Double jeopardy in criminal proceedings

Author: Mohammad Nayeem Firoz

Doctrine of double jeopardy at law means that 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.

Interestingly, we found a movie concerning this issue having the title “Double Jeopardy” which is a 1999 American thriller directed by Bruce Beresford and starring Tommy Lee Jones, Ashley Judd, and Bruce Greenwood. The film is about a woman who was charged for the murder of her husband. She was tried for her husband’s murder and the idea was, once she was sentenced for it one way or the other, then she could not be tried for it again, but that was a baloney. She was tried for his murder that supposedly took place at a certain time in a certain way. Since her husband was not dead, she was faultily tried for a murder which did not take place. That does not mean she can not be tried for the murder that actually did take place afterwards because that was a different crime.

Harvard Professor Alan Dershowitz criticised the movie for allegedly misrepresenting the Double Jeopardy Clause of the Fifth Amendment of the US Constitution. “There are two separate incidents,” Dershowitz claims. “She was falsely accused the first time. And maybe she could sue for that or get some credit. However, she committed an entirely separate or at least planned to commit an entirely separate crime the second time. And there’s just no defence of double jeopardy for doing it the second time.”

Double jeopardy is not essentially about being “tried two times.” The number of trials is immaterial. What it means is that nobody can be prosecuted for an offence arising out of conduct in relation to which s/he has already been convicted or acquitted in accordance with due process of law.

Before entering into the details of this doctrine, let us consider an instance: Drawing a criminal court’s attention in the order of acquittal under section 247 of the Criminal Procedure Code  given by a competent trial court in respect of the same accused persons involving in the selfsame allegations brought by the same complainant in a given case, learned defence lawyer argued that this case is barred by the doctrine of double jeopardy to legally proceed any longer and that is why the accused persons can be exempted from the criminal liabilities of this case.

Now we may enter into the jurisprudential aspects of the said doctrine of criminal law.

In international aspect, 72 signatories and 166 state parties to the International Covenant on Civil and Political Rights recognise, under Article 14 (7), that no one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country. In some countries, including Canada, Mexico and the US, the guarantee against being “twice put in jeopardy” is a constitutional right. In other countries, the protection is afforded by domestic law.

The age-old principle double jeopardy has been given legal shape in Bangladesh through article 35(2) of the Constitution of the Bangladesh. It provides that no person shall be prosecuted and punished for the same offence more than once. This is based on another principle which is: “no  person should be vexed, prosecuted or tried twice for the same offence.” This principle is further confirmed in Section 26 of the General Clauses Act of 1897 and in Section 403 of the Code of Criminal Procedure of 1898.

Section 26 of the General Clauses Act, 1897 goes as follows: 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. Section 403 has been made in such a way that the above named principles of natural justice may have their full legal application.

Section 403 of CrPC states that a person once convicted or acquitted not to be tried for same offence. Explanation clause to this section enunciates that the dismissal of a complaint, the stopping of proceedings under section 249 or the discharge of the accused is not an acquittal for the purposes of this section.

Though the question as to whether the accused persons who were acquitted under section 247 can or cannot be tried again on the selfsame allegation is a complicated question of law, it is well settled that if the accused persons are acquitted under section 247 CrPC, second proceeding on the selfsame allegations will definitely be barred under section 403 of CrPC. The reason is obvious that in view of the provisions of section 403, it is clear that the provisions therein cover almost all the circumstances involving subsequent trial of a person who was tried earlier.

We are aware that several judicial pronouncements of the Supreme Court of Bangladesh have  strongly authenticated this stance. From the case of Dewan Obaidur Rahman v State reported in 7 BLT (AD) 227, it appears that when the complainant failed to appear in the court on the date fixed for appearance of the accused, the concerned judicial magistrate acquitted the accused under section 247 of the Code.

It is to be noted that in the cases where the order of acquittal in any other case having the same cause of action and between the same parties is still in force, it can be legally presumed that the present charges are tantamount to be groundless as the case itself is barred by section 403 of the CrPC and an instance of double jeopardy. Hence, at the stage of charge-framing all the accused persons of the earlier case may be legally discharged from the latter case in accordance with sections 241A and 403 of the CrPC.

The guarantee of protection against double jeopardy in criminal proceedings is a significant notion of law. This article discusses the juridical aspects of the guarantee as a human right by infusing the texts of different normative instruments. The protection against double jeopardy is considered as a cogent element of the right to a fair trial and a peremptory plea of the defence in any given judicial proceedings dealing with criminal matters.

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