Section 337 BNSS and Article 20(2) of the Constitution

The texts

Article 20(2) of the Constitution. No person shall be prosecuted and punished for the same offence more than once.

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 for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under section 243(1), or for which he might have been convicted under section 243(2).

📖 Maqbool Hussain v. State of Bombay, AIR 1953 SC 325 (Constitution Bench)

Facts: Gold was seized from a person on his arrival in India, and the customs authorities, acting under the sea customs legislation, ordered its confiscation. He was thereafter prosecuted in a criminal court under the foreign exchange legislation in respect of the same gold. He contended that the confiscation proceeding was a prosecution and punishment, so that the criminal prosecution offended Article 20(2).

Held: The Constitution Bench held that the guarantee in Article 20(2) applies only where there has been a prosecution and punishment before a Court of law or a judicial tribunal. The customs authorities were not a judicial tribunal: they were an executive authority exercising administrative powers of adjudication conferred by the statute, the proceeding before them was not a prosecution, and the order of confiscation was not a punishment inflicted by a court or judicial tribunal within the meaning of the Article. The Court examined what makes a body a judicial tribunal — the nature of the power, the manner of its exercise, and whether it decides in a judicial manner questions between parties — and held that the customs proceeding did not satisfy the test. The subsequent criminal prosecution was therefore not barred.

Ratio: Article 20(2) applies only where there has been a prosecution and punishment before a Court of law or a judicial tribunal. A proceeding before an executive or departmental authority exercising administrative powers of adjudication is not a prosecution.

⚠ The practical reach of that holding

It is why a departmental or disciplinary proceeding against a public servant and a criminal prosecution on the same facts may both proceed. The departmental authority is not a judicial tribunal, the enquiry is not a prosecution, and the penalty is not a punishment for the purpose of the Article.

The same reasoning applies to customs and excise adjudications, to proceedings before regulatory authorities, and to the imposition of statutory penalties by an executive officer.

Section 337 reaches the same result by a different route: it requires a trial by a Court of competent jurisdiction, and a departmental proceeding is not a trial by a Court at all.

What the principle does not mean is that the two proceedings are unconnected in every respect. Where a criminal prosecution ends in an honourable acquittal on the very charge that founded the departmental penalty, the effect of that acquittal on the departmental order is a separate question, governed by service law and not by Article 20(2).

📖 State of Bombay v. S.L. Apte, AIR 1961 SC 578 (Constitution Bench)

Facts: A person was convicted of an offence under the insurance legislation and was thereafter prosecuted for criminal breach of trust under the general penal law in respect of the same money. He contended that the second prosecution was barred by Article 20(2) and by section 26 of the General Clauses Act, 1897.

Held: The Constitution Bench laid down the test that has governed ever since. To operate as a bar, the second prosecution and the consequential punishment must be for the same offence — that is, an offence whose ingredients are the same. The Court held that the expression “same offence” does not mean the same facts or the same transaction: what has to be compared is the ingredients of the two offences, and if each requires proof of a fact which the other does not, they are distinct offences, and a prosecution for the second is not barred however identical the facts from which both arose. The Court applied the same test to section 26 of the General Clauses Act, holding that its prohibition is likewise against being punished twice for the same offence in the sense of identity of ingredients, and that it does not prevent a prosecution under a second enactment where the ingredients differ. It held that the ingredients of the two offences before it were different and the second prosecution was competent.

Ratio: Two offences are the same only where their ingredients are the same. Where each requires proof of a fact which the other does not, they are distinct offences, and neither Article 20(2) nor section 26 of the General Clauses Act bars the second prosecution.

Section 26, General Clauses Act, 1897

Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence.

⚠ How to approach a double jeopardy plea

First, identify what happened before. Was it a trial by a Court? Did it end in a conviction or an acquittal, or in a discharge or a dismissal? Is that order still in force?

Second, test the offences against each other. Compare the ingredients, not the facts. If each requires proof of an element the other does not, they are distinct, and both Article 20(2) and limb (a) of section 337 are out.

Third, do not stop there. 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. If it might have been, limb (b) of section 337 may bar it even though the offences are distinct.

Fourth, check the exceptions. Sub-sections (2) to (6) of section 337 may take the case out of the bar — in particular where the first Court was not competent, or where consequences occurred after the conviction.

And run the enquiry under both provisions. The statutory bar is the wider one in most cases; the constitutional guarantee is the stronger one where it applies.

The position stated shortly

1. Article 20(2): no person shall be prosecuted AND punished for the same offence more than once. It is a fundamental right, with no exceptions within the Article.

2. Section 337: a person once tried by a competent Court and convicted OR acquitted shall not be tried again for the same offence, nor on the same facts for other offences within section 243.

3. Section 337 is wider in two respects: it covers an acquittal, which Article 20(2) does not; and it extends to the same facts, which Article 20(2) does not.

4. Article 20(2) is stronger in two respects: it is a fundamental right enforceable by writ, and it contains no exceptions.

5. Article 20(2) applies only to a prosecution and punishment before a Court of law or a judicial tribunal. A proceeding before an executive or departmental authority is not a prosecution: Maqbool Hussain.

6. That is why a departmental proceeding and a criminal prosecution on the same facts may both proceed.

7. “The same offence” means identity of ingredients, not identity of facts or of the transaction. Where each offence requires proof of a fact the other does not, they are distinct: S.L. Apte.

8. Section 26 of the General Clauses Act, 1897 permits prosecution under either of two enactments under which the same act is an offence, but forbids being punished twice for the same offence. Section 337(6) preserves it.

9. Section 26 operates on punishment, not on prosecution, and its “same offence” bears the same ingredients test.

10. A plea of double jeopardy must be examined under both provisions. Failure under one does not answer the other, and the statutory bar is the wider of the two in most cases.