BY-Ananya Kundu
(Heritage Law College)
SAME OFFENSE SAME FACTS: IS IT JUSTIFIED TO PUNISH A PERSON TWICE?
Nemo bis Punitur pro Eodem delicto owes its foundation to Latin dialect. It is an age old, ancient Latin legal maxim which simply means that no person can be punished twice for the same offense he/she has committed. The phrase ‘same offense’ portrays that the offense based on which the accused shall be punished and the offense regarding which he is again being punished, must be uniform and shall concern the same set of facts. If a person is put on trial or punished for the second time, it is known as Double Jeopardy.
Meaning
Etymologically, nemo bis punitur pro eodem delicto means that nobody can be punished, charged or convicted more than once for the same offense. It derives its meaning from the Latin term nemo debet bis puniri pro uno delicto and nemo debet bis vexari si constat curiae quod sit pro una et eadem causa which means that no one is ought to be punished twice for one offence, and nobody would be vexed twice if the court observes that it is for the same cause, respectively. In other words, it affirms that no one shall be place in peril or jeopardy for legal sanctions more than once for same offense upon same accusations. Both the maxims provide protection against prosecution for the second time for the same offense after the person has already been convicted for the same. nemo bis punitur pro eodem delicto also relates to the Latin maxim autrefois convict which has the etymological meaning of previously exonerated. Putting it in simpler words, when a defendant is convicted for a crime or misdemeanour, he can make a plea to claim that he has already been charged for the same offense under same fundamental facts along with proof of previous conviction for the same offense. Under such circumstances, the defendant would get protection from being put through trial for the second time.
Nemo bis Punitur pro Eodem delicto and the Rule of Double Jeopardy
The term Double Jeopardy in legal dialect refers to the act of bringing about a person through a second trial of an offense for which that person is already been convicted or prosecuted; whereas Jeopardy refers to the danger that one encounters for being charged or convicted for a particular crime. The maxim nemo bis punitur pro eodem delicto, however, contradicts the rule of Double Jeopardy. It has been witnessed that the maxim gained more importance in progressive nations to ensure rights against the rule of Double Jeopardy.
Origin
The concept of no punishment of a same mistake for the second time, dates back to 300 B.C. Demosthenes, the Athenian statesman was the first person to interpret that the law prohibits the same man to be tried twice for the same offense in 355 B.C. However, this imperial principle was first codified by the Romans in the Digest of Justinian in the 533 A.D. This proposition remains unchanged throughout the chronicles of time, persisting the Dark Ages of history starting from 400 A.D to 1066 A.D through the principles of law and the enlightenment of the early Christian writers, despite the decline of other Greco-Roman laws.
Protection provided by various nations against second trial
In America, the Fifth Amendment to the U.S Constitution has a clause against the rule of Double Jeopardy that puts a restrain on the Government from bringing legal proceedings against a person more than once for a single offense and from charging for more than one punishment for a single offense. This right is ensured by majority of the U.S states to defendants who are going through trial. The doctrine of incorporation makes Fifth Amendment’s clause against Double Jeopardy applicable to state proceedings, as a result of which, states that don’t explicitly ensure this right in their laws, still provide protection against Double Jeopardy.
The protection against Double Jeopardy was deemed to be a ubiquitous maxim of the English Common Law in England, and was accepted by prominent jurists of the English law, including Sir William Blackstone, Sir Edward Coke, Henry de Bracton, and Sir Matthew Hale. Although, the Double Jeopardy clause in the English law does not shed much light into the concept. It shields the ones charged for capital felonies and could be applied only after conviction or acquittal.
In Japan, under Article 39 of the Constitution, nobody shall be criminally liable for an offense that was lawful at time of commitment, or because of which he had been acquitted, and he shall not be placed in double Jeopardy.
On the other hand, in Scotland, it is prohibited, under the common law rule against double jeopardy, which was introduced through the Double Jeopardy (Scotland) Bill to put a person through trial twice for the same offense. However, this law applies to the people who already had been acquitted or convicted.
Nemo bis Punitur pro Eodem delicto and protection against Double Jeopardy in India
It shall be noted that Nemo bis Punitur pro Eodem delicto provides protection against the rule of Double Jeopardy. It puts a restrain on prosecution or punishment of a person for the second time for same offense.
Nemo bis Punitur pro Eodem delicto in Indian laws
In India, the theory of protection against Double Jeopardy was in existence preceding the implementation of the Constitution. Under Section 403(1) of CrPC 1898, which is similar to the provision of Section 300 of the amended Code of Criminal Procedure, 1973, a person who has been once put through trial by a court of competent jurisdiction for an offense, and is convicted or acquitted, shall not be held responsible to put through trial again for the same offense, while conviction or acquittal remain in force. It is also provided that the person cannot be tried on the basis of same facts for any other offense for which contrasting charge different from the one made against him might be provided under Section 221(1) and Section 221(2) of the same. Also, under Section 71 of Indian Penal Code, 1860, an offender shall not be punished or prosecuted for more than once where punishment of offense comprises of several other offenses where everything which is an offense, made up of parts, is itself an offense.
Constitutional Protection
The Constitution of India guarantees protection against the rule of Double Jeopardy by constituting it as a Fundamental Right under Article 20(2) contained in Part III of the Constitution. It ensures that nobody shall be prosecuted and punished for the same offense more than once.
The framers of our Constitution borrowed this noble feature of Fundamental Rights from the U.S Constitution. Apparently, this makes the fundamental right of protection against Double Jeopardy a feature borrowed from the U.S Constitution. In the U.S Constitution, Nemo bis Punitur pro Eodem delicto or the protection against Double Jeopardy is incorporated in the Fifth Amendment of the Constitution.
In the Indian Constitution, protection concerning conviction of offenses is however incorporated under Article 20, whereas, Article 20(2) implements the Latin legal maxim of Nemo bis Punitur pro Eodem delicto and ensures that a person shall not be prosecuted and punished for the second time regarding the same offense.
Although, the U.S and the British Constitution lay down the guidelines for protection against the rule of Double Jeopardy despite conviction or acquittal. Whereas, Article 20(2) of the Indian Constitution provides protection against second trial only when the offender is both prosecuted and punished.
Judicial implementation
Article 20(2) of the Indian Constitution implements the Latin maxim Nemo bis Punitur pro Eodem delicto and provides protection against the principle of second trial or Double Jeopardy. Under Article 20(2), it is a Fundamental Right available to the defendants to get protection against prosecution and punishment for more than once for the same mistake.
In the case of Union of India & Anr, v. P.D Yadav, the pension of an officer who was convicted in a lawsuit, was sanctioned. The court referred to the legal maxim nemo debet bis vexari si constat curiae quod sit pro una et eadem causa signifying that no one would be vexed more than once if it is for the same cause. It served justice in respect to Articles 20 to 22 of the Constitution, highlighting the Doctrine of Double Jeopardy. It was observed that in the trial before the General Court Martial, a person is convicted for an offense of delinquency and thus cannot be held liable for sanctioning and also shall not be put through trial again for the same offense after being punished by the Court Martial.
In the case of Roshan Lal & Ors. v. State of Punjab, the person accused of the charges had committed two offenses, one under Section 330 of Indian Penal Code, 1860 and another one under Section 348 of Indian Penal Code, 1860. He had voluntarily dissipated the evidences to both the crimes. The court, thus, held him liable and served the judgement of conviction for two separate sentences.
In the case of Nadimuddin v. State of Madhya Pradesh, the court however raised the question whether the protection against second trial or Double Jeopardy contained in Section 300 of Code of Criminal Procedure, 1973 and Article 20(2) of the Constitution is in regards to one specific offense or to offenses arising out of similar events or incidents.
In the case of Venkataraman v. Union of India, the accused made an enquiry before the enquiry commissioner under the Public Service Enquiry Act 1960 and as a consequence to that he was evicted from service. Later on, he was accused for committing the offense under Prevention of Corruption Act and Indian Penal Code. It was observed by the court that the trial held by enquiry commissioner was trivial investigation and was not equivalent to prosecution for an offense. Thus, the second offense could not get remedy under Article 20(2) of the Constitution.
In the case of Maqbool Hussain v. State of Bombay, the Honourable Supreme Court held that the fundamental right contained under Article 20(2) of the Constitution provides protection against autrefois convict or rule of double jeopardy. It was observed that the foundation of the principle lies in the well demonstrated principle of the English common law which affirms that conviction is an impediment to all further trials if a court of competent jurisdiction has already conviction a person of an offense. Also, the ancient maxim of nemo bis debet puniri pro uno delicto is of similar value that of the principle of English common law.
In the case of Balhar Chand v. State of Punjab, the accused received a good amount of money in cash from an unaccredited medium which was originally seized. But later on, he was directed to eventually release the amount after penalty. Although, he was directed to unload the amount with the Income-tax Department. The court however held that it would not attract the Doctrine of Double Jeopardy as the Contracts (Rights of Third Parties) Act 1999 and the Income-tax Act 1961 function in their respective fields.
Article 20(2) of the Constitution strictly mentions that it is only applicable to cases where punishment and prosecution to be carried out is for the same offense.
This notion was held in the case of Leo Roy v. Superintendent of District Jail. The imperial court observed that in case of different offenses, the Doctrine of Double Jeopardy will not be applicable. Hence, when the accused was prosecuted and punished for an offense under Sea Customs Act 1878 for the first time and was prosecuted later on under Indian Penal Code for the offense of criminal conspiracy, it was held that the prosecution under Indian Penal Code was carried out for a different offense.
Conclusion
It would be pertinent to draw a conclusion on the above-mentioned grounds, that the ancient Latin maxim, nemo bis punitur pro eodem delicto is an imperial rule. It provides remedy to defendants and protect them from being exploited. In India, its implementation is evident in various laws and as a Fundamental Right guaranteed by the Constitution as it goes on to provide protection against Double Jeopardy or put through trial twice for the same offense. Thus, through this remedy, it is assured that the defendants are not deprived of equal social treatment and justice. It is also ensured that they are not kept in isolation and they very much feel as a part of the society. The maxim nemo bis punitur pro eodem delicto prioritizes humanity and humanitarian grounds.
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31. Roshan Lal & Ors. v. State of Punjab AIR 1965 SC 1413
32. Nadimuddin v. State of Madhya Pradesh M.Cr.C No. 7642 of 2015
33. Venkataraman v. Union of India AIR 1954 SC 375
34. Maqbool Hussain v. State of Bombay AIR 1953 SC 325
35. Balhar Chand & Ors. v. State of Punjab & Ors. 2008 Crl.L.J. 4783
36. Leo Roy v. Superintendent District Jail AIR 1958 SC 119
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