(a) Ex Post Facto Law: Clause (1) of Article 20.
(b) Double Jeopardy: Clause (2) of Article 20.
(c) Prohibition against self - incrimination : Clause (3) of Article 20.
Protection against Ex post facto law - Clause (1) of Article 20 of the Indian Constitution says 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.
Article 20(1) imposes a limitation on the law-making power of the Legislature. Ordinarily, a Legislature can make prospective as well as retrospective laws, but clause (1) of Article 20 prohibits the Legislature to make retrospective criminal laws. However, it does not prohibit imposition of civil liability retrospectively, i.e., with effect from a past date. So, a tax can be imposed retrospectively.
An ex post facto law is a law which imposes penalties retrospectively, i.e., on acts already done and increases the penalty for such acts. The American Constitution also contains a similar provision prohibiting ex post facto laws both by the Central and the State Legislatures.
No conviction for an offence except for violation of law in force at the time of the commission of the act charged. - The first part of clause (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." This means that if an act is not an offence at the date of its commission it cannot be an offence at the date subsequent to its commission. In Pareed Lubha v. Nilambaram, it was 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. The protection afforded by clause (1) is available only against conviction or sentence for a criminal offence under ex post facto law and against the trial. The Guaratee in American Constitution is thus wider than under the Indian Constitution. The protection of clause (1) of Article 20 cannot be claimed in case of preventive detention. or demanding security from a person. The Prohibition is just for conviction and sentence only and not for prosecution and trial under a retrospective law. So, a trial under a procedure different from what it was at the time of the commission of the offence or by a special court constituted after the commission of the offence cannot ipso facto be held unconstitutional.
In Mohan Lal v. State of Rajasthan, the accused, a night chowkidar was convicted for the offences under Sections 18 of NDPS Act and Sections 457 and 388 of I.P.C. for committing theft of 10 Kgs. 420 gms opium and some other articles from Malkhana on 13.11.1985. The accused's contention, inter alia, in appeal was that the incident had occurred on 12th/13th November, 1985 and the NDPS Act came into force only on 14-11-1985 and therefore the offence was punishable under Opium Act, 1978 and not under Section 18 of NDPS Act. The High Court and Supreme Court both dismissed the appeal. The Supreme court held him guilty under Section 18 of NDPS Act because he was in possession of the banned substance on the date of enforcement of the Act. He had both the 'corpus' and 'animus' which were necessary for possession under the law. Article 20 (1) was held to be not applicable because the actus of possession was not punishable with retrospective effect. The punishment was for possession of the prohibited article on or after a particular date on the enactment of the statute.
Penalty greater than that at the time of the commission of the offence - The second part of clause (1) protects a person from 'a penalty greater than that which he might have been subjected to at the time of the commission of the offence'. In Kedar Nath v. State of West Bengal, the accused committed an offence in 1947, which under the Act then in force was punishable by imprisonment or fine or both. The Act was amended in 1949 which enhanced the punishment for the same offence by an additional fine equivalent to the amount of money procured by the accused through the offence. The Supreme Court held that the enhance punishment could not be applicable to the act committed by the accused in 1947 and hence set aside the additional fine imposed by the amended Act.
In Budh Singh v. State of Haryana, the petitioner was convicted under Section 15 of the NDPS Act, 1985 and sentenced to undergo imprisonment for a period of 10 years and also a fine of Rs. 1,00,000/- and in default to suffer further RI for a period of three years. After undergoing custody for a period of more than seven years, the petitioner contended that taking into account the remission which had been due to him under different Government notifications/orders issued from time to time, he would have been entitled to be released from prison but by virtue of Section 32-A of NDPS Act the benefit was denied to him. He challenged constitutional validity of Section 32-A of the NDPS Act for violation of Fundamental Rights under Article 14, 20(1) and 21 of the Constitution. The Court referred to Dadu v. State of Maharashtra wherein the Court held that Section 432 and 433 of Cr.P.C were not violative of Article 14 of the Constitution and definition could not be held to be violative of right to life as it had not been taken away except according to procedure established by law. The section could not be said to encroach upon the personal liberty of the convict tried fairly and sentence under the Act. Section 32 - A was hel not to be violative of Article 20 (1) as it had obliterated the benefit of remission to a convict under NDPS Act. Since the remission did not in any way touch or affect the penalty/sentence imposed by a Court, we did not see how the exclusion of benefit of remission could be understood to have the effect of enlarging the period of incarceration of an accused xoncixted under the NDPS Act i.e., to undergo a longer period of sentence than contemplated at the time of commission of the offence.
The appellant was held guilty of the offences under Section 7 and 12 of Prevention of Courruption Act, 1988 and sentenced to imprisonment of two years. The incident was of the year 1995 and the litigation had been pending for last 20 years. The appellant was quite old suffering from various ailments and had also lost his job. Therefore, his sentence was reduced to one year. Since at the relevant time of committing the offence, theminimus punishment prescribed under Section 7 and 3 was six months and 1 year respectively, which could extend to 5 years and 7 years respectively, the Court held that it could reduce the sentence as theamendment w.e.f. 16.1.2014 would enhance the punishment would not apply to the appellant's case in view of Article 20 of the Constitution.
Beneficial provisions - But the accused can take advantage of the beneficial provisions of the ex post facto law. The rule of beneficial construction requires that ex post facto law should be applied to mitigate the rigorous (reducing the sentence) of the previous law of the same subject. Such a law in not affected by Article 20(1). The principle is based both on sound reason and common sense. In T.Baral v. Henry An Hoe, a complaint was lodged against the responent under Section 16(1)(a) on August 16, 1975 for having committed an offence punishable under Section 16(1)(a) read with Section 7 of the Prevention of Food Adulteration Act as amended by the Amending Act of 1973. On the date of the commission of the alleged offence, i.e. on August 16, 1975, the law in force in the State of West Bengal was the Amendment Act which provided that such an offence would be punishable with imprisonment for life. On April 1, 1976 enacted Prevention of Food Adulteration (Amendment) Act, 1976 which redulce the maximum punishment of life imprisonment as provided by the West Bengal Amendment Act to 3 years imprisonment. It was held that the accused could take advantage of the beneficial provision of the Central Amendment Act and thus he had the benefit of the reduced punishment. In Ratanlal v. State of Punjab, a boy of 16 years of age was convicted for committing an offence of house-trespass and outraging the modesty of a girl aged 7 years. The Magistrate sentence him for 6 months' rigorous imprisonment and also imposed fine. After the judgment 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 clause (1) of Article 20.
){kind=link}
0 Comments