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“All Citizens are Equal before Law and are Entitled to Equal Protection of Law”-Article 27 of the Constitution of the People’s Republic of Bangladesh

Issue No: 92
November 8 , 2008

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Reviewing the views

Can one be tried for the same offence twice?

Samaha M Karim

The rule against 'double jeopardy' states that no one shall be tried or punished twice for the same offence. This 800-year-old law, described by many as an anachronism, protects citizens from oppression by ensuring that the State cannot keep prosecuting a citizen until he is finally convicted. Once an accused has been acquitted of a crime, the rule provides the accused protection from further prosecution on the same allegation, despite the strength of incriminating evidence that may subsequently come to light.

The constitutional law of Bangladesh
The Constitutional Law of Bangladesh incorporates this rule against 'double jeopardy' in Article 35(2), stating in clear terms, 'No person shall be prosecuted and punished for the same offence more than once.' The rule is also strongly established in Section 403 of the Code of Criminal Procedure.

When does Article 35 (2) apply?
Since the rule has been incorporated in the third part of the Constitution, it has become a fundamental right. The special position of this Article in our constitutional scheme is apparent as, unlike many others, this fundamental right is not made subject to 'reasonable restrictions', 'law', 'public interest' etc. Article 35(2) only applies when both the proceedings are criminal proceedings and the prosecutions are for the same offence.

In order to determine the application of Article 35 (2) three factors require consideration -
(i) whether the accused was prosecuted and punished in a previous proceeding,
(ii) whether the subsequent proceeding is a fresh proceeding or a continuation of a prior proceeding and
(iii) whether the previous charge was substantially the same as the present one.

Previous proceeding
According to the case of Muhahmadullah v. Sessions Judge, 52 DLR 374, for the application of Article 35 (2) there must have been a previous proceeding before a judicial tribunal of competent jurisdiction in which the accused was prosecuted. For jurisdiction of court the previous proceeding must not be a void proceeding [Baijnath v. Bhopal, AIR 1957 SC 494] and it must be a criminal proceeding [Narayanlal v. Mistry, AIR 1961 SC 29].

As established in the case of Assistant Collector v. Melwani, AIR 1970 SC 962, in the previous criminal proceedings the accused must have been convicted or acquitted and the conviction or acquittal must be in force at the time of the following proceeding. Where the previous proceeding was dismissed for default of the complainant Article 35 (2) will not apply.

Subsequent proceeding
Article 35 (2) will provide protection only when the subsequent proceeding is a fresh proceeding where the accused is being prosecuted for the same offence. If it is merely a continuation of the previous proceeding, by way of an appeal or retrial, Article 35 (2) will not be applicable [Ludwig v. Massachusetts, 427 US 618].

Whether it's the same offence
In the leading case of H.M. Ershad v. State, 45 DLR 533, it had been established that Article 35(2) will only apply when the subsequent proceeding is for the same offence for which the accused was once been tried and punished. In circumstances when two offences rise from the same facts and the allegations in the complaints are also the same, the previous conviction will not prevent the subsequent prosecution, as long as it is for a separate and distinct offence [Bhagwan Swarup v. Maharashtra, AIR 1965 SC 682].

As set in the case of Brown v, Ohio, 432 US 161, the rule of double jeopardy prohibits trial of a person for a greater offence after he has been convicted of a lesser-included offence. Where there is a continuing offence, as the continuance of the offence comprises a fresh offence day after day, the protection of Article 35(2) will not operate [Ranendranath v. India, AIR 1965 Cal 434 (Para 8)].

Problems with the law of double jeopardy
It is accepted that the current principles governing Double Jeopardy are problematic and a matter of concern. The reasons include the following:

(a) According to the principles of double jeopardy, it seems that the law provides a convicted person extensive rights to challenge his or her conviction (and sentence) on the basis that some type of error was made at the trial but no converse right is given to the prosecution to challenge an acquittal which appears to be the result of exactly the same type of error. These errors may be for example, an erroneous judicial direction, wrongful exclusion of evidence, fresh and compelling evidence etc.

(b) Due to progression in science and frequent use of greatly superior scientific methodologies such as DNA profiling (and other modern forensic sciences), this 800 year an old law is outdated and at times a barrier to greater justice.

(c) It is extremely unfair to the victims of crimes (if still alive) and their loved ones, when the accused, in certain cases, maybe due to lack of evidence, are able to walk freely amongst us with legal immunity, being safe guarded by the principles of double jeopardy.

(d) The respect for the law and confidence in the legal system can fall when circumstances allow those suspected of criminal behaviour to eventually dodge liabilities for their crimes due to the rule of double jeopardy - commonly called 'legal technicalities'.

In investigating the feasibility of national legislation to erode the principle against double jeopardy, various countries have instituted differing ways to contest the law that has well and truly passed its use-by date. In the UK, the Blair government has eroded the principle of double jeopardy by passing legislation to allow retrial of acquitted people where 'fresh and compelling evidence' subsequently arises.

These are some examples of law reforms, which depict a move away from the double jeopardy protection. Opinions differ, the most conventional one, as found in Bangladesh and the US, being that the accused shouldn't be susceptible to being brought before the courts again after they've already been acquitted of an offence. Finality should be absolute. What if new compelling evidence arise? Should there be the right to appeal after acquittals if new and compelling evidence later came to light? Should changes apply only to the most serious offences, such as murder, manslaughter, aggravated rape, serious drug offences and armed robbery, and should be made retrospective? It seems unreasonable that the law approves wrong guilty-verdicts can be wrong, but wrong not-guilty-verdicts cannot be wrong.

The writer is working with Lawdesk.


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