âLaw Masterâs Publicationâ âProtection in respect of Convictionâ
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(..9..)
PERSONAL LIBERTY
[A] PROTECTION IN RESPECT OF CONVICTION FOR OFFENCES
(Art. 20)
(Art. 19 to 22)
QUESTION BANK
Q. 1. Explain fully the âright of protection against Double Jeopardyâ guaranteed by our
Constitution. Oct. 98.
Q.2. Examine the provisions of Art. 20 of the Constitution in respect of conviction for
offences.
Q.3. Discuss the various safeguards available to accused persons under the Indian
Constitution.
Q.4. A person cannot be punished twice for the same offence. Discuss.
Q.5. âNo person accused of any offence shall be compelled to be a witness against
himselfâ-Elaborate. May. 05.
SHORT NOTE
1.
2.
3.
Protection against Double Jeopardy.
Ex- post facto laws.
Self-incrimination.
SYNOPSIS
I]
INTRODUCTION
II]
RIGHT OF AN ACCUSED
1)
Protection against Ex- post facto law [Art. 20 (1)]
a)
b)
Law imposing penalty retrospective
Law imposing greater penalty.
2)
3)
Protection against double jeopardy [Art. 20 (2)]
Protection against self-incrimination [Art. 20 (3)]
Confession to police
I]
INTRODUCTION:-
Personal liberty is the most important of all fundamental rights. Art. 19 to 22 deals
with different aspects of this basic right of personal liberty. In fact, Art. 21 is the main
Article that has granted the basic right of âlife and personal libertyâ; the rest of the Articles,
i.e. Art. 19, 22, and 20, deal with different aspects of the right of personal liberty. Art. 19
guarantees the right to freedom, Art. 22 deals with the protection against arrest and
detention, while Art. 20 deals with protection in respect of conviction. Thus, Art. 19 to 22
âLaw Masterâs Publicationâ âProtection in respect of Convictionâ
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form the core of the fundamental right of personal liberty. They all are interlinked and form
part of the basic, inalienable right to freedom of person or personal liberty.
Three sub-clauses of Art. 20 deal with three distinct but connected safeguards for
the person accused of a crime.
II]
RIGHT OF AN ACCUSED AGAINST CONVICTION:-
There are three following safeguards available to the person accused of any offence
against his conviction. Viz.
1) Protection against Ex- post facto law (Art. 20 (1)):-
Ex-post facto law is a law that imposes penalties retrospectively, i.e., upon acts
already done, or which increases the penalty for such acts.
Therefore, Cl. (1) has the following two parts. Viz.
a)
Law imposing Penalty Retrospectively:-
Art.20 (1) provides that âno person shall be convicted of any offence except for
violation of âlaw in forceâ at the time of the commission of the act charged as an offence.
In other words, if an act (behaviour) is not an offence at the date of its commission, it
cannot be an offence at the date subsequent to its commission.
For example, suppose a person did an act in 1954 that was not unlawful. A law was passed
in 1956, making that act a criminal offence and seeking to punish that person for what he
did in 1954. The Act of 1956 is Ex post facto law for him and, therefore, cannot be applied
to such a person. The Act of 1956 is only applicable to future acts and not to acts done in
the past..
This protection is available only against conviction or sentence for a criminal
offence under Ex- post facto law and not against the trial. In other words, the court, though
it cannot convict or sentence, can very well try a person. However, the prohibition applies
under American law even in case of trial. Thus, the guarantee given under the American
Constitution is wider than that given under the Indian Constitution.
b)
Law imposing Greater Penalty:-
The second part of Art. 20 (1) immunises a person from a penalty greater than he
might have incurred when he committed the offence.
Facts: The accused committed an offence in 1947, which, under the Act then in force,
was punishable by imprisonment, fine, or both. The Act was amended in 1949, which
enhanced the punishment for the same offence by an additional fine.
Supreme Court held- that the enhanced punishment could not be applied to the act
committed by the accused in 1947 and hence set aside the additional fine imposed by the
1 AIR 1953 SC 404.
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Amended Act.
But the accused can very well take advantage of the beneficial provisions of Ex-
2)
Protection against double jeopardy (Art. 20 (2)):-
Art. 20 (2) states, âNo person shall be prosecuted and punished for the same offence
more than onceâ. This clause embodies the common law rule of ânemo debt vis vexariâ i.e.
no man should be put twice in peril for the same offence. In other words, the person shall
not be punished twice for the one and the same offence.
If a person is charged again for the same offence in a court, he can plead, as a
complete defence, of his formal acquittal or conviction i.e. âautrefois acquitâ or âautrefois
convictâ. The rule of double jeopardy is incorporated in the American Constitution also,
which protects the accused from the second trial (prosecution) and the conviction under
that trial. In other words, if the person is previously acquitted of the offence, he cannot
again be tried (prosecuted) and punished (convicted) for the same offence.
The concept of protection of double jeopardy, incorporated under Art. 20 (2) of the
Indian Constitution is somewhat narrower. It implies that the accused should have been
previously âprosecuted and punishedâ. If he has been âprosecuted and acquittedâ, he can,
on availability of more evidence, may again be prosecuted and punished (convicted).
Therefore previous conviction (autrefois convict) and not previous acquittal (autrefois
acquit) is a defence under Art.20 (2).
Facts: The appellant brought some gold into India. He did not declare that he had brought
gold with him to the customs authorities at the Airport. The customs authorities confiscated
the gold under the Sea Customs Act. He was later charged with having committed an
offence under the Foreign Exchange Regulation Act (FERA).
Defence of the appellant- that the first prosecution under the Sea Customs Act has already
taken place, and by confiscating gold, he has been punished for that; therefore, the second
prosecution under the Foreign Exchange Regulation Act (FERA) is in violation of Art. 20
(2).
2 Ratanlal vs. State of Punjab (AIR 1965 SC 444)
Facts: Ratanlal, the accused committed a rape on a girl, in 1957. At the time of offence, the accused was aged 16 years.
The Magistrate gave the judgment awarding 6 months rigorous imprisonment and also imposed fine. After the
judgment, the Probation of Offenders Act 1958, was enacted, according to which the persons below the age of 21
years, should not be punished with rigorous imprisonment.
The Supreme Court Held- that Ratanlal was entitled for the benefit of Ex- post facto law and ordered to apply the
provisions of the Probation of Offenders Act, 1958.
3 AIR 1953 SC 325.
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Supreme Court Held- the Sea Customs authority is not a court or Judicial tribunal,
and the confiscation of gold under the Sea Customs Act does not constitute punishment of
judicial character. Therefore, the trial under FERA is not barred by the rule of double
In- Babulal Verma V/s Union Of India (2008 (2) All MR 556)
Issue:- Can criminal trial and Departmental proceedings continue together, or are they
affected by Art. 20 (2)?
Held:- Petitioner may be acquitted in a criminal trial; however, that itself would not
absolve the petitioner of his liability in Departmental proceedings. This means that criminal
Trials and departmental inquiries can be conducted simultaneously.
3)
Cl. (3) of Art. 20 provides that âno person accused of any offence shall be compelled
to be a witness against himselfâ. Thus, Art. 20 (3) embodies the general principle of English
and American Jurisprudence that âno one shall be compelled to give testimony which may
expose him to the prosecution for a crimeâ. It is based on the cardinal principle of English
Jurisprudence that âan accused should be presumed to be innocent till the contrary is
provedâ. It is the duty of the prosecution to prove the offence. The accused need not make
any admission or statement against his own free will.
Supreme Court observed that the protection against self-incrimination has the
following essentials-
i)
ii)
it is a right pertaining to a person who is âaccused of an offenceâ.
it is a protection against âcompulsion to be a witnessâ.
it is a protection against such compulsion relating to his giving evidence âagainst
himselfâ.
iii)
Such evidence may be oral, documentary or testimonial and may also include
4 In A.A. Mulla v. State of Maharashtra (AIR 1997 SC 1441).
Facts- The appellants were charged under Section 409 I.P,C. and Section 5 of the Prevention of Corruption Act for
making false panchnama disclosing of recovery of 90 gold biscuits although according to prosecution case the
appellant had recovered 99 gold biscuits. They were tried for retaining 9 gold biscuits before the Special Judge but
appellants were acquitted. On the ground that the prosecution had failed to prove misappropriation, the appellants
were again tried under the Customs Act and the Foreign Exchange Regulation Act (FERA). The appellants challenged
the validity of their second trial on the ground that it violate Art. 20(2) of the Constitution.
Court Held- that the second trial was not barred as not only the ingredients of the offence of two trial were different
but the factual situation of offences in the first and the second trial were also different.
6 AIR 1954 SC 300.
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Confession to Police:-
According to S. 23 of the Bharatiya Sakshya Adhiniyam (BSA), 2023 a confession
(self-incrimination) statement made to the police is inadmissible in evidence. But if,
according to such a statement, the discovery of incriminating material objects like
jewellery, weapons of crime, etc., is recovered, such portion of the statement is admissible
*****
7 In Yusufali v. State of Maharashtra, (AIR 1968 SC 756)
Court Held- a tape-recorded statement made by the accused though made without the knowledge of the accused but
without force or oppression was held to be admissible in evidence.
8
In Mohd. Dastgir v. State of Madras (AIR 1960 SC 756)
Facts- the appellant went to the bungalow of Deputy Superintendent of Police to offer him bribe in a closed envelope.
The police officer on opening it found the envelope containing currency notes. He threw it at the face of the appellant
who took it. Thereafter the police officer asked the appellant to handover the envelope containing the currency notes.
The appellant took out some currency notes from his pocket and placed it on the table, which was seized by the police
officer and was charged for attempting to bribe police officer. The appellant contended in appeal before the Supreme
Court that the currency notes should not be produced in evidence as he was compelled by the police officer to give to
him.
The Supreme Court Held- that the accused was not compelled to produce the notes as no duress was applied on him
to produce the notes. Moreover, the appellant was not an âaccusedâ at the time the currency notes were seized from
him.
In V. S. Kuttan Pillai v. Ram Krishna. (AIR 1980 SC 185).
Court Held- that search of the premises occupied or in possession of person accused of an offence or seizure of
anything from there was not violative of Article 20(3) of the Constitution. If any document is recovered as a result of
the search and seizure it can be produced in the courts as an evidence against the accused as he is not compelled to
give witness against himself.