Article 20(2) of the Constitution of India provides that “no person shall be prosecuted and punished for the same offence more than once”. It indicates the common law rule of nemo debet vis vexari which means that no man should be put twice in peril for the same offence. If he is prosecuted against for the same offence for which he has already been prosecuted, he can take complete defence of his former acquittal or conviction.
Under Article 20(2) of the Constitution of India, the protection against double punishment is given only when the accused has not only been ‘prosecuted’ but also ‘punished’, and is sought to be prosecuted second time for the same offence. The use of the word ‘prosecution’ thus limits the scope of the protection under clause (1) of Article 20. If there is no punishment for the offence as a result of the prosecution, clause (2) of Article 20 has no application and an appeal against acquittal, if provided by the procedure is in substance a continuance of the prosecution. The word ‘prosecution’ as used with the word ‘punishment’ embodies the following essentials for the application of double jeopardy rule. They are:
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(1) The person must be accused of an ‘offence’. The word ‘offence’ in General Clauses Act means ‘any act or omission made punishable by law for the time being in force’.
(2) The ‘offence’ must be the same for which he was prosecuted and punished in the previous proceedings.
(3) The proceeding or the prosecution must have taken place before a ‘Court’ or ‘judicial tribunal’ and not before departmental and administrative authorities.
(4) The person must have been prosecuted and punished in the previous proceeding.
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Article 20(2) will have no application where punishment is not for the same offence.’ Thus, if the offences are distinct the rule of double jeopardy will not apply. Likewise, Article 20(2) does not apply where the person is prosecuted and punished for the second time and subsequent proceeding is mere continuation of the previous proceeding, e.g., in the case of an appeal against acquittal. There is a bar to a second prosecution only when the accused has been both prosecuted and punished.
