UNIVERSITY INSTITUTE OF LEGAL STUDIES

ARTICLE 20: PROTECTION IN RESPECT OF CONVICTION

FOR OFFENCES.

PROJECT REPORT ON SUBJECT CONTITUTIONAL LAW OF INDIA

SESSION 2018-2019

SUBMITTED TO: SUBMITTED BY:

Dr. SHRUTI BEDI MADHVI

B.COM L.LB
Semester 4
160

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ACKNOWLEDGEMENT

A research work of such great scope and precision could never have been possible
without great co-operation from all sides. Contributions of various people have
resulted in this effort.

I would also like to take this opportunity to thank Dr. Shruti Bedi without whose
valuable support and guidance, this project would have been impossible. I would
like to thank the library staff for having put up with my persistent queries and
having helped me out with the voluminous materials needed for this work. I
would also like to thank my seniors for having guided me and culminate this
acknowledgement by thanking my friends for having kept the flame of
competition burning, which spurred me on through these days.

And finally my parents, who have been a support to me throughout my life and
have helped me, guided me to perform my best in all interests of my life .

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TABLE OF CONTENT
1. INTRODUCTION

2. EX-POST FACTO LAWS [Article 20(1)]

a) Law declaring an ‘offence’ subsequent to the Commission of the ‘Act’

b) Law enhancing penalty subsequent to the commission of the ‘offence’

c) Beneficial ex-post facto laws

d) Procedural Ex-Post Facto laws

e) Imposition of Civil Liability retrospectively not barred

3.DOUBLE JEOPARDY [Article 20(2)]

a) The person must be accused of an “Offence”

b) The person must have been prosecuted before a Court or a judicial tribunal

c) The person must have been punished after his prosecution before
a Court or a judicial tribunal

d) The person must be prosecuted for the second time before a Court
or a judicial tribunal

e) The “offence” must be same in both the proceedings

4.SELF-INCRIMINATION [Article 20(3)]

a) Person accused of an offence

b) Protection against compulsion to be a Witness

c) Compulsion to give Evidence “against himself”

5.BIBLIOGRAPHY

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TABLE OF CASES PAGE NO

1. AMRIT SINGH V. STATE OF PUNJAB …………………………………………… 22

2. BAIJ NATH V. STATE OF BHOPAL …………………………………………… 15

3. DELHI JUDICIAL SERVICE ASSOCIATION V. STATE OF GUJRAT…………… 19

4. HATHISING MFG. CO. LTD. V. UNION OF INDIA………………………………… 11

5. KALAWATI V. STATE OF HIMACHAL PRADESH ………………………………… 14

6. KEDAR NATH V. STATE OF WEST BENGAL………………………………………… 09

7. LEO ROY FREY V. SUPERINTENDENT, DISTRICT JAIL…………………………… 15

8. LILY THOMAS V. UNION OF INDIA…………………..………………………………… 09

9. M.P. SHARMA V. SATISH CHANDRA…………………………………………………… 20

10. MAQBOOL HUSAIN V. STATE OF BOMBAY………………………………………… 12

11. MOHD. DASTAGIR V. STATE OF MADRAS………………………………………… 24

12. NANDINI SATPATHY V. P.L. DANI……………………………………………………… 19

13. NARAYAN LAL V. M.P.MISTRY…………………………………………………………… 19

14. OM PRAKASH V. STATE OF UTTAR PRADESH …………………………………… 08

15. PARSHADI V. STATE OF U.P………………………………………………………………… 23

16. PRITAM SINGH V. STATE OF PUNJAB……………………………………………… …. 17

17. RATTAN LAL V. STATE OF PUNJAB……………………………………………………… 10

18. RITESH SINHA V. STATE OF U.P …………………………………………………………. 22

19. SARLA MUDGAL V. UNION OF INDIA………………………………………………. 10

20. SELVI V. STATE OF KARNATAKA ……………………………………………………… 25

21. STATE OF BOMBAY V. KATHI KALU OGHAD ………………………………………… 21

22. STATE OF HARYANA V. GHASEETA RAM ………………………………………… 16

23. STATE OF MAHARASHTRA V. KAMAL AHMED MOHD. VAKIL ANSARI…… 26

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24. STATE OF WEST BENGAL V. SK GHOSH ……………………………………… 10

25. SUBA SINGH V. DAVINDER KAUR………………………………………………………… 15

26. TRANSMISSION CORPN. OF AP V.CH. PRABHAKAR ……………… 11

27. UNION OF INDIA V. SUNIL KUMAR ………………………………………………… 16

28. V.S. KUTTAN PILLAI V. RAMAKRISHANAN ……………………………………… 22

29. YUSUFALI V. STATE OF MAHARASHTRA………………………………………………… 24

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INTRODUCTION

Article 20 is one of the pillars of fundamental rights guaranteed by constitution of

India .It provides protection in respect of conviction for offences. The protection in
this article is available to all the persons, citizens, non- citizens. It also includes a
corporation which is accused, prosecuted, convicted or punished for an offence.
the striking feature of the article 20 is that it can't be suspended during an
emergency period. The article has set certain limitations on the legislative
powers of the Union and State legislatures. 1 the prohibitions imposed by article
20are directly relevant to criminal process. while the clause (1) is concerned with
the substantive law of criminal liability and penalty, clauses (2)and (3) are
concerned mainly with the stage of procedure.

Article 20 provides protection against :

A. Ex-post facto laws [article20(1)]

B. Double Jeopardy [article20(2)]

C. Self-incrimination [article20(3)] .

1http://www.elections.in retrieved on 20-03-19

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A. Ex-post facto laws

No person shall be convicted of any offence except for violation of law in force at
the time of commission of the act charged as an offence, nor be subjected to a
penalty greater than which might have been inflicted under the law in force at the
time of the commission of the offence.2

An ex post facto law (from the Latin for after the fact) or retroactive law, is a law
that retroactively changes the legal consequence of acts committed or the legal
status of facts and relationships that existed prior to the enactment of the law.

Ex-post facto laws are of three kinds

1. a law, which declares some act or omission as an offence, for the first time
after the completion of that act or omission.

2. a law, which enhances the punishment or penalty for an offence, subsequent to

the commission of that offence .

3. a law , which prescribes a new and different procedures for the prosecution of
an offence , subsequent to the commission of that offence.

Under clause 1 of article 20 what is prohibited is "the conviction" and "sentence"

in criminal proceeding under expost facto law. undoubtedly , in a civilized society ,
governed by rule of law, the punishment not prescribed under the statutory rules,
cannot be imposed. This principle to criminal jurisprudence , to this effect, is
prescribed in legal maxim "nulla poena sine lege" which means that a person
should not e made to suffer penalty except for a clear breach of existing law.

It is trite law that the sentence impossible on the date of commission of the
offence has to determine the sentence impossible on the completion of the trial
this proposition is clear even on a bare reading of article 20(1).

2ARTICLE 20 (1)
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The right against ex-post facto law has always been recognized at international
level under the two international covenant viz., an international declaration of
human rights and the important covenant on civil and political rights:3

article 11, clause 2 of the universal declaration of human rights proclaims also
says that there can be no ex post facto trial and punishment. law must exist in
regard to the offence on the day offence is alleged.

article 15 of the international covenant council and political rights, 1966 proclaims
that no one can be held guilty by any courts situated in the countries signatory
and party to the covenant for any omission of duty not mentioned on the day
such omission is criminalized by a valid law.

VARIOUS INGREDIENTS OF ARTICLE 20(1) ARE DISCUSSED BELOW

(a) Law declaring an offence subsequent to the commission of the act

The first part of clause 1 of article 20 relates to the first category of ex post facto
law. it says that No person shall be convicted of any offence except for violation of
law in force at the time of commission of the act charged as an offence. It explains
that a person can only be convicted of an offence if the charge against him as
offence under the law in force at the time of commission of act. There being no
definition of offence in the constitution, section 3 (38) of General Clause Act 1897,
defines the term offence as an act or omission made punishable by any law for the
time being in force. article 20(1) relates to the general principles of evidence
which provides that "ignorance of law is no excuse". The expression "law in force"
this article postulates the actual factual existence of law at the relevant time and
excludes the retrospective operation of any subsequent law.

In OM PRAKASH V. STATE OF UTTAR PRADESH4 , offering bribe was not an offence

in 1948. Section 3 of the Criminal Law (Amendment) Act 1952, inserted section
165A in the Indian Penal Code 1860, declaring offering bribe as punishable. It was
held that accused could not be punished under section 165A for offering bribe in
1948.
3http://www.legalservicesindia.com
4AIR 1957All388. see also Pareed Lubha v . Nilambaran , AIR1967Ker. 155
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Interpretation of a provision of law does not create any new offence. the Supreme
court in LILY THOMAS V. UNION OF INDIA5 explained that the decision of apex
court in SARLA MUDGAL V. UNION OF INDIA6 holding that the second marriage of
a Hindu husband after conversion to Islam without having his first marriage
dissolved under law, would be invalid, the second marriage would be void in the
terms of the provisions of Section 494, IPC,1860 and the apostate husband would
be guilty of the offence under section 494,IPC,1860 did not lay down any new law.
It cannot thus be said that the second marriage by a convert male muslim has
been made offence only by judicial pronouncement. No new law having been
created , Article 20(1) would have no application.

(b) Law enhancing penalty subsequent to the commission of the

offence
Second part of clause (1) of article 20 prohibits the enhancement of punishment
or penalty subsequently. it provides that No person shall be subjected to a penalty
greater than which might have been inflicted under the law in force at the time of
the commission of the offence .

In KEDAR NATH V. STATE OF WEST BENGAL7 ,the Prevention of Corruption

Act,1947 provided punishment of imprisonment as well as fine for the offences
committed under the act. The accused, managing agents of a company committed
an offence in 1947. Subsequently in 1949, the Criminal Law (Special Courts)
Amendment Act 1949, amended the Prevention of Corruption Act. the amended
law enhanced the penalty for the offences committed under the act by an
additional fine to be equivalent to the amount of money found to have been
procured by the offender through the offence committed by him .IT was held that
the enhanced punishment by the amended law which came in force in
1949, could not be imposed on the accused for the offence committed in
1947because of prohibition contained in second part of article 20(1).
5AIR 2000SC 1650
6AIR 1995 SC1531
7AIR 1980SC 2147
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Article 20(1) does not prohibit the laying down, under an ex post facto law , any
manner , for the recovery of the government dues.

In STATE OF WEST BENGAL V. S.K. GHOSH8 , the accused , a government servant ,

committed embezzlement before August, 1944, for which offence, he was
suspended. subsequently, an ordinance dated august 23,1944 was issued
providing for the confiscation of the property of a person convicted for
embezzlement of government money, to set off the embezzled money. the
property of the accused was forfeited under the ordinance. the ordinance was
held valid as it did not impose a penalty, but merely provided a speedier remedy
for the recovery of the embezzled money.

(c) Beneficial ex-post facto laws

Article 20(1) prohibits the enhanced penalty or punishment. but it does not bar
any reduction in the punishment. thus ex post facto law, which only mollified the
rigor of the criminal law does not fall within prohibition of article 20(1).

In RATTAN LAL V. STATE OF PUNJAB,9 THE ACCUSED a boy of 16 years was

convicted for committing an offence of house trespass and outraging the modesty
of a girl aged 7 years. The Magistrate sentenced him for 6 months rigorous
punishment and also imposed fine. After the Judgement of Magistrate, the
Probation of Offenders Act, 1958, came into force. It provided that a person below
21 years of age should not ordinarily be sentenced to imprisonment. The Supreme
Court by a majority of 2 to 1 held that the rule of beneficial interpretation
required that ex-post facto law could be applied to reduce the punishment. So an
ex post facto law which is beneficial to the accused is not prohibited by Article 20
(1) .

the general rule is that all the statute must be interpreted as prospective in
operation. however, where retrospectively is expressly declared by the statute or
inferred as the necessary intendment from the language used therein and when
the provision is beneficial to the accused and operates to mollification of the
rigorous of the law, it is ruled that the statute would not be hit by article 20(1).
8 AIR1963 SC255
9AIR 1965 SC 444
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(d) Procedural Ex-post Facto Law

Clause 1 of article20 does not prohibit the trial of offences under the ex post
facto law. therefore a law enacted subsequent to the commission of the offence,
prescribing a new procedure , different from the ordinary procedure for the
prosecution or trial, is not hit by Article 20(1).

In TRANSMISSION CORPN. OF A.P. V. CH. PRABHAKAR,10 the supreme court

upheld the amendment to the Indian electricity act ,1910, providing for setting up
for a special tribunal to try summarily the offence under the Act as not violative of
article 20(1).

Under the American Constitution the protection is available even against the ex
post facto procedural laws. thus an trial under ex post facto law is barred under
American law.

(e) Imposition of Civil Liability retrospectively not barred

The immunity under art.20 (1) extends only against punishment by courts for a
criminal offence under an ex-post-facto law, but it does not cover the imposition
of civil liability retrospectively.

In HATHI SINGH MANUFACTURING CO. V. UNION OF INDIA11, an Act passed in

June, 1957, imposed on the employees closing their undertaking, the liability to
pay compensation to their employees since Nov. 28. 1956. failure to discharge the
liability was made punishable by the imprisionment. the supreme court held that
the liability imposed was a civil liability and since failure to dishacrge the civil
liability was not an offence, article 20(1) have no application.

It has been held that article 20(1) has no application to the cases of PREVENTIVE
DETENTION or where the security is demanded from press under the press law.
article 20(1) does not apply to disciplinary proceedings.

10AIR 2004 SC 3368

11 AIR 1960SC 923
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The Doctrine of ex-post-facto legislation however operates subject to certain

limitations,12 which may be explained, thus: (1) The courts do not review the
validity of Pre-constitution laws, under article 13(1) of the constitution because
the constitution itself does not have retrospective operation. In Keshava Madhava
Menon v. State of Bombay13 the supreme court held that article 13 (1) has no
retrospective effect but is wholly prospective in operation and that if the behavior
which was legally wrong at that moment , was done before the commencement of
the constitution, in contravention of the provision of any law, which after the
constitution became void with respect to the exercise of fundamental rights, the
inconsistent law is not upheld out retrospectively so as to make the act not an
offence. There is not fundamental right that an accused cannot be dealt with in
court if the offence has taken place before the commencement of the
constitution. (2) In Srinivas Ayyer v. Saraswati Ammal the petitioners who were to
be prosecuted for the offence of Bigamy had raised the question of the validity of
the Madras Hindu (Bigamy prevention and Divorce) Act, 1949 as offending articles
14, 15, and 25 of the Act. The Madras high court held that article 13(1) has no
retrospective effect to wholly prospective in operation. If the act which was an
offence on the day it was done before the commencement of the constitution in
contravention of any provision of any law, which after the constitution became
void with respect to the exercise of the Fundamental right, the inconsistent law is
not wiped out retrospectively so as to make the act net an offence. The reason for
this ruling is that if such a fiction were accepted, and a law passed later were to be
treated as a law in existence earlier, then the whole purpose of the protection
against ex- post-facto law would be frustrated, for a Legislature could then give a
retrospective operation to any law.

B. DOUBLE JEOPARDY

This clause provides:”no person shall be prosecuted and punished for the same
offence more than once.” The protection under the clause 2 article 20 is based
on the common law maxim ‘nemo debet bis vexari”, which means a man must
12http://shodhganga.inflibnet.ac.in/bitstream/10603/33548/9/09_chapter%203.pdf
13AIR 1951 SC 128
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not be put twice in peril for the same offence. Where a person has been
convicted for an Offence by a competent court, the conviction operates as a
bar to any further criminal proceeding against him for the same Offence. The
object is to avoid the harassment which must be caused to a person for
successive criminal proceedings where only one crime has been committed.

The protection contained in article 20(2) would be available only if the following
essential are complied with-

1. The person must be accused of an “offence”

The offence means any acts or omission made punishable by any way of law for
the time being in force. The word offence has to be taken in the sense in which it
is used in the general clauses act, 1897 as meaning, an act or omission made
punishable by any law for the time being in force.

2. The person must have been prosecuted before a court or judicial tribunal.

The term prosecution means initiation of any proceeding, criminal in nature,

before a court, or a judicial tribunal.

In MAQBOOL HUSSAIN V. STATE OF BOMBAY14 the appellant, a citizen of India,

brought from a foreign country some gold without making a declaration. The
Custom Authorities took action against him under section 167 of the Sea Custom
ACT 1878 and confiscated the gold. Subsequently, he was charged under section 8
of the Foreign Exchange Regulation Act1947 and prosecution started against him
under the said law. A constitution bench of Supreme Court held that the sea
customs authorities were not a court or a judicial tribunal and the adjuging of
confiscation under the sea customs act,1878 did not constitute a judgement or an
order of a court or judicial tribunal necessary for the purpose of supporting a plea
of double jeopardy. The proceeding taken before the sea customs authorities,
therefore did not amount to prosecution of the appellant nor the order of
confiscation constitute a punishment imposed by a court or a judicial tribunal. It
was held that the prosecution under the Foreign Exchange Regulation Act, 1947
was the first prosecution not barred by the article20(2).
14 AIR1953 SC 325
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In the case of KALAWATI V STATE OF HIMACHAL PRADESH15 a person accused of

committing murder was tried and acquitted. The State preferred an appeal against
the acquittal. The accused could not plead Article 20(2) against the State
preferring an appeal against the acquittal. Article 20(2) would not apply as there
was no punishment for the offence at the earlier prosecution: and an appeal
against an acquittal was in substance a continuation of the prosecution

3. The Person must have been punished after his prosecution before a court or a
judicial tribunal.

The protection against the double jeopardy contained in article 20(2) would be
available only when the accused has been not only prosecuted but also punished
after such prosecution. Both the prosecution and punishment must co-exist for
the operation of article 20(2). It must be noted that an appeal against an acquittal
is, in substance a continuance of the prosecution A prosecution starts at the court
of first instance and concludes at the final court of appeal.

Likewise, where a prosecution was a nullity and as a result the accused was
discharged, a fresh prosecution for the same offence would not be violative of
article 20(2).

In BAIJ NATH V. STATE OF BHOPAL16 the accused, a government servant, was

prosecuted under section 161of The Indian Penal Code,1860 and was punished. In
the High Court, the trial was quashed for want of proper sanction as required
under section 6 of the Prevention of Corruption Act ,1947. Subsequently the
accused was again prosecuted on getting sanction from the competent authority
for his prosecution. It was held that the earlier prosecution was void ab initio and
no prosecution at all. The prosecution started after obtaining the proper sanction
was held to be the first prosecution.

The U.S. Constitution which provides “nor shall any person be subject for the
15 AIR 1953 SC 131
16 AIR 1957 SC494
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same Offence to be twice put in jeopardy of life or limb, the protection is available
not only against a second punishment but even against the second trial for the
same Offence, irrespective of whether the accused was acquitted or convicted in
the first trial.

4.The person must be prosecuted for the second time before a Court
or a judicial tribunal
Article 20(2) would have no application where the person is prosecuted and
punished for the second time, but the subsequent proceedings is merely the
constitution of the previous proceeding, as is the case of an appeal against
acquittal or an appeal against conviction.

For instance, in SUBA SINGH V. DAVINDER KAUR,17 the accused was punished
under Section 304, Indian Penal Code, 1860. Wife of the deceased asking for
Compensation, filed a suit claiming damages for the death of her husband, and
decree of damages was passed in her favour. It was held that neither the action
for Civil damages was “prosecution” nor decree of damages was “punishment”
within the meaning of Article 20(2) and did not constitute double jeopardy.

5.The “Offence” must be the same in both the proceedings .

As pointed out above, the second prosecution must be same for the “same
Offence”. If the Offences are distinct, the bar of double jeopardy does not apply.

In LEO ROY FREY V. SUPERINTENDENT, DISTRICT JAIL,18 The petitioner was found
guilty of an Offence under Section 107(8), Sea Customs Act, 1878 and was
punished as provided thereunder. Soon thereafter prosecution for Criminal
conspiracy under Section 120-B IPC, was brought against him. The Court held that
the second prosecution was not barred since it was not for the same offence.
Conspiracy is a different offence from the crime that is the object of the
Conspiracy, because the conspiracy precedes the commission of the crime and is

17 AIR 2011 SC 3163.

18 AIR 1958 SC 119.
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complete before the crime is attempted or completed; equally the crime

attempted or completed does not require the element of conspiracy as one of its
ingredients.

Article 20(2) would have no application to a “continuing offence”.

Article 20(2) prohibits the imposition of punishment twice for the same offence. In
STATE OF HARYANA V. GHASEETA RAM,19 the respondent, while undergoing
sentence of life imprisonment, committed an offence under the prisons Act, 1894,
for which he was punished by the trial Court as well as by the Superintendent as
not permissible.

Motive for committing offence has been held to be not termed as ingredients of
the Offences to determine the issue. The plea of autrefois acquit is said to be not
proved unless it is shown that the judgment of acquittal in previous charge
necessarily involves an acquittal of the latter charge.likewise, in UNION OF
INDIA V. SUNIL KUMAR,20 it was observed that the Court-material
proceedings, held under the Army Act, 1950, dealt with the penal aspect, while
the proceedings under the C.C.S. (CCA) Rules, 1965, dealt with disciplinary aspect
of the misconduct and therefore, conviction under the former Act, of the
respondent, found guilty of defrauding the organization, followed by his dismissal
under the later Rules, would not attract Article 20(2).

Double Jeopardy and issue Estoppel

The plea of double jeopardy is to be distinguished from the rule of issue estoppel
in the Criminal trial. The rule of issue estoppel is that where an issue of fact has
been decided by a competent court on a former occasion and a finding has been
reached in favour of an accused, such a finding would constitute an estoppel or
res judicata against the prosecution, not as a bar to the trial and conviction of the
accused for a different or distinct offence but as barring the reception of evidence
to disturb that finding of fact when the accused is tried subsequently even at a
different trial. The rule is not the same as the plea of double jeopardy, because,
firstly, the rule does not introduce any variation in the CrPC, either in
19 AIR 1997 SC 1868.
20 AIR 2001 SC 1092.
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investigation, enquiry or trial and secondly, it does not prevent the trial of any
offence as does the rule of double jeopardy, but only precludes evidence being led
to prove a fact in issue as regard and a specific finding recorded at an earlier trial
before a competent court. The rule, thud relates only to the admissibility. The rule
depends upon well-known doctrines which control the re-litigation of issues which
are settled by prior litigation.

The rule of issue estoppel in a criminal trial has been accepted and applied in
India by the Supreme Court. Thus, in PRITAM SINGH V. STATE OF PUNJAB,21 the
accused made a statement leading to the recovery of a firearm which he was
alleged to have used against the Victims. He was prosecuted for possession of the
firearm and was acquitted, but the evidence of the possession of the fireman was
used in the trial of murder charge against the same accused. This was held to be
not permissible. The reasoning is that the acquittal in respect of the possession of
the firearm affected the admissibility of the same evidence in connection with the
murder case, because the firearm could not at the same time be possessed as well
as not possessed by the accused.

The court made it clear that the principle of issue estoppel was different from the
rule of double jeopardy incorporated in Article 20(2). To operate as a bar under
Article 20(2), the second prosecution and the consequential punishment
thereunder must be for the same offence, i.e. an offence whose ingredients are
the same.

C. SELF INCRIMINATION -ARTICLE 20 (3)

Clause 3 of Article 20 provides: “No person accused of any Offence shall be
compelled to be a witness against himself”. This clause is based on the maxim
tenetur prodere accussare seipsum, which means that “no man is bound to accuse
himself”. It is known as Miranda Principle.

Clause (3) of Article 20 follows the language of the fifth Amendment of the
American Constitute which lays down that “No person shall be compelled in any
criminal case to be witness against himself”. The Clause embodies the general
21 AIR 1956 SC 415.
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Principle of English and American jurisprudence, according to which no person

would be compelled to give testimony which might expose him to prosecution for
a crime.

The characteristic features of Common Law criminal jurisprudence are that an

accused must be presumed to be innocent till the contrary is proved; that it is the
duty of the prosecution to establish the guilt of the accused; and that the accused
need not make any admission or statement against him of his own free will.

The protection contained in Article 20(3) is available to every person. The term
“person” in Article 20(3) includes not only natural individuals but also companies
and unincorporated bodies. The protection is available only if the following
ingredients are present-

(i) It is a protection available to a person accused of an Offence;

(ii) It is a protection against compulsion to be a witness; and

(iii) It is a protection against such “compulsion” as resulting in his giving

evidence against himself.

Person accused of an Offence

The privilege under Clause (3) is confined only to the accused, i.e. a person
against whom a formal accusation relating to the commission of an Offence has
been leveled which in the normal course may result in prosecution. It is, however,
not necessary, to avail of the privilege, that actual trial or enquiry should have
commenced before the court or tribunal.

The words “accused of an Offence” indicate an accusation made in a criminal

prosecution before the Court or a judicial tribunal where a person is charged with
having committed an act which is punishable under the Indian Penal Code, 1860
or any special or local law.

In NARAYAN LAL V. M.P.MISTRY,22 the registrar of companies acting under Section

240 of the Companies Act, 1949 called upon the managing agents of the company

22 AIR 1961 SC 29.

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to give evidence and produce documents from their possession. It was held that
the proceedings did not partake the character of a Criminal prosecution and the
managing agents were not persons accused of any offence, therefore, Article 20(3)
would not apply.

In DELHI JUDICIAL SERVICE ASSOCIATION V. STATE OF GUJRAT,23 it has been held

that mere issue of notice or pendency of contempt proceedings do not attract
Article 20(3) as the contemners were not “accused of any offence”. A criminal
contempt is different from an ordinary offence. Since the contempt proceedings
are not in the nature of criminal proceeding for an offence, the pendency of
contempt proceedings cannot be regarded as criminal proceedings merely
because it may end in imposing punishment on the contemner. A contemner is
not in the position of an accused. Even if the contemner is found to be guilty of
contempt, the court, may accept apology and discharge the notice of contempt,
whereas tendering of apology is no defence to the trial of a Criminal Offence.

In NANDINI SATPATHY V. P.L. DANI,24 , the Supreme Court had to consider the
legal basis of the police practice of interrogating suspects in view of the
constitutional and legal safeguards available to a person against oppressive and
unjust police interrogations. In this case, Ms Satpathy, the accused, who was a
suspect and yet not an accused, was examined at the police station in connection
with investigation into the charges of corruption against her. On her refusal to
answer the questions put to her, she was charged with an offence under Section
179 IPC. It was argued that the refusal to answer police interrogations was
justified on ground of Article 20(3) of the Constitution and Section 161(2) CrPC.
The Supreme Court, speaking through Krishan Iyer J, took the view that the area
covered by Article 20(3) and Section 161(2) is substantially the same, and the
expression “any person supposed to be acquainted with the facts and
circumstances of the case” included an accused person who fills that role because
the police suppose him to have committed the crime and must, therefore, be
familiar with the facts. The Court then proceeds to say that the expression
“accused of an offence” no doubt includes a person formally brought into police

23 (1991) 4 SCC 406.

24 (1978)2 SCC 424.
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diary as an accused person but it also includes a suspect. Adverting to several of

its earlier decisions, the Court did not agree with the restrictive view” of the
expression “accused of an offence” taken therein and extended the application of
Article 20(3) to police interrogations. However, in case involving grave offences,
Krishna Iyer J, was not prepared to go against the settled view of the Supreme
Court.

Protection against compulsion to be a Witness

The protection is against compulsion “to be a witness”. In M.P. SHARMA V. SATISH
CHANDRA,25 the Supreme Court interpreted the expression “to be a witness” very
widely so as to include oral, documentary and testimonial evidence. The
prosecution under Article 20(3) covers not merely testimonial compulsion in a
Courtroom but also compelled testimony previously obtained-any compulsory
process for production of evidentiary document which are reasonably likely to
support the prosecution against him. The Court accepted the definition given in
the Indian Evidence Act that a person can be ‘a witness’ not merely by giving oral
evidence but also by producing documents or making intelligible gestures as in the
case of a dumb witness or the like. If this interpretation of the phrase “to be a
witness” adopted by the court in M.P. SHARMA’S case was to be followed; the
compulsory taking of finger impressions or specimen handwriting of an accused
would come within the mischief of Article 20((3). This broad interpretation, it was
thought, would certainly hamper the effective administration of Crime and
efficient administration of criminal justice.

The proposition laid down in M.P. Sharma’s case, that the protection of Article
20(3) extended to documentary evidence which the accused might be compelled
to produce, was narrowed down in STATE OF BOMBAY V. KATHI KALU OGHAD,26
The Court stated that the interpretation of the expression “to be a witness” given
in M.P. Sharma’s case was too broad and required a qualification. The Court
observed:

It is well established that Clause (3) of Article 20 is directed against self-

25 AIR 1954 SC 300.
26 AIR 1961 SC 1808.
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incrimination by the accused person. Self-incrimination must mean conveying

information based upon the personal knowledge of the person giving the
information and cannot include merely the mechanical process of producing
documents in Court which may throw a light on any of the points in the
Controversy, but which do not contain any statement of the accused based on his
personal knowledge. It follows that giving thumb impression or impression of foot
or palm or fingers or specimen of writings or exposing parts of the body by way of
identification are not covered by the expression “to be a witness” under Article
20(3). In these cases, the accused is not giving any personal testimony. They are
merely materials for comparison, in order to lend assurance to the Court that its
inference based on other pieces of evidence is reliable. Also such material is only a
step in aid for further investigation and the samples so obtained can never be
considered as conclusive proof for conviction.27

The Court distinguished “to be a witness” from “furnishing evidence”. “ to be a

witness”, the Court held, meant making of oral or written statements in or out of
Court by a person accused of any offence. It meant imparting knowledge in
respect of relevant facts by an oral statement or statement in writing made or
given in Court or otherwise. While, “ furnishing evidence” in its widest significance
included production of documents or giving materials which might be relevant at
a trial to determine the guilt or innocence of the accused.

Thus, Self-incrimination in the context of Article 20(3) only means conveying

information based upon personal knowledge of the person giving information.

In AMRIT SINGH V. STATE OF PUNJAB,28 it has, however, been recently held that
the accused has a right to give or it to give, specimen of hair for the purpose of
identification and that the provision of the Identification of Prisoners Act, 1920, do
not apply.

Testimony Compulsion- taking Voice Sample of Accused

In RITESH SINHA V. STATE OF U.P.,29 the appellant was accused of collecting

27 P.U.C.L. V. Union of India, AIR 2004 SC 456.
28 AIR 2007 SC 132.
29 AIR 2013 SC 1132.
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money from people on the pretext that he would get them recruited in the police
department. He was recruited to give his voice sample for verification of
conversation held between one Dhoom Singh and the appellant, recorded in the
mobile. Holding that voice sample by itself was innocuous; the Court held taking
voice sample of accused for investigation would not be violative of Article 20(3),
since it did not convey information within personal knowledge of the accused.

However the Court said that police investigation had affected bodily integrity or
personal dignity of the accused, it must have legal sanction. So said, the Court
ruled that the investigation Officer could not take physical samples, including
voice samples from the accused without authorization from the Magistrate.

Searches and Seizures

It has been held that the protection of Article 20(3) does not extend to searches
made in pursuance of a warrant issued under Section 96 of the Criminal
Procedure Code, 1898.

Again, in V.S. KUTTAN PILLAI V. RAMAKRISHANAN,30 the Supreme Court held that
search of the premises occupied by the accused without the accused being
compelled to be a party to such search would not violative of the constitutional
guarantee enshrined in Article 20(3).

Section 27 of Evidence Act, 1872 and Article 20(3)

Section 27 of the Evidence Act provides that when at a trial, evidence is led
to the effect that some fact was discovered in consequence of the information
given by the accused in custody, so much of the information as relates to the facts
discovered, may be proved irrespective of the fact whether that information
amounts to confession or not. It has been held the provisions of this Section are
not within the prohibition of Article 20(3), unless compulsion had been used in
obtaining the information.

In PARSHADI V. STATE OF U.P.,31 The accused while in police custody stated

that he killed the deceased with a dagger and had concealed the dagger and
30 AIR 1980 SC 185.
31 AIR 1957 SC 211.
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blood stained clothes of the deceased in a pit. He led the police to the pit from
where, the dagger and the clothes of the deceased were recovered. The Court
held that the statement of the accused leading to the recovery of the dagger and
the clothes of the deceased was admissible, and could not be held to be
compelled testimony within the meaning of Article 20(3).

Compulsion to give Evidence “against himself”

The protection under Article 20(3) is available only against the compulsion of
accused to give evidence “against himself”. But left to himself he may voluntarily
wave his privilege by entering into the witness-box or by giving evidence
voluntarily on request. Request implies no compulsion; therefore, evidence given
on request is admissible against the person giving it. 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. Compulsion means duress which
includes threatening, beating or imprisoning of the wife, parent or child of the
person. Thus where the accused makes a confession without any inducement,
threat or promise Article 20(3) does not apply.

In MOHD. DASTAGIR V. STATE OF MADRAS,32 the appellant had gone to the

bungalow of the Dy. Superintendent of police to offer him a bribe contained in a
closed envelope. The police Officer threw the envelope at the appellant who took
it up. Soon thereafter, he was asked by the police officer to produce the envelope
and he took out from his pocket some currency notes which were seized by the
police. The appellant pleaded that the currency notes seized by the police should
not be allowed to be produced as that would amount to the admission of
compelled evidence. The court held that clause (3) did not apply, firstly, because
no compulsion or duress was exercised against the accused and secondly, because
at the time the currency notes were seized he was not an accused.

Tape-recording Statements made by the accused

In YUSUFALI V. STATE OF MAHARASHTRA,33 a tape-recorded statement made by

the accused though made without knowledge of the accused but without force or
32 AIR 1960 SC 756.
33 AIR 1968 SC 147.
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oppression was held to be admissible in evidence.

Right to call a Lawyer- In Nandini Satpathi’s case, the court also laid down some
guidelines for the due observance of Article 20(3) by police authorities one of
which was that they must inform the accused that he has a right to call a lawyer
before answering to any of their questions.

Article 20(3) and NARCO Test, etc.

The issue of involuntary administration of certain scientific techniques, namely

nacro-analysis, polygraph examination and the Brain Electrical Activation Profile
(BEAP) test for the purpose of improving investigation efforts in Criminal Case, has
received considerable attention of the Supreme Court. Since it involves tensions
between the desirability of efficient investigation and the preservation of
individual liberties, the judicial task, it is said, required to examine the implications
of permitting the use of the impugned techniques in a variety of settings.

The right under Article 20(3) has taken great strides in SELVI V. STATE OF
KARNATAKA.34Relying upon the international developments in domestic and
international as well as our own developments under Article 21. The Court held
that involuntary administration of scientific tests such as nacro analysis, polygraph
examination and the BEAP for the purpose of improving investigation efforts in
Criminal cases violate Article 20(3). Concluding the long discussion Balakrishnan CJ
said:

In our considered opinion, the compulsory administration of the impugned

techniques violates the ‘right against self-incrimination’. This is because the
underlying rationale of the said right is to ensure reliability as well as
voluntariness of the statements that are admitted as evidence. This court has
recognized that the protective scope of Article 20(3) extends to the investigative
stage in criminal cases and when read with Section 161(2) of the code of Criminal
Procedure, 1973. It protects accused persons, suspects as well as witnesses who
are examined during investigation. The test results cannot be admitted in
evidence if they have been obtained through the use of compulsion. Article 20(3)

34 (2010) 7 SCC 263.

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protects an individual’s choice between speaking and remaining silent,

irrespective of whether the subsequent testimony proves to be inculpatory or
exculpatory. Article 20(3) aims to prevent the forcible ‘conveyance of personal
knowledge that is relevant to the facts in issue’. The results obtained from each of
the impugned tests bear a ‘testimonial’ character and they cannot be categories
as material evidence.

Article 20(3), however, does not bar voluntary administrated tests. Their results
are admissible in evidence provided they have been conducted strictly according
to the guidelines laid down by the National Human Rights Commission. The
exception in favour of voluntary tests, however, leaves scope for investigating
authorities to obtain evidence illegally in violative of Article 20(3).

Scope of the protection contained in Article 20(3)

The protection under Article 20(3) is confined to an accused in a criminal

proceeding and does not apply to witnesses or to civil proceedings or proceeding
other than criminal. In America, the privilege against self-incrimination is not
confined to accused only but it extends to witness also. Same is the position
under the English Law.

STATE OF MAHARASHTRA V. KAMAL AHMED MOHD. VAKIL ANSARI,35 the Court

said, the protection under Article 20(3) is not available to an accused tried for his
involvement in bomb blast when he has made confession of his culpability in
other case involving bomb blast

35 AIR 2013 SC 1441.

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BIBLIOGRAPHY
 P.M. Bakshi, The Constitution of India, 9th edition, Universal law publishing Co.
Pvt. Ltd., Delhi, 2009

 Narender Kumar, Constitutional law of India,9th edition, Allahabad law agency

(Delhi),2015

WEBLIOGRAPHY
 https://www.lawctopus.com/

 http://www.legalservicesindia.com/article/1633/Double-Jeopardy-in- India.html

 http://www.elections.in/political-corner/article-20-of-the-indian-constitution/

 http://shodhganga.inflibnet.ac.in/bitstream/10603/33548/9/09_chapter%203.pdf

BARE ACT
 THE CONSTITUTION OF INDIA

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