The first 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 an 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 act of putting a person through a second trial of an offence for which he or she has already been prosecuted or convicted The expression ‘self-incrimination’ means “conveying information based upon personal knowledge of the person giving information involving himself to be the prime part taken in the offence.” A person shall not be asked to make statements against himself (i.e. self-harming statements/confessional statements).

1. ARTICLE-20
-SHIVANI SHARMA
-ASSISTANT PROFESSOR
-SARDAR PATEL SUBHARTI INSTITUTE OF LAW

2. Protection in respect of conviction for offences:
(1) No person shall be convicted of any offence except for
violation of the 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) No person shall be prosecuted and punished for the
same offence more than once
(3) No person accused of any offence shall be compelled
to be a witness against himself

3. EX-POST
FACTO
LAWS

4. Ex post facto laws are of three kinds as follows:
(a) A law which declared some act or omission as an offence for
the first time after the completion of that act or omission.
(b) A law which enhances the punishment or penalty for an
offence subsequent to the commission of that offence.
(c) A law which prescribes a new and different procedure for the
prosecution of an offence subsequent to the commission of
that offence.
Clause (1) of Art. 20 provides protection only in respect of the
above first two categories of expost facto laws i.e. laws which
declare acts as offences subsequent to the commission to those
acts and laws which enhance the penalty subsequently.

5.  The first 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 an 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 second part of clause (1) protects a person form ‘a penalty
greater than that which he might have been subjected to at the
time of the commission of the offence.’
 For Example: If a person ‘A’ commits an offence in the year 1947, as
per the act in that year the punishment was imprisonment of fine
or both the same act was amended in 1949 which enhanced the
punishment of the same offence by as additional fine. In such a
case the punishment enhanced would not be applicable to the act
of 1947, the same would be set-aside.

6. DOUBLE
JEOPARDY
(AUTREFOIS ACQUIT &
AUTREFOIS CONVICT)

7.  Meaning of Jeopardy
The word Jeopardy refers to the “danger” of conviction that
an accused person is subjected to when one trial for an
criminal offence. M
 Meaning of Double Jeopardy
The act of putting a person through a second trial of an
offence for which he or she has already been prosecuted or
convicted.
 This means that if a person is prosecuted or convicted
cannot be punished again for that criminal act. And if a
person is indicated again for the same offence in the
then he has the plea of Double Jeopardy as a valid

8.  In Constitution of India, Double Jeopardy is incorporated under Article
20(2) and it is one of fundamental right of the Indian Constitution. And
the features of fundamental rights have been borrowed from U.S.
Constitution and the concept of Double Jeopardy is also one of them.
Principle of Double Jeopardy is incorporated into the U.S. Constitution in
the Fifth Amendment, which says that “no person shall be twice put in
Jeopardy of life or limb.”
 Article 20 of the Indian Constitution provides protection in respect of
conviction for offences, and article 20(2) contains the rule against double
jeopardy which says that “no person shall be prosecuted or punished for
the same offence more than once.” The protection under clause (2) of
Article 20 of Constitution of India is narrower than the American and
British laws against Double Jeopardy.

9.  Under the American and British Constitution the 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.
 But under Article 20(2) the protection against double punishment 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.
 The use of the word ‘prosecution’ thus limits the scope of the protection under
clause (1) of Article 20.
 If there is no punishment for the offence as a result of the prosecution clause
(2) of the article 20 has no application and an appeal against acquittal, if
provided by the procedure is in substance a continuance of the prosecution
(Smt. Kalawati v. state of H.P., AIR 1953 SC 131 at p.152)

10.  The rule against Double Jeopardy stipulates that
no one may be put in peril twice for the same
offence.
 It is a concept originated from “Natural Justice
System” for the protection of integrity of the
“Criminal Justice System”.
 The concept of Double Jeopardy follows the “audi
altermn partum rule” which means a person
cannot be punished twice for the same offence.

11. MAQBOOL HUSSAIN VS STATE OF
BOMBAY
In the leading case of Maqbool Hussain v. State of Bombay AIR 1953 SC 325 , a
person arrived at an Indian airport from abroad. He was found in possession of
gold which was against the law at the time. Action was taken against him by the
customs authorities and the gold was confiscated.
Later he was prosecuted before a criminal court under the Foreign Exchange
Regulation Act. The question was whether the plea of autrefois acquit could be
raised under Art. 20(2). The Supreme Court came to the conclusion that the
proceedings before the customs authorities did not constitute 'prosecution' of
the appellant, and the penalty imposed on him did not constitute 'punishment'
by a judicial tribunal. In these circumstances, the trial of the petitioner before the
criminal court was not barred.

12. •The Supreme Court observed as follows:
“It is clear that in order that the protection of Art. 20 (2) be
invoked by a citizen there must have been a prosecution
and punishment in respect of the same offence before a
court of law. The very wording of Art 20 and the words
used therein would indicate that the proceedings therein
contemplated are of the nature of criminal proceedings
before a court of law or a judicial tribunal and the
prosecution in this context would mean an initiation or
starting of proceedings of a criminal nature before a court
of law or a judicial tribunal in accordance with the
procedure prescribed in the statute which creates the
offence and regulated the procedure.

13. CONT…
•The Supreme Court ruled that the sea
customs authorities are not a judicial tribunal
and adjudging by it of the confiscation,
increased rate of duty or penalty under the
provisions of the Sea Customs Act do not
constitute a judgment or order of a court or
judicial tribunal necessary for the purpose of
supporting the plea of Double Jeopardy.

14.  It is to be noted that Article 20 (2) will applicable
only where punishment is for the same offence,
In Leo Roy v. Superintendent District Jail, The
Court held: if the offences are distinct the rule of
Double Jeopardy will not apply. Thus, where a
person was prosecuted and punished under sea
customs act, and was later on prosecuted under
the Indian Penal Code for criminal conspiracy, it
was held that second prosecution was not barred
since it was not for the same offence

15. SECTION-300 CR.P.C.
 Person once convicted or acquitted not to be tried for same offence.
 (1) A person who has once been tried by a Court of competent jurisdiction for an offence and
convicted or acquitted of such offence shall, while such conviction or acquittal remains in
force, not be liable to be tried again for the same offence, nor on the same facts for any other
offence for which a different charge from the one made against him might have been made
under sub- section (1) of section 221, or for which he might have been convicted under sub-
section (2) thereof.
 (2) A person acquitted or convicted of any offence may be afterwards tried, with the consent
of the State Government, for any distinct offence for which a separate charge might have
been made against him at the former trial under sub- section (1) of section 220.
 (3) A person convicted of any offence constituted by any act causing consequences which,
together with such act, constituted a different offence from that of which he was convicted,
may be afterwards tried for such last- mentioned offence, if the consequences had not
happened, or were not known to the Court to have happened, at the time when he was
convicted.

16. CONT…
 (4) A person acquitted or convicted of any offence constituted by any acts may,
notwithstanding such acquittal or conviction, be subsequently charged with,
and tried for, any other offence constituted by the same acts which he may
have committed if the Court by which he was first tried was not competent to
try the offence with which he is subsequently charged.
 (5) A person discharged under section 258 shall not be tried again for the same
offence except with the consent of the Court by which he was discharged or of
any other Court to which the first- mentioned Court is subordinate.
 (6) Nothing in this section shall affect the provisions of section 26 of the
General Clauses Act, 1897 , (10 of 1897 ) or of section 188 of this Code.
Explanation.- The dismissal of a complaint, or the discharge of the accused, is
not an acquittal for the purposes of this section.

17.  Illustrations
(a) A is tried upon a charge of theft as a servant and
acquitted. He cannot afterwards, while the acquittal remains
in force, be charged with theft as a servant, or, upon the
same facts, with theft simply, or with criminal breach of trust.
(b) A is tried for causing grievous hurt and convicted. The
person injured afterwards dies. A may be tried again for
culpable homicide.
(c) A is charged before the Court of Session and convicted of
the culpable homicide of B. A may not afterwards be tried
on the same facts for the murder of B.

18. PROHIBITION
AGAINST
SELF-
INCRIMINATION
DID YOU
BREAK THE
POT?
I AM PROTECTED
AGAINST SELF
INCRIMINATION.

19.  The expression ‘self-incrimination’ means “conveying
information based upon personal knowledge of the person
giving information involving himself to be the prime part
taken in the offence.” A person shall not be asked to make
statements against himself (i.e. self harming
statements/confessional statements).
 Clause 3 of Art. 20 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”.
 Art. 20(3) is based on the common law maxim nemo
tenetur prodere accussare seipsum, which means that “no
man is bound to accuse himself”.

20.  Ingredients-The protection under Art. 20(3) is
available, provided the following conditions are
fulfilled.
(i) The person (seeking protection under Clause 3
of Art. 20) must be ‘accused of an offence’.
(ii) The protection is against ‘compulsion to be a
witness’. (He is compelled to give witness); and
(iii) The compulsion relates to giving evidence
‘against himself’.

21. (1) Accused of an offence : The words ‘accused of an
offence makes it clear itself only that this Right is available
to a person accused of an offence only.
In a case, it was held that a person, whose name was
mentioned as an accused in FIR by the police and the
investigation was ordered by the Magistrate can claim the
protection of this Right.
The (2) and (3) ingredient i.e. compulsion to be
witness and compulsion to give evidence “against
himself”, shall be taken together as both points convey
similar viewpoint/meaning.

22.  Both the ingredients can be understood through the various sections of Indian
Evidence Act, 1872, which states as follows:
According to Sec. 25 of the Act Confessional Statement (Self harming
statement/statement made against himself) made by a person/accused to
officer is inadmissible.
 According to Section 26, such confession shall not be proved against him
(accused).
 Accordingly to Section 27 “when an information given by the accused in police
custody leads to discovery of an incriminating material object, like jewellery,
weapons etc. that portion of the information can be proved.”
 EXAMPLE-‘P’ is tried for murder, if P in a police custody says, “I have killed Q’
and buried the dead body in my garden. I will show you the place, where I
boiled the body” Accordingly if Q's body is traced out, P's statement is
admissible under Sec. 27.

23.  Now one question here arises, whether Section 27 of Indian evidence Act is
violative of Article 20(3) of India Constitution. This question was resolved in
a case of State of Bombay vs. Kathi Kalu oghad, AIR 1961 SC 1808
 The Court held that it is on 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 violative of Article 20(3).
So, therefore as per above mentioned it is clear that ‘compulsion to be
witness’ and ‘compulsion to give evidence “against himself” both states that
to attract the protection of Article 20(3) it must be shown that the accused
was compelled to make the statement likely to be incriminative of himself,
where the accused makes a confession without any inducement, threat or
promise, Article 20(3) does not apply.

24. CASE STUDY
SELVI VS STATE OF KARNATAKA, 2010
NANDINI SATHPATHY VS P.L. DANI,
1978
DELHI JUDICIAL SERVICE ASSOCIATION
VS STATE OF GUJARAT, 1991