PROTECTION AGAINST CONVICTION OF OFFENCES – ARTICLE 20 OF THE INDIAN CONSTITUTION

INTRODUCTION : Article 20 of the Indian Constitution provides protection in respect of conviction of offences. Below are the three types of safeguards provided to persons accused of crimes.

1.      Ex post facto law – Article 20 (1)

2.      Double Jeopardy – Article 20 (2)

3.      Self-incrimination -Article 20(3)

•       Ex post facto law – Article 20(1)

Ex post facto law is a law based on the American constitution which imposes a punishment for an act which was not punishable at the time of the Commission of the offence or imposes additional punishment do what was prescribed at the time of Commission of the offence.

Article 20(1) Provides protection against this ex post facto. Itimposes a limitation/restriction On the law making power of the legislature. It prohibits the legislature to make or pass retrospective criminal laws but it does not prohibit imposition of civil liability retrospectively which means with effect from past or back date.

 For example, the Dowry Prohibition Act 1961 came into force on 20th May 1961. A person guilty of accepting dowry is punishable under the act after 20th May 1961 and not before the said date.

Article 20(1) comprises of two parts. The first part 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 offense.” This means that the act is not an offence at the date subsequent to its commission.

In PareedLubha V Nilambaram, AIR 1967 Ker. 155 –It was held that if the non payment of Panchayat Tax was not an offence on the day it fell due, the defaulter could not be convicted for the non payment under a law passed subsequently even if it covered older dues.

The second part protects a person from ‘a penalty greater than that which he might have been subjected to act at the time of the commission of the offence.’

In KedarNath V State of West Bengal, AIR 1953 SC 404 – The accused committed an offence in 1947 which under the act then in force was punishable by Imprisonment or fine or both. The act was amended in 1949 which enhanced the punishment for the same offence by an additional fine equivalent to the amount of money procured by the accused through the offence. The Supreme Court held that the enhanced punishment could not be applicable to the act committed by the accused in 1947 and hence set aside the additional fine imposed by the amended act.

The protection of clause 1 of Article 20 cannot be claimed in case of preventive detention or demanding security from a person.

• DOUBLE JEOPARDY – ARTICLE 20 (2)

Article 20 (2) of our constitution says that “No person shall be prosecuted and punished for the same offence more than once”. The term ‘double jeopardy’ is based on a common law maxim “Nemo debt bisvexari” which means that “a man must not be put twice in peril for the same offence.”

Unlike England and America where a person has been tried for an offence, he cannot be tried again for the same offence whether or not he has been convicted in the first trial, in India a person tried an acquitted can be tried again and punished. The defence under Article 20(2) is available if he or she was tried and convicted for the same offence. The protection against double jeopardy 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.

Conditions:

·         The person must be accused of an offence

·          The person must have been prosecuted before a court or a judicial tribunal

·          The person must have been prosecuted and punished in the previous proceeding

·          the offence must be the same for which he was prosecuted and punished in the previous proceedings.

In Maqbool Hussain V State of Bombay, AIR 1953 SC 325, The appellant brought some gold from a foreign country without making any declaration to that effect.  The Customs Authorities confiscated the gold under the Sea Customs Act 1898.Subsequently, he was also charged under Section 8 of the Foreign Exchange Regulation Act 1947 and was prosecuted. The prosecution was held valid since the earlier confiscation under the Sea Customs Act did not constitute a judgement or an order of a court or judicial tribunal to support the plea of double jeopardy.

•      SELF INCRIMINATION – ARTICLE 20(3)

This article provides that no person accused of any offence shall be compelled to be a witness against himself.

Statements are of two kinds:

Self serving statements and Self harming statements.

Self serving statements are not admissible in evidence. For instance, ‘A’ makes a statement that he has not committed theft or he has not borrowed any money from ‘B’.Self harming statements are admissible in evidence.  For instance, ‘A’ makes a statement that he has committed theft in ‘B’s house.

Self harming statements are called “admissions” and they are called “confessions or confessional statements” in criminal proceedings. Self incrimination refers to admissibility of confessional statements made under compulsion.

Article 20(3) 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”. It is based on a common law maxim “nemo teneturprodereaccusareseipsum”, which means “no man is bound to accuse himself”. Self incrimination in simple words means to involve in prosecution by conveying or informing against himself.  a person shall not be asked to make statements against himself.

Ingredients:

. The person must be accused of an offence

. the protection is against ‘compulsion to be a witness’

. the compulsion relates to giving evidence against himself

In NandiniSatpathy  V P.L Dani, AIR 1978 SC 1025, it was contended that she was justified in refusing to answer the questions on the ground of Article 20(3) as well as Section 161(2)CrPC 1973 also entitles a person not to answer questions which tended to expose him to a criminal charge or to a penalty.

Article 20(3) and Section 27 of the Indian Evidence Act:

According to section 25 of the Indian Evidence Act 1872, confessional statement made by a person or accused to a police officer is inadmissible. According to section 26 such confession shall not be proved against him.  However section 27 of the Indian Evidence Act 1872 says that when an information given by the accused in police custody leads to the discovery of an incriminating material object like jewellery, weapons etc., that portion of the information can be proved.

Whether S.27 of the Indian Evidence Act is violative of Article 20(3) of the Indian Constitution.

In State of Bombay V KathiKaluOghad, AIR 1961 SC 1808- It was held that such information obtained does not give rise to a presumption that the information was given under compulsion.It is for 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 violated of article 20(3)