CHAPTER I

INTRODUCTION
One of the main objectives of criminal law is to protect the society by punishing the
offenders. At the same time, justice and fair play require that no one should be convicted
without a fair trial. The primary object of the administration of criminal justice is that justice
should not only be done but must also seem to have been done. Therefore, the administration
of justice requires that every person accused of an offence should be given a right against self
incrimination.

The privilege against self-incrimination has long been a source of debate. The state
machinery's role is twofold: on the one hand, to bring the criminal procedure against the
offender; on the other hand, to preserve the accused rights, particularly the right to self-
incrimination guaranteed by the constitution and penal laws. A person facing criminal charges
must be granted the right to keep silent regarding the allegations. The accused has been
granted this privilege as a result of the application of the presumption of innocence concept,
which is considered a core tenet in the administration of criminal justice in all civilised
countries. 1

The notion of self-incrimination immunity is based on the 'presumption of innocence,' which

is a well-established tenet in the English criminal justice system. In mediaeval England, an
accused might be interrogated without any limitations on the police's inquisitorial powers. In
the sixteenth century, the Star Chamber and the Ecclesiastical Courts abused the norm of
common law by using barbarous inquisitorial procedures. The aphorism "No man is
compelled to accuse himself nemo tenetur proder or nemo tenetur scripsum accused") came to
be asserted as a symbol of disapproval of such inquisitorial procedures. The genesis of the
privilege against self-incrimination is a point of contention. Legal historians vary on its
origins2, and its justification has been hotly debated since Jeremy Bentham famously
criticised it as a mistaken concession to the guilty.3 As a result of diametrically opposing
developments by, on the one hand, the courts and legislature in England and, on the other
hand, the institutions of the European Convention of Human Rights, this issue has entered a
new and important phase. The European Court of Human Rights has been reconstituting the
privilege as an inherent aspect of the right to a fair trial under Article 6.1 of the European
Convention, whereas the tendency in England has been towards attrition4 and formal
restrictions5 of the privilege. 6 The European decisions have the potential to significantly
expand the privilege, and they bring several of the English advances into doubt.7

The Court of Star Chamber and the Ecclesiastical Courts were widely despised, owing to their
role in suppressing religious and political dissent. Their procedures, however, were
considered as harsh, with judges from both courts having the authority to question an accused

1
The Historical Origins of the Privilege Against Self-Incrimination at Common Law, by John H. Langbein
(1994).
2
Cross on Evidence (London, 7th ed., 1990) at 203-204, 418-419; Glanville Williams, The Proof of Guilt
(London, 7th ed., 1990) at 203-204, 418-419; J.H. Wigmore, Evidence (VoI.VIII); J.H. Wigmore, Evidence
(VoI.VIII); J.H. Wigmore, Evidence (VoI.VIII); J.H. (London, 3rd ed., 1963).
3
Treatise on Judicial Evidence, by Beintham (London, 1825), p. 241.
4
The Principles of Criminal Evidence, by A.A.S. Zuckerman (Oxford, 1989), p. 307
5
The Criminal Justice and Public Order Act of 1994, Sections 34-39.
6
Ian H. Dennis 31 Downloaded from the internet, Israel Law Review (1997). Saunders v. UK (1997) 23
E.H.R.R. 313; Murray v. UK (1996) 22 E.H.R.R. 29 (European Court of Human Rights).
7
Murray v. UK (1996) 22 E.H.R.R. 29; Human Rights Case Digest Vol. V, Part I, Jan.-Feb. 1994, 40.
person under oath. This meant that an accused person may be forced to swear under oath to
reveal the truth under penalty of punishment, and then examined by the court to decide
whether or not he or she had committed an offence.

The fact that the accused may be interviewed under oath before any charges were lodged and
without knowing what he or she was accused of was perhaps the most disagreeable feature of
the method. Interrogation under oath could thus be employed as a 'fishing expedition,' with
the goal of uncovering proof of some as-yet-unidentified and revealed illegality. The first
objections to the Star Chamber and High Commission Courts appear to have been to this
aspect of their procedures, to the fact that the accused could be interrogated at large and
without knowing the specific allegations against him or her, rather than to the fact that the
accused could be compelled to answer questions per se.

The Courts were disbanded in 1641 after becoming exceedingly unpopular in the early
seventeenth century. The rejection of their procedures led to the development of the general
rule that 'no man is bound to-incriminate himself, on any charge (no matter how properly
instituted), or in any Court (not merely in the Ecclesiastical or Star Chamber Tribunals); and
this principle was extended during the restoration to 'include an ordinary witness, and not
merely the party charged. 8 The principle had evolved to the point where it applied even when
the accused was fully aware of the charges levelled against him or her. However, the history
of the pre-trial and post-trial rights to quiet, as well as the privilege against self-incrimination,
diverges from this point.

The right against self-incrimination allows for the protection of human privacy and the
application of civilised standards in criminal justice. The notion is now firmly enshrined in
English statutory law. 9 The immunity is also available to witnesses who are not the accused,
on the grounds that a witness in any action, civil or criminal, has the right to refuse to answer
a question if the answer could expose him to criminal liability. 10 If a witness who claims the
privilege is wrongfully compelled to answer, that answer cannot be used against him in a
subsequent criminal trial based on the incriminating statement.11

The framers of the American Constitution had firsthand knowledge of an arbitrary

government's employment of inquisitorial procedures. The fact that law enforcement
organisations use these methods and practises has not gone unnoticed by the American
Supreme Court. The right against self-incrimination is enshrined in the Fifth Amendment to
the United States Constitution, which states: "No person shall be forced in any criminal case
to be a witness against himself." Judicial interpretations have considerably broadened this
American constitutional provision. Initially, it just meant that a defendant could not testify
against himself. The Fifth Amendment's language was interpreted by American courts to be
broad enough to embrace all aspects of self-incrimination as applied under English Common
Law, including witness testimony and document production. Miranda v. Arizona12, the
Supreme Court's famous articulation of Miranda rights, set mechanisms to assure that police
tell criminal suspects of their constitutional rights and that police respect those rights.

8
Evidence, according to Wigmore (3rd ed., Boston: Little, Brown & Co., 1940).
9
Criminal Evidence Act, 1898.
10
20 Ch. D. 294, Ex parte Reynolds.
11
R. v. Coote, LR 4PC 599.
12
384 U.S. 436(1966).
Because the American Constitution recognises the ability to waive fundamental rights, it is
also legal for an accused to waive this privilege. The constitutional restriction against self-
incrimination, which is purely for a witness's own benefit, is assumed waived until it is
specifically raised during his examination. The constitutional guarantee, on the other hand,
does not protect witnesses from revealing crimes against foreign law.13

Article 20 of the Indian Constitution ensures the "right against self-incrimination" (3). Article
20(3) of the Indian Constitution protects against self-incrimination, stating that "No person
accused of any offence shall be compelled to be a witness against himself." While not only
the accused but also any witness to a hearing is protected from answering incriminating
questions in both the United States and England, a mere witness is not protected under our
Constitution's Art. 20(3).

In this work, an attempt is made to clarify and illuminate the applicability of the doctrine of
self-incrimination enshrined in Article 20(3) of the Indian Constitution, primarily in light of
decided decisions and in the context of the presumption of innocence. The theory has also
been investigated to see if it applies to testimonial compulsion in and out of the courtroom.
This examination will cover topics such as mandatory production of documents by an accused
person as well as the prosecutor's production of documents and valuable articles, the status of
documents discovered and seized after a search of the accused person or collected from the
accused's premises, voluntary statements where the accused was not compelled (as this
amounts to testimonial compulsion), and statements made by stepping voluntarily.

Modern scientific advances in the identification of crimes have raised the question of whether
forcing an accused individual to submit to tests and physical and medical examinations is a
violation of the privilege. Regardless of whether or not there is a particular constitutional
provision in this regard, there must be statutory provisions that allow the police or the court to
compel an examination of the accused. In India, there are few statutory rules relating to the
accused's physical and medical examination, and there is no complete statute that covers the
wide range of examinations made available by modern scientific advances. The different
statutory provisions requiring the accused to undergo a physical and medical examination are
generally applicable.

The focus of this book is on numerous Indian court rulings that have been examined in order
to arrive at specific conclusions. However, the purpose of this research is to determine the
constitutionality of various types of examinations involving the accused's body, as well as to
propose remedies to address the problem, such as giving police and courts the authority to
require the accused to undergo various types of bodily examinations and tests.

The United States' actions and powers have frequently been cited in discussions of the topic.
This is due to the fact that, aside from their availability, the constitutional issue that has arisen
in India is more akin to that which has arisen in the United States than in England. However,
the privilege has its origins in England. As a result, in this research, the American and English
authorities have been consulted.

It is required that the person charged have acted in the capacity of an accused at the time of
making the statement. It is insufficient that he becomes an accused at any point after the
statement is made.
13
Chapter III.
The relationship between section 161 of the Criminal Procedure Code, 1973 and Art.20(3) of
the Constitution must be examined. Section 161(2) of the Criminal Procedure Code, 1973
requires an accused person to answer truthfully all questions relevant to the case under
investigation that are put to him by the investigating police officer. The areas covered by
Art.20(3) and Section 161(2) appear to be nearly identical. Section 161(2) of the Code
appears to be a parliamentary gloss on the constitutional clause. The point, on the other hand,
needs to be thoroughly investigated. What are the conditions of section 161(2) of the Criminal
Procedure Code? Does the proclivity to charge someone with a crime include responses that
are implicative in other criminal matters that are currently being investigated or tried? Is an
accused person included in section 161 of the Cr.P.C. 1973, or merely a witness?

The most essential question to consider is whether a direction to the accused to provide a
document under section 91 of the Cr.P.C. 1973, triggers the requirements of Article 20. (3). It
is timely in light of recent examples of corruption in India, which have sparked a huge legal
and political controversy. In the changing environment, the inter-relationship between section
91, Cr.P.C. 1973 and Art. 20(3) of the Constitution must also be addressed.

Further concerns about section 27 of the Evidence Act, 1872, may emerge, such as whether
the statements rendered admissible by section 27 are covered by Art. 20(3) if they are
compelled statements. Whether this immunity should be extended to situations involving
socioeconomic crimes; whether this immunity should be extended to cases involving national
security; whether facts found as a consequence of compulsion are admissible as evidence or
are covered by Art. 20(3)? These issues have been debated in the courts. The researcher wants
to look at these incidents and see how they fit into the current situation.

1.1 HISTORICAL BACKGROUND

The ancient criminal law of England was developed from the 'Twelve Tables' of Roman
criminal law. Inquisitorial methods were utilised in those days to find the truth, subjecting the
victim to various forms of torture, brutality, and inhuman treatment in violation of the dignity
of human conscience.14 In around 409 A.D., three Germans seized English lands, defeating
Roman armies. Because the German criminal justice system resembled the Roman system, the
conquest had little effect on the system as a whole. The approach was based on moral and
religious encouragement to a large extent. "Alfred's laws began with ten 'Commandments' and
adaptations of exodus-related elements."15 The technique in search of truth and summation in
form was developed by ordeal.

Private retribution devolved into private wars, blood feuds, and anarchy, prompting William
the Conqueror to impose "trial by battle." 16 Many changes were brought about by the
vicissitudes of history and social conditions, and the prevailing practise was superseded by
oath. Brutality and third-degree approaches for obtaining admissions and confessions were
deemed unacceptable. As a result of the Barons' tyranny, King John-I was forced to sign the

14
Stephen, IF, Sir, A History of Criminal Law of England, London, 1883, citing Gibbon, Ch. XXXI.
15
A History of Criminal Law in England, London, 1883, Printed by Research Services Works Series, New York,
1971, at 52. Stephen J.F
16
Id at 61.
Magna Carta in 1215, which established several human basic rights for the17 oppressed and
disadvantaged population of England.

The goal of this article is to examine and discuss the constitutional protection of an accused
person against "self-incrimination" as granted by our Constitution. The accused had to be
sworn in before 1236. The judge did not interrogate him. The oath was a ritual in and of itself,
and the judgement of guilt and innocence was based on the correct proclamation of the
pledge. In 1236, the ecclesiastical courts devised a new procedure that compelled the accused
to respond to the judge's query. The Star Chamber Statute of 1487 allowed the accused to be
examined on oath during his trial. The oath was eventually removed because it was feared that
a party would be forced to accuse themselves of any wrongdoing. In reality, the case of John
Lilburn18 in England resulted in the termination of inquisitorial and barbaric tactics used by
the Star Chamber Courts in the exercise of their criminal jurisdiction. The Court agreed that
the accused should not be put under oath and that no evidence should be obtained from him.
By the end of King Charles-reign, II's judges in England had widely agreed that no one was
obligated to incriminate himself on any allegation.19 In the year 1700, this privilege was fully
recognised.20 It is pointless to go into detail about this privilege in England and the United
States of America separately; instead, whenever necessary, a random comparison of this
concept as obtained in the Anglo-American system versus the continental system with its
constitutional counterpart in India will suffice.

The concept of privilege is the result of a complex history's vicissitudes. 21 Even in the late
16th and early 17th centuries, the distrust of all interrogations of the accused arose as a
reaction to the Star's Chamber's tactics of enforcing unpopular religions and political
legislation. This approach was not only followed by English settlers in England, but also in
the United States;22 and the same practise was adopted with the introduction and
transplantation of English criminal law into India. Accused persons were occasionally forced
to testify against themselves due to the use of third-degree method(s) inside the Court, not to
mention outside the Court. As a natural result of the accused's interrogation rights, the third
degree method(s) is still in use in virtually all countries today.

In the nineteenth century, the expansion of the accused's right to counsel and call witnesses,
along with the tradition that the accused should not be put under oath, resulted in a common
norm of forced silence.23 The 'privilege' had its greatest significance during this time because
the enforced silence could not logically lead to a conclusion of guilt. Later that century,
concern for the innocent led to the passage of enabling legislation in England 24 and the United
States, allowing the accused to testify if he so chooses, but with no provision for an
unfavourable inference based on the accused's failure to testify. 25 passage and incorporation
of Bill of Rights by many democratic countries in their Constitutions.

17
"Magnacarta celebrates its 750th year," A.B.AJ. Vol.51, June (1965), 529 at p.539. Dick Howard, A.E.
18
3 St.Tr. (1315).
19
Halsbury’s Laws ofEngland, 3rd edn., vol.10, at 272-273.
20
Stephen, J.F., Sir A History ofthe Criminal Law of England, Vol. 1, London 1883, at 375,429.
21
Wigmore’s Evidence, 3rd ed., Vol.VIII, 1940, 2250.
22
Supra, n.7.
23
C. Howard, Criminal Justice in England, London, 1931, 373; Heydon, J.D., “Confessions and Silence” Sydney
L.R. Vol.VII, 1976, 375 at 379-80.
24
Criminal Evidence Act, 1898, 61 & 62 Viet. C. 36(i)(e)(f)
25
Williams, G. The ProofofGuilt, 3rd edn., 1963, at 63-66.
The constitutional protection is a great recognised concern for an individual’s dignity and his
inviolable rights.26 Not only an individual’s dignity, conscience and right is protected under
the Constitution but also the very integrity of judiciary is protected by prohibiting the
conviction of an individual through unconstitutional methods.27 The public faith in judiciary
and the procedure adopted by it for fair and impartial justice is reaffirmed .

The presumption of guilt of the accused spawned a slew of inhumane methods, including
torture, which is a third-degree method for extracting confessions. Torture was an integral
component of the ancient legal process, which was predicated on an ordeal test comparable to
the presumption of guilt.28 In India, a guy suspected of stealing was exposed to a boiling oil
ordeal during which he was required to pick up a piece of iron rod by hand. If his hands
remained unharmed, he was declared innocent; otherwise, he was found guilty29. The judge
ordered the Mrich chhakatika hero to reveal the truth or face being flogged.

The first Penal Code was presumably enacted in 1827 in the Indian province of Bombay, and
it was a basic treatise rather than a legislation that replaced conventional law. The Code was
exclusively applicable to East India Company courts and lasted until it was replaced by the
Indian Penal Code in 1860, during the governorship of Mount Stuart Elphinston.30 The
presumption of innocence was first utilised in Nobokisto's case, when it was decided that the
golden rule of criminal justice is that an accused is presumed innocent until proven guilty;
hence, the accuser must prove all facts consistent with his guilt and incompatible with his
innocence. In this regard, the law does not weigh the contradicting testimony offered by each
side on golden scales, but rather takes a stand on the side of the accused, carefully investigates
all facts and circumstances, and takes care not to infringe on the liberties of those who are
placed under its protection.31

Section 101 of the Indian Evidence Act, 1872, and section 313 of the Code of Criminal
Procedure, 1973, both recognise the presumption of innocent.

Prior to the creation and implementation of the Indian Constitution, which includes an Article
20 prohibiting "self-incrimination" (3). Section 342 of the Code of Criminal Procedure, 1973,
contains a similar clause. Such provisions existed prior to the enactment and execution of the
Code of Criminal Procedure, 1898, under section 3 of Act 15 of 1852. It recognised that an
accused in a criminal proceeding was not a competent or compellable witness to give
evidence for or against himself; however, it was modified in 1855 by section 32 of Act 2 of
1855, which made him compellable to answer even incriminating questions while keeping
him immune from arrest and prosecution based on such evidence, except for a presumption of
giving false evidence. Section 132 of the Indian Evidence Act, 182 continues to apply to this
case. Section 130 of the same Act protects a suitor from having to produce a document,
although it is unclear if this protection applies to an accused.

In India, the position on documents is similar to that of England's common law. No oath shall
be administered to an accused under Sections 203 and 204 of the Criminal Procedure Code of
1861, and the Magistrate is given authority to interrogate an accused. Section 3 of Act 15 of

26
"Legal Interrogation of Persons Accused or Suspected of Crime," J. Crirn. L.C.&P.S. 1014; Pound,
27
Williams, “Police Interrogation Privileges and Limitation in England,” 52 J. Crirn. L.C.&P.S. 50,52(1961).
28
Stephen, J.F., A History of Criminal Law ofEngland, Vol.l, London, 1883, at 441
29
Yajnavalka II, 3.
30
Stephen, J.F., Sir, A History of Criminal Law of England, Vol.III, London, 1883, at 295.
31
Queen K. Beharee (1865), 3 W.R. (Cri.) 23,26.
1852 was repealed and replaced by Evidence Act No. 1 of 1872. After the prosecution
witnesses had been examined, section 250 of the Criminal Procedure Code of 1872 required a
general questioning of the accused, and section 345 of this code forbade the administration of
oath to a person accused of an offence.

With the introduction of the right against self-incrimination as a constitutional right in 1950,
the rule's horizons have expanded dramatically. To determine the reach of the rule, our courts
have looked to other systems of jurisprudence, particularly precedents from the United
States.32 However, in interpreting and extending the constitutional rights of the accused,
American courts have taken a very liberal view of the doctrine of self-incrimination,
expanding its scope to the extent of the harm it seeks to protect. On the other hand, the Indian
interpretation of such a right has yet to reach those dimensions.

1.2 IN COMMON LAW SYSTEMS, SELF-INCRIMINATION

The establishment of the right to silence was a watershed moment in Anglo-American

criminal procedure. The origins of the common law privilege have been traced back to the
second half of the seventeenth century, as part of the aftermath of the constitutional fights that
ended in the destruction of the Star Chamber and High Commission tribunals. 33 However, as
Professor Langbein 34 indicates, the genuine origins of the common law privilege can be traced
in the growth of adversary criminal procedure at the end of the eighteenth century, rather than
in the high politics of the English revolutions. At common law, the privilege against self-
incrimination was inextricably linked to the job of defence counsel. 35

The essential procedural safeguard for the defendant from the middle of the sixteenth century
until late in the eighteenth century was not the right to keep silent, but rather the ability to
speak... The growing concept of a fair trial indicated that the accused should be given the
opportunity to respond to the charges against him in person. The provision prohibiting
defence counsel was the most important feature of the method that brought this character to
the criminal trial. From 1696 to 1836, there was a gradual limitation on defence counsel, first
for treason, then for felony. Although ordinary felony defendants were granted counsel in the
1730s, it was not until the 1780s that defence counsel became qualitatively significant.36

Under the influence of defence counsel in the late eighteenth and early nineteenth centuries, a
radically different conception of the aim of the criminal trial came to prevail. The criminal
trial came to be considered as an opportunity for the defendant's lawyer to test the prosecution
case. As part of this fundamental reorganisation of the trial, the privilege against self-
incrimination was incorporated to common law procedure (together with the beyond
reasonable doubt standard of proof and the exclusionary mechanism of modern criminal
evidence). It was the criminal trial, which was produced, directed, and dominated by lawyers
for both the prosecution and the defence, that allowed the defendant to refuse to testify against
himself.

32
Wright, "The Role of the Supreme Court in a Democratic Society Judicial Activism or Restraint," 54, R.
Berger, Congress the Supreme Court, (1969) at 16. L.R. Cornell 1 (1968).
33
Wigmore, On Evidence, Vol.8 at 616.
34
John H. The Historical Origins of the Privilege Against Self-Incrimination at Common Law (1994)
35
Ibid.
36
Ibid.
In the preceding statement, three categories of replies are contemplated as possible subject
matter of a claim to privilege: those that placed the deponent in danger of a criminal
accusation, those that put him in danger of a penalty, and those that could lead to forfeiture. It
used to be common practise to put in the rule answers that suggested the deponent had
committed adultery. Each of these issues has a distinct history, with the result that the so-
called privilege against self-incrimination encompasses a broader range of issues than
criminal culpability.

The unpopularity of the procedure in the star chamber under which those charged with an
offence were interrogated on oath contributed to the rule that the accused could not testify in a
criminal case, and the idea that no one could jeopardise his life or liberty by answering
questions on oath37 to be applied to all witnesses in all proceedings in the course of se. The
norm extends beyond replies that directly implicate the witness to those that could be utilised
to collect evidence against him. For example, in R. v. Sidney38, a witness who testified at a
trial for criminal libel based on an advertisement in a newspaper was asked if he knew who
wrote to the proprietors with the advertisement, and after he answered yes, Lord Tenterden,
C.J. upheld his objection to stating the name of the letter's writer:

You cannot compel a witness to answer anything that will criminate him, but you can compel
him to answer anything that will criminate him. The reason for this is that the party would go
from one question to another, and even if no question was asked that would directly criminate
the witness, they would get enough information from him to lay a charge against him.

It was always considered that if the witness swore that his answer would tend to convict him,
it would be enough to establish the claim of privilege, but as we will see, the court now needs
to look into the subject further.

According to the regulation, neither the judge nor the prosecution have the right to question
the accused at any point unless he decides to testify. "At the Common Law," writes
Blackstone, "nemo tenbateur" prodev seipsum: and his guilt was not to be wrung out of
himself, but to be discovered by other ways and by other people. This law is known as the
accused's right not to be interrogated; in the United States, it is known as the privilege against
self-incrimination. The latter phrase is a better name for another rule: any witness has the
right to decline accusations.

1.3 THE RIGHT TO BE QUIET

Given that the prosecution must show the accused's guilt, the obvious question is how they
will do it. The law, in theory, compels the prosecution to prove its case without relying on the
accused, who may or may not be obligated to answer questions. This is commonly referred to
as the privilege against self-incrimination, but it is important to distinguish it from the rule
that witnesses are not required to answer questions that could incriminate them. From a
defendant's perspective, the right to silence includes the right to refuse to answer police
questioning, the right to refuse to go into the witness box and provide evidence under oath,
and the right to make an unsworn statement from the dock that is not susceptible to cross-
examination. In both India and America, the right to silence is founded in a reaction; some
would say overreaction, to the practises of the Star Chamber, which used the rack as its

37
Witnesses Act, 1806, at 165.
38
(1832), 5 C. & P. 213; Short v. Mercier (1851), 3 Mac. PG 205, at 217 per Lord Truro
primary investigative tool. For a time, this resulted in the accused being declared incompetent
as a witness, preventing him from defending himself in case he incriminated himself. The
judges allowed the defendant to make an unsworn statement from the dock, but he was not to
be cross-examined on it, and it did not carry the same weight as sworn evidence because it
was not sworn. The accused was allowed to provide evidence at the end of the nineteenth
century, but he had the liberty to refuse, and the prosecution was banned from commenting on
this failure, while the judge was free to do so. The Act declaring the accused competent also
preserved his ability to give an unsworn confession for any unjustifiable reason.39

At the same time, judges were taking an ambiguous stance on police questioning during the
pre-trial stage.40 Some would not allow it, while others would if the accused was warned that
he did not have to answer any questions. Due to the ambiguity, the Judge's Regulations were
issued, which were backed up by administrative rules to ensure that the accused were treated
fairly. Those original guidelines basically prohibited suspects from being questioned after
they had been apprehended and taken into jail. This prohibition on in-custody interrogation
resulted in evasion, and revised guidelines were published in 1964 that did allow in-custody
interrogation. 41 A suspect can now be arrested and questioned for an extended period of time
without being cautioned, and then questioned again after being cautioned until he is charged
with the crime or informed that he will be prosecuted. The police act in a deceitful and often
illegal manner, and it is safe to argue that there is no true right of silence for many people
during an investigation. The goal of such interrogation is to acquire confessional remarks,
which frequently lead to a guilty plea, with the police also wanting to avoid trials, which take
up a lot of time and require additional police investigation.42 As a result, interrogation may be
viewed as a technique of denying an accused person a fair trial. Even if the accused insists on
a trial, the fact that he has confessed makes defending the case extremely difficult. If the
police witnesses are attacked, the accused with prior convictions may have those convictions
presented as evidence by the prosecution, which could persuade a jury of the defendant's
guilt.43 The accused is almost guaranteed to be convicted if they are not attacked and the
confession is admitted. A declaration that is not voluntary in the sense that it was acquired by
fear of prejudice or nope of advantage exercised or held out by a person in power, or by
oppression, may be excluded by the judge. A statement made under duress, such as the offer
of bail in exchange for a confession, will be inadmissible. 44 Questioning that is oppressive
saps a person's willpower and forces him to speak when he does not want to. The length of
questioning, the period of relaxation, and the qualities of the individual questioned will all
influence whether or not questioning is oppressive. What may not be oppressive to a strong
man of the world will be oppressive to a housewife who has never been exposed to police
tactics.45

The judge may address the jury if the accused remains mute throughout the interrogation
stage, or if he keeps silent in court by refusing to give testimony under oath. He is not
permitted to comment on the failure to speak after a warning since the warning serves as a
reminder of the accused's right to silence. He may ask the jury to assess how much weight the

39
Criminal Evidence Act, 1898, section 1(h).
40
Protection of the Accused in the Pre-Trial Procedure: England and Wales, by Leonard H. Leigh.
41
Circular No. 31/1964, issued by the Home Office. H.O. Circ. No. 89/1978 has been revised.
42
(1979) Crim. L.R. 203, indicates that in actuality, the privilege to quiet is almost non-existent, with only 4% of
his sample relying on it.
43
Ibid
44
R. v. Zavecks, 54 Cr. App. R. 202 (1969); R. v. Middleton, 2 All. E.R. 1190 (1974).
45
1 All. E.R. 1114, R. V. Prager [1972]. R. Hanghlon, Times Law Report, June 22, 1978.
evidence should be given, taking into consideration the fact that the police may not have been
given the opportunity to initiate since the accused failed to disclose his narrative earlier. He
may not, however, propose that the jury conclude that the storey stated in court is false
because, if it were genuine, the accused would have come forward to the police. The Court of
Appeal in Sullivan46 demonstrates the judicial reluctance to accept this. The accused was
found guilty of smuggling watches, and the judge stated to the jury that the accused had the
right to refuse to talk.

However, you'd think that if a man is innocent, he'd be eager to answer questions. That,
members of the jury, is what this truly boils down to.

The Court of Appeal stated that a jury with any sense would have said this to itself and that
there was no injustice in such a direction. Despite the fact that it was a misdirection according
to the authorities, the court applied a proviso to what is now section 2(1) of the Criminal
Appeal Act, 1968, which permits the court to dismiss an appeal if "no conceivable
miscarriage of justice has occurred." Judges' comments on the accused's failure to offer
testimony under oath and submit to cross-examination are viewed with similar ambivalence.
One court might see the refusal as an exercise of an unassailable privilege that doesn't require
further explanation, aside from the fact that an unsworn declaration from the dock has more
weight than sworn evidence.47 Others, of a different mindset, may consider exercising one's
right as obstructing the quest of truth, and they will tell the jury so emphatically. 48 However,
as with silence during interrogation, the remark must not go so far as to imply that a failure to
provide evidence is sufficient to infer guilt.

The police regard the right to silence as a barrier to inquiry, and it is said that top criminals
rely on it to avoid prosecution.49 The Criminal Law Revision Committee appears to have
agreed with this viewpoint, as it has proposed that the right to silence be abolished. They
suggested:

i. the Court may draw such inferences as appear proper in determining the point at issue
when the accused is being interrogated by the police and fails to mention a fact that he
later relies on at his trial, and that failure should be treated as corroboration of any
evidence against the accused to which the failure is relevant.

ii. that the warning that the accused is under no obligation to say anything be substituted
with a warning that failing to state any fact on which he plans to rely in his defence
could jeopardise his case.

iii. that an accused's privilege to make an unsworn statement be repealed, and that the
accused be formally summoned to present testimony under oath. He may still refuse,
but the Court or jury may draw whatever inferences they see fit from his unwillingness

46
(1967)51 Cr.App. R. 102.
47
'I pray the day will never come when that right is denied to any Englishman,' wrote Devlin J. (as he was then)
in Admes 1957.
48
Swift J. began his summing up in Nodder (1937) by reminding the jury that several witnesses had testified as
to the whereabouts of the murdered Gill up to the time when the accused was with her, but they had not heard
from the accused, despite the fact that he was the only one who could say where she was afterwards.
49
The Listener, 8 November 1973, 'Minority Verdict' by Sir Robert Mark. Law Quarterly Review 214, Heydon,
Statutory Restrictions on the Privilege Against Self-Incrimination (1971).
to give testimony (or answer allowed questions), and his refusal may be used to
corroborate the evidence against him. 50

These recommendations would bring the English system closer to that of the continental
inquisitorial system, and if they had been limited to the trial, they might have been received
more favourably, because in the vast majority of indictment trials, the accused is represented
at the trial and protected from potential abuse. Unfortunately, the measures offer the police
even more questioning powers, with no actual protection for the accused because they have no
access to a lawyer during the interrogation stage. Because there is no true right of silence at
this stage for the vast majority of accused, the proposal to allow adverse inferences to be
formed will place the accused at an even greater disadvantage. The idea that top criminals use
the right to silence to avoid prosecution is unsupported by evidence. Indeed, the data implies
that acquittal of such individuals is due to a lack of sufficient evidence.51 The Committee's
recommendations will not improve the conviction rate in such cases since adverse inferences
and silence as corroboration will not suffice until other evidence is present. There can be no
confirmation if there isn't enough evidence. As a result, the ideas would target the most
vulnerable, who are already uninformed of their right to quiet.

Judges appear to be working toward their own eradication of the right to silence through the
interpretation and expansion of current common law. The fact stated "except in so far as he
adopts the statement so as to make in effect of his own," silence in the face of an accusation is
not normally proof against the accused.52 An accused may accept such a statement in whole or
in part through words, conduct, action, or demeanour, and it is up to the jury to decide
whether such words, conduct, action, or demeanour amount to acceptance of the statement in
whole or in part. Silence alone in the face of a police officer's accusations cannot lead to the
conclusion that the person accepts the veracity of the allegation, according to Hall53, a Privy
Council judgement. The Court in Parkes v. The Queen made it plain that the principle is based
on the unfavourable position of the accused when confronted with police interrogation. They
then approved a directive issued in a previous instance, which stated: 54

When two people are conversing on friendly terms and a charge is made, and the person
charged says nothing, exhibits no outrage, and does nothing to refute the claim, that is
evidence that he admits the charge is true.

R. v. Chandler appealed to this 'wide principle of common sense' once more.55 'C' was found
guilty of conspiring to cheat by renting and then selling television sets. The only evidence
against 'C' was an interview with a police officer in the presence of his lawyer, during which
'C' was caught lying and made noncommittal responses before and after being admonished. In
response to this refusal to respond, the judge instructed the jury:

You should consider whether he did so [by refusing to respond]. in the belief that he was
acting in accordance with his common-law right to whether he remained silent because he

50
Criminal Revision Committee, 11th Report - Evidence (General) (1972) Cmnd 4991.
51
McCabe and Purves, By-Passing the Jury, Oxford University Press (1972)
52
R. v. Christie [1914] A.C. 545.
53
Hall V. R. [1971] 1 All E.R. 322.
54
[1976] 3 All. E.R. 380 citing R. v. Mitchell (1892) 17 Cox. C.C. 503.
55
(1976)3 All. E.R. 105.
was afraid of being found out, or whether he remained mute because he was afraid of being
found out he would have incriminated himself if he had answered in any way. 56

The conviction was overturned by the Court of Appeal because inability to answer questions
did not establish a solid foundation for inferring that he was a member of a conspiracy. The
Court, on the other hand, decided that because 'C' had his lawyer present, he was speaking on
an equal footing with the police officer.
Therefore:

Some criticism of the appellant's lack of candour before he was admonished was appropriate,
as long as the jury's focus was on the relevant question, which was whether the appellant's
quiet constituted to an acceptance of what the detective sergeant had said in the
circumstances. If he agreed with what was said, the next issue should have been whether guilt
could be inferred from what he had agreed to. To argue, as the judge did, that the appellant's
silence could indicate guilt was to circumvent the necessary intellectual process.57

Silence after caution appears to be inappropriate, but caution is not required until the police
have evidence on which to make a charge. As a result, when a solicitor is present, the accused
has no right of silence for the majority of the questioning because his inability to answer will
result in unfavourable conclusions being formed in relevant instances, including an inference
of guilt, if the proper intellectual process is followed.

We are then extremely near to achieving the goals of the Criminal Law Revision Committee.
When a solicitor is present during a police interrogation, it would seem logical to eliminate
the right to quiet and any pertinent inferences that can be inferred from silence.58 When an
accused has his lawyer present to counsel him, there can be no injustice in forcing him to
answer questions or risk having inferences drawn from his silence. The wicked would no
longer be able to hide behind the right of quiet, and the innocent would no longer have to fear
speaking up.

1.4 THE PROTECTION OF THE ACCUSED'S RIGHTS IN THE PRE-

TRIAL PROCEDURE

We must first ascertain what the accused's rights, or more accurately, privileges or protections
are, where they come from, and what institutions exist to protect them. And it is here that one
must deviate from any common understanding of the term 'rights,' such as when it refers to
safeguards conferred by a foundational text with constitutional significance, as in the United
States or in Europe under the European Convention on Human Rights.59 Perhaps the best way
to define the safeguards afforded to the accused is simply as such. They derive from a variety
of sources, including statutes, some of which are centuries old, such as the Habeas Corpus Act
1679, and others that are more recent, such as the Bail Act of 1976, common law, Home
Office administrative directives, and precepts enshrined in reports that are still regarded as

56
Ibid.
57
Id., at 110-11.
58
To discourage professional criminals from relying on the right to silence by refusing a solicitor, one could
grant the police the authority to insist on the presence of a solicitor.
59
Brownile, Basic Documents on Human Rights (1971)
particularly authoritative or persuasive, such as the Royal Commission on Police Powers and
Procedures of 1929.60

Some aspects of English law and practise relating to interrogation are unclear. They are
frequently disregarded. Of course, some matters are transparent. Except in extraordinary
circumstances, such as the Official Secrets Act, English law recognises the right to silence,
and no one is obligated to answer queries from police officers. As a result, it is impossible to
extract statements using force. For ages, torture has been prohibited.61 The United Kingdom
admitted that the interrogation methods complained of, such as hooding, subjecting detainees
to continuous loud and hissing noises, depriving them of sleep, subjecting them to a restricted
diet, and forcing them to stand against a wall in a painful posture for several hours, were in
violation of domestic law.62 Such approaches had never been considered, let alone deployed,
in routine criminal interrogation. Some of the commission's earlier remarks, in particular the
assertion that the psychological pressure involved in telling a suspect that he will not be
allowed to leave a police station until the police have learned everything from him, is not a
course of conduct involving inhuman or degrading treatment by undue pressure, are perhaps
less reassuring. 63 Regrettably, it's a formula that's not dissimilar to one that a British judge has
approved.64

The police are in charge of interrogation. Despite its ambiguous reach, the law has always
allowed the police to examine anyone, including potential suspects, in order to ascertain
whether there is sufficient cause to suspect any individual or persons of participation.65 The
person being questioned has no need to respond, much less to appear at a police station.
Although the preferable position appears to be that such interrogation, while undesirable, is
not illegal, it has never been totally clear whether the police may interview a person in
detention. 66

Physical coercion is prohibited, and it is doubtful that any English court would take the
extreme stance that pressures are not untoward until they are of such nature that the will to
resist crumbles. Confessions obtained through intimidation and promises from a person in
power are not admissible in court67, and there is a lot of case law dealing with the
repercussions of this rule. On the other hand, neither the law nor the Judge's Rules that govern
interrogation procedures prevent interrogation until a very late stage in the proceedings, by
which time the accused may have seriously compromised himself, and neither the law nor the
practise even comes close to 'equality of arms' between the police and the suspect.
Furthermore, admissions are normally granted subject to a discretion to reject them where
administrative precepts respecting investigations are infringed, however admissions are
excluded as a matter of law where they are gained by threat or promise. In some cases, the
judge may address the jury during the trial about the accused's failure to give a statement to
the police.68

60
Cmd. 3297, Report of the Royal Commission on Police Powers and Procedure (1929).
61
G.L. Williams, The Proof of Guilt, 3rd ed., (1963), Chap.3.
62
Ireland v. United Kingdom, (1976) Y.B. Conv. at 750.
63
Ibid
64
Conway v. Hotten (1976) Cr. App. R. 11.
65
Rex v. Knight and Thayre (1905) Cox C.C. 711.
66
Ibrahim v. R. (1914) A.C. 599.
67
Phipson on Evidence (12th Ed. 1976) pars 791-841.
68
Reg v. Littleboy (1934) 2 K.B. 408; Reg v. Ryan (1964) 50 Cr.App. R. 144.
Some of these topics necessitate a great deal of attention. The Judge's Rules and
Administrative Directions to the Police control interrogation by the police. 69 The goal of the
Administrative Directions is to establish certain broad rules concerning questioning, including
who may attend, what food and rest facilities should be provided, and what records should be
preserved. The guidelines establish a complex series of warnings that police officers must
issue at various phases of interrogation. Their goal isn't so much to notify the accused of his
right to remain silent as it is to provide an administrative code that, if followed, will allow the
prisoner's statements to be used against him in court.70 Breach of the Rules does not always
make a statement inadmissible, and formal compliance with them does not always result in
admissibility when the questioning procedure is otherwise unfair, but examples of the
exclusionary rule being applied are unusual, as will be demonstrated. Although English law
recognises a right to quiet and embodies an ethical restraint on governmental authority, it also
recognises that a person who invokes this privilege may be a terrible citizen and does not
encourage its use. The caution informs the accused of his right to remain silent; it is, in fact, a
bare minimum recognition of the right, and as applied, it barely fulfils the minimum standard
of acquainting people with the rights that the law bestows upon them. 71 Even if the Rules are
followed to the letter and spirit, no warning is necessary until the constable obtains evidence
against the suspect in custody that would justify the filing of a charge.72 Furthermore, it is
now widely recognised that asking a policeman to determine whether he has admissible
evidence sufficient to warrant a caution is unreasonable in some cases.73 The court's decision
is emblematic of current attitudes in that it is not that the caution should be used more
frequently when there is uncertainty about these topics, but that the caution should not be
supplied at all.

Other components of the Rules are arguably much more crucial than the caution and are not
adequately addressed. Other violations were discovered in the Fisher Report, including
incorrectly delaying a charge to allow questioning to continue 74, failing to delay the
interrogation of a juvenile until a parent, guardian, or other independent person could be
present, failing to inform suspects of their right to see a solicitor, prompting, and disingenuous
and unfair responses to certain questions posed by the suspect.75

A particular issue is whether a suspect has the right to have a lawyer present during the
interrogation. A suspect who is kept incommunicado is obviously far more vulnerable to
pressure than one who is allowed to speak with the outside world. A person arrested and held
in custody has a very limited right to have notice of his arrest and the location where he is
being held sent to one person reasonably named by him, without delay, or to whom some
delay is necessary in the investigation or prevention of crime or the apprehension of
offenders, with no more delay than is necessary, according to the law.76 Professor Griew
correctly points out that the section does not impose a consequence on the police in the event
of a violation. The section's qualifying phrases are intended to ensure that news of the
accused's arrest does not reach his criminal contacts, putting them in danger of fleeing,
destroying evidence, or even committing serious crimes. 77

69
H.O. Circular No. 89 of 1978.
70
Supra n. 43.
71
Fisher Report, par.2.21.
72
Reg. v. Virtue [1973] Q.B. 678.
73
Reg. v. Halford, (1978) 67 Cr. App. R. 318.
74
A breach of Principle (d) with which Rule III is to be read.
75
Supra n. 76
76
Criminal Law Act, 1977, S.62.
77
E. Griew, The Criminal Law Act, 1977, p.45/62.
The limited statutory right in question is bolstered by Judge's Rules principle (c), which states
that anyone, at any stage of an investigation, should be able to communicate and consult
privately with a solicitor, even if he is in custody, provided that doing so does not cause an
unreasonable delay or hindrance to the investigation or administration of justice. 78 This clause
is more important than the statutory right. It is further bolstered by a provision that allows a
person in detention to speak with his or her lawyer or friends if doing so would not jeopardise
the inquiry or administration of justice. These rights must be explained to him orally. 79

In practise, what does it mean to be entitled to the services of a lawyer? Judicial declarations
about the scope of the right to a lawyer are uninspiring. According to Lawton L.J. in Reg. v.
Lemsate80, the police cannot restrict access to a counsel based on the police's mere
presumption that the solicitor could alert others who might destroy evidence. The fact that a
suspect has not yet made an admission is also not a good justification to withhold access. On
the other hand, he claims that access can be denied in cases where having to wait until normal
business hours for a solicitor would unreasonably prejudice the investigation. Of course, this
could be detrimental to a suspect who is apprehended at an inconvenient time. The police
reminded Sir Henry Fisher, however, that current practise, subject to the proviso, is that a
lawyer should be allowed to attend the questioning if the person in custody requests it, and the
interrogation should be postponed until he arrives. It appears that the police will not deny a
suspect access to a lawyer only because the lawyer advises his client to remain silent. 81 The
police will also not summon a solicitor or his clerk if they are concerned that the accused
would provide damaging information to his adviser, causing evidence to be hidden or
destroyed, or witnesses to be jeopardised, or if a solicitor will take too long to arrive.82 But, as
Sir Henry Fisher points out, even if the Rules were flawlessly followed in practise, they would
not provide adequate protection in the absence of a comprehensive obligation solicitor
scheme. Furthermore, no set of rules will be effective unless they are followed. Because the
Judge's Rules are not laws, they can only be enforced indirectly through the exclusionary rule
of evidence, which states that even if admissions are voluntary, they can be excluded if the
rules are broken. However, the Rules are no longer enforced in this manner.83 This has been
particularly noticeable in cases where the police have refused to allow a suspect to see a
lawyer. Sir Henry Fisher came to the conclusion that failing to enable a suspect to see his
lawyer should result in evidence being excluded in most cases.84 Concerned about rule
violations, Mackenna J. utilised the exclusionary rule in Reg v. Allen85, although his decision
was genuinely extraordinary. Failure by the police to comply with the suspect's request to see
his lawyer has not resulted in the exclusionary rule being invoked in subsequent cases, leading
one commentator to conclude that the root principle espoused by the courts is that of
reliability, i.e., a confession obtained in violation of the rules will not be excluded unless it is
unreliable.86

A. INVESTIGATION AND TECHNOLOGY

Many jurisdictions in the United States have used the polygraph or a lie-detector during the
interrogation of suspects for many years, and there appears to be some confidence in it with

78
Judge’s Rules and Administrative Directions, Principle (c).
79
Judge’s Rules and Administrative Directions, Rule 7.
80
(1977) 1 W.L.R. 812, p.816.
81
Supra n. 76
82
Ibid
83
For a striking example, Conway v. Hollen (1976), 63 Cr. App. R.l 1.
84
Fisher Report, p.2.20.
85
[1977] Crim. L.R. 163.
86
Reg. v. Elliott (1977) Crim.L.R. 551.
sufficient corroboration, but it has never been seriously considered in England, and there
appears to be no significant desire by the police for its introduction. The use of tape recording
machines for interrogation of suspects is an issue that has come up before and will no sure
come up again. They're frequently utilised to record suspects' conversations. It has been
argued that a tape recorded account of interrogation would outperform all other forms of
record for the jury, including a written statement by the accused, because the parties'
demeanour would be better conveyed to the jury. Although a minority would not have
supported easing the limitation on the accused's 'right of silence' until tape recording of
interrogation was adopted, there are technical and practical obstacles, many of which were
outlined in the Criminal Law Revision Committee's Eleventh Report. There was widespread
agreement that a controlled experiment should be carried out, so in 1975 the Home Secretary
established a Committee made up primarily of lawyers, police officers, and civil servants,
with the assistance of a technical consultant, to investigate the feasibility of a tape recording
of police interrogations. The Committee has emphasised the enormous difficulties involved,
as well as the fact that the concept does not always favour the accused. Because of the costs
and problems associated with the practise, they have recommended that the experiment be
kept small and limited to only the actual taking of the statement and not the interrogation that
preceded it, though they acknowledge that the experiment's value may be questioned if it is
limited in this way.

There is little doubt that both audio and visual devices will advance technologically and be
imposed on the police, potentially preventing those many accused who contradict their written
testimony in court and accuse the police of misconduct from getting away with it, as they
currently do. The nature of the interrogator's competence, on the other hand, will need to
change as well.

B. INTERROGATION ADMINISTRATIVE DIRECTIONS

Apart from the rights granted by the Judge's Rules, there are those guaranteed by the
Administrative Directions issued by the Home Secretary from time to time. They are really
significant.

The administrative directives urge a police officer investigating a crime to properly record
statements after caution, to record the time and the suspect's natural language, and to prevent
discouraging the innocent from making a statement that might clear him of any charges. The
directions are all-encompassing and necessitate attentive cane work. The times and details of
those present must be meticulously recorded. It is necessary to provide adequate comfort and
refreshment.

Children and young people under the age of 17 should not be interrogated unless they are
accompanied by a parent or guardian or, in their absence, a person who is not a police officer
but is of the same gender as the child or young person. This discretion was found to have been
violated during a recent investigation into suspected misconduct by investigating officers in
the investigation of Maxwell Confait's murder, when three minors under the age of 17 were
prosecuted, convicted guilty, and later acquitted of the crime. As a result, the Administrative
Directions have been strengthened.

Further directions provide for the interrogation of the mentally handicapped who are generally
treated as children for this purpose. Deaf persons and those who do not speak English are
safeguarded by provisions for adequate centrals.
Although a suspect does not have an unqualified right to use these facilities, the rights of all
persons in police custody are published on signs in handy and conspicuous locations, and
facilities for writing, telephoning, and telegrams are supplied. The issue of having access to a
lawyer and friends is very important. A person in custody is entitled to communicate with his
counsel over the phone as long as the process of investigation or the administration of justice
is not jeopardised. The reality that stolen items, accomplices, and witnesses may be disposed
of, tipped off, or intimidated if contact is allowed before the police have had time to take
safeguards is acknowledged by this proviso. Although there is no legal right to have a lawyer
present during interrogation, it is common practise to provide access for private consultation
as soon as possible and practicable after arrest, always keeping in mind the possibility of
injustice being obstructed. This is a pragmatic perspective that sees justice as a concern not
only for the accused, but also for victims and society. The practise established by the Supreme
Court of the United States in Miranda v. Arizona 87 " should be accepted in England, with Sir
Henry Fisher being the most recent champion in his report on the Confait case. This would
mean that any confession made without the presence of a lawyer would be inadmissible. With
all due respect, the Miranda case was decided against a backdrop of widespread concern about
police misconduct in the United States, and even then, the Supreme Court was almost evenly
divided, clearly realising that there would be significant denial of justice in many cases as the
guilty faced more and sometimes very serious crime. In truth, the Miranda case was a murder
case.

Another unappealing characteristic of American practise is lawyers loitering outside police

stations and following police vans in the hopes of drumming up business. This method has the
unintended consequence of developing the worst type of lawyer for the job. The duty solicitor
plan, in which solicitors from general practise work on a roster to visit people in jail on
demand, is a preferred arrangement. This is a test that has been carried out in a few regions
around the United States so far.

C. LAWSUITS AGAINST POLICE

Criminal charges, such as violence against specific police officers, come first. When a chief
constable receives a complaint of a crime allegedly committed, he must send the case to the
Director of Public Prosecutions for a neutral judgement. Individual police personnel will face
civil action for damages, as well as the chief constable's vicarious liability under the Police
Act of 1964. False imprisonment and malicious prosecution are expected to be the most
common civil lawsuits.

Complaints against the officers in question are subject to additional safeguards, including
disciplinary action in addition to criminal prosecution. Discreditable conduct, neglect of duty,
lie or prevarication, corrupt or improper practise, misuse of authority, and criminal conduct
are all offences for which officers might be removed, lowered in rank, fined, or have their
salary cut. Furthermore, since 1977, an independent review body, the Police Complaints
Board, has provided a detached and impartial view with the capacity to order procedures and
form tribunals. Its chairman is nominated by the Prime Minister, and its members are
appointed by the Home Secretary. This body must hear any complaints against police officers.

87
(1966) 384 U.S. 436.
There is no other body or profession in England that is as accountable for the discharge of its
duties and obligations in the investigation of crime as the police. Given the large number of
persons tried for crimes other than minor traffic offences (456, 675 in magistrates' courts and
68, 550 in Crown Courts in 1976) and the tiny number of investigations found to be wrongly
handled, it is argued that the system functions as well as any other.
CHAPTER II
THE FIFTH AMENDMENT TO THE UNITED STATES OF
AMERICA'S CONSTITUTION

1.1 INTRODUCTION TO HISTORY

The Fourth and Fifth Amendments are the traditional defenders of a specific type of
individual privacy: the ability to hide secrets from government authorities who are snooping
through private papers, subpoenaing private documents, or listening in on private
conversations.88

The roots of the Fifth Amendment are far more difficult to trace than those of the Fourth
Amendment, which is why the former has spawned far more literature than the latter. There
are two distinct schools of thinking among historians. According to the first, in England in the
seventeenth century, the privilege against self-incrimination became common law. It was
triggered by behaviours that appeared to be politically or religiously motivated, but it was
used in all criminal cases. Wigmore and Leonard Levy hold this viewpoint.89 The adoption of
the privilege in the seventeenth century, according to the second school of view, was more of
a ruse than a genuine act, at least in part. Julias Goebel and T.Raymond Naughton took this
stance in their study of criminal process in colonial New York. John Langbein has taken the
argument to England and linked the privilege's perceived insignificance to the lack of defence
counsel in criminal cases in the 17th and 18th centuries. 90

The privilege was enacted in reaction to practises that were unsettling, in part due to the
number of cases being prosecuted involving crimes of religious belief or political speech. It
was applied to all offences, but because of the way ordinary criminal litigation was
conducted, it made no practical difference. The image depicts a procedural gadget that
fulfilled a practical purpose.

The Fifth Amendment of the United States Constitution states that "no individual shall be
compelled to be a witness against himself in any criminal prosecution."91 The first Congress
considered adding this provision to the Bill of Rights in order to protect the right to self-
incrimination from federal government intervention.92 This privilege against self-
incrimination dates back to the thirteenth century in the Anglo-American legal system. 93

The core of the privilege against self-incrimination has remained largely unchanged since its
inception throughout ancient inquisitorial procedures.94 The analytical foundation of Fifth
Amendment decisions can be discovered in a review of the most important Supreme Court
opinions.

88
Katz v. United States, 389 U.S. 347 (1967); Map v. Ohio, 367 U.S. 643 (1961); Olmstead v. United States,
277 U.S. 438 (1928); Boyd v. United States, 116 U.S. 616 (1916);
89
Leonard Levy, Origin ofthe Fifth Amendment (1968)
90
John H. Langbein, The Historical origins ofthe privilege against self-incrimination at common law, 92 Mich.
L. Rev. 1047 (1994).
91
U.S. Constitution, Vth Amendment.
9292
M. Berger, Taking The Fifth (1980).
93
J. Waltz J. Kaplan, Criminal Evidence (1980)
94
Id at 161.
The Fifth Amendment arose from the English Common Law adage "memo tenetur seipsum
accusar"95, which had long been a rule of proof.96 The maxim, which was later enshrined in
the Constitution, arose from a widespread dislike of the ancient inquisitorial methods of
investigation. A suspect would be put under oath and forced to incriminate himself under
those methods, which are embodied in the proceedings of the ecclesiastical Courts and The
Star Chamber.97 For a variety of reasons, such tactics were eventually condemned as harsh.
The fundamental rationale was the assumption that using such methods forced the suspect to
choose between remaining silent and thus being in contempt of court, speaking falsely and
thus committing perjury, or speaking truthfully and thereby compromising himself.

The painful trilemma was named after this predicament.

The Supreme Court has acknowledged a variety of other policy grounds that justify the
privilege, in addition to an abhorrence of the terrible trilemma. In 1964, courts initially
viewed the Fifth Amendment's self-incrimination clause as banning solely the extraction of
confessions in oath-taking proceedings. The Supreme Court, on the other hand, granted
protection to confessions elicited during police custody interrogations. 98

According to the Levy-Wigmore theory, the ex officio, a practise used by English

ecclesiastical courts in the sixteenth and seventeenth centuries that caused much debate and
was eventually abandoned under fire, was the major impetus to the development of the
privilege.99 Despite its widespread condemnation, the oath ex officio was nothing more than
an oath taken to the accused in which the accused pledged to answer truthfully the questions
posed to him. The dispute arose not so much from the demands of the oath as from the setting
in which it was administered. The accused was administered the oath before he was told what
accusations, if any, would be brought against him, as opponents repeatedly pointed out.
Indeed, the "Charge" could be nothing more than rumours, as no accuser is required to testify.
While the oath ex officio has been utilised in a number of circumstances, it has sparked the
most controversy in hearsay cases. In these cases, the accused is almost always suspected of
being either a Catholic or a Puritan, as is customary. As a result, a critic of the Church of
England100 would be sworn in, interrogated about his own religious beliefs and practises, and
then (sometimes) interrogated about the beliefs and practises of his contacts. On the basis of
the suspect's own sworn testimony, the court would pass judgement, frequently branding him
a heretic. What went wrong with this surgery, exactly? Opponents of the oath frequently
alleged that it was a form of torture since it "placed the conscience on the racke." This
complaint had some merit, especially at a time when people took oaths and swearing far more
seriously than they do now. Hard inquiries are insignificant in comparison to other behaviours
that have elicited no protest. The timing of the oath, which gave the accused no notice of what
he would be asked, was also a point of contention for critics.

Finally, the job required a lot of pure thinking, which is why Coke complained that no free
man should be forced to answer for his own thoughts and opinions.101

95
No one is bound to accuse himself
96
Brown v. Walker, 161 U.S. 591 (1896).
97
Doe v. United States, 487 U.S. 201 (1988); Anderson v. Maryland 427 U.S. 463 (1976).
98
Escobedo v. Illinois, 378 U.S. 478 (1964)
99
Richard H. Belmbolz, Origins of the Privilege Against Self-Incrimination, 65 N.Y.U.L. Rev. 962. (1990).
Langbein emphasized the point in criticising Leavy - Wigmore view.
100
Except, of course, during the reign of Queen Mary, when prosecution was turned on Anglicans.
101
Levy, supra note 3, at 245 (quoting Jennor’s case, Stowe M.S. 424 fols. 159 b160a (1611).
As a result, the government utilised the technique that led to the argument that "no one is
bound to accuse himself" - a claim that subsequently evolved into the privilege against self-
incrimination for some of the same reasons that made hearsay illegal. Hearsay, like trade
restrictions in eighteenth-century New England, was a "crime" perpetrated by men and
women who believed themselves law-abiding, and their communities most likely did as well.
As a result, heretics, like Boston's smugglers, could only be apprehended and punished
through special procedures that permitted the government to forcefully get private information
without having to prove reasonable cause. The critique had a strong substantive undertone in
both cases.

"Unable to reframe the substantive law that made their acts unlawful," as Levy puts it, "the
Puritans turned to the Common Law Courts and to legal obstructionism" - to procedural
arguments, particularly arguments against the oath - "as a means of self-defense."102 The
privilege claims made by religious dissidents dragged before the high commission were
bound up, as were James Otis' arguments about the law of search and seizure, with concerns
about the crime for which those dissidents were being punished - and those concerns were in
turn bound up with the manner in which the crime in question had to be enforced. The debates
were about technique, yet procedure and substance were inextricably linked in this context.

In most situations, the privilege had arisen to the point where it would make little difference,
especially considering the way criminal proceedings worked in the American colonies. There
are two important points to remember here. The privilege was first and foremost a right to a
fair trial. It had no effect on pre-trial interrogation, which was not done on oath.103 Second,
the privilege didn't matter much at the trial unless the defendant had a lawyer who could
speak for him without the defendant having to do it himself. Defendants were not entitled to
have a counsel in many trials until the early mid-eighteenth century, according to John
Langbein. Even after that, the use of lawyers in court was uncommon, particularly in the
United States, where lawyers were often in limited supply. 104

As a result, in all but a few criminal cases, the picture looked like this. 105 defendants were
interrogated by a magistrate without the aid of counsel, and the defendants usually confessed
during the interrogation. It was frequently claimed that if the defendant fought the charges,
the system would punish him severely. In most cases, the trial was really a formality. Even if
the defendant refuses to confess, whatever mistakes he makes during pre-trial interrogation
will be used against him at trial. Magisterial interrogation worked similarly to police
interrogation today. It gave the government a chance to elicit whatever information it could
from an unrepresented, frequently terrified and perplexed defendant. The difference today is
that defendants can cease all interrogation and seek legal counsel before speaking with the
government again.106 Although many defendants do not utilise this right, at least some do, and
it has a significant impact on the course of interrogation, even when Miranda rights are not
claimed. There was no such luxury in the 18th century, and the privilege made no difference
to that picture.

102
Supra n. 3 at 216.
103
Lanbein, Supra n.4 at 1059-62.
104
Of course lawyers were rarest in those times
105
Lawrence M. Friedman, Crime and Punishment in American History 24-27 (1993)
106
Edwards v. Arizone, 4564-5477 (1981); Arizona v. Roberson, 46 U.S. 675 (1988
Of course, the privilege was likely used during the trial, which should have made a difference
in some situations. However, as Langbein correctly points out, a right to remain mute at trial
is meaningless without a lawyer; without a speaker, the defendant's silence leaves the
government's case unanswered. 107 In a highly formalised system with sophisticated trial
procedures and a beyond-a-reasonable-doubt standard of proof, this would be a viable option.
These qualities were not present in American criminal procedure in the eighteenth century.
There was no such thing as a beyond-a-reasonable-doubt standard, and trials were swift and
easygoing.108 The decision maker's most likely assumption in such a system is that the
accusation is true unless it is properly refuted. Silence was a horrible choice from the
defendant's perspective; as Langbein and Eben Moglen point out, the entire system looked
structured to persuade the accused to talk.

When might a privilege against self-incrimination have been useful in such a system? Only
when a defendant had (1) a great deal of fortitude (for standing up to the magistrate during
questioning), (2) either a lawyer to speak for him at trial - hence the money to hire a lawyer or
enough education to speak for himself without answering incriminating questions109, and (3)
finally, some hope of success from silence, meaning enough popular support to overcome the
system's normal bias towards conviction Not all people accused of religious or political
crimes met these criteria, but some did, such as men convicted of murder or robbery. It's no
surprise that the privilege's history is littered with religious and political persecution. 110

The terms "privilege and immunities" appear for the first time in American constitutional
history in the fourth of the Articles of Confederation. "The better to secure and perpetuate
mutual friendship and intercourse among the people of the various states in this union, the
free inhabitants of each of these states, paupers, vagabonds, and fugitives from justice
excepted, shall be entitled to all privileges and immunities of free citizens in the several
states; and the people of each state shall have free ingress and egress to and from any other
state; and shall enjoy all the privilages and immunities of free citizens in the several The same
provision is included in Article IV of the United States Constitution, which supplanted the
Articles of Confederation: "The citizens of each state shall be entitled to all the privileges and
immunities of citizens of the different states." There is no doubt that the objective of both of
these laws is the same, and that the privileges and immunities intended in each are the
same.111 The United States' constitution, on the other hand, makes no mention of citizens'
privileges and immunities. 112

The United States Supreme Court has never attempted to provide an exact or complete
explanation of these words as used in the Constitution, preferring instead to leave their
meaning to be evaluated in each case based on the specific rights asserted and denied
therein.113 However, the terms "immunity" and "privilege" have been determined to be
synonymous or nearly so. "Immunity" refers to an exemption or a privilege, while "privilege"
refers to a special advantage, exemptions, or immunity.

107
Langbein, Supra n. 4 at 1054.
108
Id at 1056-57
109
The trial of Lieutenant-1, Colonel John Lilbume, 4 Howell’s State Trials 1270 (1649), where Lilbume Claims
his right ofsilence with astonishing verbosity.
110
Levy, Supra n. 3 at 323-24.
111
Provision of Art. II 2, Cl. I ofthe several states, makes manifest that it was drawn with reference to
corresponding clause of Articles of Confederation and was intended to perpetuate its limitation
112
Minor v. Happersett, 88 U.S. 162 22 LED 627.
113
Colgate v. Harvey, 296 U.S. 404, 80 LED 299, 56 SCT. 525
2.2 THE FIFTH AMENDMENT'S OBJECTIVES AND SCOPE

The ancient common law privilege against self-incrimination began as a rule of evidence to
avoid the extraction of compelled testimony114. However, it wasn't until the advent of
government control of private enterprise that the need for constitutional interconnections and
delimitations arose.115 The Federal Congress created laws exempting such testimony from
prosecution because it was hampered in its fight against supertrusts and conspiracies in
restraint of trade unless alleged conspirators could be forced to talk. Only where the immunity
granted was coextensive with the privilege for which it was replaced did the Supreme Court
find these provisions lawful and convincing. The ancient common law privilege against self-
incrimination was established as a rule of evidence to prevent compelled testimony. The
necessity for constitutional linkages and delimitations didn't arise until the government began
to oversee private enterprise. Because it was hamstrung in its war against supertrusts and
conspiracies in restraint of commerce unless alleged conspirators could be forced to testify,
the Federal Congress passed legislation exempting such evidence from prosecution. The
Supreme Court found these provisions legitimate and compelling only when the immunity
given was coextensive with the privilege it replaced.

Any evaluation of the privilege's scope necessitates a trade-off between its disadvantage in
criminal prosecution and the value it provides in defending an individual's liberty. 116 Despite a
growing trend to limit the privilege's scope of application117, it is maintained that the privilege
is vital to protect against unlicensed extortion of witnesses, which may occur if it is not in
place. 118

However, in these days of legislative committee and judicial grand jury119 investigations into
governmental administration, when evidence is exceedingly difficult to obtain unless
disclosures can be compelled, state and federal legislatures have found it highly desirable to
abrogate the privilege in many instances120, and they have not found statutory amnesty for
past crimes to be too small a price to pay for valuable information. 121 And where the witness
tries to keep quiet in order to protect both his collaborators and himself.

Because of the conflicting Supreme Court decisions, the subject has been left open in the
lower federal courts.122 While the courts once held that a witness may refuse to testify if doing
so would expose him to prosecution under state laws123, they have more consistently held that
complete immunity within the jurisdiction in which the witness is examined is sufficient, on
the theory that the risk of foreign prosecution is too remote and insubstantial to be material. 124
A five-to-four judgement in Brown v. Walker 125 examined the hazard and found it to be too

114
Supra n. 2.
115
Agencies to Compel Testimony (1926) 39 Harv. L. Rev.. 694. 5. Edward S. Corwin, The Supreme Court’s
Construction of the Self-Incrimination Clause (1930) 29 MICH. L. Rev. 191,192.
116
Supra n. 2
117
Ibid
118
ibid.
119
New York Times, Aug.28} 1931, at 1.
120
Ibid, Nov.20, 1931 at 2, quoted from “Common Law Privilege Against Self Incrimination and the scope of
Statutory Immunity”, The Yale Law Journal 1931- 32, Vol.42
121
. Supra n. 13.
122
State v. Jack, 69 Kans. 387.
123
U.S. v. Saline Bank, 1 Pet. 100 (45) 1825
124
Bal Mann v. Fagin, 200 U.S. 186, 26 Sp. Ct. 212 (1905)
125
161 U.S. 591,596-97 (1896).
distant.126 However, in a later case127, this doctrine was extended to include what was
supposed to be the English rule: that the risk of prosecution under the laws of a foreign
jurisdiction is too remote and insubstantial to be considered as a matter of law, because the
court cannot know the laws of the other sovereignty or the risk of prosecution there under
when deciding on the claim of privilege. However, the Supreme Court's decision in United
States v. Murdock128, which adopted the latter position without mentioning the former,
appears to resolve the issue for federal courts. However, under the American federal
government, this threat appears to be significant.129 The Supreme Court has ruled that state
court prosecution of the same act or transaction that involves a similar offence against the
federal government will not preclude federal prosecution. 130 And the risk of being prosecuted
twice for the same offence, whether or not based on the same act or transaction, is
significantly greater.

The case of Dr. Doyle, a New York veterinarian, who was involved with both federal and
state authorities, exemplifies this possibility. Doyle, who was accused of violating federal
income tax regulations, declined to testify before a grand jury about the division of fees
collected in his practise before the New York Supreme Court. It was argued that it would
implicate him under a New York law that makes bribing public officials a criminal offence.
Because federal immunity could not shield him in state courts, the court upheld the
privilege131. Doyle declined to answer identical questions when he was summoned by the
Hofstadler Committee a year later, claiming that doing so would indict him under federal
income tax regulations.

The New York Courts of Appeals denied the privilege132, citing the case of Jack v. Kansas133,
which held that the risk of prosecution was too remote. However, the cooperation between
federal and state officials in not pressing a pending federal case in anticipation of Doyle's
claim of foreign incrimination134 appears to illustrate the seriousness of the threat.

Since federal courts take judicial notice of all states' public laws, states must, in turn, take
judicial notice of federal laws, which are easy to find. 135 Surprisingly, while lower federal
courts have acted unanimously in allowing the witness to reject statutory immunity and rely
on the privilege where incrimination under state laws would otherwise result 136, state courts
have not reached the same level of unanimity when it comes to incrimination laws137, though
in a few cases where the state courts have denied the privilege, they have attempted to limit
the testimony to intrastate transactions.

126
Id. at 625.
127
Hale v. Henkel, 201 U.S. 43 (1906)
128
52 Sup. Ct. 63 (1931).
129
D.O. Me Govney, Self-Criminating Testimony Code Revision Bill (1920) 5 Iawa L Bull. 174, 182-184, New
York Times, Dec. 11, 1931 at 2. Col.3.
130
US. v. Lanza, 260 U.S. 377.
131
Supra n. 49
132
Doyle v. Hofstadter, 257 N.Y. 244, 177 N.E. 489, 497 (1931).
133
(1906) 15 Yale L.J. 234.
134
New York Times, July 17, 1931 at 1, quoted from comments, The privilege against. Self Incrimination and
the Scope & Statutory Immunity. The Yale Law Journal: 1931-32 Vol.42.
135
Baltimore Ohio S.W.R.R. v. Berdon, 195 Ind. 265, 145 N.E. 2 (1924)
136
In re Doyle, Supra n. 49
137
People v. Butler St. Foundry Iron Company, 201 III 236, 66 N.E. 349 (1903); People v. Nus Baum, 55 App.
Eiv. 245, 67 Supp 492.
When a claim of privilege is brought in a state court on the basis of incrimination under the
laws of another state, however, it is almost usually denied. However, finding the foreign law
is not difficult because some states have provisions allowing their courts to take judicial
notice of the laws of sister states138, and all allow verification through correct
authentications.139 Furthermore, the threat of interstate indication poses a genuine and serious
harm to the witness. 140

The only case found in which a claim for incrimination under the laws of a foreign country
was brought in a state or federal court, Massachusetts' supreme judicial court concluded that
the only danger to be considered was that emerging under Massachusetts' laws.141 However,
given that the court took judicial notice of the fact that the Republic of Greece and the United
States did not have an extradition treaty, the pronouncement of such a rule may be considered
redundant in light of the factual remoteness of the danger.

Limiting the protection against self-incrimination to protect against dangers emerging under
the laws of the forum produces a great deal of reluctance to testify in the more common case
of a person who is innocent under those laws but has broken the laws of another country.142
The privilege could be nullified by collaborative action between federal and state attorneys, in
which a state attorney, for example, could call for a grand jury investigation with no hope of
obtaining an indictment under state law, merely to bring to light relevant testimony that could
be used to effect a federal indictment.

However, in the Murdock case, all of these factors showing the seriousness of the witness's
burden were seemingly overshadowed by the need for a government probe. The extraordinary
complexity of modern business operations necessitates the state's use of every investigative
tool at its disposal, and as these requirements become more acute, it may not be surprising to
see greater restrictions placed on the ancient privilege against self-incrimination.

2.2.1 EXPLAINED: MAXIM-MEMO TENETURE SEIPSUM ACCUSER

Although an accused person may be against him, the Indictable Offenses Act, 1848143,
requires justice to warn him, before taking his statement, that he is not obligated to say
anything and that everything he says may be used against him. As a result, the rule that
evidence of an accused's confession is inadmissible unless it can be demonstrated that the
confession was free and voluntary comes into play.

A witness in any process is privileged from answering, not only where his answer will
directly criminate him, but also where it will have a tendency to criminate him, as a general
rule. "The notion is clear," Lord Eldon said, "that no man can be compelled to respond
anything that has the potential to convict him." The proposition is qualified by the
qualification that the danger to be perceived by the witness must be "real and appreciable with
reference to the ordinary operation of law in the ordinary course of things, not a danger of an
imaginary and unsubstantial character with reference to some extraordinary and barely
possible contingency, so improbable that no reasonable man would suffer it to influence his

138
State v. Wood, (1927) 40 Hav L. Rev 657.
139
U.S. Constitution, Art. IV 1, 1 Stat. 122 (1790), 28 U.S.C. 687 (1926)
140
Ibid, Art.IV
141
Republic ofGreece v. Airsides Koukoureas, 264 mass. 318, 162 N.E. 345 (1928).
142
Supra n. 2.
143
S.18 ofthe Indictable Offences Act, 1848.
conduct," because such a possibility should not be allowed to obstruct that a reasonable man
should not suffer it to influence his conduct.

And, while a party to a case who has been called as a witness cannot object to being sworn on
the grounds that any pertinent questions will tend to convict him144, he may assert his
privilege when such objectionable questions are asked.145

The protection does not extend to excuse a person from answering questions because the
answers may establish or tend to establish that he owes a debt or is otherwise subject to a civil
suit brought by the crown or any other person to determine whether a person is obligated to
answer a question that may incriminate his or her wife or husband. The authorities are split on
this issue, but typically tend to uphold the privilege in such cases146, unless the witness is an
accused individual testifying on his own behalf.

The rule applies if the prosecution to which the witness may be exposed or his obligation to a
penalty or forfeiture is barred by lapse of time, or if the offence has been pardoned or the
penalty or forfeiture waived84. The rule of teneture seipsum accuser, which has been
dubbed147 "a principle of American law as settled, as essential, and as smart as practically any
other in it," is, however, occasionally curtailed, and the privilege it gives is sometimes
revoked in exceptional circumstances. As a result, a bankrupt who is being examined by the
Bankruptcy Court148 does not have this privilege. Though a witness summoned for
examinations concerning bankrupt affairs may refuse to answer a question on the grounds that
his answer might lead him to criminate himself 149, the legislature occasionally, on policy
grounds, extends indemnity partial or entire to a witness whose privilege is taken away. 150

Thus, Section 85 of the Larceny Act of 1861 states that nothing in the preceding ten sections
of the Act, which deal with frauds committed by agents, bankers, and factors, "shall enable or
entitle any person to refuse to make a full and complete discovery by answer to any bill in
equity, or to answer any question or interrogatory in any civil proceeding in any court, or
upon the hearing of any matter in bankruptcy or insolvency, and no person shall be liable to
be convicted.

The above-mentioned disclosure, in order to be available as a protection, must be genuine and

not merely a voluntary statement made for the express purpose of screening the person by
making the consequences of his actions known to him. 151

Finally, the facts in R. v. Gillyarcf152 were as follows. A molester suspected of violating the
excise laws obtained a conviction against his servant for the purpose of relieving himself of
penalties under the statutes 7 and 8 Goe. 4, C 52, S.46. The affidavits stated circumstances
demonstrating that the conviction was obtained through collusion in support of a rule nisi to
quash the conviction, and no affidavit was filed in opposition to the rule. It was argued on
behalf of the molester that he should have been called upon to defend himself by affidavit on

144
Boyle v. Wiseman, 10 Exch 647
145
Spokes v. Grosvenor Co. (897) 2 Q.B. 124; Mexborough v. Whitewood UDC; (1897) 2 Q.B. III.
146
R. v. Cliviger, 2 T.R. 263.
147
M.R.v. Scott, Dearsl & B 47, at p.61.
148
Bankruptcy Act, 1914, 5.15 (8).
149
Ex P. Schofield, 6 Ch. D. 230, Re Reynolds, 20 ch D. 294.
150
For instance, corrupt and illegal practices.
151
R. v. Stradhan, 7 Cox, C.C. 85.
152
12QB. 527.
a charge that was almost criminal in nature.153 Nonetheless, the conviction was overturned
because it was "a fraud and mockery, the result of conspiracy and subornation of perjury."
Coleridge, J., remarked, "Where the Court observes such dishonest practises, it will interfere,
even if judgement has been given," and that "no honest man ought to think it beneath him or a
hardship upon him to answer upon affidavit a charge of dishonesty made upon affidavit
against him." If a man refuses to deny a serious accusation levelled against him, he must not
complain if the case is taken pro conesso."

A few remarks on the related subject of witness competency must suffice. It was once the
most important topic of evidence law, because previously, involvement in a lawsuit was
thought to disqualify a person from giving testimony, resulting in the exclusion of the best
evidence available. In all cases, the parties and their husbands or wives were incompetent as
witnesses under common law. This incompetence was removed for civil case parties by the
Evidence Act of 1851, and for their husbands or wives by the Evidence Amendment Act of
1853, though the husband or wife is not compelled to disclose any communication made by
one to the other during marriage 154, until the marriage has been terminated by death or
dissolution. 155 Both of these Acts expressly preserved the rule of common law in criminal
cases, and the latter Act preserved the incompetency of the parties and their husbands or
wives in proceedings instituted as a result of adultery. However, the incompetency in such
proceedings was removed by the Evidence Amendment Act of 1869156, but no witness may be
asked any question tending to show that he or she has committed adultery unless such witness
has already given evidence in the same proceeding in disproof of such adultery.

In terms of the law of evidence in criminal cases, the year 1898 saw a significant shift, which
had been foreshadowed for some years by instances in which statutes creating new offences
expressly allowed a person charged with them to be a witness on their own behalf. According
to the Criminal Evidence Act of 1898, every person charged with an offence, as well as the
wife or husband of such person, is a competent witness for the defence at all stages of the
proceedings, whether such person is charged solely or jointly with others, but such person
may not be called as witness except on his own application157, nor, as a general rule, any the
wife or husband, except on the application of the person charged. 158 The husband or wife is
not compelled to disclose communications made by one to the other during marriage 159, but
the person charged may be asked in cross examinations any question tending to criminate
him160 or any other person as to the offence charged; but, as a general rule, any question
tending to show that he has committed another offence or is of bad character is not
permitted.161 In certain cases, the wife or husband of the person charged may be called as a
witness for the prosecution without that person's consent 162; however, as previously stated, the
maxim, memo teneture seipsum accusare, still holds true to the extent that the person charged
cannot be compelled to enter the witness box against his will.

153
Stephens v. Hill, 10 M & W. 28.
154
S.3.
155
Shenton v. Tyler, (1939) I Ch. 620.
156
S.3 (Now replaced by Judicature Act, 1925, S. 198). Sneyd v. Sneyd (1925), 42, T.C.R. 106
157
Section 1(a). Evidence Act, 1898
158
S. 1 (i); See S.4 and the Criminal Justice Administration Act, 1914.
159
S.l (d).
160
S.l(e).
161
S.l (f) See R. v. Pretson, (1909) 1 K B 568, R. v. Brcham, (1921) 3 KB. 464, R. v. Coulman, (1927) 20 Cr.
App. R. 106.
162
S.4 and Schedule, Criminal Law Amendment Act, 1912, S.7 (6) Mental Deficiency Act, 1913, S.56 (6),
Children and Young Persons Act, 1933, S.15, Unemployment Insurance Act, 1935, S.89(i)
By incorporating the maxim "Memo teneture seipsum accuser" into the Fifth Amendment of
the United States Constitution, it has become one of the foundations of American liberty (a
memo rule of evidence in England) and, as far as we know, is embodied in every state
constitution as well. Its sole purpose is to protect the witness and no one else, and the
compulsion against which he is shielded includes both physical and mental duress. Many
states, as well as Congress, have passed statutes with the goal of compelling witnesses to
testify even if their testimony would tend to incriminate themselves, by providing them with
immunity as a result. However, in order to be upheld, these statutes must be as broad as the
constitutional provision that they seek to replace and must provide absolute indemnity so that
the witness is never prosecuted for the crime that he may disclose or that his testimony may
be the means of discovering. The compulsion of these statutes has been strenuously resisted
by those who have been compelled to testify under them, who have demanded the protection
of the Fifth Amendment. There have been particular controversies arising from attempts to
secure the protection of this amendment against the provisions of the Interstate Commerce
Act.

Counselman v. Hitchock]163 determined that the immunity provided by Revised Statutes,

Section 860, was insufficient and that the purpose of an amendment to the Interstate
Commerce Act passed in 1893 was to accomplish the same goal, which was upheld in another
case, Brown v. Walker, as providing complete immunity.

The proceedings before pension examiners under Revised Statute, Section 474, are nearly
identical to the proceedings before the Interstate Commerce Commission, with the exception
that no amendment providing complete immunity has been adopted and Revised Statute,
Section 860 still applies, but they have not been challenged and investigated as thoroughly,
most likely due to the difference between the two classes of citizens examined. As a result,
the case of United States v. Bell becomes particularly intriguing. Bell, an ignorant Negro, had
been admitted to the bar and made a Notary Public by the laxity of American laws, and acting
in that capacity, he had committed certain frauds on the pension bureau, including the
fraudulent issuing of certain vouchers and the affixing of his notaries seal to a false affidavit.
He was compelled to appear before the pension examiner for examination despite the fact that
no subpoena had been issued for him, and he was then interrogated about the execution of
these documents without being told by the examiner that he had the right to remain silent on
any matter that would tend to incriminate him. As would be expected of an ignorant Negro
who had probably never heard of this constitutional provision, he was unaware of his rights in
the matter and was not permitted to consult counsel by the examiner. He swore falsely, and
the report containing his answers was later introduced in evidence against him in a perjury
prosecution.

All of these statutes that seek to compel a witness' testimony by providing him with immunity
include a provision that no one shall be exempt from prosecution and punishment for perjury
committed while testifying. Of course, if the immunity provided is as broad as the
constitutional provision, the witness may be compelled to answer and, as a result, may be
charged with perjury if he falsely swears. However, Counselman's case established that the
immunity provided by Revised Statutes, Section 860, is as broad as the constitutional
guarantee, and thus Bell was not required to answer. The courts here expressly refused to
decide whether the provision that the witness shall not be protected against prosecution for
perjury committed during the examination itself is consistent with the Fifth Amendment's
163
142 U.S. 547
protection, holding that the fact that the examination was taken under duress and that the
witness was unaware of his rights and was not warned of his privilege alone rendered the
record inadmissible. The witness did not waive his privilege since he did not intentionally and
willingly relinquish it, and the interrogation was almost entirely inquisitive, with no adequate
barriers against self-incriminating testimony thrown around him.

2.2.2 "RIGHTS AGAINST SELF-INCRIMINATION" IS THE DOCTRINE.

In a criminal prosecution, the ability of the accused to refuse to testify against himself is
typically the most important part of the privilege. This circumstance is largely consistent with
standard constitutional language. 164 There has been a lot of debate about it.165 In practise,
however, it appears to be one of the least relevant of the scenarios in which the privilege is
applied.

Until the late nineteenth century, an accused's right not to testify against oneself was
accompanied by an equal right not to testify in his own defence. As a result, the necessity of
his remaining aloof could clearly not be inferred. The enabling legislation that made him a
competent witness generally stated that he did not have to testify and that there would be no
presumption against him if he did not offer himself as a witness.166, but after the accused
enters the stand, the fiction of waiver usually renders him without the ability to refuse to
answer damning questions, as long as they are otherwise admissible.

In effect, the defendant is forced to choose between remaining mute while proof of guilt is
displayed in front of his and the jury's eyes, or taking the witness stand and answering every
acceptable question that an astute prosecution can create.167 The privilege of not testifying is
obliterated by the decision to testify, and the person who chooses to keep silent is frequently
found guilty. No law can prevent the human mind from drawing the obvious conclusion from
the spectacle of speechlessness in the face of accusation. In the absence of such legislation, it
would seem prudent to require the trial judge to specifically teach the jury that silence will not
result in an adverse presumption.

That Tribunal has studiously avoided finding whether changing the established practise of
allowing a judge or prosecutor to comment on a prisoner's failure to testify is a violation of
constitutional penalty. 168 When this question has arisen in the past, it has almost always been
decided that a change in standard practise is unlawful. This result appears to be debatable. The
standard practise of banning unfavourable remarks appears to be a statutory survival of the
prisoner's competence to testify rather than a necessary corollary of the constitutional right.
the privilege granted by the constitution However, the two have become so intertwined that,
as a question of judicial action rather than theoretical truth, the prohibition against remark has
largely become a component rule of the privilege, vulnerable only to constitutional change.
As a result, explicit unfavourable permission has been difficult to get in France.

164
The Federal Constitution's phrasing is common.... He will not be forced to testify against himself in any
criminal case (U.S. Constitution Amend. V.).
165
Dunmore, Comment on Failure of Accused to Testify (1917) 26 Yale Law Journal 464.
166
The accused was an incompetent witness in Federal courts until 1878. ".... the person.... charged shall, at his
own request but not otherwise, be a competent witness," according to the legislation erasing his impairment. And
if he does not make such a request, there will be no presumption against him." 28 U.S.C. 632, 20 STAT., 30
(1878). (1934)
167
Wigmore Evidence (2nd ed 1923) 2276. State v. Wentwarth, 65 Me 234, 243 (1875)
168
Twining v. New Jersey 211 U.S. 778 (1908).
Extending the prosecution's right to summon the defendant as a witness is an extreme that has
failed to gain traction. Logically, such a practise would not appear to breach the privilege, but
no court would likely allow it without constitutional modification.169 Because the most
tortuous straining of concept could construct nowhere, the accused could refuse to answer
criminating inquiries once under oath. However, claiming privilege in front of a jury could be
construed as a formal admission of guilt. In fact, the accused would be under a lot of pressure
to testify completely.

Despite their sound theoretical foundation, such extensions of the now widely used process
are likely to be pragmatically superfluous and undesired. Currently, the accused is under
enough duress to testify. Normally, he will only refrain under unusual circumstances. If he is
innocent of the crime accused and the state's evidence is poor, he may decide to seek a
directed judgement or acquittal for lack of affirmative proof rather than risk the prejudice that
comes with coerced admissions of further illegal activity. Even if the case against him is solid,
the likely guilty habitual criminal will prefer the little chance of escaping to the large risk of
being caught. relative certainty of conviction by a jury in front of which his guilt is
adjudicated. There have been a slew of additional offences reported. The prospect that the
defendant would be available for testimony is a protection against frivolous charges based on
insufficient affirmative evidence. Wigmore claims that "any system of administration that
allows the prosecution to rely on compulsory self-disclosure as a source of proof on a regular
basis must suffer morally as a result."

A lingering issue about whether the accused can be forced to reveal his bodily traits has been
dispelled; with the exception of an odd aberrancy170, the law is now resolved that the privilege
only applies to speech evidence. 171 However, verbal evidence does not only refer to oral
testimony; it also refers to documentary evidence. The rule is widely established everywhere,
however the document must be surrendered to the court for a determination of whether its
contents are genuinely incriminating. Unless the defendant is a company, he has the right to
refuse to submit any damning documents he may have. The sole major question emerging
under this part of the privilege, which breaks a hopeless conflict of authority, is whether the
privilege is exercised by giving the accused an open notice to produce an incriminating
writing in his possession. To hold that the privilege is violated before it is stated seems
irrational. The preferable approach appears to be a rather than logic, as in the analogy of
refusing to allow the prosecutor to call the accused as a witness. 172 These rules, in the limited
circumstances when they have any influence, appear to contribute to the other lines on the
whole.

When the defendant does become a witness in the regular case, an understanding of the
privilege's purpose should lead to a reluctance to expand the doctrine of waiver beyond its
rightful limitations. The best preventative of a criminal procedure of accusatory insistence,
which the privilege was purchased to protect against, is sensible moderation in the trial
court.173

169
Blair v. Commonwealth, 166 Va 715,185 S.E. 900 (1936).
170
Bethel v. State, 178 Ark. 277, 10 S.W. (2d) 370 (1928); People v. Scott, 326 111 327 157 N.E. 247(1927).
171
Holdv, United States, 218 U.S. 245 (1910). Ross v. State, 204, Ind 281, 182 N.E. 865 (1932). 4 Wigmore,
Evidence (2d ed. 1923) 2263. comment (1939) 53 Harv L Rev 285
172
Brown, Ibid.
173
People v. Murel, 225 Mich. 499, 196 N.W. 376 (1923), State v. Hal, 85 N.H. 403, 160 Atl 95 (1932).
The ability to completely remove the accused's privilege is frequently available. One is the
broadening of waiver to encompass a failure to assert the privilege in a prior proceeding
involving the same subject matter as the current litigation. Another simple approach is to
categorise the matter as a non-criminal action. The prosecution can then call the defendant as
a witness and compel him to swear. The government has thus been authorised to call the
defendant as a witness in processes concerning deportation, alien and legislation, abatement
of a public nuisance, and recovery of a monetary penalty imposed by the states174. If liability
isn't criminal, consistency would seem to dictate that he answer all pertinent questions, even if
the answers aren't criminatory.175

2.3 DILUTION OF THE PRIVILEGE BY STATUTE

The Supreme Court of the United States reviewed issues involving the acceptable uses of
coerced testimony notwithstanding the Fifth Amendment right against self-incrimination
being invoked. The first case, United States v. Apfelbaum176, dealt with the constitutional
limitations on the use of compelled testimony pursuant to a grant of immunity177, which states
that such testimony may not be utilised in any criminal prosecution of the witness save for
perjury or false swearing. The second case, United States v. Ward178, dealt with the scope of
the self-incrimination privilege's protection against government attempts to collect what
Congress has designated as a civil punishment.

In each case, the Supreme Court's decision gives the government more power in law
enforcement by broadening the allowed uses of testimony in cases when the person being
questioned invokes the Fifth Amendment privilege. The court's reasoning will be examined in
this note, as well as the possible influence of that reasoning on future decisions. In United
States v. Apfelbaum, the Supreme Court resolved a conflict in previous decisions, holding
that a witness compelled to testify under a grant of immunity after invoking his Fifth
Amendment privilege against self-incrimination must be placed in the same position as if he
had remained silent, and that this required his immunised testimony to be excluded from use
in any future criminal prosecution of him. Another set of cases backed immunity statutes that
allow immunised testimony to be used in prosecutions for perjury or false swearing. In
Apfelbaum, the court rejected the requirement that the witness be treated as if he had
remained silent, ruling that the immunity statute only needs to treat the witness as if he had
remained silent for the purposes for which the Fifth Amendment could have been invoked at
the time immunity was granted. The court went on to say that the witness could not use the
Fifth Amendment privilege to claim immunity for activities that had not yet occurred at the
time immunity was conferred. Because the perjury was not committed at the time immunity
was granted, it is not covered by the privilege, and so the privilege does not necessitate that
the protection of immunity include a prosecution for that perjury.

The implication of the court's new reasoning is that immunised testimony would be
admissible in court for any crimes committed after the immunity was granted.

174
Fleishman v. State, 91 S.W. (2d) 493, (Tex Civ. App 1936), People v. Destro, 111 App Div 819,217 N.Y.
Supp. 927 (4th Dept 1926).
175
Milwavkee v. Burns, 225 wis 296,274 N.W. 273 (1937). Johnson v. State ofCal, 4 Cal. (2d) 744, 52 P. (2d)
928 (1936) Mcintosh v. State Bar ofCal, 211 Cal, 261, 294 Pac. 1067 (1930) State v. Brown, 218 Iowa 1066,253
N.W. 836 (1934).
176
Supra n. 132.
177
18 U.S.C. 6002(1970).
178
100 S.Ct. 2636(1980).
The court's explicitly articulated change of earlier case doctrine in Apfelbaum179 substantially
enlarged the possible use of too coerced testimony under a grant of immunity. The court's
rationale in Ward was not precisely defined, and it is this lack of specificity that could
potentially "exhaust" the legislature's authority in forcing information through the use of civil
penalties. The government can compel information that makes the defendant susceptible to
sanctions by imposing a civil penalty rather than a criminal penalty, although the information
could not be forced if the penalty was a criminal penalty.

The two instances thus provide two tools for compelling testimony that would otherwise be
unavailable to the witness's prosecution due to the Fifth Amendment right against compelled
self-incrimination.

2.3.1 IS 'PRIVILEGE' AN UNAVOIDABLE EVIL?

The privilege is clearly imposed on the federal government by the Fifth Amendment. The
privilege, on the other hand, is imposed on the states through judicial rulings rather than by an
express constitutional demand. In Malloy v. Hogan180, the court concluded that the privilege
against self-incrimination is incorporated into the fourteenth amendment's due process clause,
overruling Twining v. New Jersey181 and Admson v. California182, and throwing away dicta
from Palko v. Connecticut183. If the criterion for incorporation is fundamental fairness,
reasons to see the privilege as nothing more than a windfall to unfortunate criminals provide a
rational foundation for rejecting incorporation.

Self-incrimination will be useful as long as society strives to protect itself against crime. The
only question is how society will go about convincing people to testify against themselves.
Few will ever do so on their own, and many more should do so in response to unnecessarily
harsh pressures. Miranda represents a heroic legal effort to reconcile both rulings, but any
meaningful restriction on police interrogation is socially unacceptable as long as extracting
confessions is considered as reasonable and even necessary.

That leaves the option of relinquishing the right to remain silent in the face of self-
incrimination. We didn't do it because of some brilliant argument or memorable statement,
but oddly, we don't need to be convinced that the privilege is a mistake. Police interrogation
demonstrates their practical rejection of the privilege. That institution speaks louder than any
slogan when it comes to the principles they hold rather than the ones they celebrate.

2.3.2 LEGAL PRIVILEGE IN A FOREIGN COUNTRY

The Fifth Amendment may be invoked by a witness in a domestic civil or criminal case to
avoid implicating himself under domestic law.184 The topic of whether a witness can plead the
fifth amendment to avoid implicating himself under the laws of a foreign sovereign has

179
Ibid.
180
378 U.S. 1 (1964).
181
211 U.S. 78 (1908).
182
332 U.S. 46(1947).
183
302 U.S. 319 (1937) Palko was overruled in Benton v. Maryland, 395 U.S. 784 (1969).
184
U.S. Constitution Amendment Vth; 406 U.S. 441 (1972)
divided the courts.185 The Supreme Court resolved the controversy in United States v.
Balsys186 by answering no to that question. Regrettably, the Balsys court misinterpreted the
protection against self-incrimination as just a check on government overreach. 187 In doing so,
the court departed from a long-standing precedent that has upheld the integrity interest that
underpins an individual's right not to testify against oneself as inviolable. Aloyzas Balsys was
born in Lithuania in 1913 and immigrated to the United States in 1961 188. On his immigration
application, Balsys stated that he had served in the Lithuanian Army from 1934 to 1940 and
that he had lived in hiding in Lithuania from 1940 to 1944.189 Although Balsys appeared at a
deposition requested by the OSI, a division of the Department of Justice created to investigate
whether Balsys lied on his immigration application and, in particular, whether Balsys
participated in Nazi persecution of Jews during World War II, he refused to provide any
information card.190 Balsys instead used his Fifth Amendment right against self-incrimination,
claiming that his testimony may lead to criminal charges in Lithuania, Germany, and Israel.191
The OSI requested court enforcement of its subpoena, claiming that the Fifth Amendment
privilege against self-incrimination could not be invoked because the danger of prosecution
was foreign rather than domestic.

Johnson of the Ester District of New York concurred with the OSI's interpretation of the
privilege, citing a Massachusetts district court case.192 Judge Johnson determined that "it
would be an unacceptable affront to the sovereignty of the United States if the operation of its
laws could be stymied by the desire of a foreign government to prosecute the same witness,"
despite the fact that the court was "not unmindful" of the privilege's role in preserving
individual's privacy and dignity193. The objective of the privilege, according to Judge
Johnson, is to protect against "overzealous prosecution" or "government overreach." When
the witness "does not face the possibility of domestic prosecution, (and) thus there is no
incentive for the Government to elicit self-incriminating statements, (and) thus there is no
incentive for the Government to elicit self-incriminating statements, by inhumane treatment
and abuses,"194 and when the government's primary purpose in seeking the witness's
testimony is "the vindication of the domestic laws of the United States,"195 the government's
legitimate need for testimony triumphs over the witness.

The second circuit took a different stance196, citing Murphy v. Waterfront Commission, in
which the Supreme Court declared that a witness in one federal jurisdiction may utilise the197
privilege to avoid implicating himself under the laws of another federal jurisdiction.

185
United States v. Gecm, 120 F. 3d 1419 (11th Cir 1997); In re parker, 411 F.2d 1067 (10th cir 1969), vacated
as moot, 392 U.S. 96 (1970)
186
118 S.Ct. at 2236. Zicarelli v. New Jersey State, 406 U.S. 472, 478; Parker v. United States, 397 U.S. 96
(1970).
187
United States v. Balsys, 918 F. Supp 588 (E.D.N.Y. 1996).
188
119 F 3d at 124.
189
Ibid.
190
Ibid.
191
Ibid. Balsys conceded that his testimony could not incriminate him under domestic law because the relevant
statutes of limitations has run. His testimony could, however, subject him to deportation
192
Supra n. 147.
193
Ibid.
194
Ibid, (quoting Murpy v. New York Waterfront Commission, 37 U.S., 52, 55 (1964).
195
Ibid.
196
Ibid.
197
Id. at 77.
The Supreme Court overturned the decision and remanded the case. Justice Scuter, writing for
the majority, initially argued that Balsys' reliance on Murphy was improper because, while
Murphy's final ruling was sound, its analysis of precedent was "fatally defective."198

2.4 ADMISSION IN RELATION TO PRIVILEGE IN AMERICAN LAW

In general, freely given admissions are admissible in court against a defendant. And, contrary
to popular belief, when admissions are made before the commission of the crime under
investigation, the Supreme Court has determined that they are not necessary to be
corroborated.199 It's debatable whether the rules should be concerned with these issues.
However, to the degree that admissions are collected by the police or the prosecution, they fall
under our jurisdiction.

The right to be free from self-incrimination and the right to due process of law, both
guaranteed by the fifth amendment, are combined here. As a result, it is well established that
an accused may not be compelled to make a statement 200 and, as a result, may remain mute
when accused, with the exception of being faced by an accusing co-defendant. The condition
of the law is in serious jeopardy. The Supreme Court has ruled that statements made by one
prisoner in the presence of another, where the latter has remained silent, are admissible in
evidence "under such circumstances, as would warrant the inference that he would 201
naturally have contradicted them if he did not assent to their truth." If he does speak, however,
what he says could be used against him unless he is coerced into doing so by fear or threats.202
Admissions are also barred when third-degree versions are used, such as lengthy questioning.

The conflict over a co-statements defendant's demonstrates that both the police and the
prosecutor have a duty to advise every accused person not only that he does not have to make
a statement, but also that his silence cannot be barred not only when obtained illegally, but
also when this warning has not been given.

2.4.1 THE DOCTRINE OF POLICE INTERROGATION IN AMERICAN CRIMINAL

ADJECTIVAL LAW

Since the time between Escobedo v. Illinois203 and Miranda v. Arizona204, there has been so
much written about confessions, as evidenced by a boom of scholarly confessions articles205,
the Justice Department's Miranda report206, and a new edition of the primary police

198
Supra n. 148, Balsys. Balsys' claim that a plain reading of the fifth amendment's unconditional language
compels recognition of the privilege even if the witness fears prosecution exclusively under the laws of a foreign
sovereign was rejected by the court. At 2222-23, id.
199
Warszower v. United States, 321 U.S., 342 (1941) for a statement, of the general rule see Pines v. United
States, 123 F (2d) 825 (c.c.a. 8th, 1942).
200
United States v. Sprengel, 103 F (2d) 876 (c.c. A 3d, 1939)
201
Sprat v. Limited States 156 U.S. 51, 56 (1895); Bram v. United States, 168 U.S. 532 (1897); Dickerson v.
United States, 65 V, (2d) 824 (App. D.C. 1993), Court denied, 290 U.S. 665 (1933), the dictum of the Sprat case
which became the ground of decision
202
Bram v. United States, 168 U.S. 532 (1897); Brown v. Missippi, 297 U.S. 278 (1936) Menabb v. United
States, 123F (2d) 848 (C.C.A. 6th 1941).
203
378 U.S. 478 (1964).
204
384 U.S. 436 (1966).
205
A proposal to Miraridize Miranda, 100 Harv L. Rev. 1826 (1987). Scltzburg, Miranda v. Arizona Revisited.
Constitutional law or judicial fiat 26 Washburn L.J.I. (1986) Schulth ofer, Re considering Miranda, 54 L.I. Chil.
Rev 435 (1987).
206
U.S. Dept, of Justice, Oppice, Office of Legal Policy, Report to the Attorney General on the Law ofPre-Trial
Interrogation (1986).
interrogation guidebook. The207 Supreme Court decisions in Colorado v. Connelly and
Colorado v. Sparing, which held that a mentally ill or misinformed suspect may lawfully
confess, respectively, can't help but stoke the debate.

The protagonists in the 1980s, like in the 1960s, appeal to three distinct values. One is the
government's desire to gather evidence of criminal activity. Freedom from police abuse and
personal autonomy are the other two, which are sometimes lumped together. The Miranda
rule is described by courts and commentators in the same terms as the "due process"
voluntariness requirements: as a compromise aimed at increasing the frequency of confessions
while maintaining some conception of the other two principles. 208

This basic characterisation of the dispute is thought to be incorrect, because autonomy and the
requirement for evidence compete in practically every circumstance. The vast majority of
confessions are not the result of the suspect's "free choice and reasonable intellect"209 or old-
fashioned and violent third-degree methods. Instead, the majority of confessions are the
consequence of irrationality, error, and manipulation. Any hope that truly voluntary
confessions are available on a systematic basis is based on either unsupportable factual
assumptions or a definition of voluntaries that reduces the term to nothing more than the
absence of third-degree procedures.

As a result, we must choose between respecting the suspect's autonomy and foregoing the
collection of crucial and otherwise inaccessible evidence of crime. The rationale of Miranda,
which is based on the privilege against self-incrimination, and the language of due process
cases, which equates voluntaries with freedom of the will, suggest that the discrepancy in the
factor of autonomy can be resolved. However, whether dealing with the voluntaries of a
confession or the "knowing and intellectual waiver" of the privilege, the holdings of the
instances suggest the opposite.

As a result, there are some notable irregularities in confessions law. The prosecution may not
even ask the defendant a police inquiry at trial after proving probable cause of guilt and while
the defendant is protected by a neutral bench, a personal advocate, and public scrutiny.
However, between the time of arrest and the time of commitment, the police may harass,
deceive, and manipulate the suspect in an environment that is entirely under their control and
to which no other witnesses are admitted. When it comes to confessions, society insists on
enjoying "both the pleasures of indulgence and the dignity of condemnation at the same
time."210

The basic reform programme for confessions legislation is driven by logic and can be
implemented without the need for constitutional amendment. It recommends that the
contradiction between the need for evidence and the desire to respect the suspect's autonomy
be resolved by conceding that the need for evidence warrants forcing the suspect's testimony,
just as it does non-party witnesses' testimony. A complete removal of the privilege under the
fourteenth amendment's due process clause would achieve much of what needs to be done in
terms of constitutional law. This change would allow nations to implement a humane method
of in-court interrogation.

207
F. Inbau, J. Reid and J. Buck Ley, Criminal Interrogation and Confession (3d ed. 1986).
208
Culombe v. Connecticut, 367 U.S. 568, 578-81 (1961).
209
Mincey v. Arizona, 437 U.S. 385, 398 (1978) (quoting Townsend v. Sain, 372 U.S. 293, 307 (1963) and
Blackburn v. Alabama, 361 U.S. 199, 203 (1960)
210
Schoolofer, “Confessions and the Court”, 79 Mich. L. Rev. 865, 883-84 (1981).
However, just because questioning serves a vital purpose does not mean it should be handled
by the police. The issue of covered confessions is very distinct from the issue of compelled
testimony. As a result, a per se exclusionary rule for any statement collected by the police
from an arrested individual is proposed as a corollary to the withdrawal of the constitutional
privilege. The supreme court could achieve this by restricting police interrogation under the
fourth, sixth, or fourteenth amendments. Regrettably, the fifth amendment's explicit command
would remain fully applicable to government agencies. Any meaningful interpretation of the
privilege against self-incrimination in that amendment would necessitate precautions against
invalid waivers comparable to those available in analogous procedural situations, reducing the
government's ability to enforce some federal laws. However, the suggested regime would, on
balance, effectively avoid abusive police practises, secure a bigger quantity of probative
evidence, and develop a more principled and cohesive body of legislation than any current
option.
CHAPTER III
INDIA'S LEGISLATIVE TRENDS

3.1 INTRODUCTION

It is important to understand and grasp the legislative developments in India regarding the
right against self-incrimination since courts must consider the laws when assessing the scope
of the right outside of the constitutional framework.

The Code of Criminal Procedure of 1852 in India recognised that an accused individual in a
criminal case was not a competent witness for or against themselves. The Evidence Act of
1872 eliminated this clause. Meanwhile, Sections 203 and 204 of the Cr.P.C., 1861, specified
that no oath was to be offered to the accused and that the Magistrate could interrogate him at
his discretion. After the prosecution's witnesses had been examined, Section 250 of the
Cr.P.C., 1872, made general questioning of the accused mandatory, and Section 345 stated
that no oath or affirmation should be administered to an accused person. These rules were
adopted into Section 342, Cr.P.C. 1898, in the subsequent Code of Criminal Procedure. So
far, the only later statutory modification in this regard appears to be Section 7 of the
Prevention of Corruption Act of 1947, which made an accused person a competent witness or
applicant in respect of an offence under that Act. Witnesses were likewise protected under
Section 3 of the Act of 1852, which stated that they could not be forced to answer
incriminating questions. However, in 1955, the Criminal Procedure (Amendment) Act of
1955 added a new section to the previous Code, Section 61.211

The Indian law on self-incrimination remained unchanged from the English common law in
terms of the accused and the production of documents, but it was changed in terms of
witnesses by forcing them to answer incriminating questions and providing them with
immunity from prosecution based on their answers.

The accused could not interrogate himself as a witness on oath in India until the Criminal
Procedure Code was amended in 1955. It is heartening to note that this loophole, which
prevented an accused from testifying on his own behalf, has now been corrected by the
addition of Section 342-A to the Amendment Act of 1955, which corresponds to Section
315(1) of the Code of Criminal Procedure, 1973.

It's worth noting that before the Constitution, when there was no question of constitutional
immunity, the question was settled in favour of the accused under the then-current common
law.

3.2 CODE OF CRIMINAL PROCEDURE, 1973, APPLICABLE

PROVISIONS

In 1974, the Indian Parliament passed Act No. 2 of 1974, which established the Code of
Criminal Procedure. In which there are certain provisions relating to the work in progress that
must be addressed at the proper places in regard to the doctrine of the right to self-
incrimination contained in the country's fundamental legislation.

211
Section 342-A, Code ofCriminal Procedure, 1955.
The question of summons to produce 'documents' or 'other thing' is dealt with under Section
91 of the revised Code212. It gives the Court or any person in charge of a police station the
authority to do so.

3.2.1 ANALYSIS OF SECTION 91, CR.P.C., 1973

Under certain circumstances, a police officer or a court may make an order or a summons for
the production of any document or other thing if such production is required or desired for the
purposes of any investigation, inquiry, trial, or other procedure under the Code.213

i. Scope of Section 91: The Legislature has given the Courts broad authority to order the
production of documents relevant for the Court's decision, as well as to direct the inspection of
those papers. However, an order compelling a person to produce or provide inspection of his
book in a dispute to which he is not a party infringes on his basic rights as a citizen, and the
Courts have always been wary of granting anything resembling a roving or fishing
commission to check papers.214

The combined effect of Sections 91, 155, and 165 is that a police officer cannot
investigate a non-cognizable case without a competent Magistrate's order, and that
even if he is so authorised, he must follow the formalities set out in this Section and
Section 165 before he can compel the production of any document or seize any
incriminating article.

Sections 91 and 92 must be read and construed together since they are required for the
purposes of an investigation, inquiry, trial, or other procedure and are held by the
Postal or Telegraph Authorities. They cannot, therefore, be the subject of an order
under Section 92.8 if they are going to be taken into custody by the authorities in the
future.

ii. Applicability of Section 91 to a person accused of an offence: A question would arise

as to whether an accused person could be served with a summons or an order under
Section 91. The Section's language is broad and might theoretically cover an accused
individual. However, there are evidence that the Legislature did not intend for an
accused individual to be included. The words "attend and produce" are very
inadequate to describe the situation of an accused individual who is obligated to
appear in court even if he or she is not charged. A court issuing a summons to an
accused individual present in court "to attend and produce" a document would be an
unusual process. A public authority issuing a formal order to an accused individual in
his custody to "appear and produce" a document would be even stranger. Second, if
Section 91 is understood to include an accused person, it is likely that the accused will
face severe hardship and that the investigation will be unfair to him. 215 Furthermore, a
broad interpretation of the section would be in violation of Art. 20(3) of the
Constitution, which enshrines the concept of protection against coercion in self-
incrimination. The Article has been interpreted to suggest that an accused person
cannot be forced to reveal damning documents that he is aware of.10 For all of these
reasons, the courts have concluded that Section 91 does not apply to an accused person

212
The Code of Criminal Procedure, 1973.
213
Sec.91, Cr.P.C., 1973.
214
Central Bank ofIndia v. P.D. Shamdasani, AIR 1938 Bom. 33.
215
State of Gujarat vs. Shyam Lai, AIR 1965 SC 1251.
when read correctly. 216 The Supreme Court noted the conflict between the M.P.
Sharma case217, which was recognised in Kathi Kalu Oghad case218, and the case of
Shyamlal219 in VS. Kuttan Pillai v. Ramakrishna 220. However, because that case was
not directly related to a summons issued under Section 91(1), the matter was not
referred to a larger Bench to resolve the controversy.

It has been decided that just because an Investigating Officer's order to produce books
of accounts and other documents might cause trouble to the person summoned, it
cannot be asserted that the order is outside the scope of Section 91.221

The question is whether or not the accused can be ordered to produce the documents.
Because the word 'person' in sub-section (1) does not include an accused person, no
process can be issued against him for the production of a document by the police
during the investigation stage or by the Court during the trial stage. The High Courts
had differing opinions on whether Section 91 would apply to an accused individual.

The Supreme Court's decision in State of Gujarat v. Shyamlal Mohanlal222 puts an end
to the debate. The Supreme Court has ruled that the term 'person' in this provision does
not pertain to or include an accused person and therefore no process or order for the
production of any document can be issued or supplied to the accused. Their Lordships
have put their faith in this interpretation of the terms 'to attend and produce' in sub-
section. The phrases 'to attend and produce' in subdivision have been pointed out. It
has been pointed out that the phrases 'to appear' and subsequently 'produce' the
documents in their application to an accused individual who is already in court would
be ineffective.

In Kuttan Pillai v. Ramkrishnan223', the Supreme Court stated. The observation in M.P.
Sharma's case, as reassessed in Kathi Kalu Oghad's case and the one in Shyamlal
Mohanlal's case appear to be at odds. However, because the search warrant in Kuttan
Pillai's case was granted under Section 93(1), rather than Section 91(1), the Court did
not refer the case to a big Bench (c).

The Court has no authority to issue summonses to the accused for the production of a
document or thing in his custody that is incriminatory against him when the matter is
in the investigative stage, whether on a private complaint referred by a Court or a case
registered on a police complaint. 224

iii. Section 91, Cr.P.C., 1973 vis-a-vis Article 20(3), Constitution of India: The
Magistrate has no authority to issue an order permitting the prosecution to see the
entries in the accused's records relevant to the charge's subject matter at the accused's
attorneys' offices. Such an order is not justified by the Code and is ultra vires; but, he

216
Supra n. 9; Melicio Fernades v. Mohan, AIR 1966 Goa 23.
217
AIR 1954 SC 300.
218
AIR 1961 SC 1808.
219
AIR 1965 SC 1251.
220
AIR 1980 SC 185.
221
Surendra Mohan Sarin v. K.P. Man Tripathi, 1986 Cri.L.J. (Pat.).
222
AIR 1965 SC 1251; Raghunath Prasad v. Bisram, 1982 Cri.L.J. (M.P.) 48 (Notes); Badya Samrath v. Kherji,
1983 Raj. L.W. 77, AIR 1980 SC 185.
223
AIR 1980 SC 185.
224
Dulipalla Veeraiah Chaudharyv. Kurna Veeraih, 1988 Cri.L.J. 274.
may have them produced in court under this section for the purpose of using them as
evidence to prove the guilt of the accused persons, and if they are not produced, he
may issue a search warrant under Section 93. 225 If the accused relies on any papers to
disprove the prosecution's evidence or to develop his own case, he must issue a
summons for them. If the inspection's sole purpose is to extract information, it is not
something that could be allowed. There may be documents in the possession of private
individuals that contain vital information for an accused, but he has no right to see
them unless he issues a summons for them and brings them before the court. If they
are not produced, he should ask the Court to seek a search order under Section 93 after
demonstrating to the Court that they are required. Simply because the documents are
in the Court's custody does not grant him any rights that he would not have if they
were in private custody.

The order for the production of certain papers was issued against the accused in
Ranchhoddas Khimji Ashone v. Tempton Jahangir after he consented to produce them.
The accused could not claim protection under Article 20(3) of the Constitution
because the order was issued on the basis of an agreement, it was said. It was decided
that because the claim had been raised for the first time in revision before the High
Court, it could not be raised again at that time.

3.2.2 ANALYSIS OF SECTION 93, CR.P.C., 1973

A search warrant may be obtained under Section 93(l)(a) if a Court has reasonable grounds to
think that a person to whom a summons or order under Section 91 or a requisition under
Section 92(1) has been directed will not produce the document or thing as required by the
summons or demand.

There can't be a search warrant under this clause if a summons or order can't be granted under
Section 91. However, under Section 93(l), a general search or inspection is legal in this
situation (b).

i. SCOPE OF SECTION 93, CR.P. C., 1973: Clause (C)'s to issue general search
warrants cannot be limited by reference to clause (D) (b). However, the Magistrate
must provide reasons for the search warrant's issuance. 226 In this case, the office
bearers of a public institution were accused of criminal breach of trust involving the
institution's funds. The institution's books of accounts and other records were in its
office. The issuance of a general search warrant was appropriate, according to the
court.

Customs authorities do not have custody of papers obtained in the execution of a

search warrant issued under Section 172 of the Sea Customs Act. The final disposition
of such documents will be determined by a Magistrate's order.227 Under Section 93,
the Court has a great deal of power. As a result, before taking the move, the court must
recognise its importance.228 Searching is a major violation of a citizen's rights,229 As a

225
In re Lakhmindas, 5 Bom.L.R. 978.
226
Supra n. 19.
227
AIR 1962 SC 75.
228
Melicia v. Mohan, AIR 1966 Goa 23; ITO v. State, AIR 1950 East Punj 306.
229
I. T. O. v. Seth Bros., AIR 1970 SC 292.
result, the court must be satisfied that the conditions for issuing a search order exist.
The section's power cannot be utilised as a collateral. 230

ii. CONSTITUTIONAL VALIDITY OF SEARCH WARRANT UNDER SECTION 93

CR.P.C. : When a search warrant relates to the accused person's documents or things
in his possession, or when the warrant is for a wide search or inspection of the accused
person's possession or occupation, a concern about the warrant's constitutional
legitimacy may be made. A court cannot order an accused individual to produce any
document or material in his possession because that would be a violation of Art. 20(3)
of the Constitution. A search warrant could be issued under Section 93(1)(a). As a
result, a search warrant for the accused's documents or property could not be issued.
However, a search warrant issued under Section 93(1)(b) for specific things or
documents not known to the court to be in the possession of any accused person, or a
search warrant issued under Section 94, Section 95, or Section 97 in respect of any
specific property or person in the possession or custody of the accused person, cannot
be considered a violation of Article 20(3) of the Constitution, which protects the
accused person from testimonial compulsion. In some circumstances, the search and
subsequent seizure of documents or other items are not the accused person's actions at
all, much less his self-incriminating testimonial acts. A search warrant is issued to a
government officer, usually a police officer. The search and seizure are neither acts of
the occupier of the searched premises. They are not his testimonial acts in any sense
because they are acts of another to which he is obligated to submit.231 It's easy to
understand how a different perspective could result in horrific outcomes. A person
may commit murder and bury the body in his backyard, or burglary and put the loot in
an almirah within his house; or cheating and keep the gains in a drawer of his writing
desk, and they would all be just as safe as if they were deposited in the Bank of
England. Any lawyer could never have expected such devastating effects. The
Constitution is not meant to be a charter for lawbreakers, and nothing in Art.20(3) of
the Constitution prevents a search under the Code's provisions.

3.2.3 ANALYSIS OF SECTION 161 CR.P.C., 1973

The purpose of Section 161 is to acquire evidence that can be used in trial later. A charge may
be framed against the accused in a trial before a court of session or in a warrant-case trial
based on the statements recorded by the police under Section 161. Copies of such statements
must be provided to the accused free of charge prior to trial. 232 This obligation also applies to
the accused in a case that was started without a police report but was investigated by cops.233
As a result, he is able to learn about the nature and volume of evidence against him before to
his trial. If a person is summoned as a prosecution witness, a statement recorded by the police
may be used for the purposes of contradiction under Section 145 of the Evidence Act in
certain situations.
i. APPLICABILITY AND SCOPE OFSECTION 161, CR.P.C. When a person is being
interrogated by a police officer under Section 161(1), he must honestly answer all
questions asked by the officer. He is not, however, obligated to respond to queries that
could lead to a criminal charge, a punishment, or forfeiture. Every person questioned

230
Ibid.
231
Supra n. 13; VS. Kuttan Pillai v. Ramkrishan, (1980) 1 SCC 264.
232
Sections 207 and 208, Cr.P.C., 1973.
233
Viniyoga International v. State, 1985 Cri.L.J. 761 (Del.),
by a police officer must provide, and must be under a legal obligation to provide, all
information available to him to the police for an effective investigation. If a person
who is legally obligated to answer truthfully all inquiries relevant to a case refuses to
answer any such question, he may be prosecuted under Section 179,1.P.C.
Furthermore, if such a person gives a false answer that he either knows or thinks to be
untrue or does not believe to be truthful, he may be prosecuted for supplying false
testimony under Section 193,1.P.C. Most likely, such a person will be prosecuted
under Section 177 for providing false information. Fear of prosecution in the thoughts
of those who would be questioned by the police has been expressed as a concern that
could obstruct investigation. It's tough enough to convince witnesses to speak about
facts pertinent to an investigation of an offence; the possibility of punishment could
prevent witnesses even more from providing information, substantially obstructing the
inquiry. It is also possible that, despite the witness's account being truthful, the
prosecution's end outcome will be the discharge or acquittal of the accused; in this
case, the witness's version will be deemed untrue, and the witness will be subject to
prosecution. 234 However, it should be noted that, in fact, effectively prosecuting
someone for giving false answers to police questioning during an inquiry would be
extremely difficult. Because the recorded statement is not signed by the person who
made it, and there is no guarantee that the investigating police officer's record of a
witness's testimony is accurate.

Though Section 161(2) of the Constitution requires a person, including an accused

person, to honestly answer all questions (relating to the case under investigation)
posed to him by the investigating police officer, that section, as well as Art.20(3) of
the Constitution, protects such a person from questions whose answers could lead to a
criminal charge. When presented with incriminating inquiries, the accused person may
remain silent or refuse to answer. Article 20(3) expresses the essential concept that no
person accused of a crime shall be forced to testify against himself. The Supreme
Court has ruled that the areas covered by Art.20(3) and Section 161(2) are essentially
the same, and that Section 161(2) of the Cr.P.C. is a parliamentary gloss on the
constitutional phrase.

The Supreme Court evaluated the boundaries of Section 161(2) of the Cr.P.C. and the
breadth and reach of Article 20(3) of the Constitution in Nandini-Satpathy v. P.L.
Dani235.

According to the Supreme Court, an accused individual cannot be forced to answer

questions simply because the responses are not implicative when considered in
isolation and limited to that case. Even if the investigation is not about that, he has the
right to keep his lips shut if the response sought has a realistic chance of exposing him
to guilt in some other accusation, actual or imminent.

The likelihood of being charged with a crime is greater than the likelihood of being
charged with one. The accused is entitled to consider - and the court will take note of -
the setting, the totality of circumstances, the equation, personal and social, which have
a bearing on making an answer substantially innocent but in effect guilty in import
when determining the incriminatory character of an answer. Unreasonable

234
14th Report, Vol.II at 752.
235
Ibid
apprehensions and imprecise possibilities, however ridiculous the assertions, cannot be
utilised to shield an accused individual. Where there is no evident tendency to accuse,
he is obligated to respond.236

'Compelled testimony' has been defined as evidence obtained not just by physical
threats or violence, but also through psychological torture, atmospheric pressure,
environmental coercion, exhausting interrogative prolixity, overwhelming and
intimidatory tactics, and other means. Threats of prosecution if there is a failure to
respond may appear to be undue pressure, in violation of Article 20. (3). The method
in which the legal penalty is mentioned to the interrogation victim may inject an
element of tension and a tone of command that is dangerously close to compulsion. 237

3.2.4 . ANALYSIS OF SECTION 162 CR.P.C., 1973

This clause bans the use of comments provided to the police for the purpose of corroboration
during the course of the inquiry.

i. APPLICABILITY OF SECTION 162: The purpose of Section 162 is to protect the

accused. This section creates a limited bar that does not apply if a statement made
before a police officer during an investigation under Chapter XII of the Cr.P.C. is
sought to be used in any proceeding other than an inquiry or trial, or even at an inquiry
or trial, but in relation to an offence other than the one under investigation at the time
the statement was made. 238 The statement made under Section 161 of the Criminal
Procedure Code may only be used to contradict a witness in the manner specified in
the proviso to Section 162 of the Criminal Procedure Code (1). The FIR isn't a reliable
source of information. 239 A statement that does not have the character of a
confessional statement as defined by Section 27 of the Evidence Act would be
inadmissible under Section 162 of the Code.240

ii. SCOPE OF SECTION 162: A statement provided to the police during an investigation
is not admissible as evidence.241 It can only be used to refute a prosecution witness in
accordance with Section 145 of the Evidence Act.242 Although the former statement
cannot be relied upon as substantial evidence 243, it can be used to demonstrate
conflict.244

3.3 ANALYSIS OF SECTION 163, CR.P.C.

Section 163 of the Criminal Procedure Code prohibits a police officer or other person in
authority from offering, making, or causing to be offered or made any inducement, threat, or
promise that would appear to a person from whom a statement is obtained, grounds for

236
Ibid
237
Ibid
238
AIR 1981 SC 1068.
239
(1954) 4 SCC 692
240
1992 Cri.L.J. 1755 All.
241
1980 Cri.L.J. 564.
242
AIR 1976 SC 251.
243
AIR 1978 SC 1511.
244
1979 Cri.L.J. 329
supposing that by making the statement, he would gain any advantage or avoid any temporal
evil, though such officer need not prevent any person from making any statement by any
caution or otherwise. The reason for the restriction is that receiving a statement given under
duress or fear would jeopardise the proper administration of justice. An injunction like this is
also needed to keep the broad powers of investigation and search in check, which might
jeopardise the prized freedoms of personal liberty and reputation. 245 "It is not open to the
police officer to disregard the restrictions of Sections 162 and 163 of the Code of Criminal
Procedure," the Supreme Court said in maintaining the High Court's decision in the same case
that went to the Supreme Court on appeal.246

3.4 ANALYSIS OF SECTION 164, CR.P.C.

This provision is not exhaustive, and it does not limit Section 21 of the Evidence Act of 1872
in terms of admissibility. 247 When read in conjunction with Sections 24, 25, 26, and 29 of the
Evidence Act, this section states that (1) a confession made by an accused person to a police
officer is inadmissible in evidence, and (2) if a person in police custody wishes to make a
confession, he must do so in the presence of a Magistrate (rather than a police officer with
magisterial power). (3) A Magistrate shall not record it unless he is satisfied that it is
voluntarily after questioning the person who made it. (4) When the Magistrate records it, he
must do so in the way prescribed in this section, and (5) the confession becomes relevant and
admissible in evidence only once it has been recorded in this manner. 248 Only a Judicial
Magistrate has the authority to record the statement.249

The decision to record or not record a confession is up to the Magistrate. If he chooses to

record it, he must follow four rules: (1) it must be recorded and signed in the manner provided
in Section 281 and then forwarded to the Magistrate concerned; (2) he must give a statutory
warning that the accused is not obligated to make a confession; (3) he must be satisfied that it
is being made voluntarily; and (4) he must add a memorandum at the bottom of the
confession.250

There's nothing in this section that says a Magistrate has to ask all those questions again if
there's a gap in the recording of a confession, such a lunch break or the next day. It is
sufficient if a Magistrate asks the accused the relevant questions required by that provision
before beginning to record a confession, and it is not necessary that he repeat those questions
to him after every break in the recording of a protracted confession.251

In Bala Mathi v. State of Orissa, the Cuttack High Court went into great detail about this
issue.252

3.5 ANALYSIS OF SECTION 313, CR.P.C., 1973

245
P. Sirajuddin v. Govt, ofMadras, 1968 Cri.L.J. 498 (Mad.)
246
P. Sirajuddin v. State ofMadras, 1971 Cri.L.J. 523 (S.C.).
247
Birindra Kumar Ghose, (1909) 37 Cal. 467.
248
Saw Min (1939) Ran 97.
249
Ashim Das v. State ofAssam, 1987 Cri.L.J. 1533 (Gau).
250
Ram Chandra, (1956) 1 All. 236.
251
Ramana Reddy, (1953) Mad. 417.
252
(1951) Cut. 65
The goal of this section is to establish a direct line of communication between the Court and
the accused, ignoring all third parties such as attorneys, witnesses, and others. Its goal,
however, is not inquisitive. Its sole purpose is to provide the accused with an opportunity to
"personally explain any circumstances appearing in the evidence against him."253

If a point in the evidence is crucial against the accused and the conviction is to be based on it,
it is only just and proper that the accused be interrogated about it and given the opportunity to
defend himself if he so wishes.254

The prosecution's burden to prove its case255 is not relieved by the accused's failure to explain
a particular circumstance, unless the burden is shifted to the accused by statute.

It cannot be used against the accused if he has not been given the opportunity to explain
unfavourable circumstances.

i. SCOPE OF SECTION 313 CR.P.C., 1973: This provision mandates that the accused
be interrogated in order for him to "explain any circumstances appearing in evidence
against him."256 One of the most basic principles to follow in a criminal trial is that the
accused should be asked to explain the evidence against him and therefore given the
opportunity to present his own case.257 It appears to be exceedingly unjust for a court
to rely on a circumstance as incriminating without informing the accused and
providing him with an opportunity to clarify the circumstances. 258

There are two portions to Section 313(1). The following provisions are governed by
the beginning words of the subsection: "In every inquiry or trial, for the aim of
enabling the accused personally to explain any circumstances appearing in the /a
evidence against him." The word "usually" in clause (b) does not limit the nature of
the inquiry to one or more general inquiries about the case; rather, it means that the
questions should be about the entire case and not just one or more specific portions of
it. The outcome of the examination may undoubtedly benefit the accused if he
provides a satisfactory explanation; nevertheless, it may be harmful to him if he
provides no explanation or a false or unsatisfactory explanation. The words "without
prior warning the accused" appear in clause and lead to these findings. If the
legislature intended this, it follows that the Court should not only have the power to
point out to the accused the circumstances in the evidence that require explanation, but
that it should also, in the interest of fairness to the accused, exercise that power in such
a way that the accused knows what points in the Court's opinion require explanation,
failure or refusal to give which will entitle the court to draw an inference against the
accused. 259

Section 313(l)(a) merely grants the Court the authority to ask the accused whatever
questions it deems appropriate, but clause (b) imposes an obligation to fully question

253
Ajmer Singh v. State ofPunjab, (1953) SCR 418; Tara Singh v. State. (1951) SCR 729
254
Dwarkanath v. Emperor, A. 1933 P.C. 124.
255
Shri Ram v. State ofUP., AIR 1975 SC 175.
256
Santosh Singh v. State ofPunjab, 1973, C.L.R. 519.
257
Emperor v. Karma Shankar, 36 Cri.L.J. 1303.
258
State v. Kachara Sada, (1961) 1 Cri.L.J. 255
259
Ibid
the accused at the conclusion of the prosecution case.260 However, because the goal of
the accused's questioning is to enable him to explain any circumstances that appear in
evidence against him, there is no need for the accused to be examined if no such
circumstances exist.261 An examination of the accused as required by this section is
not required in every trial; for example, if the accused in a summons case admits that
he committed the offence of which he is accused, the Magistrate may convict him
under Section 252 without first hearing the complainant and taking any evidence that
may be produced in support of the prosecution. Again, if the evidence presented in
support of the prosecution does not show that the accused has committed any crime,
Section 255 states that the Magistrate can acquit the accused without examining him in
a summons case, and Section 245 states that he can discharge him in a warrant case;
and this only applies to evidence that requires an explanation from the accused. The
words "if any" in Section 263(g) of the Act do not limit the obligation imposed on
courts by Section 313, Cr.P.C., or render it inapplicable to summary trials; they simply
refer to cases in which, due to the accused's admission and plea, or the weakness of the
prosecution's evidence, the accused can either be convicted on his own plea without
the taking of evidence, or acquitted on the evidence without the taking of evidence.262
Only if the accused offers to provide defence is it essential to examine him under this
section. The section's phrasing does not support such a conclusion.263

The Court is required to exercise control over the evidence presented before his Court
and to be aware of the scope of the accused's examination under Section 313
Cr.P.C.264

If the accused asks to the Magistrate for the issuance of process for calling any witness
for examination or cross-examination, or for the production of any document or thing,
defence witnesses must be summoned. If the Magistrate refuses to summon them, he
must provide justifications. 265

ii. SECTION 313 CR.P.C. VIS-A-VIS ARTICLE 20(3) OFTHE CONSTITUTION OF

INDIA: "No individual accused of any offence shall be compelled to be a witness
against oneself," according to Article 20(3) of the Constitution. Infringing on the
constitutional guarantee, Section 313, Cr.P.C. does not convert the accused into a
witness and surely does not compel him to be a witness against himself. The accused's
answer may, without a doubt, be taken into account under this Section. The safeguard
offered by Article 20(3), however, protects the accused from being forced to provide
evidence, but not from providing information that the Court may consider. As a result,
no part of this section is unconstitutional.

The case against the prisoner must be supported not by the absence or lack of any
explanation on the part of the prisoner, but by the state's positive affirmative evidence
of his guilt. However, if the evidence places him in a position of great suspicion, he is
required, for his own protection, to state and present the facts that would reconcile

260
Sadhu Ram v. Mst. Amar Kaur, AIR 1959 Punjab 228.
261
In re Grandhe Sarabhayya AIR 1943 Mad 408; In re S. Cariappa, AIR 1950 Mad. 453; Kirti Narain Singh v.
Emperor, AIR 1944 Pat. 345.
262
Emperor v. Nabu, AIR 1926 Sind I at 2 (FB).
263
Emperor v. Brij Lai, AIR 1937 Oudh 130.
264
SharadBirdhichand Sarda v. State ofMaharashtra, (1984) 4 S.C.C. 116.
265
Dwijendra Kumar Singh v. State ofM.P., 1981 Cri.L.J. (MP) Notes 231.
such suspicious appearance with complete innocence. In circumstances of
circumstantial evidence, where facts are presented on behalf of the prosecution that,
until explained, support an inference of guilt being formed against the accused, it is
both permissible and proper for the court to examine the accused's explanation of
those facts. The notion is clearly recognised in the illustration to Section 114 of the
Evidence Act.266 It is a highly pernicious practise to refuse to answer questions before
the Sessions Court and instead submit a written statement. The accused may face
serious consequences if he refuses to answer questions, because the Court is required
to interrogate him and a refusal to answer may result in an unfavourable inference
against him.

Though the accused is not required to explain even an incriminating event, if he does
not provide a satisfactory explanation, an adverse inference may be formed against
him.267 As a result, if injuries were discovered on his person and he was unable to
explain them, that would be evidence against him. 268

However, while the accused's reluctance to answer a question may be used against
him, his silence cannot be used against him. The most that can be stated about his
silence is that he left the events in the evidence unexplained. However, this would not
relieve the prosecution of its responsibility of proving the accused's guilt beyond a
reasonable doubt.269

A self-defence statement made by the accused to justify his actions cannot be

considered an incriminating circumstance. 270

The accused's false denial in his Section 313 statement can be used against him as a
circumstance.

When an accused is questioned under Section 313, he is not obligated to answer,

hence the interrogation does not violate Article 20(3) of the Constitution.

On the basis of the accused's refusal to provide an answer, no adverse inference may
be drawn against him.

Utterances of defamatory character made by an accused person during the course of

the statement he is requested to make shall be treated as entirely privileged, such that
he is not liable to be punished for such statements under Section 499, I.P.C.271 The
privileged did not extend to defamatory statements against a witness made during the
examination of such witness by the accused who was represented by counsel,
according to Hayes v. Christian272.

However, the protection granted to the accused under sub-section (3) is restricted to
statements made by the accused in response to inquiries posed at some level of the

266
Per Piggott, J. in Abdul Aziz v. Emperor, 17 Cri.L.J. 23.
267
Public Prosecutor v. Papanna, AIR 1960 A.P. 291.
268
State of Orissa v. Umesh Paramanik, 1964 Cut. L.T. 151.
269
Nakula Bank v. State, 1965 Cut. L.T. 516.
270
Ramesh Chand v. State, (1986) 2 Cri.L.J. I.
271
In re Venkata Reddy, ILR 36 Mad. 216.
272
ILR 15 Mad. 414.
investigation or trial to enable the accused to explain any circumstances appearing in
the evidence against him. It was held that an accused person who filed a petition
before a superior court containing false charges in attempt to persuade that court to
transfer the case was criminal under Section 182 ,1.P.C. and not protected by Section
313, Cr.P.C.273

If an accused person chooses to fall within the ambit of Section 295, Cr.P.C. and
swears an affidavit based on false facts, he will be subject to the penalties imposed on
those who swear false affidavits. 274

Subsection (3) provides protection for statements made in response to questions posed
to the accused in order for him to explain evidence against him. There is nothing in the
clause that grants him ultimate immunity from defamatory statements made during the
examination. 275 The accused's statement under Section 313 is only entitled to qualified
privilege, not absolute privilege.276

3.6 RELEVANT PROVISIONS OF THE EVIDENCE ACT, 1872

3.6.1 ANALYSIS OF SECTION 24 OFTHE EVIDENCE ACT, 1872

Sections 24 to 26 make up a trio that protects accused people from being persuaded or enticed
into confessing their guilt. Section 24 makes a confession irrelevant in a criminal proceeding
if it is made as a result of an inducement, threat, or promise from a person in authority, and it
is sufficient to give an accused person grounds to believe that by making it, he will gain any
advantage or avoid any evil in the proceedings against him. 277 A voluntary confession given
by the accused in a criminal case provides proof against him of the facts disclosed. However,
a confession made after suspicion has been attached to him or a charge has been filed against
him, and which was prompted by any promise or threat pertaining to the charge and made by,
or with the approval of, a person in authority, is not considered voluntary and is
inadmissible.278 The notion that a confession prompted by a promise or threat made by
someone in authority is inadmissible is that the confession is untrustworthy as testimony.

When a confession is driven out the mind by the flattery of hope or the torment of dread, it
takes on such a shaky appearance as evidence of guilt that no credit should be given to it, and
it is so rejected.279 The probability that the prisoner was led to falsely accuse himself by hope
or fear is the basis for rejecting non-voluntary confessions. 280 This possibility arises when an
innocent person is placed in a situation where falsely admitting guilt is the more promising of
two options between which he is forced to choose; that is, he chooses any risk that may be
associated with falsely admitting guilt over some worse alternative associated with silence."
The studies reveal that many confessions are obtained using unethical tactics, and that
innocent persons frequently falsely accuse themselves, as every reader of an evidence book
knows. The ruling that confessions that are not demonstrated to have been made voluntarily
273
Tribhavan v. Emperor, 10 Cri.L.J. 509.
274
Mahtab Singh v. Emperor, AIR 1941 All. 337; Badri Prasad v. Jhamman, AIR 1933 All. 47.
275
Bar Shanta v. Umrao Amir Malak, AIR 1926 Bom. 141 (FB) overruling Queen, Empress v. Babaji, I.L.R. 17
Bom. 127.
276
Nataraj Thevar v. Challammal, 1985 M.LJ. (Cri.) 7 (Mad.).
277
For prohibition ofsuch inducement etc. see Section 343 ofthe Cr.P.C. (1898) (now 313 Cr.P.C, 1973).
278
Phipson, Evidence, 7th Ed., 255.
279
Per Eyre, C.B., in Warickshall’s case (1783) 1 Lea 263.
280
Phipson, Evidence, 7th Ed., 256.
are not admissible. The rule that rejects confessions that are not demonstrated to have been
made voluntarily is a policy rule.281, the reason is not that the law assumes such confessions
are false, but rather, due to the risk of receiving them, the law believes it preferable to reject
them282, not because the law is scared of truth being elicited, but because the law is jealous of
not having the truth.283 Another, more rational reason for the restriction is that allowing such
confessions would naturally drive lesser police agents to harass and oppress unlucky inmates
in the aim of extracting a reluctant confession in order to gain a reputation for activity and
zeal.

In a criminal proceeding, a confession made by an accused person is irrelevant if the Court

believes the confession was induced by any inducement, threat, or promise relating to the
charge against the accused person, coming from a person in authority, and sufficient, in the
Court's opinion, to give the accused person a chance to defend himself.

A confession is a statement made by an accused person who must either accept the offence in
words or at the very least virtually all of the facts that make up the offence. A self-exculpatory
remark is not the same as a confession.284 To be considered a confession, a statement must be
accompanied by the perpetrator's admission of guilt. No self-exculpatory remark can be
construed as a confession if the exculpatory statement is based on a fact that, if true, would
negate the claimed offence. Furthermore, a confession must either accept the offence in terms
of the offence or at the very least substantially all of the circumstances that make up the
offence. A confession may not always imply the admission of a profoundly incriminating fact,
even if it is indisputably incriminating.285 When an accused in a murder case makes an
extrajudicial declaration to the effect that he killed the deceased because the deceased
threatened to kill him with lethal weapons, the accused is protected from criminal culpability
by pleading the right of private defence. As a result, the accused's confession contained
exculpatory information that, if accepted, would clear him of all guilt. A statement like this
cannot be construed as a confession.286

Unless it is well explained, prolonged custody shortly preceding the confession is enough to
brand it as involuntary.287 Confessions given a few days after arrest "may sometimes be
truthful, but they will, in many cases, not have been made voluntarily, but have been extorted
maltreatment, or coerced by promises of pardon in exchange for being called as a witness for
the Crown."288 Confessions received following a police officer's illegal detention must be
treated with caution. 289 In this country, confessions are frequently obtained by improper
influence, particularly by the police, and this fact has been the topic of subsequent court and
public commentary. Many confessions are obtained using unethical tactics, and innocent
persons are frequently wrongfully accused. 290 A confession obtained by repeated police
questioning cannot be regarded as a voluntary confession, and even if it is admissible under
Section 27, it has no probative value.291 This is true even if the confessing accused is in police

281
Taylor, 872, Ibrahim v. E. 15 Cri.L.J. 326.
282
Taylor, 872.
283
Per Williams, J., in R. v. Mansfield, (1881) 14 Cox. CC 639.
284
Pakla Narayan Swami v. Emperor, AIR 1939 PC 47; Palvinder Kaur v. State of Punjab, AIR 1952 SC 354.
285
Passang Lama v. State ofSikkim, 1975 Cri.L.J. 1350 (Sik.)
286
Jaya Singh Madakami v. State ofOrissa, 1986 Cri.L.J. 117
287
Nathu v. State ofU.P., 1956 Cri.L.J. 152; HariRam v. State, 1972 Cri.L.J. 961.
288
R. v. Gobardhan, (1887) 9 All. 528, 566, Per Brodhurst, J
289
R. v. Sagal, (1893) 21C 642
290
R. v. Dada, (1889) 15B 452, 461.
291
Emperor v. Taduluru Poligadu, 1941 Cri.L.J. 242.
custody and is returned to police custody after the confession is recorded, even though the
Magistrate gave him 314 hours to ponder.292

The terms 'in custody' do not appear in the section; they denote only surveillance or limits on
the person's movements, which may be entire (as in the case of an arrested person) or partial
(as in the case of a detainee). The question of whether a person was in custody at the time of a
confession is only asked to see if the confession "appears to the Court to have been produced
by incentive, threat, or promise" as defined by the provision. The mere fact that the accused's
movements may be restricted or that he may be under observation at the time he makes a
confession does not ipso facto render the confession invalid.

The conditions set out in S.24 of the Indian Evidence Act, 1873 are not met where there is no
evidence that the person who made the threat is a person in authority, and the confession
cannot be considered to be irrelevant.293 The term "person in authority" is not defined by law,
but everyone who is involved in the arrest, detention, or prosecution of an accused individual
is a person in authority. As a result, a son's confession to his father is not inadmissible. 294

3.6.2 ANALYSIS OF SECTION 25 OF THE INDIAN EVIDENCE ACT, 1872

A confession given to a police officer295 cannot be used against a person suspected of

committing a crime.

Section 25 prohibits confessions made to a police officer from being used in court. Even
throughout the British rule in India, police officers were not known for their honesty. S.162,
Cr.P.C. 1973, for example, states that any post-investigation statement by a witness to a police
officer is inadmissible unless it is made for the specific purpose mentioned in S.162, Cr.P.C.
1973. The grounds for the regulation are well known: police powers are frequently abused for
extortion and tyranny, and the police have no regard for the truth. The report of India's first
law commission reflected this as well.

Ss.25, 26, 27, Indian Evidence Act, 1872, as well as S.162, Cr.P.C., 1973, were placed into
the statutes to restrict the police from torturing people. These rules are unique to this country,
and in some ways, the safeguards in India in favour of the accused are more pronounced.

He cannot be called a police officer in the absence of a particular provision in the Madras
Forest Act, 1878 vesting on him all the powers of an officer in charge of a police station, and
a statement given to him will not be subject to Section 25 of the Evidence Act, 1872.296 The
phrase "police officer" should not be interpreted strictly, but rather in its broadest and most
common sense. In the application of this section, the inquiry, or the power of investigation, is
not the true or ruling test. Even though they are not vested with investigative powers, customs
officers have vital powers of prevention or detection of crimes under the authorities granted
on them by the Sea Customs Act of 1878. As a result, a Customs Department preventive

292
Amrut Soma v. State ofBombay, AIR 1960 Bom. 488.
293
Sanatan Bidhani v. State ofOrissa, (1972) 38 Cutt. L. J. 428.
294
Biswambar Mehar v. State ofOrissa, 1989 Cri.L.J. 271.
295
As to statements made to a police officer investigating a case, the Code ofCriminal Procedure 1973 (2 of
1973), 5162.
296
State v. Bhoi, 1967 Cri.L.J. 1684.
officer is a police officer in the broadest sense of the term within the meaning of this section,
and no confession given to him can be used against a person accused of any crime. 297

Customs authorities are not police officers because they lack the powers of an officer-in-
charge of a police station and investigative powers, and a statement made to customs
authorities by someone who may later be charged under the Foreign Exchange Regulation Act
is not covered by this Section and is admissible in evidence. The Supreme Court held in State
of Punjab v. Barkatram298 that the words "police officer" should not be construed narrowly,
but rather in a broad and popular sense, as stated in R. v. Hurribole, and that while customs
officers may have powers that are similar to those of police officers, they are not police
officers for the purposes of the law. The question of whether officers of departments other
than the police who have been given the powers of an officer-in-charge of a police station
under Chapter XIV of the Code of Criminal Procedure, 1898 (now Chapter XII of the Code of
Criminal Procedure, 1973) are police officers or not for the purposes of Section 25 of the
Evidence Act has been left unanswered.

The Supreme Court ruled in a case involving the Sea Customs Act 8 of 1878 that a customs
officer is not a police officer within the meaning of the current section because he lacks all of
the powers of a police officer in relation to an investigation of an offence, including the power
to submit a report under Section 173, Cr.P.C., 1973. As a result, a statement made to a
customs officer by a person accused of committing an offence is not inadmissible under
Section 25 of the Evidence Act.

A customs officer conducting an inquiry under Section 107 or Section 108 of the Customs
Act, 1962, is not a police officer, and the person against whom the inquiry is made is not a
"accused person," and a statement made by such a person in that inquiry is not a statement
made by "a person accused of an offence."299

There is some debate about whether an Excise Inspector or Excise Officer is a police officer
under Section 25 of the Evidence Act of 1872.

It was argued in Badaku Joti Svant v. State of Mysore300 that under Section 21(2) of the Act, a
Central Excise Officer has all the powers of an Officer-in-Charge of a police station and, as a
result, he must be deemed to be a police officer within the meaning of those words in this
section, but it was pointed out that this power is conferred for the purpose of Section 21(1),
which gives power to a Central Excise If he wants the Magistrate to take cognizance of an
offence, he must file a complaint. When investigating a cognizable case, the Central Excise
Officer has the powers of an officer-in-charge of a police station under Section 21(1) of the
Central Excises and Salt Act, 1944, which differs from Section 78(3) of the Bihar and Orissa
Excise Act, 1915, which was considered in Raja Ram Jaiswal v; State and provided that such
officer shall be deemed to be the Officer-in-Charge of a police station. When investigating a
cognizable matter, Section 21 of the Central Excises and Salt Act, 1944 specifies that a
Central Excise Officer shall have the powers of an Officer-in-Charge of a police station for
the purposes of his investigation. It makes no mention of the Central Excise Officer being
considered a police station. In any case, he does not become a police officer under this

297
Fernandez v. The State, AIR 1953 Cal. 219.
298
AIR 1962 SC 276 : 1962(1) Cri.L.J. 217
299
Percy Rustomji Basta v. State ofMaharashtra, (1971) 1 SCC 847.
300
1966 Cri.L.J. 1353.
section's definition. As a result, unless the accused may use Provision, Evidence Act, a
voluntary statement made by an accused to the Deputy Superintendent of Customs and Excise
is not covered by the section and is admissible as evidence.

If an accused person's admission to a police officer does not amount to a confession, it can be
proven. A remark delivered to the police by an accused that contains an admission of a
gravely damning fact, or even a conclusively incriminating fact, is not a confession301, and
therefore cannot be excluded by this provision since it is not a confession. And, if the
statement is made to the police prior to the case being investigated, it is not covered by
Section 162, Cr.P.C. As a result, it is admissible in court.302 Prior to the Privy Council's
decision in Pakala Narayana Swami v. Emperor303, the term "confession" was interpreted as a
statement made by an accused "suggesting the inference that he had committed" the crime,
and it had been held in several cases that such statements made to a police officer were
inadmissible under this section. 304 Such utterances are now permissible, unless they fall under
Sec. 162 of the Cr.P.C., as they are not confessions. Section 25's prohibition is founded on a
rule of public policy, and it is absolute. The proposition that no confession to a police officer,
given at any time, shall be established, applies exclusively to confessions made to a police
officer and not to confessions made in his presence.

3.6.3 ANALYSIS OF SECTION 26 OF THE EVIDENCE ACT

Confessions made by suspects while in police custody are not admissible. proved to be in his
favour. No confession made by a person while in the custody of a police officer shall be used
against him unless it is made in the immediate presence of a Magistrate.

[Explanation. The term "magistrate" is not used in this section. In the Presidency, the head of
a village discharges magisterial powers. Fort St. George is a fortification in the United States.
Under the Criminal Code, a magistrate is a person who is charged with enforcing the [1882
procedure].

Despite the fact that a confession made to a police officer is protected by Section 26, Any
confession given to a police officer is completely inadmissible, while any confession made to
a civilian is permissible. If two broad conditions are met, a magistrate is admissible. (a) The
accused who made the confession was taken into prison by the police; (b) The decision was
made in the presence of the concerned Magistrate.

Certain statements were given to the police by the accused. If these purported utterances are
considered confessions, they will be subject to Section 25 of the Evidence Act of 1872,
because they were made to the police officer present. They will not be admitted in evidence if
they are brought in under Section 26 as a confession made in the immediate presence of the
Magistrates because they were not recorded by the Magistrates in the manner provided by
Section 164 of the Criminal Procedure Code, 1973.

3.6.4 ANALYSIS OF SECTION 27 OF THE EVIDENCE ACT, 1872

301
Pakala Naryana Swami v. Emperor, 1939 P.C. 47
302
Sital Chandra Maily v. State, 1956 Cal. 82.
303
1940 Cri.L.J. 364.
304
R v. Haji Sher Mahomed, 1923 Bom. 65.
Even if evidence relating to confessions or other statements made by a person while in the
custody of a police officer is tainted and thus inadmissible, if the truth of the information
given by him is assured by the discovery of a fact, it may be presumed to be untainted and
thus declared provable in so far as it distinctly relates to the fact thus discovered.305

The theory of confirmation by following facts is used in this section. That doctrine states that
if a search is conducted in the aftermath of an otherwise inadmissible confession and facts are
uncovered that confirm it in material areas, the discovery is a guarantee that the confession
was truthful. However, only that portion of the knowledge that is distinctly or tightly related
to the facts uncovered can be proven.306

The part appears to be founded on the belief that if a fact is discovered as a result of
information provided, some assurance is provided that the information provided was truthful
and accurate. As a result, can be safely admitted into evidence.

i. APPLICABILITY OF SECTION 27: The prosecution must show that the information
provided by the appellant led to the discovery of some fact sworn to by him in order
for Section 27 of the Evidence Act to apply. It is obvious that the discovery must be of
some fact that the police had not previously learned from other sources, and that the
fact was first learned from the accused's information.307

Section 27 is an exception to the rules enacted in Sections 25 and 26 of the Evidence

Act, 1872, which provide that no confession made to a police officer shall be proved
as against a person accused of an offence, and that no confession made by any person
while in the custody of a police officer shall be provided as against such person unless
it is made in the immediate presence of a Magistrate. When a fact is discovered as a
result of information acquired from a person accused of any crime who is in the
custody of a police officer, that part of the information that pertains distinctly to the
fact so discovered can be proven, whether or not it amounts to a confession. The
phrase "whether it amounts to a confession or not" has been used to emphasise the
point that, even if it does amount to a confession, the accused might be found guilty
based on as much information as relates distinctly to the fact uncovered. The part
appears to be predicated on the belief that if a fact is discovered as a result of
information provided, some assurance is provided that the information was genuine,
and so can be securely offered as evidence. However, the scope of admissible
information must clearly be determined by the precise nature of the fact found to
which such information is required to relate. On a cursory review of the section's
provisions, it appears that what is allowed to be proved is the information, or that part
of it that is distinctly related to the fact thus revealed. The information would be a
statement given by the accused to a police officer, and the police officer is obviously
barred from proving the information or any part of it unless it falls within the section's
four criteria. If the police officer wants to prove the information or a portion of it, the
Court will have to consider whether it relates distinctly to the fact thus discovered and
will only allow proof if that condition is met; if the police officer does not want to
prove the information or any part of it, Section 27 will not apply. The police officer's
testimony would almost certainly indicate that the accused was aware of the fact found

305
State ofUttar Pradesh v. Deoman Upadhyaya, 1961 (2) SCJ 334
306
Dharmav. State, 1965 Raj. L.W. 418
307
Jaffer Hussain Dastigir v. State ofMaharashtra, (1969) (2) SCC 872.
as a result of the information he provided. However, this does not always prove his
involvement in the crime. It would only be a piece of evidence in a chain of evidence
that, when combined with other pieces of evidence, may be used to prove his
relationship to it. As a result, the circumstances would be fairly benign, and testimony
of them might be submitted without triggering the application of Section 27. 308

ii. CONSTITUTIONALITY OFSECTION 27, EVIDENCE ACT, 1872: It is argued that

Oghad saved the validity of S.27 by holding that evidence admissible under that
section would be subject to Article 20(3) and would be rendered inadmissible only if
the oral statement (1) was made by a person who was in the position of an accused at
the time he made the statement, (ii) that it imparted his personal knowledge in respect
of relevant facts to be communicated to the Court, and (iii) if he was compelled to
make the And statements like the ones in (ii) above, which would be protected if
stated orally under Art.20(3), would likewise be protected if written down. If he was
forced to hand it over outside of court, it would be inadmissible, and it could not be
included under Section 27 as something discovered as a result of the accused's
statement. A court cannot compel an accused to produce such a document in evidence
during his trial. The Sharma decision did not rule that a document whose production a
trial court could not compel might be seized and used in evidence under a Magistrate's
order. If a document discovered during a legal search and seizure isn't admissible in
court, the same document obtained through an illegal search isn't admissible either.
The fact that the Evidence Act makes relevance the test of admissibility is beyond the
matter, because, as we have shown, Art. 20(3) overrides the Evidence Act to the extent
described above. So far, everything is in order.

The Allahabad High Court held that if the statements admissible under Section 27 of
the Evidence Act were compelled statements, the genuineness of the fact deposed to as
discovered as a result of such statements was called into question, and the support that
the statements received from the discovery of the facts was destroyed or questioned.309
The facts discovered as a result of the compelled confession became worthless, and
the constitutional challenge under Art.20(3) could not survive since the Court
identified third-degree tactics in one case and cruel ill-treatments in the other.
However, the Court noted obiter that the compelled statements and the discoveries
made as a result of them were covered by Art.20(3) of the Constitution if they were
made as a result of them.310 In Amrut v. Bombay311, it was held that statements made
by the accused, which were admissible under Section 27, Evidence Act, would be
subject to Art.20(3) if they were made to the police as a result of harassment and after
several hours of continuous interrogation, and that the statements so obtained would
be excluded. The Allahabad High Court's view was referred to in Orissa v. Basanta
Bag312, where it was said that evidence acceptable under Section 27 may be
inadmissible under Art.20(3) if force was shown.313 In re Mudugula Jermia314 and

308
Palukuri Kottayya v. Emperor, 1947 PC 67; Udai Bhan v. State ofU.P., 1962 (2) Cri.L.J. 251.
309
Dhoom Singh v. State, (57) AA 197; Amin v. State, (1958) A.A. 293. The above cases were followed in
Ghazi v. U.P., (1966) A.A. 142 [the statement of the accused obtained by third degree method contravenes Art.
20(3)]
310
Dhoom Singh v. State, (1957) A.A. 197
311
(1960) Bom. 664 (60) A.B. 488.
312
(1959) A Or. 33.
313
Id. at 37.
314
(1956) Andh. Pra. 173, (57) A.A. p.611.
Radha Kishan v. State315, similar views were voiced. In Jethiya v. State316, it was
found that Section 27 did not contradict Art.20(3) and that it was not permissible to
conclude that the accused's information admissible under Section 27 constituted
compelled testimony. The observations were obiter in the remaining four cases,
however, because the statements were deemed voluntary. These cases all reached the
same conclusion: I Section 27 did not violate Art.20(3); (ii) voluntary statements were
admissible in evidence; and (iii) coercive statements were subject to Art.20(3) (3).
Art.20 applied to the things uncovered as a result of such coerced utterances,
according to the Allahabad rulings (3). As can be seen from Oghad, the majority
judgement established the three principles outlined above as the law, whereas the
minority judgement found it unnecessary to express an opinion on the effect of
compulsion in eliciting statements because the statements before the Court were
voluntary. Because the Supreme Court did not address the effect of compulsion on
things uncovered as a result of the compelled statement, that issue will be addressed
after Oghad is decided. The Court found that statements admissible under Section 27
of the Evidence Act are "not within the ban [of Art.20(3)] unless compulsion was
employed in acquiring the information."317 Second, simply because the accused was in
jail at the time he gave the statement did not make it a coerced statement, albeit that
circumstance, when combined with others, could demonstrate that it was.

315
1961 PLR 912.
316
. (1955) A. Raj. 147.
317
State of Bombay v. Kathi Kalu Oghad, AIR 1961 SC 1808.
CHAPTER IV
JUDICIAL TRENDS IN INDIA

4.1 INTRODUCTION

In this article, an attempt is made to explain and illuminate the applicability of the notion of
'self-incrimination' enunciated in Article 20(3) of the Indian Constitution in light of decided
instances and in the context of the presumption of innocence. The theory has also been
investigated to see if it applies to testimonial compulsion in or out of the courtroom. And as
part of this examination, an accused person will be required to produce documents, as well as
the prosecution will be required to produce documents and valuable items. The documents
thus presented can be of several types: documents discovered and seized after a search of the
accused's person, documents collected from the accused's property. Voluntary statements
made after willingly entering the witness box, as this amounts to testimonial compulsion, and
statements made by the accused under section 313, Cr.P.C., 1973.

The handwriting, hair, foot prints, palm prints, finger prints, and other specimens, as well as
identification test parades and blood tests, which are compulsorily obtained in the course of an
investigation and which are obtained under the direction of the court and handed over to the
prosecution or kept in court custody for the purpose of comparison, have all been examined
from the perspective of the constitutional guarantee against "self-incrimination." The impact
of Article 20(3) must also be considered in light of the identification test parade and the
accused's forced medico legal examination.

The study also looks into the admissibility of tape-recorded remarks, confessional statements,
and discoveries made as a result of such statements. Confessional comments made before
authorities such as customs and excise inspectors in the course of an investigation, as well as
their admissibility in evidence, would be examined and clarified in accordance with Article
20(3) of the Indian Constitution. The question of whether Article 20(3)'s privilege against'
self-incrimination' extends to companies, domestic and departmental inquiries, enquires under
the Commissions of Inquiry Act, 1952 contempt proceedings, and the limits of protection to
an accused appearing as a witness are all issues that will be addressed.

"No individual accused of a crime shall be forced to testify against himself." The first is the
constitutional injunction. The theory against' self incrimination' is the name given to this
doctrine. Its purpose is to safeguard the accused from being coerced to accept or deny the
facts due to hope or fear. The 'presumption of innocence' underpins the immunity from 'self-
incrimination,' and as long as 'presumption' is one of the fundamental canons of criminal law,
evidence against the accused should originate from sources other than the accused. The
claimed theory originated in England in the 16th century as a protest against the ecclesiastical
courts' inquisitorial techniques. The idea has since been incorporated into adjectival law.

4.2 HISTORICAL BACKGROUND

The ancient criminal law of England was developed from the 'Twelve Tables' of Roman
criminal law. Inquisitorial methods were utilised in those days to find the truth, subjecting the
victim to various forms of torture, brutality, and inhuman treatment in violation of the dignity
of human conscience.318 In around 409 A.D., three Germans seized English lands, defeating
Roman armies. Because the German criminal justice system resembled the Roman system, the
conquest had little effect on the system as a whole. The approach was based on moral and
religious encouragement to a large extent. "Alfred's laws began with ten 'Commandments' and
adaptations of exodus-related elements."319 The technique in search of truth and summation in
form was developed by the ordeal.

Private retribution devolved into private wars, blood feuds, and anarchy, prompting William
the Conqueror to impose "trial by battle."320 Many changes were brought about by the
vicissitudes of history and social conditions, and the prevailing practise was superseded by
oath. Brutality and third-degree approaches for obtaining admissions and confessions were
deemed unacceptable. As a result of the Barons' tyranny, King John-I was forced to sign the
Magna Carta in 1215, which established several human basic rights6 for the oppressed and
disadvantaged population of England.

The goal of this article is to examine and discuss the constitutional protection of an accused
person against "self-incrimination" as granted by our Constitution. The accused had to be
sworn in before 1236. The judge did not interrogate him. The oath was a ritual in and of itself,
and the judgement of guilt and innocence was based on the correct proclamation of the
pledge. 321 In 1236, the ecclesiastical courts devised a new procedure that compelled the
accused to respond to the judge's query. The Star Chamber Statute of 1487 allowed the
accused to be examined on oath during his trial. The oath was eventually removed because it
was feared that a party would be forced to accuse themselves of any wrongdoing. In reality,
the case of John Lilburn322 in England resulted in the termination of inquisitorial and barbaric
tactics used by the Star Chamber Courts in the exercise of their criminal jurisdiction. The
Court agreed that the accused should not be put under oath and that no evidence should be
obtained from him. By the end of King Charle-reign, II's judges in England had widely agreed
that no one was obligated to incriminate himself on any allegation.323 In the year 1700, this
privilege was fully recognised.324 It is pointless to go into detail about this privilege in
England and the United States of America separately; instead, whenever necessary, a random
comparison of this concept as obtained in the Anglo-American system versus the continental
system with its constitutional counterpart in India will suffice.

The concept of privilege is the result of a complex history's vicissitudes. 325 Even in the late
16th and early 17th centuries, the distrust of all interrogations of the accused arose as a
reaction to the Star's Chamber's tactics of enforcing unpopular religions and political
legislation. This approach was not only followed by English settlers in England, but also in
the United States326; and the same practise was adopted with the introduction and
transplantation of English criminal law into India. Accused persons were occasionally forced

318
The Criminal Evidence Act, 1898
319
Stephen J.F., A History of Criminal Law of England London, 1883, Printed by Research Services Works
Series New York, 1971, at 52.
320
Id at 61
321
Swaminathan, S. Maynes, Criminal Law of India, Part II Madras, 1914 at 4, Holdsworth, History ofEnglish
Law, 7th edn., 1956.
322
3 St.Tr. (1315)
323
Halsbury’s Laws ofEngland, 3rd edn., vol.10, at 272-273.
324
Stephen, J.F., Sir A History ofthe Criminal Law of England, Vol. 1, London 1883, at 375,429.
325
Wigmore’s Evidence, 3rd ed., Vol.VIII, 1940, 2250.
326
Supra, n.7.
to testify against themselves due to the use of third-degree method(s) inside the Court, not to
mention outside the Court.

In the nineteenth century, the expansion of the accused's right to counsel and call witnesses,
along with the tradition that the accused should not be put under oath, resulted in a common
norm of forced silence.327 The 'privilege' had its greatest significance during this time because
the enforced silence could not logically lead to a conclusion of guilt. Later that century,
concern for the innocent led to the passage of enabling legislation in England 328 and the
United States, allowing the accused to testify if he so chooses, but with no provision for an
unfavourable inference based on the accused's failure to testify. 329 The procedural guarantee
of the accused's right, which has evolved and been amended over centuries in the interest of
justice, has been further modified with the passage and integration of the Bill of Rights into
the Constitutions of many democratic countries.

The constitutional protection of an individual's dignity and inalienable rights is a well

recognised problem. 330 The Constitution protects not just an individual's dignity, conscience,
and right, but also the integrity of the judiciary by forbidding the conviction of an individual
using unlawful techniques.331 The public's faith in the judiciary and the procedures it has
established for delivering fair and impartial justice is reaffirmed.

The presumption of guilt of the accused spawned a slew of inhumane methods, including
torture, which is a third-degree method for extracting confessions. Torture was an integral
component of the ancient legal process, which was predicated on an ordeal test comparable to
the presumption of guilt.332 In India, a guy suspected of stealing was exposed to a boiling oil
ordeal during which he was required to pick up a piece of iron rod by hand. If his hands
remained unharmed, he was declared innocent; otherwise, he was found guilty333. The judge
ordered the Mrich chhakatika hero to reveal the truth or face being flogged.

The first Penal Code was presumably enacted in 1827 in the Indian province of Bombay, and
it was a basic treatise rather than a legislation that replaced conventional law. The Code was
exclusively applicable to East India Company courts and lasted until it was replaced by the
Indian Penal Code in 1860, during the governorship of Mountstuart Elphinston.334 The
presumption of innocence was first utilised in Nobokisto's case, when it was decided that the
golden rule of criminal justice is that an accused is presumed innocent until proven guilty;
hence, the accuser must prove all facts consistent with his guilt and incompatible with his
innocence. In this regard, the law does not weigh the contradicting testimony offered by each
side on golden scales, but rather takes a stand on the side of the accused, carefully investigates
all facts and circumstances, and takes care not to infringe on the liberties of those who are
placed under its protection.335

327
C. Howard, Criminal Justice in England, London, 1931, 373; Heydon, J.D., “Confessions and Silence”
Sydney L.R. Vol.VII, 1976, 375 at 379-80.
328
Criminal Evidence Act, 1898, 61 & 62 Viet. C. 36(i)(e)(f).
329
Williams, G. The ProofofGuilt, 3rd edn., 1963, at 63-66.
330
Pound, “Legal Interrogation of Persons Accused or Suspected of Crime” J. Crirn. L.C.&P.S. 1014(1934).
331
Williams, “Police Interrogation Privileges and Limitation in England,” 52 J. Crirn. L.C.&P.S. 50,52(1961)
332
Stephen, J.F., A History of Criminal Law ofEngland, Vol.l, London, 1883, at 441.
333
Yajnavalka II, 3.
334
Stephen, J.F., Sir, A History of Criminal Law of England, Vol.III, London, 1883, at 295.
335
Queen K. Beharee (1865), 3 W.R. (Cri.) 23,26
Section 101 of the Indian Evidence Act, 1872, and section 313 of the Code of Criminal
Procedure, 1973, both recognise the presumption of innocent.

Prior to the creation and implementation of the Indian Constitution, which includes an Article
20 prohibiting "self-incrimination" (3). Section 342 of the Code of Criminal Procedure, 1973,
contains a similar clause. Such provisions existed prior to the enactment and execution of the
Code of Criminal Procedure, 1898, under section 3 of Act 15 of 1852. It recognised that an
accused in a criminal proceeding was not a competent or compellable witness to give
evidence for or against himself; however, it was modified in 1855 by section 32 of Act 2 of
1855, which made him compellable to answer even incriminating questions while keeping
him immune from arrest and prosecution based on such evidence, except for a presumption
for giving false evidence. Section 132 of the Indian Evidence Act, 182 continues to apply to
this case. Section 130 of the same Act protects a suitor from having to produce a document,
although it is unclear if this protection applies to an accused.

In India, the position on documents is similar to that of England's common law. No oath shall
be administered to an accused under Sections 203 and 204 of the Criminal Procedure Code of
1861, and the Magistrate is given authority to interrogate an accused. Section 3 of Act 15 of
1852 was repealed and replaced by Evidence Act No. 1 of 1872. After the prosecution
witnesses had been examined, section 250 of the Criminal Procedure Code of 1872 required a
general questioning of the accused, and section 345 of this code forbade the administration of
oath to a person accused of an offence. These requirements were later included in Section 342
of the Criminal Procedure Code of 1898, and they are still in place today in Section 342 of the
Criminal Procedure Code.

With the introduction of the right against self-incrimination as a constitutional right in 1950,
the rule's horizons have expanded dramatically. To determine the reach of the rule, our courts
have looked to other systems of jurisprudence, particularly precedents from the United
States.336 However, in interpreting and extending the accused's constitutional rights, American
courts have taken a very liberal view of the doctrine of self-incrimination, expanding its scope
to the extent of the wrongdoing it seeks to protect. On the other hand, the Indian interpretation
of such a right has yet to reach those dimensions.

4.3 JUDICIAL APPRECIATION OF THE DOCTRINE

An accused person's presumption of innocence is a question of evidentiary law. The

prosecutor bears the burden of proof, subject to legislative exceptions, to show the prisoner's
guilt beyond all reasonable doubt. It grants an individual accused of a crime the currently
recognised right of benefit of the doubt. The presumption is also linked to false defence, the
accused's failure to explain unfavourable circumstances, testimonial compulsion, coerced
admission, mens rea, circumstantial evidence, and the rigid construction of statutes relating to
crimes, criminals, punishment, process, and the like. As a result, the presumption of
innocence serves as a reminder not to treat some items as proof in the wrong way. 337 In
practise, the assumption necessitates the gathering of further evidence. However, the apex
courts recognised the benefit of the doubt in the absence of independent evidence where the
accused was convicted and sentenced to death on the basis of uncorroborated evidence from

336
R. Berger, Congress the Supreme Court, (1969) at 16, Wright. “The Role of the Supreme Court in a
Democratic Society Judicial Activism or Restraint,” 54 Cornell, L.R. 1 (1968).
337
Wiggmore on Evidence, Vol. IX, 1940, at 407-9
the deceased person's family members when evidence from other independent witnesses could
have been presented.

The prosecution has the burden of proof of guilt as a necessary corollary of the presumption
of innocence. 338 The burden of proof and the onus of proof are two facets of this concept.
Lord Denning prefers to refer to the former as a legal burden339, whilst the latter is referred to
as a provisional or tactical burden. The burden of proof differs from the onus of proof in that
the former is always placed on the individual establishing the facts, whilst the latter shifts.

When an accused person is acquitted in a criminal trial, the presumption of innocence is

increased, which is known as a twofold presumption. In the absence of "extremely serious and
compelling reasons at the stage of an appeal against acquittal340, if any," an appellate court
expresses regrets and inability in interfering with a judgement of acquittal. The burden of
proof raises the issue of "proof beyond a reasonable doubt," which is the result of the
"presumption of innocence." Reasonable doubt is the state of affairs in which the judicial
mind is left in the position of not being able to affirm that they have an abiding conviction to a
moral certainty of the case after comparing and considering all the facts. A reasonable doubt
appears to be one for which a compelling basis may be offered. The Supreme Court has stated
that a suspicion, no matter how serious, cannot substitute for proof, and that in such
circumstances, the accused is entitled to the benefit of the doubt. However, just because one
of the accused has been acquitted on the basis of the benefit of the doubt does not indicate the
other accused has been acquitted in relation to whom the remaining 341 percent of the version
has been proven.

The doctrine of 'assumption of innocence' gives the accused valuable rights, such as not
having to confess guilt or answer any questions, and the ability to keep his mouth shut while
relying on the presumption of innocence.342 He is not required to present any evidence in his
defence. He cannot be forced to testify against himself343 unless he expresses his willingness
to do so in writing 344, and no oath can be given to him. 345 The accused is not liable to any
punishment for refusing to answer questions posed by the court or for giving false answers to
the questions; but, the court may draw any inference it sees fit from his refusal or
responses. 346 The accused cannot be found guilty based on his involuntary confession extorted
from him using third-degree torture, threat of torture, and inducement, among other means.347
All of the aforementioned rights stem from the major doctrine of the accused's "presumption
of innocent," and will be explored and analysed in this chapter at their appropriate locations in
light of Article 20(3) of the Constitution.

The burden of proof of guilt is always on the prosecution, and this weight is known as the
onus which shifts on the accused when specific circumstances need an explanation from the
accused; however, the onus is less rigorous on the accused than it is on the prosecution. The

338
Woodroffe, Evidence Vol-II, 1963,1687; Section 101, Indian Evidence Act, 1872.
339
Denning Lord, Presumptions and Burdens (1945), 61 L.O.R. 379.
340
Ajmer Singh v. State ofPunjab, (1953) SCR 418
341
1953 Cri. L.J. 154 (S.C.); Millder v. Minister ofPensions (1947), 2 All, E.R. 273.
342
Supra n. 34.
343
Supra n. 1.
344
Section 315(1), Cr.P.C., 1973. Section 342-A, Cr.P.C., 1898
345
Section 313(2), Cr.P.C. 1973; Section 342(4), Cr.P.C., 1898.
346
Ibid
347
Section 164 and 281, Cr.P.C. 1973:(Section 164 Cr.P.C. 1898: Section 24, 26 and 27, Indian Evidence Act,
1872.
Hon'ble Supreme Court has stated that it is sufficient if the accused's answer is fairly
plausible, using the Privy Council348 rule. A rigorous interpretation of a criminal statute in
favour of the accused is required.349 When constructing the relevant words, consideration
must be paid to the context in which they were employed.350 In the event that two viable and
reasonable constructions exist, the court must choose the one that exempts the accused from
the penalty. 351

Due to legislative requirements, the great presumption of innocence in strict liability statutes
is declared null and void. Sections 25(2) and 66(2) of the Bombay Prohibition Act, 1947,
section 5(3) of the Prevention of Corruption Act, 1947, and section 106 of the Indian
Evidence Act, 1872 are examples of when the onus is transferred to the accused to the
prejudice of innocent theory. These are only a few examples of how the great presumption of
innocence can be abused, and how it should be used with caution and proper safeguards to
avoid dilution of one of the most valuable rights granted to a person accused of a crime.

It may also be considered that the accused's concept, police interrogation, public
announcement of his arrest and incarceration, and refusal of his enlargement on bail, among
other things, are relevant considerations for the purpose. There are many steps and strokes to
blacken the accused before he is allowed to open his mouth, and this can be checked to a
degree by strict adherence to procedure conferring beneficial rights to an accused under the
law by policing in their enforcement 352 of law and expanding the scope of the right to counsel.
Judicial decisions must also effectively modify the presumption of innocence. It should be
highlighted that the right to remain silent 353 does not imply the freedom to tell lies or to
present a false defence. The Hon'ble Supreme Court made the following observations when
drafting section 114 of the Evidence Act:

The court would be justified in drawing an adverse inference against the accused in a murder
case if the accused used fraudulent devices in multiple key acts that have been thoroughly
established. 354

The limitation on an accused person's privilege not to open his mouth has been further
addressed by the Hon'ble Supreme Court355, when the petitioner was charged with murder and
convicted only on the basis of circumstantial evidence. Various links had been satisfactorily
established, and the circumstances pointed to the accused as the likely assailant with
reasonable certainty and proximity to the deceased in terms of time and situation for which
the accused did not offer an explanation, which, if accepted, though not proven, would
provide a reasonable basis for a conclusion on the entire case consistent with his innocence.
The lack of an explanation or a misleading explanation was viewed as another link in a chain
of events that worked against the accused.

Circumstantial evidence can be used to support a conviction if it is totally inconsistent with

the accused's innocence and only consistent with his guilt. The accused person is entitled to

348
George Gfeller v. The King, AIR 1943 P.C. 221
349
C.L Emden v. State ofU.P., AIR 1960 S.C. 585.
350
Alangir v. State ofBihar, AIR 1959 S.C. 436.
351
Tolaram Relumal v. State ofBombay, AIR 1954 S.C. 496.
352
Pandi, D.C. Limits on Police Coercion in USA and India, Lucknow, 1966
353
Wigmore on Evidence, Vol.IX, 1940, at 4.08j Corwin, The Supreme Court s Construction ofthe
SelfIncrimination Clause” 29 Mich. L.R. 191 (1930-31).
354
Pershadilal v. State ofU.P., AIR 1957 S.C. 211.
355
Deonandan v. State ofBihar, 1955 Cri.L.J. 1647 (S.C.)
the benefit of the doubt if the circumstances prove either innocence or guilt. However, when
applying this principle, a distinction must be made between primary facts that must be
established in the ordinary way and the inference of guilt that must be drawn. As a result, the
doctrine of benefit of doubt can only be applied to the later aspect of the problem, and an
inference of guilt can be drawn only if the proved facts are wholly inconsistent with
innocence and inconsistent only with guilt.

Evidently, circumstantial evidence can be used to support a conviction if it is wholly

inconsistent with innocence and entirely consistent with guilt, and if the established facts are
equally consistent with the accused's guilt and innocence, he is entitled to the benefit of the
doubt. The Supreme Court has gone even farther, stating that a conviction will be justified
even if one or more circumstances in the chain of circumstantial evidence are inconsistent
with guilt, but the overall effect of the facts is conclusive of guilt. Indeed, it must rule out all
possibilities other than the accused's guilt. If the circumstantial evidence allows for two
inferences. The circumstantial evidence, one pointing to the accused's guilt and the other,
equally credible, that the crime was committed by someone else, would not warrant the
accused's356 conviction.

One of the benefits of the presumption of innocence concept is that it aids in the defence of an
individual's dignity, which is important given that the majority of those accused of crimes are
poor and illiterate, and many of them go undefended. This presumption guarantees a fair trial,
which is a valuable right of an accused person in the face of the state's vast power and
resources.

4.3.1 ANALYSIS OFARTICLE 20(3), CONSTITUTION OFINDIA

Article 20(3) states that no individual accused of a crime may be forced to testify against
himself. As a result, Article 20(3) encapsulates the broad principles of English and American
jurisprudence that no one may be compelled to produce testimony that could lead to criminal
prosecution. The core concept of criminal law, and the bedrock of English jurisprudence, is
that an accused person must be presumed innocent unless proven guilty. The prosecution is
responsible for proving the crime. The accused is not obligated to make any admissions or
statements against his will. In Article 20 of the Constitution, the fundamental rule of criminal
law against self-incrimination has been elevated to a constitutional law (3).

i. SCOPE OF ARTICLE 20(3): The theory of self-incrimination statement(s)

prohibition, which is prevalent in the United Kingdom and celebrated in the United
States of America, has never been adopted in India. The highest court in the land has
interpreted Article 20(3) of the Indian Constitution to mean that an accused cannot be
forced to divulge documents that are incriminatory and based on his knowledge.357
Section 91, Cr.P.C. 197356, on the other hand, allows for the production of all records,
even damning ones. If the old Code's section 94 is read to cover an accused individual,
there may be some unfavourable 358 implications. As a result, section 94(1) of the old
Code does not conflict with Article 20(3) of our new Code.

356
K.M- Shilk v. State ofMaharashtra, AIR 1973 SC 2474 at 2479.
357
State ofBombay v. Kathi Kalu Oghad, AIR 1961 S.C. 1808.
358
Section 91(1), Cr.P.C. 1973.
A person who answers questions from the witness box voluntarily waives the privilege
under Article 20(3), which protects him from being forced to be a witness against
himself because he is then a witness against others rather than against himself. 359

'Compulsion' must imply duress in legal terms. Unless the mind has been so
conditioned by some exogenous process that the production of the statement is
involuntary and so extorted, compulsion in this sense is a physical objective act and
not the state of mind of the individual making the statement.360

A general inquiry and investigation of a company's business is not an investigation

that begins with an accusation under Article 20. (3).361 The basic goal of Article 20(3)
is to safeguard an accused person from being forced to testify against himself. Article
20(3) will not apply unless it can be established that a person ordered to be publicly
questioned under section 25-G of the Banking Companies Act, 1949 is an accused
person before or at the time the order is issued.

For the purposes of orders for public examination under section 478 of the Companies
Act or section 45-G 63 of the Banking Companies Act, an application for an action
under section 545 of the Companies Act and section 45-G of the Banking Companies
Act does not constitute "accusation" under Article '20(3).

To claim the benefit of Article 20(3)'s guarantee against testimonial coercion, it must
be proven that the person who made the statement was first "accused of any offence,"
and then that he made the statement under duress. The phrase "accused of any
offence" has been the subject of several Supreme Court decisions, and it is now well
established that only a person against whom a formal accusation relating to the
commission of an offence has been levelled, which in the normal course of events
could result in a prosecution, falls within the scope of Article 20(3).362

A statement given under sections 107 and 108 of the Customs Act, 1962 by a person
who is the subject of an investigation is not the same as a statement made by a person
who has been legally "accused of an offence."363 Section 132 of the Evidence Act
cannot be invoked when an act does not apply to questioning by a custom officer
exercising power under section 171-A of the Sea Customs Act, 1878.364 Confessional
statements recorded by a customs officer under the Customs Act are admissible in
evidence and are not covered by Article 20(3) of the Constitution's section 25 of the
Evidence Act.365 An accused individual cannot be claimed to have been forced to
testify against himself just because he made a statement while in police custody.

The presumption that a search or seizure of an object or a document is to be viewed as

compelled production of the same has no basis in Indian law. A notice to produce, on

359
L. Chorarie v. Slate ofMaharashtra, AIR 1968 SC 938.
360
R.K Dalmiav. Delhi Administration, AIR 1962 SC 1821.
361
Naryanlal v. M.P. Mistry, AIR 1961 SC 29
362
. Veer a Ibrahim v. State ofMaharashtra, AIR 1976 SC 1167
363
Ibid.
364
. H.H. Advani v. State ofMaharashtra, AIR 1971 SC 44
365
Harbans Singh v. State of Maharashtra, AIR 1972 SC 1224; Ramesh Chandra Mehta v. Stale ofWest Bengal,
AIR 1970 SC 940
the other hand, is issued to the party in question, and his production in accordance
with it becomes a testimonial.

The constitutional guarantee provided in Article 20 would not apply if the accused's
premises were searched without the accused being compelled to be a party to the
search.

An order to appear and provide papers issued under section 94(1) of the Code of
Criminal Procedure, 1898, cannot be enforced against an accused. Article 20(3) does
not apply in any way to a situation in which the accused confesses without any form of
coercion, threat, or promise. 366 A retracted confession is of little use as a basis for
conviction, and an accused's confession is not admissible against a co-accused.367
Despite efforts to disguise the genuine nature of an accused's intrinsic character, the
finger impression or handwriting of the accused. Thus, while an accused person's
submission of a finger impression, specimen writing, or autographs may amount to
presenting evidence in a larger sense, it is not included under the statement "to be a
witness." A provision requiring an accused person to make his or her defence does not
imply that the accused is compelled to testify against himself.

Confessions and self-incrimination are targeted by Article 20(3), but other pertinent
facts are unaffected. The accused could not claim the privilege of silence simply
because he believed that answering would incriminate him. It must appear to the court
that the implications of the question in the context in which it is posed make it clear
that a responsive answer or explanation of why it can't be replied could be dangerous
due to the risk of damaging revelation. The fear of being indicted as a result of the
answer sought must be serious and real, as opposed to the risk of remote possibilities
or a fancy flow of inference.368

An individual accused of committing a crime may be subjected to physical or mental

torture. He may be starved or beaten, and he could be forced to confess. He may be
induced to believe that his son is being tortured in an adjoining room by deception,
and he may be forced to make an incriminating statement as a result. However, even if
made without the knowledge of the accused, a tape recording is not covered by Article
20 (3).369

ii. APPLICABILITY OFARTICLE 20(3): Even though prosecution may be pending

against him for some offence in another proceeding 370 or such witness may be an
accomplice in the commission of the offence which is being tried in that proceeding,
Article 20(3) of our Constitution uses the words accused of an offence, it is obvious as
a witness in any legal proceedings371, civil or criminal, even though prosecution may
be pending against him for some offence in another proceeding or such witness may
be an accomplice in the commission of the offence which is being tried in that
proceeding (under section 306 Cr.P.C. 1973).

366
Kalawate v. HP. State, AIR 1953 SC 131.
367
Ibid.
368
Nandini Satpathy v. P.L. Dani, AIR 1978 SC 1025; Hoffman v. United State, (1950)34 US 479.
369
YushufAli v. State ofMaharashtra, AIR 1973 SC 147
370
Phansalkar v. State ofMaharashtra, (1974) Cri.L.J. 995.
371
Laxmipatv. State ofMaharashtra, AIR 1968 SC 931.
Section 132 of the Evidence Act, honourably, provides immunity from prosecution for
incriminating evidence presented as a witness, subject, of course, to S.30(l)(2), when
the accomplice violates the condition of the pardon granted to him. Only a criminal
prosecution involving a criminal offence is contemplated and applied by Article
20(3).372

This clause likewise applies to a corporation. The protection provided by clause 3 of

Article 20(3) of the Constitution extends to all processes that occur after the
Constitution enters into force, even if they occurred before the Constitution and were
only resumed after the Constitution.

Even in a revision before the high court against an interlocutory order, an allegation of
infringement of the provision might be filed. This protection extends to trial by court
materials as well of Article 20(3).373

The presumptive evidence in respect of a married woman's suicide under S.133-A of

the Evidence Act has been drawn in the public interest rather than in the interest of a
specific class of offenders, namely the husband or his relatives, and thus section 113-A
of the Evidence Act does not violate Article 20(3).374

4.3.2 ARTICLE 20(3) OF THE CONSTITUTION AND COMPANIES

When corporate people exercise the privilege to seek protection against incrimination, this
component of the protection draws the Court's attention. When a search order is issued to find
papers in the custody of the companies, this problem frequently arises. Though firms are
exempt from the rule against testimonial compulsion, the doctrine is extended and limited to
companies if the document is likely to strengthen the prosecution case against the company
charged. The rationale for this conclusion is that after reading Article 367 of the Constitution
with section 3(42) of the General Clauses Act, 1987, the word "person" in Article 20(3) would
include and encompass not only natural born persons, but also corporations and
unincorporated organisations. Second, there is no reason why a corporation should be stripped
of its protection when a court issues a summons to an employee of a company under section
94 (now 91) of the Code of Criminal Procedure, 1898, for the production of a company
document.

Incorporated and unincorporated bodies in the United States of America, on the other hand,
are not covered by the constitutional guarantee of the Fifth Amendment's ban against self-
incrimination. 375 The difficulties of enforcing federal and state law against these bodies is the
rationale for their exclusion from this privilege. Second, an individual receives nothing from
the government other than the protection of his life and property, but a corporation is the
state's creative force, with specific privileges and franchises subject to the state's rules. In
Indian law, however, there is no such apprehension.

372
AIR 1953 SC 325; AIR 1954 All 523; AIR 1966 Cal. 411
373
AIR 1982 Delhi 191.
374
(1987) 2 LJ (AP) 11.
375
Hele V. Henkal, 201 U.S. 43; Wilson v. U.S., 221 U.S. 361.
In Raja Narayan Lai Bansi Lai v. Maneek Phiroze Mishtry376, American sources were cited,
and a veiy liberal and expansive interpretation of Article 20(3) was explored, particularly in
Boyd v. US., where Bradley, J., stated:

Any attempt to extort the party's oath or compel the production of his private books and
documents in order to convict him of a crime or forfeit his property is opposed to the ideals of
free government 'and' is repugnant to an American's instincts. It may serve autocratic power's
purposes, but it cannot tolerate the clean environment of political liberty and personal liberty.

In response to the petitioner's vehement argument, it was contended in England that the right
against self-incrimination did not apply to corporate and bankruptcy law. The court of kings
bench in In re Atherton and the court of chancery division in re Page had held that in a
debtor's public examinations, he could be compelled to answer all questions that the court
might put to him or allow to be put, and that the answers could be used against him in
evidence under section 15 of the English Bankruptcy Act, and that the same could be said
under section 270 of the English Companies Act.

Second, our Supreme Court has held in the Maqbool Hussain'j case, Venkatarawan's case 377,
Sharma's case378, and Dana' s case 379 that any clause of Article 20 must be taken as a whole in
order to give effect to any words and expressions employed in that clause.

The Supreme Court held that an investigation by a Central Government-appointed Inspector

under the Indian Companies Act was nothing more than a fact-finding commission, and that
while the Central Government could sanction the initiation of a criminal prosecution based on
the Inspector's report, that could not change the nature of the inspector's investigation.
Furthermore, addressing for the court, Gajendra Gadkar, J. (as he was at the time) stated that
no one had been accused or suspected of committing a crime during the investigation. 380 The
court's decision was based on the comparable clauses of the English Companies Act, as held
by their Lordships of the House of Lords' Judicial Committee.381

It is sufficient to point out that there are no parties before the inspector, that he alone conducts
the inquiry, and that the power to examine on oath is confined to the company's officers,
members, agents, and servants, that the object of examination is merely to recover
information about the company's affairs and that it is in no sense a judicial proceeding for the
purpose of trial of an offence.

Following its judgement in Raja Narayan Lai Bansi Lai, the Supreme Court declared in K.
Joseph v. Narayan382 that the provisions of sector 45-G of the Banking Companies Act, 1949
permitting public examination of specified persons did not violate Article 20 of the
Constitution (3). Though a person subjected to a publicity investigation under that clause may
be forced to testify against himself in some situations, he was not a person charged with a

376
AIR 1961 SC 29.
377
AIR 1954 SC 375.
378
Supra n. 97.
379
AIR 1959 SC 375
380
AIR 1958 SC 538
381
Hearts ofOak Assurance v. Attorney General, (1932) A.C. 392 (H.L.)
382
AIR 1964 SC 1552.
crime. In Popular Bank (in liquidation) v. Madhava Nair, it took the same position. In other
cases, the Andhra Pradesh383 High Court and the Kolkata384 High Court took similar views.

Furthermore, the Punjab High Court ruled that a criminal trial for improper withholding of a
company's property cannot be compared with a request for property return under section 185
(468 of the Act of 1956) of the Companies Act, 1913. A person cannot claim Article 20(3)
protection on the grounds that if the assertions are made in the application under section 185
of the Companies Act, 1913, he is reasonably and likely to be incriminated, and thus his
defence in the criminal case would be gravely harmed. Because a person seeking the
doctrine's protection is not a defendant in a case under section 185 of the Companies Act,
1913, he cannot claim the doctrine's protection.

In the case of R.B. Shah v. D.K. As a result of the investigation conducted by the enforcement
directorate on November 8, 1971 under section 154 of the Criminal Procedure Code relating
to the offence under section 120-B read with section 420 of the Indian Penal Code and section
4(2) read with section 23(1) of the Foreign Exchange Regulation Act, 1947, a first
information report was filed against the petitioner, the general manager of the United
Commercial Bank. In April 1972, he was served with another summons under section 19-F of
the Exchange Act, which he refused to comply with since it violated Article 20. (3). It was
decided that a person who is the subject of an F.I.R. claiming offences including those under
the Foreign Exchange Regulation Act, as "a person accused of an offence," is entitled to
protection under Article 20(3) since no one can be forced to testify against oneself.
He cannot, however, refuse to provide information about circumstances that do not tend to
incriminate him in proceedings brought under that Act. The Supreme Court came to this result
by repeating and upholding its previous judgement.

The Supreme Court stated in Rajya Narayan Lai Bansi Lai v. Maneck Phiroj Mistry that
"Article 20(3).....relates to the commission of a crime which in the normal course may result
in prosecution." Similarly, after analysing a number of authorities in Romesh Chandra Mehta
v. State of West Bengal385, Shah, J. stated:

The corporate bodies, on the whole, try to delay the proceedings by claiming immunity from
self-incrimination. It has been discovered that the requested protection is being utilised as a
ruse to keep the authorities from looking into their personal problems. Invariably, the actions
arise in cases of companies where irregularities, illegalities, malpractices, and fraud are
asserted and can be confirmed by the documents in these bodies' possession. In the initial
instance, these issues are the topic of an investigation rather than a prosecution. As a result,
keeping their actions hidden is neither desirable nor consistent with greater public objectives.
The allegations in this regard have not been validated by the law.

Indeed, the law has provided adequate protection to corporations, in the same way and even
more so than it has to individuals. However, if the proceedings take the form of a criminal
prosecution in which the corporation is named as a defendant, then seeking protection against
self-incrimination is deemed necessary.

4.3.3 POLICE INTERROGATION VIS-A-VIS RIGHT TO SILENCE.

383
Suryanarayana v. Vijay Commercial Bank, AIR 1956 A.P. 756.
384
In re Central Calcutta Bank Ltd., AIR 1957 Cal.520.
385
(1969) 2 SCR 461
The Hon'ble Supreme Court held in Nandini Stapathy v. P.L. Dani that section 161 of the
Cr.P.C., 1973 allows the police to interview the accused during an investigation. Art. 20(3) of
the Constitution's restrictive scope dates back to the stage of police interrogation that does not
begin in court. In terms of police investigations, these rules essentially cover the same
territory. The term "compelled testimony" refers to evidence obtained not only by physical
threats or violence, but also through psychological torture, atmospheric pressure,
environmental correction, exhausting interrogative prolixity, overwhelming and intimidatory
approaches, and other means. As a result, the legal consequences of refusing to answer, or
refusing to answer accurately, cannot be considered compulsion within the sense of Art.20
(3). The threat of prosecution may create legal ambiguity in the exercise of a constitutional
right, but silence is also a deliberate risk. On the other hand, if a police officer uses any sort of
coercion, whether subtle or overt, mental or physical, direct or indirect, but significant, to
obtain information from an accused that is strongly suggestive of guilt, it is considered
compelled testimony, which is a violation of Article 20. (3).

A police officer is unmistakably a figure of authority. Insistence on answering is a type of

pressure, particularly in the atmosphere of a police station, unless specific procedures are
followed to eliminate duress. Threats of prosecution if there is a failure to respond may have
the appearance of undue pressure, in violation of Article 20. (3). The method in which the
legal penalty is mentioned to the interrogation victim may inject an element of tension and a
tone of command that is dangerously close to compulsion.

Self-incrimination, or the proclivity to expose oneself to criminal charges, is less than

relevant' and more confessional. Irrelevance is prohibited, but relevance exists; nonetheless,
when relevant inquiries are loaded with guilty inferences in the event that a response is
provided, a predisposition to incriminate emerges. The accused individual cannot be
compelled to answer questions simply because the responses are not implicative when
evaluated in isolation and limited to that instance. Even if the investigation is not about that,
he has the right to keep his lips shut if the response sought has a realistic chance of exposing
him to guilt in some other accusation, actual or imminent. Fanciful statements, irrational fears,
and hazy possibilities, on the other hand, cannot be utilised as a cover for an accused person.
Where there is no evident tendency to accuse, he is obligated to respond.

The spirit of Article 20(1) is that it is essential to the rule of law that any accused person who
is subjected to near-custodial interrogation have access to the services of a lawyer for
consultation. Furthermore, the right against self-incrimination is maintained by allowing the
accused to consult with any legal practitioner of his choosing. In some instances in our
country, a lawyer's presence is a constitutional demand, and in the context of Article 20(3), it
ensures understanding and observance of the right to silence. Articles 20(3) and 22(l) can be
interpreted in a way that makes it prudent for the police to allow the accused's attorney, if
there is one, to be present during the examination. If an accused person expresses a desire to
have his or her counsel present during his or her interview, this request cannot be denied
without exposing the accused to the serious report that involuntary self-incrimination was
planned in secret and by coercion of the will.

When a woman is escorted into the police station, in violation of section 160 of the code, and
a barrage of questions is thrown at her, some lawful, some not, the region of constitutional
protection against self-incrimination is blared in some ways. When the object of the
prosecution is to compel coerced compliance with section 161, Cr.P.C. abandoning all
contumacy and this is achieved by the undertaking, when the pragmatic issues involved are so
complex that effective barricades against police pressure to secure self-incrimination require
more steps, it must be held that quashing the prosecution services the end.

Section 161 applies to both actual defendants and suspects. In section 161, Cr.P.C., 1973, the
term "any person" refers to people who were accused at the time or thereafter. Any person
who is meant to be familiar with the facts and circumstances of the case, even an accused
person, must be familiar with the facts since the police suspect him of committing the crime.
The supposition may later be proven false, but it does not invalidate the passage, nor does the
marginal remark 'police questioning of witnesses' seal the deal. The ambiguity is clarified by a
marginal comment, although it does not control the meaning. Furthermore, the suppositions
have been charged.

Confessions are replies that would support a conviction on their own, but incriminatory
answers are those that have a strong tendency to point to an accused's guilt. If produced by
pressure from the accused's lips, relevant responses that provide a real and clear link in the
chain of evidence to bind down the accused with the offence become incriminatory and
violate Article 20(3). Only if the offender admits all of the facts that make up the offence in
terms of substance does an answer become confessional. If his statement also includes self-
explanatory material, it is no longer considered a confession. Art.20(3) prohibits admissions
and self-incrimination but leaves other pertinent facts unaffected. Simply put, the accused
could not invoke the right of silence since he believed that by answering, he would
incriminate himself. The implications of the inquiry must appear to the court to make it clear
that a responsive answer or an explanation of why is required. It could be perilous if it can't be
replied because it could lead to harmful revelation. The fear of being indicted as a result of the
answer sought must be serious and actual, as opposed to the risk of faraway possibilities or a
fancy flow of reference. There are two points that should be highlighted. The context and
environment of the individual case, i.e., the totality of circumstances, must influence the
court's viewpoint in determining the incriminatory injury, and where reasonable uncertainty
exists, the benefit must flow in favour of the right to silence under a liberal interpretation of
Article 20. (3).

The High Court of Allahabad held in Tej Banu Singh v. State of U.P.386 that the sole
justification given by the police for requesting custody was that the accused was in need of
the weapon used in the offence. The accused had already stated his position on the firearm in
question. He had already told the Magistrate that he did not wish to point out or identify any
weapon allegedly used in the incident. Clause 3 of Article 20 of the Constitution grants an
accused person the right to remain silent. He cannot be forced to testify against himself as a
witness. Given this legal situation, transferring an accused from judicial custody to police
custody would serve no helpful purpose if he had already said that he would want to keep
silent. In terms of interrogating the accused, this may be done with the approval of the
Magistrate even if the accused was in judicial custody. A statement cannot be obtained under
section 163 of the Criminal Procedure Code by offering or creating enticement, threat, or
promise, as defined in section 24 of the Evidence Act. Given these restrictions, it is clear that
moving the accused from court custody to police custody would serve no helpful purpose
once he had divulged his position on the recovery of the weapon purportedly used in the
conduct of the crime. As a result, it would not be one of those few instances where police
386
1982 Cri.L.J. NOC 43
custody should be favoured over judicial custody. Furthermore, the code's system suggests
that detention in police custody should be permitted only in exceptional circumstances and for
such limited purposes as the circumstances may necessitate. If there is adequate cause, a
remand in police custody is permitted.

The petitioners in Manik Lai Soni v. Union of India" had undoubtedly been served with show
cause notices. why the Customs Act should not be used to bring them to justice. The fact that
the notices were issued while criminal proceedings against the petitioners were pending did
not, in and of itself, amount to testimonial compulsion in violation of Article 20(3) of the
Indian Constitution. The petitioners had not been called to testify in their own defence. There
was no prohibition against taking up and continuing Customs Act procedures while criminal
actions were pending. If the petitioners felt the necessity to enter the witness box in the
proceedings, the question of invoking Art.20(3) did not arise at that time. In order to support
their cases, they would have to use the Customs Act, which would not be considered
testimonial compulsion and so would not be protected under Article 20(3) of the Constitution.
Because of the protection granted by S.132 of the Evidence Act, if the petitioners were
summoned as witnesses in Customs Act proceedings, their remarks would not be used against
them in criminal actions. The protection provided by S.132 of the Evidence Act was broad
enough to cover a situation in which a criminal defendant was a witness in another court and
the testimony he may offer in response could incriminate him. In these circumstances, there
was no justification to stay the procedures under the Customs Act since the petitioner was
facing criminal charges.

It was determined in Narciin Pasi v. State of U.P. 387 that each case must be decided on its own
facts and merits. There is no simple formula for deciding whether there is adequate reason to
keep an accused person in custody for more than 24 hours. If the applicants volunteer to show
the investigating officer incriminating articles or make a statement in the case diary, the
magistrate can take that into account while exercising powers under section 167(2), Cr.P.C.,
1973. Of course, if the magistrate grants the request for remanding the applicants to police
custody, the remand may be subject to certain safeguards. The entries in the case diary may be
relevant material for the magistrate's exercise of power under section 167(1) Cr.P.C., which
requires the investigating officer to forward a copy of the entries in the case diary to the
nearest Judicial Magistrate. The mere fact that the accused chose to take the stand that they do
not wish to point out any incriminating article or are not willing to assist the police in the
recovery of such article after being forwarded to the magistrate under sub-sec. (2) of S.167,
Cr.P.C. does not ipso facto deprive the magistrate of his power to consider the property of
granting remand of the accused to the police custody, because there may be a whole range of
facts existing on the recognise.

In the matter of Nawal Kishore Shukla v. State of UP.388, the current opposing party No. 2
Smt. Madhur Devi Shukla filed a complaint against nine accused persons saying that they had
committed an offence punishable under section 494, I.P.C. It was claimed that the applicant
was the wife of Nawal Kishore Shukla, but that during the applicant's lifetime, he remarried
opposite party No. 6, Smt. Rajender Devi, and that the marriage took place with the
knowledge of the other co-accused parties. The accused parties were summoned by the
learned Magistrate following the investigation under Sections 200 and 202 of the Criminal
Procedure Code. Though the accused persons had denied the marriage between Nawal

387
. 1989 Cri.L.J. 2552 (All).
388
1992 Cri.LJ. 1554 (All).
Kishore Shukla and Smt. Rajendri Devi, the latter was living with Nawal Kishore Shukla and
had also become pregnant, the complainant moved an application before the learned
Magistrate during the hearing of this case before the magistrate. She begged that Smt.
Rajendri Devi be physically evaluated by Rai Bareli's Chief Medical Officer for stating this
fact. Later, she filed an affidavit claiming that Smt. Rajenderi Devi had given birth to a child
in Rai Bareli, where she was abducted by Nawal Kishore Shukla. The learned magistrate
granted the medical examination request and ordered Smt.Rajendri Devi to appear before the
Chief Medical Officer, Rai Barely, for that purpose. Because Smt. Rajender Devi did not
show up for the medical examination, the complaint filed a new application. On that basis, the
learned magistrate ordered Smt.Rajenderi Devi to appear before the Chief Medical Officer on
the 14th of October, 1995. He further stated that if she does not comply, the exemption from
personal presence that she has been granted will be revoked.

4.3.4 BODY EXHIBITION, SPECIMEN WRITINGS, FINGER PRINTS AND

FOOTPRINTS ETC. AND THE ART. 20(3)

Another issue is whether the requirement of providing samples handwriting, finger prints, or
other biometrics for the sake of criminal investigation constitutes coerced testimony. The
accused was ordered by the session judge in Ram Swarup v. State389 to submit his specimen
writing for comparison by an expert under section 73 of the Evidence Act. This order was
challenged on the grounds that ordering the accused to provide his specimen writing
amounted to forcing him to provide evidence against himself, and so violated Article 20(3) of
the Constitution. It was decided that the court's direction under section 73 of the Evidence Act
was not affected by Article 20(3) of the Constitution, and that the accused could not refuse to
give his specimen when the court ordered him to do so. The Court took note of the Rangoon
High Court's observation in Emperror v. Nga Tun Hlaing. 390

He is not required to prove the ridges of his thumb any more than he is required to provide the
features of constancy; all he is required to do is to display these ridges, which are connected
over and an impression is made on a sheet of paper for better scrutiny.

Similarly, it was held in In Re Govinda Reddy391 that even if a sub-inspector of police took
the accused's thumb impression forcibly on a piece of paper during the course of an
investigation, the thumb impression could be compared by a person sufficiently experienced
in the art of photography without holding any degree or diploma and could be admitted in
evidence without being subject to Article 20(3) of the Constitution because it did not amount
to testimonial compulsion. Article 20(3) provides protection not just from compelled
testimonial evidence, but also from compelled production of documents in the accused's
possession.

In Sailendra Nath Sinha v. State392, the Calcutta High Court held that a direction to take a
person accused of an offence's specimen writing amounted to a direction compelling the
accused to give evidence against himself in regard to his right to privacy guaranteed by
Article 20(3), while the Allahabad High Court disagreed393 and stated that:

389
1958 Cri.L.J. 134.
390
AIR 1924 Rang 115.
391
1958 Cri.L.J. 1489.
392
AIR 1955 Cal. 247.
393
Surender Singh v. State, AIR 1955 All. 367.
In every case where the admission of evidence has not been expressly concluded by statute,
no presumption of compulsion can be maintained.
Assuming compulsion in all circumstances when an incriminating piece is recovered during
the course of an investigation would be to ignore very strong circumstantial evidence, which
could not have been the purpose of the constitution's founders when they drafted Article
20(3).394

As a result, the accused's thumb impression, collected by the police for comparison with the
expert's, can be used in court and is not subject to Article 20. (3)

The Madras High Court held in Rajmutakoil v. Perivasmi395 that the Magistrate's direction to
the accused violated Article 20(3) of the constitution, while the same judge who decided
Rajmutukoil Pilli's case dissented in Re Shiekh Muhammad Hussain 396 and said that where
the accused, a postman, was prosecuted under sections 467 and 109 of the Penal Code for
forging the payee's397

The Madhya Pradesh High Court, relying on the M.P. SharmcCj case, found that Article 20(3)
protection extended not only to speech delivered via the lips, but also to evidence delivered
through the production of a document, an item, or any other means. As a result, a Magistrate's
direction under Section 5 of the Madhya Bharat Identification of Prisoners Act, which
empowered a Magistrate to order an accused to give his thumb impression, specimen writing,
and signature for comparison with other documents intended to be used against the accused at
his trial for an offence, was repugnant to the intent of Article 20(3) and was void to that
extent, and the Magistrate's direction was declared illegal. 398

In Balraj Balia v. Ramesh Chandre 399, it was held that thumb-prints of persons 4 undergoing
trials or prisoners on conviction are taken under Sections 5 and 6 of the Identification of
Prisoners Act, 1920, not "to use them in evidence but to have a record of criminals
undergoing trial or who had been convicted of an offence." As a result, it cannot be stated that
the persons involved are being forced to be witnesses against themselves by having their
thumb impressions taken. The Court has also stated that if the accused refuses to produce the
impressions of his thumb and toes in accordance with the Court's order, he cannot be
compelled to do so, and the prosecution's only recourse is to ask the court afterwards to draw
a presumption against him based on the law.

The Court has also stated that if the accused refuses to produce the impressions of his thumb
and toes in accordance with the Court's order, he cannot be compelled to do so, and the
prosecution's only recourse is to ask the court afterwards to draw a presumption against him
based on the law.400

However, the Rajasthan High Court401 has distinguished between collecting a speciman
signature and obtaining a thumb impression, with the former requiring the accused's

394
Ibid.
395
1956 Cri.L.J. 1333.
396
1957 Cri.L.J. 73 (Mad.).
397
Gulam Nabi v. State, 1957 Cri.L.J. 1124 (J&K)
398
Doraswant v. Palaniandi, AIR 1956 Mad 632
399
1960 Cri.L.J. 297 (All.).
400
Ibid; Nazir Singh v. State, AIR 1959 M.P. 411.
401
Badrilalv. State, 1960 Cri.L.J. 1000
cooperation while the latter does not. This distinction does not appear to be of any kind, hence
no distinction can be drawn between the specimen writing collected by the police on their
own and the specimen writing obtained at the command of the Magistrate. The order of the
Magistrate allowing the investigating officer to take specimen writings and signatures of the
accused person was held to be in violation of Article 20(3) of the Constitution because "to be
a witness against himself" is not limited to oral testimony; and the protection extends in and
out of the court402. Obtaining the specimen of handwriting by non-voluntary positive act of
the accused thus falls within the inhibition of Article 20(3) of the Constitution.

Another recent trend has been to uphold the Magistrate's direction regarding the collection of
specimen handwriting, thumb impressions, and other forms of biometric data as
constitutionally valid.403 An order to provide404 finger prints and impressions of an accused's
handwriting.405, too, the taking of foot and palm prints, as well as a hair sample, is not a
compelled act of testimony. Article 20(3) of the Indian Constitution does not apply to a
Magistrate's order for the accused to submit his body to an identifying tesfparade.406

Thus, the permissibility of identification by palm, finger, and footprints, the taking of the
accused's pictures after arrest, blood and urine tests, the use of an emetic stomach pump, or
similar devices to extract valuable articles to wear or tear on particular apparel or exhibit
himself, or to perform physical acts during trial and in the presence of the jury are not affected
by Article 20(3) of the Indian Constitution.

4.4 LIMITATION OF IMMUNITY

An accused cannot ever testify on behalf of the prosecution in India. Even a few years ago, he
couldn't testify in his own defence since section 342(4) of the Criminal Procedure Code said
that no oath should be taken to him, despite the fact that no witness can be interrogated
without an oath or affirmation under section 5 and 6 of the Indian Oaths Act. Since the
enactment of section 342-A of the Code of Criminal Procedure by the criminal law
(Amendment) Act, 1955, the position has changed. Section 342-A407 allows an accused
person to be a competent witness on his own behalf if he makes a written request after the
charge has been framed against him. Section 342(2)421 enabled a person to testify as a
witness in procedures under section 107, chapter X, XI, XII, XXXVI, or section 552 of the
Code of Criminal Procedure, although none of these sections connected to a criminal trial
because the person involved in the case was not charged with any crime. Some pre-
constitutional decisions allowed a magistrate to question an accused in an investigation under
section 202 of the Code, but those decisions had to be reversed after the constitution was
enacted.

The idea of self-incrimination is based on the presumption of innocence, which distinguishes

the English criminal justice system from the inquisitorial system that existed in ancient law
and is still in use in France and other continental countries. Now it is up to the prosecution to
prove the accused's guilt beyond a reasonable doubt, and the latter does not have to make any
statements if he does not want to. Mayne made the following observation in his criminal law:

402
Supra n. 332.
403
Inre Shekh Mahommad, AIR 1957 Mad. 47..
404
Badrilal v. State, AIR 1960 Raj. 184; State v. Abu Ismail, 1959 Cri.L.J. 1057 (Bom.)
405
Mahal Chand v. State, 1961 Cri.L.J. 249 (Cal.); Bhupendra Nath v. Union ofIndia, 1959 Cri.L.J. 1165 (H.P.)
406
Peare Lai v. State, AIR 1961 Cal. 531 \Asharfi v. State, 1971 AIR 1961 All. 153.
407
The provision has been reproduced in section 315(1) Cr.P.C. 1973.
The Crown's job is to prove him guilty, and all he has to do now is sit back and wait to see
what evidence has been built against him... He has the right to depend on the defence that the
evidence is inconclusive as it is and that the crown is obligated to make it conclusive without
his assistance.

The English Criminal Evidence Act of 1898 stipulates that, while an accused is competent to
testify in his own defence, he cannot be compelled to testify against himself, and that if he
does testify in his own defence, the prosecution may remark on that evidence but not on his
failure to do so. In England, witness protection is also available. No person shall be compelled
to be a witness against oneself in any criminal case, according to the 5th amendment of the
United States Constitution.408

The question is whether section 342425 of the Criminal Procedure Code is in accordance with
the constitutional guarantee of Article 20(3). The trying court is required to ask questions on
the basis of circumstances appearing against him in the evidence under section 342 (now
section 313) of the Code, but the accused is not liable for punishment for his false answer or
refusal to answer, though the court is free to draw an inference from his refusal.

In re B.N. Ramkrishan409, the Madras High Court concluded that the accused's responses
under section 342(2) of the Code would not violate Article 20(3) for two reasons: I When an
accused is questioned, he has the option of answering or not answering, and no oath is
administered to him as a witness, and his testimony cannot be used in evidence in the trial or
inquiry, so section 242 is not in conflict with clause. (3) of Article 20. (ii) The judge or jury
has the power to draw inferences from refusal, but this does not mean compelling an accused
to be a witness against himself. The purpose of section 342 is not to construct a prosecution
version, and there can be no conviction if the accused's responses provide a satisfactory
explanation for the prosecution version. However, convictions may result if the accused's
justifications do not refute the prosecution's proof.

Though the accused is not a witness, his testimony may be considered in determining the
accused's innocence or guilt, and such statements do not violate the accused's rights under
Article 20(3) of the Constitution. The replies submitted by an accused under section 342(2)
are not on oath and are optional, according to a full bench of the Allahabad High Court in
Roshan Lai v. State410. The accused has the right to refuse to answer the questions posed to
him. He has the freedom to make a remark in his own favour, thus he cannot be said to be
coerced to make a statement against himself.

The accused's statement cannot be called a "compelled statement." The form of compulsion
prohibited by constitutional requirements is not the type of compulsion deriving from the
possibility that his failure to answer will be used against him as a circumstance. Despite the
fact that the Supreme Court411 has acknowledged the principle established by the Allahabad
High Court in the Banwari Lai case, it is argued that the court's drawing of unfavourable
inferences from the statement has the impact of corroding the right of silence to a significant
amount. Gulzar Bi v. State412 seemed to have recognised this.

408
U.S. v. Rosewong, 1977-52 L, Ed. 231.
409
1955 Cri.LJ. 452 (Mad.).
410
. 1975 Cri.L.J. 1877.
411
Supra n. 55
412
1977 Cri.L.J. (NOC) 214.
A lawyer cannot speak on the accused's failure to testify as a violation of the federal
constitution, according to American jurisprudence Furthermore, the accused is entitled
because he did not take the witness stand and testify in his own defence. Since the Code of
Criminal Procedure (Amendment) Act of 1955, which included section 342-A, this principle
has gained acceptance. 43 It is argued that the tribunal's option to draw an adverse inference
under section 342(2) (now section 313) of the Code violates Article 20(3), and that the
answers given by the accused, while appearing to be voluntary, should be made inadmissible
under Article 20(3) if they are adversely suggestive of an accused on the direct or indirect
suggestion of the court or the prosecutor (3).

Since 1955, when section 342-A (now 315) was added to the Code of Criminal Procedure, an
accused has been considered a competent witness. A witness may be compelled to give
testimony that may incriminate him under section 132 of the Evidence Act, but the coerced
answers cannot be used against him in any civil or criminal case. As a result, section 313(3) of
the new law provides total protection to the accused if he refuses to testify, as an unfavourable
inference cannot be formed from his unwillingness to testify. It is up to him to waive this
prerogative, as stated in Article 20(3) of the Constitution.

It does not, however, permit the court to conduct a thorough cross-examination in the form of
stiff questions in order to elicit incriminating replies from the accused, as this would be a
violation of Article 20(3). 435 When an accused willingly takes the witness stand in court and
prefers to offer evidence in his defence, Article 20(3) does not protect him. 413

It is argued that if an accused chooses to testify, he has no right to object to a cross-

examination question that might incriminate him. Thus, the accused's decision to give
evidence constitutes a concession of his privilege under Article 20(3), and unless he waives
this right, the entire purpose of his walking to the witnesses box to show his innocence would
be undermined.

When an accused chooses to testify, he is not exempt from being cross-examined by the
prosecution and, if necessary, being asked incriminating questions. As a result, claiming
Article 20 protection after incriminating himself in cross-examination would be ludicrous (3).
However, if he is asked incriminating questions not about the matters for which he is being
tried or could be charged at the trial, but about other matters for which he is not charged and
cannot be charged on the basis of the evidence presented to the court at his trial, he is entitled
to claim witness protection under section 132 of the Evidence Act. The Evidence Act's
Section 132 does not apply.

413
T.V Gaonkar v. R.N. Shukla, 1968 Cri.L.J. 1234 (SC); Jagdish Chandra v. C.B.l., New Delhi, 1979 Cri. 1474
(Delhi)
CHAPTER V
CONCLUSION AND SUGGESTIONS

5.1 CONCLUSION

The basic canon of criminal justice is that no one should be sentenced without first being
heard; and hearings can only be effective if an individual accused of a crime has been given
an opportunity and is adequately educated about the circumstances surrounding his
responsibility. The employment of criminal procedure against an accused individual is
fundamentally a coercive authority of the state that begins with an accusation, arrest, custody,
and his appearance before a Magistrate for judicial judgement of the causes. While granting
the State this power, a democratic legal order also limits the State's power so that the dignity
of the individual and his fundamental liberties are not excessively infringed by the State
machinery's zealous authorities.

Ministerial inquiries are performed during the pre-trial and trial stages of a criminal
prosecution to gather relevant evidence in order to gain a conviction. The constitutional
protection extends to pre-trial and trial investigations and stipulates that all evidence should
be provided voluntarily by an individual accused of a crime and that no piece of evidence
incriminating the accused should be extorted from him, as well as granting immunity from
self-incrimination. The idea of presumption of innocence of the accused, which resulted from
the court of Star Chamber's approved extraordinary method and its cruel penalty awarded to
the individual regardless of his guilt or innocence, has given rise to the principle of immunity
from self-incrimination. Although this principle was not recognised in its current form in
India until the Indian Evidence Act of 1872 and the Code of Criminal Procedure of 1898 were
enacted and enforced, it received statutory sanction to some extent only when the Indian
Evidence Act of 1872 and the Code of Criminal Procedure of 1898 were enacted and
enforced. It is not an exaggeration to say that the origin of the principle is the origin of
civilisation, which also traces the birth of the legal system in this subcontinent.

The importance of the right to quiet was recognised by the Constitution's framers, and it was
so enshrined in the Chapter of Fundamental Rights. Though the principle is founded on the
Fifth Amendment to the United States Constitution, its application in India, even after it has
been fully implemented and within its limited scope, is narrower than in the United States.
Though Indian courts have showed respect for American courts and their rulings in the post-
Constitution era, the doctrine's reach has been developed by Indian courts solely to the extent
that they believe it should work in this legal system. Possibilities for the doctrine's continued
growth.

The doctrine's application was confined to verbally compelled testimony presented in court at
the time of the Constitution's inception. But, for the first time, the Supreme Court of India
recognised the need to broaden its scope in M.P. Sharma v. Satish Chandra 414, where the court
extended its application to testimonial compulsion obtained not only in court, but also outside
of court, and it was expanded to include documentary evidence. The judgement in Sharma's
case caused some uncertainty since it made too many broad and general observations,
resulting in a lack of consistency in the approach used by the various High Courts. The
Allahabad v High Court found that a Magistrate's order to the accused could not be construed
414
A.I.R. 1954 S.C. 300.
as compelled testimony in the absence of express or implied compulsion. 415 The Calcutta
High Court, on the other hand, concluded that the Magistrate's order for the accused's samples
writings, thumb impressions, and other evidence amounted to compelled testimony.416
Similarly, the Madras High Court ruled that the Magistrate's order for the accused's thumb
impression was in violation of Article 20(3)417 but, the same judge later reversed himself in a
different instance.418 The Magistrate's order to the accused was also found to be illegal by the
Madhya Pradesh High Court.419 Similarly, the High Courts of Madras, Kerala, and Orissa420
had found that the Magistrate's directive constituted a violation of Article 20(3) of the
Constitution's constitutional privilege.

The Supreme Court reconciled the various approaches to the doctrine in State of Bombay v.
Kathi Kalu Oghad421. In this case, the Supreme Court held that a direction given to the
accused under section 73 of the Evidence Act, 1872, to give his specimen-writings, thumb-
impressions, etc., for the purpose of comparison by the court did not violate the accused's
right protected by Article 20(3) of the Constitution. The Supreme Court also resolved the
issue of the admission of facts uncovered as a result of the accused's information to the police,
ruling that section 27 of the Evidence Act did not violate Article 20(3) of the Indian
Constitution. The court went on to say that if the information that led to the discovery of facts
was collected under duress and using a third-degree method against the accused, the
admissibility of such facts against the accused would be contaminated and they would be
eliminated. However, if the information leading to the discovery of facts was freely given, its
admissibility would not be tainted, and it might be securely accepted in evidence. Similarly, if
otherwise authorised, an identification parade, medical examination, or search and seizure
would not violate the accused's right under Article 20(3) of the Constitution.

The Gujarat422 and Punjab423 High Courts erroneously decided that a medical examination
against an accused person's will constituted to an invasion of his personal liberty, and that as a
result, any organ of the body's exposure becomes testimonial compulsion. This approach
appears to be in conflict with Oghad's ruling, which was established by the Supreme Court in
1961. Similarly, the view of Sinha, J., of the Calcutta High Court that a proceeding under
section 171-A of the Sea Customs Act, 1878, is preliminary to a criminal prosecution and that
any statement obtained under such proceedings is inadmissible in evidence, does not appear to
be in accordance with the previous trend of judicial approach or with the literal construction
of the language expressed in Article 20. (3). Similarly, Chakravarti, CJ., of the same court
voiced his position in the same case on appeal, stating that Article 20(3) protection was
accessible even if a person was not formally indicted or charged.424 There is no accuser and
no accused in the absence of a formal accusation - a First Information Report with the police
or a private complaint with the Magistrate - and the constitutional constraint established in
Article 20(3) of the Constitution is not attached.425 However, the Rajasthan High Court
misapplied Mohammed Dastagir's rule, holding that the protection of testimonial compulsion

415
Ram Swarup v. State, A.I.R. 1958 All. 119; Sunder Singh v. State, AIR 1955 All. 367.
416
Sailendra Nath Sinha v. State, A.I.R. 1955 Cal. 247.
417
R. Pillai v. Periyasami, A.I.R. 1956 Mad. 632.
418
In re Sheikh MuhammadHussain, A.I.R. 1957 Mad. 47.
419
Brij Bhushan v. State, A.I.R. 1957 M.B. 106; M. Hussain v. P.F. Inspector, A.I.R. 1957, M.B. 68.
420
Bhaluka Behera v. State, A.I.R. 1957 Cut. 200.
421
A.I.R. 1961 S.C. 1808.
422
Naja Bhai v. State, 1972 Cri. L.J. 1605 (Guj.).
423
Subedar v. Jagannath, 1972 Cri' L.J. 1392 (Punj.).
424
Collector ofCustoms v. Calcutta Motor & Cycle Co., AIR 1958 Cal. 682.
425
Mohammed Dastagir v. State ofMadras, A.I.R. 1960 S.C. 756.
began only when the charge sheet or framing of the charge16 was filed, not when the First
Information Report was filed with the police or when the private complaint was filed in court.

The constitutional right under Article 20(3), which begins with the filing of the accusation and
extends to all pre-trial and trial ministerial and judicial inquiries into the accused, is supported
by the Supreme Court's landmark decision in Nandini Satpathy v. P.L. Dam, in which Mr.
Justice V.R. Krishna Iyer very aptly stated:

The prohibition of Art. 20(3) extends back to the stage of police interrogation. The prohibition
on self-accusation and the right to silence, while one investigation or trial is ongoing, extends
beyond that case and protects the accused in regard to other pending or imminent offences,
which may deter him from voluntary disclosure of criminatory information.

A tape recorded conversation that was made without the person's knowledge is not considered
forced evidence.

Testimonial compulsions are not considered to be tape recorded statements gained by fraud
and without the knowledge of the accused. In Usufali v. State of MaharashtraTM, the police
set up a trap by placing a tape recorder in the inner room and a microphone in the outer room
where the appellant and Seikh conversed. BachaWat J, speaking for the court, held that the
appellant was not entitled to the protection of Article 20(3) despite the fact that the tape
recording was made without the appellant's knowledge and in a deceptive manner. Because
the testimony was not forced, Article 20(3) did not apply. 426 R.M. Malkhani v. State of
MaharashtraTM reaffirmed this viewpoint. In this case, the appellant's phone conversation
with Dr. Motwani and the negotiation between the appellant and Dr.Adatia were tape
recorded by police officers at Dr. Motwani's home. For the sole fact that the accused was not
compelled to provide a statement, the tape recorded conversation was found acceptable and
did not violate Article 20(3) of the constitution.

In a presidential election lawsuit, witness Jagat Narain was asked 427 questions on how he tried
to persuade the petitioner not to file an election petition. Those allegations were refuted by the
witness. The interaction between the witness and the election petitioner had been taped by the
election petitioner. The witness' denial was questioned, probed, and compared to his previous
assertions. If (1) the conversation is relevant to the issue, (2) the voice is clearly identified,
and (3) the accuracy of the tape recorded conversation is proven by removing the possibility
of deleting the tape record, the tape-recorded statements become admissible. A
contemporaneous tape record of a pertinent conversation is admissible under section 8 of the
Evidence Act as relevant fact. It is res gastae, just as a photograph shot without the consent of
the person photographed can become relevant and admissible, so can a tape record of a
discussion made without the participants' knowledge. In R. v. Maquesad Ali428, two murder
suspects walked voluntarily with a police officer to a room where, unbeknownst to them, a
microphone was attached to a tape recorder in another room. They were left in the room
alone. They then proceeded to conduct a conversation in which they made incriminating
remarks. The taped exchange was found to be acceptable in court.

426
Ibid at 150
427
Ibid.
428
(1965) 2 All E.R. 464.
It is required that the person charged have acted in the capacity of an accused at the time of
making the statement. It is insufficient that he becomes an accused at any point after the
statement is made.

Is the statement made in front of the police incriminating the accused voluntary or
involuntary? What are the conditions? This self-incriminating remark should have bee
recorded in front of a judicial magistrate under section 164 Cr.P.C., 1973. Who will verify the
statement's voluntariness? The standards for determining when it is a violation of the right
against self-incrimination are not set in stone.

The Fifth Amendment's extent was not significantly tested until the Supreme Court liberally
interpreted it in 1886.429 This broad view was extended to all criminal cases six years later.430
By 1936, the Supreme Court had incorporated the common law exclusion of involuntary
confessions based on their inherent unreliability into the due process clauses of the Fifth and
Fourteenth Amendments. Thus began the era of fact-based voluntariness evaluations based on
the totality of the facts.

Many variables were examined by the American Supreme Court for determining the
voluntariness of incriminating admissions or confessions, including age and education431,
deprivation of food and sleep432, and psychological coercion.433 The American Supreme Court
developed "an complex, nuanced, and sensitive approach to admissibility" over the course of
more than twenty-five years, recognising "society's interest in respect of questioning as a law
enforcement instrument" through a series of cases.434

The Supreme Court took a huge step forward in overhauling the procedural structure for
police interrogations in Miranda, giving the right to silence a whole new meaning. The
Miranda decision established a system that had four main elements: Miranda warnings, a right
to counsel, a right to have a defendant's pre-trial silence hidden from the trier of fact, and a
right to stop questioning at any time. Each of these requirements was at odds with the
common law's position and case law prior to Miranda.

There was no obligation under common law that a suspect be informed that he might remain
silent or that his statements could be used against him during pre-trial interrogation. The use
of such warnings did, however, come into play in relation to the cessation of judicial
interrogation. By the mid-nineteenth century, most jurisdictions had abolished magistrates'
preliminary examinations of suspects, and the others followed suit in the following decades.
The only remaining vestige of the once-central institution of pre-trial questioning by a
magistrate was a general practise of advising a suspect that he could make a statement on his
own behalf at preliminary hearing, but that he was not required to say anything and that
anything he did say could be used against him. The purpose of the cautions in this case was
not to inform a suspect of his rights before to interrogation, but to make effective a decision
that suspects should not be interviewed by court authorities at all during preliminary hearings.

429
Boyd v. United States, 116 U.S. 616 (1886)
430
. (1965) 2 All E.R. 464.
431
Payne v. Arkansas, 356 U.S. 560 (1958
432
Ibid.
433
Watts v. Indiana, 338 U.S. 49 (1949).
434
Miranda v. Arizona, 384 U.S. 436 (1966).
Prior to the 1960s, however, the Court regularly rejected a right to counsel in pre-trial
interrogation. In Wilson v. United States, a claimed right to counsel was first denied at a
preliminary examination by a court officer? In the late 1950s, a number of decisions
evaluating state cases found that there was no right to counsel in relation to pre-trial
interrogation by law enforcement personnel. 435

The right not to be interrogated because of the risk of self-incrimination. Suspects had no
right to terminate interrogation in custody at the inception of the Constitution, and no such
right was recognised in Supreme Court judgments previous to Miranda.

After an early appellate judgement upholding the statute, the Department of Justice
endeavoured to demonstrate the statute's legitimacy in litigation for several years with
inconclusive results, but ultimately snatched defeat from the jaws of victory by ending these
litigative efforts.436

The Supreme Court overturned Miranda in Michigan v. Tucker, holding that obtaining
statements from a suspect without following Miranda's guidelines or any other precautions is
not a violation of the Fifth Amendment as long as actual coercion is avoided. This position,
which has been reinforced and relied on in subsequent judgments, eliminated any doctrinal
foundation for applying Miranda's standards to states or declining to grant effect in federal
proceedings. Despite this, the Supreme Court continues to use Miranda's standards in its
rulings, perhaps because no case has yet obliged the Court to grapple with the full
consequences of rejecting Miranda's central premise.

The Miranda majority judgement, in its most basic form, created a per se exclusionary rule for
all statements made by a suspect during a custodial interrogation in the absence of a knowing
and intellectual renunciation of his Fifth and Sixth Amendment rights. Miranda appeared to
set clear borders between the police and the defendant in custody at first glance, but a closer
examination found numerous serious flaws and contradictions with this method. According to
the Miranda dissent, the majority's strong exclusionary rule was both inadequate and over
inclusive. If the majority's purpose was to eliminate the inherent coercion of detention
interrogation, Justice White pointed out that the exclusionary rule should apply to any
statements made by the accused while in custody, regardless of knowing waiver.437 In a
dissenting opinion, Justice Harlan argued that the majority's approach is too narrow: the new
per se rule does not prevent coercion or even brutality because unscrupulous police officers
will simply lie about knowing waiver, just as they would have previously about the
circumstances of voluntariness.

The majority's rule also causes at least three more issues. First, while the majority expressed a
strong wish to abolish "police manual" interrogation tactics, the per se exclusionary rule was
not "sensibly crafted" to achieve this goal. What has arisen is a situation in which asserting
one's rights results in the abrupt cessation of any questioning, even if it is brief or reasonable.
Custodial statements, on the other hand, are inherently coercive; an accompanying warning
will not add to the compulsion. Finally, the assumption that custody is synonymous with
compulsion may not be universally true.

435
Crooker v. California, 357 U.S. 433 (1958); Cicenia v. Lagacy, 357 U.S. 504 (1958).
436
UnitedStates v. Crocker, 510 F. 2d 1129 (10th Cir, 1975).
437
Supra n. 30
The privilege evolved out of a desire to protect human liberty and prevent an innocent person
from being imprisoned. The goal of the privilege is for every innocent citizen to feel safe in
their daily lives, free from arbitrary arrest or detention, false accusations, and unfair trials.
Because the American Constitution recognises the ability to waive fundamental rights, it is
also legal for an accused to waive this privilege. Accused in India can likewise forgo this
right.

In both the United States and England, not only the accused but also any witness to a hearing
is protected from responding incriminating questions; but, under our Constitution's Art.20(3),
a mere witness has no such protection.

This right is likewise available to incorporated corporations in India 438 and England439.
Corporate houses in the United States of America, however, do not have this immunity.

Instead of extortion of confessions based on unsubstantiated suspicion, this privilege

encourages active research from outside sources to discover the truth and proof of an alleged
or suspected wrongdoing. It safeguards the defenceless. For example, a man may have killed
another without intent or blame in self-defense or by accident. He hasn't done anything
wrong, yet his response could lead to his indictment.

Because of his fear and nervousness, as well as the unusual environment of the courts, the
right to self-incrimination protects an innocent person from jeopardising himself. When
applied to witnesses, this right persuades them to come forward and assist the courts in
determining the truth. The privilege preserves an individual's privacy by sheltering him from
judicial interrogation.

Some critics believe that this privilege has turned into a haven for crooks. In today's world,
the government faces enormous challenges in detecting and prosecuting criminals. Without
the testimony of the individual who committed the crime, proof of a significant number of
offences is impossible to come by. Only the guilty can claim the privilege or benefit from it.

This is a luxury that no innocent person requires. It should be noted that the foregoing benefits
relate to the trial stage rather than the inquiry stage. As a result, these are only grounds for
removing the privilege during the trial440, not during the inquiry.

In response to the claim that the privilege protects an individual's privacy, it should be noted
that the privilege's privacy protection is restricted.

5.2 SUGGESTIONS

It will be obvious from the discussion that the majority of modern ways of gathering physical
and medical evidence from an accused individual do not require his testimony, and thus do
not violate the privilege against self-incrimination. In terms of criminal investigations and
evidence, India's current legal framework lags behind modern scientific advances in crime
detection. To fully benefit from such advancements, new statutory measures would need to be
enacted. The creation of well-equipped forensic laboratories, independent of the police and

438
State ofMaharashtra vs. Nagpur Light & Power Company, 63 Bom. L.R. 559.
439
Triplex Glass Co. v. Lancegaya & Glass Ltd., 1939 (2) All. E.R. 613.
440
Meltzer, Required Records, The McCarran Act, and the Privilege Against SelfIncrimination.
manned by qualified individuals, should accompany the passage of such measures. If statutes
authorising examinations and the extraction of physical and medical evidence were passed
without these safeguards, there would be a risk of false convictions due to incompetent data
collection and interpretation.

It is difficult to enumerate in legislation the procedures that should be prohibited due to the
variety and changing nature of the tactics involved. Future scientific or other advances may
change or remove current situations in connection to the methodologies. Scientific
advancements may also provide new methods of identifying crimes, which, for the reasons
stated, should be avoided. As a result, the government should be given the authority
mentioned. Rules enacted under this section must be based on the advice and consultation of
medical professionals, lawyers, and other individuals, as well as formal hearings.

It is recommended that police authorities be enumerated precisely to avoid any potential

misuse.

Despite legal judgements and constitutionally mandated provisions, it is clear that. People's
well-earned freedom is being violated by both magistrates and police personnel. It is
reprehensible that they are disregarding the Constitution's most sacred clauses. There are two
sides to the issue. On the one hand, we condemn the procedures and practises developed by
the police and executive that would aid in the establishment of a police state; on the other
hand, society must be protected, which can only be done by punishing offenders according to
the law. This will not be possible unless people accused of crimes can be compelled to
provide pertinent information and answers to queries posed to them. Immunity from
answering inquiries and providing information beyond a certain point would make the country
safe for lawless groups. What is required is the development of a reasonable compromise and
the adjustment of two opposing interests. It is also desired that executive branch officers do
not willfully violate sacrosanct clauses, and that they are held accountable if they do.

Each of these arguments is well-founded. The interests of the innocent individual and the
interests of society in uncovering crime and bringing offenders to justice must be reconciled.
A broad reading of the privilege, encompassing all evidence gathered from the accused,
would be an unfair concession to the criminal, while a restrictive view would almost certainly
impinge on essential human rights. Of course, any mandatory gathering of evidence will be
difficult for a person, but no inconvenience can be alleged to encroach on the privilege. It
would have been impossible to detect crime if this were the case. "Courts should unite to keep
the privilege tightly within the limitations prescribed by historic truth, cool logic, and solid
policy," according to Wigmore.441 The findings of this study are said to support Wigmore's
viewpoints.

Because the investigating police officer has a predisposition to involve an accused in a

criminal charge, the police should be made more attentive to the accused's human rights.

A discussion that was taped without the person's knowledge is not considered forced
evidence. However, whether or not the accused was subjected to coercion prior to tape
recording the evidence depends on the circumstances. The right to privacy may be infringed if
a tape recording of a discussion is made without the consent of the proper authorities.

441
Wigmore, Evidence, 319.
Despite the fact that the person being prosecuted is not an accused and the proceeding is not a
prosecution, the foundation is laid in the departmental inquiries and proceedings, and as a
result, some modification of the rule is required in the interest of justice in cases other than
excise and customs, because these are offences affecting national revenue and the economy,
and the rule must be applied with all its rigours. However, if both departmental and criminal
processes are initiated at the same time, the departmental proceeding must be stayed to
preclude the possibility of extorting incriminating responses in the departmental proceedings
in order to utilise them against the accused in the criminal prosecution.

Examining an accused person under section 342 of the former Code of Criminal Procedure,
now section 313 of the current Code, about the provision that the Court may draw an
inference of guilt from the accused's statement, appears to be unfortunate and in conflict with
Article 20 of the Constitution (3). Even though his statement cannot be used alone to support
a conviction, it aids the prosecution in the process of incrimination, which is not without
dispute in the administration of criminal justice. So long as the idea of the presumption of
innocence survives as a canon of criminal jurisprudence, a judicial or statutory amendment of
this rule is required to dispel this doubt in the interest of justice. It's simple because once the
accused chooses to testify in his own defence, he can't refuse to answer incriminating
questions posed to him during cross-examination. As a result, having been exposed to a
criminal conduct or guilt, one cannot claim the privilege of protection by claiming that the
incriminating part of his comments be removed, because he is protected against self-
incrimination under Article 20(3) of the Indian Constitution.

There is no presumption of compulsion in the absence of any fact to that effect established by
a person accused of a crime or an offence; in this context, it is argued that if the circumstances
of the case on their own are suggestive of compulsion, the courts should not hesitate to draw
the inference of compulsion in light of widespread illiteracy and poverty, and a large number
of cases go undefended by legal counsel. It is also proposed that the doctrine of self-
incrimination be expanded so that it is available to a witness in a court or judicial tribunal in
the same way that it is in the Anglo-American legal systems.

If necessary, a more liberal and expansive application of the principle may serve the spirit of
the constitutionally enshrined doctrine, which is designed to include all ministerial
investigations throughout the pre-trial stage of criminal prosecution.

To avoid the inference of guilt, the accused in India should be allowed to testify. He should be
cross-examined if he decides to reveal anything under oath. Police interrogation in custody
should be abolished since its success is mostly predicated on the use of force or the fear of
force. It cannot be reconciled with the rest of our system, which assumes a public and
impartial trial, because it is a private ministerial process. As a remedy for police authority
abuse, some form of judicial interrogation should be developed. The accused should be taken
before a judicial magistrate as soon as possible following his arrest, with no prior
interrogation allowed. The accused should be informed of his rights by the Magistrate, and a
form of interrogation should be employed before the court.

Witnesses are also granted immunity in the United States of America and the United
Kingdom. Witnesses in India, on the other hand, are not protected in this way. Police brutality
is becoming more common by the day. It is high time that this immunity be extended to
witnesses as well.
This right is also available to incorporated companies in India. The country is moving toward
economic liberalisation, and we're allowing global corporations to set up shop on our turf. The
corporate houses in the United States do not have this immunity, which is ironic. It is a point
of contention because, despite the fact that it was directly involved in the case, the Supreme
Court has the opportunity to rule on it. Satish Chandra vs. M.P. Sharma. 442

Modern scientific advances in the identification of crimes have raised the question of whether
forcing an accused individual to submit to tests and physical and medical examinations is a
violation of the privilege. Regardless of whether or not there is a particular constitutional
provision in this regard, there must be statutory provisions that allow the police or the court to
compel an examination of the accused. In India, there are few statutory rules relating to the
accused's physical and medical examination, and there is no complete statute that covers the
wide range of examinations made available by modern scientific advances. The different
statutory provisions requiring the accused to undergo a physical and medical examination are
generally applicable.

The individual right against self-incrimination must be balanced against the right of society to
be safeguarded by the state.

442
1954 SCR 1087.
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