Double Jeopardy under the | Section 337 BNSS

Person Once Convicted or Acquitted Not to Be Tried Again: Section 337 of the BNSS, 2023, the Bar, the Five Exceptions and What Counts as a Trial

A person who has been tried and the matter concluded should not have to defend himself again on the same accusation. The principle is ancient, and it rests on two ideas: that the State, with its resources, should not be permitted to wear a person down by successive prosecutions until it obtains the result it wants; and that a judgment, once given, should be final.

Section 337 of the Bharatiya Nagarik Suraksha Sanhita, 2023 gives the principle statutory form. It is wider than the constitutional guarantee in Article 20(2) in two important respects and narrower in one, and the two must be examined separately — which is done in the companion topic in this series. This topic is about the section itself: what it bars, what it requires before the bar operates, and the five exceptions the section contains.

1. The Bar

Figure 1: The bar and the exceptions

Section 337(1), BNSS 2023

A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again —

(a) for the same offence; nor

(b) on the same facts for any other offence for which a different charge from the one made against him might have been made under sub-section (1) of section 243, or for which he might have been convicted under sub-section (2) of that section.

The second limb is what makes the section wider than the constitutional guarantee. It bars not only a second trial for the same offence, but a trial on the same facts for another offence in two defined situations: where a different charge might have been made at the first trial under section 243(1) — that is, where the offences arose from one series of acts forming the same transaction — and where the accused might have been convicted under section 243(2).

Figure 2: The five conditions

2. What Must Have Happened

Condition	Content	What does not satisfy it
A trial	There must have been a trial — a judicial proceeding before a Court leading to a conviction or an acquittal	An investigation; an inquiry; a departmental proceeding; a proceeding before an authority that is not a Court
By a competent Court	The Court must have been competent to try the offence	A trial by a Court lacking jurisdiction — and sub-section (4) makes the consequence explicit
Ending in conviction or acquittal	The trial must have ended in a conviction or an acquittal	A discharge; the dismissal of a complaint; a withdrawal before the charge, which operates as a discharge. The Explanation says so expressly
Still in force	The conviction or acquittal must remain in force	An order set aside in appeal or revision; a case in which a retrial has been ordered
Same offence or same facts	The second proceeding must be for the same offence, or on the same facts for another offence within section 243(1) or 243(2)	An offence with different ingredients arising from the same transaction, outside the second limb

⚠ The Explanation is the most practically important part of the section

It provides that the dismissal of a complaint, or the discharge of the accused, is not an acquittal for the purposes of the section.

That is why the distinction between a discharge and an acquittal recurs throughout the Sanhita and matters at so many points: a discharge under section 262 or 268, the stopping of proceedings under section 281 before the principal witnesses are examined, and the dismissal of a complaint under section 226 all leave the prosecution free to begin again.

By contrast, an acquittal under section 255, 271 or 278, the composition of an offence under section 359, a withdrawal after the charge under section 360, the withdrawal of a complaint under section 280, and the stopping of proceedings after the principal witnesses have been examined all attract section 337.

The one qualification is section 337(5): a person discharged under section 281 shall not be tried again for the same offence except with the consent of the Court which discharged him, or of a superior Court. That is a protection short of the full bar.

3. The Exceptions

Sub-section (2): a distinct offence, with the State Government’s consent. A person acquitted or convicted may be afterwards tried, with the consent of the State Government, for any distinct offence for which a separate charge might have been made against him at the former trial under section 243(1).
Sub-section (3): consequences that had not happened. A person convicted of an offence constituted by an act causing consequences which, together with that act, constituted a different offence, may be afterwards tried for that offence if the consequences had not happened, or were not known to the Court to have happened, at the time when he was convicted. The classic instance is an assault followed, after the conviction, by the death of the injured person.
Sub-section (4): the first Court was not competent. A person acquitted or convicted of an offence constituted by certain acts may, notwithstanding that acquittal or conviction, be subsequently charged with and tried for any other offence constituted by the same acts, if the Court by which he was first tried was not competent to try the offence with which he is subsequently charged.
Sub-section (5): a discharge under section 281. A person discharged under section 281 shall not be tried again for the same offence except with the consent of the Court by which he was discharged or of any other Court to which that Court is subordinate.
Sub-section (6): what the section does not affect. Nothing in the section shall affect the provisions of section 26 of the General Clauses Act, 1897, or of section 208 of the Sanhita — the provision on offences committed outside India and the sanction of the Central Government.

📖 Kolla Veera Raghav Rao v. Gorantla Venkateswara Rao, (2011) 2 SCC 703

Facts: A person was convicted of an offence under a special statute, and a separate prosecution was thereafter launched against him on the same facts for a different offence under the general penal law. The question was whether the second prosecution was barred, and how the statutory provision relates to the constitutional guarantee.

Held: The Supreme Court held that the statutory provision corresponding to section 337(1) is wider than Article 20(2) of the Constitution. Article 20(2) bars a second prosecution and punishment only for the same offence; the statutory provision goes further, and bars a second trial on the same facts for any other offence falling within the situations it specifies. It followed that although the two offences in question had different ingredients, so that Article 20(2) would not have barred the second prosecution, the statutory bar applied, because the second trial was on the same facts as the first. The Court held that the second prosecution could not proceed, and observed that the width of the statutory provision is deliberate and is not to be cut down by reading it as merely reproducing the constitutional guarantee.

Ratio: Section 337(1) is wider than Article 20(2). Article 20(2) bars a second prosecution for the same offence; the section additionally bars a second trial on the same facts for another offence within the situations it specifies.

📖 Sangeetaben Mahendrabhai Patel v. State of Gujarat, (2012) 7 SCC 621

Facts: A person faced prosecution both under a special statute relating to the dishonour of a cheque and, on facts arising from the same transaction, for cheating under the general penal law. It was contended that the second prosecution amounted to double jeopardy.

Held: The Supreme Court held that the two prosecutions were not for the same offence and that neither the constitutional guarantee nor the statutory bar applied. The ingredients of the two offences are different: the statutory offence relating to a dishonoured cheque is made out on proof of the issue of the cheque, its dishonour, notice and failure to pay, and does not require proof of a dishonest or fraudulent intention at the time of the transaction; the offence of cheating requires proof of deception and dishonest inducement from the inception. The Court held that where each offence requires proof of an element the other does not, they are distinct offences, and a prosecution for the second is not barred by a trial for the first however similar the facts. It emphasised that the test is identity of ingredients, not identity of facts.

Ratio: Where each of two offences requires proof of an element the other does not, they are distinct offences and a second prosecution is not barred. The test is identity of ingredients, not identity of facts.

4. Reconciling the Two Decisions

The two decisions are frequently thought to be in tension, and they are not. They answer different limbs of section 337(1).

	Limb (a): the same offence	Limb (b): the same facts
The test	Identity of ingredients. Two offences are the same only where the ingredients of both are the same	The second offence is one for which a different charge might have been made at the first trial under section 243(1), or of which he might have been convicted under section 243(2)
What it corresponds to	The same test as under Article 20(2)	No constitutional counterpart. This limb exists only in the statute
The illustration	Two offences with different ingredients are not the same offence, and limb (a) does not bar the second: Sangeetaben Mahendrabhai Patel	Even where the ingredients differ, limb (b) may bar the second trial if it is on the same facts and falls within section 243: Kolla Veera Raghav Rao
The practical order of enquiry	Ask first whether the ingredients are identical. If they are, the bar applies and the enquiry ends	If they are not, ask whether the second trial is on the same facts and whether the charge might have been joined at the first trial under section 243

⚠ Applying the second limb

The limb turns on section 243 — the provision permitting more than one offence to be tried together. Its practical effect is that a prosecutor who could have joined a charge at the first trial, because the offences arose from one series of acts forming the same transaction, generally cannot bring it afterwards.

That is a rule with a clear purpose: it obliges the prosecution to bring its whole case at once, rather than holding back a charge to be used if the first trial fails.

And it explains sub-section (2), the first exception. Where a distinct offence could have been separately charged at the former trial, the prosecution is not shut out altogether — but it must obtain the consent of the State Government, which is a deliberate check on the very practice the bar exists to prevent.

5. Key Takeaways

The position stated shortly

1. Section 337(1): a person once tried by a Court of competent jurisdiction and convicted or acquitted shall not, while that conviction or acquittal remains in force, be tried again for the same offence, nor on the same facts for another offence within section 243(1) or 243(2).

2. Five conditions must be satisfied: a trial; by a competent Court; ending in conviction or acquittal; still in force; for the same offence or on the same facts.

3. The Explanation is decisive in practice: the dismissal of a complaint and the discharge of the accused are not acquittals for the purposes of the section.

4. Limb (a) applies the test of identity of ingredients. Where each offence requires proof of an element the other does not, they are distinct offences and the bar does not apply: Sangeetaben Mahendrabhai Patel.

5. Limb (b) has no constitutional counterpart. It bars a second trial on the same facts for another offence where a different charge might have been made at the first trial under section 243: Kolla Veera Raghav Rao.

6. Sub-section (2): a distinct offence for which a separate charge might have been made may be tried afterwards, but only with the consent of the State Government.

7. Sub-section (3): where an act caused consequences which had not happened, or were not known to have happened, at the time of conviction, the person may afterwards be tried for the different offence those consequences constitute.

8. Sub-section (4): where the first Court was not competent to try the offence now charged, the bar does not apply.

9. Sub-section (5): a person discharged under section 281 may be tried again only with the consent of the discharging Court or a superior Court.

10. Sub-section (6): the section does not affect section 26 of the General Clauses Act, 1897, or section 208 of the Sanhita relating to offences committed outside India.

6. Frequently Asked Questions

What does section 337 bar?

A second trial of a person once tried by a Court of competent jurisdiction and convicted or acquitted, while that conviction or acquittal remains in force — for the same offence, and also on the same facts for any other offence for which a different charge might have been made under section 243(1) or of which he might have been convicted under section 243(2).

Does a discharge bar a fresh trial?

No. The Explanation to section 337 provides that the discharge of the accused is not an acquittal for the purposes of the section. The one qualification is section 337(5): a person discharged under section 281 may be tried again only with the consent of the discharging Court or a superior Court.

When are two offences “the same offence”?

When the ingredients of both are the same. Where each requires proof of an element the other does not, they are distinct offences and the first limb of the bar does not apply, however similar the facts: Sangeetaben Mahendrabhai Patel v. State of Gujarat.

Can a second prosecution on the same facts be barred even if the offences differ?

Yes, under the second limb of section 337(1), where the second trial is on the same facts and the charge might have been made at the first trial under section 243(1) or the accused might have been convicted of it under section 243(2): Kolla Veera Raghav Rao v. Gorantla Venkateswara Rao.

Can a person convicted of causing injury be tried for culpable homicide if the victim later dies?

Yes, under section 337(3), where the consequences had not happened, or were not known to the Court to have happened, at the time when he was convicted. That is the situation the sub-section was written for.

Does the section apply where the first court had no jurisdiction?

No. The bar requires a trial by a Court of competent jurisdiction, and sub-section (4) makes the position explicit: where the first Court was not competent to try the offence now charged, the person may be subsequently charged with and tried for it.

Related Topics

Section 337 and Article 20(2) of the Constitution
General Provisions as to Inquiries and Trials: Sections 337 to 366
Joinder of Charges: Sections 241 to 247, BNSS
Compounding of Offences under the BNSS, 2023: Section 359
Cognizance and the Framing of a Charge Distinguished
Territorial Jurisdiction of Criminal Courts: Sections 197 to 209