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PERSONAL LIBERTY
[A] PROTECTION IN RESPECT OF CONVICTION FOR OFFENCES[1]
(Art. 20)
(Art. 19 to 22)
QUESTION BANK
- 1. Explain fully the ‘right of protection against Double Jeopardy’ guaranteed by our constitution. Oct. 98.
Q.2. Examine the provisions of Art. 20 of the Constitution in respect of conviction for offences.
Q.3. Discuss the various safeguards available to accused persons under Indian Constitution.
Q.4. A person cannot be punished twice for the same offence. Discuss.
Q.5. “No person accused of any offence shall be compelled to be a witness against himself”-Elaborate. May. 05.
SHORT NOTE
- Protection against Double Jeopardy.
- Ex- post facto laws.
- Self-incrimination.
SYNOPSIS
I] INTRODUCTION
II] RIGHT OF AN ACCUSED
1) Protection against Ex- post facto law [Art. 20 (1)]
- a) Law imposing penalty retrospective
- b) Law imposing greater penalty.
2) Protection against double jeopardy [Art. 20 (2)]
3) Protection against self-incrimination [Art. 20 (3)]
Confession to police
I] INTRODUCTION:-
Personal liberty is the most important of all fundamental rights. Art. 19 to 22 deals with different aspects of this basic right of personal liberty. In fact, Art. 21 is the main Article that has granted the basic right of ‘life and personal liberty’; the rest of the Articles, i.e. Art. 19, 22, and 20, deal with different aspects of the right of personal liberty. Art. 19 guarantees the right to freedom, Art. 22 deals with the protection against arrest and detention, while Art. 20 deals with protection in respect of conviction. Thus, Art. 19 to 22 form the core of the fundamental right of personal liberty. They all are interlinked and form part of the basic, inalienable right to freedom of person or personal liberty.
Three sub-clauses of Art. 20 deal with three distinct but connected safeguards for the person accused of a crime.
II] RIGHT OF AN ACCUSED AGAINST CONVICTION[2]:-
There are three following safeguards available to the person accused of any offence against his conviction. Viz.
1) Protection against Ex- post facto law[3] (Art. 20 (1)):-
Ex-post facto law is a law that imposes penalties retrospectively, i.e., upon acts already done, or which increases the penalty for such acts.
Therefore, Cl. (1) has the following two parts. Viz.
a) Law imposing Penalty Retrospectively[4]:-
Art.20 (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. In other words, if an act (behaviour) is not an offence at the date of its commission, it cannot be an offence at the date subsequent to its commission.
For example, suppose a person did an act in 1954 that was not unlawful. A law was passed in 1956, making that act a criminal offence and seeking to punish that person for what he did in 1954. The Act of 1956 is Ex post facto law for him and, therefore, cannot be applied to such a person. The Act of 1956 is only applicable to future acts and not to acts done in the past.[5].
This protection is available only against conviction or sentence for a criminal offence under Ex- post facto law and not against the trial. In other words, the court, though it cannot convict or sentence, can very well try a person. However, the prohibition applies under American law even in case of trial. Thus, the guarantee given under the American Constitution is wider than that given under the Indian Constitution.
b) Law imposing Greater Penalty[6]:-
The second part of Art. 20 (1) immunises a person from a penalty greater than he might have incurred when he committed the offence.
In Kedar Nath V/s State of West Bengal[7]
Facts: The accused committed an offence in 1947, which, under the Act then in force, was punishable by imprisonment, fine, or both. The Act was amended in 1949, which enhanced the punishment for the same offence by an additional fine.
Supreme Court held– that the enhanced punishment could not be applied to the act committed by the accused in 1947 and hence set aside the additional fine imposed by the Amended Act.
But the accused can very well take advantage of the beneficial provisions of Ex- post facto law[8].
2) Protection against double jeopardy[9] (Art. 20 (2)):-
Art. 20 (2) states, “No person shall be prosecuted and punished for the same offence more than once”. This clause embodies the common law rule of “nemo debt vis vexari” i.e. no man should be put twice in peril for the same offence. In other words, the person shall not be punished twice for the one and the same offence.
If a person is charged again for the same offence in a court, he can plead, as a complete defence, of his formal acquittal or conviction i.e. ‘autrefois acquit’ or ‘autrefois convict’. The rule of double jeopardy is incorporated in the American Constitution also, which protects the accused from the second trial (prosecution) and the conviction under that trial. In other words, if the person is previously acquitted of the offence, he cannot again be tried (prosecuted) and punished (convicted) for the same offence.
The concept of protection of double jeopardy, incorporated under Art. 20 (2) of the Indian Constitution is somewhat narrower. It implies that the accused should have been previously ‘prosecuted and punished’. If he has been ‘prosecuted and acquitted’, he can, on availability of more evidence, may again be prosecuted and punished (convicted). Therefore previous conviction (autrefois convict) and not previous acquittal (autrefois acquit) is a defence under Art.20 (2).
In Maqubool Husain V/s State of Bombay[10]
Facts: The appellant brought some gold into India. He did not declare that he had brought gold with him to the customs authorities at the Airport. The customs authorities confiscated the gold under the Sea Customs Act. He was later charged with having committed an offence under the Foreign Exchange Regulation Act (FERA).
Defence of the appellant- that the first prosecution under the Sea Customs Act has already taken place, and by confiscating gold, he has been punished for that; therefore, the second prosecution under the Foreign Exchange Regulation Act (FERA) is in violation of Art. 20 (2).
Supreme Court Held– the Sea Customs authority is not a court or Judicial tribunal, and the confiscation of gold under the Sea Customs Act does not constitute punishment of judicial character. Therefore, the trial under FERA is not barred by the rule of double jeopardy under Art. 20 (2)[11].
In- Babulal Verma V/s Union Of India (2008 (2) All MR 556)
Issue:- Can criminal trial and Departmental proceedings continue together, or are they affected by Art. 20 (2)?
Held:- Petitioner may be acquitted in a criminal trial; however, that itself would not absolve the petitioner of his liability in Departmental proceedings. This means that criminal Trials and departmental inquiries can be conducted simultaneously.
3) Protection against self-incrimination[12] (Art. 20 (3)):-
Cl. (3) of Art. 20 provides that “no person accused of any offence shall be compelled to be a witness against himself”. Thus, Art. 20 (3) embodies the general principle of English and American Jurisprudence that “no one shall be compelled to give testimony which may expose him to the prosecution for a crime”. It is based on the cardinal principle of English Jurisprudence that “an accused should be presumed to be innocent till the contrary is proved”. It is the duty of the prosecution to prove the offence. The accused need not make any admission or statement against his own free will.
In M.P. Sharma V/s S. Chandra[13]
Supreme Court observed- that the protection against self-incrimination has the following essentials-
- i) it is a right pertaining to a person who is “accused of an offence”.
- ii) it is a protection against “compulsion to be a witness”.
iii) it is a protection against such compulsion relating to his giving evidence “against himself”.
Such evidence may be oral, documentary or testimonial and may also include evidence given by making intelligible gestures, writings etc.[14].
Confession to Police[15]:-
According to S. 25 of the Indian Evidence Act, a confession (self-incrimination) statement made to the police is inadmissible in evidence. But if, according to such a statement, the discovery of incriminating material objects like jewellery, weapons of crime, etc., is recovered, such portion of the statement is admissible under S. 27 of the Indian Evidence Act.[16].
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[1] आरोपी व्यक्तीचे अधिकार
[2] शिक्षेविरुध्द आरोपीचे अधिकार
[3] पूर्वलक्षित फौजदारी कायदयाच्या प्रभावापासून संरक्षण
[4] पूर्वलक्षी शिक्षा लादणा-या कायदयापासून संरक्षण
[5] In Pareed Lubha v. Nilambaram. (AIR 1967 Ker 155).
Court Held- that if the non-payment of the Panchayat Tax was not an offence on the day it fell due, the defaulter could not be convicted for the omission to pay under a law passed subsequently.
[6] जास्तीची शिक्षा लादणा-या कायदयापासून संरक्षण
[7] AIR 1953 SC 404.
[8] Ratanlal vs. State of Punjab (AIR 1965 SC 444)
Facts: Ratanlal, the accused committed a rape on a girl, in 1957. At the time of offence, the accused was aged 16 years. The Magistrate gave the judgment awarding 6 months rigorous imprisonment and also imposed fine. After the judgment, the Probation of Offenders Act 1958, was enacted, according to which the persons below the age of 21 years, should not be punished with rigorous imprisonment.
The Supreme Court Held- that Ratanlal was entitled for the benefit of Ex- post facto law and ordered to apply the provisions of the Probation of Offenders Act, 1958.
[9] एकाच गुन्हासाठी एकापेक्षा जास्त वेळा षिक्षे विरुध्द संरक्षण
[10] AIR 1953 SC 325.
[11] In A.A. Mulla v. State of Maharashtra (AIR 1997 SC 1441).
Facts- The appellants were charged under Section 409 I.P,C. and Section 5 of the Prevention of Corruption Act for making false panchnama disclosing of recovery of 90 gold biscuits although according to prosecution case the appellant had recovered 99 gold biscuits. They were tried for retaining 9 gold biscuits before the Special Judge but appellants were acquitted. On the ground that the prosecution had failed to prove misappropriation, the appellants were again tried under the Customs Act and the Foreign Exchange Regulation Act (FERA). The appellants challenged the validity of their second trial on the ground that it violate Art. 20(2) of the Constitution.
Court Held- that the second trial was not barred as not only the ingredients of the offence of two trial were different but the factual situation of offences in the first and the second trial were also different.
[12] स्वतःविरूध्द साक्ष देण्यास जबरदस्ती करणे पासून संरक्षण
[13] AIR 1954 SC 300.
[14] In Yusufali v. State of Maharashtra, (AIR 1968 SC 756)
Court Held- a tape-recorded statement made by the accused though made without the knowledge of the accused but without force or oppression was held to be admissible in evidence.
[15] पोलीसांपुढे दिलेला कबुली जबाब
[16] In Mohd. Dastgir v. State of Madras (AIR 1960 SC 756)
Facts- the appellant went to the bungalow of Deputy Superintendent of Police to offer him bribe in a closed envelope. The police officer on opening it found the envelope containing currency notes. He threw it at the face of the appellant who took it. Thereafter the police officer asked the appellant to handover the envelope containing the currency notes. The appellant took out some currency notes from his pocket and placed it on the table, which was seized by the police officer and was charged for attempting to bribe police officer. The appellant contended in appeal before the Supreme Court that the currency notes should not be produced in evidence as he was compelled by the police officer to give to him.
The Supreme Court Held- that the accused was not compelled to produce the notes as no duress was applied on him to produce the notes. Moreover, the appellant was not an ‘accused’ at the time the currency notes were seized from him.
In V. S. Kuttan Pillai v. Ram Krishna. (AIR 1980 SC 185).
Court Held- that search of the premises occupied or in possession of person accused of an offence or seizure of anything from there was not violative of Article 20(3) of the Constitution. If any document is recovered as a result of the search and seizure it can be produced in the courts as an evidence against the accused as he is not compelled to give witness against himself.