Section 337 – Person Once Convicted or Acquitted Not to Be Tried for Same Offence

Introduction

Section 337 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) incorporates the rule against double jeopardy in criminal proceedings. It prevents a person from being tried again for the same offence after having already been tried by a competent Court and convicted or acquitted, while that conviction or acquittal remains in force.

The provision is intended to protect an accused from repeated criminal prosecution for the same offence and is closely connected with the principle of finality of criminal proceedings.

Section 337 substantially corresponds to Section 300 of the Code of Criminal Procedure, 1973.

Meaning of Section 337

The basic rule under Section 337 is that once a person has been tried by a Court competent to try the offence and has been convicted or acquitted, that person cannot ordinarily be tried again for the same offence.

The protection can also extend to another offence based on the same facts where that offence could have been charged or the accused could have been convicted during the earlier trial.

The rule is subject to the exceptions specifically provided in Section 337.

Statutory Basis

Section 337 is contained in Chapter XXVI of the BNSS, dealing with general provisions as to inquiries and trials.

The provision contains six sub-sections, an Explanation and illustrations dealing with circumstances in which a subsequent trial is prohibited or permitted.

Object and Purpose

The principal purposes of Section 337 are:

• to prevent repeated criminal trials for the same offence;
• to protect an accused from unnecessary harassment;
• to give finality to criminal proceedings;
• to prevent repeated prosecution on substantially the same facts; and
• to maintain fairness and certainty in the administration of criminal justice.

The provision also recognises that the protection cannot be absolute in every situation. Section 337 therefore contains specific exceptions permitting a subsequent trial in defined circumstances.

Essential Elements

1. There must have been a previous trial

The person must have already been tried by a Court of competent jurisdiction.

A mere allegation, investigation or registration of an FIR does not amount to a previous trial for the purposes of Section 337.

2. The Court must have been competent

The previous trial must have been conducted by a Court competent to try the offence.

The competency of the earlier Court is particularly relevant because Section 337(4) permits a subsequent trial in certain circumstances where the earlier Court was not competent to try the subsequent offence.

3. There must have been a conviction or acquittal

The previous trial must have resulted in either:

• conviction; or
• acquittal.

The conviction or acquittal must remain in force.

4. The subsequent proceeding must fall within the prohibited category

The general prohibition applies to:

• the same offence; or
• another offence based on the same facts where the law contemplated that a different charge could have been made or the accused could have been convicted during the earlier trial.

Section 337(1): General Rule

Section 337(1) provides the principal protection.

A person who has once been tried by a competent Court and convicted or acquitted of an offence cannot, while that conviction or acquittal remains in force:

• be tried again for the same offence; or
• be tried on the same facts for another offence where a different charge could have been made under Section 244(1), or where conviction could have been recorded under Section 244(2).

The provision therefore covers more than a second trial bearing exactly the same offence description. It can also prevent a subsequent prosecution for another offence arising from the same facts where the procedural law required or permitted that offence to be dealt with during the first trial.

Section 337(2): Subsequent Trial for a Distinct Offence

Section 337(2) provides an exception to the general rule.

A person who has been acquitted or convicted of an offence may subsequently be tried for a distinct offence where a separate charge could have been made against that person at the former trial under Section 243(1), provided the State Government consents to the subsequent trial.

Thus, a subsequent trial is possible in the circumstances contemplated by this sub-section, but the statutory requirement of State Government consent must be satisfied.

Section 337(3): Consequences Occurring Later

Section 337(3) deals with a situation where the act for which the person was convicted subsequently results in consequences constituting a different offence.

A person may be tried for the later offence where:

• the consequences had not occurred when the person was convicted; or
• the consequences had occurred but were not known to the Court at the time of conviction.

Example

A is convicted for causing grievous hurt to B. After the conviction, B dies as a result of the injuries.

A may subsequently be tried for culpable homicide because the death occurred, or was not known to the Court, at the time of the earlier conviction.

Section 337(4): When Earlier Court Was Not Competent

Section 337(4) permits a subsequent trial where the first Court was not competent to try the offence for which the accused is subsequently charged.

Thus, an earlier conviction or acquittal does not prevent a later trial for another offence arising from the same acts where the Court that conducted the first trial lacked jurisdiction to try the subsequent offence.

Example

A is convicted by a Magistrate for an offence based on certain acts. If another offence arising from the same acts could not legally be tried by that Magistrate because the Magistrate lacked the necessary jurisdiction, the accused may subsequently be tried for that offence by the competent Court.

Section 337(5): Discharge

Section 337(5) deals with a person who has been discharged under Section 281 BNSS.

Such a person cannot ordinarily be tried again for the same offence unless:

• the Court which discharged the person consents; or
• another Court to which the first Court is subordinate gives consent.

This is distinct from the ordinary rule concerning conviction or acquittal.

Section 337(6): Other Statutory Provisions

Section 337(6) states that nothing in the section affects:

• Section 26 of the General Clauses Act, 1897; or
• Section 208 of the BNSS.

Section 208 concerns offences committed outside India and therefore operates independently of the general prohibition contained in Section 337.

Explanation: Dismissal of Complaint and Discharge

The Explanation to Section 337 makes an important distinction.

The dismissal of a complaint or the discharge of the accused does not amount to an acquittal for the purposes of Section 337.

Therefore, dismissal of a complaint cannot automatically be treated as an acquittal attracting the full protection against a subsequent trial under this section.

Similarly, discharge is not equivalent to acquittal, although Section 337(5) separately provides a restriction on subsequent trial after discharge.

Illustrations under Section 337

Illustration A

A is tried for theft as a servant and acquitted.

A cannot subsequently, while the acquittal remains in force, be charged with:

• theft as a servant;
• theft simpliciter on the same facts; or
• criminal breach of trust on the same facts.

The illustration demonstrates that the protection can extend to different offences based on the same facts.

Illustration B

A is convicted for causing grievous hurt to B. B subsequently dies.

A may be tried for culpable homicide where the conditions of Section 337(3) are satisfied.

Illustration C

A is convicted by a Sessions Court for the culpable homicide of B.

A cannot subsequently be tried on the same facts for the murder of B merely by changing the nature of the charge.

Illustration D

A is convicted by a Magistrate of the first class for voluntarily causing hurt to B.

A cannot subsequently be tried for voluntarily causing grievous hurt to B on the same facts unless the case falls within the exception in Section 337(3).

Illustration E

A is convicted by a Magistrate of the second class for theft of property from B’s person.

A may subsequently be charged with and tried for robbery on the same facts.

This illustrates the relevance of the competence and jurisdiction of the Court that conducted the earlier trial.

Illustration F

A, B and C are convicted by a Magistrate of the first class for robbing D.

They may subsequently be charged with and tried for dacoity on the same facts where the earlier Court was not competent to try the offence of dacoity.

Important Distinction

Conviction or Acquittal and Discharge

A conviction or acquittal after trial attracts the principal protection under Section 337(1).

Discharge is different. A discharge is expressly excluded from the meaning of acquittal by the Explanation. However, Section 337(5) separately restricts a subsequent trial after discharge unless the required consent is obtained.

Dismissal of Complaint and Acquittal

Dismissal of a complaint is not an acquittal for Section 337.

Therefore, dismissal of a complaint does not automatically create the statutory bar against subsequent trial contemplated by this provision.

Same Offence and Different Offence on Same Facts

Section 337 is not confined only to a subsequent prosecution bearing exactly the same offence label.

The prohibition can also apply where the subsequent charge is a different offence but is based on the same facts and could have been dealt with during the earlier trial.

Constitutional Connection: Article 20(2)

Section 337 is closely connected with the constitutional protection against double jeopardy under Article 20(2) of the Constitution of India.

Article 20(2) provides that no person shall be prosecuted and punished for the same offence more than once.

Section 337 operates as a statutory protection within criminal procedure and contains a broader procedural framework concerning previous conviction, acquittal, discharge and subsequent trials.

The two provisions should not be treated as identical in scope merely because both embody the principle against repeated prosecution and punishment.

BNSS and CrPC

Section 337 BNSS corresponds to Section 300 of the Code of Criminal Procedure, 1973.

The provision substantially continues the earlier CrPC rule against a person being tried again after conviction or acquittal.

The principal structure of the rule, including its exceptions concerning distinct offences, subsequent consequences, competency of the earlier Court, discharge and other statutory provisions, has been retained under BNSS.

Relationship with BNS and BSA

Section 337 is a procedural provision under the BNSS.

The Bharatiya Nyaya Sanhita, 2023 (BNS) defines criminal offences, while the Bharatiya Sakshya Adhiniyam, 2023 (BSA) governs the law of evidence.

Section 337 operates at the stage of criminal proceedings and determines when a previous conviction, acquittal or discharge restricts a subsequent criminal trial.

Example

Suppose A is tried for theft and is acquitted by a competent Court. The acquittal remains in force.

If the prosecution later attempts to try A again for the same theft, Section 337 generally prevents the second trial.

The position may be different if the later prosecution falls within one of the statutory exceptions under Section 337, such as a later consequence giving rise to a different offence or the earlier Court lacking competence to try the subsequent offence.

Topic at a Glance

• Section: 337, BNSS, 2023
• Subject: Person once convicted or acquitted not to be tried for same offence
• Core principle: Protection against repeated criminal trials
• Previous proceeding: Must be a trial before a competent Court
• Previous result: Conviction or acquittal
• General rule: No second trial for the same offence while the conviction or acquittal remains in force
• Extended protection: May apply to another offence based on the same facts
• Important exceptions: Distinct offence with State Government consent, later consequences, lack of competence of earlier Court and specific rules concerning discharge
• Constitutional connection: Article 20(2)
• Corresponding CrPC provision: Section 300, CrPC

Quick Revision

• Section 337 BNSS incorporates the statutory rule against double jeopardy.
• A person once tried by a competent Court and convicted or acquitted cannot ordinarily be tried again for the same offence.
• The conviction or acquittal must remain in force.
• The protection may extend to another offence arising from the same facts.
• Section 337(2) permits a subsequent trial for a distinct offence in specified circumstances with State Government consent.
• Section 337(3) permits a later trial where subsequent consequences create a different offence.
• Section 337(4) deals with cases where the earlier Court was not competent to try the subsequent offence.
• Section 337(5) separately regulates subsequent trials after discharge.
• Dismissal of a complaint or discharge is not treated as acquittal under the Explanation.
• Article 20(2) of the Constitution provides the constitutional protection against prosecution and punishment for the same offence more than once.
• Section 337 substantially corresponds to Section 300 of the CrPC.

ALSO READ: Section 336 – Evidence of public servants, experts, police officers in certain cases

Conclusion

Section 337 BNSS gives statutory effect to the principle that criminal proceedings should ordinarily attain finality once a competent Court has convicted or acquitted a person. At the same time, the section recognises limited situations where a subsequent trial may legitimately take place. The provision therefore balances the protection of an accused against repeated prosecution with the need to permit a later trial where the circumstances specifically recognised by law justify it.