February 8, 2023

Self-incrimination under Article 20(3) and its Admissibility

Answers that would in themselves support a conviction are confessions but answers which have a reasonable tendency strongly to point out to the guilt of the accused are incriminatory.

Article 20(3) of the Constitution, gives the protection against self-incriminatory question. (We have also discussed Article 20(3) in detail, here)

Article 20(3) reads as follows:

“No person accused of any offence shall be compelled to be a witness against himself.”

The scenario under consideration is one where a person in custody is compelled to reveal information which aids the investigation efforts. The information so revealed can prove to be incriminatory in the following ways:

  • The statements made in custody could be directly relied upon by the prosecution to strengthen their case. However, if it is shown that such statements were made under circumstances of compulsion, they will be excluded from the evidence.
  • Another possibility is that of `derivative use’, i.e. when information revealed during questioning leads to the discovery of independent materials, thereby furnishing a link in the chain of evidence gathered by the investigators.
  • Yet another possibility is that of `transactional use’, i.e. when the information revealed can prove to be helpful for the investigation and prosecution in cases other than the one being investigated.
  • A common practice is that of extracting materials or information, which are then compared with materials that are already in the possession of the investigators. For instance, handwriting samples and specimen signatures are routinely obtained for the purpose of identification or corroboration.

Nandini Satpathy’s case

The decision in Nandini Satpathy’s case,[1] sheds light on what constitutes incrimination for the purpose of Article 20(3). Krishna Iyer, J. observed, at pp. 449-450:

“In this sense, answers that would in themselves support a conviction are confessions but answers which have a reasonable tendency strongly to point out to the guilt of the accused are incriminatory. Relevant replies which furnish a real and clear link in the chain of evidence indeed to bind down the accused with the crime become incriminatory and offend Article 20(3) if elicited by pressure from the mouth of the accused. …

An answer acquires confessional status only if, in terms or substantially, all the facts which constitute the offence are admitted by the offender. If his statement also contains self-exculpatory matter it ceases to be a confession. Article 20(3) strikes at confessions and self- incriminations but leaves untouched other relevant facts.”

Kathi Kalu Oghad’s case

In Kathi Kalu Oghad’s case[2], Supreme Court authoritatively observed, on the bounds between constitutional proscription and testimonial permission:

`In order that a testimony by an accused person may be said to have been self-incriminatory, the compulsion of which comes within the prohibition of the constitutional provisions, it must be of such a character that by itself it should have the tendency of incriminating the accused, if not also of actually doing so. In other words, it should be a statement which makes the case against the accused at least probable, considered by itself.’

Again the Court indicated that Article 20(3) could be invoked only against statements which `had a material bearing on the criminality of the maker of the statement’.

Whether derivative use of information extracted in a custodial environment is compatible with Article 20(3)

It is a settled principle that statements made in custody are considered to be unreliable unless they have been subjected to cross- examination or judicial scrutiny. The scheme created by the Code of Criminal Procedure and the Indian Evidence Act also mandates that confessions made before police officers are ordinarily not admissible as evidence and it is only the statements made in the presence of a judicial magistrate which can be given weightage.

Doctrine of ‘Fruits of Poisonous Tree’

The doctrine of excluding the `fruits of a poisonous tree’ has been incorporated in Sections 24, 25 and 26 of the Indian Evidence Act, 1872 which read as follows:

24. Confession caused by inducement, threat or promise, when irrelevant in criminal proceeding. –

A confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the Court to have been caused by any inducement, threat or promise, having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the Court, to give the accused person grounds, which would appear to him reasonable, for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him.

25. Confession to police officer not proved. –

No confession made to a police officer shall be proved as against a person accused of any offence.

26. Confession by accused while in custody of police not to be proved against him. –

No confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person.

Theory of confirmation by subsequent facts

However, Section 27 of the Evidence Act incorporates the `theory of confirmation by subsequent facts’ – i.e. statements made in custody are admissible to the extent that they can be proved by the subsequent discovery of facts. It is quite possible that the content of the custodial statements could directly lead to the subsequent discovery of relevant facts rather than their discovery through independent means. Hence such statements could also be described as those which `furnish a link in the chain of evidence’ needed for a successful prosecution. This provision reads as follows:

27. How much of information received from accused may be proved. – Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.

Section 161

Section 161, CrPC protects the accused as well as suspects and witnesses who are examined during the course of investigation in a criminal case. Section 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.

Presumption as to coercion

In Indian law, there is no automatic presumption that the custodial statements have been extracted through compulsion. However, in circumstances where it is shown that a person was indeed compelled to make statements while in custody, relying on such testimony as well as its derivative use will offend Article 20(3).

The relationship between Section 27 of the Evidence Act and Article 20(3) of the Constitution was clarified in Kathi Kalu Oghad (supra.). It was observed in the majority opinion by Jagannadhadas, J., at pp. 33-34:

“The information given by an accused person to a police officer leading to the discovery of a fact which may or may not prove incriminatory has been made admissible in evidence by that Section. If it is not incriminatory of the person giving the information, the question does not arise. It can arise only when it is of an incriminatory character so far as the giver of the information is concerned.

If the self-incriminatory information has been given by an accused person without any threat, that will be admissible in evidence and that will not be hit by the provisions of cl. (3) of Art. 20 of the Constitution for the reason that there has been no compulsion. It must, therefore, be held that the provisions of s. 27 of the Evidence Act are not within the prohibition aforesaid, unless compulsion has been used in obtaining the information.”

This position was made amply clear at pp. 35-36:

“Hence, the mere fact that the accused person, when he made the statement in question was in police custody would not, by itself, be the foundation for an inference of law that the accused was compelled to make the statement. Of course, it is open to an accused person to show that while he was in police custody at the relevant time, he was subjected to treatment which, in the circumstances of the case, would lend itself to the inference that compulsion was, in fact, exercised. In other words, it will be a question of fact in each case to be determined by the Court on weighing the facts and circumstances disclosed in the evidence before it.”

The minority opinion also agreed with the majority’s conclusion on this point since Das Gupta, J., held at p. 47:

“Section 27 provides that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of the information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. It cannot be disputed that by giving such information the accused furnishes evidence, and therefore is a `witness’ during the investigation. Unless, however he is `compelled’ to give the information he cannot be said to be `compelled’ to be a witness; and so Article 20(3) is not infringed.

Compulsion is not however inherent in the receipt of information from an accused person in the custody of a police officer. There may be cases where an accused in custody is compelled to give the information later on sought to be proved under s. 27. There will be other cases where the accused gives the information without any compulsion. Where the accused is compelled to give information it will be an infringement of Art. 20(3); but there is no such infringement where he gives the information without any compulsion. …”

Distinction between inculpatory and exculpatory evidence

The distinction between inculpatory and exculpatory evidence gathered during investigation is relevant for deciding what will be admissible as evidence during the trial stage. The exclusionary rule in evidence law mandates that if inculpatory evidence has been gathered through improper methods (involving coercion, threat or inducement among others) then the same should be excluded from the trial, while there is no such prohibition on the consideration of exculpatory evidence.

The law confers on `any person’ who is examined during an investigation, an effective choice between speaking and remaining silent. This implies that it is for the person being examined to decide whether the answer to a particular question will eventually prove to be inculpatory or exculpatory. Furthermore, it is also likely that the information or materials collected at an earlier stage of investigation can prove to be inculpatory in due course.

Rule against adverse inferences from silence

Indian law incorporates the `rule against adverse inferences from silence’ which is operative at the trial stage. This position is embodied in a conjunctive reading of Article 20(3) of the Constitution and Sections 161(2), 313(3) and Proviso (b) of Section 315(1) of the CrPC. The gist of this position is that even though an accused is a competent witness in his/her own trial, he/she cannot be compelled to answer questions that could expose him/her to incrimination and the trial judge cannot draw adverse inferences from the refusal to do so. This position is cemented by prohibiting any of the parties from commenting on the failure of the accused to give evidence.

This rule was lucidly explained in the English case of Woolmington v. DPP, (1935) AC 462, at p. 481:

“The `right to silence’ is a principle of common law and it means that normally courts or tribunals of fact should not be invited or encouraged to conclude, by parties or prosecutors, that a suspect or an accused is guilty merely because he has refused to respond to questions put to him by the police or by the Court.”

The 180th Report of the Law Commission of India

The 180th Report of the Law Commission of India (May 2002) dealt with this very issue. It considered arguments for diluting the `rule against adverse inferences from silence’. Apart from surveying several foreign statutes and decisions, the report took note of the fact that Section 342(2) of the erstwhile Code of Criminal Procedure, 1898 permitted the trial judge to draw an inference from the silence of the accused.

However, this position was changed with the enactment of the new Code of Criminal Procedure in 1973, thereby prohibiting the making of comments as well as the drawing of inferences from the fact of an accused’s silence. In light of this, the report concluded:

“… We have reviewed the law in other countries as well as in India for the purpose of examining whether any amendments are necessary in the Code of Criminal Procedure, 1973. On a review, we find that no changes in the law relating to silence of the accused are necessary and if made, they will be ultra vires of Article 20(3) and Article 21 of the Constitution of India. We recommend accordingly.’

Reference

Selvi v. State of Karnataka, (2010)


[1] Nandini Satpathy v. P.L. Dani, (1978) 2 SCC 424

[2] State of Bombay v. Kathi Kalu Oghad, [1962] 3 SCR 10