Notes and Articles for Law students

User Tools

Site Tools


Nemo debet bis vexari, si constat curiae quod sit pro una et eadem causa

No one ought to be twice punished, if it be proved to the court that it be for one and the same cause.

In pursuance of this maxim a judgment, or res judicata, between the same parties is held to be final, and neither party can by a fresh action reopen the question so determined. Nor can they otherwise impeach the decision ; excepting for manifest error upon the face of the proceedings, or for fraud, surprise, or some failure of justice in the trial of the action, and in respect of which a new trial will be granted. And a plea of judgment recovered in a court of concurrent jurisdiction directly upon a point is, as a plea or as evidence, conclusive upon the same matter between the same parties in any such action. So, also, a judgment between the same parties for the same cause of action is conclusive, although the form of action is different ; as, a verdict in an action of trover is a bar in an action for money had and received brought for the value of the same goods. The main reason why such judgment is considered final, and cannot be reopened by another action, is that the cause of action is merged in the judgment, or, as it is called, transit in rem judicatam ; and there, in fact, does not exist any cause of action, so far as the matter in dispute in the original action is concerned, in respect of which an action can be brought.

Judgment in ejectment is, however, an apparent exception to this rule ; for, though it may be admitted in evidence between the same parties in a subsequent action, for some purposes, for the same lands, it is not a bar to the action, nor can it be pleaded by way of estoppel.

Under this rule may be classed all applications for new trials and appeals, and which are, in fact, in the nature of fresh actions for the same cause. And, therefore, the courts are careful not to grant new trials unless the justice of the case absolutely requires it. So a new trial for the improper admission of evidence has been refused where there appeared to be sufficient evidence to support the verdict given independently of the evidence so improperly admitted. Also where the action is trifling in amount, as for a sum not exceeding 20 ; or vexatious.

In penal actions, where a verdict is found for the defendant a new trial is never granted ; nor is a new trial often granted in ejectment where the verdict complained of has been found for the defendant ; nor in replevin except upon very clear grounds. So, if the jury at a second trial find for the party against whom the former verdict was given, the court may be induced, under special circumstances, to grant a new trial ; but the losing party is not in such case entitled to it as of right by any rule or practice of the court, and they have refused it where the second verdict was satisfactory. So a third trial is seldom granted after two concurring verdicts, and in such case the court has refused to grant it even though the judge before whom the second trial was tried was dissatisfied with the verdict.

Double Jeopardy

To this maxim may be added that applicable to criminal cases : “Nemo debet bis puniri pro uno delicto” — No one shall be punished twice for one crime. The rule in such cases being, that a man being indicted for an offence and acquitted cannot be again indicted for the same offence, and, if so indicted, may plead autrefois acquit, even in case of a charge of murder.This Principle is enshrined in the Constitution Of India under Article 20(2) as Double Jeopardy.

Meaning of double jeopardy

The legal term “double jeopardy” refers to the constitutional protection against facing trial or punishment more than once for the same criminal offence. It prevents prosecution for the same crime after an acquittal or a conviction. It also prevents imposing multiple punishments for the same crime.

Article 20 protects against double jeopardy: A protection against double jeopardy is a fundamental right guaranteed under Article 20 (2) of the Constitution of India, which states that— “No person shall be prosecuted and punished for the same offence more than once.”

Same offence

Article 20, undoubtedly prohibits prosecution and punishment to a person for the “same offence” more than once. The same offence would essentially means the offence whose ingredients are the same.

  1. If one and the same act of a person constitutes two different or distinct offences, then the prosecution and punishment for one offence would not bar prosecution and punishment for the other offence.
  2. If the same set of facts constitutes offences under more than one provision of law, then it will not attract the principle of double jeopardy. In such a case, separate prosecution and punishment for such distinct offences would not be barred.
  3. If there are two separate offences with different ingredients under two different enactments, then a double punishment is not barred. In such a case, the principle of double jeopardy is not attracted.

Prosecution and punishment, both in respect of the “same offence”

In order to attract the provisions of Article 20 (2) of the Constitution, there must have been both prosecution and punishment in respect of the “same offence”. The words “prosecuted” and “punished” are to be taken, not distributively so as to mean prosecuted or punished. Both the factors must co-exist in order that the operation of the clause may be attractive. SA Venkataraman vs Union of India1)

Two offences should be the same

Article 20 would become operative in a case when the second prosecution and punishment is for the identical offence for which the person concerned had already been prosecuted and punished earlier. The crucial requirement for attracting Article 20 is that the offences are the same, i.e., they should be identical. If, however, the two offences are distinct, the benefit of the ban cannot be invoked. It is, therefore, necessary to analyze and see whether their identity is made out.

Why double jeopardy protection

The protection that no person convicted of an offence can be tried or punished a second time is required for the following reasons:

  1. preventing the government from using its superior resources to wear down and erroneously convict innocent persons;
  2. protecting individuals from the financial, emotional and social consequences of successive prosecutions;
  3. preserving the finality and integrity of criminal proceedings, which would be compromised, if the government were allowed to ignore verdicts it did not like;
  4. restricting prosecutorial discretion over the charging process; and
  5. elimination of judicial discretion to impose cumulative punishments otherwise not clearly prohibited by law.

Nemo debet bis punire pro uno delicto

The fundamental right which is guaranteed under Article 20 (2) enunciates the principle of “autrefois convict” or “double jeopardy” i.e. a person must not be put in peril twice for the same offence. The doctrine is based on the ancient maxim “nemo debet bis punire pro uno delicto”, that is to say that no one ought to be twice punished for one offence.

Plea of autrefois convict or autrefois acquit

Autrefois acquit and autrefois convict are French terms. Autrefois means once or formerly. Accordingly, autrefois acquit and autrefois convict means formerly or once acquitted or convicted. Both the terms relate to the concept of double jeopardy.

The plea of “autrefois convict” or “autrefois acquit” avers that the person has been previously convicted or acquitted on a charge for the same offence as that in respect of which he is arraigned. The test is whether the former offence and the offence now charged have the same ingredients in the sense that the facts constituting the one are sufficient to justify a conviction of the other and not that the facts relied on by the prosecution are the same in the two trials. A plea of “autrefois acquit” is not proved, unless it is shown that the verdict of acquittal of the previous charge necessarily involves an acquittal of the latter.Maqbool Hussain vs State of Bombay 2)

English Case Reference

  • Duchess of Kingston's Case
  • Slade's Case
  • Doe v. Seaton
  • Hitchin v. Campbell
  • Horford v. Wilson
  • Parker v. Ansell
  • Doe clem. Teynham v. Tyler
  • Alexander v. Clayton
  • Swinnerton u. Marquis
  • Brook v. lliddleton
  • Sowell v. Champion
  • Reg. v. Green

About the Author

author Sunil Sharma is an advocate; editor and compiler of legal commentaries, having authored more than 40 books.

AIR 1954 SC 375
AIR 1953 SC 325

Navigation: Home»Legal Maxims