February 8, 2023

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Does ‘Right against self-incrimination’ also extend to investigation stage or just available on trial stage?

Article 20(3) of the Constitution gives the protection against self-incrimination. (we have discussed this right in detail HERE, and, in present article, we will discuss its another aspect). But, the next question arises whether Article 20(3) gives the ‘right against self-incrimination’ only at trial stage or also extends to investigation stage.

Article 20(3) is not limited to oral evidence of witness in court room

The question conclusively answered by Supreme Courts. In M.P. Sharma v. Satish Chandra, [1954][1], it was held by Jagannadhadas, J:

“Broadly stated, the guarantee in Article 20(3) is against `testimonial compulsion’. It is suggested that this is confined to the oral evidence of a person standing his trial for an offence when called to the witness-stand. We can see no reason to confine the content of the constitutional guarantee to this barely literal import. So to limit it would be to rob the guarantee of its substantial purpose and to miss the substance for the sound as stated in certain American decisions. …”

“Indeed, every positive volitional act which furnished evidence is testimony, and testimonial compulsion connotes coercion which procures the positive volitional evidentiary acts of the person, as opposed to the negative attitude of silence or submission on his part. Nor is there any reason to think that the protection in respect of the evidence so procured is confined to what transpires at the trial in the courtroom.

The phrase used in Article 20(3) is `to be a witness’ and not to `appear as a witness’: It follows that the protection afforded to an accused in 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. It is available therefore to a person against whom a formal accusation relating to the commission of an offence has been levelled which in the normal course may result in prosecution.”

These observations were cited with approval by B.P. Sinha, C.J. in State of Bombay v. Kathi Kalu Oghad & Others, [1962][2]. In the minority opinion, Das Gupta, J. affirmed the same position, Id. at p. 40:

“… If the protection was intended to be confined to being a witness in Court, then really it would have been an idle protection. It would be completely defeated by compelling a person to give all the evidence outside court and then, having what he was so compelled to do proved in court through other witnesses. An interpretation which so completely defeats the constitutional guarantee cannot, of course, be correct. The contention that the protection afforded by Article 20(3) is limited to the stage of trial must therefore be rejected.”

The case of Nandini Satpathy

The broader view of Article 20(3) was consolidated in Nandini Satpathy v. P.L. Dani, (1978)[3]:

“… Any giving of evidence, any furnishing of information, if likely to have an incriminating impact, answers the description of being a witness against oneself. Not being limited to the forensic stage by express words in Article 20(3), we have to construe the expression to apply to every stage where furnishing of information and collection of materials takes place. That is to say, even the investigation at the police level is embraced by Article 20(3).

This is precisely what Section 161(2) means. That sub-section relates to oral examination by police officers and grants immunity at that stage. Briefly, the Constitution and the Code are coterminous in the protective area. While the code may be changed, the Constitution is more enduring. Therefore, we have to base our conclusion not merely upon Section 161(2) but on the more fundamental protection, although equal in ambit, contained in Article 20(3).”

If the police can interrogate to the point of self- accusation, the subsequent exclusion of that evidence at the trial hardly helps because the harm has already been done. The police will prove through other evidence what they have procured through forced confession. So it is that the foresight of the framers has pre-empted self- incrimination at the incipient stages by not expressly restricting it to the trial stage in court.

True, compelled testimony previously obtained is excluded. But the preventive blow falls also on pre-court testimonial compulsion. The condition, as the decisions now go, is that the person compelled must be an accused. Both precedent procurement and subsequent exhibition of self-incriminating testimony are obviated by intelligent constitutional anticipation.”

In upholding this broad view of Article 20(3), V.R. Krishna Iyer, J. relied heavily on the decision of the US Supreme Court in Ernesto Miranda v. Arizona, [4](1966). The majority opinion (by Earl Warren, C.J.) laid down that custodial statements could not be used as evidence unless the police officers had administered warnings about the accused’s right to remain silent.

The decision also recognised the right to consult a lawyer prior to and during the course of custodial interrogations. The practice promoted by this case is that it is only after a person has `knowingly and intelligently’ waived of these rights after receiving a warning that the statements made thereafter can be admitted as evidence. The safeguards were prescribed in the following manner, Id. at pp. 444-445:

“… the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. […]

As for the procedural safeguards to be employed, unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it, the following measures are required. Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning.

Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him. The mere fact that he may have answered some questions or volunteered some statements on his own does not deprive him of the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned.”

. These safeguards were designed to mitigate the disadvantages faced by a suspect in a custodial environment. This was done in recognition of the fact that methods involving deception and psychological pressure were routinely used and often encouraged in police interrogations.

Position of India in comparison to Position of USA

The majority decision in Miranda (supra.) was not a sudden development in U.S. constitutional law. The scope of the privilege against self-incrimination had been progressively expanded in several prior decisions. The notable feature was the recognition of the interrelationship between the Fifth Amendment and the Fourteenth Amendment’s guarantee that the government must observe the `due process of law’ as well as the Fourth Amendment’s protection against `unreasonable search and seizure’.

The position in India is different since there is no automatic presumption of compulsion in respect of custodial statements. However, if the fact of compulsion is proved then the resulting statements are rendered inadmissible as evidence. Who can invoke the protection of Article 20(3)? 107. The decision in Nandini Satpathy’s case, (supra.) also touched on the question of who is an `accused’ for the purpose of invoking Article 20(3). This question had been left open in M.P. Sharma’s case (supra.).

Subsequently, it was addressed in Kathi Kalu Oghad (supra.), at p. 37:

“To bring the statement in question 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.”

Section 161(2) of CrPC

While there is a requirement of formal accusation for a person to invoke Article 20(3) it must be noted that the protection contemplated by Section 161(2), CrPC is wider. Section 161(2) read with 161(1) protects `any person supposed to be acquainted with the facts and circumstances of the case’ in the course of examination by the police.

The language of this provision is as follows:

161. Examination of witnesses by police.

(1) Any police officer making an investigation under this Chapter, or any police officer not below such rank as the State Government may, by general or special order, prescribe in this behalf, acting on the requisition of such officer, may examine orally any person supposed to be acquainted with the facts and circumstances of the case.

(2) Such person shall be bound to answer truly all questions relating to such case put to him by such officer, other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture.

(3) The police officer may reduce into writing any statement made to him in the course of an examination under this section; and if he does so, he shall make a separate and true record of the statement of each such person whose statement he records.

Therefore, the `right against self-incrimination’ protects persons who have been formally accused as well as those who are examined as suspects in criminal cases. It also extends to cover witnesses who apprehend that their answers could expose them to criminal charges in the ongoing investigation or even in cases other than the one being investigated.

 Krishna Iyer, J. clarified this position, in Nandini Satpathy case (supra):

“The learned Advocate General, influenced by American decisions rightly agreed that in expression Section 161(2) of the Code might cover not merely accusations already registered in police stations but those which are likely to be the basis for exposing a person to a criminal charge. Indeed, this wider construction, if applicable to Article 20(3), approximates the constitutional clause to the explicit statement of the prohibition in Section 161(2).

This latter provision meaningfully uses the expression `expose himself to a criminal charge’. Obviously, these words mean, not only cases where the person is already exposed to a criminal charge but also instances which will imminently expose him to criminal charges.”

It was further observed, Id. at pp. 451-452 (Para. 50):

“… `To be a witness against oneself’ is not confined to the particular offence regarding which the questioning is made but extends to other offences about which the accused has reasonable apprehension of implication from his answer. This conclusion also flows from `tendency to be exposed to a criminal charge’. A `criminal charge’ covers any criminal charge then under investigation or trial or which imminently threatens the accused.”

Section 132 of CrPC

Even though Section 161(2) of the CrPC casts a wide protective net to protect the formally accused persons as well as suspects and witnesses during the investigative stage, Section 132 of the Evidence Act limits the applicability of this protection to witnesses during the trial stage. The latter provision provides that witnesses cannot refuse to answer questions during a trial on the ground that the answers could incriminate them. However, the proviso to this section stipulates that the content of such answers cannot expose the witness to arrest or prosecution, except for a prosecution for giving false evidence.

Therefore, the protection accorded to witnesses at the stage of trial is not as wide as the one accorded to the accused, suspects and witnesses during investigation [under Section 161(2), CrPC]. Furthermore, it is narrower than the protection given to the accused during the trial stage [under Section 313(3) and Proviso (b) to Section 315(1), CrPC]. The legislative intent is to preserve the fact- finding function of a criminal trial.

Section 132 of the Evidence Act reads:

“132. Witness not excused from answering on ground that answer will criminate.

A witness shall not be excused from answering any question as to any matter relevant to the matter in issue in any suit or in any civil or criminal proceeding, upon the ground that the answer to such question will criminate, or may tend directly or indirectly to criminate, such witness, or that it will expose, or tend directly or indirectly to expose, such witness to a penalty or forfeiture of any kind.

Provided that no such answer, which a witness shall be compelled to give, shall subject him to any arrest or prosecution, or be proved against him in any criminal proceeding, except a prosecution for giving false evidence by such answer.”

Since the extension of the `right against self- incrimination’ to suspects and witnesses has its basis in Section 161(2), CrPC it is not readily available to persons who are examined during proceedings that are not governed by the code. There is a distinction between proceedings of a purely criminal nature and those proceedings which can culminate in punitive remedies and yet cannot be characterised as criminal proceedings. The consistent position has been that ordinarily Article 20(3) cannot be invoked by witnesses during proceedings that cannot be characterised as criminal proceedings.

Article 20(3) in Administrative and Quasi-Criminal Proceedings

In administrative and quasi-criminal proceedings, the protection of Article20(3) becomes available only after a person has been formally accused of committing an offence.

For instance, in Raja Narayanlal Bansilal v. Maneck Phiroz Mistry, [1961] 1 SCR 417, the contention related to the admissibility of a statement made before an inspector who was appointed under the Companies Act, 1923 to investigate the affairs of a company and report thereon. It had to be decided whether the persons who were examined by the concerned inspector could claim the protection of Article 20(3). The question was answered, Id. at p. 438:

“The scheme of the relevant sections is that the investigation begins broadly with a view to examine the management of the affairs of the company to find out whether any irregularities have been committed or not. In such a case there is no accusation, either formal or otherwise, against any specified individual; there may be a general allegation that the affairs are irregularly, improperly or illegally managed;

but who would be responsible for the affairs which are reported to be irregularly managed is a matter which would be determined at the end of the enquiry. At the commencement of the enquiry and indeed throughout its proceedings there is no accused person, no accuser, and no accusation against anyone that he has committed an offence. In our opinion 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 Article 20(3) of the Constitution. …”

A similar issue arose for consideration in Romesh Chandra Mehta v. State of West Bengal, [1969][5], wherein it was held, at p. 472:

“Normally a person stands in the character of an accused when a First Information Report is lodged against him in respect of an offence before an officer competent to investigate it, or when a complaint is made relating to the commission of an offence before a Magistrate competent to try or send to another Magistrate for trial of the offence. Where a Customs Officer arrests a person and informs that person of the grounds of his arrest, [which he is bound to do under Article 22(1) of the Constitution] for the purpose of holding an inquiry into the infringement of the provisions of the Sea Customs Act which he has reason to believe has taken place, there is no formal accusation of an offence.

In the case of an offence by infringement of the Sea Customs Act which is punishable at the trial before a Magistrate, there is an accusation when a complaint is lodged by an officer competent in that behalf before the Magistrate.”

In Balkishan A. Devidayal v. State of Maharashtra, (1980) 4 SCC 600, one of the contentious issues was whether the statements recorded by a Railway Police Force (RPF) officer during an inquiry under the Railway Property (Unlawful Possession) Act, 1996 would attract the protection of Article 20(3).

Sarkaria, J. held that such an inquiry was substantially different from an investigation contemplated under the CrPC, and therefore formal accusation was a necessary condition for a person to claim the protection of Article 20(3). It was observed, Id. at p. 623:

“To sum up, only a person against whom a formal accusation of the commission of an offence has been made can be a person `accused of an offence’ within the meaning of Article 20(3). Such formal accusation may be specifically made against him in an FIR or a formal complaint or any other formal document or notice served on that person, which ordinarily results in his prosecution in court. In the instant case no such formal accusation has been made against the appellant when his statements in question were recorded by the RPF Officer.”


Selvi v. State of Karnataka, (2010)

[1] [1954] SCR 1077

[2] [1962] 3 SCR 10, at pp. 26-28

[3] (1978) 2 SCC 424

[4] 384 US 436 (1966)

[5] [1969] 2 SCR 461,