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ARTICLE 20

Article 20 deals with Protection in respect of conviction for offences.

 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.
 No person shall be prosecuted and punished for the same offence more than once.
 No person accused of any offence shall be compelled to be a witness against himself.

Protection Against Ex-post Facto Laws - Article 20 (1)

The expression ‘Ex-post Facto Law’ is based on the law of American Constitution. Under the American system the term
ex-post facto law meant a law which imposes a punishment for an act which was not punishable at the time of the
commission of the offence or imposes additional punishment to what was prescribed at the time of commission of the
offence or change in the rule of evidence or procedure requiring conviction.
It means ‘a law, which imposes penalties or convictions on the acts already done and increases the penalty of such acts. Ex
Post Facto Law imposes penalties retrospectively.
Article 20 (1) imposes a limitation/restriction on the law-making power of the legislature.
Ex Post Facto Laws are of 3 kinds as follow:

i) A law which declares some act or omission as an offence for the first time after the completion of that act
or omission.

ii) A law which enhances a punishment or penalty for an offence subsequent to the commission of that
offence.

iii) A law which prescribes a new and different procedure for the prosecution of an offence subsequent to the
commission of that offence.
Article 20 (1) comprises of two parts:
i) The first part says that ‘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’.
❖ It means that if an act is not an offence on the date of its commission, a law enacted in future cannot make it so.
Illustration: Section 304 - B was enacted on 19-11-1986 making a dowry death punishable as an offence under IPC. A
new offence has thus been inserted in the IPC with effect from 19-11-1986. Because of Article 20 (1) Section 304-B
cannot be applied to dowry death which took place in 1984 i.e. prior to the enactment. Section 304-B is a substantive
provision creating a new offence subsequent to the commission of the offence attributed to the respondent in the instant
case and so he could not be tried under Section 304-B.
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❖ This right is available to an individual only against conviction or sentence for a criminal offence under ex post
facto law and not against the trial.
Pareed Lubha v/s Nilambaram (AIR 1967 Ker 155)
The 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 even if it covered older dues.
ii) The second part of clause (1) protects a person from a penalty from greater than that which might have been inflicted

under the law in force at the time of the commission of the offence.

In other words a person cannot be made to suffer more by an ex-post facto law than what he would be subjected to at the
time he committed an offence.
Kedar Nath v/s State of West Bengal (AIR 1953 SC 404)
Facts: The accused committed an offence in 1947, which under the Act then in force was punishable for the same offence

by an additional fine equivalent to the amount of money procured by the accused through the offence.

Judgement: The Supreme Court held that the enhanced punishment could not be applicable to the act committed by the

accused and hence set aside the additional fine which was imposed by the Amended Act.

Shiv Dutt Rai Fateh Chand v/s Union of India It has been held that imposing or increasing a penalty with
retrospective effect for a violation of a taxing statute does not infringe Article 20 (1).
The word penalty under a tax law levied by department authorities for violation of statutory provisions. A penalty imposed
by such an authority is only a civil liability, though penal in character.

Article 20 (1) applies when a punishment is imposed for offence through criminal prosecution (even under tax laws).
Protection Against Double Jeopardy - Article 20 (2)
The roots of the doctrine against double jeopardy are to be found in the well established Maxim of the English Common
Law, Nemo debet bis vexri meaning A man must not be put twice in peril for the same offence.
Article 20 (2) runs “No person shall be prosecuted and punished for the same offence more than once”. This rule is known
as double jeopardy.
Under Article 20 (2) the protection against double punishment is given only when the accused has not been prosecuted but
also punishment 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 Article 20 (1). The word prosecution as
used with the word ‘punishment’ embodies four essentials for the application of double jeopardy rule.
a) The person must be accused of an offence.
b) The proceeding or the prosecution must have taken place before a court or judicial tribunal.
c) The person must have been prosecuted and punished in the previous proceedings.
d) The offence must be the same for which he was prosecuted and punished in the previous proceedings.
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Maqbool Husain v/s State of Bombay

Facts: The appellant brought some gold from a foreign country without making any declaration to that effect. The
Customs Authorities confiscated/seized the gold under the Sea Customs Act, 1898. Subsequently, he was also charged
under Section 8 of the Foreign Exchange Regulation Act, 1947 and prosecuted.
Judgement: The Court Held that the Sea Custom Authorities were not a court or judicial tribunal and adjudging of
confiscation under the Sea Customs Act did not constitute a judgement of judicial character necessary to take the plea of
the double jeopardy. Hence the prosecution under the Foreign Exchange regulation Act is not barred.
Thomas Das v/s State of Punjab The Supreme Court laid down that - to invoke protection under Article 20 (2), the
following conditions are to be satisfied.

1. That there was a previous prosecution.

2. That as a result of this the accused was punished.

3. That the punishment was for the same offence.

Kalawati v/s State of H.P. The Court held that the appeal is the continuation of the earlier trial and not a new trial of the
same offence and the appeal against the order of acquittal would not attract.

Protection Against Self Incrimination - Article 20 (3) Article 20 (3) runs - “No person accused of any offence shall be
compelled to be a witness against himself”.

The word self-incrimination means conveying information based upon personal knowledge of the person giving
information involving him to be the prime part taken in the offence.
Statements are two kinds, namely -
1. Self-serving statements
2. Self-harming statements

It is based on a Maxim - “Nemo tenetur prodere accusare seipsum” which means that no man is bound to accuse himself.
1. The person must be accused of an offence.
2. The protection is against compulsion to be a witness.
3. The Compulsion relates to giving evidence against himself.

M .P SHARMA vs SATISH CHANDRA

Facts: A murder accused was identified by the Trial Court and convicted based upon handwriting samples taken at three
different times, under police custody. The convict appealed to the High Court which held that the evidence of specimen
handwriting was tantamount to compulsion, as it was obtained under police custody, thereby making the evidence
inadmissible. Holding that the identity of the respondent was not established beyond a reasonable doubt under other
available evidence, the accused was acquitted. The State of Bombay then appealed to the Apex Court which led to the
judgement under review.
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The Supreme Court observed that the right under Article 20 (3) embodies the following three essentials:
1) It is a right pertaining to a person who is accused of an offence.

2) It is a protection against such compulsion to be a witness.

3) It is a protection against such compulsion relating to his giving evidence ‘against himself’.
The Court held that Article 20 (3) is protection against compulsion resulting him giving evidence ‘against himself’. This
protection is not available in respect of the statement in evidence at the trial in the court-room.
STATE OF BOMBAY vs KATHI KALU OGHAD
Issues before the Court:
These are the issues for deliberation:

 Whether methods of gathering evidence such as taking finger print samples, handwriting samples, DNA collection
etc. are constitutionally valid methods.
o To solve the above question it is important to analyse the term “witness” in Article 20(3) and find out the ambit
of its inclusion.
 Whether being in police custody ipso facto means that the witness had been compelled or not.
The following proposition of law emerge out of the majority judgement:
1) “To be a witness” is not equivalent to “furnishing evidence”.

2) “To be a witness” means imparting knowledge in respect of relevant facts by oral statement or a statement in
writing made or given in a court or otherwise.
3) The expression “to be witness” has a wider meaning than its grammatical sense. It means bearing testimony in
court or out of court by a person accused of an offence orally or in writing.
4) Giving thumb impression or impressions of foot or palm or fingers or specimen writing or showing part of the
body by way of identification are not included in the expression “to be a witness”.
5) The fact that the accused was in police custody at the time when the statement in question was made, would not,
by itself, as a proposition of law, lead to inference that he was compelled to make the statement.
The Court held that if the self-incriminatory information has been given by an accused person without any threat or
coercion that will be admissible in evidence and will not be hit by the provisions of Article 20(3), for the reason that there
has been no compulsion.