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Article 20: by ATRISHEKHAR - Coggle Diagram

- - - - Assume that a man, Bhairav Surve, practising black magic in Dhamangaon village of Maharashtra, murders a child of his locality on 20th December 2012. Later, in December 2013, the legislature of Maharashtra passes the Maharashtra Prevention and Eradication of Human Sacrifice and other Inhuman, Evil and Aghori Practices and Black Magic Act, 2013 and by virtue of provision against Ex post facto law, Bhairav Surve can’t be prosecuted and charged under the mentioned Act as the commission of offence dates back to when the act didn’t exist.
        
        The Landmark judgement governing this doctrine came in the year 1953, in case of Kedar Nath v. State of West Bengal. In this case, the Hon’ble Supreme Court of India observed that, whenever an act is declared as a criminal offence and/or provides penalty for same by the legislature, it is always prospective in nature and can’t be implemented retrospectively to uphold what is being said under Article 20 (1).
        
        Dealing with a similar situation, in the case of Mohan Lal v. State of Rajasthan (AIR 2015 SC 2098) which involved Narcotics, Drugs and Psychotropic Substances Act, the court opined that, only conviction and/or punishments under an ex post facto law is prohibited under Article 20 and not the trial or prosecution itself.
        
        However, an exception also exists to the restriction under this provision. In the case of Rattan Lal v. the State of Punjab, the Hon’ble Supreme Court allowed for such retrospective implementation of Criminal Laws, where the issue pertinent is, reduction of punishment in the said offence.
    - - In the 2014 ruling in the Subramanian Swamy vs Union of India case, the Supreme Court had held that “Section 6- A(1), which requires approval of the Central Government to conduct any inquiry or investigation into any offence alleged to have been committed under the Prevention of Corruption Act,1988 , is invalid and violative of Article 14 of the Constitution”.
      - The court added that Article 20(1) of the Constitution has no applicability to the provision’s validity.
      - The Supreme Court held that its 2014 judgement holding as invalid Section 6A(1) of the Delhi Special Police Establishment Act, 1946, which required the Central Bureau of Investigation (CBI) to take prior sanction to register cases against officers of the rank of joint secretary and above, will have retrospective effect.
  - - - In the case of Venkataraman v. Union of India, the Supreme Court of India established that this provision deals exclusively with Judicial punishments and provides that no person is prosecuted twice by the judicial authorities.
        
        The most crucial landmark judgement came in case of Maqbool Hussain v. State of Bombay, where the person accused was possessing some amount of gold, which was against lex loci at the time and gold was confiscated by the customs authority. And, later when the person was prosecuted before a criminal court, the court was confronted with the question whether this amounts to Double Jeopardy.
        
        SC held that Departmental Proceedings are independent of trial by a judicial court or tribunal.
        
        However, the prosecution may happen if the facts are distinct in subsequent proceedings. Same was established by the Supreme Court of India in case of A.A. Mulla v. State of Maharashtra
        
        The defence from prosecution for the second time has also been embodied in Section 300 (1) of CrPC which says that someone who had been convicted/prosecuted by a competent court for some offence will not be liable to be prosecuted again till the previous conviction/acquittal remains in force.
    - - Under the British and American 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’ limits the scope of the protection under clause (1) of Article 20.
    - - The person must be accused of an ‘offence’.
      - The proceeding or the prosecution must have taken place before a “court” or “judicial tribunal”.
      - The person must have been ‘prosecuted and punished’ in the previous proceeding.
      - The ‘offence’ must be the same for which he was prosecuted and punished in the previous proceedings.
  - - - In Kathi Kalu’s case, it was held that it must be necessarily shown that the witness was compelled to make a statement likely to incriminate him. Compulsion is an essential ingredient but if a person makes a confession without any inducement, threat or promise Article 20(3) does not apply.
        
        In Amrit Singh v. State of Punjab, the accused had charges of rape and murder of an eight year old girl. When the body of the deceased was discovered, some strands of hair were found in the closed fist of the child. The Police wanted to analyse the hair of the accused, but the accused refused to give the sample. The court found the accused to be protected against self-incrimination, so he had the right to refuse to give hair sample. But if the right against self-incrimination is considered in such a broad manner, then it might lead to misuse of this right by the accused.
    - - Compulsory production of material objects
      - Compulsion to give thumb impression, specimen signature, blood specimens and
      - Compulsory exhibition of the body
    - - Joint trials: A joint trial refers to the trial of more than one person for the same offence. The Act states that in a joint trial, if a confession made by one of the accused which also affects other accused is proven, it will be treated as a confession against both. The Bill adds an explanation to this provision. It states that a trial of multiple persons, where an accused has absconded or has not responded to an arrest warrant, will be treated as a joint trial.
    - - Supreme Court in the case of Selvi v. State of Karnataka, the apex court rejected High Court’s reliance on the utility, reliability and validity of narco analysis test and other such tests as methods of criminal investigation.The Court stated that narco-analysis test is a cruel and inhuman treatment which violated the right to privacy of an individual. That courts cannot permit administration of narco-analysis test against the will of the individual except in cases where it is necessary under public interest.
        
        In Kharak Singh v. State of Uttar Pradesh, the apex court held that Right to Privacy is not guaranteed under the Constitution. The courts have allowed DNA tests on certain occasions to be used in an investigation for producing evidence.
        
        In the case of Kanchan Bedi v. Gurpreet Singh Bedi, the question arose on the parentage of the infant, and the mother filed an application for conducting DNA test, to which the father opposed arguing that his rights would be violated. The Court held that where the parentage of a child is in question, directing a person to undergo a DNA Test does not amount to a violation of fundamental rights. The Court relied on the judgment given in Geeta Saha v. NCT of Delhi, where the Division Bench ordered a DNA Test to be conducted on the foetus of the rape victim.
    - - Special CBI Judge had granted Central Bureau of Investigation(CBI) custody of Deputy CM on the ground that he ‘failed to provide satisfactory answers.’
        The court had rejected the argument that it was a violation of right against self-incrimination.