Page 1219 ‘Superintendent acts as an administrative authority to maintain discipline and inflicts summary punishment for breach of discipline and proceedings before him are not judicial in nature. Levy of penalty for default in payment of sales-tax is not ‘prosecution’ so as to bar a subsequent prosecution ina criminal court for the offence.®® For breach of permit rules under the Influx from Pakistan Control Act, punishment through a court, and his removal from India through a direction of the Government of India do not constitute ‘double jeopardy’, as the latter does not involve second prosecution 6° Confiscation of goods under the Sea Customs Act does not bar a prosecution of the person concemed for a criminal offence, for the customs authorities not being judicial authorities, action taken by them (confiscation of gold) was neither prosecution nor punishment before a court or a judicial tribunal for purposes of Art 20(2)61 In Thomas Dana v. State of Punjab,®2 the facts were as follows: D, the appellant, sought to take out some foreign exchange from India which was confiscated by the customs authorities after following due procedure under the Sea Customs Act. Later he was prosecuted before a criminal court under the provisions of the Foreign Exchange Regulation Act and the Sea Customs Act and he was duly convicted for the offence. The High Court dismissed his appeal. He then filed a writ petition in the Supreme Court against his conviction on the ground that Art, 20(2) barred his prosecution. The Supreme Court dismissed the petition. In imposing confiscation and penalty under the Sea Customs Act and FERA, the concerned authority acts judicially but it is not a court. The proceedings before the officer do not amount to "prosecution" within the meaning of Art. 20(2). Therefore, the later prosecution before a criminal court would not be hit by Art. 20(2). Itis thus established that action taken by a quasi-judicial body does not bar a later prosecution before a ‘court. Thus, immunity against a second prosecution has become confined to a situation when the first proceeding has been before a court of law. The same will be the position when after ‘prosecution and Punishment’ for an offence, further action is taken by a quasi-judicial body.®? This excludes the vast system Of inguiries and punishments by a number of quasi-judicial bodies which operate at present in the country. This is because the word ‘prosecution’ in Art. 20(2) has been interpreted restrictively. The scope of Art. 20(2) has thus been very much narrowed down by judicial interpretation.®5 Article 20(2) is limited to indictment before a criminal court. Therefore, Art. 20(2) does not bar proceedings before a civil court for disobedience of an injunction along with criminal proceedings, as the former are not in the nature of criminal proceedings.®° C. PRIVILEGE AGAINST SELF-INCRIMINATION: ART. 20(3) USA, ‘The Fifth Amendment of the U.S. Constitution provides inter alia: "No person... shall be compelled in any criminal case, tobe a witness against himselt By judicial interpretation, the above provision has been given a very wide connotation. The privilege against ‘self-incrimination has been held to apply to witnesses as well as parties in proceedings—civl and criminal. It covers documentary evidence and oral evidence, and extends to all disclosures including answers which by themselves support a criminal conviction, or furnish a link in the chain of evidence needed for a conviction.®7 (b) BRITAIN Itis a fundamental principle of the common law that a person accused of an offence shall not be compelled to discover documents or objects which incriminate himself. No witness, whether party or stranger is, except ina few cases, compellable to answer any question or to produce any document the tendency of which is to expose the witness (or the wife or husband of the witness), to any criminal charge, penalty or forfeiture,Page 1220 ‘The privilege is based on the policy of encouraging persons to come forward with evidence in courts of justice, by protecting them, as far as possible, from injury, or needless annoyance, in consequence of so doing 8 (c) INDIA, The privilege against self-incrimination is a fundamental canon of common-law criminal jurisprudence. The characteristic features of this principle are— (i) that the accused is presumed to be innocent, (ii) that itis for the prosecution to establish his guilt, and (ii) that the accused need not make any statement against his wil ‘These propositions emanate from an apprehension that if compulsory examination of an accused were to be Permitted then force and torture may be used against him to entrap him into fatal contradictions. The privilege against selfincrimination thus enables the maintenance of human privacy and observance of civilized standards in the enforcement of criminal justice. Article 20(3) which embodies this privilege reads: 'No person accused of any offence shall be compelled to be a witness against himself. (On analysis, this provision will be found to contain the following components: (1) itis a right available to a person ‘accused of an offence’ (2) _ itis protection against ‘compulsion’ to be a witness: (3) _ itisa protection against such ‘compulsion’ resulting in his giving evidence ‘against himsel All the three ingredients must necessarily co-exist before the protection of Art, 20(3) can be claimed. If any of these ingredients is missing, Art, 20(3) cannot be invoked. Each of these ingredients is discussed below. (d) TYPES OF INCRIMINATING EVIDENCE COVERED BY ART. 20(3) ‘The privilege applies to testimonial compulsion’. It no doubt covers oral testimony by an accused. But judicial ‘opinion has fluctuated on the question whether Art. 20(3) covers something more besides oral evidence. In MP. Sharma v, Satish Chandra,®® the Supreme Court taking a broad view of Art, 20(3) stated that to limit, Art, 20(3) to the oral evidence of a person standing trial for an offence is “to confine the content of the constitutional guarantee to its barely literal import"; and so to limit Art. 20(3) would be to rob the guarantee of its substantial purpose and to miss the substance, ‘A person can be a witness not merely by giving oral evidence but also by producing documents or making intelligible gestures as in the case of a dumb witness. The phrase ‘to be a witness’ in Art, 20(3), the Court ruled, meant nothing more than ‘to furnish evidence’ and this could be done through lips, or by production of 1a thing or a document, or in any other mode. Every positive volitional act which furnishes evidence is testimony, and testimonial compulsion connotes coercion which procures the positive volitional evidentiary acts of the person as opposed fo the negative attitude of silence or submission on his part. ‘The Supreme Court ruling in Sharma v. Satish, thus gave a broad import to Art. 20(3) as it was held to cover not only oral testimony or statements in writing of the accused but also production of a thing or of evidence by other modes. ‘The Supreme Court reconsidered the matter in State of Bombay v. Kathi Kalu Oghad."® A bench of eleven Judges was constituted to consider the issues involved. ‘The main question involved was whether Art. 20(3) is violated when the accused is directed to give his specimen hand writing, or signature, or the impression of his palms and fingers,Page 1221 ‘The answer to this question depended on the interpretation of the words "to be a witness" found in Art. 20(3). ‘The Court now ruled that Art, 20(3) is not violated in any of the above situations, The Court stated that “seltincrimination must mean conveying information based upon the personal knowledge of the person giving information" and covers only "personal testimony which must depend upon his volition”, The Court stated in Oghad: "To be a winess’ may be equivalent to Yumishing evidence inthe sense of making oral or writen statement, but notin the larger sense ofthe expression s0 as to Include giving of thumb impression or impression of palm o foot or fingers ‘or specimen wring or exposing apart of the body by an accused person for purposes of identification ‘The Court emphasized that itis as much necessary to protect an accused person against being compelled to incriminate himself, as to arm the agents of law and the law courts with legitimate powers of bringing offenders to justice. The Court stated regarding production of documents in the possession of the accused, that "if itis a document which is not his statement conveying his personal knowledge relating to the charge against him, he may be called upon by the court to produce that document.” Several types of evidence are excluded from the purview of Art. 20(3). This is done with a view to draw a balance between the exigencies of investigation of crimes and the need to safeguard the individual from being subjected to third degree methods. ‘The plea that once the police accosted a person who was suspected of possessing contraband opium, he must be deemed to be under arrest and therefore any confession made by him could not be used against him was held to be unsustainable.” ‘The Court has reiterated that the prohibition in Art. 20(3) covers oral testimony given by a person accused of an offence both in and out of the court, as well as the written statements by him having a bearing on the controversy with reference to the charges against him. But Art. 20(3) would not include signature, thumb impression, impression of the palm or foot or fingers, or specimen of handwriting, or exposing parts of his body by an accused for purposes of identification. Although “it may amount to furnishing evidence in the larger sense, is not included within the expression to be a witness".’2 On the relevant date, when the specimen signatures were obtained, the investigation was not done under the POTA provisions and dehors the provisions of POTA, hence there was no legal bar against ‘obtaining the handwriting samples of the accused, as provided for in Section 27 of POTA? Article 20(3) is also not violated when a police officer investigating a case seeks direction through the Court Of Chief Judicial Magistrate or the Court of a Chief Metropolitan Magistrate for obtaining samples of handwriting, fingerprints, footprints, photographs, blood, saliva, semen, hair, voice of any accused person reasonably suspected to be involved in the commission of an offence under the Act under Section 27 of the Prevention of Terrorism Act, 2002.” ‘The accused may have documentary evidence in his possession which may throw some light on the controversy. Ifit is a document which is not his statement conveying his personal knowledge relating to the charge against him, he may be called upon by the court to produce the same. On this point, the Court stated in Oghad: The accused person may be in possession of a document which is in his handwriting or which contains his signature or his thumb impression. The production of such a document, with a view to ‘comparison of the writing or the signature or the impression, "is not the statement of an accused person, which can be said to be of the nature of a personal testimony." The Court observed further: ‘When an accused person is called upon by the Court or any other authority holding an investigation to give his finger Impression or signature ora specimen of his handwriting, he snot giving any testlony of the nature of a "personal testimony” The giving af a personal testimony’ must depend upon nis vllion He can make any Kind of statement oF may refuse to make any statement. But his niger Impressions or hs handwriting, n spite of efforts at concealing the true nature of by d'ssimulaion cannot change ther inns character. Thus, te gving of finger Impressions or of specimen wring or of sgnatures by an accused person, thought may amount to fushing evidence inthe Senso, s nol included witin the expression 'o be a witness *7®Page 1222 ‘Art 20(3)is directed against self-incrimination by an accused. Set-ncrimination must mean conveying information based upon the personal knowledge of the person giving the information and cannot include merely the mechanical process of producing documents in court which may throw light on any point in ‘controversy, but which do not contain any statement of the accused based on his personal knowledge. Section 73, Evidence Act, authorises a court trying a criminal case, in the interests of justice, to direct the accused person appearing before it, to give his sample writing for comparison. In the interest of justice, the ‘court can direct an accused person appearing before it, to give his sample writing to enabling the same to be ‘compared by a handwriting expert approved by the court, with any disputed writing by the accused.”° Section 94(1), Cr.P.C.., of the old code, or S, 91 of the new code, authorises a court, or an officer in charge of a police station, to issue a written order to the person having possession of the document to produce the same, The Supreme Court held by a majority in State of Gujarat v. Syamlal Mohanial Choksi’” that under this provision, an accused person cannot be asked to produce documents in his possession. One of the considerations before the Court to reach this conclusion was that under the Kaluy Oghad ruling, an accused person cannot be compelled to disclose documents which are incriminatory and based on his knowledge. But the language of S. 94 being general, any document can be called under it."Ifs. 94 is construed to include an accused person, some unfortunate consequences could follow’ In the instant case, the respondent, a money lender, was prosecuted under the Money Lenders’ Act for not keeping proper accounts. The prosecutor applied to the magistrate to direct the accused to produce the accounts but the court refused to do so keeping in view Art. 20(3). Ultimately, the matter came before the ‘Supreme Court by way of appeal from the High Court and the Supreme Court agreed with the magistrate's, ruling holding that S. 94, Cr.P.C, does not cover an accused person. Article 20(3) is not violated when an accused is compelled to stand up and show his face for the purpose of identification, for it does not amount to giving of testimony as the physical facts which are noticed speak for themselves.’® When the accused was taken to the doctor for medical examination to determine whether he was intoxicated ‘or not, and the doctor recorded his observations of the physical features and other symptoms exhibited by the accused, and he was not compelled to give any evidence, the High Court held that the symptoms ‘observed by the doctor could not be regarded as evidence obtained from the accused by compulsion. 79 Compulsory taking of urine and blood samples from an accused is not hit by Art. 20(3) as it is not testimonial ‘compulsion £9 During the course of investigation of a crime by the police, if an accused person were to point out the place where the corpus delicti was lying concealed, and in pursuance of such information the discovery was made within the meaning of S. 27 of the Evidence Act, such information and the discovery made as a result thereot may be proved in evidence even though it may tend to incriminate the person giving the information while in police custody, unless compulsion has been used in obtaining the information. Section 27 of the Evidence Act has been held to fall outside the prohibition of Art, 20(3), unless compulsion has been used in obtaining the information. Ifthe settincriminatory information has been given by an accused person without any threat, that will be admissible in evidence and will not be hit by Art. 20(3).2? ‘Admission of tape-recorded evidence against the accused does not violate Art. 20(3) when the conversation ‘on his part was voluntary and there was no compulsion. The fact that the attaching of the tape recording instrument was unknown to the accused would not render the evidence of conversation inadmissible. The accused person's conversation is not extracted under duress or compulsion, Recording of conversation on tape was "a mechanical contrivance to play the role of an eavesdropper,"®3 With the advancement of technology, methods of investigation are now available to the police and other investigative authorities which have and continue to raise interesting issues on the constitutionality of the processes employed. Recently the Bombay High Court® considered whether the compulsory subjection ofPage 1223 accused to three of these new methods namely Lie Detector or polygraphy tests, P-300 Test or Brain Mapping tests and Narco Analysis or Truth Serum Tests violate the constitutional prohibition of testimonial ‘compulsion under Art. 20(3). According to the court none of the tests violated Art. 20(3) because "The tests of Brain Mapping and Lie Detector in which the map of the brain is the resull, or polygraph, ... cannot be said to be a statement made by the witness. At the most it can be called the information received or taken out from the witness", With regard to narco analysis while holding that the result of administration of serum is necessarily a statement nevertheless "unless itis shown to be incriminating to a person making it, it does not give rise to the protection under Article 20(3)". Several High Courts have taken similar views®® and the issue is now pending before the Supreme Court. () WHAT IS COMPULSION In order to bring the evidence within the inhibition of Art. 20(3), it must be shown that not only the person making the statement was an accused at the time of making the statement®® and that it had a material bearing on the criminality of the maker of the statement, but also that he was compelled to make the statement. ‘Compuision’ is duress; compulsion has to be a physical objective act and not the state of mind of the person making the statement, except where the mind has been so conditioned by some extraneous process as to render the making of the statement involuntary and, therefore, extorted. The mere asking by a police officer investigating a crime against a certain individual to do a certain thing is not compulsion within the meaning of Art 20(3). ‘The mere fact that the accused was in police custody at the time he made the statement would not, by itself, be the foundation for the inference of law that the accused was compelled to make the statement. An ‘accused person is not regarded as having been compelled to be a witness against himseif merely because he made a statement while in police custody without anything more. As a proposition of law, the mere fact of being in police custody at the time of making the statement does not by itself lead to the inference that the accused has been compelled to make the statement.®” However, ifthe police obtains the statement by ‘employing third degree methods, the statement would be barred under Art. 20(3).88 ‘The accused may, however, show that while he was in police custody at the relevant time, he was subjected to treatment which amounted to compulsion. In other words, it will be a question of fact in each case to be determined by the court on weighing the facts and circumstances disclosed in the evidence before it.®2 Compulsion may take many forms; an accused may be subjected to physical or mental torture; he may be starved or beaten and a confession extorted from him, In Nandini Satpathy,®° Iyer, J., advocated an expansive interpretation of the phrase ‘compelled testimony’. According to him, itis evidence procured "not merely by physical threats or violence" but also "by psychic torture, atmospheric pressure, environmental coercion, tiring interrogative prolixity, over-bearing and intimidatory methods, and the like". Any mode of pressure, “subile or crude, mental or physical, direct or indirect, but sufficiently substantial", applied by the police to obtain information from an accused strongly suggestive of guilt becomes compulsion. However, legal perils following upon refusal to answer, or answer truthfully, do not amount to compulsion within Art. 20(3). But frequent threats of prosecution if there is failure to answer may take on the complexion of undue pressure" violating Art. 20(3). ‘These guidelines have been statutorily incorporated into Sections 32 and 52 of POTA ®". The peremptory prescriptions embodied in Section 32 of POTA are: (a) The police officer shall warn the accused that he is not bound to make the confession and if he does 0, it may be used against him [vide sub-section (2)] {b) The confession shall be recorded in an almosphere free from threat or inducement and shall be in the same language in which the person makes it [vide sub-section (3). Although Art. 20(3) does not in terms apply to the pre-trial stage, Nandini Satpathy’s case sought to introduce it by way of interpretation relying upon the landmark decision of the U.S. Supreme Court in Miranda v.Page 1224 Arizona" wich requires the police officer to inform the person arrested of his right to consult a legal practitioner immediately upon arrest. Section 52(2) of POTA which so provides is founded on the Miranda rule? ‘When a trap is laid and the accused talks, then there is no element of duress, coercion or compulsion, and he cannot claim the protection of Art, 20(3) in such a situation.3 Telephonic conversation between two parties was tape-recorded by the police with the permission of one of the parties, The Supreme Court ruled in R.M. Malkani v. State of Maharashtra,* that the conversation could be used in evidence as it was voluntary and there was no duress or compulsion to extract the same. The fact that the tape-recording instrument was attached without the appellant's knowledge does not make the ‘conversation inadmissible against him, Further, there was no case against him at the time of the conversation and so there was no scope for holding that he was made to incriminate himself Article 20(3) is not violated when the accused volunteers evidence against himself. Since the Article gives only a privilege, the accused may waive it if he so likes.° ‘There are, however, a number of safeguards in the Indian law subject to which oral evidence of the accused can be recorded by the police so that chances of police exerting duress or compulsion against the accused may be minimised, Till 1955, in India, an accused was not a competent witness and could not testify on his behalf even if he wanted to do so, S. 342 A added to the Criminal Procedure Code in 1955 permits the accused to offer himself as a witness. It, however, lays down that the accused's failure to give evidence is not to be the subject of any comment by any party or the court, or is not to give rise to any presumption against him, No adverse inference can thus be drawn from the failure of the accused to testify.® Under S. 26 of the Evidence Act, no confession made by a person while in police custody is to be proved against him unless it has been made in the immediate presence of a magistrate. A confession by an accused is recorded under 8. 164, Cr. P.C., but he later retracts it in the magistrate's court. Can the confession be used against him at the sessions trial? Does Art, 20(3) bar the use of a retracted confession against the accused? The Supreme Court has ruled that the confession has to be voluntary; a confession made under threat, inducement or compulsion is inadmissible. Art. 20(3) would not apply if confession is made otherwise than under threat, promise or inducement. A retracted confession has litte probative value but is not inadmissible under Art. 20(3).” In Mohd. Dastgir v. State of Madras,® the accused went to the house of the police officer and offered him some currency notes as bribe which he threw at the face of the accused. Shortly, thereafter, the officer asked the accused to produce the currency notes which he did. The accused was then tried for the offence of offering a bribe. It was argued on behalf of the accused that he was. ‘compelled to produce the envelope containing the currency notes and there was thus violation of Art. 20(3). ‘The Supreme Court rejected the contention. The Court argued that before Art. 20(3) could come into play, two facts must be established, viz. (1) that the individual concemed was a person accused of an offence; and (2) that he was compelled to be @ witness against himself ‘The requirements of Art, 20(3) would not be fulfiled if only one of these facts and not the other is established. The Supreme Court held in the instant case that the accused could not claim the benefit of Art. 20(3) as he was not compelled by the officer to produce the currency notes. Although the accused was asked to produce the money, it was within his power to refuse to comply with the officer's request. ‘The Bombay$, Madras"? and Kerala High Courts" have held that an accused can be compelled to undergo. ‘a narco-analysis or truth serum test and that the question of violation of Art. 20(3) would arise only if as a result of the test the accused makes a statement which is incriminatory and the prosecution seeks to introduce it into evidence, Privilege against self-incrimination has not been applied in India to searches and seizures, or seizure ofPage 1225 ‘documents under a search warrant. A search of the premises in possession of a person accused of an offence, under a search warrant, and seizure of documents, under the provisions of Ss. 94 and 95, Cr.P.C. (old), oF S. 94, Cr.P.C. (new), is not a compelled production within the meaning of Art. 20(3) and, hence, would not offend that constitutional provision. The reason is that a search warrant is issued to a police officer and so search and seizure cannot be regarded as the acts of the occupier of the premises in question; they are the acts of another to which the occupier is obliged to submit and are, therefore, not his testimonial acts in any sense." ‘The Supreme Court has reiterated this view in V.S. Kuttan Pillai v. Ramakrishnan.'3 Documents found on the premises can be seized irrespective of the fact that they contain some statements made by the accused Upon his personal knowledge and which, when proved, may have the tendency to incriminate him ‘The immunity against seltincrimination extends to incriminating evidence which the accused may be ‘compelled to give, but not to such situations where incriminating evidence is being collected without in any manner compelling the accused, or asking him to be a party to the collection thereof. Search and seizure Under a search warrant do not have even the remotest tendency to compel the accused to incriminate himself. “A passive submission to search cannat be styled as a compulsion on the accused and if anything is recovered during such search which may provide incriminating evidence against the accused it cannot be styled as a compelled testimony." Section 342, Cr.P.C., 1898, or s. 313, Cr-P.C., 1973, permits the courts to question the accused generally afer witnesses for him have been examined. The court may draw such inference from his refusal or answers as It thinks just. The section does not contravene Art. 20(3) because the answers by the accused can only be taken in consideration at the inquiry and they are not in substitution of the evidence by the prosecution which must make out its case by evidence. The object of the section is not to build up a case against the accused from his answers or non-answers but to test by explanation furnished by him, the truth of the prosecution When the answers given by the accused satisfactorily explain the prosecution evidence, there could be no conviction: if they do not rebut the prosecution evidence, he would be convicted. The accused is not in the position of a witness as he does not testify on oath. His Statement is not evidence but only a mater which the ‘court can take into consideration, and is not covered by Art. 20(3) which applies to evidence and not to a matter. This may, however, be too narrow a view to take of the constitutional provision which does not use ‘any words to confine its operation only to evidence in the strict sense, The guarantee is against ‘testimonial ‘compulsion’ which does not appear to be restricted to evidence only." ‘Somewhat in line with S. 342, Cr.P.C., 1898 (s. 313, Cr.P.C. 1973), is S. 124 of the Bombay Police Act which stales that whoever has in his possession anything which there is reason to believe is stolen property, shall, if he fails to account for such possession, on conviction, be imprisoned for certain period. The provision has been held not to contravene Art. 20(3) because the accused is to account for his possession only after the, prosecution has proved that there is reason to believe that the property in his possession is stolen property. ‘A Punjab ordinance provided that on prima facie cause being shown that a person has obtained through ‘some criminal offences some property, the district judge could issue an interim attachment order with regard to the property, and at the same time issue a notice to the person concerned to shaw cause as to why the interim order should not be made absolute. The provision was held not to contravene Art. 20(3) on the ground that the accused was not compelled to be a witness against himself, since presumably his answer to the notice must be that he was innocent and there could be no objection to his getting on record as early as possible his reasons for saying so."® Criminal prosecution of the appellant for several offences was imminent. On the same facts, the collector of customs initiated proceedings against him under the Customs Act. It was argued that this violated Art, 20(3) as the appellant would be forced to give evidence and thus incriminate himself. Rejecting the argument, the ‘Supreme Court said: "He may, if he chooses, not appear as a witness in the proceedings" under the Customs Act. “The necessity to enter the withess-box for substantiating his defence is not such a compulsionPage 1226 as would attract the protection of Art. 20(3)." It may be very necessary for the accused to enter the witness-box for substantiating his defence, but this is no reason for saying that the criminal trial compels him to be a witness against himself in violation of Art. 20(3). "Compulsion in the context of Art. 20(3) must proceed from another person or authority. The appellant is not compelled to be a witness if he voluntarily gives evidence in his defence." In the instant case, the ‘customs authorities gave an undertaking not to use in criminal proceedings any statements which may be made by the appellant during the adjudication proceedings.” S. 132, Evidence Act, could also be invoked to protect him." ‘The protection of Art, 20(3) is against the accused to incriminate himself under compulsion. This does not mean that he need not give information regarding matters which do net tend to incriminate him. Selt-incriminatory testimony falling within the prohibition of Art. 20(3) is to be of such a character that by itself it should have the tendency of incriminating the accused, if not also of actually doing so. "In other words, it should be a statement which makes the case against the accused person at least probable considered by itself." Criminal proceedings were launched against the father for kidnapping his child from the lawful custody of the child's mother. Later, a habeas corpus petition was filed by the mother in which he was directed to produce the child in court which he did not. He stated that as he was protected by Art 20(3), he need not divulge his defence in the criminal case. He was condemned to imprisonment for two months for contempt of court. The Court observed that a criminal prosecution is nota fortress against all other actions in law.?" A husband's claim for protection under Art 20(3) for refusing to enter his defence in divorce proceedings because a proceeding under Section 498-A IPC was pending trial, was negalived on the ground thatthe first was a civil ‘case and also that the two proceedings are totaly independent and their scope and nature are entirely different from each other. 22 Under S. 15 of the TADA Act [The Terrorist and Disruptive Activities (Prevention) Act, 1987], confession made by the accused was made admissible in evidence. The Supreme Court ruled in Ayub v. State of Uttar Pradesh? thal under Art. 20(3), the accused person has a protection from being compelled to be a witness against himself. Therefore, the confession made under S. 15, TADA Act, must be strictly according to the procedure laid down in the Act for recording confession. The confession should appear to have been made voluntarily and the police officer who records the confession should satisfy himself that the same was being made voluntarily by the maker of that statement. The recorded confession must indicate that these safeguards had been fully complied with, Like the TADA Act, 1987 the provisions of the Prevention of Terrorism Act, 2002 exclude from their purview the provisions of Sections 24 to 27 of the Evidence Act with regard to confession made before a police officer. In State (NCT of Delhi) v. Navjot Sandhu it was said that non compliance with the procedural safeguards ‘against involuntary confessions need not necessarily or automaticaly lead to the rejaction of the confession although "the breach thereof will normally result in eschewing the confession from consideration" 24 (f) PERSON ACCUSED OF AN OFFENCE he privilege under Art. "accused of an offence’ 10(3) is available not only to an individual, but even to an incorporated body, if 5 In order to avail of the protection of Art. 20(3) against self-incrimination, a condition to be fulfilled is that the person claiming the protection should be one “accused of an offence” at the time he makes the statement. Art, 20(3) does not apply ifthe person is not an accused at the time he makes the statement but becomes an ‘accused by the time when later the statement made by him is sought to be proved, This means a person against whom a formal accusation relating to the commission of an offence has been levelled and although the actual trial may not have commenced as yet, but which in normal course may result in his prosecution. ‘The Supreme Court has stated in Raja Narayanlal:28 "For invoking the constitutional right against testimonial compulsion guaranteed under Art, 20(3), it must appear that a formal accusation has been made against thePage 1227 party pleading the guarantee and that it relates to the commission of an offence which in the normal course may result in prosecution.” When, therefore, a person claims the benefit of the privilege, the question has to be asked whether he has been accused of any offence. A person cannot claim the privilege iat the time he made the statement he was not an accused but became an accused thereafter.” ‘What constitutes a formal accusation is rather flexible, To answer the question whether a person is accused or not at a particular time, it is necessary to make a reference to the nature and scope of the proceedings, the nature of the accusation and its probable consequence. Accusing a person of committing a crime in the first information report, or in formal complaint before a magistrate, amounts to a formal accusation and the person concerned can claim the privilege. As the Supreme Court has observed in Guha:29 “Its well settled that with the lodging of a first information report a person is accused of an offence within the meaning of Art. 20(3)." Accusation can also be made in any other formal document or notice served on that person which ordinarily results in his prosecution in court.2° Therefore, statements made by a person to the police when he did not, stand in the character of a person accused of an offence were not protected by Art. 20(3). Itis not enough that he should become an accused any time after he has made a statement. When a person was arrested Under S. 6 of the Railway Property (Unlawful Possession) Act, 1966, but no formal accusation was made against him at the time his statement was recorded, Art. 20(3) would not apply.*1 ‘The privilege in Art. 20(3) is undoubtedly available at the trial stage in the court room.%2 But itis available even at the pre-trial stage, ie., during the course of police investigations if the person concerned can be regarded as an accused. In Sharma v. Satish,2° the Supreme Court has pointed out that there is no reason to think that the protection of Art. 20(3) is confined to what transpires at the trial in a court room. The phrase used in Art. 20(3) is "to be witness" and not to "appear as a witness’, "It follows that the protection afforded to an accused in so far as. itis related to the phrase ‘to be a witness’ is not merely in respect of testimonial compulsion in the court room but may well extend to the compelled testimony previously obtained from him. Itis available therefore to a person against whom a formal accusation relating to the commission of an offence has been levelled which in the normal course may result in prosecution.” In Nandini Satpathy v. P.L. Dani,®4 Nandini Satpathy was directed to appear at the police station for being ‘examined in connection with a case registered against her under the Prevention of Corruption Act. On the basis of the first information report, investigation was commenced against her and she was interrogated by the police with reference to a long string of questions, but she refused to answer, claiming protection of Art. 20(3). ‘The Supreme Court held that S. 160(1), Cr.P.C., which bars calling of a woman to a police station, was breached in this case. But the Court took opportunity to dilate at length on the scope of Art. 20(3). K. Iyer, J., felivering the Court's di ynsidered the question whether Art. 20(3) applies only to a person "accused", of also to a “suspect”, who is not formally accused, when the police is holding an investigation against him, The case-law hitherto, viz., Oghad and Maneck Pheroze had held that a suspect was not an accused and so Art. 20(3) would not apply to him. But Krishna lyer, J., in Nandini expressed a different ‘opinion on this issue. He ruled that Art. 20(3) ought to extend to police investigation also since enquiries Under criminal statutes with quasi-criminal investigations are of an accusatory nature and are sure to end in prosecution, if the offence is grave and the evidence gathered is good. To deny the protection of Art. 20(3) to ‘a suspect because the enquiry is preliminary and may possibly not reach the court is to erode the substance, ‘Art, 20(3) is not confined merely to court trial. it extends to "any compulsory process for production of ‘evidentiary documents which are reasonably likely to support a production against him, Not only compelled testimony previously obtained is excluded but "the preventive blow falls also on pre-court testimonial ‘compulsion.” ‘The learned Judge also ruled that the ban on self-accusation and the right to silence, while investigation or trial is underway, goes beyond that case and protects the accused in regard to other offence pending or imminent, "He is entitled to keep his mouth shut if the answer sought has a reasonable prospect of exposingPage 1228 him to guilt in some other accusation actual or imminent, even though the investigation underway is not with reference to that."®5 Further, the Judge held that the police must invariably wam, and record the fact, “about the right to silence against selfincrimination; and where the accused Is literate take his written acknowledgement.” The Court has also stated that the police must inform the accused that he has a right to call a lawyer before answering to any of their questions. But this liberal view of Art. 20(3), expressed by Krishna Iyer, J., in Nandini is nothing more than an obiter for the Judge himself says in this regard: "We are not directly concerned with this facet of Art, 20(3); nor are we free to go against the settled view of this Court, There itis’ ‘The fact remains that use of third degree methods are common in India during custodial interrogation by the police so much so that custodial deaths are not rare.°° The Law Commission has also referred to this aspect Of criminal justice system in India in its paper on "Custodial Crimes". To mitigate this evil, the view expressed by K. Iyer, J., in Nandini can be very useful. However, in Kartar Singh v. State of Punjab,2” the Supreme Court has accepted Krishna Iyer, J's, opinion in Nandini. It has been pointed out that there is a lot of custodial violence and abuse of police power in India. ‘The Court has pointed out that a delicate balance needs to be drawn to protect the innocent from conviction and the need of the society to ensure that the offender is punished. Every one has a right against self-incrimination and a right to be silent under Art. 20(3) which implies his freedom from police or anybody else, The Supreme Court has thus observed in Kartar Singh:3® "The acts ofthe parson, of course is neither negative aitude of sence or submission on his par, noris there any reason to think thal the protection in eospect of the avdonce procured is conned to what transpires at tho tal in the courtroom, The phrase used in Article 20(3) i o be a witness and not lo appear asa witness. I follows that the protection accorded fo an accused insofar as tis related tothe phrase to be a witness is not meraly in respect ofthe festmonial compulsion in the court room But may well extend to compelled testimony prevausly obtained from him” In Dethi Judicial Service Association v. State of Gujarat,2° the Supreme Court has ruled that mere issue of a Notice of contempt of court to a person for pendency of contempt of court proceedings against him, does not attract Art. 20(3) because the contemner against whom the notice is issued is not accused of an offence. Contempt proceeding is sui generis; it has several peculiar features which are not to be found in criminal proceedings. As for instance, a criminal offence is tried according to the procedure laid down in the Criminal Procedure Code, but a contempt charge is tried on summary process without any fixed procedure and the court is free to evolve its own procedure consistent with fairplay and natural justice. The power to take proceedings for contempt of court is an inherent power of a court of record and the Criminal Procedure Code does not apply to such a proceeding.4° Proceedings for contempt of court are of a peculiar nature. Proceedings for contempt of court are not taken in the exercise of original criminal jurisdiction. In certain aspects, these proceedings are quasi-criminal, but in ‘any view taken are not exercised as part of the original criminal jurisdiction of the court.41 A contemner is not in the position of an accused. He does not stand in the position of a “person accused of an offence" merely ‘on account of issue of notice of contempt by the Supreme Court and, therefore, Art, 20(3) would not apply in such a situation, (g) CIVIL PROCEEDINGS ‘The protection under Art. 20(3) is available only in criminal proceedings or proceedings of criminal nature before a court of law or other tribunal before which a person may be accused of an offence as defined in S. 3(38) of the General Clauses Act, that is, an act punishable under the Penal Code or a special or local law. ‘Adifference of opinion between High Courts on the question whether section 151 of the Code of Civil Procedure could be invoked to compel a person to be subject to a medical examination was resolved by the ‘Supreme Court in Sharda v. Dharmpal.*2 The Mysore, #3 and Gujarat, High Courts held that Section 151 of the Code of Civil Procedure cannot be taken recourse to for the purpose. The High Courts of Calcutta,4® and Andhra Pradesh’ held to the contrary. The Supreme Court approved the latter view saying that the court must be held to have the requisite power even under Section 151 of the Code of Civil Procedure to issuePage 1229 such direction “either suo motu or otherwise which, according to (the court), would lead to the truth" 47 ‘The protection of Art, 20(3) does not therefore extend to parties and witnesses in civil proceedings or proceedings other than criminal.® (h) ADMINISTRATIVE PROCEEDINGS Article 20(3) is not applicable to administrative investigations even though the primary aim of these proceedings may be to find out whether the individual has committed an offence or not.4® Under S. 45G of the Banking Companies Act, after an order for the winding up of a banking company has been made, the offcial liquidator has to submit a report whether in his opinion any loss has been caused to the company by any act or omission of the directors, amounting to fraud, After considering the report, the High Court may publicly examine the directors, promoters, auditors, etc, of the company regarding their ‘conduct and dealings in relation to the affairs of the company, In Auguisthi®® the appellant was ordered to appear before the court for examination under section 45G. He challenged section 45G as unconstitutional vis-a-vis Art. 20(3), but the Supreme Court upheld the same. The Supreme Court conceded that under section 45G, a person could be compelled to answer incriminating ‘questions put to him by the High Court, and subsequently even charges might be levelled against the directors, nevertheless, the privilege against self ncrimination would not apply as there was no formal accusation against the directors at that stage, ‘The object of the inquiry thereunder is to collect evidence and decide whether any acts or omissions have ‘caused loss to the company. If as a result of the inquiry, the court comes to the conclusion that acts or ‘Omissions did cause loss to the company, then some action might be taken against the persons examined, ‘Thus, an accusation may or may not follow the enquiry, but there is no accusation at the time of the inquiry. ‘The accusation of an offence is a condition precedent for the application of Art. 20(3) and this essential condition is lacking in cases covered by S. 45G of the Banking Companies Act because the persons called {or public examination under section 45G are not accused of any offence. Article 20(3) is not violated even when the liquidator accuses the directors of fraud in his report, and thereupon the court decides to hold the enquiry under S. 45G, as the offical iquidator's report does not ‘amount fo an accusation within Art, 20(3).®" In such a proceeding, a person cannot refuse to give an answer ‘on the plea that it might tend to subject him to a criminal prosecution at a future date. In Raja Narayanial Bansilal v. Maneck Firoz Mistry,®2 the Registrar in his report to the Central Government [made under S. 137(5) of the Companies Act, 1913] alleged that the business of the company was being Carried on in fraud of the contributories, The Government appointed an inspector to investigate into the affairs of the company. He issued notices to the appellants to attend his office for being examined on oath in relation to the affairs of the company (as provided in Ss, 239 and 240 of the Companies Act, 1956). The appellant claimed the privilege against self-incrimination under Art, 20(3) on the ground that the main object of the investigation was to discover whether he had committed any offence or not, Denying that the appellant could claim any immunity under Art, 20(3), the Supreme Court pointed out that the privilege was available to an accused person only, and as no formal accusation was laid against the ‘appellant, he could not claim the privilege. The enquiry was in substance “an inquiry into the affairs of the ‘company concerned’; that “the investigation carried on by the inspectors is no more than the work of a fact-finding commission,” and that the investigation begins broadly with a view to examine the management of the company to find out whether any irregularities have been committed or not ‘Atno stage in the inquiry, there is any accused person or accuser or accusation against any one that he has ‘committed an offence. The commission of offences might be discovered as a result of the inquiry and then the government may institute criminal proceedings against the offending persons but the fact that a prosecution may ultimately be launched would not retrospectively change the complexion of the proceedings held by the inspector. The Registrar's report could hardly amount to an accusation against the appellants as it was "only intended to enable the Central Government to decide whether it should appoint an inspector”, AtPage 1230 the investigation before the inspector, the Registrar was not the complainant making an accusation against the appellant; the function of the investigation was not to find out whether the said accusation was proved or not. Proceedings held before the customs authorities under S. 171A of the Sea Customs Act for confiscation of _goods and imposition of a penalty on the ground of smuggling of goods do not fall within the purview of Ar. 20(3). Even when the customs officer arrests a person suspected of smuggling, he is not an accused within ‘Art 20(3) and a confession obtained from him is not it by Art. 20(3) ‘These proceedings are not under the criminal law; there is no accusation and only departmental penalties could be imposed. The only concer of the customs officer is to prevent smuggling and recover customs duties. Even if the customs officer arrests a person on suspicion of his having infringed a provision of the Customs Act, and holds an inquiry after informing the person of the cause of his arrest (Art, 22(1)].®° the person concemed is not one accused of a crime. Itis only when a complaint is lodged against him before a magistrate that the person becomes an accused. In Romesh,®4 the appellant was searched at the Calcutta Airport. As a consequence, currency, pearls and jewellery were found on his person and in his baggage. He was charged under the Sea Customs Act. During his trial, reliance was placed on his confessional statement made by him before the Customs Authorities. It was argued that it was inadmissible in evidence because of Art. 20(3). Rejecting the objection, the Court ruled that the guarantee against testimonial compulsion contained in Art, 20(3) can be claimed by a person only if he was accused of an offence at the time he made the statement. Under the Sea Customs Act, the Custom Officer does not accuse a person of any offence when he calls upon a person smuggling goods to make a statement, The officer holds the inquiry with a view to adjudge confiscation of goods dutiable or prohibited and imposing penalties. His primary duty is to prevent smuggling; he is not accusing any person of any offence triable before a magistrate. More recently the court has reiterated that during an inquiry under the Customs Act or under the NDPS Act the person concerned is not. an accused although he may be said to be in custody. Any statement made by the accused at such a time when he was not under arrest, would not attract the bar under Sections 24 to 27 of the Evidence Act nor the provisions of Article 20(3).5° Despite earlier pronouncements, Art. 20(3) was relied upon to stay prosecution under Sections 277 and 278 of the Income Tax Act on the ground that the accused (who was charged with misappropriation of funds of the Animal Husbandry Department and of fraudulent withdrawals from the State exchequer by issuing fake bills for supplies never made to the Animal Husbandry Department), had been granted a pardon under Section 306 of the Criminal Procedure Code by the Special Judge, CBI, on the condition that he makes a full and complete disclosure. The court was persuaded to extend the benefits of Art. 20(3) to Income Tax proceedings perhaps to ensure a full and complete disclosure in the "Fodder scam" case.°° In illias v. Collector of Customs,” it has been held that the customs officers are not police officers and any statement recorded by them under Ss. 107 and 108, Customs Act, is not inadmissible in evidence. Since it has been held by Courts that an officer for the purposes of Section 67 read with Section 42 of the Narcotic Drugs and Psychotropic Substances Act, 1985, is not a police officer, the statement made by a Person directed to appear before the officer concemed may be relied upon as a confessional statement against such person.°8 ‘A person was arrested under S. 198 of the Foreign Exchange Regulation Act and the grounds of arrest served on him included the accusation relating to a transaction with reference to which he was summoned before the Enforcement Directorate to give evidence, The petitioner pointed out that he was accused at the time of his arrest of having committed an offence which was the subject-matter of the inquiry and, therefore, the summons against him should be withdrawn. The Director rejected the request and asserted that the appellant must comply the same, On the above facts, the Supreme Court considered the matter and ruled that the First Information Report hadPage 1231 been lodged earfier in the case, and with the lodging of the FIR, a person is accused of an offence within the meaning of Art. 20(3). Accordingly, the appellant was held entitled to partial relief. The Court emphasized that the only protection given by Art. 20(3) to a person accused of an offence is that he cannot be compelled tobe a witness against himself, But, this does not mean that he need not give information regarding matters which do not tend to incriminate him. The Court directed the appellant to appear before the Directorate to ‘answer such questions as would not tend to incriminate him. The Court clarified that permitting him not to ‘answer self-incriminating questions was because he was an accused on the relevant date. ‘There was a difference of opinion among the High Courts on the question whether persons are entitled to the presence of their lawyers when they are being questioned during investigation under the Customs Act, or the Foreign Exchange Regulation Act (FERA). The argument was that in a situation where there exists the lity of the person under interrogation being prosecuted as an accused, he would be entitled to the assistance of a lawyer during the questioning, because to deny him such a right would be violative of Art. 20(3). In Poolandi v. Superintendent, Central Excise, 9 the Supreme Court has now answered the question in the negative. The Court has again explained the scope of Art. 20(3) which embodies a guarantee against sself-incrimination. Itis an established proposition that the guarantee against selfincrimination can be claimed ‘only by a person who is accused of an offence at the time he is compelled to make the incriminating statement. "It does not refer to the hypothetical person who may in the future be discovered to have been guilty of some offence,” ‘The broad operation given to Art. 20(3) in the Nandini Satpathy case® with reference to criminal offences was not acceptable to the Court in the instant case and the Court preferred to follow its ruling in Ramesh Chandra Mehta v. State of West BengaP" and Ilias v. Collector of Customs, both cases under the Customs Act, but both were pre-Nandini Satpathy cases. ‘The Court also rejected the argument that to call a person away from the comforts and convenience of his home to the customs office and to question him there without the assistance of a lawyer amounts to mental torture which violates Art. 21. The Court stated:®? “The purpose ofthe inuiry under the Customs Act and the other similar statutes wl be completely frustrate if the wal ofthe persons in possession of useful information forthe departments are allowed la proval. For achieving the (bjact of such an enquiry if the appropriate authorities be ofthe view that such persons should be dissociated rom the ‘atmosphere and the company of persons who provide encouragement o hem in adopting @ non-co-oparatveatttude to the machineries of iaw, there cannot be any tegtimate objection in depriving thom of such company. The relevant provisions of the Consituion inthis regard have tobe construed in tho spit they were made and the benefits {hereunder snould not be ‘expanded to favour exploiters engaged in tax evasion atthe cost of public exchequer, Applying the us, fair and reasonable test we hold that there Is no merit n the stand of the appellans before us.” It'seems that the Court has adopted a more stringent attitude in respect of economic offences than ordinary criminal offences. Also, the Court distinguishes between proceedings under the Criminal Procedure Code and administrative investigatory proceedings. Only on that basis can be explained the Court's refusal to follow the dicta in Nandini Satpathy.®4 From the above, it becomes clear that the immunity under Art. 20(3) cannot be claimed by a person in proceedings before administrative bodies on the narrow ground that there is no criminal accusation against im. This is the result of the Supreme Court interpreting the word “accused” in Art. 20(3) as a person formally accused of an offence”. This approach very much restricts the effectiveness of the immunity in Art. 20(3) in these days of proliferation of adjudicatory bodies outside the regular hierarchy of courts. ‘The aim of administrative investigations is not only to find out facts, but also to collect evidence on which a prosecution may be based later. As for example, in the Maneck Phiroze case, the inspector making the investigation was told to bear in mind that “for a successful prosecution the evidence in support of a charge must be clear, tangible and cogent”. The obvious implications of this direction were that he should fish out ‘evidence against the persons concerned which may be of probative value in criminal proceedings to be launched subsequently. This means that what cannot be achieved through a formal criminal proceeding canPage 1232 be easily achieved through administrative proceedings and evidence thus collected can be used against the person concerned when formally prosecuted later in a criminal court. From this point of view, the privilege ‘against self-incrimination loses much of its efficacy in this era of growth of administrative process. 1. Corin, Th Constitution and what means To-day, 78 (1958). 2. Kanayalalv Indumatl, AIR 1988 SC 444 : 1958 SOR 1394, 3. Stal of Moharashtrav. KK. Subramaniam Ramaswamy, AIR 1977 SC 2001 :(1977)3 SCC 526 4, Soni Devrajsha! Babubheiv. Sale of Gujarat, AIR 1991 SC 2173 : (1991) 4 SCC 298, 5. (2008) § SOC 518, at page 537 8. Also see, RS. Joshi. Alt Mils Ld, AIR 1977 SC 2279: (1977) 4 SCC 88; Fardoal Agencies v. State of Haryana, (1978) 44 STC 231; Cantal India Motors v. Assistant Commr. of Sales Tax, (1980) 46 S.T.C. 379; Mangal Chand Phool Chand. Stato of Flaryana, (1980) 45 STC 477. 1. Prahiad v Stato of Bombay, AIR 1952 Bom 1. For discussion on Proventive Detention, seo, infra, Ch. XVI, Sec. B, 8, State of nar v, Shalabala, AIR 1952 SC 929:: 1952 SCR 654 8, Hathising Mtg. Co. v. Union of Inala, AIR. 1960 SC 923 : (1960) 3 SCR 528, 10, Sunderoramior .. Go, v. State of Andhra Pradesh, AIR 1958 SC 468 : 1958 SCR 1422, CGE v, Oront Fabrics (P) Lt. (2004) 1 Sc 597 (2008) 10 JT 282 11. dawala Ram v. Pepsu, AIR. 1962 SC 1248 : (1962) 2 SCR 503. 12, Union of naa . Sukumar, AIR 1966 SC 1208 : (1966) 2 SOR 34; 6 P. Nayyarv. State, AIR 1978 SC 602: (1978) 2 80C 598. 13. Shiv Bahadur v. Vindhya Pradesh, AIR 1953 SC 394 : 1953 SCR 1188, 14. AIR 1964 SC 464 ; (1964) 4 SCR 630. 15. AIR 1964 SC 464 : (1964) 4 SCR 630. 16. See, CD. Swami, Stale, AIR 1960 SCT (1960) 1 SCR 461 Also, Suraoal Singh v. State of Uttar Pradesh, AIR 1961 SC 589 :(1961) 2 SCR 971. 17. Shiv Bahadur, Vindhya Pradesh, supra, footnote 13. 18. Cot Inspector of Minas v. Karam Chand Thapar, AIR 1861 SC 838 : (1862) 1 SCR 8 19. T. Baral. Henry An Hoo, AIR 1983 SC 150: (1983) 1 SCC 177 20. Sardar Gyan Singh v. State of Bihar, AIR 1975 Pat 69. 24, Woalth Tax Comme, Amvitsarv. Suresh Seth, AIR 1981 SC 1108 : (1981) 2 806 790. 22. Kedar Nath Bajoria v. Stato of Wost Bengal, AIR 1953 SC 404 1954 SCR 20 Aso 2, Tivan Kenhalyalal v. Commr, I, AIR 1975 SC 902 : (1975) SCR 30. 28. AIR 1960 SC 266 (1960) 2 SCR 88. 24, Also s00, Maya Rani T. Comm, Delhi, AIR 1886 SC 293 : (1986) 1 SCC 445, 25. West Bengal v. SK. Ghosh, AIR 1953 SC 255 : (1953) 2 SCR 111, Nevertheless, the question whether At 20(1) prohibits the enaciment of law which deprives tne accusec of any substantial right or immunity possessed at the time of the commission ofthe affance charged rtertd to alargar Boneh in Transmission Corpn, of AP. v. Ch. Prabhakar, (2004) § SOC 587 AIR 2004 SC 3968, 26. AIR 1984 SC 1194 - (1983) 3 SCC 529. 4, Observations tothe contrary in Vitual Sof Systems Lid, v. CIT, (2007) 8 SCC 865, ae incomePage 1233 27. T. Bara v. Henry Ah Hoe, AIR 1983 SC 180 : (1883) 1 SCC 177, 28, AIR 1965 SC 444 : (1964) 7 SCR 676, See more recently Supt, Narcotic Contr Bureau v, Parash Singh, (2008) 13 SCC 496. 28, 6. Gupta v. Glaxo-Smithktine Pharmaceuticals Lid, (2007) 7 $0C 171. 30, AIR 1995 SC 1531: (1995) 3 SCC 635, 31. AIR 2000 SC 1650: (2000) 6 SCC 228 32. See, 8.28 ofthe General Clauses Act and S. 403(1 of the Gr PC, 1888; s. 300, Cr PC 187. 33, (2008) § SCC 258: AIR 2008 SC 2808 234 bid at page 268 235. Kalawatv State of Himachal Pradesh, AIR 1953 SC 131 : 1953 SCR 546 38. OP. Dahiya v. Union of naa, (2008) 1 S06 122 AIR 2008 SC 4464, 37. Ba Nath v. Siate of West Bonga, AR 1957 SC 494, 38. Mohd. Saflv. State of West Bengal, AIR 1965 SC 69 : (1965) 3 SCR 487. State of Kamataka v. C. Nagarajaswamy, (2005) SCC 370 AIR 2005 SC 4308. 98, Stato. Nayjot Sandhu, (NCT of Dein), (2008) 11 SCC 600: AIR 2005 SC 3820. 40. O.P. Dahiya v. Union of Ina, (2003) 1 SCC 122, at page 123. 41.D.A. Kelshikarv, Stato of Bombay, AIR 1960 Bom. 225. 42, Ghulam Ahmed v. State of Jammu .. Kashmir, AIR 1984 J8K 58 43. Bhagwan Swarup v. Stato of Maharashtra, AIR 1985 SC 682: (1984) 2 SCR 378; Haninder Singh v. Stato of Puniab, AIR 1885 S04 (85) 1 SC 422 se ale Shy Pasha Pandey v. CB, 2003) 11 6CC EOE: AIR 2008 SC 1876, fr what 4, Stato of Bar v. Murad All Khan, AIR. 1968 SC 1: (1988) 4 SCC 655; Stato of Rajasthan v. Hat Singh, (2008) 2 SCC 182 ‘AIR 2003 SC 71, 45, State of Bombay v. S.L.Apte, AIR 1981 SC 578 : (1961) 3 SCR 107. [so see, Monjpur Administration v Thockohom Bra Singh, AIR 1965 SC 87 : (1964) 7 SCR 128. 48, Loo Roy Froy v. Supt, District Jal, AIR 1858 SC 119: 1958 SCR 822 47. Kunj Lal. Stato of Madhya Pradesh, AIR 1955 SC 280: (1955) 1 SCR 872; Gandhi v. State of Mysore, AIR 1960 My. 1114; Chintamanraov. Digram, AIR 1960 MP 149. Also, State of Maahya Pradesh v. Veoroshwar, AIR 1957 SC 592 : 1967 SOR 868, 48. VK, Agarwal v. Vasartra, AIR 1988 SC 1106 : (1988) 3 SCC 487. 49. Mohinder Singh v. State of Punjab, (1998) 7 SCC 390. See also State (NCT of Det. Navjot Sandhu, (2005) 11 SCC 600 at page 693, 50, Jtondra Ponchalv. Narcotics Control Bureau, (2008) 3 SCC 57. 51.AIR 2001 SC 1092 : (2001) 3 Sco 414 52. Stale of Haryana v, Balwant Singh 2008) 8 SCC 962 : AIR 2003 SC 1253, 53, ne M Davoed, AR 1959 AP 137; Mohd. Aly. Sri Ram Swarup, AIR 1965 AI 181 54. SA, Venkataraman v. Union of India, AIR 1984 SC 375: 1984 SOR 1180. Also, DA. Kelshikarv. State of Bombay, AIR 1960 Bom 225 55. Supr, footnote 54 58, Magoo! Hussain v. Stato of Bombay, AIR 1953 SC 225 : 1963 SCR 720.Page 1234 57. Director of Enforcement v. MCTM Corp. Pr. Lid, AIR 1996 SC 1100 : (1986) 2 SCC 471 58, Motising Chhagansing Vaghelav. S.D. Mehta, AIR 1986 Gu) 283. 58. M, Seetharamaswami v. Commercial Tax Offcer, AIR 1960 AP 451 60, Ebrahim Vazirv. Stato of Bombay, AIR 1954 SC 228: 1854 SCR 933. 61. Magboo! Hussain v. Stato of Bombay, supra; Assit Customs Collector v. LR. Motwani, AIR 1970 SC 962: (1968) 2 SCR 488, 62. AIR 1958 SC 375 : 1959 Supp (1) SCR 274, For the text of te case, and comments thereon, see, MP. Jain, Cases & Materials on Indian Adm. Law, il, 2393-2398, 63, Joginder Singh v. Bar Council of naa, AIR 1975 Del 192. 64. Raja Narayan Lal Bansi Lal. Maneck Phiror, AIR 1964 SC 29: (1961) 1 SCR 417. 185. MP. Jan, Justice Bhagwat! an¢ indian Constuitonal Law, 2 JL, $1 (1958-60. 68, Bachcha Lal v Lali AIR 1976 All 393, 67. McCarty v. Arsen, 258 US 24. ‘so see, IL, Seincriminaton ; Physical and Medical Examination of the Accused, (1963). 68, Phipson on Evidence, X Ed, 268 69, AIR 1954 SC 300: 1954 SCR 1077 70. AIR 1961 SC 1808 (1962) 3 SCR 10. 71. State of Rajasthan v. Dauita Ram, (2008) 7 SCC 36 : AIR 2006 SC 3816 72. Also seo, Stato of Utar Pradesh v. Boota Singh, AIR 1978 SC 1770: (1978) 1 SCC 31. See also State v.M. Krishna Mohan, (2007) 14 SCC 687. 73, Stato (NCT of Deh) v, Navjot Sanahu, (2005) 11 SCC 600 ; AIR 2005 SC 3420. 74. Pooplo's Union for Gil Liberties v. Union of india, (2004) 8 SCC 580, a page 607. But see tothe contrary Anni Singh v. ‘State of Punjab, (2008) 12 SCC 79, at page 8°, 80 : AIR 2007 SC 12. 75.AIR 1981 SC at 1815 : (1962) 3 SCR 10. 76. Stale (Det Administration v. Pai Ram, AIR 1979 SC 14: (1978) 286 158, TT.AIR 1985 SC 1251 - (1868) 2 SCR 457, Also see, VS. Kuan Pile v. Ramakrishnan, AIR 1980 SC 185 : (1980) 1 SCC 264, 78. Pakhar Singh v, State of Punjab, AIR 1988 Pun) 204 79, no Palani Goundan, AIR 1957 Mad 548. 80. Subbaya Gounderv. Bhoopala, AIR 1959 Mad 396, iso see, ILL, Seltncriminain: Physical and Medical Examination ofthe Accused (1963). 81. Stoo of Bombay v. Kathi Kalu Oghad, supra, footnote 70, at 1815. £82, Ibid, Stato of Uttar Pradesh v. Dooman Upadhaya, AIR 1960 SC 1126 = (1961) 1 SCR 14; Mi Dastagiv. State of Madras, AIR 1960 SC 758: (1960) 3 SCR 116. 83. RM. Makan, St of Maharashtra, AIR 1973 SC 157, 163-164: (1973) 1 SCC 471. £84, Ramehandra Ram Reddy v. The State of Maharashtra, 2004 Al MR (Cx) 1704 2004 Bom GR (Cri) 857 85, Dinesh Daimiav. tate, 2008 (3) Cr LJ 2401 (Mad): Rofo George v. Deputy Superintendent of Police, 2008 (2) KLT 197 (Kerala); Abhay Singh v. State of UP, 2008 Cri LJ 2189 (Al). See also Santokben Sharmanbhal Lage v. State of Gujarat, 2007 (4) Cr LS 4566, 88, Seo, infra, () on "Person accused ofan offence”Page 1235 87. Stale of Bombay v. Kathi Kalu Oghad, supra: Prshadlv. Slate of Uttar Pradesh, AIR. 1957 SC 211 : 1967 Cri Ld 328, 88, Ghazi. Stato of UP. AIR 1956 Al 142. 89, Stato of Bombay v. Kath Kalu Oghad, Supra, at 1816. [Nso, RK. Daim v. Doli Administration, AIR 1962 SC 1821 (1963) 1 SCR 283. 90. Nendini Salpathy v. PL. Dani, AIR 1978 SC 1025: (1978)2 SCO 424, 91. Prevention of Terrorism Act, 2002 1, 384 US 436 (1966) 2, See State (NCT of Doh) v.Navjot Sandhu, (2008) 11 SCC 600 at page 720: AIR 2005 SC 3820. 3. Yusual, Stale of Maharashtra, AIR 1958 SC 147 : (1957) 3 SCR 720, 4. AIR 1973 SC 187 (1973) 1 SCC471 5. Laxmipat Choraria v. State of Mahorashira, AIR 1968 SC 938: (1968) 2 SOR 628. 6. 7.6, Gaokar. RIN. Shula, AIR 1968 SC 1060 : (1968) 3 SOR 422, 7. Kalawai. Stale of Himachal Pradesh, AIR 1953 SC 131 : 1953 SCR 546. 8, AIR 1960 SC 756 : (1960) 3 SOR 116, 8, Ramchandra Ram Roddy v. The State of Maharashira, 2004 All MR (Cx) 1704 : 2004 Bom CR (Ci) 657. 10. Dinesh Dalia v. State, 2006 (3) Cr Li 2401 (Mat), 11. Rojo George v. Deputy Superintendent of Police, 2008 (2) KLT 197. 12. MP. Sharma v Satish, AIR 1954 SC. 300, 306 : 1954 SCR 1077; supra footnote 69, For tox ofthe caso, se0, MP. Jain, Cases & Matoros on Indian Adm. Law, Il, 2550-2686 13. AIR 1980 SC 185 : (1980) 1 SCC 264 [Aso se0, Jain, Cases, bie, 2656-2681 14. In te Ramakrishna, AIR 1955 Mad 100; Banwanla v. State of UP,, AIR 1956 All 341; In ce Govinda Roddy, AIR 1958 Mys 150, 15. Stato of Meharashra v. Fundan Lathenmal, AIR 1960 Blom 377 18. GL Salwanv. Union of India, AIR 1980 Pun 354 17.1.6, Gaokar v. RN. Shukla, AIR 1968 SC 1050 : (1968) 3 SOR 422, 18. Manila Soni. Union of na, 1984 Cr Ld 1359, 19. RB. Shah v. DK. Guha, AIR 1973 SC 1196 : (1973) 1 SCC 688. 20, Stato of Bombay v. Kathi Kalu Oghad, AIR 1861 SC 1808 : (1962) 8 SCR 10, 21. Dushyant Soma v. Sushma Somal, AIR 1984 SC 1027 : (1981) 2 SCG 277 22. John Sushil Kae v. The Famiy Court Judge ‘Unreported judgment dated 09.07.2007: WP No. 958 of 2007: High Court of ‘Andra Prados, 23, (2002) 3 SoC 510, 24. Atpage 724 25.M.P. Sharma v, Satish, AR 1954 SC 300 : 1954 SCR 1077; supa, fotnote 12. 28, Raja Narayanal Bani v. Manock Froz Mistry, AIR. 1961 SC 29: (1964) 1 SOR 417 ‘Also se, ina, footnote 52. 27. State of Bombay v. Kathi Kalu Ophad, AIR 1961 SC 1808 : (1962) 3 SCR 10; Md. Dasigir. State of Madras, AIR 1960 SCPage 1236 1756: (1960) 3 SCR 116; R.K. Dalmiav, Delhi Adm. AIR 1952 SC 1821 : (1969) 1 SCR 253, 28, Sharma v. Satish, supra, footnote 12 on 1245; Kath Kalu Oghad, supra, footnote 87. Fora full discussion on the point see, Ambalal Chimanlal Choksi. State of Maherashira, AIR 1966 Som 243, 8 case under the Gold Contra! Rules and the Customs Act. 29, RB. Shah v. DK. Guha, AIR 1973 SC 1196 (1973) 1 SOC 686. ‘Also, MP. Sharma v. Satish, supra: Romesh Mobi v State of West Benga, AIR 1970 SC 940 30. Balkishan v. Stato of Maharashtra, AIR 1981 SC.379: (1980) 4 SCC 600. 31. Amin v. State of UP, AIR 1958 All 293, 32. Kathi Kalu Oghad, supra, footnote 28. 33. AIR 1954 SC 300 : 1954 SCR 1877; also, supa, fotnote 28. 34. AIR 1978 SC 1025 -(1978)2 SCC 424 35, bi, 1048, ‘The leading American case on the points Miranda v. Arizona, 384 US 436 (1966) K.lyerss opinions influenced by the Miranda approach, 38, Se ina, Ch, XXXVI, See. E 37. (1994) 3 SOC 569: 1994 Or Ld 3189 SC), 238. bi, at 729 38, AIR 1991 $6 2176, at 2190 49, See, Che IV, Sec. Ci) and Vl, See. C(), supra, on contemat ofthe Supreme Court and the High Courts 41. Also see, Sukdov Singh Soahiv. Chit Justice. Judge ofthe Pepsu High Cour, AIR 1984 SC. 186, 42. (2008) 4 SCC 493: AIR 2008 SC 3450 43, Revarnma, AIR 1972 Mys 157 44, Bpinchandra Shanial Bat, AIR 1963 Gu} 250. 45, Birendra Kumar Biswas v. Hemita Biswas, AR 1921 Cal 459 48, M. Vijaya v. Choieman and Managing Director, Singareni Coleies Co. Lid, AIR 200% AP 602 (FB). 47, (2008) 4 SOC 493 al page 510 AIR 2003 SC 8460. 48. Shyam Sunder Chowktan’ v. Kajal Kani Biswas, AIR 1999 Gau 10%; Gangardharappa v. Basavara), AIR 1996 Knt 155; Nokbuly Stato of Bombay, AIR 1955 SC 325; Narayan Lal. Raneek, AIR 1981 SC 29 (196%) 1 SCR 417. 49, For cases and materials on this topic, S00, MP. Jaln, Cases and Matorals on Indian Adm. Law., Ch, XVI, See. A) 50. K. Joseph Augusthi. Narayanan, AIR 1964 SC 1852 : (1954) 7 SCR 137. 51. Popular Bank v. Madhava Nair, AIR 1965 SC 654 : 1965 Ker LI 537 52. AIR 1961 SC 29: (1961) 1 SOR 417, For text of the case, see, Jain, Cases... Materials on Indian Adm. Law, Il, 2363-2367. 58, Sea, infra, Ch. XXVII, See. A. '54. Ramesh Chandra Mehta v. State of West Bengal, AIR 1970 SC 940 : (1969) 2 SCR 461. ‘Aso s00, Vooraibrahim v. Stato of Maharashtra, AIR 1978 SC 1167 : (1978) 2 SCC 302; P. Rustomylv Stato of Maharashtra, AIR 1977 SC 1087 (1971) 1 SCC 847, For text ofthese cases, ee, Jain, Cases, Il, 2401-2408, 2418-2421,Page 1237 58. Kanhaiyalalv. Union of dia, (2008) 4 SCC 868 - AIR 2008 SC 1044, 56. Dipesh Chandak v. Union of India, (2008) 8 SCC 511 at page 512 : AIR 2004 SC 4708: “To insist on so prosecuting may Fesultin valuable evidence being latin the Fodder Scam cases” 87..NR 1970 86 1068. ‘iso see, Hira H. Advan v. Slate of Maharashtra, AIR 1971 SC 44 : (1959) 2 SOC 682. 58, Kanhoiyalalv. Union ofa, (2008) 4 SCC 668 at page 682 AIR 2008 SC 1044. 59. AIR 1982 86 1795 (1992) 3 SCC 258. 60, Supra, footnote 34 61. AIR 1970 86 940 : (1969) 2 SOR 461. 62. AIR 1970 SC 1065 : (1989) 2 SCR 613. 63, AIR 1982 SC at 1600. For discussion on Aa. 21, 800, info, Ch. XVI 54. Supra, footnotes 34 and 60. MP Jain Indian Constitutional Law/Volume 1/PART V POLITICAL AND CIVIL RIGHTS/CHAPTER XXVI FUNDAMENTAL RIGHTS (7) CHAPTER XXVI Fundamental Rights (7) A. RIGHT TO FREEDOM OF THE PERSON ‘The right to freedom of the person comprises the following: (a) Protection of life and personal liberty: Art. 24 {b) Protection against ex-postfacto laws: Art. 20(1); (©) Protection against Double Jeopardy: Art. 20(2); (d) Privilege against self-incrimination: Art. 20(3); {e) Protection in case of arrest: Arts. 22(1), 22(2) and 22(3); (f) Safeguards in case of preventive detention: Arts. 22(4) to 22(7) Heads (b), (c) and (d) have been discussed in the last Chapter. Head (a) is being discussed here. Heads (e) and (f) will be discussed in the next Chapter. ‘The Fundamental Rights under Art. 19 are conferred only on citizens," but the rights mentioned in (a) to (f) above are available to all persons whether citizens or not. Ina number of cases, the Supreme Court has held that foreigners are entitled to the protection of Arts. 21 and 222 On the question of applicability of Art. 21 to non-citizens, the Supreme Court has emphasized that even those who come to India as tourists also "have the right to live, so long as they are here, with human dignity, just as the State is under an obligation to protect the life of every citizen in this country, $0 also the State is Under an obligation to protect the Ife of the persons who are nat citizens.