1. Article 20 : provides safeguards to the persons
accused of crimes
a) Protection against Ex post facto law –
Art. 20 (1) “no person shall be convicted of any
offence
except for the violation of a law in force;
at the time of the commission of the act charged
as an offence;
nor be subjected to a penalty greater than that
which might have been inflicted under the law
in force at the time of the commission of the
offence”
2. Art. 20 (1) imposes a limitation on the law
making power of the Legislature;
a legislature make prospective as well as
retrospective laws;
but u/Art. 20(1) legislature can not make
retrospective criminal laws,
Art. 20(1) does not prohibit imposition of civil
liability retrospectively, e.g. a tax can be
imposed retrospectively
An Ex post facto law imposes penalty
retrospectively
3. Principle :
No conviction for an offence except for the
violation of law in force at the time of the
commission of the act charged
If an act is not an offence at the date of its
commission, it can not be an offence at the
date of subsequent to its commission;
In a case, earlier non payment of Panchayat Tax
was not an offence when it fell due;
hence the defaulter could not be convicted for the
omission to pay under the law which has been
passed afterwards;
4. 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 prosecution and trial under a
retrospective law;
Trial under a procedure if different can not ipso
facto be held unconstitutional;
The rule is not applicable for trial and
procedure
5. Second part of the principle ‘a penalty greater
than that which he might have been
subjected at the time of the commission of
the offence’; Protects a person from more
penalty
In KedarNath v. State of West Bengal
The case relate to Law constituting Special
Courts to try special kinds of offence;
And empowering executive to direct particular
cases to be tried by Special Courts
6. the West Bengal Criminal Law Amendment
(Special Courts) Act 1949 which was entitled
an Act to provide for the more speedy trial
and more effective punishment of certain
offences,
and empowered to constitute Special Courts of
criminal jurisdiction for specified areas and
to appoint Special Judges to preside over
such courts
7. 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 amount of
money procured by the accused through the
offence
question arose when the accused was sentenced
with fine greater than that which might have
been imposed on him under the law in force
when the offence was committed
8. The Supreme Court held that the enhanced
punishment could not be applicable to the act
committed by the accused in 1947;
and set aside the additional fine imposed by the
amended Act
9. Budh Singh v. State of Haryana,
The petitioner was convicted under S. 15 of the
NDPS Act 1985 for contravention in relation
to poppy straw and
sentenced to undergo imprisonment for a
period of 10 years and fine Rs. 1 lack
And in default to suffer further Rigorous
Imprisonment for a period of three years;
10. After undergoing custody for a period of more
than seven years, the petitioner contended
that taking into account the remission
(reduction) which had been due to him under
different Government notifications or orders
issued from time to time;
He would have been entitled to be released
from prison
but by virtue of S. 32A of the NDPS Act the
benefit was denied to him
S.32A : no sentence awarded under this Act
shall be suspended or remitted or commuted
11. Petitioner challenged under Art. 32 of the
Constitution to the constitutional validity of
S. 32A of the NDPS Act for violation of Art.
14, 20(1), 21 of the Constitution
S. 32A of the NDPS Act was brought into the
statute book by an amendment to the Act
with effect from 29.5.1990,
according to the petitioner the benefit of
remissions of sentence under the Act being
permissible on date when he is alleged to
have committed the offence i.e. 13.12.1988
12. The Supreme Court held that the procedure
under criminal law and the NDPS Act is not
violative of these Articles; especially right to
life as it had not been taken away except
according to procedure established by law;
The section is not encroach upon personal
liberty of the convict tried fairly and
sentenced under the Act
13. S. 32 A was held not to be violative of Art.
20(1) as it had obliterated the benefit of
remission(s) to a convict under NDPS Act
Since the remission did not in any way touch or
affect the penalty / sentence imposed by a
Court, the fundamental rights of the accused
are not violated
Ss 432 and 433 of Cr.P.C. : Remission of
sentence wipes out period of sentence which
has not been served out and in fact reduces
sentence to period already undergone;
14. But Remission does not affect the order of
conviction and sentence in law
In the case, the petitioner is not inflicted
punishment greater than what was imposed
by the Act at the time of the commission of
the offence
15. Beneficial Provision :
Accused can take advantage of the beneficial
provision of the ex post facto law
Rule is that ex post facto law should be applied
to mitigate the rigorous (reducing the
sentence) of the previous law on the same
subject,
Such law is not affected by Art. 20(1)
The principle is based on sound reason and
common sense
16. Protection against Double Jeopardy :
Art. 20(2) says “ no person shall be prosecuted
and punished for the same offence more than
once”
Embodies the common law rule of - nemo
debet vis vexari –
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 defence of his former acquittal or
conviction
17. American Constitution –
Fifth Amendment – no person shall be twice put
in jeopardy of life or limb
The protection under Art. 20(2) is narrower than
that given in American and British laws;
- Protection against double jeopardy is given for
the second prosecution for the same offence
irrespective of whether an accused was
acquitted or convicted in the first trial;
18. - However in Art.20(2) the protection is given
only when the accused has not only been
‘prosecuted’ but also punished;
- And sought to be prosecuted second time for
the same offence
If there is no punishment in the prosecution;
No application of Art.20(2);
and an appeal against acquittal, if provided by
the procedure is in substance a continuance
of the prosecution
19. For the application of double jeopardy :
Essentials –
1. The person must be accused of an offence
2. 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
20. Maqbool Husain v. State of Bombay
Appellant brought some gold into India
He did not declare the fact to the customs
authorities on the airport;
Customs authorities confiscated the gold under
the Sea Customs Act
He was later on charged for an offence under
the Foreign Exchange Regulation Act
Appellant contended that the second
prosecution was in violation of Article 20(2)
as it was for the same offence;
21. • Offence of importing gold in contravention of
Government notification;
• For which he had already been prosecuted
and punished ;
as his gold had been confiscated by the
authorities,
The Court held that the Sea Custom Authorities
were not a Court or judicial tribunal;
Adjudging of confiscation under the Sea
Customs Act did not constitute ‘prosecution
and punishment’; hence prosecution under
the Foreign Exchange Regulation Act is not
barred
