Special enactments and the need to broaden protection against double jeopardy

The principle of “double jeopardy” or protection from being prosecuted and punished more than once for the same offence has universal acceptance. Tracing its origins back to 847 AD and present in Roman law under the maxim “Nemo debet bis puniri pro uno delicto,” the doctrine also finds resonance in Indian law.

It is enshrined as both a constitutional and statutory right in India, the latter predating Article 20 of the Constitution of India. The protection is now found in Section 337 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) 2023. This section of the BNSS broadens the protection beyond Article 20(2) of the Constitution - which applies the protection from punishment in case of previous conviction - by covering previous acquittals as well.

Despite this, ambiguity remains regarding the foundational question of what even constitutes the “same offence.” Compounding this issue, the law presently limits protection to punishment, leaving out investigations and prosecutions, thus exposing individuals to simultaneous prosecutions under different statutes for the same act.

This article explores judicial interpretations of “same offence,” analyses overlapping statutes and argues for a broader interpretation of the protection to include simultaneous prosecutions.

Same, but different

The narrow interpretation of the term “same offence” has been a longstanding issue. The Supreme Court of India in State of Bihar v. Murad Ali Khan noted that a test applied in the United States (in Jeffers v. United States) - whether the evidence for one charge would suffice to prove another - was considered but not fully applied in India. Indian courts have held that trials and punishments are not barred if the ingredients of two offences differ, even if they arise from the same set of allegations. This interpretation, however, dilutes the protection by focusing on the technical distinction between offences rather than the act or omission itself. This interpretation also does not appear to be in line with the bare text of Section 300 of the Code of Criminal Procedure (CrPC) (or Section 337 BNSS), which additionally extends the protection to “the same facts for any other offence”.

Despite this, the Madhya Pradesh High Court, in Nadimuddin v. State of MP, held that an acquittal for lesser offences does not prevent trials for graver offences arising from the same facts. This leads to the conclusion that the protection under the CrPC/BNSS does little to prevent harassment, as individuals can be subject to repeated trials for similar offences, on the same facts, repeatedly.

More recently, the Supreme Court referred the question of defining the “same offence” to a larger bench in J Vedhasingh v. RM Govindan, due to conflicting judgments in Sangeetaben Mahendrabhai Patel v. State of Gujarat and Kolla Veera Raghav Rao v. Gorantla Venkateswara Rao. Both cases concerned the dual prosecution under the Negotiable Instruments Act, 1881 and the Indian Penal Code, 1860 (IPC) for distinct offences but under the same set of facts. Kolla Veera emphasised the futility of dual prosecutions under different statutes for the same act, specifically noting the language of Section 300(1) CrPC. On the other hand, Sangeetaben focused on whether the elements of the offences were identical. This referral signals a potential shift in jurisprudence, to a position perhaps closer in line with the Kolla Veera observations.

Special enactments and overlapping prosecutions

Even otherwise, special statutes such as the Prevention of Money Laundering Act, 2002 (PMLA), the Prevention of Corruption Act, 1988 (PC Act), and the Companies Act, 2013 create challenges in interpreting the “same offence.” Under such laws, overlapping prosecutions arise due to differing requirements for proving the same conduct. For instance, embezzlement may be punishable under Sections 406/409 of the IPC and Section 447 of the Companies Act, where the ingredients differ slightly but involve the same act.

This issue becomes particularly problematic when separate investigations lead to prosecutions under both special and general laws, such as the PMLA and IPC. This is a particular problem under the Companies Act, where even though Section 436(2) allows a special judge to take cognisance of IPC offences, the accused still faces investigations by multiple agencies for the same offence, creating an unfair burden.

A recent decision of the Delhi High Court in Ashish Bhalla v. State & Anr partially addressed the issue of ‘same offence’ and parallel investigations by different agencies. This was a case where Section 447 of the Companies Act, 2013 was invoked by the Serious Fraud Investigation Office (SFIO) and Sections 406/420 IPC were invoked by the Delhi Police on the same omnibus allegations. The Court ultimately quashed the Delhi Police FIR, holding that special laws have precedence over general law, while taking into consideration the point that the offences alleged were the same. Outside of being same or similar offences, this adds another layer of analysis - the implications arising from a “special v special laws” case or a “special v general laws” case.

Investigations used as punishment

A pressing issue is the use of investigations themselves as a form of punishment. Under laws like the PMLA, individuals are subject to investigations by multiple agencies, often based on the same facts but leading to different charges. In such cases, the trial process itself becomes an ordeal, with accused persons subjected to inconsistent narratives and prolonged legal battles across multiple forums.

In some instances, individuals face simultaneous investigations and arrests by different authorities. The trial delays further exacerbate the situation, leaving individuals in custody for years, awaiting resolution. Illustratively, the Madras High Court’s refusal to combine PMLA and CBI trials, even though they arose from the same facts, highlights the problem of inconsistent prosecutorial approaches.

To address the gaps in the current legal framework, it is necessary to expand the protection against double jeopardy to include simultaneous investigations and prosecutions. Although the Law Commission of India had recommended amending Section 26 of the General Clauses Act to address this issue, no action has been taken. The recommendation stemmed from recognising cases where multiple statutes address different aspects of the same act, leading to multiple offences. More recently, the new Section 337 BNSS chose to retain the identical language employed under Section 300 CrPC, thus eliminating any scope for legislative reform.

The partial protection under Section 71 of the IPC, which limits the quantum of punishment for offences arising from the same act, provides a foundation for broader reform. The principle that the punishment should not exceed what is allowed for the most serious offence should apply even when multiple prosecutions are brought under different statutes.

Conclusion

The current interpretation of double jeopardy offers limited protection, focusing on punishment rather than the investigative and prosecutorial processes. Judicial and legislative reform is necessary to extend protection to simultaneous prosecutions and prevent the harassment of accused individuals. The recent referral to a larger bench in J Vedhasingh presents an opportunity for the judiciary to revisit and broaden the interpretation of “same offence” to focus on the underlying act or omission rather than technical distinctions between offences. Although this would clarify part of the issue, the protection from multiple investigations does not feature as a topic of consideration from either the legislative or judicial wings at present. Without intervention, this could pose a genuine threat to the rights of accused who could face the weaponisation of all Acts at once.

Manu Sharma is an advocate practicing before the Delhi High Court.