Nemo Bis Punitur Pro Eodem Delicto

Author: Nishtha Mittal, AMITY LAW SCHOOL DELHI affiliated to GGSIPU

INTRODUCTION

Nemo bis punitur pro eodem delicto found its origin in the Latin dialect and juristic interpretation. It has formed the basis of judicial interpretation since time immemorial. The legal maxim was first discovered in 300 BC by Athenian statesmen but was not codified till 533 AD by the Romans. The rule laid down by this maxim finds its correlation with prohibition of double jeopardy that has been borrowed from US constitution. We find its origin in English common law of United Kingdom put forward by eminent jurists like Edward Coke, Blackstone etc. in their pronouncements. We shall look at the meaning of this maxim and its practical usage in current legal scenario.

1. Meaning

The maxim literally means that, ‘No person shall be prosecuted/punished for the same offence or misdemeanor twice’^[1]. Essentially, it envisages the prohibition of double jeopardy.

2. Explanation

The objective of this maxim is to protect the accused from facing double punishments for the same crime with same facts if he has been punished previously in a legal manner. The accused must prove that the offence he was punished twice for was same as before with same issues and question of law.

The maxim can said to be an integration of three important maxims (having almost similar meaning) that are:

• Nemo debet bis puniri pro uno delicto^[2] which further stands for ‘Nobody is ought to be punished for the same offence^[3], twice’.
• Nemo debet bis vexari si constat curiae quod sit pro una et eadem causa^[4] that means ‘No one shall be vexed for same offence twice, if it is interpreted by the court’.
• Autrefois convict^[5] which stands for ‘previously exonerated or released after prosecution for a crime’.

These maxims are applied by the court interchangeably in the cases where accused faces Double Jeopardy. Most of the legal pronouncements as discussed in the later sections of this article discuss about one or more of these maxims and its relevance thereto.

3. Essential conditions for application

The maxim forms a quintessential part of legal proceedings as it forms the basis of ‘Principles of natural justice‘ that lays down that the trial must be fair in all respects. But to avail the defence provided by the maxim, the accused must prove beyond any reasonable doubt that he was prosecuted:

• For the same offence^[6];
• Based in same fundamental facts and circumstances;
• Involving same substantial question of law;
• Tried by competent court or other judicial body;
• Prosecuted and punished for the offence^[7].

APPLICATION IN INDIAN STATUTES

The legal maxim stated provides against the rule of Double Jeopardy^[8] which means person being tried again for the same offence if he has already been tried and prosecuted under the same. The Indian statutes that support the application of the maxim by contradicting the rule of Double Jeopardy in:

• Constitution of India ^[9]– Article-2(20)^[10] of the constitution that is also a fundamental rights^[11] provides for protection against double jeopardy^[12]. However, being tried twice doesn’t amount to violation of this article but being punished post trial violates the provision. Thus is contrary to the provision of US constitution which prohibits even the trial of the accused irrespective of the punishment. The rule of Double Jeopardy has been borrowed from US constitution with the above-mentioned change.

• Code of criminal procedure^[13]– Section- 300 of the code provides that irrespective of the conviction, if any person has been sentenced in previous trial then he cannot be tried again till the previous punishment is in force. Section-221 clause 1 and 2 of the same act also prohibit trial on the same facts with different offence.

• Indian penal code^[14]– Section-71 of the said act prohibits prosecution of a person twice where the punishment comprises of other offences as well unless it’s expressly provided in the statute.

• General clauses act- Section-26 of the act lays down that if any offence is punishable in more than one act, it shall be tried under any one of them and not both as it amounts to double jeopardy. This provision envisages the support to the legal maxim that is implicitly mentioned in the statute.

INTERNATIONAL APPLICATION

The application of the maxim in question is not only limited to India but also in fifth amendment to US Constitution where it’s stated that there shall not be more than one state or legal proceedings by the government for same offence according to the Rule of incorporation^[15]. In its own words, “no person shall be twice put in Jeopardy of their life or limb.”^[16]Thus it can be said that the US provision prohibits even for double prosecution without any punishment, but in case of Indian constitution the prohibition is limited to the double prosecution if and only if it leads to punishment not acquittal. But in case of any appeal against the prosecution will not be considered as another proceeding but will be taken a continuation of one where accused is sentenced.^[17]Double jeopardy (Scotland) Bill^[18]incorporates this maxim in its common law prohibiting double trial and prosecution. Additionally, Article-39^[19] of the constitution of Japan lays down that no person shall be held criminally liable for a lawful offence (as at the time of commission), or that led to acquittal of the accused, multiple times.

Not only international statutes but also in certain international covenants like International Covenant on civil and political rights, a multilateral treaty of United Nations general assembly, provides for a similar rule in its Article- 14(7)^[20]. Despite of being a directive clause, it holds great importance in international human rights scenario that firms the backbone of all other municipal laws around the world. Similarly, Article- 4(1) to protocol 7^[21]applies similar rules to the European union.

JUDICIAL PRECEDENTS

• Kalawati v State of Himachal Pradesh^[22]

The case held that an appeal preferred from previous order of acquittal does not violate Article- 20(2) of the constitution as there was no punishment in the previous trial. Thus it reiterates one of the essential conditions as mentioned above.

• Maqbul Hussain v State^[23]

Honorable supreme court held that the protection against double jeopardy is laid under article-20(2) of the constitution for application of which it’s impediment that the accused was convicted and not only tried. Additionally stating that the maxim nemo bis debet puniri pro uno delicto has a similar value that is provided for in the principle of English common law laying down the rule against double jeopardy.

• Union of India & Anr, v. P.D Yadav^[24]

While giving its decision, the honorable court mentioned the maxim nemo debet bis vexari si constat curiae quod sit pro una et eadem causa that is considered to be equivalent to the maxim discussed under this article. Thus here the accused cannot be punished again in other court once he has been punished by martial court and cannot be sanctioned further as it would violate the above legal maxim that also happen to be a part of fundamental rights violation of which is prohibited.

• Venkataraman v. Union of India^[25]

Court held that an enquiry proceeding does not amount to prosecution or trial or conviction of the accused thus another trial post enquiry does not violate the application of the above legal maxim that prohibits double jeopardy. The rule only applies to cases where accused has been punished in previous trial not in a case of mere enquiry.

• State of Bombay v. S.L. Apte^[26]

Court laid down the scope of application of Article- 20(2) of the Indian constitution especially emphasizing on the essential requirement of ‘Same offence’ for its application stating that in case of multiple offences, one must pay attention to the ingredients involved in the offences rather than the offence itself. So if those ingredients are of similar nature, one must conclude that the offences are same and accused is protected under the given article. Only these ingredients shall be looked at and not the allegations made in the complaint of offences.

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[1] “Nemo bis punitur por eodem delicto.” A Law Dictionary, Adapted to the Constitution and Laws of the United States. By John Bouvier.. 1856. 17 Jun. 2021.

[2] “Nemo debet bis puniri pro uno delicto” retrieved from www.wordinfo.info.

[3] ‘any act or omission made punishable by law for the time being in force’. As defined in general clauses act.

[4] “Nemo debet bis vexari si constat curiae quod sit pro una et eadem causa” retrieved from www.wordinfo.info.

[5] “Autrefois Convict Law and legal definition” (definitions.uslegal).

[6] The State of Bombay v. S.L. Apte and anr. [AIR 1961 SC 578].

[7] Leo Roy v. Superintendent of District Jail. [AIR 1958 SC 119].

[8] “Double Jeopardy in India” (legalserviceindia).

[9] The constitution of India 1949

[10] J.N PANDEY, CONSTITUTION OF INDIA, pg. 252-254 (54^th ed. 2017).

[11] Part III of the Indian constitution.

[12] INDIAN CONSTITUTION, Art. 20, cl. 2.

[13] The code of criminal procedure, 1973, No. 2 of 1974 (India).

[14] Indian penal code, 1860, No. 45 of 1860 (India).

[15] Stated indirectly but incorporated as a direct law.

[16] http://www.legalservicesindia.com/article/1633/Double-Jeopardy-in-India.html.

[17] Smt. Kalawati v. state of H.P., AIR 1953 SC 131 at p.152.

[18] “Double Jeopardy (Scotland) Act 2011” (legislation.gov.org).

[19] “Double Jeopardy and the Japanese Law” retrieved from www.wrongfulconvictionsblog.org

[20] “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.”

[21] European Convention of Human Rights.

[22] AIR 1953 SC 31.

[23]  AIR 1953 SC 325.

[24] (2002)1 SCC 405.

[25] AIR 1954 SC 375.

[26] AIR 1961 SC 578.