Double Jeopardy In India: Incomplete And Inconsistent?
Ishaan Uday
9 Aug 2024 10:15 AM IST
The rule of double jeopardy has a plethora of definitions attached to it and finds its roots in the English Common Law rule of 'Nemo Debet Vis Vexari', meaning “a man must not be put in peril twice for the same offence”, essentially aiming to prevent a person from being punished twice for the same offence. This rule some may say is devoid of origin due to its multiplicity of roots and citations in legal history. It is said to have always existed as if it were part of the natural law theory. From the Greeks and Romans in Justinian's Digest to Canon Law and the Code of Hammurabi, it simply has always found itself in all of these historic laws. The idea was codified and introduced formally into Roman Law through the Justinian Code (under the reign of Emperor Justinian I, the then Emperor of Eastern Rome) expressing the idea of barring a subsequent conviction for the same offence by a person by the Governor. Canon Law as early as 857AD, stated that nobody, not even God himself could be judged twice for the same offence. Fast forwarding to the present, we can find this rule imbibed in many Constitutions across the world, being a constitutionally guaranteed right in the United States of America, Mexico, Canada and only partly in India (we shall see why in the upcoming parts of this piece), whereas in common law countries, it is found and implemented through Statutory laws. Another important point to note is that this rule is purely limited to suits that are criminal in nature and does not prohibit defendants from being charged in a Civil court for the same offence.
Why is the rule of Double Jeopardy of such importance?
The rule of double jeopardy upholds legal standards and principles that must be inalienable to humankind, it is one of the laws that make up the very essence of a law; ensuring that the justice that Courts deliver truly is 'just' in nature. It protects the people from the State and the State from erroneously wearing its own people down. It acts as a barrier to keep the parties from overstepping their bounds by cutting down on prosecutorial and judicial discretion and also preserves the dignity and one might argue the very existence of Courts by placing a capping arbitrary retrials. This forces the Government to accept even those judgements which do not go in its favour and may even be damaging to it. Last of all, it prevents the State from maliciously prosecuting individuals (individuals whose interests do not fall in line with the current government's) to harass them emotionally, financially, and socially. The entire Justice system universally, (especially the criminal justice system), works on a principle of 'no compromise' on select principles such as this rule.
Autrefois Acquit and Autrefois Convict
Double Jeopardy is often composed of two doctrines, namely the Doctrine of Autrefois Acquit and the Doctrine of Autrefois Convict, both of which are French terms which translate to 'formerly acquitted' and 'formerly convicted' respectively. The Doctrine of Autrefois Acquit applies when a person who has already been acquitted by a court of competent jurisdiction is put on trial again and is put on trial for the same offence and on the same facts while the Doctrine of Autrefois Convict is applicable when a person who has already been convicted by a court of competent jurisdiction is put on trial for the same offence again. Both of these doctrines when combined make up the rule of double jeopardy.
Double Jeopardy in India: Constitutional right or Statutory Law?
The first known codified version of a rule against Double Jeopardy in the Indian subcontinent could be found under Section 403(1) of the Code of Criminal Procedure of 1898. However, this was rendered to be 'stillborn' post the commencement of the new Code of Criminal Procedure of 1973. As for constitutional guarantees, the Constitution of India only offers partial protection against Double Jeopardy under Article 20(2) which reads- “No person shall be prosecuted and punished for the same offence more than once.” It is quite apparent by this sentence that it only contains in it the Doctrine of Autrefois Acquit, leaving out Autrefois Convict.
Nonetheless, the Code of Criminal Procedure of 1973, under Section 300(1) has the double jeopardy rule which offers full protection; it is inclusive of both doctrines and is read as “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 sub-section (1) of Section 221, or for which he might have been convicted under sub-section (2) thereof.” (the words above have been underlined by the author of this piece for the convenience of the reader).
Constitution and Statutory law at loggerheads?
One can clearly observe the discrepancy between the Constitution and the CrPC, which begs the question, “Are the Constitution and the CrPC at loggerheads with each other? How is one defying the other? Which one of these apply finally?”
We delve into some judgements to understand this better, starting off from that of the Supreme Court in Kolla Veera Raghav Rao v Gorantla Venkateswara Rao (Criminal Appeal No. 1160 of2006). Here, the Apex Court took note of the difference between the language used in Article 20(2) and that of Section 300(1). The respondent in this case had already been convicted under Section 138 of the Negotiable Instruments Act and now was being charged with Section 420 of the Indian Penal Code under similar facts but for a different offence. The Supreme Court applied the definition under Section 300(1) of the CrPC and reiterated that no person could be tried again for the same offence, nor on the same facts for any other offence other than the one they have already been convicted or acquitted of. Here, the Supreme Court found that the definition in the CrPC was more effective, expansive and suitable to the situation and reasonably applied it.
Did the Supreme Court in a sense override the Constitution and indulge in judicial overreach? We shall put this to rest right after we explore a judgement of the Bombay High Court in Sachin v State of Maharashtra (2021, SCC OnLine Com 1576, decided on 4-08-2021), a case involving the FSS (Food Safety and Standards Act 2006) act where the defendant was found to be selling a banned substance (gutkha) in his pan shop and was charged under both the Indian Penal Code and the Food Safety and Standards Act. However, without going into much detail, Justice Manish Pitale of the Bombay HC sought to explain such inconsistency between Section 300 of the CrPC and Article 20(2) of the Constitution. The petitioner had already been acquitted for charges under Section 188 and 272 of the IPC and Section 59 of the FSS Act. The FSO (Food Security Officer) had brought more charges under the same offences and against the same facts which Justice Manish Pitale struck down and allowed the plea of Double Jeopardy finding the definition under Section 300 of the CrPC to be applicable.
Statutory laws supplementary in nature
The Constitution and the CrPC are definitely not “at loggerheads” with each other. The Constitution is the supreme law of the land, a document which trumps all others, containing inviolable rights and protecting the people from themselves and the State. Statutory laws like the CrPC do nothing but substantiate these rights. The CrPC by incorporating in it the Doctrine of Autrefois Acquit does not violate or supercede the Constitution but aims to further the interests of Criminal Rights in India, the very thing the Constitution aims to do under Article 20. It defines and lays out procedures for enforcing the laws under the Indian Penal Code, both statutes that fall in line with the Indian Constitution and are consistent with it. They are purely supplementary in nature, filling in the gaps the Constitution has left out, one can infer from the above mentioned judgements.
The rule of double jeopardy is only partly constitutionally guaranteed, but the statutory laws very quickly and affirmatively take care of this and ensure that the rule is fully 'procedurally guaranteed.' Both Doctrines apply and the principle of 'Nemo debet vis vexari' is very rightly upheld. One can say without a doubt that if the Supreme Court of India is the watchdog of our Constitution, then this provision is the watchdog of fundamental criminal rights and procedure.
Thus the rule of double jeopardy in India is not incomplete or inconsistent.
Lastly, it is important to acknowledge that the IPC, CrPC and IEA (Indian Evidence Act) are no longer in force as they've been replaced by the new criminal laws, namely, the BNS (Bharatiya Nyaya Sanhita), BNSS (Bharatiya Nagrika Suraksha Sanhita) and the BSA (Bharatiya Sakshya Adhiniyam). The rule of Double Jeopardy that could previously be accessed under Section 300 of the CrPC is now found under Section 337 of the BNSS, completely unchanged like old wine in a new bottle. Logically assuming, the implementation and interpretation of Section 337 should be the same as that of Section 300, but the entirety of the legal world is left in a cloud of mist (and the uncertainty of judicial discretion) and one can only answer this question when it is challenged in Court under the new laws. What is certain is that the law is an ever evolving mechanism that adapts to the nature of the society in which it is conceived, merely a reflection of the people it governs.
The author is a 2nd Year Student at GNLU. Views are personal.
