DR.

RAM MANOHAR LOHIYA

NATIONAL LAW UNIVERSITY, LUCKNOW

ACADEMIC SESSION: 2020-21

CODE OF CRIMINAL PROCEDURE

NANDINI SATPATHY V P L DANI

Submitted To: Submitted By:

Dr. Prem Kumar Gautam Tanurag Ghosh
Asst. Professor (Law) B.A.LLB.(Hons)-5th Sem
Dr. RMLNLU Enrolment no.- 180101147
 Acknowledgement

I would like to express my gratitude towards all those whose help and constant support the project
would not have reached its current facet. Foremost I would like to thank Dr. Prem Kumar Gautam
sir for his kind guidance and for quenching my queries on many doubts and technicalities which I
came up during the making of this project. I would take advantage of this situation to thank the
Hon’ble Vice Chancellor, Prof. Subir K. Bhatnagar, esteemed Dean (Academics) Prof. Dr. C.M.
Jariwala and Dr. Ram Manohar Lohiya National University for providing me with such an enriching
opportunity to work and research on this topic.
This project would not have seen the light of the day without the constant direction and guidance of
my parents and guardians to whom I owe a lot. I would also like to use this opportunity to thank my
brother in helping me out with the nitty-gritty of formatting.
I would also like to thank all of my friends and seniors who aided me along the way. I must also
extend my gratitude to the library and library personnel who provided me with research material
and good books to work upon and the distinguished authors, jurists and journals for providing in the
public domain such invaluable information.

-Tanurag Ghosh
 INTRODUCTION

Right against self-incrimination came into existence during the medieval times, with the Latin
maxim of ‘nemon tenetur seipsum accusare,’ which means no person is obliged to accuse himself.
This right gradually developed in common law to be considered as an essential right and an
important facet of the principles of natural justice. This right is recognized in India as an inherent
right enshrined in Article 20(3) of the Constitution of India and by virtue of § 161(2) of the Code of
Criminal Procedure, 1973. These two legal provisions essentially cover the same subject matter,
wherein they state that a person is not liable to answer questions, which might result in his
incrimination. This right was recognized and its nuances were discussed and reiterated in the
landmark case of Nandini Satpathy v. P. L. Dani.1 This case is one of the most popularly cited cases
when it comes to self-incrimination and right to be silent. But this case and the current standing of
law on the subject matter have certain flaws in the principles that have been developed therein.
Hence in this paper, the researcher will firstly discuss the relevant facts of the case, and then
analyze the issues and principles that cropped up in the case regarding criminal procedure, with the
help of fact analysis and hypothetical situations. And finally the researcher shall discuss the
trajectory of cases and the current position of law on the subject. The purpose of this paper is to
understand the principles regarding of § 161(2) and their applicability, which shall be done by
critically analyzing the case.

RELEVANT FACTS OF THE CASE

In Nandini Satpathy v. P. L. Dani, the appellant is Mrs. Nandini Satpathy who was the former Chief
Minister of Orissa. She had been called to the Vigilance Police Station, Cuttack in connection with
the case registered against her and her sons under Prevention of Corruption Act. An FIR had been
filed against these persons on the grounds of acquisition of disproportionate assets during the time
of the public position she was in. Regarding this she was to being examined by way of a
questionnaire that was handed to her, which she was supposed to answer orally. She refused to
answer certain questions and remained silent regarding them, since they were self-incriminatory in
nature. Upon her refusal she was charged under § 179 of the Indian Penal Code, 1860 that deals
with refusal to answer a public servant on the subject matter. She further challenged herself being

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

booked under § 179 of the IPC on the ground that she had a right to remain silent under § 161(2) of
the CrPC and Article 20(3) of the Constitution. She initially approached the High Court, which did
not hold in her favour and did not consider her to have a right to remain silent, upon which she
appealed to the Supreme Court.

PRINCIPLES DEVELOPED IN THE CASE REGARDING CrPC

The Nandini Satpathy case is essentially a constitutional law case wherein certain issues pertaining
to Criminal Procedure have been discussed. Justice Krishna Iyer, who gave the majority judgment,
has discussed ten issues, of which three were regarding Criminal Procedure.2 The primary issue
discussed was regarding the principle laid down by § 161(2) of CrPC, and to what extent might a
person be justified in not answering a question on the ground that it is self-incriminatory in nature.
Second issue discussed is whether § 161(2) applies only to a witness or does it also extend to
include an accused person, who can claim immunity under Article 20(3) of the Constitution. And
finally the last issue is whether there is a contradiction between § 161(2) of CrPC and § 179 of the
IPC.

Principle 1:

“A person while being examined under § 161 of the CrPC is not required to answer those questions
that have a tendency to self-incriminate.”

As aforementioned the main issue discussed in the case was regarding the main principle of §
161(2) of CrPC and when this section is applicable. § 161(2) of the CrPC requires that every person
being questioned must answer truly the question posed to him. But within the clause itself there is
an exception to this that if answering the questions can lead to the incrimination of that person, then
he is not bound to answer those questions. In this case, the main principle developed regarding this
was that, “even if answering a question has the tendency or probability of incriminating the person,
then he/she is not bound to answer it.”

2 Ashutosh Kumar Mishra, 50 LEADING CASES OF SUPREME COURT IN INDIA 47 (2014).

For arriving at this conclusion the Supreme Court relied on State of Bombay v. Kathi Kalu Oghad3
This case extensively discussed the principle of self-incrimination. And it was in this case that the
Court highlighted as to what qualifies as ‘tendency to self-incriminate.’ They held that when there is
a probability of accusation actual or imminent, after taking all circumstances into account; then the
person is not liable to answer the question. But if it appears that there is not possibility of
crimination then the person is bound to answer the question. To explain crimination, the Court also
discussed the difference between confession and crimination. In case of a confession, it is defined
as “the potency to make crime conclusive”4 whereas crimination on the other hand means that there
is “tendency to make guilt probable.”5 Therefore tendency is the possibility of guilt on the part of
the person.

Hypothetical situation 1: Z has murdered X, and there is sufficient evidence pointing towards it.
With respect to this incident it is also suspected that Y might have been involved by helping Z to
hide the murder weapon. Y is being examined by the Police Officer regarding the incident and the
murder weapon by virtue of § 161 of the CrPC. During the examination the Police Officer asked
whether Y had touched the murder weapon immediately after the incident occurred. Y can choose to
not answer this question because if he did, it means that he did help in hiding the weapon, then there
is very reasonable possibility that if he says yes he may be charged for abetment, since the only
reason he touched the murder weapon immediately after the murder was probably to hide it.
For arriving at the main principle aforementioned, the Supreme Court had primarily relied on the
Hoffman test and the Malloy test. In Hoffman v. United States,6 the United States Supreme Court
had held that a person might not be answer questions that may lead to a conviction such that it
creates a series of link. But it is required that this link has to be a very strong one, and cannot be a
fanciful inference. In this case it was held that merely because the person assumed answering the
question might incriminate him when it is just a remote possibility and not a direct consequence,
then the person cannot take the privilege of being silent.
This principle of self-incrimination also carries a contradiction with itself. § 161(2) of the CrPC,
entails that during examination the questions that are to be answered truly by the witness should be
‘regarding the case.’ But in the Nandini Satpathy case it was held that questions which might not be
3 State of Bombay v. Kathi Kalu Oghad, AIR 1961 SC 1808.
4 id.
5 id.
6 Hoffman v. United States, 341 US 479.
related to the current case, but can incriminate regarding a different matter are not required to be
answered. This contradiction is resolved by the fact that while investigating the current matter, the
Police is definitely going to ask question regarding that matter, which are to be answered truly
unless they are incriminatory in nature. It is only when there is possibility that self-incrimination on
a different matter might occur, does the ratio of Nandini Satpathy case apply wherein questions that
can incriminate the person on a different matter are also not required to be answered.
Further the wording of § 161(2) of the CrPC clearly states, “All questions asked regarding the case
are required to be answered truly.”7 And a kind of exception to this is questions that are self-
incriminatory. This means that it is understandable that if a self-incriminatory question is asked, a
person is likely to not answer that question truly, as required by the clause, so as to save himself
from being charged with a crime. Answering the questions asked truly is the first and foremost
condition of the clause,8 if that is not followed then the entire purpose of the clause of extracting
evidence is lost. To counter this, an exception is given that for those questions, i.e., self-
incriminatory questions to which a person may give false answers are not required to be answered.

Principle 2 :

“Protection under § 161(2) of the CrPC and Article 20(3) of the Constitution is granted to
witnesses as well as accused.”

The second main principle discussed in the case is whether it is only the accused to whom the self-
incrimination principle applies or does it also extend to a witness. This principle was discussed
mainly because of two reasons. Firstly, the marginal note of § 161 of the CrPC uses the word,
‘witness,’ but in the clause (1) says, ‘any person’ and clause (2) uses the ‘person’ and not witness.
Therefore the entire debate came about as to whom does § 161 apply to and who is saved from self-
incrimination. The Court settled on the matter that the section is applicable to ‘anyone who is
acquainted with the facts and the circumstances of the case’ as mentioned in the section itself.9 This
means that the section contemplates a witness to the case, but it can also include an accused such

7 The Criminal Procedure Code, 1973, Section 161.

8 Pakala Narayana Swami v. Emperor, AIR 1939 PC 47.
9 Mahabir Mandal v. State of Bihar, (1972) 1 SCC 748.
that the witness becomes an accused of the crime subsequently.10 Hence it was concluded that § 161
extends to witnesses as well as accused.

The second reason for the discussion of the principle is regarding a constitutional matter wherein it
was debated whether Article 20(3) of the Constitution applies to those who have not yet been
declared to be an accused. In the Nandini Satpathy case the issue was that, Article 20(3) grants
protection against self-incrimination to those who have been accused, so how could the appellant
take protection under this Article, when she has not yet been formally accused, but was merely
called as a witness for examination under § 161 of the CrPC. The Court applied the same logic they
did for the previous reason that § 161 of the CrPC includes witnesses who might become an
accused. Therefore even an ‘accused’ in Article 20(3) includes a person who might become an
accused in the future.
Hypothetical situation : X and Y are archenemies since school, and are known to have threatened
each on several occasions. Y is also of a loose character and is cheating on his wife; Z. Z has
knowledge of this, but Y does not know that she knows. One day Y started getting blank calls,
found notes threatening him at his doorstep and found his car tyres slashed. Y immediately files a
complaint against X for harassment. Based on the complaint, witnesses are called for examination.
One of the witnesses called is Z. During the examination, the Police mention that the number from
where the calls were made was traced to the office of Z. They ask whether she had made the calls.
Upon the asking of this question Z is extremely flustered, and starts thinking about her marriage.
This is direct question, which can be answered in ‘yes’ or ‘no.’ Z does not consult a lawyer, and
immediately without realizing answers ‘yes.’

The Police book her for harassment, which she challenges under Article 20 (3) of the Constitution
and 161(2) of the CrPC. The ratio of Nandini Satpathy case also says that under Article 20 (3),
compelled testimony also occurs when there is psychological, atmospheric pressure, intimidatory
methods are used, etc. Z claims that because her husband was cheating and she was being
questioned, there was pressure on her, and she did not intend to answer the question. In such a
situation, technically with respect to only whether she can challenge the prosecution, it is
considered that although she was not an accused when called for examination, she can exercise her
right under Article 20(3) of the Constitution and § 161(2) of the CrPC. The investigation regarding

10 Dina Nath Ganpat Rai, Re. AIR 1940 Nag 186.

her may not have started with her being an accused, but even if there is possibility of her becoming
one subsequently, then she has a right against self-incrimination. Hence at least with respect to §
161 of the CrPC, witnesses include persons who might subsequently become an accused.

Principle 3:

“There is no contradiction between § 161(2) of the CrPC and § 179 of the IPC, they both are in fact
in consonance.”

The final principle that was formulated in the Nandini Satpathy case on the matter of procedure was
regarding the contradiction between § 161(2) of the CrPC and § 179 of the IPC. § 161(2) as
aforementioned acts as an exception to the general rule wherein the witness is not required to
answer self-incriminatory questions. But on the other hand § 179 of the IPC states that ‘refusing to
answer a public servant who is authorized to question’ is punishable.11 In fact this was essentially
the main issue in the Nandini Satpathy case. Because she refused to answer certain questions by
virtue of § 161(2) of the CrPC, the Police booked her under § 179 of the IPC, which she challenged.

But the Court held that there in fact was no contradiction between the two sections, because when
these two sections are read together it is evident that § 161(2) of the CrPC is merely in furtherance
of § 179 of the IPC. § 179 of the IPC and § 161(2) of the CrPC essentially cover the same subject
matter, it is only that § 161(2) has an additional condition in the form of an exception of the general
rule. This exception is that a person can refuse to answer those questions, which are self-
incriminatory. Therefore in Nandini Sathpathy case it was held that there was no contradiction
between these two sections, and they are in fact in consonance. And it is only when there is no
actual tendency to self-incriminate; § 179 of the IPC applies.
Although the researcher opines that, these two sections cannot really be considered to be in
consonance when right to self-incrimination also protects a person on a different subject matter and
not the present matter. As aforementioned when the tendency is regarding a different subject matter,
it is only the witness who knows that the question is incriminatory; the Police have no knowledge of
it. In such a case the Police becomes justified to impose § 179 of the IPC on the witness for refusing
to answer, because for the Police there is no apparent tendency of self-incrimination.

11 The Indian Penal Code, 1860, Section 179.

Hypothetical situation : X dies 3 years after her marriage because of third degree burn injuries. Y,
the husband is called as a witness because X’s parents alleged that their daughter was being
harassed for a dowry by members of the family, although they do not know exactly who. Further
during investigation, the Police find that Y owned a gold watch, which he wanted as dowry from his
wife. When examination was being conducted, Y is asked how he came to be in possession of the
gold watch. Y had in fact stolen this watch, and it was not given as a dowry. Hence Y refuses to
answer the question. Since the Police do not know about the theft part, they also do not know that
there is a tendency to self-incriminate upon answering the question, therefore they charge Y under §
179 of IPC.

Therefore the researcher opines that right to remain silent should not be given to the witness when
the self-incrimination is regarding a different matter, because the Police are not capable of realising
the tendency of it. In such a situation the Police is rightly justified in booking the witness under §
179 of the IPC. It is only if the witness challenges this charge and goes to the Court, is there a
possibility that the tendency might become apparent to others. Also it is not right that a crime goes
unpunished. If the part regarding self-incrimination on a different matter is done away with then it
is in fact a good thing because at least a different crime will be known of.

CURRENT POSITION OF LAW

Right against self-incrimination still remains the same as it was held in the Nandini Satpathy case.12
The Court also gave a certain guidelines to be followed regarding the principles discussed earlier.
Of these was that under § 161(2) of the CrPC, if there is a possibility or potential for the question
asked to be self-incriminatory, then such a question is not required to be answered by the witness.
This principle was reiterated from the Kathi Kalu case, where the Court said that after taking all the
circumstances into account it is evident that the question asked has a tendency to self-incriminate,
the person has the privilege to remain silent. This case was again discussed in Selvi v. State of
Karnataka,13 regarding self-incrimination, wherein the debate was regarding evidentiary value of

12 Arvind Khanna v. CBI, Criminal Rev. Pet. No. 443/2010.

13 Selvi v. State of Karnataka, 2010 7 SCC 263.
extrinsic and intrinsic evidence with respect to brain mapping, narco analysis and polygraph test.
This case also discussed Nandini Satpathy case and held that the statements given under § 161(2) of
the CrPC do not have any evidentiary value. And a statement may not be given if the question asked
can be self-incriminatory.

Further the Court also held that § 161(2) of the CrPC and Article 20(3) of the Constitution can give
protection to witnesses who have been called for examination, although they may have not been
formally accused yet. This is because such witnesses who have been called have the potential of
becoming an accused subsequently. This question had actually initially cropped up in the Kathi
Kalu case, but it was not settled properly, which was later done by Nandini Satpathy case.

Overall the position that was taken in the Nandini Satpathy case is the current position of law.
Although the guidelines that were given by the Supreme Court are not a mandatory, but merely a
suggestion. But the principles that were developed in the case revolving around § 161(2) of the
CrPC are still valid and good in law.
 CONCLUSION

Nandini Satpathy case was essentially a Constitutional law case, but even with respect to Criminal
Procedure, this case developed one of the most important principles of right against self-
incrimination. These principles made the interpretation of § 161(2) of the CrPC more coherent, by
stating as to what question asked by the Police during the examination of witnesses, qualify as a
‘tendency to self incriminate.’ This is also important because it made protection under right against
self-incrimination available to witnesses as well, who have not yet been formally accused, but can
subsequently become accused.

The case also stressed a lot on the importance of legal aid, by stating that a witness can have his
lawyer present with him during examination, so as to consult him/her. And finally this case showed
how § 161(2) of the CrPC and § 179 of the IPC do not clash with each other but are in fact in
consonance. This judgment is considered to be good in law, although in regards to the main
principle, it should ideally not allow right against self-incrimination to extend to ‘tendency to be
incriminated for a different matter.’ But nevertheless this case to this day acts as one of the most
cited and important cases for right against self-incrimination because of its well-found and sound
principles developed.