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Double Jeopardy In India – An Analysis


The goal of any criminal justice system is to punish criminals for their wrongdoings and rehabilitate them in order to help them recover. Unnecessarily punishing and making life difficult for offenders is not the system’s goal. However, there are certain cases in which the guilty of crimes, who may be repeat offenders, are punished for their actions numerous times, even though the offenses are the same.

The practice of imposing repeated sentences for the same offense breaches one of the fundamental rights guaranteed to Indian citizens by the Constitution. There are some basic rights are granted to Indian citizens under Part III of the Constitution, which may be accessed by all Indian citizens.

The safeguards given to those convicted of crimes are addressed in Article 20 of India’s Constitution. There are three parts to it:

  • No one could be convicted of an offense other than the one that was in effect at the time the offense was committed, and the punishment imposed on such a person cannot be higher than the penalty that had been in effect at the time the offense had been committed.
  • The punishment for the same crime cannot be laid out to the same individual more than once.
  • No one can be compelled to testify against oneself in a court of law. This is the protection from being indicted by one’s own act.

History of Double Jeopardy In India

The concept of double jeopardy has a long history, going all the way back to ancient Athens in 355 B.C. The earliest western legal courts ruled that “the law prohibits the same individual from being prosecuted again on the same subject.” This clause has persisted throughout history, having weathered the test of time in different court systems spanning from Athens and the Roman Empire through the Dark Ages, English courts, and the emergence of the Western world.

The concept, on the other hand, is mentioned in the ‘Digest of Justinian[1],’ which states that the government should not allow a person to be charged with a crime for which he has previously been acquitted. The concept, on the other hand, is mentioned in the ‘Digest of Justinian,’ which states that the government should not allow a person to be charged with a crime for which he has already been acquitted since it is against the law. The criminal process at the time was different from today’s, with the acquitted defendant still subject to prosecution by the prosecutor for 30 days after the acquittal.

The phrase “Nemo debit bis puniri pro uno delicto,” which means “No man should be punished twice for the same crime,” is also believed to have been part of Roman Law. As early as 847 A.D, canon law declared that not even God judges a person twice for the same offense. Both the Continental and English legal systems are thought to have embraced this concept.

Prior to the implementation of the Constitution of India, the concept of double jeopardy in India existed in Indian courts of law. Section 26 of the Act included this provision. According to Section 26, if an act or omission is punishable under two or more laws, the offender may be prosecuted or punished under any or both of those laws, but he or she may not be penalized twice for the same offense.

This principle, however, is also included in Section 26 of the General Clause Act and Section 403(1) of the Criminal Procedure Code of 1898. Because of this, an act or omission that constitutes an offense under two or more legislation may put the offender to criminal liability, but they cannot be held responsible for the same offense twice.

Doctrine of double jeopardy under Indian constitution Perspective

Part III of the Constitution contains articles 12 to 35 on Fundamental Rights accessible to Indian citizens. One of these essential rights, which is specified in Art 20(2), specifies that no individual will be tried and punished for the same crime more than once in a certain period of time.

Double Jeopardy in India statutes has a far broader scope under the Criminal Procedure Code than is specified in the Constitution. These clauses explain what constitutes double jeopardy in India as well as exclusions established under Section 300 of the CrPC, which defines the subject in more depth. One of the most important aspects of the CrPC is that double jeopardy rules address both the problem of an in praeteritum convict and the issue of an autrefois acquitter. Because of this, double jeopardy applies to everyone who is either acquitted or convicted of the crime.

Double jeopardy in India is a legal principle established in the Criminal Procedure Code (CrPC) under Section 300. This part is divided into six sub-sections, each of which seeks to offer a comprehensive look into the idea.

Section 300 Clause (1)[2]

1. An individual cannot be tried for the same crime again after being found guilty or not guilty by a court of competent jurisdiction.

2. If a charge has been brought against a person under subsection (1) of Section 221 and the circumstances are the same as when the charge was brought against him under subsection (2) of Section 221 then he cannot be tried on the same facts as to when the charge was brought against him under subsection (1) of Section 221 However, this is only true for as long as the verdict is maintained.

3. “Tried” does not imply that anything has been put to the test based on its merits. Acquittal of the accused is all that is required.

4. The fundamental requirement is that the offenses must be the same, i.e., identical to one another. As a result, not the charges in the two complaints must be analyzed and compared, but the elements of the two offenses must be compared to determine whether they are the same. More specifically, Section 300 prohibits trials for crimes that have already occurred, not crimes that may have been committed but were not reported. When the legislation states that the identical facts may be prosecuted under two independent sections, and the punishments imposed by those sections are likewise distinct, it is clear that the two sections are meant to be treated separately.

Section 300 Clause (2)[3]

1. When an individual has been acquitted or found guilty of a crime for which a second charge may have been brought against him but was not brought against him in the previous trial, he should not be subject to being prosecuted for the other crime as a matter of course since this could lead to abuse.

2. Section 300 (2) requires that the agreement of the State Government be obtained before any fresh prosecution is started against anybody for any unique offense for which a separate charge might have been lodged against him during the official trial under Section 220 to establish a check on this kind of abuse.

3. Once again, this doesn’t prevent the second trial from being held for a different offense, as provided for in the provision that allows for separate trials.

Section 300 Clause (3)[4]

1. This section is applicable only in cases of conviction and not in cases where there has been an acquittal.

2. This clause permits a defendant to be tried again if new evidence surfaces that wasn’t discovered during the first trial.

3. A conviction does not stop the accused from being tried again for comparable offenses that went unnoticed by the courts. The evidence or circumstances must point to a new kind of offense for which no conviction could be obtained at the first trial. To be eligible for a second trial, the new evidence must be of a different kind of crime than what the accused was originally charged with. New information or events must have surfaced after the first trial resulted in the verdict or acquittal of the defendant. Because a second trial for the crime constituting the new facts would be prohibited if the court knew about the new facts or effects during the first trial.

Section 300 Clause (4)[5]

1. It is provided in Section 300(4) of the Indian Penal Code that a person who has been acquitted or found guilty of an offense created by any actions may be charged with and prosecuted once again for any other crime based on the same facts, regardless of whether they have been acquitted or found guilty the first time if the court in which he or she was previously tried was incompetent to try the offense with which he or she is later charged.

2. The case against ‘A’ is prosecuted by a first-class Judicial Magistrate. However, based on the same circumstances, he is subsequently charged with dacoity. Dacoity charges cannot be tried by a Judicial Magistrate and can only be tried by the Court of Session in this instance, therefore regardless of whether he is acquitted or convicted, the second trial will not be blocked.

Section 300 Clause (5)[6]

1. To halt a summons case before it is concluded without rendering a decision, the court has the ability under Rule 258 to do so at any point throughout the proceedings. It will result in the accused’s release if the proceedings are halted prior to the recording of the primary witness’ testimonies.

2. However, under section 300 (5), an accused person cannot be prosecuted for the same crime a second time without the approval of the court that originally sentenced them to the first trial. As a preventative measure, this clause is seen to be effective in preventing the misuse of selective enforcement in certain situations.

Section 26, General Clauses Act 1977[7]

Provisions regarding offenses punished by two or more legislation –

1. When an act or omission violates more than one law, the offender is subject to prosecution and punishment under all of the applicable laws, but he or she cannot be penalized twice for the same offense under any of the laws.

2. The focus is not on the facts stated in the two complaints, but rather on the elements that make up the two offenses with which a person is accused.

3. Section 26 does not apply if the offenses are separate and not the same.

Difference Between Section 300 and Article 20(2)

The distinction between Article 20(2) and Section 300 CrPC was explored in the case of Kolla Veera Raghav Rao v. Gorantla Venkateswara Rao[8], and it was decided that Section 300 CrPC is broader in the sense that no one may be prosecuted and convicted for the same or a different crime on the same circumstances. Article 20(2) raises the question of whether a person may be punished for the same crime based on different facts; nonetheless, the section makes it abundantly plain that the person cannot be charged at all if the circumstances are the same.


The goal of providing such a comprehensive definition of the term in both statutes is to shield persons from facing numerous consequences for the same crime. The principle is essential to safeguard people from the psychological, social, and financial harm they may suffer as a result of any legal proceedings. Ultimately, the goal is to keep the criminal justice system free from abuse by safeguarding and regulating those authorities that have been delegated to the criminal justice system.

The idea of double jeopardy in India is consequently required and fully established under Indian Laws in order to protect the interests of all people who have been previously acquitted or convicted from repeated prosecution and to put a check on the criminal administration system.

[1]Retrieved from

[2]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.

[3]A person acquitted or convicted of any offence may be afterward tried, with the consent of the State Government for any distinct offence for which a separate charge might have been made against him at the former trial under Sub-Section (1) of section 220.

[4]A person convicted of any offence constituted by any act causing consequences which, together with such act, constituted a different offence from that of which he was convicted, maybe afterward tried for such last-mentioned offence, if the consequences had not happened or were not known to the Court to have happened, at the time when he was convicted.

[5]A person acquitted or convicted of any offence constituted by any acts may, notwithstanding such acquittal or conviction be subsequently charged with, and tried for, any other offence constituted by the same acts which he may have committed if the Court by which he was first tried was not competent to try the offence with which he is subsequently charged.

[6]A person discharged under section 258 shall not be tried again for the same offence except with the consent of the Court by which he was discharged or of any other Court to which the first-mentioned Court is subordinate.

[7] Provision as to offences punishable under two or more enactments. —

Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments but shall not be liable to be punished twice for the same offence.


This article has been written by Ashutosh, 2nd Year BBA LLB student at Bennett University.

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