8/29/2017 Free Law Projects: Constitution of India - Double Jeopardy

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Sunday, August 29, 2010

Constitution of India - Double Jeopardy

LAW PROJECTS
DOUBLE JEOPARDY A GURANTEE AGAINST MISCARRIAGE OF JUSTICE

INTRODUCTION
It is too late to overemphasize or stress on the growing importance of the subject human
rights and the different facets and dimensions thereof, both in the national and international
spheres as well. The basic needs of the human beings are well recognized in almost every Blog Archive
Constitution of the world and though the form or language may be different, the basic
structure appears to be one and the samethe basic requirements and needs of the human 2010 (90)
beings. September (34)
The concept of human rights has assumed very great global importance, be that an
August (56)
advanced country, developed nation or underdeveloped country. The universal opinion is
uniform relating to protection of human rights. Sir Hersch Lauterpacht was pleased to International Law -
Extradition
observe:
"The protection of human personality and of its fundamental rights is the ultimate purpose of Family Law -
all law, national and international." Powers of
The Universal Declaration of Human Rights, The UN Covenant on Economics, Social and Mutawali
Cultural Rights, the UN Covenant on Civil and Political Rights, the European Convention on

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8/29/2017 Free Law Projects: Constitution of India - Double Jeopardy
Human Rights, the American Convention on Human Rights, Rules of Procedure of the Family Law -
Permanent Arab Commission on Human Rights, are a few which may be referred to in this Maintenance
context.Instagram Application Was Blocked CNLU1819 under Muslim
The term "Jeopardy" refers to the "danger" of punishment which is ascribed to any individual Law
brought to trial before a court of competent jurisdiction. Procedural matters prior to trial do
Family Law - Wakf
not constitute jeopardy, and that's why it's said that jeopardy attaches, or may be asserted by
the defendant, once a jury has been sworn in, or the first witness takes the stand, in any Family Law -
original prosecution resulting in any acquittal or conviction. Jeopardy also attaches to any Maintenance of
Wife
plea of guilty (treated the same as conviction) even if later withdrawn. Jeopardy does not
attach to any proceedings resulting in nolle prosequi, mistrial, hung jury, or termination for Family Law -
any other "legally sufficient" reason. Double jeopardy is a procedural defense (and, in many Maintenance
countries such as the United States, Canada, Mexico, Japan and India, a constitutional right) and Alimony
that forbids a defendant from being tried a second time for the same crime.. Law of Contracts -
The concept of double jeopardy is one of the oldest in Western civilization. In 355 B. C. Double
Athenian statesmen Demosthenes said that the "law forbids the same man to be tried twice Indemnity-
on the same issue." The Romans codified this principle in the Digest of Justinian in 533 A. D. Contractual I...
The principle also survived the Dark Ages (400-1066 A.D.) through the CANON LAW and the
Law of Contracts -
teachings of early Christian writers, notwithstanding the deterioration of other Greco-Roman
THE
legal traditions. DOCTRINAL
The roots of the doctrine against Double Jeopardy are to be found in the well established BASIS OF
maxim of the English Common Law Nemo Debet Bis Vexari a man shall not be brought SUB- BAI...
into danger for one and the same offence more than once . If a person is charged again for
Law of Contracts -
the same offence in an English Court , he can plead , as a complete defence , his former
Compensation
acquittal or conviction , or as it is technically Expressed , take the plea of auterifois acquit or for Breach of
autrefois convict . In India, protection against double jeopardy is a Fundamental Right Cont...
guaranteed under Right to Freedom in the Constitution of India.
In terms of criminal process, the plea of double jeopardy is a valid defense response to a Labour Law -
Bangalore
felony arraignment, and like the prosecutor's assertion of nolle prosequi (no prosecution), the
Water Supply
claim of prior jeopardy must be made before a jury is impaneled and sworn in on a second Case
prosecution; i.e., prior to commencement of the second trial. If the claim of double jeopardy is
made after the trial begins, the rule of manifest necessity applies, making it a matter of Constitution of
discretion for the court, and any subsequent dismissal of the case or discharge of the jury India -
Fundamental
must be treated as an acquittal.
Rights During ...
The term "double jeopardy" refers to the "danger" of a second punishment whenever an
individual is brought to trial again for the same crime (or a greater or lesser included crime). Constitution of
This means that there cannot be a second prosecution for the same criminal act (both in fact India - Double
and in law) upon which a first prosecution was based. The accused must be released and Jeopardy
the case dismissed. The challenge is determining what constitutes the "same" crime for Constitution of
double jeopardy purposes. Some of the simpler examples include: India -
an acquittal or conviction for murder will bar any prosecution for manslaughter if based on Delegated
the same facts (lesser included example) Legislation
an acquittal or conviction for larceny-theft will bar any prosecution for robbery if based on Constitution of
the same facts (greater included example) India - Analysis
of ADM
an acquittal or conviction for burglary will bar any prosecution for robbery (even if the Jabalpur
burglar woke up the sleeping couple and robbed them) unless there are distinct elements in
Constitution of
one crime that are not included in the other (multiple criminal transaction example) . India -
an acquittal or conviction for R.I.C.O. will bar any prosecution for conspiracy or attempted Constitutional
R.I.C.O. (continuing crime example) Interpretat...
an acquittal or conviction for battery will not bar any later prosecution for murder if the
Administrative
victims later dies as a result of injuries (separate and distinct new crime example)
Law - Judicial
ANALYSIS OF DOUBLE JEOPARDY IN INDIAN CONSTITUTION
Control
Art . 20 (2 ) which runs as No person shall be prosecuted and punished for the same
offence more than once contain the rule against double jeopardy . Administrative
The principle was in existence in India even prior to the commencement of the Constitution , Law - Doctrine
of Legitimate
but the same has now been given the status of a constitutional , rather than a mere statutory
Expect...
, gurantee .
Both Prosecution and Punishment should co-exist for Article 20 (2) to be operative . A Administrative
prosecution without punishment would not bring the case within Art 20 (2 ) . If a person has Law -
been prosecuted for an offence but acquitted , then he can be prosecuted for the same Discretionary
offence again and punished . Powers
Ex- a person was prosecuted and punished under S.161 I.P.C . On appeal , the High Court Administrative
quashed the trial holding it void ab- initio as no sanction for the same had been obtained Law -
under the law . Art 20 (2 ) would not bar a second trial for the same offence , as the accused Delegated
had not been prosecuted and punished fot that offence . Legislation
Enhancement of punishment by the revising authority does not amount to a second Administrative
punishment . Preventive Detention is not prosecution and punishment and , therefore , it Law - Control of
does not bar prosecution of the person concerned . Delegation
The Supreme Court has explained the legal position as follows in Apte Case
Criminal Law -
To operate as a bar the second prosecution and the consequential punishment thereunder
THEORY OF
must be for the same offence . The crucial requirement therefore for attracting the Article CESARE
is that the offences are the same i.e they should be identical . If however , the two offences LOMBROSO
are distinct , then notwithstanding that the allegations of the facts in the two complaints might
be substantially similar , the benefit of the ban cannot be invoked . It is therefore , necessary Criminal Law -
Juvenile
to analyze and compare not the allegation in the two the allegation in the two complaints but
Delinquency - 1
the ingredients of the two offences and see whether their identity is made out ..
In APTE case , a person was convicted under S. 409 I.P.C . , for criminal breach of trust . His Criminal Law -
later prosecution on the same facts under S.105 of the Insurance act would not be barred Juvenile
under Art 20 (2) because the ingredients of the two offences were different . The court Delinquency
emphasized that the crucial requirement for attracting Art 20(2) is that the offence are the Criminal Law -
same i.e they should be identical . If the two offences are distinct , then , notwithstanding that History of
the allegations of facts in the two complaints are substantially the same , the benefit of the Police in India
ban cannot be invoked . It is therefore necessary to analyse and compare not the
Criminal Law -
allegations in the two complaints but he ingredients of the two offences and see whether their Dying
identity is made out . Declaration - 1
Prosecution & Punishment
Prosecution has no fixed meaning and is susceptible both of a wide and a narrow meaning .

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But as used in Art 20 (2) it embodies the following THREE ESSENTIALS : Criminal Law -
a) There must be a person accused of an offence . The word offence has to be taken in the Definition of
sense inInstagram
which it is Application
used in the General Clauses ActCNLU1819
Was Blocked , 1897 as meaning an act or omission 'Juvenile' and
made punishable by any law for the time being in force 'Child...
b) The proceedings should have been taken before a court or judicial tribunal . The
Criminal Law -
revenue authorities , like the sea customs authorities , are not judicial tribunals . . Likewise Dying
proceedings before a tribunal which entertains departmental or administering enquiries Declaration
c) cannot be considered as proceedings in connection with proceedings in connection with
Criminal Law -
prosecution and punishment .
Definition of
d) The proceedings should have been taken before the judicial tribunal or court in reference
'Juvenile' and
to the law which creates offences . Thus , where an enquiry is held before a statutory 'Child...
authority against a government servant , not for the purposes of punishing for the offence of
cheating and corruption but to advise the government as to the disciplinary action to be taken Criminal Law -
against him , it cannot be said that the person has been prosecuted . It would make no Corruption
difference even if the enquiry is required to act judicially . Criminal Law - A
Punishment Case Study on
1. Punishment in this clause means a judicial penalty , awarded by a Criminal Court , as Cheating
distinguished from a statutory authority and would not include other penalties , such as
Criminal Law -
disciplinary action in the case of public servants , ( including penalty imposed under S. 22 of American
the Public Servants ( Inquiries ) Act 1850 ; or action against a lawyer under the Legal Hierarchy of
Practitioners Act or penalties for the jail offences under disciplinary rules of jail or under the Courts and C...
Prisons Act or penalties under s. 167 ( 8) of the Sea Customs Act , 1878 or under S. 23 (1)
Company Law -
(a) of the Foreign Exchange Regulation Act , 1947 or penalties prescribed by the Rules of a
ORDINARY
Legislature for the Breach of privilege ; or removal under the Influx of Pakistan ( Conrol ) Act AND SPECIAL
or binding down for good behaviour under S. 110 or taking security under S. 107 of the RESOLUTION
Criminal Procedure Code IN B...
Gajendragadkar . J. has rightly stated the protection under Art 20 (2 ) as follows :
Company Law -
The constitutional right guranteed by Article 20 (2 ) against double jeopardy can be
NOMINEE
successfully invoked only where the prior proceedings on which reliance is placed are of a DIRECTORS
criminal nature instituted or continued before a court of law or a tribunal in accordance with VIS--VIS
the procedure prescribed in the statute which creates the offence and regulates the CORPOR...
procedure . Article 359 deals with Suspension of the enforcement of the rights conferred by
Company Law -
Part III during emergencies. Clause
PROVISIONS
(1) permits suspension of the right to move court but excludes Article 20 (retrospectivity of RELATING TO
law relating to offences, double jeopardy and self-incrimination) and Article 21 ( Life and OPRESSION
liberty not to be deprived except according to procedure established by law which after AND...
Maneka Gandhis v. Union of India .
Company Law -
In Maqbool Hussain v. State of Bombay
MERGERS &
It is the leading case on this point . In that case , the appellant , a citizen of India , on arrival
ACQUISITIONS
at the airport , did not declare that he had brought in gold with him . But on the search it was IN UNITED
found that he was carrying 107 tolas of gold in contravention of the Government notification. STA...
The customs authorities thereupon took action against him under Section 167(8) of the Sea
Company Law -
Customs Act , 1878 , and confiscated the gold . Sometime afterwards a complaint was filed
Investigating
in the court of Chief Presidency Magistrate against the appellant charging him with the
the concept of
offence under section 8 of the Foreign Exchange Regulation Act , 1947 . The appellant Public...
pleaded that his prosecution before the magistrate was in violation of the fundamental rights
guranteed under Article 20 (2) because he had already been prosecuted and punished in as Company Law -
much as his gold had been confiscated by the Custom authorities . the court held that the Insider Trading:
A
Sea Customs authorities is not a court or judicial tribunal and the adjudging of confiscation or
Convictionless
the increased rate of duty or penalty under the provision of the Sea Customs Act did not Cr...
constitute a judgement or order of a court or judicial tribunal necessary for the purpose of
supporting a plea of Double Jeopardy . The proceedings taken before the sea customs Company Law -
authorities were , therefore not prosecution of the appellant nor did the order of confiscation INSIDER
TRADING AND
constitute a punishment inflicted by the court or a judicial tribunal on the appellant . The
THE ROLE OF
appellant could not , therefore , be said to have been prosecuted and punished for the same DIRE...
offence with which he was charged before the Chief Presidency magistate .
In S.A. Venkataraman v. Union of India , Company Law -
In this an enquiry had been made against the appellant under the Public Servants ( Inquiries Enforcement of
Corporate
) Act , 1850 . On receiving the report of the Enquiry Commissioner an opportunity was given
Social Re...
to the appellant under Article 311(2) to show cause and ultimately the appellant was
dismissed . Soon thereafter the police submitted a charge sheet against him for having Company Law -
committed offences under Section 161 and 165 , Penal Code , 1860 and Section 5 (2) of the Derivative
Prevention of Corruption Act , 1947 . The validity of the subsequent prosecution was Action under
Indian Compa...
chaalenged by the appellant on the ground that it contravened the constitutional gurantee
embodied in Article 20 (2). His plea was rejected on the ground that the proceeding taken Company Law -
against him before the Commissioner under the Enquiries Act did not amount to a Death &
prosecution because in an enquiry under the act there was neither any question of Reconstrction
investigating an offence in the sense of an act or ommission punishable by any law which of Secured
made that act or omission an offence . The rule is the same even if the departmental enquiry Cre...
is set up after the acquittal of the accused in a criminal prosecution on the same facts. Company Law -
In A.A Mulla v. State of Maharashtra CORPORATE
In this case the appellants were charged under the Section 409 I.P.C. and Section 5 of the SOCIAL
Prevention of Corruption Act for making false panchnama disclosing of recovery of 90 Gold RESPONSIBLI
Biscuits although to prosecution case the appellant had recovered 99 Gold Biscuits . They TY FALL...
were tried for retaining remaining 9 Gold Biscuit before the special judge but the appellant Company Law -
were aquitted . On the ground that the prosecution have failed to prove misappropriation the Corporate
appellant were again tried under Customs Act and the Foreign Exchange Regulation Act ( Social
FERA ) . The appellants challenged th validity of there second trial on the ground that it was Responsibility
violative of Art. 20 ( 2 ) of the Constitution . It was held that the second trial was not barred as and ...
not only the ingredients of the offence of two trial were different but the factual situation of the Company Law -
offences in the first and the second trial were also different . Case analysis
Double Jeopardy and the Bar of Issue Estoppel :- on the
While Art. 20 (2) bars double punishment , the rule of issue estoppel is a facet of the inspection
doctrine of autrefois acquit and bars reception of evidence on an issue on which finding was and...
in favour of the accused at a previous trial . Art. 20(2) has no direct bearing on the question Company Law -
at issue ; it operates as soon as a person had previously been punished in a previous CROSS
proceeding . Identity of the issue and the acquittal of the person at a previous trial on the BORDER

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8/29/2017 Free Law Projects: Constitution of India - Double Jeopardy
same issue is the condition for the application of the rule of issue estoppel while identity of INSOLVENCY
the same offence is a requisite for the application of Art. 20 (2) and MNCs ...
DOUBLE JEOPARDY
Instagram FOLLOWED
Application Was IN OTHER COUNTRIES
Blocked CNLU1819
Company Law -
1. Australia Norms on
Australian double jeopardy jurisprudence is very similar to other common law countries. Responsibilities
While there is no constitutional protection against re-trials following acquittal, there have of Transna...
been few examples of statutory exceptions.
Company Law -
In all state jurisdictions prosecutors can appeal against the sentence handed down by the
Corporate
trial judge and in South Australia and Tasmania the prosecution can appeal against an error Governance,
of law made by the trial judge in certain situations. However the aquittal will still stand valid Corporate
and the purpose of the appeal is merely to clarify the relevant law for future cases. Mana...
In contrast to other common law jurisdictions, Australian double jeopardy law has been held
Company Law -
to extend to prevent prosecution for perjury following a previous acquittal where a finding of
Business
perjury would controvert the previous acquittal. This was confirmed in the case of The Queen Method Patents
v Carroll, where the police found new evidence convincingly disproving Caroll's sworn alibi
two decades after he had been acquitted of the murder of a young girl and successfully Company Law -
prosecuted him for perjury. Public outcry following the overturning of his conviction by the The politics of
Corporate
High Court has led to widespread calls for reform of the law along the lines of the UK
Convergenc...
legislation.
2. Canada Company Law -
The Canadian Charter of Rights and Freedoms includes provisions such as Section 11(h) Role of
prohibiting double jeopardy. But often this prohibition applies only after the trial is finally Takeover
Regulations in
concluded, in contrast to the laws of the United States, Canadian law allows the prosecution
Prot...
to appeal from an acquittal. If the acquittal is thrown out, the new trial is not considered to be
double jeopardy because the first trial and its judgement would have been annulled. In rare Company Law -
circumstances, a court of appeal might also substitute a conviction for an acquittal. This is How to register
not considered to be double jeopardy either - in this case the appeal and subsequent unregistered
conviction are deemed to be a continuation of the original trial. compani...
3. Europe Company Law -
All members of the Council of Europe (which includes nearly all European countries, and all Need to define
members of the European Union) have signed the European Convention of Human Rights, the Role of
which protects against double jeopardy. The Seventh Protocol, Article Four, says: Independe...
No one shall be liable to be tried or punished again in criminal proceedings under the Company Law -
jurisdiction of the same State for an offence for which he has already been finally acquitted or Analysis of
convicted in accordance with the law and penal procedure of that State. Prefential
This specific optional protocol has been ratified by all EU states except six (namely Belgium, Allotment and...
Germany, The Netherlands, Portugal, Spain and the United Kingdom). Those members
Company Law -
states may still have the provision in their respective constitutions providing a prohibition Whistleblower
against double jeopardy. concept in India
In many European countries the prosecution may appeal an acquittal to a higher court with ...
(similar to the provisions of Canadian law) - this is not counted as double jeopardy but as a
Company Law -
continuation of the same trial. This is allowed by the European Convention of Human Rights -
Independent
note the word finally in the above quote. Director
4. France
Once all appeals have been exhausted on a case, the judgment is final and the action of the Company Law -
prosecution is closed (Code of Penal Procedure, Art. 6), except if the final ruling was forged. Company Law
Tribunal and
Prosecution for an already judged crime is impossible even though new incriminating
Company Law...
evidence has been found. However, a person who has been convicted may request another
trial on grounds of new exculpating evidence.
5. United Kingdom
The Parliament of the United Kingdom passed legislation in the Criminal Justice Act 2003
introduced by then Home Secretary David Blunkett to abolish the previously strict form of NEW PROJECTS
prohibition of double jeopardy in England. Retrials are now allowed if there is 'new and
compelling evidence'. All cases must be approved by the Director of Public Prosecutions and
the Court of Appeal must agree to quash the original acquittal.[1]
DOUBLE JEOPARDY AS A FUNDAMENTAL LEGAL RIGHT
The right not to be tried twice for the same offence is a fundamental legal and human right
recognised in many Bills of Rights and human rights treaties. Here's a sample of them:
1. UN International Covenant on Civil and Political Rights, Article 14(7)
No one shall be liable to be tried or punished again for an offence for which he has already
been finally convicted or acquitted in accordance with the law and penal procedure of each
country.
2. Bill of Rights Act 1990 (NZ) Section 26(2)
No one who has been finally acquitted or convicted of, or pardoned for, an offence shall be
tried or punished for it again.
3. Charter of Fundamental Rights of the European Union (2000) Article 50
No one shall be liable to be tried or punished again in criminal proceedings for an offence for
which he or she has already been finally acquitted or convicted within the Union in
accordance with the law.
4. Canadian Charter of Rights and Freedoms (1982) Section 11(h)
Any person charged with an offence has the right...if finally acquitted of the offence, not to be About Me
tried for it again and, if finally found guilty and punished for the offence, not to be tried or
punished for it again. lawprojectsforfree
DOUBLE JEOPARDY IN U.S CONSTITUTION
View my complete profile
Generally, individuals may be tried only once for a particular offense under the double
jeopardy clause. Originally, the protection against double jeopardy did not extend to
prosecutions in state courts. In Benton v. Maryland , the Supreme Court "incorporated" the
clause under the Fourteenth Amendment, meaning that state courts were now required to
honor the protections of the Fifth Amendment in state criminal proceedings as well.

The Fifth Amendment refers to being put in "jeopardy of life or limb." The clause, however,
has been interpreted as providing protection regarding "every indictment or information
charging a party

with a known and defined crime or misdemeanor." The clause, it has been held, does not
prevent separate trials by different governments, and the state and federal governments are

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considered "separate sovereigns". Therefore, one may be prosecuted for a crime in a state
court, and also prosecuted for the same crime in another state, a foreign country, or (most
commonly) in a federal
Instagram court. Was Blocked
Application CNLU1819
Once acquitted, a defendant may not be retried for the same offense: Ball v. U.S . "A verdict
of acquittal, although not followed by any judgment, is a bar to a subsequent prosecution for
the same
offense.". Acquittal by a jury is generally final and cannot be appealed by the prosecution,
Fong Foo v. United States, An acquittal in a trial by judge (bench trial) is also generally not
appealable by the prosecution, United States v. Jenkins, A trial judge may normally enter an
acquittal if he deems the evidence insufficient for conviction. If the judge makes this ruling
before the jury reaches its verdict, the judge's determination is final. If, however, the judge
overrules a conviction by the jury, the prosecution may appeal to have the conviction
reinstated.
Defendants may not be retried following conviction except in limited circumstances. Bribing a
judge to get an acquittal is not valid because the party acquitted has prevented themselves
from being placed into "jeopardy" in the first place. Harry Aleman v. Judges of the Criminal
Division, Circuit Court of Cook County, Illinois, et al., . If a defendant appeals a conviction
and is successful in having it overturned, they are subject to retrial. An exception arises if the
verdict is overturned on the grounds of evidentiary insufficiency, rather than on the grounds
of procedural faults. As noted above, if the trial court made a determination of evidentiary
insufficiency, the determination would constitute a final acquittal; in Burks v. United States , it
was held that "it should make no difference that the reviewing court, rather than the trial
court, determined the evidence to be insufficient". Another exception arises in cases of
conviction for lesser offenses. For instance, if a defendant is charged with murder in the first
degree, and is convicted by the jury of murder in the second degree, and later the jury's
conviction is overturned on procedural grounds, the defendant may be retried for second
degree but not first degree murder; the jury, by convicting the defendant of second degree
murder, is deemed to have implicitly acquitted them of first degree murder.
The defendant may not be punished twice for the same offense. In certain circumstances,
however, a sentence may be increased. It has been held that sentences do not have the
same "finality" as
acquittals, and may therefore be reviewed by the courts. Sentence increases may not,
however, be made once the defendant has already begun serving his term of imprisonment.
If a defendant's conviction is overturned on procedural grounds, the retrial may result in a
harsher penalty than the original trial. The only exception is that the prosecution may not
seek capital punishment in the retrial if the jury did not impose it in the original trial. The
reason for this exception is that before imposing the death penalty the jury has to make
several factual determinations and if the jury does not make these it is seen as the equivalent
of an acquittal of a more serious offense.

In Arizona v. Rumsey, , it was ruled that in a bench trial, when a judge was holding a
separate hearing after the jury trial, to decide if the defendant should be sentenced to death
or life imprisonment, the judge decided that the circumstances of the case did not permit
death to be imposed. On appeal the judge's ruling was found to be erroneous. However,
even though the decision to impose life instead of death was based on an erroneous
interpretation of the law by the judge, the finding of life imprisonment in the original case
constituted an acquittal of the death penalty and thus death could not be imposed upon a
subsequent trial. Even though the acquittal of the death penalty was erroneous in that case,
the acquittal must stand.
Mistrials are generally not covered by the double jeopardy clause. If a judge dismisses the
case or terminates the trial without deciding the facts in the defendant's favor (for example,
by dismissing the case on procedural grounds), the case is a mistrial and may normally be
retried. Furthermore, if a jury cannot reach a verdict, the judge may declare a mistrial and
order a retrial. When the defendant moves for a mistrial, there is no bar to retrial, even if the
prosecutor or judge caused the error that forms the basis of the motion. An exception exists,
however, where the prosecutor or judge has acted in bad faith. In Oregon v. Kennedy, the
Supreme Court held that "only where the governmental conduct in question is intended to
'goad' the defendant into moving for a mistrial may a defendant raise the bar of double
jeopardy to a second trial after having succeeded in aborting the first on his own motion."
Defendants may not more than once be placed in jeopardy for the "same offense".
Sometimes, however, the same conduct may violate different statutes. In Blockburger v.
United States, the Supreme Court held that "where the same act or transaction constitutes a
violation of two distinct

statutory provisions, the test to be applied to determine whether there are two offenses or
only one, is whether each provision requires proof and love of a fact which the other does
not". For example, the test was applied in Brown v. Ohio, . The defendant had first been
convicted of operating an automobile without the owner's consent, and later of stealing the
same automobile. The Supreme Court concluded that the same evidence was necessary to
prove both offenses, and that in effect there was only one offense. Therefore, it overturned
the second conviction.
In other cases, the same conduct may constitute multiple offenses under the same statute,
for instance where one robs many individuals at the same time. There is no explicit bar to
separate prosecutions for different offenses arising under the same "criminal transaction", but
it is not permissible for the prosecution to re-litigate facts already determined by a jury. In
Ashe v. Swenson, the defendant
was accused of robbing seven poker players during a game. John Ashe was first tried for,
and acquitted of, robbing only one of the players; the defense did not contest that a robbery
actually took place. The state then tried the defendant for robbing the second player;
stronger identification evidence led to a conviction. The Supreme Court, however, overturned
the conviction. It was held that in the first trial, since the defense had not presented any
evidence that there was no robbery, the jury's acquittal had to be based on the conclusion
that the defendant's alibi was valid. Since one jury had held that the defendant was not
present at the crime scene, the State could not re-litigate the issue.
Jeopardy Attaches
A defendant's right to freedom from double jeopardy begins when jeopardy attaches.
Jeopardy attaches in a jury trial when the jury is sworn. Jeopardy attaches in a judge trial

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8/29/2017 Free Law Projects: Constitution of India - Double Jeopardy
(also called a bench trial or nonjury trial) when the first witness is sworn. If a defendant
pleads to the crime charged (or to a lesser crime, as is often the case in a plea agreement),
then jeopardy attaches
Instagram when the
Application court
Was accepts the defendant's
Blocked CNLU1819 plea.
Same Offence
In order for the rule of double jeopardy to apply, the subsequent trial must be based on the
exact same facts as the former trial. The trials must be for the same incidence of the crime. If
a defendant is prosecuted for a crime in which he committed multiple incidences of the same
crime, each incidence can be tried separately without double jeopardy. However, even if the
incidences of the crime can be tried separately, if the defendant was already tried on a
material fact of the crime and acquitted of that material fact, then in most cases, any
subsequent trial is barred from prosecuting that material fact.
Two or More Prosecutions
The Fifth Amendment does not protect a person from being tried by two or more separate
governments. Thus, both the federal government and the state government are able to
charge and prosecute one person for the same criminal act, which is often the case for drug
related crimes. As well, two or more states can prosecute and try a person for the same
criminal act.
A local government is not separate from a state government, therefore double jeopardy
would apply in a situation in which a person was prosecuted, tried, and acquitted by a local
government. The double jeopardy rule would prevent the state government from
subsequently prosecuting and trying that same person for that same crime.
Trial after Successful Appeal
An appeal will not bar a subsequent trial of the same crime if the defendant was not
acquitted. Therefore, if a defendant is prosecuted and found guilty, and then successfully
appeals the conviction (the appellate court reverses the conviction), the government is not
barred from retrying the defendant for the crime, unless the government failed to introduce
sufficient evidence at trial which then in turn became the grounds upon which the appellate
court reversed the conviction.
Grand Jury Proceedings
Double jeopardy does not apply to grand jury proceedings. A person who is subpoenaed to,
testifies before, and is acquitted of charges brought to the grand jury can be repeatedly
retried by that same grand jury.

COMPARISON BETWEEN INDIA & U.S. CONSTITUTION

1. The ambit of Art 20 (2) is however, narrower than the American rule against double
jeopardy.

2. Indian Provision enunciates only the principle of autrefois convict but not that of autrefois
acquit whereas in American constitution both these rules operate and second trial is barred
even when the accused has been acquitted at the first trial for that offence In India ,
on the other hand , the rule autrefois acquit is not incorporated in Art 20 ( 2 ) . Art 20 (2 ) may
be invoked only when there has been prosecution and punishment in the first instance .

3. 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 whether the accused was acquitted or convicted in the
first prosecution , the Common law Principle is also the same whereas 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 be shown that he had been prosecuted before a court and punished by it for
the same offence for which he is prosecuted again .

4. In India the, protection against double jeopardy is a Fundamental Right guaranteed under
Right to Freedom in the Constitution of India.
And is enshrined in Art . 20 (2 ) which runs as No person shall be prosecuted and punished
for the same offence more than once contain the rule against double jeopardy whereas in
U.S constitution it is enshrined in US Constitution, Fifth Amendment as No person shall
be...subject for the same offence to be twice put in jeopardy of life or limb...

5. In U.S constitution The clause, however, has been interpreted as providing protection
regarding "every indictment or information charging a party with a known and defined crime
or misdemeanor." The clause, it has been held, does not prevent separate trials by different
governments, and the state and federal governments are considered "separate sovereigns".
Therefore, one may be prosecuted for a crime in a state court, and also prosecuted for the
same crime in another state, a foreign country, or (most commonly) in a federal court.
Whereas in India Both Prosecution and Punishment should co-exist for Article 20 (2) to be
operative . A prosecution without punishment would not bring the case within Art 20 (2 ) . If a
person has been prosecuted for an offence but acquitted , then he can be prosecuted for the
same offence again and punished Ex- a person was prosecuted and punished under S.161
I.P.C . On appeal , the High Court quashed the trial holding it void ab- initio as no sanction for
the same had been obtained under the law . Art 20 (2 ) would not bar a second trial for the
same offence , as the accused had not been prosecuted and punished fot that offence .
6. In U.S Constitution ,In order for the rule of double jeopardy to apply, the subsequent trial
must be based on the exact same facts as the former trial. The trials must be for the same
incidence of the crime. If a defendant is prosecuted for a crime in which he committed
multiple incidences of the same crime, each incidence can be tried separately without double
jeopardy whereas in Indian Constitution the previous conviction for one offence ( e.g. hurt )
does not bar a subsequent trial and conviction for a separate and distinct offence ( say affray
) even though the two offences arise out of the same facts , and the allegations in the two
complaints are identical . Distinct offences may be created by different statutes or by different
provision of the same statutes

7. Under the U.S Constitution the protection agaist Double jeopardy is given for the second
prosecution of the same offence irrespective of whether an accused was aquitted or
convicted in the first trial wheras in article 20 (2) of the Indian Constitution 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 .

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8/29/2017 Free Law Projects: Constitution of India - Double Jeopardy

8. In the U.S Constitution , The double jeopardy principle was explicitly incorporated into the
Constitution when the
Instagram Bill of Rights
Application Waswas ratified in 1791.
Blocked whereas in India the Principle of
CNLU1819
Double Jeopardy was in existence in India even prior to the commencement of the
Constitution and is enacted under in S. 26 of the General Clauses Act and S. 403 (1) of Cr.
P.C, 1898 , S. 300 Cr. P.C. , 1973

Conclusion

Double Jeopardy is concept originated from Natural Justice which follows the audi alterum
partem rule , which says that person persecuted once cannot be punished again for same
offence, but this concept is subjected to certain restriction. 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 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 . Art 20(2) deals with this subject
.The Court has to keep in mind what offences constitutes same offence and which do not .if
certain person is acquitted before court of law in India then it is to be shown that he was
prosecuted and punished ,simply proving that accused was prosecuted cast no defence of
double jeopardy .
To claim Double Jeopardy accused has proved that he was :-
(1) firstly prosecuted and
(2) awarded punishment .
If any of these is absent it will not amount to Double Jeopardy Enhancement of punishment
by the revising authority does not amount to a second punishment. Preventive Detention is
not prosecution and punishment and , therefore , it does not bar prosecution of the person
concerned.It has been held that Article 20(2) does not apply to a continuing offence . Both
Prosecution and Punishment should co-exist for Article 20 (2) to be operative . A prosecution
without punishment would not bring the case within Art 20 (2 ) . If a person has been
prosecuted for an offence but acquitted , then he can be prosecuted for the same offence
again and punished . Ex- a person was prosecuted and punished under S.161 I.P.C . On
appeal , the High Court quashed the trial holding it void ab- initio as no sanction for the same
had been obtained under the law persecution amount only before court of law not any official
of state like Police inspector .American constitution enshrine this concept of double jeopardy
by Vth amendment ,which is quite broader than Indian . It amount when person is persecuted
only. accused can take defence when he is prosecuted only ,he need not to show that he
was punished .
The Court made it clear that the principle of Issue of Estoppel is different from the rule of
Double Jeopardy incorporated under Art. 20 (2).

I my opinion I consider that Art 20(2) is quite concept which requires to prove that
persecution was of same crime for which he was punished.here I would like to comment that
for judges should take active part and form bench or jury in order to decide the case in
accordance with natural justice. In my opion Indian constitutional maker laid down proper
condition for double jeopardy ,which was in accordance with condition of India . autrefois
convict is upheld not autrefois acquit.According to that second trail is not barred even
when accused has been acquitted at the first trail for that offence. In

Posted by lawprojectsforfree at 11:00 AM

1 comment:

Anonymous June 26, 2012 at 7:58 PM

good, who wrote this
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