Application of Double Jeopardy

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Justice Anoop Chitkara observed the application of ‘Double Jeopardy’ due to the clash between Section 138 of the Negotiable Instruments Act, 1881(NI Act) and Section 420 and 406 Indian Penal Code,1860 (IPC).

The Punjab and Haryana High Court gave this judgment in the case of Jitendra Singh and another v. State of Punjab and others.

Two complaints under Section 138 of NI Act and an FIR under Section 406/420 IPC were filed against the petitioners seeking criminal prosecution.
The complainant contended that the case was not only of cheque dishonor, but also breach of trust accompanied by mens rea.
First Information Report (FIR) under Section 406 and 420 IPC was not barred. The petitioners contended that dishonor of cheque could not be construed as intention to cheat or malicious act on part of the issuer. So, the FIR was liable to be quashed.

“It would be a violation of Article 20(2) of Constitution of India to file an FIR under the IPC by leveling allegations that the goods were received with malicious intent and cheques were also issued with such an intent, and to simultaneously seek prosecution under Section 138 of NIA or the same set of allegations and a similar transaction for the same amount would violate Article 20(2) of the Constitution of India.”

Double jeopardy is a legal conception that prevents a person from being tried or penalized twice for the same offence. It's a fundamental principle of criminal law, designed to protect individuals from the arbitrary use of state power and to ensure that they aren't subordinated to multiple executions and corrections for the same crime.
In India, the principle of double jeopardy is elevated in Article 20(2) of the Constitution, which provides that no person shall be prosecuted and penalized for the same offence more than formerly.
- The doctrine of double jeopardy is also elevated under Section 300 of the CrPC.
The origins of double jeopardy can be traced back to ancient times, when numerous legal systems had rules against retrying a person for the same offense.
In the English common law system, the principle of double jeopardy was first established in the 12^th century.
Exception to the ‘Rule of Double Jeopardy’:
- He or she can be retried if new and conclusive substantiation is set up, if the person has been acquitted of an offense.
- He or she can be retried for the higher offense, if a person has been condemned of a lower offense and a higher offense is latterly discovered.
- He or she can be tried again for the same offense in a higher court of appeal, if a person has been condemned by a court of competent jurisdiction.

Ajay Kumar Radheshyam Goenka v. Tourism Finance Corporation of India Ltd, (2023):
- Supreme Court held that the criminal prosecution initiated against the natural persons under Section 138 read with 141 of the Negotiable Instrument Act, 1882 read with Section 200 of the Code of Criminal Procedure, 1973 would not stand terminated, and both Hon’ble Judges of Supreme Court have authored separate but concurring verdicts.