Tuesday 1 March 2016

Article 20-Self Incrimination,Double Jeopardy and Ex-Post Facto

Protection Against Ex-Post Facto Law The Clause (1) of Article 20 : Provides protection to the persons accused of crimes against ex-post-facto law - It prohibits the legislature to make retrospective criminal laws. The first part 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 on 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 protection afforded by clause (1) is available only against conviction or sentence for a criminal offence under ex post facto law and not against the trial. The protection of clause (1) of Article 20 cannot be claimed in case of preventive detention, or demanding security from a person. The prohibition is just for conviction and sentence only and not for prosecution and trial under a retrospective law. The second part of clause (1) protects a person from `penalty greater than which he might have been subjected to at the time of the commission of the offence'. But the accused can take advantage of the beneficial provisions of the ex post facto law. The rule of beneficial interpretation required that ex-post-facto law when is beneficial to the accused is not prohibited by clause (1) of Article 20.
In Shiv Bahadur Singh v. State of U.P., AIR 1953 SC 394 - It was observed that what is prohibited U/Article 20 is only conviction or sentence under an ex post facto law and not the trial thereof, such trial under a procedure different from what obtained at the time of the commission of the offence or by a court different from that which had competence at the time cannot ipso facto be held to unconstitutional. Article 20(1) in its broad import has been enacted to prohibit convictions and sentences under ex-post facto laws. This article must be taken to prohibit all convictions or subjections to penalty after the Constitution in respect of Ex post facto law whether the same was a post-Constitution Law or a pre-Constitution Law.
In G.P. Nayyar v. State (Delhi Admn.), AIR 1979 SC 602 - Article 20(1) deals with Ex post facto laws though that expression has not been used in the article. Though sovereign legislature has power to legislate retrospectively, creation of an offence for an act which at the time of its commission was not an offence or imposition of a penalty greater than that which was under the law provided violates Article 20(1). All that Article 20(1) prohibits is ex- post facto law and is designed to prevent a person being punished for an act or omission which was considered innocent when done. It only prohibits the conviction of person or his being subjected to a penalty under ex-post facto laws.
(B) Protection Against Double Jeopardy Clause (2) of Article 20 : The clause (2) provides protection to the accused persons against double jeopardy the clause (2) declares that no person shall be prosecuted and punished for the same offence more than once. This clause embodies the common law rule of memo debts vis vexari which means that no man should be put twice in peril for the same offence. If he is prosecuted again for the same offence for which he has already been prosecuted he can take complete defence of this former acquittal or conviction. Article 20(2) embodies the following essentials for the application of double jeopardy rule - (1) The person must be accused of an `offence'. The word `offence' as defined in general clauses Act means `any act or omission made punishable by law for the time being in force; (2) The proceeding or the prosecution must have taken place before a `court' or `judicial tribunal'; (3) The person must have been `prosecuted and punished' in the previous proceeding; (4) The `offence' must be the same for which he was prosecuted and punished in the previous proceedings. Proceedings before departmental and administrative authorities cannot be a proceeding of judicial nature. The clause (2) of Article 20 does not apply where the person is prosecuted and punished for the second time and subsequent proceeding is a mere continuation of the previous proceeding, e.g., in the case of an appeal against acquittal.
In Venkataraman v. Union of India, AIR 1954 SC 375 - It was observed that -
"The roots of the principle which Article 20(2) enacts are to be found in the well established rule of English law which finds expression in the maxim `Nemo debet bis vexari' - a man must not be put twice in peril for the same offence. If a man is indicted again for the same offence in an English Court, he can plead, as a complete defence his former acquittal or conviction or as it is technically expressed, take the plea or `autrefois acquit' or "autrefois convict."
In Maqbool Hussain v. State of Bombay, AIR 1953 SC 325 - It was observed that -
In order to invoke the protection of Article 20(2) there must have been a prosecution and punishment in respect of the same offence before a Court of law or judicial tribunal, required by law to decide the matters in controversy, judicially on evidence on oath which it must be authorised by law to administer and not before a tribunal which entertains a departmental or administrative enquiry even though set up by a statute but not required to proceed on legal evidence given on oath. The Article contemplates proceedings of the nature of criminal proceedings before Court of law or a judicial tribunal and the prosecution in this context means initiation of proceedings of a criminal nature before such a Court or tribunal in accordance with the procedure prescribed in the statute which creates the offence and regulated the procedure.
In Vekata Raman v. Union of India (supra) it was observed that the language of Article 20 and the words actually used in Article 20(2) afford a clear indication that the proceedings in connection with the prosecution and punishment of a person must be in the nature of criminal proceeding before a court of law or judicial tribunal and not before a tribunal which entertains a departmental or administrative enquiry even though, set up by a statute but which is not required by law to try a matter judicially and on legal evidence.
In State of Bombay v. S.L. Apte, AIR 1961 SC 578. It was observed that-
"If the offences were distinct there is no question of the rule as to double jeopardy as embodied in Article 20(2) of the Constitution being applicable.
Though S. 26, of the General Clauses Act, in its opening words refers to `the Act or omission constituting an offence under two or more enactments', the emphasis is not on the facts alleged in the two complaints but rather on the ingredients which constitute two offences with which a person is charged. This is made clear by concluding portion of the section which refers to `shall not be liable to be punished twice for the same offence.'
The above construction of Article 20(2) of the Constitution and S. 26 of the General Clauses Act is precisely in line with the terms of S. 403(2) of the Criminal Procedure Code.
Where therefore the accused are sought to be punished for the offence under Section 105 Insurance Act, after their trial and conviction for the offence under S. 409, Penal Code, they are not being sought to be punished for the same offence twice but for two distinct offences constituted or made up of different ingredients and therefore the bar of Article 20(3) of the Constitution or of S. 26 of the General Clauses Act, 1897, is not applicable.
(c) Prohibition Against Self Incrimination Clause (3) of Article 20 : The clause (3) provides protection to the accused persons against self-incrimination. It provides prohibition against self- incrimination. Article 20(3) provides that no person accused of any offence shall be compelled to be a witness against himself. This guarantee extends to any person accused of an offence and prohibits all kinds of compulsion to make him witness against himself. In M.P. Sharma v. Satish Chandra [AIR 1954 SC 300] case the court observed that this right embodies the following essentials; (1) It is a right pertaining to a person who is "accused of an offence"; (2) It is a protection against "compulsion to be a witness"; (3) It is a protection against such compulsion relating to his giving evidence "against himself". A person is said to be an accused person against whom a formal accusation relating to the commission of an offence has been levelled which in normal course may result in his prosecution and conviction. It is not necessary that the actual trial or inquiry should have started before the court. In M.P. Sharma Satish Chandra case, it was held that a person, whose name was mentioned as an accused in the FIR by the police and investigation was ordered by the Magistrate, could claim the protection of this guarantee. The protection under Article 20(3) covers not merely testimonial compulsion in a court room but also compelled testimony previously obtained and any compulsory process for production if evidentary documents which are reasonably likely to support the prosecution against him. The compulsory taking of finger impressions or specimen handwriting of an accused would come within the mischief of Article 20(3). But in State of Bombay v. Kathi Kalu [AIR 1961 SC 1808] case the court held that when a person gives his finger impression or specimen writing or signature, though, it may amount to furnishing evidence in the large sense is not included within the expression "to be a witness". Hence, neither seizures made under search warrant, not the compulsory taking of photographs, finger prints or speciman writing of an accused would come within the prohibition of Article 20(3). What is forbidden under Article 20(3) is to compel a person to say something from his personal knowledge relating to the charge against him. The protection under Article 20(3) is available only against the compulsion of accused to give evidence "against himself". But left to himself he may voluntarily waive his privilege by entering into the witness box or by giving evidence voluntarily on request. Request implies no compulsion, therefore, evidence given on request is admissible against the person giving it. To attract the protection of Article 20(3) it must be shown that the accused was compelled to make the statement likely to be incrimination of himself.

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