DV Act Hit to me after 4 years of seperation

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Double jeopardy applies to same offence, not same facts !

Double Jeopardy as per Hon’ble SC in short (citations re. below you can search in www.indiankanoon.org):


Article 20 (2) embodies a protection against a second trial and conviction for the same offence. The fundamental right guaranteed is the manifestation of a long struggle by the mankind for human rights. A similar guarantee is to be found in almost all civilised societies governed by rule of law. The well known maxim `nemo delset bis vexari pro eadem causa’ embodies the well established common law rule that no one should be put on peril twice for the same offence. BLACKSTONE referred to this universal maxim of the common law of England that no man is to be brought into jeopardy of his life more than once for the same offence.

The fundamental right guaranteed under Article 20 (2) has its roots in common law maxim nemo debet bis vexari – a man shall not be brought into danger for one and the same offence more than once. If a person is charged again for the same offence, he can plead, as a complete defence, his former conviction, or as it is technically expressed, take the plea of autrefois convict. This in essence is the common law principle. The corresponding provision in the American Constitution is enshrined in that part of the Fifth Amendment which declares that no person shall be subject for the same offence to be twice put in jeopardy of life or limb. The principle has been recognised in the existing law in India and is enacted in Section 26 of the General Clauses Act, 1897 and Section 300 of the Criminal Procedure Code, 1973. This was the inspiration and background for incorporating sub- clause (2) into Article 20 of the Constitution. But the ambit and content of the guaranteed fundamental right are much narrower than those of the common law in England or the doctrine of `double jeopardy’ in the American Constitution.

In Maqbool Hussain vs. The State of Bombay, this Court explained the scope of the right guaranteed under Article 20 (2) and as to what is incorporated in it as “within its scope the plea of autrefois convict as known to the British jurisprudence or the plea of double jeopardy as it known to the American Constitution but circumscribed it by providing that there should be not only a prosecution but also a punishment in the first instance in order to operate as a bar to a second prosecution and punishment for the same offence.” That in order for the protection of Article 20 (2) to be invoked by a person there must have been a prosecution and as well as punishment in respect of the same offence before a court of law of competent jurisdiction or a tribunal, required by law to decide the matters in controversy judicially on evidence. That the proceedings contemplated therein are in the nature of criminal proceedings before a court of law or a judicial tribunal and the prosecution in this context would mean an initiation or starting of the proceedings of a criminal nature in accordance with the procedure prescribed in the statute which creates the offence and regulates the procedure. This principle is reiterated in S.A. Venkataraman vs. The Union of India & Anr., wherein this Court observed that the words “prosecuted or punished” are not to be taken distributively so as to mean prosecuted or punished. Both the factors must co-exist in order that the operation of the clause may be attracted.”

What is the meaning of expression used in Article 20 (2) “for the same offence”? What is prohibited under Article 20 (2) is, the second prosecution and conviction must be for the same offence. If the offences are distinct, there is no question of the rule as to double jeopardy being applicable. In Leo Roy Frey vs. Superintendent District Jail, Amritsar, petitioners therein were found guilty under Section 167 (8) of the Sea Customs Act and the goods recovered from their possession were confiscated and heavy personal penalties imposed on them by the authority. Complaints thereafter were lodged by the authorities before the Additional District Magistrate under Section 120B of the Indian Penal Code read with provisions of the Foreign Exchange Regulations Act, 1947 and the Sea Customs Act. The petitioners approached the Supreme Court for quashing of the proceedings pending against them in the court of Magistrate inter alia contending that in view of the provisions of Article 20 (2) of the Constitution they could not be prosecuted and punished twice over for the same offence and the proceedings pending before the Magistrate violated the protection afforded by Article 20 (2) of the Constitution. This Court rejected the contention and held that criminal conspiracy is an offence under Section 120B of the Indian Penal Code but not so under the Sea Customs Act, and the petitioners were not and could not be charged with it before the Collector of Customs. It is an offence separate from the crime which it may have for its object and is complete even before the crime is attempted or completed, and even when attempted or completed; it forms no ingredients of such crime. They are, therefore, quite separate offences. The Court relied on the view expressed by the United States, Supreme Court in United States vs. Rabinowith. In The State of Bombay vs. S.L. Apte, this Court laid down the law stating that if the offences were distinct there is no question of the rule as to double jeopardy as embodied in Article 20 (2) of the Constitution being applicable. It was the case where the accused were sought to be punished for the offence under Section 105, Insurance Act, after their trial and conviction for the offence under Section 409, Penal Code, this Court held that they were not sought to be punished for the same offence twice but for two distinct offences constituted or made up of different ingredients and therefore the bar of Article 20 (2) of the Constitution or Section 26 of the General Clause Act, 1897, was not applicable. This Court made it clear that the emphasis is not on the facts “alleged in the two complaints but rather on the (1915) 238US 78. (1961) 3 SCR 107 ingredients which constitute the two offences with which a person is charged.” The ratio of the case is apparent from the following:

“To operate as a bar the second prosecution and the consequential punishment thereunder, must be for `the same offence’. The crucial requirement therefore for attracting the Article is that the offences are the same, i.e., they should be identical. If, however, the two offences are distinct, then notwithstanding that the allegations of fact in the two complaints might be substantially similar, the benefit of the ban cannot be invoked. It is, therefore, necessary to analyse and compare not the allegations in the two complaints but the ingredients of the two offences and see whether their identity is made out.”

That the test to ascertain is whether two offences are the same and not the identity of the allegations but the identity of the ingredients of the offences.

It is thus clear that the same facts may give rise to different prosecutions and punishment and in such an event the protection afforded by Article 20 (2) is not available. It is settled law that a person can be prosecuted and punished more than once even on substantially same facts provided the ingredients of both the offences are totally different and they did not form the same offence. In Bhagwan Swarup vs. State of Maharashtra, the accused was convicted with regard to a conspiracy to commit criminal breach of trust in respect of the funds of one Jupiter company. There was another prosecution against the accused for the conspiracy to lift the funds of another company, though its object was to cover the fraud committed in respect of the Jupiter company. This Court held that the defalcations made in the Jupiter may afford a motive for new conspiracy, but the two offences are distinct ones. Some accused may be common to both of them, “some of the facts proved to establish the Jupitor conspiracy may also have to be proved to support the motive for the second conspiracy. The question is whether that in itself would be sufficient to make the two conspiracies the one and the same offence. The ingredients of both the offences are totally different and do not form the same offence within the meaning of Article 20 (2) of the Constitution and, therefore, that Article has no relevance.”

In State of Rajasthan vs. Hat Singh & Ors., this Court held that the Rajasthan Sati (Prevention) Act, 1987 provided for different offences and punishment for glorification of sati and for violation of prohibitory order against glorification of sati. They are not the same offences. While Section 5 of the said Act makes the commission of an act an offence and punishes the same; the provisions of Section 6 are preventive in nature and make provision for punishing contravention of prohibitory order so as to make the prevention effective. The two offences have different ingredients. This Court held:

“It is, therefore, concluded that in a given case, same set of facts may give rise to an offence punishable under Section 5 and Section 6 (3) both. There is nothing unconstitutional or illegal about it.”

This appears to be the consistent view of the Supreme Court of the United States. In T.W. Morgan vs. Alfonso J. Devine @ Ollie Devine8, the U.S. Supreme Court observed that the court has settled that the test of identity of (2003) 2 SCC 152 (1915) 237 U.S. 1153 offences is whether the same evidence is required to sustain them; if not, then the fact that both charges relate to and grow out of one transaction does not make a single offence where two are defined by the statutes.

In United States vs. Vito Lanza, it is held that an act with respect to intoxicating liquor which is denounced as a crime by both the National and State sovereignties may be punished under the law of each sovereignty without infringing the provision of the 5th Amendment to the Federal Constitution against double jeopardy for the same offence. It is observed: 

“An act denounced as a crime by both National and State sovereignties is an offence against the peace and dignity of both, and may be punished by each ….. We have here two sovereignties, deriving power from different sources, capable of dealing with the same subject matter within the same territory. Each may, without interference by the other, enact laws to secure prohibition, with the limitation that no legislation can give validity to acts prohibited by the Amendment. Each government, in determining what shall be an offence against its peace and dignity, is (1922) 260 U.S. 314 exercising its own sovereignty, not that of the other.”