(Vaibhav Sharma is a fifth year student at S.S. Jain Subodh Law College, Jaipur. This is part 1 of a two part series.)
Featured artwork: Ball at the Court of King Henri III of France, or Ball of the Duke of Alencon, 2nd half of the 16th century

INTRODUCTION

Article 20(2) of the Constitution provides all persons with the fundamental right to protection against double jeopardy. Any person who has once been ‘prosecuted and punished’ for an offence, cannot be put in danger for the same offence again.

This protection was described as “a very sacred sentiment”^[i] by framers of the Indian Constitution. It also finds a place in the International Covenant on Civil and Political Rights (ICCPR).^[ii]

Fundamental rights, owing to their significance, have the privilege of being well discussed in academic circles and courts of law. It is only under rare circumstances that a fundamental right has not been exhaustively deliberated on. It is very common for the courts and academicians to test and verify fundamental rights from all angles and aspects, and to lay bare all the vulnerabilities and weaknesses. More significance gets attached with such examination where the law pertains to criminal justice rights since the individual is put at high risk of life and liberty in criminal proceedings. Such an incising approach not only enables a more comprehensive understanding but also helps to strengthen the legal framework.

Surprisingly, despite the sacramental value of the protection enshrined under Article 20(2), not only in the Indian Constitution but in all civilized jurisprudence, the right against double jeopardy has not been thoroughly examined in an international context.

On reviewing the existing research, it appears that very little attention has been paid beyond the issue of adjunctive or conjunctive reading of the terms ‘prosecuted and punished’ in the Article. The question of whether Article 20(2) of the Constitution will be applicable where the accused has already been convicted by a foreign court for the same offence remains unanswered.

The unresolved issue, in other words, is: can the Government of India prosecute an Indian citizen for an offence after he was prosecuted, convicted, and punished for the same offence in another country?

Certain occasions did arise before the Indian courts to straighten out the dilemma. However, the government evaded the judicial scrutiny by charging the accused with offences different than from what he was previously convicted by the foreign court.

This article is written to analyze the existing legal position in this regard and attempts to resolve the legal dilemma. The first part deals with a critical examination of Indian laws on double jeopardy where there are multiple concurrent jurisdictions. It analyses also the procedural framework of Indian criminal law, besides the constitutional provisions.

The second part of the paper discusses the law of the United States on the subject, its evolution, and then offers a critical analysis.

LEGAL FRAMEWORK IN INDIA

Double jeopardy is dealt under Indian laws on two levels – constitutional and statutory. The protection is provided under Article 20(2)[iii] of the Indian Constitution and Section 300 of the Criminal Procedure Code[iv] [Hereafter referred to as “Code”].

However, it must be noted that the above-stated provisions are not identical. While the constitutional guarantee mentions no exceptions to the rule, Section 300 of the Code prescribes instances where a person can indeed be retried. Other than the exceptions, it also lays down pre-requisites for activation of the protection. While Article 20(2) does not expressly contain any requirement other than “prosecution and punishment for the same offence”, protection under Section 300 of the Code lays down an additional qualification of “court of competent jurisdiction”. Therefore, protection against double jeopardy depends upon what is understood by “offence” and “court of competent jurisdiction”.

The case Maqbool Hassan v. the State of Bombay[v] is an important authority on this. The Supreme Court decided that protection against double jeopardy clause cannot be sought where the first penalty was imposed by an authority which not a ‘court of competent jurisdiction’ for the clause. It ruled against consideration of custom authorities as judicial tribunals and held that penalties imposed by them do not “constitute judgement or order of a court or judicial tribunal necessary for supporting a plea of double jeopardy.” Hence, where a prior punishment or penalty was imposed by an ‘incompetent authority’, the protection against double jeopardy cannot be invoked.

Not only the authority imposing prior punishment must be ‘competent’, but the second prosecution must be for the “same offence” The Supreme Court in State of Bombay v. Apte[vi] observed that “the offences… are distinct due to their ingredients. So as to constitute double jeopardy two offences should be identical.” Thus, if the same set of facts attract multiple offences with different ingredients, retrial is not barred. This principle has been followed in a plethora of cases.[vii]

This approach is the ingredient-based approach: whether protection against double jeopardy is available or not is determined by considering the offences based on their ingredients. This is in contrast with the ‘sovereignty-based approach’ adopted by the courts of the United States which be discussed later in the paper.

However, in the cases which attract multiple concurrent jurisdictions of different sovereign States, the law is not at its simplest as the ‘offence’ and the ‘court’ concerned are both foreign. Section 188 of the CrPC[viii] provides that regardless of the place of commission of the offence, the person would “be dealt with… as if it [the offence] had been committed at any place within India at which he may found.” This provision is an exception to the rule laid in Section 300 of the CrPC, and therefore, draws a parallel leading to the opposite direction.

Since the exception contained in Section 300(6) make the offences committed abroad triable in Indian Courts, irrespective of whether they’ve already been tried or not, an inference can be drawn that protection against double jeopardy is not available where a different sovereign State has concurrent jurisdiction. The principle of double jeopardy could go down the drain.

Such an understanding was adopted by Kerala High Court in Abdul Salam v. State of Kerala[ix]. The petitioner was the victim of theft in Abu Dhabi by one of the respondents. He filed a complaint in Abu Dhabi. The accused was tried in Abu Dhabi Federal First Instance Court, was found guilty and sentenced to undergo imprisonment. Upon his return, he was charged by Indian authorities for the same offence.

The Court noted that Section 300(6) of the CrPC exempts Section 188 of the Code from its effect. It explained the exemption’s effect and observed: “When an offence is committed outside India and the person who committed the offence being a citizen of India is being dealt with in respect of such offence as if it had been committed within India Section 300 has no application.”

The Court also dealt with the interpretation of Article 20(2) of the Constitution. It noted:

“Article 20(2) of the Constitution of India says that no person shall be prosecuted and punished for the same offence more than once… When a person, who had been prosecuted and punished in a foreign country for an offence under the law in force in that country, is prosecuted in India for the commission of an offence, he is being prosecuted for an offence under the law in force in India. The prosecution in India is not for the act which was made an offence under the law in force in foreign country, but for the act which is an offence as per the law in India.”

The interpretation restricted application of Article 20(2) of the Constitution to cases where accused was first prosecuted under Indian law. Therefore, every commission of offence abroad is re-triable before the Indian courts, regardless of prior prosecution and conviction by a foreign court for the same offence, and thus, Article 20(2) has no application beyond the territory of India.

Unfortunately, this understanding adopted by the Court is deeply flawed. The Court has adopted the scope of ‘offence’ based on different sovereign State (and thus, different legal framework). This approach is erroneous and betrays the hitherto evolved judicial precedents and outlook on what is considered an “offence” for Article 20(2) of the Constitution. In all the above-cited judicial precedents, whether retrial can occur or not for the same act but different offences, has been determined based on ingredients of those offences. If the ingredients are distinct, the offences are also distinct and the retrial is not barred; and if the ingredients of the different laws are same, retrial is barred even if the two offences are present under different laws (ingredient-based approach).

Also, the Kerala High Court ruling erred in prioritizing Section 300(6) of the Code over Article 20(2) of the Constitution. The Code allowed retrial of the convicted person on the ground of Section 188 of the Code being specifically mentioned as an exception in Section 300 of the same Code. However, the Court seems to have ignored the well-established principle that in a conflict of statutes and fundamental rights, fundamental rights are to be given primacy. Since Article 20(2) of the Constitution carries no exception, the correct legal course is to bar the retrial proceedings of the already convicted person.

The Indian jurisprudence evolved on this matter leads to the conclusion that irrespective of the court before which where accused was prosecuted and punished, a subsequent retrial of the accused is barred if it is for the same offence, i.e., if the offence has the same ingredients as the offence for which he was previously prosecuted.

This Part has discussed how the position in the Indian law can be said to have foundations of strong precedents. Despite the absence of adjudication by the Supreme Court on precisely the same issue and a High Court’s wrong ruling (as discussed above), it can be safely stated on the shoulders of the precedents that the Indian jurisprudence bars double jeopardy in its totality. Part II of the article deals with the legal position in the United States and offers a critical analysis of the same.

[i] Constitutional Assembly Debates, Vol. 7.64 para 276. Accessed: https://www.constitutionofindia.net/constitution_assembly_debates/volume/7/1948-12-02#7.65.276

[ii] Article 14 Para 7.                               

[iii]“No person shall be prosecuted and punished for the same offence more than once”

[iv]“(1) 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….”

[v]1953 AIR 325

[vi] State of Bombay v. S.L. Apte, AIR 1961 SC 578; Also see, Manipur Administration v. Thockchom Bira Singh, AIR 1965 SC 87.

[vii]In T.S. Baliah v. T.S. Rengachari (1969) 3 SCR 65; V.K. Agarwal v. Vasantraj B. Bhatia (1988) 3 SCC 467; State of Bihar v. Murad Ali Khan & Ors. (1988) 4 SCC 655; State of Rajasthan v. Hat Singh & Ors. (2003) 2 SCC 152; Monica Bedi v. State of Andhra Pradesh (2011) 1 SCC 284     Sangeetaben Mahendrabhai Patel v. State of M.P. (2012) 7 SCC 621; State of NCT of Delhi v. Sanjay etc. (2014) 9 SCC 772; State Of Jharkhand vs Sajal Chakraborty (Cr. App. No.393 OF 2017 on 8 May, 2017, Supreme Court of India)

[viii] “When an offence is committed outside India—

(a) by a citizen of India, whether on the high seas or elsewhere; or

(b) by a person, not being such citizen, on any ship or aircraft registered in India,

he may be dealt with in respect of such offence as if it had been committed at any place within India at which he may be found…”

[ix] Kerala High Court   CRMC.No. 7460 of 2002