardy Itputs the limit on the punishment of an offence which is made up of several offences. It provides that, where an offence is made up of various parts and each part is an offence then offender shall not be liable to be punished with more punishment than one of such his offence, unless it has been expressly provided.

Where any act or illegal omission is an offence as per two or more laws presently inforce in India, or where a person has committed several acts and any of such act constitutes a different offence and when all these acts are combined it also constitutes a different offence then the offender shall not be liable to be punished more severe punishment which could be awarded by the court which tries such offence.

Now we will understand it by an example suppose X gave twenty strokes to Y with a stick, if we consider individual act of beating then he can be held liable twenty time for causing hurt and his total punishment may exceed upto sixty years because an act of causing hurt can be punished upto three years but in this situation, he will only be liable to be punished for a single act of causing hurt.

But if X while causing hurt to Y also causes hurt to Z because Z tried to save Y then X will be liable for two punishment one for Y and other for Z.

For example, the offence of unlawful assembly under section 143 and section146, assaulting or obstructing a public servant when suppressing riot under section 152 and assaulting or using criminal force to deter a public servant from discharge of his duty under section 353 of the Indian Penal Code, 1860. All these provisions are based upon doctrineof double jeopardy under Article 20(2) of the Constitution of India. [42]

This provision of the IPC can be read with Section 31 of the Code of Criminal Procedure, which provides a structure for the sentencing of offenders who have been convicted of several offences at one trial.

Section 40, of the Indian Evidence Act,1872[43] also forms the part of doctrine of double jeopardy. It deals with the previousjudgments which are relevant to bar a second suit or trial.  According to this section the existence of any judgment, order or decree which by law prevents any Court from taking cognizance[44] of a suit or holding a trial, is a relevant fact when the question is whether such Court ought to take cognizance of such suit or to hold such trial.

This section provides for the admission of evidence consisting of judgements, orders or the degrees for showing that, a pending suit or trial is barred either under the Civil or Criminal Procedure Code, and hence the court does not proceed with such suit or take the cognizance of such suit[45].

Protection regarding double jeopardy is also found under section 26[46] of the General Clauses Act,1897. According to this section if where an act or illegal omission constitutes an offence under two or more enactments, then the accused person shall be liable to be prosecuted and punished under any one of such laws and such person can not be prosecuted and punished under both laws, because if a person is prosecuted and punished twice for the same offence it will amount to the violation of protection against double jeopardy under Article 20(2) of the Constitution of India and it will also amount to the violation of right to fair trial enshrined under Article 21 of the Constitution of India.