Describe the protection in respect of conviction for an offence as provided in Constitution. Compare the same with the analogous provisions in Criminal Law.

Question: Describe the protection in respect of conviction for an offence as provided in the Constitution. Compare the same with the analogous provisions in Criminal Law. [MPJS 2011, 2019]

Find the answer to the mains question only on Legal Bites. [Describe the protection in respect of conviction for an offence as provided in the Constitution. Compare the same with the analogous provisions in Criminal Law.

Answer

Article 20 of the Indian Constitution provides for protection in respect of conviction of offences. In other words, it lays down certain safeguards to the person accused of crimes as stated below:

• Ex post facto law [Art. 20(1)];
• Double Jeopardy [Art. 20(2)];
• Self-incrimination [Art. 20(3)]

Ex Post Facto Law (Art. 20(1)

Article 20(1) of the Indian Constitution prohibits Ex Post Facto laws which, imposes penalties retrospectively. It provides that No person shall be convicted of any offence except for 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. The essential points on ex post facto laws are thus:

1. A law that declared some act or omission as an offence for the first time after the completion of that act or omission.
2. A law that enhances the punishment or penalty for an offence subsequent to the commission of that offence.

Double Jeopardy [Article 20(2)]

Article 20(2) states that no person shall be prosecuted and punished for the same offence more than once. The principle of ‘double jeopardy’ means that a person who has been tried and convicted of a criminal offence once, can’t be tried or convicted for the same offence again. The essential feature of the provision includes:

• The conviction must be for the same offence.
• The conviction must be after a complete and fair trial.

The analogous provision in criminal law as to constitutional rights in respect of conviction of an offence is mentioned under Cr.P.C Section 300 of the Code of Criminal Procedure, 1973. The section specifically talks about Double Jeopardy and abounds with two essential legal principles called ‘autrefois convict’ and ‘autrefois acquit’. It means that the provision puts a bar on the trial of a charge against a person who has already been charged for the same offence and either has been convicted or acquitted. Similar provisions as of article 20 of the constitution are given under Clause 1 and 2 of Section 300, CrPC. They are:

Cl. 1: This clause implies that a person should not be tried for the same offence twice if he has already been tried for that offence.

Cl. 2: The clause provides that where a person is convicted or acquitted of an offence and a distinct charge could be made out against such person but was actually not made in the previous trial, he cannot be prosecuted for the same.

Self Incrimination [Art. 20(3)]

Article 20(3) of the Indian Constitution prohibit self-incrimination. It says that no person accused of any offence shall be compelled to be a witness against himself. The provision is based on the common law maxim ‘nemo tenetur prodere accussare seipsum’, which means that no man is bound to accuse himself. The Essential Ingredients of the provisions are:

• The person seeking protection under the clause must be accused of an offence.
• The protection is against compulsion to be a witness.
• The compulsion relates to giving evidence against himself.

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