Protection in Respect of Conviction For Offences A20

Protection in respect of
Conviction for Offences A 20

Article 20 of the Indian Constitution makes up of 3 clauses.
In a simpler sense, these three clauses deal with issue of unnecessary and
rather undesirable actions by Legislature, Executive & implementing authorities.
The basic crux of these provisions are:
 First, it establishes that no one should be convicted for any offence

other than those violating the law in force at the time of the
commission of the offence and also, one couldn’t be penalised with a
greater punishment than what existed at the time of the commission of
the act.
 Second, no one could be convicted and punished more than once for
the same offence involving the same set of facts.
 Third, no one should be compelled to produce such evidence and
information which could be used against him during trial incompetent
judicial tribunals.
Article 20 is among those Articles of the Indian Constitution, which can’t be put
aside even during an emergency. Thus, forms a cornerstone of the Indian
Constitution.
Now, let’s do a survey of three legal doctrines of the Indian Criminal

jurisprudence, which reflects the three clauses of the Article 20, i.e. Ex-post
facto law, Doctrine of Double Jeopardy and Prohibition against self-
incrimination.
Provision against Ex post facto law: Clause
(1) of Article 20
The provision in question, i.e. Article 20 (1) says that one must not be
prosecuted and convicted in accordance with those laws which didn’t exist at
the time of the commission of the offence by the accused and also must not be
inflicted with punishments greater than those existing at the time of
commission.
This provision negates the chance of retrospective implementation of laws

regarding criminal offences. In simpler speak, this provision brings a clampdown
to the legislative prerogative of the legislation by prohibiting retrospective
implementation of a law having criminal nature.
Illustration
Assume that a man, Bhairav Surve, practising black magic in Dhamangaon

village of Maharashtra, murders a child of his locality on 20th December 2012.
Later, in December 2013, the legislature of Maharashtra passes
the Maharashtra Prevention and Eradication of Human Sacrifice and other
Inhuman, Evil and Aghori Practices and Black Magic Act, 2013 and by virtue of
provision against Ex post facto law, Bhairav Surve can’t be prosecuted and
charged under the mentioned Act as the commission of offence dates back to
when the act didn’t exist.
Though the legislation in India has the authority to implement laws

retrospectively this clause prohibits the Legislature to enact a criminal law
retrospectively. This provision ensures that no one could be booked or charged
under such laws, which were not in existence at the time of the commission of
the offence.
The Landmark judgement governing this doctrine came in the year 1953, in
case of Kedar Nath v. State of West Bengal. In this case, the Hon’ble
Supreme Court of India observed that, whenever an act is declared as a
criminal offence and/or provides penalty for same by the legislature, it is always
prospective in nature and can’t be implemented retrospectively to uphold what
is being said under Article 20 (1).
However, only the procedure of sentencing and convicting is what is prohibited

under this clause, and not the trial itself. Thus, a person accused according to a
particular procedure can’t be questioned under this clause and doctrine of Ex
post facto law.
Dealing with a similar situation, in the case of Mohan Lal v. State of

Rajasthan (AIR 2015 SC 2098) which involved Narcotics, Drugs and
Psychotropic Substances Act, the court opined that, only conviction and/or
punishments under an ex post facto law is prohibited under Article
20 and not the trial or prosecution itself. Also, trial under a different
procedure than what existed during the commission of the act doesn’t come
under the ambit of the same and can’t be struck down as unconstitutional.
In another important judgement in case of Maru Ram Etc. vs Union Of India

& Anr (1980 AIR 2147), the Court observed that Article 20 (1) also includes
the rule that there will be no retrospective infliction of penalties heavier than
those existing ones at the time of commencement of the offence.
However, an exception also exists to the restriction under this provision. In the
case of Rattan Lal v. the State of Punjab, the Hon’ble Supreme Court
allowed for such retrospective implementation of Criminal Laws, where the issue
pertinent is, reduction of punishment in the said offence.
Double jeopardy: Clause (2) of Article 20
“Nemo debet bis vexari pro una et eadem causa”
The Doctrine of Double Jeopardy, which traces back its origin to American
jurisprudence of punishment, means that ‘no person can be prosecuted and
punished twice for the same offence in subsequent proceedings’. And, Article
20 (2), which reads that no one could be convicted and punished more than
once for the same offence involving the same set of facts guarantees against
the multiple convictions and Double jeopardy.
In the case of Venkataraman v. Union of India, the Supreme Court of India

established that this provision deals exclusively with Judicial punishments and
provides that no person is prosecuted twice by the judicial authorities. The most
crucial landmark judgement came in case of Maqbool Hussain v. State of
Bombay, where the person accused was possessing some amount of gold,
which was against lex loci at the time and gold was confiscated by the customs
authority. And, later when the person was prosecuted before a criminal court,
the court was confronted with the question whether this amounts to Double
Jeopardy.
But, the Supreme Court observed that departmental proceedings, i.e. by

Customs Authority, in this case, doesn’t amount to trial by a judicial tribunal,
thus the proceedings before the criminal court is not barred in this case and the
proceedings can go on. In a nutshell Departmental Proceedings are
independent of trial by a judicial court or tribunal.
However, the prosecution may happen if the facts are distinct in subsequent
proceedings. Same was established by the Supreme Court of India in case
of A.A. Mulla v. State of Maharashtra and was observed that; Article 20
(2) would not be attracted in those cases where the facts are distinct in
subsequent offence or punishment.
The defence from prosecution for the second time has also been embodied
in Section 300 (1) of CrPC which says that someone who had been
convicted/prosecuted by a competent court for some offence will not be liable to
be prosecuted again till the previous conviction/acquittal remains in force. Thus,
prohibiting from a conviction for the second time, for the same offence and on
the same set of facts. This provision does devise a rule for where the second
trial is permissible and where not.
However, the application of this provision does demand certain conditions to be

fulfilled:
 First, that the accused or the person in question must have been
tried by the court previously and it is concerned only with
judicial prosecution and proceedings.
 Secondly, the court trying the case must be competent, i.e. it should
act under its competent jurisdiction and shouldn’t exercise its
power, Ultra Vires.
 Thirdly, the previous proceeding must have ended in either acquittal
or conviction and if it ended merely after inquiry, such cases are not
covered under the ambit of Sec 300 (1) of CrPC.
 Fourthly, the previous conviction/acquittal must be in force and
should not have been set aside by appeal or re-trial. This is an
essential condition because in absence of let’s say, previous conviction,
there will be no bar for the second prosecution and the second trial
may happen.
 And lastly, in the subsequent trial, he/she must be tried for the same
offence and on same facts for any other offence, which is having a
different charge under Section 221 (1)/(2) of CrPC.
Nonetheless, there exists an exception to this provision, i.e. the Principle of

Issue Estoppel. The above-mentioned exception provides for estoppel against
the ongoing prosecution if the fact-finding happens to be in favour of accused
but it does not bar from subsequent proceeding for a different offence.
However, to invoke this defence, not only the parties involved but the facts in
issue should also be the same. Landmark case for the same is Ravinder Singh
v. Sukhbir Singh.
Prohibition against self-incrimination:

Clause (3) of Article 20
Another foremost rule which provides for protection from a conviction for
offences is ‘Prohibition against Self-incrimination.’ The same is provided by the
Constitution of India in Part III under Article 20 (3). It describes that no one
could be forced to utter and provide such information or evidence orally or by
documentary means which could be used against himself during the further trial
procedure.
Also, the term ‘Witness’ includes both, Oral and documentary evidence as held
in M.P. Sharma v. Satish Chandra. As held in the same case, however, there
is no restriction where a search for document or seizures is being done by the
authorities. However, the information and evidence produced voluntarily by the
accused is permissible.
Same could be admissible in court under section 27 of Evidence Act and

doesn’t violate Article 20 (3), but it is upon the prosecution to find out
whether the information provided is voluntary or under compulsion. The
rationale behind this is that the evidence must be in the form of communication
and for the same reasons, the medical examination done during the course
of a trial is permissible. This is why Narco Analysis test is frequently used by
authorities to gather information and evidence and does not violate the
provision under Article 20 (3).
Prohibition against self-incrimination could only be put into effect if the person
is accused of a criminal offence. This doctrine could not be invoked for cases
other than criminal cases. Also, as held by the Hon’ble Supreme Court
in Narayanlal vs Maneck, to claim the immunity from being self-incriminated,
there must exist a formal accusation against the person and mere general
inquiry and investigation don’t form grounds for the same.
Article 20 (3) also lays out that a person cannot be compelled to be a witness
in his/her own prosecution or case. This is also embodied in the American
Constitution by virtue of 5th Amendment into it. Also, the authorities can not
compel the accused to produce evidence, which can be used against his trial.
Those evidence can be Oral or Documentary. However, an exception to this lies
under Section 91 of CrPC which gives authority to a court or an officer to issue
an order demanding documents that were under the possession of the accused.
Another provision which guarantees prohibition against self-incrimination

is Section 161 (2) of CrPC, which says that while being examined by the
authorities, a person is bound to answer all the questions truly excepting those
which have a propensity to be used against the person himself later during trial.
Thus, here we come to the end of the segment discussing Article 20 (3) of
the Indian Constitution and other provisions providing for the prohibition
against self-incrimination.

Protection in Respect of Conviction For Offences A20

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Protection in respect of

Conviction for Offences A 20

The basic crux of these provisions are:

 First, it establishes that no one should be convicted for any offence

Now, let’s do a survey of three legal doctrines of the Indian Criminal

This provision negates the chance of retrospective implementation of laws

Assume that a man, Bhairav Surve, practising black magic in Dhamangaon

Though the legislation in India has the authority to implement laws

However, only the procedure of sentencing and convicting is what is prohibited

Dealing with a similar situation, in the case of Mohan Lal v. State of

In another important judgement in case of Maru Ram Etc. vs Union Of India

In the case of Venkataraman v. Union of India, the Supreme Court of India

But, the Supreme Court observed that departmental proceedings, i.e. by

However, the application of this provision does demand certain conditions to be

Nonetheless, there exists an exception to this provision, i.e. the Principle of

Prohibition against self-incrimination:

Same could be admissible in court under section 27 of Evidence Act and

Another provision which guarantees prohibition against self-incrimination

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