Article 20

Protection in respect of conviction for

offences.
--

(1) 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.
(2) No person shall be prosecuted and
punished for the same offence more
than once.
(3) No person accused of any offence shall
be compelled to be a witness against
himself.

SYNOPSIS
1. Ex post facto 346
laws-meaning
2. Ex post facto 346
laws-clause (1)
3. Ex-post facto 348
laws and the
US Constitution
4. Ex post facto 349
rule-
applicability to
procedural
laws
5. Article 20 and 350
U.N. Charter
6. Enhanced 350
punishment
prohibited
7. Civil liability not 351
affected
8. Law in force- 351
meaning
9. Double 351
jeopardy
10. Other statutory 352
provisions
11. Same offence 352
12. Double 353
jeopardy and
issue estoppel
13. Lack of 354
jurisdiction-
effect of
14. Proceedings 354
before
departmental
authorities
15. Clause (3)-self- 355
incrimination
16. Clause (3)- 355
three
requirements
17. Compulsion- 356
essential
requirements
18. Tape recorded 357
statements
19. To be a 358
witness-
meaning of
20. Search and 358
seizure
21. Accused of an 358
offence-
meaning of
22. Anti-terrorism 359
enactments-
special
provisions
23. Illustrative 360
cases
24. Article 20(3) 361
and Sec.161
Cr.P.C
25. Protection even 361
before trial
26. Self- 361
incrimination-
meaning of
 COMMENTS
This Article consists of three clauses. Clause (1)
deals with ex post facto laws, clause (2) with the
rule against double jeopardy and the third clause
with the prohibition against self-incrimination.
These clauses are now dealt with in seriatim.

Ex post facto laws-meaning

The best definition of an ex-post facto law is that
by Chief Justice Marshall: "One which renders an
act punishable in a manner in which it was not
punishable when it was committed".1Article
20(1) amplifies this view and makes it more
comprehensive.

Ex post facto laws-clause (1)

This clause prohibits ex post facto laws although
this expression has not been used therein. A
sovereign legislature has the power to legislate
retrospectively but this clause prohibits the
legislature from creating an offence for an act
which at the time of commission was not an
offence or the imposition of a penalty greater
than that which was provided under the law. This
clause is designed to prevent a person from
being punished for an act or omission which was
considered innocent when done.2Section 304-B
of the Indian Penal Code was inserted with effect
from 19-11-1986 creating a separate offence of
dowry death which was punishable with minimum
sentence of seven years imprisonment. Dowry
deaths caused prior to this date will not attract
the provisions of Section 304-B.3
The Prevention of Corruption Act, 1947 was
amended whereby possession of assets
disproportionate to known sources of income
made it obligatory on the court to presume that
the public servant was guilty of criminal
misconduct unless he could satisfactorily account
for the assets. The Supreme Court rejected the
plea that this provision violated Article 20(1).
The amended portion of the Act did not have any
retrospective operation merely because part of
the requirements related to a period prior to
passing of the amendment.4 The mere
possession of disproportionate assets was made
an offence under the Prevention of Corruption
Act with effect from 18-12-1964. When there was
no evidence that the accused was in possession
of assets after this date, he would be entitled to
the protection of Article 20(1).5 Prosecution of an
accused for an offence under Section 376, IPC
on a radically enlarged meaning given to "rape"
under Section 375 of the Indian Penal Code may
violate the constitutional guarantee under Article
20(1).6
This clause is based on the ex post facto laws of
the American Constitution. The difference
between Article 20(1) and the corresponding
provisions of the American Constitution was
pointed out by the Supreme Court which also
held that ex post facto laws are highly inequitable
and unjust.7Section 11-AC of Central Excise Act,
1944 impose penalty. This section was held to
have prospective operation and could not affect
past transactions. It could not be levied
retrospectively.8 Samples of adulterated foods
were taken in March 1988. But the accused was
prosecuted in terms of Rule 44A of the relevant
Food Adulteration Rules which came into force
on 6-4-2000. Rule 44A created an offence with
regard to the sale of certain products. Since this
rule came into force on 6-4-2000, it could not be
applied to samples collected 12 years earlier.9
Section 24 of the Bombay Rents Hotel and
Lodging House Rates Control Act, 1947 required
the landlord to ensure that essential supplies to
tenants were not withheld or cut off. The section,
on a particular interpretation, was held to attract
Article 20(1).10 While a legislature can legislate
retrospectively, it is not normally permissible to
create an offence retrospectively. Consequently,
the liability to pay interest was in the nature of a
quasi punishment and this could not be done with
retrospective effect.11 It is submitted that the
word "normally" is inappropriate. Offences cannot
be created retrospectively in view of categorical
bar under Article 20(1).
Ex-post factolaws and the US Constitution
Section 9 of Article I of the U.S. Constitution
states: "No Bill of Attainder or ex-post facto law
shall be passed." Section 10 of Article I, inter alia,
states: "No State shall pass any Bill of Attainder,
ex-post facto law .........."].12 The import of this
constitutional guarantee was explained two
centuries ago by the US Supreme Court in
Calder v. Bull ,13 which still holds the field, in the
following words: (L Ed. p. 650)
 (1) every law that makes an action done
before the passing of the law; and which
was innocent when done, criminal; and
punishes such action;
(2) every law that aggravates a crime, or
makes it greater than it was, when
committed;
(3) every law that changes the punishment,
and inflicts a greater punishment, than the
law annexed to the crime, when
committed;
(4) every law that alters the legal rules of
evidence, and receives less, or different,
testimony, than the law required at the time
of the commission of the offence, in order
to convict the offender.
The Supreme Court of India summarised the
interpretation placed on this constitutional
guarantee by the US Supreme Court as under:

(1) statute which punishes as a crime a

previous act which was innocent when
committed violates constitutional
guarantee.14
(2) Legislation which aggravates the degree of
the crime resulting from an act committed
prior to its passage violates the
constitutional prohibition.15
(3) Law which imposes additional punishment
to that prescribed when a criminal act was
committed is ex-post facto.16 The key
question is whether the new law makes it
possible for the accused to receive a
greater punishment, even though it is
possible for him to receive the same
punishment under the new law, as could
have been imposed under the prior law.
(4) Legislation which is in relation to that
offence or its consequences alters the
situation of a party to his disadvantage or
which eliminates, after the date of a
criminal act, a defence available to the
accused person at the time the act was
committed violates constitutional
guarantee.17
(5) A law which alters the legal rules of
evidence so as to require less proof than
the law required at the time of the
commission of an offence, in order to
 convict the accused, can amount to an ex-
post facto law within the constitutional
guarantee.18
(6) Constitutional prohibition does not apply to
laws bringing about changes in procedure
which do not alter substantial rights, even
though they might in some way operate to
a person's disadvantage. It does not give
defendants a vested right in the remedies
and methods of procedure employed in
trials for crimes, provided that any statutory
procedural change does not deprive the
accused of a substantial right or immunity
possessed at the time of the Commission
of the offences charged.19
(7) A change in law that alters a substantial
right can be ex-post facto even if the
statute takes a seemingly procedural
form.20
The above views have also been stated in the
undernoted reference works.21

Ex post facto rule- applicability to procedural

laws
A particular act was an offence but the
concerned statute was repealed. The repealing
Act was repealed by another enactment which
revived the initial statute. Therefore, there could
be no objection in reviving the procedure which
was in force at the time when the offence was
committed.22 The ex-post facto rule is also
enshrined in Article 7 of the European
Convention for the protection of human rights
and fundamental freedoms. The Supreme Court
has also set out other conventions/declarations
which have recognised this rule.23
What is prohibited is only conviction or sentence
under ex post facto laws and not the trial thereof.
No person has a fundamental right to trial by a
particular procedure or by a particular court
except by way of constitutional objection on
grounds of discrimination or violation of any other
fundamental rights.24

Article 20 and U.N. Charter

The minority decision of Khanna J. in the
infamous A.D.M. Jabalpur case25 pointed out that
if two constructions of municipal law are possible,
the courts should lean in favour of adopting such
a construction as would make the provisions of
the municipal law to be in harmony with
international law or treaty obligations. By the
same "analogy", Article 20 may have to be
interpreted in conformity with the U.N. Charter
and Conventions.26

Enhanced punishment prohibited

The second part of Article 20(1) prohibits
imposition of a penalty greater than that which
might have been inflicted under the law in force
at the time of the commission of the offence.
Thus, where the offence was committed in 1947
but the punishment was subsequently enhanced,
it was held that the enhanced punishment would
not apply.27 Where the earlier law provided for
unlimited amount of fine but a subsequent
amendment provides for a minimum amount of
fine to be imposed,28 or where the new section
only fixes the maximum which is not greater than
the penalty that might have been levied under the
former section,29 the bar under Article 20(1)
would not apply. Section 433-A of the Criminal
Procedure Code is not violative of Article 20(1)
on the ground that it enhances punishment
retrospectively.30
But provision for forfeiture under the Criminal
Law Amendment Ordinance, 1944 was really a
speedier method of recovering Government
money or property that had been embezzled as
compared to a suit. Such forfeiture has nothing to
do with infliction of any penalty for any offence.31
Similarly, levy of enhanced charges for
unauthorised use of canal water under the Pepsu
Canal Rules is not a penalty and Article 20(1)
does not apply.32
A person aged 16 years was sentenced to
imprisonment of six months and when the matter
was pending before the High Court on appeal,
the Probation of Offenders Act, 1958 was
passed. The Supreme Court held that the
appellate court could apply the new provision.
Thus, where there is reduction of sentence or
some benefit given to the accused, the rule of ex
post facto laws will not apply.33

Civil liability not affected

Employers were liable to pay compensation to
their employees from November 1956 on closure
of an undertaking. This liability was imposed by
an Act passed in June 1957. If compensation
was not paid, the defaulting employer was liable
to be imprisoned. The liability to pay
compensation was only a civil liability and Article
20(1) was not violated.34

Law in force-meaning
Article 20(1) refers to the law in force at the time
of commission of the offence. It refers to the law
which was actually in operation and will not apply
to laws which are deemed to be in force by legal
fiction.35
Under Section 24 of the General Clauses Act,
notifications, rules, etc. of a repealed enactment
will be deemed to have been re-enacted under
the new enactment unless and until they are
superseded by another notification, rule, etc.
Thus, regulations made under the Mines Act,
1923 would be deemed to continue under the
Mines Act, 1952. Consequently, prosecution
launched under the old enactment will not be
affected by the new law and the bar of Article
20(1) will not apply.36 For custom to have the
colour of a rule or law, it is necessary for the
party claiming it, to plead and thereafter prove
that such custom is ancient, certain and
reasonable. Custom being in derogation of the
general rule is required to be construed strictly.
The party relying upon a custom is obliged to
establish it by clear and unambiguous
evidence.37

Double jeopardy
The provisions of clause (2) are based on the
doctrine of double jeopardy. Under the American
Constitution and the English Common Law, no
person can be prosecuted twice for the same
offence whether he is convicted or acquitted. It is
based on the well established rule of English law
and is expressed in the maxim " nemo debet bis
vexari"-a man must not be put twice in peril for
the same offence.
In the US Constitution,38 the 5th amendment has
incorporated this principle in 1791 and the
relevant portion reads as under:
 "Nor shall any person be subject for the
same offence to be twice put in jeopardy of
life or limb"

Under Article 20(2), the scope is narrower and

the bar will apply only to a second prosecution for
the same offence when the accused has been
punished in the first prosecution.39 The question
of double jeopardy does not arise when the
accused has neither been convicted nor
acquitted.40
A bus driver of Haryana Roadways caused death
by rash and negligent driving. After an order was
passed by the Motor Accident Claims Tribunal,
disciplinary proceedings were initiated and
punishment of reduction in pay was imposed.
Apart from the claim petition before the Tribunal,
a criminal case had also been registered against
him and he was convicted inter alia under
Section 304A of the Indian Penal Code, 1860. On
the basis of this conviction, his services were
terminated. The plea of double jeopardy will have
no application in such a case as the principle will
apply only if there is punishment twice for the
same offence. The first order directing reduction
in pay was passed by the Tribunal whereas the
order of termination was after conviction by the
criminal court. The two proceedings cannot be
equated.41 Similarly, action taken in pursuance of
an order of the General Court Martial imposing
punishment and departmental proceedings taken
for forfeiture of pension will also not attract
double jeopardy.42

Other statutory provisions

Section 26 of the General Clauses Act, 1897
reads as follows:

"Where an act or omission constitutes an

offence under two or more enactments,
then the offender shall be liable to be
prosecuted and punished under either or
any of those enactments, but shall not be
liable to be punished twice for the same
offence."
Section 300 of the Code of Criminal Procedure,
1973 also contains the principle of autrefois
acquit or autrefois convict. The Cr.P.C. and the
General Clauses Act contained these provisions
even before the Constitution came into force and
were based on the principles of English Common
Law. Under Article 20(2), there is no bar when
the accused has been acquitted - the principle of
autrefois acquit will not apply.

Same offence
The word "offence" has not been defined in the
Constitution and hence, as per Article 367, the
definition of this word in Section 3(38) of the
General Clauses Act, 1897 will apply. The word
is defined to mean "an act or omission made
punishable by any law for the time being in
force".43Article 20(2) will operate only where the
accused is sought to be prosecuted and
punished for "the same offence". If the accused
is tried for distinct offences, the protection under
Article 20(2) will not apply. Thus, when a person
was initially charged under Section 409 of the
Indian Penal Code, it will not bar prosecution
under Section 105 of the Insurance Act. The
Supreme Court quoted Willoughby44: "Cases
may occur in which the same act may render the
actor guilty of two distinct offences; ....... In such
cases, the accused cannot plead the trial and
acquittal, or the conviction or punishment for one
offence as a bar to a conviction for the other" and
also referred to Section 26 of the General
Clauses Act. It was further observed that the
construction placed on Article 20(2) and the said
Section 26 was precisely in line with Section 403
of the former Criminal Procedure Code
(corresponds to Section 300 of the present
code).45 A person who was punished under
Section 107(8) of the Sea Customs Act, 1878
can be proceeded for criminal conspiracy under
Section 120-B of the Indian Penal Code.
Conspiracy is a distinct offence from the crime
that is the object of the conspiracy as the
conspiracy precedes the commission of the crime
and is complete before the crime is attempted or
complete.46
The emphasis is on the words "same offence". It
is now well settled that where there are two
distinct offences made up of different ingredients,
the bar under Section 26 of the General Clauses
Act, 1897 or for that matter, the embargo under
Article 20 of the Constitution has no application,
though the offences may have some overlapping
features. The crucial requirement of either
Article 20 of the Constitution or Section 26 of the
General Clauses Act, 1897 is that the offences
are the same or identical in all respects.47
Offences under the Wild Life Protection Act, 1972
and the Indian Penal Code do not constitute the
same offence.48 An original trial under Sections
399 and 400, IPC and Section 3 of TADA will not
bar the subsequent trial under the Arms Act,
1959.49 So far as concurrent proceedings
initiated both under the Army Act and the Central
Rules are concerned, they are unexceptionable.
These two proceedings operate in two different
fields though the crime or the misconduct might
arise out of the same act. The court-martial
proceedings deal with the penal aspect of the
misconduct while the proceedings under the
Central Rules deal with the disciplinary aspect of
the misconduct. The two proceedings do not
overlap.50
Double jeopardy and issue estoppel
The principle of issue-estoppel is different from
the principle of double jeopardy or autrefois
acquit as embodied in Section 403 of the
Criminal Procedure Code. The principle of issue-
estoppel is a different principle, viz., where an
issue of fact has been tried 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 precluding the reception of
evidence to disturb that finding of fact when the
accused is tried subsequently even for a different
offence which might be permitted by the terms of
Section 403(2), Cr.P.C. 1898 (corresponding to
Section 300 of Cr.P.C., 1973).51
The manifestation of the rule against double
jeopardy is contained in Section 26 of the
General Clauses Act, 1897, Section 300 of the
Code of Criminal Procedure, 1973 and Section
71 of the Indian Penal Code.52
Lack of jurisdiction-effect of
The protection of Article 20(2) will be available
only if the first trial was before a court of
competent jurisdiction. If the court did not have
jurisdiction, the entire procedure would be null
and void and there would be no valid prosecution
and punishment for the same offence.53

Proceedings before departmental authorities

Article 20(2) will not apply unless there is a
prosecution and punishment before a court or a
judicial Tribunal. The use of the words
'convicted', 'subjected to penalty', 'prosecuted'
and punished', 'accused of any offence' all
indicate that the proceedings contemplated are in
the nature of criminal proceedings before a court
of law or a judicial tribunal in accordance with the
statute which creates the offence and regulates
the procedure. When contraband gold was
confiscated under Section 167(9) of the Sea
Customs Act, 1878, it would not bar a
subsequent complaint against the accused under
Section 8 of the Foreign Exchange Regulations
Act, 1947. The authorities acted under the Sea
Customs Act, 1878 and the orders passed by
them do not constitute a judgment or order of a
court or Tribunal necessary for supporting a plea
of double jeopardy.54 Penalty paid by an
employee under the povisions of Motor Vehicles
Act, would neither absolve the employee fully
from all other liability nor would it debar the
employer from initiating departmental
proceedings for the alleged misconduct of the
delinquent employee.55
Enquiry made against a public servant and
subsequent action taken under Article 311(2) will
not bar a subsequent prosecution under the
Prevention of Corruption Act. The proceedings
before the Enquiry Commission did not amount
to a prosecution.56 Similarly, when an officer is
dismissed from service after a court martial an
order forfeiting pension will not fall within the
meaning of double jeopardy.57

Clause (3)-self-incrimination
This clause is also based on the 5th amendment
to the US Constitution made in 1791. The
relevant part reads as follows:-
 "nor shall be compelled in any criminal
case could be a witness against himself
......".

The clause in the Indian Constitution is once

again restricted in its scope. While the 5th
amendment applies to any person, clause (3)
grants protection only to a person accused of an
offence. Under the English law, the principle of
protection against self incrimination had a
historical origin resulting from a feeling of
revulsion against the inquisitorial methods
adopted and the barbarous sentences imposed
by the Court of Star Chamber in the exercise of
its criminal jurisdiction.58
Article 20(3) embodies the principle of protection
against compulsion of self-incrimination which is
one of the fundamental canons of the British
system of criminal jurisprudence and which has
been adopted by the American system and
incorporated as an Article of its Constitution. It
has also, to a substantial extent, been
recognised in the Anglo-Indian administration of
criminal justice in this country by incorporation
into various statutory provisions.59
Art. 20(3) is a humane Article, a guarantee of
dignity and integrity and of inviolability of the
person and refusal to convert an adversarial
system into an inquisitorial scheme in the
antagonistic ante-chamber of a police station.60

Clause (3)-three requirements

In order to avail the protection of Article 20(3),
three conditions must be satisfied:--

(i) The person must be accused of an

offence.
(ii) The element of compulsion to be a witness
should be there.
(iii) It must be against himself.
All the three ingredients must necessarily exist
before protection of Article 20(3) is available. If
any of these ingredients do not exist, Article
20(3) cannot be invoked.61 A person was stopped
and found to have opium in his possession. He
could not be treated as being under arrest merely
because the police questioned him on suspicion.
There was nothing on record to suggest that he
was compelled to make a confession.62

Compulsion-essential requirements
Broadly stated, the guarantee in Article 20(3) is
against "testimonial compulsion". But there is no
reason to confine it to the oral evidence of a
person standing his trial for an offence when
called to the witness stand. The protection
afforded to an accused is so far as it is related to
the phrase "to be a witness" is not merely in
respect of testimonial compulsion in the court-
room but may well extend to compelled testimony
previously obtained from him.63
"Compulsion", in the context of Article 20(3),
must be what in law is called "duress", which has
been explained to be compulsion to do an act by
injury, unlawful imprisonment, threat of being
killed or put to grievous bodily harm. Compulsion
is a physical act and not the state of mind of the
person making the statement, except where the
mind has been so conditioned by some
extraneous process as to render the statement
involuntary and extorted. There is no compulsion
when a police officer, investigating a crime
against a certain individual, asks him to do a
certain thing. The fact that a person was in police
custody when he made the statement is not a
foundation for an inference that he was
compelled to make the statement. The mere
questioning of an accused by a police officer,
resulting in a voluntary statement, which may
ultimately turn out to be incriminatory, is not
compulsion.64
A confessional statement (referring to the
relationship of the accused with other accused
persons and several seized Articles) was made
voluntarily and was not hit by Article 20(3).65
There is no necessity for an accused person to
enter the witness-box and it is not correct to state
that a criminal trial compels a person to be a
witness against himself and is therefore violative
of Article 20(3). There is no compulsion when an
accused voluntarily gives evidence in his
defense.66
However, the Supreme Court surprisingly held
that a person could not be compelled to give a
blood sample for analysis as no adverse
inference can be drawn against him for such
refusal.67 At the same time, the court upheld the
requirement of an accused giving his
handwriting, thumb impression, and allowing his
photographs to be taken.68 Similarly Section 27
of POTA enabling a police officer investigating a
case to seek directions through the Chief Judicial
or Chief Metropolitan Magistrate for obtaining a
sample of hand writing, fingerprint, photograph or
saliva, etc. of any accused involved in a terrorist
activity was upheld. The fact that permission has
to be granted by a court shows that it is not
automatic and the Court has the discretion to turn
down the request if it is based on a wrong
premise.69
The protection under Article 20(3) is only against
the person being compelled to be a witness
against himself. It does not mean that he need
not give information on matters which do not tend
to incriminate him.70
Compelled testimony will cover not only evidence
procured by physical threats or violence but by
psychic torture, atmospheric pressure (sic),
environmental coercion, tiring interrogative
prolixity, overbearing and intimidatory methods
and the like - not legal penalty for violation.71
In the sensational fodder scam in the Animal
Husbandry Department of Bihar, an accused was
charged with misappropriation of funds and
issuing fake bills for supplies that had never been
made. The accused was granted a pardon by a
Special Judge on the condition that he made a
full and complete disclosure of all illegalities.
Strangely, on the basis of this disclosure, the
Income Tax Department issued a show cause
notice as to why prosecution should not be
initiated against him under Sections 277 and 278
of the Income Tax Act, 1961 for having filed false
income tax returns. The Supreme Court pointed
out that unless he made a full and complete
disclosure, the available evidence would have
been lost in the fodder scam. But if he made a
full and complete disclosure, the accused was to
face prosecution under the Income Tax Act,
1961. The court observed that Article 20(3)
enjoins that no person should be compelled to be
a witness against himself. Even though the
pardon granted by the Special Judge would not
extend to income tax prosecutions, it was a fit
case where the Government should consider not
to prosecute the accused under the Income Tax
Act, 1961.72 The Supreme Court has wrongly
referred to this clause as Article 20(2). Apart
from this error, it is submitted that the decision is
incorrect. The court held that continued
prosecution under the Income Tax Act would
amount to forcing the appellant to give evidence
against himself and risk the pardon being
cancelled. It could have directed that the income
tax prosecution be stayed till the end of the trial
in which pardon had been granted and thereafter
the accused was at liberty to apply for quashing
the prosecution under the Income Tax Act.

Tape recorded statements

Tape recording a conversation did not render it to
be under duress or compulsion. The person had
spoken voluntarily and no element of compulsion
existed. At the time of tape recording, there was
also no case against the person. The tape
recorded conversation was admissible as
evidence.73
To be a witness-meaning of
The Supreme Court discussed earlier cases on
the meaning of this expression and summarised
its conclusion in the following manner:74

(i) 'To be a witness' is not equivalent to

'furnishing evidence' in its widest
significance; that is to say, as including not
merely making of oral or written statements
but also production of documents or giving
materials which may be relevant at a trial
to determine the guilt or innocence of the
accused.
(ii) Giving thumb impressions or impressions
of foot or palm or fingers or specimen
writings or showing parts of the body by
way of identification are not included in the
expression 'to be a witness'.
(iii)

'To be a witness'
means imparting knowledge in
respect of relevant facts by an oral
statement or a statement in writing,
made or given in Court or otherwise
 .
(iv) 'To be a witness' in its ordinary
grammatical sense means giving oral
testimony in Court. Case law has gone
beyond this strict literal interpretation of the
expression which may now bear a wider
meaning, namely, bearing testimony in
court or out of court by a person accused
of an offence, orally or in writing.

Search and seizure

In any jurisprudence, the State has an overriding
power of search and seizure for the protection of
social security and this is necessarily regulated
by law. The Constitution makers have not
thought it fit to subject such regulation to
constitutional limitations by recognition of a
fundamental right to privacy analogous to the
American Fourth Amendment. It is not proper to
assume that the protection under Article 20(3)
will be defeated by a statutory provision for
search. These are usually on the basis of a
search warrant and the fact that a warrant could
be issued by an error is not a ground to assume
circumvention of the constitutional guarantee.75

Accused of an offence-meaning of
To bring a statement within the prohibition of
Article 20(3), the person accused must have
stood in the character of an accused person at
the time he made the statement. It is not enough
that he should become an accused any time after
the statement has been made.76 This expression
includes within its ambit, only a person against
whom a formal accusation relating to the
commission of offence had been leveled which,
in the normal course, may result in prosecution.
A person who makes a statement before the
Customs Officer when he was not accused of
any offence under the Customs Act cannot
invoke the provisions of Article 20(3). A person
will be an accused person only when a complaint
is made against him under Section 135 of the
Customs Act.77 A person interrogated during
investigation under Customs Act or FERA is not
an accused person under Article 20 (3),78 but a
person served with a summons under FERA was
held to be an accused person.79 The earlier
decisions were distinguished on the ground that
none of them had occasion to consider the
meaning of the word "accused" or "accused
person" as occurring in Criminal Procedure
Code.80 A person arrested by an officer of the
Railway Protection Force and questioned is not a
person accused of an offence, unless a formal
accusation is made against him in a FIR or a
formal complaint.81 Persons against whom
notices for contempt proceedings have been
issued are not accused of any offence.82
If a person has not been accused of any offence
and the evidence taken from him under
compulsion ultimately leads to an accusation
against him that case would not be covered by
Article 20(3).83 But where a FIR is filed against a
person, Article 20(3) applies.84 This Article does
not afford any protection to witnesses but only to
those who are accused of an offence.85
A general enquiry and investigation into the
affairs of the company thus contemplated cannot
be regarded as an investigation, which starts with
an accusation contemplated in Art.20(3) of the
Constitution.86

Anti-terrorism enactments-special provisions

In the context of anti-terrorism enactments, the
admissibility of confessional statements made to
police were upheld in Kartar Singh's case which
dealt with Terrorism and Disruptive Activities
(Prevention) Act, 1987 (TADA).87 This enactment
was replaced by Prevention of Terrorism Act,
2002 which made such confessional statements
admissible but provided the safeguards of
enabling a Magistrate to test and examine the
voluntariness of a confession and entertain
complaints of torture. Further, a person below the
rank of Superintendent of Police could not record
the confessional statement. A forcibly extracted
confession was a nullity in law and this would
equally apply in the context of such anti-terrorism
enactments.88

Illustrative cases
In the following circumstances, the Supreme
Court has held that the provisions of Article
20(3) will not apply:--

(i) Public examination under Section 45G of

the Banking Companies Act, 1949.89
(ii) Provisions of the Food Adulteration Act,
1954.90
(iii) Section 94 (1) of Criminal Procedure Code,
1898 (equivalent to Section 91 of Cr.P.C.,
1973). It was observed that this section
would not apply to the accused person.91
However, Sec.93(1)(c) of the new Cr.P.C.,
1973 permits the court to issue a search
warrant wherever necessary for the
purpose of any inquiry, trial or other
proceedings under the Code. During the
course of such search, any document
containing any statement made by the
accused may be found. There is no
element of compulsion in such a case and
no violation of the constitutional guarantee
enshrined in Article 20(3).92
(iv) Art. 20(3) does not apply to a confession
made without inducement, threat or
 promise. A retracted confession may have
lesser value but that has nothing to do with
its impact on Article 20(3) of the
Constitution.93
(v) Section 240 of the Companies Act, 1956.94
(vi) Information obtained under Section 27 of
the Evidence Act, 1872.95
(vii) Statements recorded under Section 108 of

the Customs Act, 1962.96

In the following case, it was held that Article
20(3) had been violated:-
Section 15 of the Terrorist and Disruptive
Activities (Prevention) Act, 19871

Article 20(3) and Sec. 161 Cr. P.C.

The area covered by Art. 20(3) and Section
161(2) is substantially the same. Terminological
expansion apart, it may be stated that Section
161(2) of the Cr.P.C. is a parliamentary gloss on
the constitutional clause. This sub-section reads
as follows:

"Such person shall be bound to answer

truly all questions relating to such case put
 to him by such officer, other than questions
the answer to which would have a
tendency to expose him to a criminal
charge or to a penalty or forfeiture."2

Protection even before trial

Article 20(3) will apply even to investigation at
the police level and is coterminous with Section
161(2).3 The protection afforded to an accused is
not merely in respect of testimonial compulsion in
the court room but will extend to compelled
testimony previously obtained from him.4
However, as pointed out above, the person must
be an "accused person" at the time the testimony
was taken from him.
In an unreported decision, the Supreme Court
pointed out that if information is collected from a
person under Section 19 of the Foreign
Exchange (Regulation) Act, 1973 when there is
no formal accusation against him, the protection
of Article 20(3) will not apply. At the stage of
collecting information, it cannot be predicted that
the person will be in the position of an accused.
This will be generally decided after the
information is collected and it is only when a
show cause notice is issued that it can be said
that a formal accusation has been made against
the person concerned.5

Self-incrimination-meaning of
This expression will only cover information based
upon the personal knowledge of the person
giving the information and not the mere process
of producing documents in court which may
throw light on the issues in controversy. At the
same time, if self-incriminatory information is
given by the accused voluntarily and without any
threat, Article 20(3) is not attracted. An accused
cannot be compelled to disclose documents
which are self-incriminatory and based on his
knowledge.6
Article 20(3) strikes at confessions and self-
incriminations but leaves untouched other
relevant facts.7
1. Fletcher v. Rock, 3 L Ed 162 : 10 US (6
Cranch) 87 (1810).

2. Nayyar G.P. v. State (Delhi

Administration), AIR 1979 SC 602 : (1979) 2
SCC 593; Chief Inspector of Mines v. K.C.
Thapar, AIR 1961 SC 838 : (1962) 1 SCR 9;
see also Hathi Singh Manufacturing
Company v. Union of India, AIR 1960 SC 923,
206A : (1960) 3 SCR 528 the principle was
restated in Surajmani Stella Kujur (Dr) v.
Durga Charan Hansdah, (2001) 3 SCC 13, 17
: AIR 2001 SC 938.

3. Soni Devarajbhai Babubhai v. State of

Gujarat, AIR 1991 SC 2173 : 1991 (4) SCC
298.

4. Sajjan Singh v. State of Punjab, AIR 1964

SC 464, 468 : 1964 (4) SCR 630.

5. State of Madhya Pradesh v. K.K.S.

Ramaswamy, AIR 1977 SC 2091 : (1977) 3
SCC 525.
6. Sakshi v. Union of India, (2004) 5 SCC
518, 537 : AIR 2004 SC 3566.

7. Shiv Bahadur Singh v. State of V.P., AIR

1953 SC 394 : 1953 SCR 1188.

8. CCE v. Elgi Equipments Ltd., (2001) 9

SCC 601 : (2001) 2 SLT 804.

9. Dinesh Kumar v. State of Madhya

Pradesh, (2004) 8 SCC 770.

10. Kanaiyalal Chandulal Monim v. Indumati

T. Potdar, AIR 1958 SC 444, 447 : 1958 SCR
1394.

11. Star India (P.) Ltd. v. CCE, (2005) 7 SCC

203, 205 : (2005) 8 SLT 800.

12. For text of the U.S. Constitution, see

Appendix 31, infra.

"Bill of Attainder"
 means a legislative act that imposes
punishment on a particular individual
without a hearing or trial

13. Calder v. Bull, 1 L ED 648 : 3 US (3 Dall)

386 (1798) - cited with approval in
Transmission Corporation of A.P. v. Ch.
Prabhakar, (2004) 5 SCC 551, 560 : AIR 2004
SC 3368.

14. Calder v. Bull, 1 L Ed 648 : 3 &S (3 Dall)

386 (1798) and Beazell v. Ohio, 269 US 167 :
70 L Ed 216 (1925).

15. Fletcher v. Peck, 3 L Ed 162 : 10 US (6

Cranch) 87 (1810) and Bouie v. Columbia,
378 US 347 : 12 L Ed 2d 894 (1964).

16. Cummings v. Missouri, 71 US (4 Wall)

277 : 18 L Ed 356 (1867).
17. Kring v. Missouri, 107 US 221: 27 L Ed
506 (1883) and Beazell v. Ohio, 269 US 167 :
70 L Ed 216 (1925).

18. Kring v. Missouri, 107 US 221 : 27 L Ed

506 (1883) and Beazell v. Ohio, 269 US 167 :
70 L Ed 216 (1925).

19. Hopt v. People of Utah, 110 US 574 : 28

L Ed 262 (1884) and Mallett v. North
Carolina, 181 US 589 : 45 L Ed 1015 (1901).

20. Winston v. State, 118 ALR 719 and Miller

v. Florida, 482 US 423 : 96 L Ed 2d 351
(1987).

21. Corpus Juris Secundum, Vol. 16A, paras

409, 414, 420 and American Jurisprudence,
Vol 16-2d, paras 402, 404 and 407.

22. Nayyar G.P. v. State (Delhi

Administration), AIR 1979 SC 602 : (1979) 2
SCC 593.
23. Transmission Corporation of A.P. v. Ch.
Prabhakar, (2004) 5 SCC 551, 562-564 : AIR
2004 SC 3368.

24. Shiv Bahadur Singh v. State of V.P., AIR

1953 SC 394 : 1953 SCR 1188; see also
Venkataraman S.A. v. Union of India, AIR
1954 SC 375 : 1954 SCR 1150.

25. A.D.M. Jabalpur v. Shivkanl Shukla, AIR

1976 SC 1207.

26. Transmission Corporation of A.P. v. Ch.

Prabhakar, (2004) 5 SCC 551, 564 : AIR 2004
SC 3368. It is ironic that the Supreme Court
should refer to a minority view and follow that
"analogy". It is submitted that the extensive
references to the U.N. and other
international/foreign conventions in the
decision were wholly unnecessary.

27. Kedar Nath Bajoria v. State of West

Bengal, AIR 1953 SC 604.
28. Satwant Singh v. State of Punjab, AIR
1960 SC 266, 276 : 1960 (2) SCR 89.

29. Union of India v. Sukumar Pyne, AIR

1966 SC 1206 : 1966 (2) SCR 34.

30. Maru Ram v. Union of India, AIR 1980 SC

2147 : (1981) 1 SCC 107.

31. State of West Bengal v. S.K. Ghosh, AIR

1963 SC 255 : 1963 (2) SCR 111.

32. Jawala Ram v. State of Pepsu, AIR 1962

SC 1246 : 1962 (2) SCR 503.

33. Rattan Lal v. State of Punjab, AIR 1965

SC 444 : 1964 (7) SCR 676.

34. Hathi Singh Manufacturing Company v.

Union of India, AIR 1960 SC 923 : 1960 (3)
SCR 528.

35. Shiv Bahadur Singh v. State of V.P., AIR

1953 SC 394 : 1953 SCR 1188.
36. Chief Inspector of Mines v. Karam Chand
Thapar, AIR 1961 SC 838 : 1962 (1) SCR 33.

37. Surajmani Stella Kujur (Dr) v. Durga

Charan Hansdah, (2001) 3 SCC 13, 17 : AIR
2001 SC 938.

38. For text, see Appendix 31.

39. Venkataraman S.A. v. Union of India, AIR

1954 SC 375 : 1954 SCR 1150; see also
Maqbool Hussain v. State of Bombay, AIR
1953 SC 325 : 1953 SCR 730.

40. Dahiya O.P. v. Union of India, (2003) 1

SCC 122, 123 : AIR 2003 SC 4464.

41. State of Haryana v. Balwant Singh,

(2003) 3 SCC 362, 366 : AIR 2003 SC 1082.

42. Union of India v. P.D. Yadav, (2002) 1

SCC 405 : 2001 Supp (1) (4) SCR 209.

43. Jawala Ram v. State of Pepsu, AIR 1962

SC 1246, 1248 : (1962) 2 SCR 503; see also
Maqbool Hussain v. State of Bombay, AIR
1953 SC 325 : 1953 SCR 730; Thomas Dana
v. State of Punjab, AIR 1959 SC 375 : 1959
Supp(1) SCR 274.

44. Constitution of United States, Vol. II, p.

1158; see also Albrecht v. United States,
(1928) 273 US 1: 71 Law Ed. 505.

45. State of Bombay v. S.L. Apte, AIR 1961

SC 578, 582-583 : (1961) 3 SCR 107;
Manipur Administration v. Thokchon Bira
Singh, AIR 1968 SC 87.

46. Leo Roy Frey v. Supdt., District Jail, AIR

1958 SC 119 : 1958 SCR 822; Bhagwan
Swarup Lal Bishan Lal v. State of
Maharashtra, AIR 1965 SC 682 : (1964) 2
SCR 378.

47. State (NCT of Delhi) v. Navjot Sandhu,

(2005) 11 SCC 600, 761 : (2005) 7 JT 1. See
also State of Bihar v. Murad Ali Khan, (1988)
4 SCC 655 : AIR 1989 SC 1.
48. State of Bihar v. Murad Ali Khan, AIR
1989 SC 1 : (1988) 4 SCC 655.

49. Mahinder Singh v. State of Punjab,

(1998) 7 SCC 390 : AIR 1999 SC 211.

50. Union of India v. Sunil Kumar Sarkar,

(2001) 3 SCC 414, 419 : AIR 2001 SC 1092.

51. Piara Singh v. State of Punjab, AIR 1969

SC 961, 964 : (1969) 1 SCR 379; see also
Pritam Singh v. State of Punjab, AIR 1956 SC
415 : 1956 Cr LJ 805; Manipur Administration
v. Thokchom Bira Singh, AIR 1965 SC 87 :
(1964) 7 SCR 123. (both these cases discuss
the principle of issue estoppel); Masud Khan
v. State of Uttar Pradesh, AIR 1974 SC 28 :
(1974) 3 SCC 469.

52. State of Rajasthan v. Hat Singh, (2003) 2

SCC 152, 158 : AIR 2003 SC 791.

53. Baij Nath Prasad Tripati v. State of

Bhopal, AIR 1957 SC 494 : 1957 SCR 650.
54. Maqbool Hussain v. State of Bombay,
AIR 1953 SC 325, 329 : 1953 SCR 730; see
also Leo Roy Frey v. Supdt., District Jail, AIR
1958 SC 119 : 1958 SCR 822.

55. State of Punjab v. Dalbir Singh, (2001) 9

SCC 212 : (2000) 10 JT 456.

56. Venkataraman S.A. v. Union of India, AIR

1954 SC 375 : 1954 SCR 1150.

57. Union of India v. P.D. Yadav, (2002) 1

SCC 405, 424 : 2001 Supp (4) SCR 209.

58. Sharma M.P. v. Satish Chandra, AIR

1954 SC 300, 302-303 : 1954 SCR 1077.

59. State of Gujarat v. Shyamlal Choksi, AIR

1965 SC 1251 : (1965) 2 Cr LJ 256; see also
Joseph Augusthi K. v. M.A. Narayanan, AIR
1964 SC 1552 : (1964) 7 SCR 137.

60. Nandini Satpathy v. P.L. Dani, AIR 1978

SC 1025, 1038 (per Krishna Iyer J.) : (1978) 2
SCC 424.
61. Delhi Judicial Service Association v. State
of Gujarat, AIR 1991 SC 2176, 2189 : (1991)
4 SCC 406; State of Bombay v. Kathi Kallu
Oghad, AIR 1961 SC 1808, 1812 : (1962) 3
SCR 10; see also Mohd. Dastigir v. State of
Madras, AIR 1960 SC 756 : (1960) 3 SCR
116.

62. State of Rajasthan v. Daulat Ram, (2005)

7 SCC 36, 39 : (2005) 8 JT 82.

63. Sharma M.P. v. Satish Chandra, AIR

1954 SC 300 : 1954 SCR 1077.

64. State of Bombay v. Kathi Kallu Oghad,

AIR 1961 SC 1808, 1816 : (1962) 3 SCR 116;
see also Mohd. Dastagir v. State of Madras,
AIR 1960 SC 756.

65. Percy Rustomji Basta v. State of

Maharashtra, AIR 1971 SC 1087 : (1971) 1
SCC 847; see also Dalmia R.K. v. Delhi
Admn., AIR 1962 SC 1821 : (1963) 1 SCR
253.
66. Tukaram G. Gaokar v. R.N. Shukla, AIR
1968 SC 1050 : 1968 (3) SCR 422.

67. Goutam Kundu v. State of West Bengal,

AIR 1993 SC 2295 : 1993 (3) JT 443.

68. State of Gujarat v. Shyamlal Mohanlal

Choksi, AIR 1965 SC 1251, 211B : 1965 (2)
Cr LJ 256; State (NCT of Delhi) v. Navjot
Sandhu, (2005) 11 SCC 600, 749; State of
Bombay v. Kathi Kalu Oghad, (1962) 3 SCR
10; State of Uttar Pradesh v. Boota Singh,
(1979) 1 SCC 31 : AIR 1978 SC 1770.

69. People's Union for Civil Liberties v. Union

of India, (2004) 9 SCC 580, 607 : AIR 2004
SC 3453.

70. Ramanlal Bhogilal Shah v. D.K. Guha,

AIR 1973 SC 1196 : (1973) 1 SCC 696.

71. Nandini Satpathy v. P.L. Dani, AIR 1978

SC 1028, 1046 : (1978) 2 SCC 424 (American
case law discussed).
72. Dipesh Chandak v. Union of India, (2004)
8 SCC 511, 516 : (2004) 8 JT 215.

73. Malkani R.M. v. State of Maharashtra,

AIR 1973 SC 157 : (1973) 1 SCC 471
(circumtances when tape recorded evidence
is admisssible discussed); see also Yusufalli
Esmail Nagree v. State of Maharashtra, AIR
1968 SC 147 : (1967) 3 SCR 720.

74. State of Bombay v. Kathi Kallu Oghad,

AIR 1961 SC 1808, 1812, 1817 : (1962) 3
SCR 10; see also Sharma M.P. v. Satish
Chandra, AIR 1954 SC 300, 304 : 1954 SCR
1077; see also Mohd. Dastagir v. State of
Madras, AIR 1960 SC 756 : (1960) 3 SCR
116.

75. Sharma M.P. v. Satish Chandra, AIR

1954 SC 300, 307 : 1954 SCR 1077.

76. State of Bombay v. Kathi Kallu Oghad,

AIR 1961 SC 1808, 1812, 1817 : (1962) 3
SCR 10.
77. Veera Ibrahim v. State of Maharashtra,
AIR 1976 SC 1167 : (1976) 2 SCC 302;
Ramesh Chandra Mehta v. State of West
Bengal, AIR 1970 SC 940 : (1969) 2 SCR
461.

78. Poolpandi v. Superintendent, Central

Excise, AIR 1992 SC 1795 : (1992) 3 SCC
259.

79. Ramanlal Bhogilal Shah v. D.K. Guha,

AIR 1973 SC 1196 : (1973) 1 SCC 696 -
Ramesh Chandra Mehta v. State of West
Bengal, AIR 1970 SC 940 : (1969) 2 SCR 461
distinguished.

80. Directorate of Enforcement v. Deepak

Mahajan, AIR 1994 SC 1775, 1795 : (1994) 3
SCC 440.

81. Balkishan A. Devidayal v. State of

Maharashtra, AIR 1981 SC 379 : (1980) 4
SCC 600.
82. Delhi Judicial Service Association v. State
of Gujarat, AIR 1991 SC 2176 : (1991) 4 SCC
406.

83. Joseph Augusthi v. M.A. Narayanan, AIR

1964 SC 1552; see also State of Bombay v.
Kathi Kalu Oghad, AIR 1961 SC 1808 : 1964
(7) SCR 137.

84. Sharma M.P. v. Satish Sharma, AIR 1954

SC 300 : 1954 SCR 1077.

85. Laxmipat Choraria v. State of

Maharashtra, AIR 1968 SC 938 (reference to
evidence of accomplice) : 1968 (2) SCR 624.

86. Raja Narayanlal Bansilal v. Manek Phiroz

Mistry, AIR 1961 SC 29, 38-39 : (1961) 1 SCR
417; Nandini Satpathy v. P.L. Dani, AIR 1978
SC 1025, 1041 : (1978) 2 SCC 424.

87. Kartar Singh v. State of Punjab, (1994) 3

SCC 569 : (1994) 2 JT 423.
88. People's Union for Civil Liberties v. Union
of India, (2004) 9 SCC 580, 612 : AIR 2004
SC 456.

89. Joseph Augusthi v. M.A. Narayanan, AIR

1964 SC 1552 : (1964) 7 SCR 137; Popular
Bank Ltd. v. K. Madhava Naik, AIR 1965 SC
654, 657 : (1965) 35 CC 174.

90. Andhra Pradesh Grain and Seed

Merchants Association v. Union of India, AIR
1971 SC 2346 : (1970) 2 SCC 71.

91. State of Gujarat v. Shyamlal Mohanlal

Choksi, AIR 1965 SC 1251 : (1965) 2 Cr LJ
256 (but see Kuttan Pillai V.S. v.
Ramakrishnan, AIR 1980 SC 185 : (1980) 1
SCC 264.

92. Kuttan Pillai v. Ramakrishnan, AIR 1980

SC 185 : (1980) 1 SCC 264.

93. Kalawati v. State of Himachal Pradesh,

AIR 1953 SC 131 : 1953 SCR 546.
94. Raja Narayanlal Bansilal v. Maneck
Phiroz Mistry, AIR 1961 SC 29, 38-39 : 1961
(1) SCR 417.

95. State of Bombay v. Kathi Kalu Oghad,

AIR 1961 SC 1808 : 1962 (3) SCR 10.

96. Ramesh Chandra Mehta v. State of West

Bengal, AIR 1970 SC 940 : (1969) 2 SCR
461; Bhanabhai Khalpabhai v. CC, 1994
Supp (2) SCC 143 : (1994) 2 JT 591;
Harbansingh Lenasingh v. State of
Maharashtra, AIR 1972 SC 1224 : (1972) 3
SCC 775; Veera Ibrahim v. State of
Maharashtra, AIR 1976 SC 1167 : (1976) 2
SCC 302.

1. Kartar Singh v. State of Punjab, (1994) 3

SCC 569 : 1994 (2) JT 423.

2. Nandini Sathpathy v. P.L. Dani, AIR 1978

SC 1025 : (1978) 2 SCC 424.

3. Nandini Satpathy v. P.L. Dani, AIR 1978

SC 1025, 1033 : (1978) 2 SCC 424.
4. Sharma M.P. v. Satish Chandra, AIR 1954
SC 300, 304 : 1954 SCR 1077.

5. Bhagwandas Goenka, Crl. Appeal Nos.131

and 132 of 1961 dt. 20.9.63 - This decision
has been referred to in Nandini Satpathy's
case - AIR 1978 SC 1025, 1041-42 : (1978) 2
SCC 424.

6. State of Bombay v. Kathi Kulu Oghad, AIR

1961 SC 1808 : (1962) 3 SCR 10; see also
State of Gujarat v. Shamlal Mohanlal Chokshi,
AIR 1965 SC 1251, 1259 : (1965) 2 Cr LJ
256.

7. Nandini Satpathy v. P.L. Dani, AIR 1978

SC 1025, 1043 : (1978) 2 SCC 424