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Article 20

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Shivani Sharma
Shivani Sharma

The first of clause (1) provides that “no person shall be convicted of any offence except for violation of ‘law in force’ at the time of the commission of the act charged as an offence”. This means that if an act is not an offence at the date of its commission it cannot be an offence at the date subsequent to its commission. The act of putting a person through a second trial of an offence for which he or she has already been prosecuted or convicted The expression ‘self-incrimination’ means “conveying information based upon personal knowledge of the person giving information involving himself to be the prime part taken in the offence.” A person shall not be asked to make statements against himself (i.e. self-harming statements/confessional statements).

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ARTICLE-20 -SHIVANI SHARMA -ASSISTANT PROFESSOR -SARDAR PATEL SUBHARTI INSTITUTE OF LAW
Protection in respect of conviction for offences: (1) No person shall be convicted of any offence except for violation of the law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence (2) No person shall be prosecuted and punished for the same offence more than once (3) No person accused of any offence shall be compelled to be a witness against himself
EX-POST FACTO LAWS
Ex post facto laws are of three kinds as follows: (a) A law which declared some act or omission as an offence for the first time after the completion of that act or omission. (b) A law which enhances the punishment or penalty for an offence subsequent to the commission of that offence. (c) A law which prescribes a new and different procedure for the prosecution of an offence subsequent to the commission of that offence. Clause (1) of Art. 20 provides protection only in respect of the above first two categories of expost facto laws i.e. laws which declare acts as offences subsequent to the commission to those acts and laws which enhance the penalty subsequently.
 The first of clause (1) provides that “no person shall be convicted of any offence except for violation of ‘law in force’ at the time of the commission of the act charged as an offence”. This means that if an act is not an offence at the date of its commission it cannot be an offence at the date subsequent to its commission.  The second part of clause (1) protects a person form ‘a penalty greater than that which he might have been subjected to at the time of the commission of the offence.’  For Example: If a person ‘A’ commits an offence in the year 1947, as per the act in that year the punishment was imprisonment of fine or both the same act was amended in 1949 which enhanced the punishment of the same offence by as additional fine. In such a case the punishment enhanced would not be applicable to the act of 1947, the same would be set-aside.
DOUBLE JEOPARDY (AUTREFOIS ACQUIT & AUTREFOIS CONVICT)
 Meaning of Jeopardy The word Jeopardy refers to the “danger” of conviction that an accused person is subjected to when one trial for an criminal offence. M  Meaning of Double Jeopardy The act of putting a person through a second trial of an offence for which he or she has already been prosecuted or convicted.  This means that if a person is prosecuted or convicted cannot be punished again for that criminal act. And if a person is indicated again for the same offence in the then he has the plea of Double Jeopardy as a valid
 In Constitution of India, Double Jeopardy is incorporated under Article 20(2) and it is one of fundamental right of the Indian Constitution. And the features of fundamental rights have been borrowed from U.S. Constitution and the concept of Double Jeopardy is also one of them. Principle of Double Jeopardy is incorporated into the U.S. Constitution in the Fifth Amendment, which says that “no person shall be twice put in Jeopardy of life or limb.”  Article 20 of the Indian Constitution provides protection in respect of conviction for offences, and article 20(2) contains the rule against double jeopardy which says that “no person shall be prosecuted or punished for the same offence more than once.” The protection under clause (2) of Article 20 of Constitution of India is narrower than the American and British laws against Double Jeopardy.
 Under the American and British Constitution the protection against Double Jeopardy is given for the second prosecution for the same offence irrespective of whether an accused was acquitted or convicted in the first trial.  But under Article 20(2) the protection against double punishment is given only when the accused has not only been ‘prosecuted’ but also ‘punished’, and is sought to be prosecuted second time for the same offence.  The use of the word ‘prosecution’ thus limits the scope of the protection under clause (1) of Article 20.  If there is no punishment for the offence as a result of the prosecution clause (2) of the article 20 has no application and an appeal against acquittal, if provided by the procedure is in substance a continuance of the prosecution (Smt. Kalawati v. state of H.P., AIR 1953 SC 131 at p.152)
 The rule against Double Jeopardy stipulates that no one may be put in peril twice for the same offence.  It is a concept originated from “Natural Justice System” for the protection of integrity of the “Criminal Justice System”.  The concept of Double Jeopardy follows the “audi altermn partum rule” which means a person cannot be punished twice for the same offence.
MAQBOOL HUSSAIN VS STATE OF BOMBAY In the leading case of Maqbool Hussain v. State of Bombay AIR 1953 SC 325 , a person arrived at an Indian airport from abroad. He was found in possession of gold which was against the law at the time. Action was taken against him by the customs authorities and the gold was confiscated. Later he was prosecuted before a criminal court under the Foreign Exchange Regulation Act. The question was whether the plea of autrefois acquit could be raised under Art. 20(2). The Supreme Court came to the conclusion that the proceedings before the customs authorities did not constitute 'prosecution' of the appellant, and the penalty imposed on him did not constitute 'punishment' by a judicial tribunal. In these circumstances, the trial of the petitioner before the criminal court was not barred.
•The Supreme Court observed as follows: “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. The very wording of Art 20 and the words used therein 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 regulated the procedure.
CONT… •The Supreme Court ruled that the sea customs authorities are not a judicial tribunal and adjudging by it of the confiscation, increased rate of duty or penalty under the provisions of the Sea Customs Act do not constitute a judgment or order of a court or judicial tribunal necessary for the purpose of supporting the plea of Double Jeopardy.
 It is to be noted that Article 20 (2) will applicable only where punishment is for the same offence, In Leo Roy v. Superintendent District Jail, The Court held: if the offences are distinct the rule of Double Jeopardy will not apply. Thus, where a person was prosecuted and punished under sea customs act, and was later on prosecuted under the Indian Penal Code for criminal conspiracy, it was held that second prosecution was not barred since it was not for the same offence
SECTION-300 CR.P.C.  Person once convicted or acquitted not to be tried for same offence.  (1) 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 sub- section (1) of section 221, or for which he might have been convicted under sub- section (2) thereof.  (2) A person acquitted or convicted of any offence 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 sub- section (1) of section 220.  (3) A person convicted of any offence constituted by any act causing consequences which, together with such act, constituted a different offence from that of which he was convicted, may be afterwards tried for such last- mentioned offence, if the consequences had not happened, or were not known to the Court to have happened, at the time when he was convicted.
CONT…  (4) A person acquitted or convicted of any offence constituted by any acts may, notwithstanding such acquittal or conviction, be subsequently charged with, and tried for, any other offence constituted by the same acts which he may have committed if the Court by which he was first tried was not competent to try the offence with which he is subsequently charged.  (5) A person discharged under section 258 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 the first- mentioned Court is subordinate.  (6) Nothing in this section shall affect the provisions of section 26 of the General Clauses Act, 1897 , (10 of 1897 ) or of section 188 of this Code. Explanation.- The dismissal of a complaint, or the discharge of the accused, is not an acquittal for the purposes of this section.
 Illustrations (a) A is tried upon a charge of theft as a servant and acquitted. He cannot afterwards, while the acquittal remains in force, be charged with theft as a servant, or, upon the same facts, with theft simply, or with criminal breach of trust. (b) A is tried for causing grievous hurt and convicted. The person injured afterwards dies. A may be tried again for culpable homicide. (c) A is charged before the Court of Session and convicted of the culpable homicide of B. A may not afterwards be tried on the same facts for the murder of B.
PROHIBITION AGAINST SELF- INCRIMINATION DID YOU BREAK THE POT? I AM PROTECTED AGAINST SELF INCRIMINATION.
 The expression ‘self-incrimination’ means “conveying information based upon personal knowledge of the person giving information involving himself to be the prime part taken in the offence.” A person shall not be asked to make statements against himself (i.e. self harming statements/confessional statements).  Clause 3 of Art. 20 of the Indian Constitution prohibits self- incrimination. It says that “No person accused of any offence shall be compelled to be a witness against himself”.  Art. 20(3) is based on the common law maxim nemo tenetur prodere accussare seipsum, which means that “no man is bound to accuse himself”.
 Ingredients-The protection under Art. 20(3) is available, provided the following conditions are fulfilled. (i) The person (seeking protection under Clause 3 of Art. 20) must be ‘accused of an offence’. (ii) The protection is against ‘compulsion to be a witness’. (He is compelled to give witness); and (iii) The compulsion relates to giving evidence ‘against himself’.
(1) Accused of an offence : The words ‘accused of an offence makes it clear itself only that this Right is available to a person accused of an offence only. In a case, it was held that a person, whose name was mentioned as an accused in FIR by the police and the investigation was ordered by the Magistrate can claim the protection of this Right. The (2) and (3) ingredient i.e. compulsion to be witness and compulsion to give evidence “against himself”, shall be taken together as both points convey similar viewpoint/meaning.
 Both the ingredients can be understood through the various sections of Indian Evidence Act, 1872, which states as follows: According to Sec. 25 of the Act Confessional Statement (Self harming statement/statement made against himself) made by a person/accused to officer is inadmissible.  According to Section 26, such confession shall not be proved against him (accused).  Accordingly to Section 27 “when an information given by the accused in police custody leads to discovery of an incriminating material object, like jewellery, weapons etc. that portion of the information can be proved.”  EXAMPLE-‘P’ is tried for murder, if P in a police custody says, “I have killed Q’ and buried the dead body in my garden. I will show you the place, where I boiled the body” Accordingly if Q's body is traced out, P's statement is admissible under Sec. 27.
 Now one question here arises, whether Section 27 of Indian evidence Act is violative of Article 20(3) of India Constitution. This question was resolved in a case of State of Bombay vs. Kathi Kalu oghad, AIR 1961 SC 1808  The Court held that it is on the prosecution to find out whether the accused gave the information voluntarily or compulsorily. The Court made it clear that Section 27 of the Evidence Act is not violative of Article 20(3). So, therefore as per above mentioned it is clear that ‘compulsion to be witness’ and ‘compulsion to give evidence “against himself” both states that to attract the protection of Article 20(3) it must be shown that the accused was compelled to make the statement likely to be incriminative of himself, where the accused makes a confession without any inducement, threat or promise, Article 20(3) does not apply.
CASE STUDY SELVI VS STATE OF KARNATAKA, 2010 NANDINI SATHPATHY VS P.L. DANI, 1978 DELHI JUDICIAL SERVICE ASSOCIATION VS STATE OF GUJARAT, 1991

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Article 20

  • 2. Protection in respect of conviction for offences: (1) No person shall be convicted of any offence except for violation of the law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence (2) No person shall be prosecuted and punished for the same offence more than once (3) No person accused of any offence shall be compelled to be a witness against himself
  • 4. Ex post facto laws are of three kinds as follows: (a) A law which declared some act or omission as an offence for the first time after the completion of that act or omission. (b) A law which enhances the punishment or penalty for an offence subsequent to the commission of that offence. (c) A law which prescribes a new and different procedure for the prosecution of an offence subsequent to the commission of that offence. Clause (1) of Art. 20 provides protection only in respect of the above first two categories of expost facto laws i.e. laws which declare acts as offences subsequent to the commission to those acts and laws which enhance the penalty subsequently.
  • 5.  The first of clause (1) provides that “no person shall be convicted of any offence except for violation of ‘law in force’ at the time of the commission of the act charged as an offence”. This means that if an act is not an offence at the date of its commission it cannot be an offence at the date subsequent to its commission.  The second part of clause (1) protects a person form ‘a penalty greater than that which he might have been subjected to at the time of the commission of the offence.’  For Example: If a person ‘A’ commits an offence in the year 1947, as per the act in that year the punishment was imprisonment of fine or both the same act was amended in 1949 which enhanced the punishment of the same offence by as additional fine. In such a case the punishment enhanced would not be applicable to the act of 1947, the same would be set-aside.
  • 7.  Meaning of Jeopardy The word Jeopardy refers to the “danger” of conviction that an accused person is subjected to when one trial for an criminal offence. M  Meaning of Double Jeopardy The act of putting a person through a second trial of an offence for which he or she has already been prosecuted or convicted.  This means that if a person is prosecuted or convicted cannot be punished again for that criminal act. And if a person is indicated again for the same offence in the then he has the plea of Double Jeopardy as a valid
  • 8.  In Constitution of India, Double Jeopardy is incorporated under Article 20(2) and it is one of fundamental right of the Indian Constitution. And the features of fundamental rights have been borrowed from U.S. Constitution and the concept of Double Jeopardy is also one of them. Principle of Double Jeopardy is incorporated into the U.S. Constitution in the Fifth Amendment, which says that “no person shall be twice put in Jeopardy of life or limb.”  Article 20 of the Indian Constitution provides protection in respect of conviction for offences, and article 20(2) contains the rule against double jeopardy which says that “no person shall be prosecuted or punished for the same offence more than once.” The protection under clause (2) of Article 20 of Constitution of India is narrower than the American and British laws against Double Jeopardy.
  • 9.  Under the American and British Constitution the protection against Double Jeopardy is given for the second prosecution for the same offence irrespective of whether an accused was acquitted or convicted in the first trial.  But under Article 20(2) the protection against double punishment is given only when the accused has not only been ‘prosecuted’ but also ‘punished’, and is sought to be prosecuted second time for the same offence.  The use of the word ‘prosecution’ thus limits the scope of the protection under clause (1) of Article 20.  If there is no punishment for the offence as a result of the prosecution clause (2) of the article 20 has no application and an appeal against acquittal, if provided by the procedure is in substance a continuance of the prosecution (Smt. Kalawati v. state of H.P., AIR 1953 SC 131 at p.152)
  • 10.  The rule against Double Jeopardy stipulates that no one may be put in peril twice for the same offence.  It is a concept originated from “Natural Justice System” for the protection of integrity of the “Criminal Justice System”.  The concept of Double Jeopardy follows the “audi altermn partum rule” which means a person cannot be punished twice for the same offence.
  • 11. MAQBOOL HUSSAIN VS STATE OF BOMBAY In the leading case of Maqbool Hussain v. State of Bombay AIR 1953 SC 325 , a person arrived at an Indian airport from abroad. He was found in possession of gold which was against the law at the time. Action was taken against him by the customs authorities and the gold was confiscated. Later he was prosecuted before a criminal court under the Foreign Exchange Regulation Act. The question was whether the plea of autrefois acquit could be raised under Art. 20(2). The Supreme Court came to the conclusion that the proceedings before the customs authorities did not constitute 'prosecution' of the appellant, and the penalty imposed on him did not constitute 'punishment' by a judicial tribunal. In these circumstances, the trial of the petitioner before the criminal court was not barred.
  • 12. •The Supreme Court observed as follows: “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. The very wording of Art 20 and the words used therein 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 regulated the procedure.
  • 13. CONT… •The Supreme Court ruled that the sea customs authorities are not a judicial tribunal and adjudging by it of the confiscation, increased rate of duty or penalty under the provisions of the Sea Customs Act do not constitute a judgment or order of a court or judicial tribunal necessary for the purpose of supporting the plea of Double Jeopardy.
  • 14.  It is to be noted that Article 20 (2) will applicable only where punishment is for the same offence, In Leo Roy v. Superintendent District Jail, The Court held: if the offences are distinct the rule of Double Jeopardy will not apply. Thus, where a person was prosecuted and punished under sea customs act, and was later on prosecuted under the Indian Penal Code for criminal conspiracy, it was held that second prosecution was not barred since it was not for the same offence
  • 15. SECTION-300 CR.P.C.  Person once convicted or acquitted not to be tried for same offence.  (1) 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 sub- section (1) of section 221, or for which he might have been convicted under sub- section (2) thereof.  (2) A person acquitted or convicted of any offence 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 sub- section (1) of section 220.  (3) A person convicted of any offence constituted by any act causing consequences which, together with such act, constituted a different offence from that of which he was convicted, may be afterwards tried for such last- mentioned offence, if the consequences had not happened, or were not known to the Court to have happened, at the time when he was convicted.
  • 16. CONT…  (4) A person acquitted or convicted of any offence constituted by any acts may, notwithstanding such acquittal or conviction, be subsequently charged with, and tried for, any other offence constituted by the same acts which he may have committed if the Court by which he was first tried was not competent to try the offence with which he is subsequently charged.  (5) A person discharged under section 258 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 the first- mentioned Court is subordinate.  (6) Nothing in this section shall affect the provisions of section 26 of the General Clauses Act, 1897 , (10 of 1897 ) or of section 188 of this Code. Explanation.- The dismissal of a complaint, or the discharge of the accused, is not an acquittal for the purposes of this section.
  • 17.  Illustrations (a) A is tried upon a charge of theft as a servant and acquitted. He cannot afterwards, while the acquittal remains in force, be charged with theft as a servant, or, upon the same facts, with theft simply, or with criminal breach of trust. (b) A is tried for causing grievous hurt and convicted. The person injured afterwards dies. A may be tried again for culpable homicide. (c) A is charged before the Court of Session and convicted of the culpable homicide of B. A may not afterwards be tried on the same facts for the murder of B.
  • 18. PROHIBITION AGAINST SELF- INCRIMINATION DID YOU BREAK THE POT? I AM PROTECTED AGAINST SELF INCRIMINATION.
  • 19.  The expression ‘self-incrimination’ means “conveying information based upon personal knowledge of the person giving information involving himself to be the prime part taken in the offence.” A person shall not be asked to make statements against himself (i.e. self harming statements/confessional statements).  Clause 3 of Art. 20 of the Indian Constitution prohibits self- incrimination. It says that “No person accused of any offence shall be compelled to be a witness against himself”.  Art. 20(3) is based on the common law maxim nemo tenetur prodere accussare seipsum, which means that “no man is bound to accuse himself”.
  • 20.  Ingredients-The protection under Art. 20(3) is available, provided the following conditions are fulfilled. (i) The person (seeking protection under Clause 3 of Art. 20) must be ‘accused of an offence’. (ii) The protection is against ‘compulsion to be a witness’. (He is compelled to give witness); and (iii) The compulsion relates to giving evidence ‘against himself’.
  • 21. (1) Accused of an offence : The words ‘accused of an offence makes it clear itself only that this Right is available to a person accused of an offence only. In a case, it was held that a person, whose name was mentioned as an accused in FIR by the police and the investigation was ordered by the Magistrate can claim the protection of this Right. The (2) and (3) ingredient i.e. compulsion to be witness and compulsion to give evidence “against himself”, shall be taken together as both points convey similar viewpoint/meaning.
  • 22.  Both the ingredients can be understood through the various sections of Indian Evidence Act, 1872, which states as follows: According to Sec. 25 of the Act Confessional Statement (Self harming statement/statement made against himself) made by a person/accused to officer is inadmissible.  According to Section 26, such confession shall not be proved against him (accused).  Accordingly to Section 27 “when an information given by the accused in police custody leads to discovery of an incriminating material object, like jewellery, weapons etc. that portion of the information can be proved.”  EXAMPLE-‘P’ is tried for murder, if P in a police custody says, “I have killed Q’ and buried the dead body in my garden. I will show you the place, where I boiled the body” Accordingly if Q's body is traced out, P's statement is admissible under Sec. 27.
  • 23.  Now one question here arises, whether Section 27 of Indian evidence Act is violative of Article 20(3) of India Constitution. This question was resolved in a case of State of Bombay vs. Kathi Kalu oghad, AIR 1961 SC 1808  The Court held that it is on the prosecution to find out whether the accused gave the information voluntarily or compulsorily. The Court made it clear that Section 27 of the Evidence Act is not violative of Article 20(3). So, therefore as per above mentioned it is clear that ‘compulsion to be witness’ and ‘compulsion to give evidence “against himself” both states that to attract the protection of Article 20(3) it must be shown that the accused was compelled to make the statement likely to be incriminative of himself, where the accused makes a confession without any inducement, threat or promise, Article 20(3) does not apply.
  • 24. CASE STUDY SELVI VS STATE OF KARNATAKA, 2010 NANDINI SATHPATHY VS P.L. DANI, 1978 DELHI JUDICIAL SERVICE ASSOCIATION VS STATE OF GUJARAT, 1991