Article 20(2) of the Constitution of India is being reproduced hereinbelow for ready reference-
(2) No person shall be prosecuted and punished for the same offence more than once.
This article brings in the concept of double jeopardy. It was not that this principle was not in existence prior to Constitution of India. As per Section 26 of the General Clauses Act, 1857, it was incorporated within the legal framework but was given the colour of constitutional guarantee by Article 20(2) of the Constitution of India.
Section 26 of the General Clauses Act, 1857 is being reproduced hereinunder-
“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.”
Hon’ble Apex Court in The State Of Bombay vs S. L. Apte & Another on 9 December, 1960 Equivalent citations: 1961 AIR 578, 1961 SCR (3) 107 explained Article 20(2) vis-a-vis Section 26 of General Clauses Act, 1857 as follows
“The next point to be considered is as regards the scope of s. 26 of the General Clauses Act. Though s. 26 in its opening words refers to “the act or omission constituting an offence under two or more enactments”, the emphasis is not on the facts alleged in the two complaints but rather on the ingredients which constitute the two offences with which a person is charged. This is made clear by the concluding portion of the section which refers to “shall not be liable to be punished twice for the same offence,”. If the offences are not the same but are distinct, the ban imposed by this provision also cannot be invoked. It therefore follows that in the present case as the respondents are not being sought to be punished for “the same offence” twice but for two distinct offences constituted or made up of different ingredients the bar of the provision is inapplicable.
In passing, it may be pointed out that the construction we have placed on Art. 20(2) of the Constitution and s. 26 of the General Clauses Act is precisely in line with the terms of s. 403(2) of the Criminal Procedure Code..”
The background of Article 20(2) of the Constitution of India was explained by the Hon’ble Apex Court in the judgement of The State Of Bombay vs S. L. Apte & Another on 9 December, 1960 Equivalent citations: 1961 AIR 578, 1961 SCR (3) 107
The crucial requirement therefore for attracting the Article is that the offences are the same, i.e., they should be identical. If, however, the two offences are distinct, then notwithstanding that the allegations of facts in the two complaints might be substantially similar, the benefit of the ban cannot be invoked.
Applicability of Article 20(2) only on criminal proceedings
Reference-1- The very wording of Art. 20 and the words used therein….. “convicted”, “commission of act charged as an offence”, “be subjected to a penalty”, “commission of the offence”, “prosecuted and punished”, “accused of any offence”, would indicate that the proceedings therein contemplated are of the nature of criminal proceedings before a Court of law or a judicial tribunal and the prosecution in this context would mean an initiation or starting of proceedings of a criminal nature before a Court of law or a judicial tribunal in accordance with the procedure prescribed in the statute which creates the offence and regulates the procedure-Maqbool Hussain vs The State Of Bombay. Jagjit … on 17 April, 1953 (SC) Equivalent citations: 1953 AIR 325, 1953 SCR 730-
2. The words “before a Court of law or judicial tribunal” are not to be found in Art. 20(2). But if regard be had to the whole background indicated above it is clear that in order that the protection of Art. 20(2) be invoked by a citizen there must have been a prosecution and punishment in respect of the same offence before a Court of law or a tribunal, required by law to decide the matter in controversy judicially on evidence on oath which it must be authorised by law to administer and not before a tribunal which entertains a departmental or an administrative enquiry even though set up by a statute but not required to proceed on legal evidence given on oath. The very wording of Art. 20 and the words used therein….. “convicted”, “commission of act charged as an offence”, “be subjected to a penalty”, “commission of the offence”, “prosecuted and punished”, “accused of any offence”, would indicate that the proceedings therein contemplated are of the nature of criminal proceedings before a Court of law or a judicial tribunal and the prosecution in this context would mean an initiation or starting of proceedings of a criminal nature before a Court of law or a judicial tribunal in accordance with the procedure prescribed in the statute which creates the offence and regulates the procedure.
Reference-2- It has also been held by this court in Maqbool Hussain’s case(2) that the language of article 20 and the words actually used in it afford a clear indication that the proceedings in connection with the prosecution and punishment of a person must be in the nature of a criminal proceeding, before a court of law or judicial tribunal, and not before a tribunal which entertains a departmental or an administrative enquiry even though set up by a statute, but which is not required by law to try a matter judicially and on legal evidence– S.A. Venkataraman vs The Union Of India And Another on 30 March, 1954 Equivalent citations: 1954 AIR 375, 1954 SCR 1150
It has also been held by this court in Maqbool Hussain’s case(2) that the language of article 20 and the words actually used in it afford a clear indication that the proceedings in connection with the prosecution and punishment of a person must be in the nature of a criminal proceeding, before a court of law or judicial tribunal, and not before a tribunal which entertains a departmental or an administrative enquiry even though set up by a statute, but which is not required by law to try a matter judicially and on legal evidence. In that case the proceedings were taken under the Sea Customs Act before a Customs authority who ordered confiscation of goods. It was held that such proceedings were not “Prosecution”, nor the order of confiscation a “punishment” within the meaning of article 20(2) inasmuch as the Customs authority was not a court or a judicial tribunal and merely exercised administrative powers vested in him for revenue purposes.
Meaning of “Same Offence” –
Reference-1- The fact that the person sells the liquor which he possessed does not render the possession and the sale necessarily a single offence. There is nothing in the Constitution which prevents Congress from punishing separately each step leading to the consummation of a transaction which it has power to prohibit and punishing also the completed transaction-The State Of Bombay vs S. L. Apte & Another on 9 December, 1960 Equivalent citations: 1961 AIR 578, 1961 SCR (3) 107
The words of the Vth Amendment where this rule is to be found in the American Constitution are:
“Nor shall any person be subject, for the same offence, to be twice put in jeopardy of life or limb.” and it will be noticed that there as well, the ban is confined to a second prosecution and punishment for the same offence.
Willoughby after referring to the words quoted in the Fifth Amendment says:
“Cases may occur in which the same act may render the actor guilty of two distinct offences; In such cases the accused cannot plead the trial and acquittal, or the conviction and punishment for one offence in bar to a conviction for the other”(1).
In Albrecht v. Constitution of the United States, Vol.II.- p. 1158., United States (1) Brandeis, J., speaking for a unanimous Court said:
“There is a claim of violation of the Vth Amendment by the imposition of double punishment. This contention rests upon the following facts. Of the nine, counts in the information four charged illegal possession of liquor, four illegal sale and one maintaining a common nuisance. The contention is that there was double punishment because the liquor which the defendants were convicted for having sold is the same that they were convicted for having possessed. But possessing and selling are distinct offences. One may obviously possess without selling; and one may sell and cause to be delivered a thing of which he has never had possession; or one may have possession and later sell, as appears to have been done in this case. The fact that the person sells the liquor which he possessed does not render the possession and the sale necessarily a single offence. There is nothing in the Constitution which prevents Congress from punishing separately each step leading to the consummation of a transaction which it has power to prohibit and punishing also the completed transaction.”
If, therefore, the offences were distinct there is no question of the rule as to double-jeopardy as embodied in Art. 20(2) of the Constitution being applicable.
Reference-2- Where the same evidence suffices to prove both crimes hey are the same for double Jeopardy purposes and the clause forbids successive trials and cumulative punishment for the two crimes-State Of Bihar vs Murad Ali Khan, Farukh Salauddin & … on 10 October, 1988 Equivalent citations: 1989 AIR, 1 1988 SCR Supl. (3) 455
But difficulties are in the application of the principle in the context of what is meant by ‘ same offence”. The principle in American law is stated thus:
“…The proliferation of technically different offences encompassed in a single instance of crime behavior has increased the importance of defining the scope of the offense that controls for purposes of the double jeopardy guarantee.
Distinct statutory provisions will be treated as involving separate offenses for double jeopardy purposes only if each provision requires proof of an additional fact which the other does not” Blockburger v. United States, 284 U.S. 299, 304 1932 Where the same evidence suffices to prove both crimes hey are the same for double Jeopardy purposes and the clause forbids successive trials and cumulative punishment for the two crimes. The offenses must be Joined in one indictment and tried together unless the defendant requests that they be tried separately. Jeffers v. United States, 432 U.S. 137 1977.”
[See “Double Jeoparady” in the Encyclopedia of Crime and Justice vol. ‘, p. 630 1983 Edn. by Sanford H. Kadish: The Free Press, Collier Mac Millan Publishers, London]
The expressions “the same offence”, ‘substantially the same offence” in effect the same offence” or “practically the same”, have not done much to lessen the difficulty in applying the tests to identify the legal common denominators of “same offence”. Friedland in “Double Jeoparady” [Oxford 1969] says at page 108:
“The trouble with this approach is that it is vague and hazy and conceals the thought processes of the Court. Such an inexact test must depend upon the individual impressions of the judges and can give little guidance for future decisions. A more serious consequences is the fact that a decision in one case that two offences are ‘substantially the same’ may compel the same result in another case involving the same two offences where the circumstances may be such that a second prosecution should be permissible..
Reference-3-The offence of a conspiracy to commit a crime is a different offence from the crime–In Leo Roy Frey v. The Superintendent, District Jail, Amritsar, [ 1958J SCR 822
The question arose whether a crime and the offence of conspiracy to commit it are different offences. The Supreme Court held that
“The offence of a conspiracy to commit a crime is a different offence from the crime that is the object of the conspiracy because the conspiracy precedes the commission of the crime and is complete before the crime is attempted or completed, equally the crime attempted or completed does not require the element of conspiracy as one of its ingredients. They are, therefore, quite separate offences.
Prosecution and Punishment has to be read together
Reference-1- The words prosecuted and punished” are to be taken not distritbutively so as to mean prosecuted or punished. Both the factors must co-exist in order that the operation of the clause may be attracted–S.A. Venkataraman vs The Union Of India And Another on 30 March, 1954 Equivalent citations: 1954 AIR 375, 1954 SCR 1150
In order to enable a citizen to invoke the protection of clause (2) of article 20 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 distritbutively so as to mean prosecuted or punished. Both the factors must co-exist in order that the operation of the clause may be attracted.
Applicability on Taxation Laws-
Although Article 20(2) has no application in case of levy of penalty by way of civil proceedings. However, concept of protection from double jeopardy and same offence has been given legal share through the provision of Section 75(13) of CGST Act, 2017 which provides that where any penalty is imposed under section 73 or section 74, no penalty for the same act or omission shall be imposed on the same person under any other provision of this Act. The term same offence has discussed earlier as has been discussed would hold significance and can be referred in GST Law as well. Therefore, if penalty for any offence has been levied under section 73/74 then in such case penalty for the same act or omission cannot be imposed on the same person under any other provision of the Act. However, this principle comes with a rider that although no two penalties should be levied for same act or omission on same person but if the ingredient of two offences are different then the privilege is not applicable. Some of the decisions for principle of double jeopardy and same offence are as under-
Reference-1– Assistant Commissioner Of … vs Krishna Poduval on 20 October, 2005-Kerala High Court -Whether penalty for failure to pay Service Tax under Section 76 and Penalty for suppression of value of taxable service are same offence or different offences
11. The penalty imposable under Section 76 is for failure to pay service tax by the person liable to pay the same in accordance with the provisions of Section 68 and the Rules made thereunder, whereas Section 78 relates to penalty for suppression of the value of taxable service. Of course these two offences may arise in the course of the same transaction, or from the same act of the person concerned. But we are of opinion that the incidents of imposition of penalty are distinct and separate and even if the offences are committed in the course of same transaction or arises out of the same act, the penalty is imposable for ingredients of both the offences. There can be a situation where even without suppressing value of taxable service, the person liable to pay service tax fails to pay. Therefore, penalty can certainly be imposed on erring persons under both the above Sections, especially since the ingredients of the two offences are distinct and separate. Perhaps invoking powers under Section 80 of the Finance Act, the appropriate authority could have decided not to impose penalty on the assessee if the assessee proved that there was reasonable cause for the said failure in respect of one or both of the offences. However, no circumstances are either pleaded or proved for invocation of the said Section also. In any event we are not satisfied that an assessee who is guilty of suppression deserves such sympathy. As such, we are of opinion that the learned Single Judge was not correct in directing the 1st appellant to modify the demand withdrawing penalty under Section 76. Therefore, the judgment of the learned Single Judge, to the extent it directs the first appellant to modify Ext.P1 by withdrawing penalty levied under Section 76, is liable to be set aside and we do so. The cumulative result of the above findings would be that the Writ Petitions are liable to be dismissed and we do so. However, we do not make any order as to costs.
Reference-2-Custom, Excise & Service Tax Tribunal M/S Safe & Sure Marine Services … vs Commissioner Of Service Tax, … on 31 August, 2013-Levy of Penalty under 76, 77 and 78
The last issue for consideration is regarding the penalties imposed on the appellant. Penalties have been imposed under Sections 76, 77 and 78 of the Finance Act, 1994. Penalty under Section 76 has been imposed for the default in payment of Service Tax and under Section 77 for delay in submission/non-submission of ST-3 Returns. Whenever there is default in payment of Service Tax or delay in payment of Service Tax, the provisions of Section 76 are automatically attracted. There is no mens rea is required to be proved for imposition of penalty under the said section as the language of the said section does not prescribe or stipulate any such requirement. Therefore, imposition of penalty under the said Section is sustainable in law. As regards the penalty under Section 77, same is for non-filing of returns and non-compliance to other statutory provisions. In this case also, no mens rea is required to be established and mere violation of the statutory provisions would suffice. Therefore, as held by the hon’ble Apex Court in the Gujarat Travancore Agency case [1989 (3) SCC 52] and Chairman, SEBI vs, Shriram Mutual Fund case [2006-TIOL-72-SC-SEBI], there cannot be any challenge to the imposition of penalties under these provisions. With regard to the penalty equivalent to the amount of Service Tax imposed under Section 78 of the Finance Act, 1994, in the present case as held by us in the preceding paragraphs, the appellant has suppressed the facts of rendering the service and collection of service tax in a few cases and even where they had collected the Service Tax, they did not remit the same to the exchequer. Therefore, there is suppression and willful mis-statement of facts on the part of the appellant with an intent to evade Service Tax. Hence, the mandatory penalty under Section 78 is justified. The hon’ble High Court of Kerala in Krishna Poduval case [2006 (1) STR 185 (Ker)] and the hon’ble Punjab & Haryana High Court in Pannu Property Dealers case [2011 (24) STR 173] have also held that penalties under section 76 and 78 can be imposed on the same transaction since the ingredients of the two offences which attract penalties under these provisions are distinct and separate. However, as per the amended provisions of Section 78 (w.e.f. 10.5.2008), penalty under Section 76 is not permissible when penalty has been imposed under section 78. Therefore for the period w.e.f 10.5.2008, penalty under section 76 will not sustain. To this extent, we modify the imposition of penalties
Reference-3-Shree Digvijay Cement Co Ltd vs Commissioner Of Service … on 9 August, 2016 (Custom, Excise & Service Tax Tribunal-Ahemdabad)-Levy of Penalty in section 76,77 and 78
Therefore, we uphold the penalties imposed under Section 76 of the Finance Act, 1994 on the appellant. Similarly, penalty under Section 77 is for non-compliance of the statutory provisions of filing of returns. Inasmuch as there is non-compliance, the same is also liable to be upheld. As regards the penalty under Section 78, we have already held that the appellant has suppressed facts and therefore, extended period of time has been rightly invoked. If that be so, penalty under Section 78 is imposable since it is mandatory. Apex Court decision in Rajasthan Spinning and Weaving Mills [2009 (238) E.L.T. 3 (S.C.)] refer. However, for the period w.e.f. 10-5-2008, only penalty under Section 78 is imposable and not that under Section 76 in view of the express provisions provided in that respect in the said Section 78. However, we observe that penalty under Section 78 is imposable equal to the unpaid quantum of service tax and any service tax paid and appropriated has to be excluded while determining the penalty under Section 78
7. In view of the above, we find that the contentions of the appellants are not maintained.
Reference-4-Balhar Chand and others v. State of Punjab and others, 2008 Crl.L.J. 4783-Imposition of Penalty under FEMA 1999 and Income Tax Act, 1961 does not amount to double jeopardy as they operate under different statutes
“8. Mr. O.P. Nagpal, learned counsel for the petitioners has contended before me that once the penalty had been imposed by the Enforcement Directorate, the order of the Court to deposit the amount was in violation of Article 20 of the Constitution of India and Section 300 of the Criminal Procedure Code as it will amount to double jeopardy. Therefore, order passed by Enforcement FAO No. 4458 of 2007  Directorate Annexure P-5 has attained finality and the criminal court and the Income Tax Authorities have got no jurisdiction.
9. I am unable to accept this contention raised by the counsel for the petitioners. Enforcement Directorate, Income Tax Authorities and criminal court adjudicate in their own sphere . Accused have admitted that the amount recovered was sent by their brothers who were residing abroad. Therefore, there was a violation of provisions of FEMA Act and under Enforcement: Directorate had to act and penalty imposed by him was a consequence to the act of the petitioners who had received cash amount from abroad through channels which were not permissible, but it does not absolve petitioners as the amount so received was to be declared before the Income Tax Authorities. Non-declaration of the amount will amount to evasion of tax and Income Tax Authorities are within their right to proceed under Income -tax Act in accordance with the provisions of law.”
Reference-5- P.V. Mohammad Barmay Sons vs Director Of Enforcement on 20 August, 1992 Equivalent citations: 1993 AIR 1188, 1992 SCR (3) 960-Levy of Penalty under Customs Act 1962 and FEMA 1973
The further contention that under the Customs Act 1962 for the self same contravention, the penalty proceedings terminated in favour of the appellant, is of little avail to the appellant for the reason that the two Acts operate in different fields, one for Contravention of FERA and the second for evasion of customs duty. The mere fact that the penalty proceedings for evasion of the customs duty had ended in favour of the appellant, does not take away the jurisdiction of the enforcement authorities under the Act to impose the penalty in question. The doctrine of double Jeopardy has no application. The further contention that the offence is based on no evidence is devoid of any substance. Notice was given to the appellant. In the show-cause notice contravention was brought to its notice. The appellant gave the explanation. After consideration of the facts since there was no express permission granted by the Reserve Bank of India for the payments by the appellant to the agent outside India, the contravention was proved and penalty was imposed. It is the penalty under Sec. 5(1) (a) & (b) of the Repealed Act equivalent to Sec. 9(1)(a) of the Act. Therefore, the penalty imposed is based on material, valid reasons and proper findings.
Detailed Analysis on the concept of double jeopardy vis-à-vis GST Law can also be read at
Article -1- Levy of Penalty in GST and the privilege under Section 75(13) of CGST Act, 2017-Where any penalty is imposed under Section 73/74 of CGST Act, 2017 then no penalty for same act or omission to be imposed on the same person under any other provision of CGST Act, 2017
Article-2-Levy of Penalty in GST-Can Multiple penalties be levied under section 122 of CGST Act, 2017 for two offences which may arise in the course of the same transaction, or from the same act of the person