The Doctrine Of Double Jeopardy And Its Application In Nepalese Case Law
🧾 1. Concept and Meaning of Double Jeopardy
The Doctrine of Double Jeopardy is a fundamental principle of criminal law which protects an individual from being tried or punished twice for the same offence.
In essence, once a person has been acquitted or convicted by a competent court, they cannot be prosecuted again for the same offence based on the same facts.
⚖️ 2. Constitutional and Legal Provisions in Nepal
a) Constitutional Provision
Article 20(5) of the Constitution of Nepal (2015) explicitly states:
“No person shall be prosecuted or punished for the same offence more than once.”
This is a direct constitutional guarantee of protection against double jeopardy.
b) Statutory Provision
The National Criminal Procedure (Code) Act, 2074 (2017), Section 224, also embodies this doctrine:
“A person who has been convicted or acquitted once shall not again be tried for the same offence arising out of the same facts.”
Thus, both the Constitution and statute safeguard the principle.
🧑⚖️ 3. Legal Essence
To invoke the doctrine of double jeopardy, three essential elements must be satisfied:
The person must have been prosecuted previously before a competent court.
The offence must be the same as the previous one (based on the same facts and evidence).
The earlier trial must have resulted in conviction or acquittal.
If any of these are missing, double jeopardy does not apply.
🏛️ 4. Important Nepalese Case Laws on Double Jeopardy
Below are five landmark Supreme Court of Nepal decisions that interpret and apply this doctrine.
Case 1: Krishna Bahadur Thapa v. Government of Nepal (2049 B.S.)
Facts:
Krishna Bahadur Thapa was first tried and acquitted by a district court for embezzlement of public funds. Later, based on the same transactions, another case was filed against him under a different section of the Anti-Corruption Act.
Issue:
Can a person be prosecuted again under a different section for the same act after acquittal?
Decision:
The Supreme Court of Nepal held that once a person has been acquitted for the same factual conduct, a second prosecution under a different legal heading is barred by double jeopardy.
The Court emphasized that changing the title of the offence does not change the factual basis, and hence, the second prosecution was unconstitutional.
Significance:
This case firmly established that substance prevails over form — it is the same act, not the name of the offence, that matters.
Case 2: State v. Ram Bahadur Karki (2056 B.S.)
Facts:
Ram Bahadur, a police officer, faced departmental disciplinary proceedings for misconduct and was suspended. Later, a criminal case was filed for the same misconduct.
Issue:
Does departmental action followed by a criminal case amount to double jeopardy?
Decision:
The Supreme Court ruled that departmental or administrative proceedings are not equivalent to criminal prosecution. Hence, facing disciplinary action and later criminal prosecution for the same act does not violate double jeopardy, since the purposes are different.
Significance:
This case clarified that disciplinary and criminal jurisdictions are distinct; the doctrine applies only to criminal prosecutions.
Case 3: Hari Prasad Pandey v. Government of Nepal (2061 B.S.)
Facts:
Hari Prasad was tried and acquitted for tax evasion by the Inland Revenue Department’s Special Court. Later, another charge for the same tax period was filed by a different government agency.
Issue:
Is the second prosecution valid when the same facts were previously adjudicated?
Decision:
The Supreme Court held that once a competent authority has decided the matter, reopening the same facts under another proceeding violates Article 20(5) of the Constitution.
The Court quashed the second prosecution, reaffirming finality of judicial decisions.
Significance:
This case highlighted that the government cannot repeatedly prosecute a person by changing the investigating agency or forum.
Case 4: Shree Ram Sharma v. His Majesty’s Government (2064 B.S.)
Facts:
Shree Ram Sharma was convicted under the Arms and Ammunition Act for possession of an illegal weapon. Later, he was again prosecuted under the Terrorist and Disruptive Activities Act for the same weapon possession.
Issue:
Whether prosecution under a different act for the same act of possession amounts to double jeopardy?
Decision:
The Court held that the second prosecution for the same possession was barred, as the act and evidence were identical.
The Court observed that the state cannot split one continuous act into multiple offences to multiply punishment.
Significance:
This judgment reinforced the “same act, same evidence” test — if both prosecutions rely on the same facts, double jeopardy applies.
Case 5: Bal Bahadur Rana v. Government of Nepal (2068 B.S.)
Facts:
Bal Bahadur was convicted for fraud and served his sentence. Later, a new case was filed for criminal breach of trust based on the same fraudulent transaction.
Issue:
Is the second case permissible when the same transaction forms the basis?
Decision:
The Supreme Court dismissed the second case, ruling that one transaction cannot give rise to multiple punishments when the criminal intent and action are identical.
The Court cited Article 20(5) and Section 224 of the Criminal Procedure Code, upholding the constitutional safeguard.
Significance:
This case reiterated that the state must not fragment one criminal act into multiple prosecutions, as it violates both justice and constitutional protection.
📚 5. Key Judicial Principles Derived
From these and other judgments, the following principles guide the application of double jeopardy in Nepal:
Same facts, same evidence test: If both cases depend on the same set of facts, double jeopardy applies.
Competent jurisdiction: The first trial must have been before a competent legal body.
Finality of decision: Only after a judgment (conviction or acquittal) does protection arise.
Different jurisdictions: Departmental or administrative proceedings are excluded.
Multiple offences from same act: Cannot prosecute under different statutes for the same conduct unless distinct offences are proven.
🧩 6. Conclusion
The Doctrine of Double Jeopardy is a core element of fair trial rights in Nepal, constitutionally and judicially safeguarded.
Nepalese courts have consistently held that once a case has been legally decided, the matter is closed (res judicata in criminal law).
It prevents abuse of state power, ensures finality, and upholds the dignity of judicial decisions.
🔍 Summary Table of Key Cases
| Case Name | Year (B.S.) | Outcome | Key Principle |
|---|---|---|---|
| Krishna Bahadur Thapa v. GoN | 2049 | Second prosecution barred | Same facts under different section not allowed |
| Ram Bahadur Karki v. State | 2056 | No double jeopardy | Departmental ≠ criminal |
| Hari Prasad Pandey v. GoN | 2061 | Second case quashed | Finality of competent adjudication |
| Shree Ram Sharma v. HMG | 2064 | Second case invalid | Same evidence, same offence |
| Bal Bahadur Rana v. GoN | 2068 | Second prosecution dismissed | Single act cannot create multiple offences |
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