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PROTECTION IN RESPECT OF CONVICTION FOR OFFENCES

INTRODUCTION

Let us imagine a situation in which a person is again arrested for a crime for which he was already punished or is punished for a crime or an offence which was not declared as an offence or a crime during his commitment of such act. The thought of it gives makes us think that it is against the idea of democracy because democracy means or permits us to do things or act in a way which is not prohibited by law, it nowhere states that commitment to it certain act is declared as an offence in future will make a person liable to get arrested, or it never says that a person can be punished more than once for an offence. Law has given ample protection to the victims, but since everyone is equal before the law it protects convicts too for the offences they have committed. We should remember the fact if convicts are punished more than once for an offence or if someone is arrested for an act which at their time of commitment was not a crime or offence then it will be an injustice done to the person. this brings us to the fact that injustice is a very neutral word, it can be also used for victims as well as for convicts. But are we as citizens aware of these laws? In the growing world where we just curse the convicts and post plenty of thoughts and words against them on social media, we should attempt to post and create awareness about the protection and rights of convicts too, because this will save someone from being harassed or punished again, or sometimes would save someone from even imprisoned.

QUESTIONS RAISED

  • Can a person be punished again for the same offence?
  • What is ex post facto law?
  • Is double jeopardy and the issue of estoppel the same?

CONTENT

When we speak about the rights and protection of anyone, be it a victim or a convict we need to know under which article are those rights and protection given, so that we can get in-depth information about that protection. Article 20 of the Indian Constitution protects protection in respect of conviction for offences.

The legal terms used to describe the above-mentioned safeguards are –

  • Ex post facto law
  • Double jeopardy [1]

The term ex post facto law is described in Article 20(1) of Our Indian Constitution. It states that nobody should be convicted for any crime or offence, except if they violate any law which is in force during their commission of such act which according to law at that time is considered an offence[2]. This also states the maximum penalty that can be charged. It says that the penalty should not be greater than what might have been inflicted under the law in force when such offence is committed. [3]

We all are aware of the fact that the legislature has the power to make prospective and retrospective laws but this clause (1) of 20 prohibits it from making retrospective criminal laws. But there is no prohibition on the legislature to impose civil liabilities retrospectively. This means imposition of tax can be done retrospectively. [4]

Beneficial Provision – Ex post facto law that is helpful for the accused has no prohibition by clause (1) of Article 20. There are possibilities of accused taking advantage of the beneficial provisions given in ex post facto law. The rule says that ex post facto law should be applied for reducing the sentence of previous law on a similar subject. This rule is about beneficial constructions for the accused. [5]

 Essentials of the law of double jeopardy are-

  • The person must be accused of an offence. now there is a particular definition of the word offence in law, which states or means that any act which is punishable by law for that time or during the time being in force is known as an offence.
  • It is mandatory for the proceedings to be done in court or it can also be done before a judicial tribunal.
  • It is also important and mandatory for the accused or the person to have been prosecuted and punished previously.
  • It should be the same offence for which he was prosecuted and punished earlier. [6]

Since we have discussed a lot about double jeopardy, let us know to get a brief description of the issue estoppel. There is a difference between the principle of issue estoppel and double jeopardy. Issue estoppel in simple language is called ‘cause of action estoppel’. This is applied in cases where the facts that were tried by the court were in favor of the accused, which would operate as what we also call res judicata against any crime or offence.

We have heard a lot about a witness being there for any crime that has taken place, and we have generally seen that the words of a witness can turn the case for or against the accused. But have we ever heard about a person being a witness against himself? Can the law or the authorities force a person to be a witness against himself? the answer is no. It is prohibited by the law to force a person to be a witness against himself, this in legal terms is known as ‘Prohibition against self -incrimination’. Article 20(3) of the Indian constitution prohibits a person from being forced or compelled to be a witness against himself. The accused is to be assumed to be innocent until and unless his crime is proven. the duty of proving the offence of the accused is on the prosecution. There is no need for the accused to make any statement against himself or to admit anything against his own will. So there are cases narcoanalysis or say or say polygraphy or brain finger test printing tests are done by the law enforcing authorities to know the truth but this has to be done with the consent of the accused, if the accused denies any such test then the nobody can force him to do so, or to be precise no test should be done on him. It is to be noted that a request cannot be taken as a compulsion. Law has clearly defined the meaning of the word compulsion. It states that if the accused is threatened, beaten, or tortured to give state or if the same is done to his family members then it can be taken as a compulsion. But if the accused state himself without any such threat or force then it cannot be taken as compulsion and hence in a request the protection of article 20(3) cannot be brought into action[7].

CASE LAWS

In the case of Maqbool Husain v. State of Bombay, the person or the appellant brought some gold into India. He did not declare that he had brought gold with him to the customs authorities at the airport. The customs authorities confiscated the gold under Sea Customs Act. He was later charged later on charged for having committed an offence under the Foreign Exchange Regulation Act. the appellant contended that the second prosecution violated Article 20(2) as it was for the same offence i.e for importing gold in contravention for which was already prosecuted and punished as his gold was confiscated by the customs authority. The court held that sea customs were not a court or judicial tribunal and adjudging of confiscation under the sea customs act did not constitute a judgement character necessary to take the plea of double jeopardy. Hence the prosecution under the FER act was not barred. [8]

In A.A Mulla v. State of Maharashtra the appellants were charged under section 409, IPC and section 5 of the preventive corruption act for making false panchnama disclosing the recovery of 90 gold biscuits although according to the prosecution case the appellants had recovered 99kg gold. They were tried for retaining 9kg biscuits before a special judge but appellants were acquitted on the ground that the prosecution had failed to prove misappropriation. The appellants were again tried under the customs act and foreign exchange regulation act. the second trial was held not barred as not only the ingredients of the offence of the two trial were different but the factual situation in the first and second trial were also different. [9]

Conclusion

In this blog, we have aimed to make people aware of the rights of convicts, so that injustice is never served to anyone. Convicts can be a victim too if they are punished more than once for the same offence or crime. The law enforcing authorities should be impartial while treating a convict, and should him aware of his rights to protect themselves. These laws are for the protection of a convicted person but they should not be manipulated and used for protecting the person from the punishment of his crime.

Author(s) Name: Sagar Doshi (Amity Law School, Kolkata)

REFERENCES

1 J.N Pandey, Constitutional law Of India (57th edition)

2 M.P Jain, Indian Constitutional law

3 J.N Pandey, Constitutional law of India (57th edition)

4 V.N Shukla, Constitution of India

5 J.N Pandey, Constitutional law of India (57th edition)

6 M.P Jain, Indian Constitutional law

7 J.N Pandey, Constitutional Law of India, (57th edition)

8 J. Pandey, Constitutional Law of India (57th edition)

9 M.P Jain, Indian Constitutional law