In English law, this principle of protection against self-incrimination had a historical origin. It resulted 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.

This came to a head in the case of John Lilburn[1] which brought about the abolition of the Star Chamber and the firm recognition of the principle that the accused should not be put on oath and that no evidence should be taken from him. This principle, in course of time, developed into its logical extensions, by way of privilege of witnesses against self-incrimination, when called for giving oral testimony or for production of documents.

A change was introduced by the Criminal Evidence Act of 1898 by making an accused a competent witness on his own behalf, if he applied for it. But so far as the oral testimony of witnesses and the production of documents are concerned, the protection against, self-incrimination continued as before.

In the Indian law the extent to which this protection is recognised appears from the various relevant statutory provisions from time to time. Section III of Act XV of 1852 recognised that an accused in a criminal proceeding was not a competent or compellable witness to give evidence for or against himself. This provision was repealed by the Evidence Act I of 1872.

But meanwhile the Criminal Procedure Code of 1861 in sections 204 and 203 thereof respectively provided that no oath shall be administered to the accused and that it shall be in the discretion of the Magistrate to examine him. The Criminal Procedure Code of 1872 by section 250 thereof made a general questioning, of the accused, after the witnesses for the prosecution had been examined, compulsory and section 345 thereof provided that no oath or affirmation shall be administered to the accused person.

These features have been continued in the later Codes of Criminal Procedure and have been incorporated into section 342 of the present Criminal Procedure Code of 1898.

So far as witnesses are concerned, section III of Act XV of 1852 also declared the protection of, witnesses against compulsion to answer incriminating questions. Shortly thereafter in 1855, this protection was modified by section 32 of Act II of 1855 which made him compellable to answer even incriminating questions but provided immunity from arrest or prosecution on the basis of such evidence or any other kind of use thereof in criminal proceedings except prosecution for giving false evidence.

This position has been continued under section 132 of the Evidence Act I of 1872 which is still in force. So far as documents are concerned, it does not appear that the Indian statutory law specifically recognised protection against production of incriminating documents until Evidence Act I of 1872 was enacted which has a provision in this behalf in section 130 thereof. It is not quite clear whether this section which excludes parties to a suit applies to an accused.

Thus so far as the Indian law is concerned it may be taken that the protection against self-incrimination continues more or less as in the English common law, so far as the accused and production of documents are concerned, but that it has been modified as regards oral testimony of witnesses, by introducing compulsion and providing immunity from prosecution on the basis of such compelled evidence.

Since the time when the principle of protection against self-incrimination became established in English law and in other systems of law which have followed it, there has been considerable debate as to the utility thereof and serious doubts were held in some quarters that this principle has a tendency to defeat justice.

In support of the principle it is claimed that the protection’ of accused against -self-incrimination promotes active investigation from external sources to find out the truth and proof of alleged or suspected crime instead of extortion of confessions on unverified suspicion. (See Wigmore on Evidence, Vol. VIII, page 309).

It is also claimed that that privilege in its application to witnesses as regards oral testimony and production of documents affords to them in general a free atmosphere in which they can be persuaded to come forward to furnish evidence in courts and be of substantial help in elucidating truth in a case, with reference to material within their knowledge and in their possession. (See Wigmore on Evidence, Vol. VIII, page 307).

On the other hand, the opinion has been strongly held in some quarters that this rule has an undesirable effect on social interests and that in the detection of crime, the State is confronted with overwhelming difficulties as a result of this privilege. It is said this has become a hiding place of crime and has outlived its usefulness and that the rights of accused persons are amply protected without this privilege and that no innocent person is in need of it. (See Wigmore on Evidence, Vol.VIII, pages 314 and 315)


M.P. Sharma v. Satish Chandra (1954)

[1] 3 State Trials 1315