CHAPTER 8 // Protection in Respect of Conviction for Offences Introduction Article 20 provides protection in respect of conviction for offences. It constitutes a limitation or restriction on the legislative power of the Parliamentor the State legislature. The protection contained in Art. 20 is available to all persons, citizens or non-citizens. Generally, the protection guaranteed under Art. 20is with reference to the criminal cases. Art. 20 provides protection in respectof- 1. Ex-post facto laws — Art. 20 (1) 2. Double Jeopardy — Art. 20 (2) 3. Self-incrimination —Art. 20 (3) 1. Ex-post facto laws — Art. 20-(1): i An ‘ex-post facto law’ is a law which is enacted subsequent to some occurrence i.e. the commission of some act or omission. Art, 20 (1) has provided necessary protection against ex-post facto laws. It provides that ‘no person shall be convicted of any offence except for violation of law inforce at the time of the commission of the act charged as an offence, norbe subjected toa penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.’ Thus, Art. 20 (1) can be discussed in two parts — a. According to first part, no person shail be convicted of any offence except for violation of law in force at the time of commission of the act charge as an offence. b. According to second part, no person shall be subjected to a penalty greater than that which he might have been subjected to atthe time of the commission of the offence. Comments An ex-post facto law is a law which imposes penalty retrospectively i.e. for the act already done. Suppose, punishment prescribed for an offence in 2002 is 6 months, but if the punishment for the same offence is increased in 2003, to an imprisonment of 1 year and is made applicable to the offences committed before 2003. In such cases, the person who is charged for the= 66 Constitutional Law of India criminal offence must be protected. Such laws are regarded as inequitable and therefore there are constitutional safeguards against such law. In Kedarnath v. State of W. B., (AIR 1953 SC 404), an accused committed an offence in 1947 under the Prevention of Corruption Act. In1949, there was Amendment in the act by which the punishment was increased. Supreme Courtheld that, the increased punishment could not be applicable to the offence committed in 1947. Again in T. Bary v. Henry Hoe, (AIR 1983 SC 150), the Supreme Court held that retrospective effect can be given to criminal legislation if it is beneficial to the accused. So, ifthe punishmenti: is reduced by legislation, then accused is entitled to take benefit of it. 2. Double Jeopardy - Art. 20 (2) Clause (2) of Art. 20 provides protectionagainst ‘double jeopardy’. The roule of the doctrine against double jeopardy are to be found in well-established magazine of the English law ‘Nemo debit vis vexari’ meaning thata man must not be put twice in peril for the same offence. The fifth Amendment of the US Constitution also speaks about protection against double jeopardy. According to Art. 20 (2), ‘no person shall be prosecuted and punished for the same offence more than once.” Object: The object of Art. 20 (2)is to avoid the harassment which must be caused to a person for successive criminal proceedings where only one crime has been committed. So, where a person has been convicted for an offence bya competent Court, the conviction operates as a bar for any criminal proceeding against him for the same offence. Essential elements : The protection given in Art. 20 (2) would be available only if following essential conditions are complied. a. The person must be accused of offence. . The proceedings must have taken place before the Court. . The person must have been punished after his prosecution by the Court. |. The person must be prosecuted for the second time before a Court. .. The offence must be same in both the proceedings. paoeProtection in Respect of Conviction for Offences 67 In Magboo! Husain v. State of Bombay, (AIR 1953 SC 325), the appellant brought some gold in India froma foreign country without making a declaration. The Custom authorities confiscated the gold under the Sea Customs Act, 1878. Subsequently, he was again charged under the Foreign Exchange Regulation Act, 1947. Supreme Court held that, the Sea Customs, Authorities were not a Court. Hence, the prosecution under the Foreign Exchange Regulation Act is not barred. In State of M. P. v. Veereshwar, (1957) SCR 868, the Court held that, clause (2) of Art. 20 does not apply where a person is prosecuted and punished for the second time and subsequent proceedings is mere continuation of the previous proceedings i.e. in the case of an appeal against acquittal. Again in Jayasingh v. State of Haryana, (AIR 1995 P & H 243), the Court held that, Art. 20(2) would have no application to continuing offences. Continuing offence does not come within the prohibition of Art. 20(2). In that case, accused is not entitled to claim benefit of protection against double jeopardy. 3. Self incrimination — Art. 20 (3) : The cardinal principle of criminal law which is really a bedrock of English jurisprudence is that an accused must be presumed to be innocent till the contrary is proved. It is the duty of prosecution to prove the offence. The accused need not make any admission or statement against his own free will. The fundamental rule of criminal jurisprudence has been given constitutional status underArt. 20(3) of the Constitution. According to Art. 20 (3), “No person accused of any offence shall be compelled to be a witness against himself.” Comments The above guarantee extends to any person accused of an offence and prohibits all kinds of compulsions to make him a witness against himself. Explaining the scope of Art. 20(3) in M. P. Sharma v. Satish Chandra, (AIR 1954 SC 300), the Supreme Court observed that this right embodies the following essentials. ; a. Itis aright available to a person accused of an offence. b. itis a protection against compulsion to be a witness and68 Constitutional Law of India c. It is a protection against such compulsion resulting in his giving evidence against himself. Butit can be said that, the information given by an accused person after his arrest to a police officer which leads to the discovery ofa fact under sec. 27 of the Indian Evidence Act is admissible in evidence and is not violative under Art. 20(3) of the Constitution. ? In Parshadi v. State of U. P., (AIR 1957 SC 211), an accused who was charged with committing of a murder stated to the police that, he would give clothes of the deceased which he had placed ina pit and thereafter he dug out the pit in presence of witnesses to take out the clothes which were identified as the clothes belonging to the deceased. Court held that, statement of the accused leading to the recovery is not violative to Art. 20(3). Selvi ve Stak Kastnataka AlR 2610 Sc Nostco dnalysey. Teet cleclerted unconel w Att 20(3). : pal