IN THE SUPREME COURT OF INDIA
1953 AIR 325
State of Bombay
Date of Judgement
17th April, 1953
The Hon'ble Chief Justice M. Patanjali Sastri; The Hon'ble Justice Bijan Kumar Mukherjea; The Hon'ble Justice Sudhi Ranjan Das; The Hon'ble Justice Ghulam Hasan
The double jeopardy principle being a procedural defense prohibits a defendant from being tried twice for the same crime for the same set of facts. It refers to the concept that it is wrong for a man to be subjected more than once to the danger of being punished for a crime. The roots of the double jeopardy doctrine can be found in the well established maxim of English common law, Nemo debet bis vexari, which means that a man should not be endangered twice for the same crime.[i]
In Common Law, a defendant can plead guilty to autrefois acquit and autrefois convict (imperative grounds), which means that the defendant has been acquitted or convicted of the same crime. If this problem arises, evidence will be presented to the Court, which will normally rule as a preliminary matter if the statement is upheld and, if so, the projected trial cannot continue.
In light of aforesaid statements, the present case analysis deals with the judgment of Maqbool Hussain v. State of Bombay[ii] wherein the concept of double jeopardy was discussed.
Judicial and academic statements about the principle that a person should be protected against double jeopardy tend to assume or imply without doubt the belief that the rule is one with the long historical record and strong doctrinal foundations.
The double jeopardy principle was not completely unknown to the Greeks and the Romans, although the legal environment was quite different.[iii] This principle found its final expression in the Justinian Compendium as the precept that “the governor should not allow the same person to be accused again of a crime from which he was acquitted.”[iv] No statement of the double jeopardy clause in Magna Charta, nor can it be discovered by implication.
During the 18th century, the extreme procedure was generally followed. Both the continental and the English system extracted the doctrine of double jeopardy from the common source of canon law. [v] The origin of the maxim that “neither God judges twice for the same act” was present in the canons of the church since 847 AD.[vi]
The principle was in existence in India even before the beginning of the Constitution: Section 26 of the General Clause of the 1897 Act says:” when an act or omission constitutes a crime under two or more promulgations, the offender will be prosecuted and punished under any or any of those provisions, but will not be responsible for being punished twice for the same offense”.
The Protection against double jeopardy can be found in Article 20 of the Constitution of India. It has been consecrated as part of the Fundamental Law by the parents of our Constitution. The Constitution of India, which has been beautifully written as prose poetry, guarantees people certain human rights and basic freedoms, among others, freedom against double jeopardy. Consequently, no person can be prosecuted and punished for the same crime more than once. The provision sets forth the principle that a person cannot be tried twice for the same offense by an equally competent court.
The protection also granted under this rule has also gained international recognition through several international documents, for example, Article 14 (7) of the International Covenant on Civil and Political Rights,[vii] and Article 4 (1) Protocol 7 of the European Convention on Human Rights[viii]. States are obliged to deal with the relevant provisions of the conventions to which they are parties.
A similar provision is also provided for the protection of those who have already been acquitted or convicted by a tribunal for the Constitution of the United States. The Double jeopardy Clause of the Fifth Amendment to the United States Constitution states: “[N] or any person shall be subject to the same offense to be endangered twice from life or limb. . . . “The four essential protections included are prohibitions against, for the same offense: (i) new trial after an acquittal; (ii) new trial after conviction; (iii) new trial after certainly failed judgments; and (iv) multiple punishments. “[ix]
In Germany, the double jeopardy principle is also established in Article 103 (3) of the German Constitution: “No one can be punished for the same act more than once in compliance with general legislation.[x]
The previous provision of the US Constitution is based on the norm of common English law “nemo debet bis vexari”. It enabled an accused to raise a plea not only for autrefois convict but also of autrefois acquit before the implementation of the Criminal Justice Act, 2003.
Constitutional and Statutory Provisions discussed:
- Article 20(2), 21, 32, 90(2), 228 & 367 of the Constitution of India.
- Section 167(8) of the Sea Customs Act.
- Section 8 and 23 of the Foreign Exchange Regulation Act.
- Sections 332 and 353 as also Sections 147 and 149 of the Indian Penal Code.
- Section 4 Preventive Detention Act 1950.
- Section 23 of the General Clauses Act, 1897.
The appellant, a citizen of Bharat, arrived at the airport of Santa Cruz from Jeddah on November 6, 1949. Upon landing, he did not declare that he had brought gold with him, but upon searching, he discovered that he had brought 107.2 gold tolas in contravention of the notification of the Government of India dated August 25, 1948. The customs authorities took action under Article 167, clause (8), of the Sea Customs Act VIII of 1878, and confiscated the gold by means of an order dated December 19, 1949. However, the gold owner had the option of paying a fine of Rs. 12,000, whose option was to be exercised within four months after the date of the order. On January 30, 1950, a copy of the order was sent to the Appellant. No one came forward to redeem the gold.
By an order of this Court dated November 26, 1952, these petitions were ordered to be heard by the Bank of the Constitution along with Criminal Appeal No. 81 of 1952, since the same point was also involved with respect to “autrefois convict “or” double jeopardy” in this. It seems that more than 7 and a half months after the hunger strike, the Jail Superintendent of the Jail, Shri KK Mattu, filed a complaint against Jagjit Singh in the Court of Shri PL Sondhi, MIC, Ferozepur, in accordance with Rule 41 ( 2) of the Punjab Detenus Rules for having committed a crime in jail by resorting to the hunger strike.
On March 22, 1950, a complaint was filed in the Magistrate’s Court of the Chief Presidency, Mumbai, against the appellant who accused him of having committed a crime under Section 8 of the Foreign Exchange Regulation Act VII of 1947, read with the notification dated August 25, 1948.
The appellant, on June 12, 1950, filed a petition in the High Court of Mumbai under Article 228 of the Constitution in which he claimed that his prosecution in the Court of the Chief Presidency violated the fundamental right that he was guaranteed under Article 20 (2) of the Constitution.
The High Court issued a rule on June 26, 1950, which was seen on August 9, 1950, before Bavdekar and Vyas JJ. The rule became absolute and the High Court ordered that the pending proceedings against the appellant be withdrawn in the Court of the Chief Presidency and brought before the High Court under article 228 of the Constitution. The case was withdrawn and brought before the High Court and was heard by the High Court on October 17, 1950.
The matter was then sent to the Chief Presidency to find; Whether or not the appellant was the owner of the gold, indicating that they would deal with the request after the finding was returned. Chagla CJ and Gajendra Gadkar J. heard the petition later on February 12, 1951. They reversed the finding of the Magistrate of the Chief Presidency, rejected the appellant’s request and ordered that the case be returned to the Magistrate of the Chief Presidency for its elimination according to the law. The appellant obtained on November 1, 1951, a special permit to appeal against the sentence and the order approved by the Superior Court.
By an order of this Court dated November 26, 1952, these petitions were ordered to be heard by the Bank of the Constitution along with Criminal Appeal No. 81 of 1952, since the same point was also involved with respect to “autrefois convict “or” double jeopardy “in this.
- Whether under Article 20(2) the plea of autrefois acquit could be raised?
- Whether by reason of punishment inflicted upon the petitioners by the Jail Superintendent they could be prosecuted and punished for the same offense in the court?
Arguments of the Petitioners:
- The appellant contended that the second prosecution was in violation of Article 20 (2) as it was for the same offense.
- Jagjit Singh urged that the procedures adopted by the Superintendent of the Jail against the petitioners be tantamount to prosecution and punishment for the same offense and that, therefore, the prosecution that now began against them was not competent, since it exposed to double jeopardy and violating the fundamental right guaranteed to them under Article 20 (2).
- It was argued that under Sections 45, 46 and 52 of the Prisons Act (9 of 1894), the Superintendent of Jail was constituted as an authority required to act judicially to investigate and prosecute prisoners for similar crimes and detention under the Punjab Communist Detention Rules, 1950, which were placed in the same category as civilian prisoners, the proceedings before the Jail Superintendent for having committed the crimes of the prison under Rules 40 and 41 previous ones amounted to a prosecution of the petitioners before him as a judicial tribunal.
Arguments of the Respondents:
- It was on the other hand contended by the Advocate General of Punjab that the Punjab Communist Detenus Rules, 1950, is a self-contained code and the sections of the Prisons Act, 1894, had no application. The proceedings taken before the Jail Superintendent in the present case were not judicial proceedings and there was no prosecution and punishment of the petitioners within the meaning of Article 20(2).
- The Advocate General argued that the Jail Superintendent merely took disciplinary action against the petitioners. The action was within the meaning of Section 4(a) of the Act and the Punjab Communist Detenus Rules, 1950. There was no prosecution and punishment of the petitioners within the meaning of Article 20(2).
- The Punjab Advocate General argued that there was no prosecution or punishment granted to Jagjit Singh with respect to these crimes and relied on entries in the punishment register dated February 6, 1950, with reference to these offenses. These entries in the punishment registry show that Jagjit Singh was not punished for any of these crimes, but was to be sent to trial and, meanwhile, be confined separately.
- The customs authorities confiscated the gold, it can be said that neither the procedures are taken before the maritime customs authorities constituted a prosecution of the appellant nor the confiscation order constituted a punishment inflicted by a court or judicial tribunal.
- The prosecution under Sections 147 and 149 of the Indian Penal Code concerned is an offense that is not included in the prison offenses listed in Rule 40 nor could it have been treated by the Superintendent of Jail under Rule 41 (1).
- Rule 41 is to constitute the Jail Superintendent only an administrative authority to maintain jail discipline and inflict summary punishment on the detenus for breach of that discipline by committing a jail offense.
- The prosecution of Jagjit Singh before the Magistrate for the offenses under Sections 332 and 353 and Sections 147 and 149 of the Indian Penal Code is not in violation of Article 20(2) or Article 21 of the Constitution and must proceed.
- There is no prescribed procedure to be followed by the Customs Officer in the matter of such adjudication and the procedures before the Customs Officials are not assimilated in any way, regardless of the procedures in the courts in accordance with the provisions of the Civil Procedure or criminal. Code. Customs Officers are not required to act judicially on legal evidence offered under oath and are not authorized to administer the oath to any witness. Appeals, if any, are before the Chief Customs Authority, which is the Central Revenue Board, and the power of review is granted to the Central Government, which is certainly not a judicial authority.
- It follows that the Superintendent of the Jail is constituted as the authority to determine if any detenu is guilty of a crime in jail and to grant said arrest one or more of the punishments prescribed in Rule 41.
- The court observed that the Jail Superintendent obviously considered that he could adequately punish the petitioners for that jail offense and he did not think it necessary to have resort to the provisions of Rule 41(2).
- It is common that the Superintendent of the Jail acted in accordance with Rule 41 (1), and that he has been convinced that the petitioners were guilty of that jail offense, granted them one or more of the penalties prescribed in that regard.
Relevancy and Applicability:
The opinion adopted in the case of Maqbul Hussain has been taken in several cases, such as the case of Thomas Dana v Punjab[xi], where the Court observed that “prosecution” in Article 20 (2) means “a procedure of either indictment or of information in criminal courts, to put a criminal in his trial. The display of a criminal charge against a person before a court of law Gajendra Gadkar J. in Narayanlal Bansilal v. MP Misery[xii] also followed the same principle.
Article 20 (3) prohibits the prosecution and punishment of a person more than once for the same offense. However, it does not prohibit a second prosecution and punishment for a crime for which he was previously prosecuted and acquitted.
To operate as a bar under Article 20 (3), the second accusation and the consequent punishment must be for the same crime, that is, a crime whose ingredients are the same.[xiii] One of the important conditions to attract the provision under clause (3) of the article is that the trial must be carried out by a court of competent jurisdiction. If the court before which the trial was conducted does not have jurisdiction to hear the matter, the entire trial is void and it cannot be said that there has been prosecution and punishment for the same crime.
The Code of Criminal Procedure, 1973 of India also establishes a provision for doctrine. The scope of Article 20 clause 3 is more limited than the protection granted by Section 300 of the Code of Criminal Procedure.
When the offender is prosecuted and punished, he must know that, by paying the penalty, his guilt has expired and he does not need to fear a new sanction. If you are acquitted, you must be certain that you will not be prosecuted again in subsequent proceedings. In all legal systems, there is a double jeopardy provision, since no person should be punished twice for the same crime. The double jeopardy doctrine is a right granted to the accused to save him from being punished twice for the same crime and he/she can allege it.[xiv] Different cases present different circumstantial situations. Therefore, the double jeopardy rule cannot become a straightjacket rule and, therefore, is interpreted differently for different cases.
It is clear that for the protection of Article 20 (2) to be invoked by a citizen there must have been prosecution and punishment with respect to the same crime before a court of law. The same wording of Article 20 and the words used therein would indicate that the procedures contemplated therein are of the nature of criminal proceedings before a court of law or a judicial tribunal.[xv]
The Supreme Court was right that the proceedings before the customs authorities did not constitute “prosecution” of the appellant, and the penalty imposed on him did not constitute “punishment” by a judicial tribunal. In these circumstances, the petitioner’s trial before the criminal court was not prohibited. And also in the second case in question, the court was right and concluded that the prison superintendent is only an administrative authority.
Edited by Parul Soni
Approved & Published – Sakshi Raje
[i] Carissa Byrne Hessick and F. Andrew Hessick, Double Jeopardy as a Limit on Punishment, 97 Cornell L. Rev. 45 (2011) Available at: http://scholarship.law.cornell.edu/clr/vol97/iss1/2.
[ii] Maqbool Hussain v. State of Bombay, 1953 AIR 325.
[iii] Jay A. Sigler, A History of Double Jeopardy, The American Journal of Legal History, Vol. 7, No. 4 (Oct. 1963), p. 283.
[iv] Digest of Justinian, Book 48, Title XVII, as translated in Scott, The Civil Law (1932).
[v] Radin, Anglo- American Legal History 228 (1936).
[vi] Brooke, The English Church and the Papacy 205 (1952).
[vii] United Nations Human Rights Office of the High Commissioner, International Covenant on Civil and Political Rights, https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx (last visited February 11, 2020, 9:00 P.M).
[viii] European Conventions on Human Rights, https://www.echr.coe.int/Documents/Convention_ENG.pdf (last visited Feb. 11, 9:00 P.M).
[ix] David S. Rudstein, A Brief History of the Fifth Amendment Guarantee Against Double Jeopardy, 14 Wm. & Mary Bill Rts. J. 193 (2005), https://scholarship.law.wm.edu/wmborj/vol14/iss1/8.
[x] M.V. PYLEE, Select Constitutions of the World, 2nd Edition, p. 232.
[xi] Thomas Dana v. Punjab, 1959 AIR 375.
[xii] Narayanlal Bansilal v M.P. Mistry , (1959) 1 SCR 274.
[xiii] Manipur Administration v Nila Chandra Singh, AIR 1964 SC 1533.
[xiv] Ranjit Singh Alias Jeeta v. Union of India and another, 2009 SCC ONLINE P&H 11010.
[xv] Supra note 12.