The Miscellaneous Provisions of the General Clauses Act

The second half is the protection, and it is the statutory form of the rule against double jeopardy: not liable to be punished twice for the same offence.

Its relation to article 20(2)

Article 20(2) provides that no person shall be prosecuted and punished for the same offence more than once. Section 26 provides that the offender shall not be liable to be punished twice for the same offence.

Two differences worth stating. Article 20(2) speaks of prosecution and punishment, so both are required before the bar operates; section 26 speaks of punishment. And article 20(2) is a fundamental right, so it cannot be displaced by an ordinary Act; section 26 is a statutory rule which yields to a contrary provision in another Act.

The pleas of autrefois acquit and autrefois convict, worked in [Ex Parte, Discharge, Acquittal and Conviction], are the procedural form of the same protection, and section 337 of the Bharatiya Nagarik Suraksha Sanhita 2023 is their statutory expression.

The words that decide cases

"The same offence." Two enactments may make the same conduct punishable and yet create different offences, because their ingredients differ. Where the ingredients are not the same, section 26 does not bar the second prosecution, and the protection applies only where the offence, and not merely the act, is the same.

Section 27: service by post

Where any Central Act or Regulation made after the commencement of this Act authorises or requires any document to be served by post, whether the expression "serve" or either of the expressions "give" or "send" or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.

Why this matters more than it looks

Because a very large number of real disputes are about whether a notice was received. A landlord's notice to quit, a demand for tax, a notice terminating a policy, a notice of a meeting: in each case the recipient says it never came.

Section 27 supplies two deemings and they operate differently, which is the examinable point.

The first is a deeming of service, and it operates on three conditions: the letter must be properly addressed, pre-paid, and posted by registered post. If all three are satisfied, service is deemed effected. This part does not depend on proof of delivery at all.

The second is a presumption as to time, and it is expressly rebuttable: "unless the contrary is proved", service is taken to have been effected at the time the letter would be delivered in the ordinary course of post. The addressee may prove the contrary, and that is where the argument is.

The practical consequences

A refusal to accept the letter is not an answer. Where the letter is properly addressed, pre-paid and posted by registered post, the conditions of the section are satisfied whatever the addressee then does.

"Unless a different intention appears." Where the parent Act prescribes a particular mode of service, that mode governs.

Proof of posting is the sender's burden. The section deems service from the act of posting, and the person asserting service still has to prove the address, the pre-payment and the posting.

Section 28: citation of enactments

Section 28(1). In any Central Act or Regulation, and in any rule, bye-law, instrument or document made under or with reference to it, any enactment may be cited by reference to the title or short title, if any, conferred on it, or by reference to the number and year thereof, and any provision in an enactment may be cited by reference to the section or sub-section in which it is contained.

Section 28(2). In this Act, and in any Central Act or Regulation made after the commencement of this Act, a description or citation of a portion of an enactment shall, unless a different intention appears, be construed as including the word, section or other part mentioned or referred to as forming the beginning and as forming the end of the portion comprised in the description or citation.

Two things follow, and both are practical. "The Limitation Act, 1963" and "Act 36 of 1963" are both proper citations of the same statute. And "sections 5 to 24" includes sections 5 and 24; a range in an Indian statute is inclusive at both ends unless a contrary intention appears.

That second rule matters wherever a syllabus, a notification or an Act refers to a range of sections, and it is worth carrying into every question about a printed section range.

Section 29: saving for previous enactments, rules and bye-laws

The provisions of this Act respecting the construction of Acts, Regulations, rules or bye-laws made after the commencement of this Act shall not affect the construction of any Act, Regulation, rule or bye-law made before the commencement of this Act, although it is continued or amended by an Act, Regulation, rule or bye-law made after the commencement of this Act.

In plain terms, the Act does not reach backwards to change how older law is read, and an older Act does not become subject to these rules of construction merely because it has since been amended. Sections 4 and 4A are the deliberate exceptions, carrying the definitions to earlier enactments and to Indian laws.

Distinguish section 29 from section 6. Section 6 is about what survives a repeal. Section 29 is about which rules of construction apply to older law.

Section 30: application of the Act to Ordinances

In this Act the expression "Central Act", wherever it occurs, except in section 5 and in the word "Act" in clauses (9), (13), (25), (40), (43), (52) and (54) of section 3 and in section 25, shall be deemed to include an Ordinance made and promulgated by the Governor General under the older constitutional instruments, and an Ordinance promulgated by the President under article 123 of the Constitution.

Two consequences.

An Ordinance is treated as a Central Act for the purposes of this Act, so the definitions in section 3, the saving in section 6, the rules about time in sections 9 and 10, the rule about subordinate legislation in section 21 and the rest apply to an Ordinance as they do to an Act.

The exceptions are deliberate. Section 5 is excluded because an Ordinance does not receive assent in the way an Act does, and the clauses of section 3 that are excluded are those in which "Act" means the particular Act in which the word occurs.

Article 123 empowers the President to promulgate an Ordinance when Parliament is not in session and he is satisfied that circumstances exist rendering immediate action necessary; it has the same force and effect as an Act of Parliament, and it ceases to operate at the expiry of six weeks from the reassembly of Parliament unless approved earlier, and may be withdrawn at any time.

Sections 30A and 31

Both are printed as repealed. Section 30A dealt with the application of the Act to Acts made by the Governor General and was repealed by the Adaptation of Laws Order 1937. Section 31 is shown as repealed, as is the Schedule.

They are named so that a reader working through the Act, or a student counting its sections, does not think something has been skipped.

A worked example

A fictitious Central Act, the Food Safety Enforcement Act 2022, empowers a Designated Officer to impose a fine by order and requires the order to be served on the trader. Nandini's shop is inspected. An order imposing a fine of twenty thousand rupees is sent to her by registered post, properly addressed and pre-paid, on 3 June. She says she never received it. The same conduct is also an offence under a State food Act. Her advocate cites "sections 12 to 16" of the 2022 Act and argues that sections 12 and 16 are not included.

Recovery of the fine. Section 25: the provisions relating to the issue and execution of warrants for the levy of fines apply to all fines imposed under any Act, Regulation, rule or bye-law unless that Act provides otherwise. So the fine is recovered by the ordinary machinery, and section 8(1) reads the reference to the older Codes as a reference to the provisions that have replaced them.

Service. Section 27: the letter was properly addressed, pre-paid and sent by registered post, so service is deemed effected. That deeming does not depend on Nandini's evidence at all. What she may attack is the second limb, the time of service, which is presumed to be when the letter would be delivered in the ordinary course of post "unless the contrary is proved". If the Act itself prescribed a different mode of service, that mode would govern, because the section applies unless a different intention appears.

Prosecution under two Acts. Section 26: the offender may be prosecuted and punished under either or any of the enactments under which the act constitutes an offence, but shall not be liable to be punished twice for the same offence. So the choice of statute is the prosecution's, and the protection bites only if she is punished twice for the same offence, which requires the offences and not merely the acts to be the same. Article 20(2) stands behind it and cannot be displaced by any Act.

The citation point. Section 28(2): a description or citation of a portion of an enactment is construed as including the section mentioned as forming the beginning and the section mentioned as forming the end. "Sections 12 to 16" therefore includes both 12 and 16, and the argument fails.

And if the 2022 Act had been an Ordinance? Section 30 deems "Central Act" to include an Ordinance promulgated by the President under article 123, except in section 5 and in the specified clauses, so every provision applied here would apply to it.

Distinctions table

What these do NOT mean

Section 26 does not prevent a second prosecution for a different offence. It bars double punishment for the same offence, and two enactments may create different offences out of one act.

Section 27 does not require proof of delivery. It deems service from the posting, and only the time of service is open to rebuttal.

Section 27 does not apply where the Act prescribes another mode. "Unless a different intention appears."

Section 28(2) does not exclude the end points of a range. It includes both.

Section 29 does not undo section 4. Definitions are carried backwards by sections 4 and 4A; what section 29 saves is the construction of older law from the Act's other rules.

Section 30 does not make an Ordinance permanent. Article 123 fixes its life; section 30 only makes the General Clauses Act apply to it.

Limits and criticism

Section 27 puts a real burden on the addressee. A person who genuinely did not receive a notice must prove a negative about the postal system, and the section is defended on the ground that the alternative, requiring proof of actual receipt, would let any recipient defeat a statutory notice by silence.

Section 26 is thinner than it looks. Because the protection depends on the offences being the same, and two statutes usually differ in at least one ingredient, the section rarely prevents a second prosecution; article 20(2) has the same limitation.

Section 25 names two Codes that no longer exist, which is untidy on the face of the statute book and is cured only by section 8 and by the words "for the time being in force". It is a good illustration of why section 8 exists.

Quick revision

s.25: the provisions for the levy of fines apply to all fines under any Act, Regulation, rule or bye-law, unless expressly excluded. Read the references to the older Codes through s.8(1).

s.26: where an act constitutes an offence under two or more enactments, the offender may be prosecuted and punished under either or any of them, but shall not be liable to be punished twice for the same offence. Compare article 20(2), which requires prosecution AND punishment and cannot be displaced by an ordinary Act; and BNSS s.337, autrefois acquit and autrefois convict.

s.27: where service by post is authorised or required, service is deemed effected by properly addressing, pre-paying and posting by registered post, and, unless the contrary is proved, to have been effected when the letter would be delivered in the ordinary course of post. Two limbs: the deeming of service, and the rebuttable presumption as to time.

s.28: an enactment may be cited by title or short title, or by number and year; a provision by section or sub-section; and a citation of a portion includes the beginning and the end mentioned. So "sections 5 to 24" includes both.

s.29: the Act's rules of construction for later law do not affect the construction of law made before it, even if that law is later continued or amended. ss.4 and 4A are the exceptions, for definitions.

s.30: "Central Act" includes an Ordinance under article 123, except in s.5 and in the word "Act" in clauses (9), (13), (25), (40), (43), (52) and (54) of s.3 and in s.25.

ss.30A and 31, and the Schedule: repealed.

Test yourself

1. What does section 26 provide, and how does it differ from article 20(2)?

Section 26 provides that where an act or omission constitutes an offence under two or more enactments, the offender shall be liable to be prosecuted and punished under either or any of them, but shall not be liable to be punished twice for the same offence. Article 20(2) provides that no person shall be prosecuted and punished for the same offence more than once. The differences are that article 20(2) requires both prosecution and punishment before the bar operates while section 26 speaks of punishment; and that article 20(2), being a fundamental right, cannot be displaced by an ordinary Act, while section 26 yields to a contrary statutory provision.

2. Explain the two limbs of section 27.

The first is a deeming of service: where a Central Act authorises or requires a document to be served by post, service is deemed to be effected by properly addressing, pre-paying and posting by registered post a letter containing the document. That limb depends on the sender's three acts and not on proof of delivery. The second is a presumption as to time: unless the contrary is proved, service is taken to have been effected at the time at which the letter would be delivered in the ordinary course of post. Only the second is expressly rebuttable, and the whole section applies unless a different intention appears.

3. Does "sections 12 to 16" include sections 12 and 16?

Yes. Section 28(2) provides that in the General Clauses Act and in any Central Act or Regulation made after its commencement, a description or citation of a portion of an enactment shall, unless a different intention appears, be construed as including the word, section or other part mentioned or referred to as forming the beginning and as forming the end of the portion described or cited. A range in an Indian statute is therefore inclusive at both ends.

4. What does section 29 save, and how does it differ from section 6?

Section 29 provides that the Act's provisions respecting the construction of Acts, Regulations, rules and bye-laws made after its commencement shall not affect the construction of any made before it, even where the earlier one is later continued or amended. So it is about which rules of construction apply to older law, and sections 4 and 4A are the deliberate exceptions, carrying the definitions backwards. Section 6 is about something different: what survives when an enactment is repealed, namely previous operation, accrued rights and liabilities, penalties, and proceedings and remedies.

5. How does the General Clauses Act apply to an Ordinance?

Section 30 provides that in the Act the expression "Central Act", wherever it occurs, except in section 5 and in the word "Act" in clauses (9), (13), (25), (40), (43), (52) and (54) of section 3 and in section 25, shall be deemed to include an Ordinance promulgated by the President under article 123 of the Constitution, as well as Ordinances made under the earlier constitutional instruments. The result is that the definitions, the saving on repeal, the rules about time, and the provisions about subordinate legislation apply to an Ordinance as they do to an Act.

6. Section 25 refers to the Indian Penal Code and the Code of Criminal Procedure, both of which have been replaced. What is the position?

The reference is read as a reference to the provisions that have replaced them. Section 8(1) of the same Act provides that where an enactment repeals and re-enacts, with or without modification, a provision of a former enactment, references in any other enactment or instrument to the provision so repealed shall, unless a different intention appears, be construed as references to the provision so re-enacted. Section 25 also uses the words "for the time being in force" of the procedural Code, which points the same way. It is a good illustration of why section 8 exists at all.