Introductio

n
The right against self-incrimination had it’s roots in the opposition to the use of
the ex officio oath by the English ecclesiastical courts and it’s development was
intrinsically intertwined with the political and religious disputes of early England.
Pope Innocent III introduced into the ecclesiastical courts the “jusjurandum de
veritate dicenda” or inquisitorial oath. Prior to this trials in the ecclesiastical courts
had been by ordeal or compurgation oath, the formal swearing by the party and his
oath helpers. Unlike the procedure used in the administration of the compurgation
oath, the inquisitorial oath involved active interrogation of the accused by the
judge in addition to the accused’s uncomfortable consciousness of his oath to
reveal the entire truth of the matter under enquiry. There was always opposition to
this procedure but this opposition became particularly strong when the procedure
was adopted by the Court of the Star Chamber and used to pursue it’s broad
political mandate.[1]
The abolition of the above mentioned procedure and the creation of the right
against self-incrimination owes it’s birth to a great extent to one John Lillburn . He
was arrested upon a charge before the Star Chamber involving the printing or
importing of heretical and seditious books, Lillburn denied these charges under the
Attorney Genereal’s interrogation. When asked about other matters, however he
refused to respond. He was whipped and pilloried for his refusal to take a legal
oath. Subsequently he applied to Parliament and in 1641 the Long Parliament
passed a bill to abolish the Courts of High Commission and Star Chamber and to
prohibit the administration of an ex officio oath requiring answers to “things
penal”. There was much such reform post this however this only affected trial
procedure and the practice of pre-trial examination (and the use of results at trial)
remained unmodified till 1848.[2]
In course of time this principle was extended as a privilege to witnesses against
self-incrimination in giving oral testimony or in producing documents. The
Criminal Evidence Act, 1898 made an accused a competent witness on his own
behalf and thus introduced a change, but as to oral testimony of witnesses and
production of documents, the protection against self incrimination continued as
before.[3] These principles were carried to America and were incorporated there
by means of the 5th Amendment.[4] Later, the doctrine was further extended and
it was held that unreasonable search and seizures of documents also would be hit
by the 4th and 5th Amendments and the documents and evidence so obtained
would be inadmissible in evidence.
In India, Article 20(3) makes the right against self-incrimination a fundamental
right. Article 20(3) reads as follows :
20(3) No person accused of any offence shall be compelled to be a witness against
himself. Before moving further, it is of paramount importance to note that as per
the language of Article 20(3), is
There are various provisions in the Code of Criminal Procedure which deal with
the right against self-incrimination during both police investigations as well as
during trial.
Research Methodology
Aims and Objectives –
1)      To understand the meaning of the right against self-incrimination.
2)      To examine in brief the constitutional provision in this regard.
3)      To critically examine in detail the various provisions of the Criminal
Procedure Code which relate to the right against self-incrimination.
4)      To see if the above-mentioned provisions are in keeping with Article 20(3)
of the Constitution.
5)      To critically evaluate the suggestions mad by the Malimath Committee with
regard to the Right to Silence
Scope and Limitations – This paper being one for a course on Criminal Procedure,
the Researcher has focused primarily on the important provisions under the
Criminal Procedure Code and not the Constitutional provision though it has been
used to evaluate the various provisions of the Criminal Procedure Code which
have been looked at. Further the sections of the Criminal Procedure Code never
deal exclusively with the right against self-incrimination. It is to be kept in mind
that the Researcher is analyzing the sections in that context and hence other
aspects of the section which are irrelevant to the right against self-incrimination
may not have been gone into.
Mode of Citation –
The researcher has used a uniform mode of citation as follows.
Author, Name of the Book, (Editor, Edition, Volume No., Place of Publication:
Publisher, Year of Publication), Page no.
Author, “Name of Article”, &lt;<span style="text-decoration:
underline;">URL&gt;, (date of visit).
Method of Writing
Researcher has followed a descriptive, analytical and comparative form of writing.
Research Questions
1)      How did the right against self-incrimination evolve in Common Law ?
2)      To what extent has this right been expressed in the Indian Constitution ?
3)      What are the various provisions of the Code of criminal Procedure which
relate to this right ?
4)      Are the above mentioned provisions in keeping with the Constitutional
protection of the right against self-incrimination
5)      What are the changes that have been suggested by the Malimath
Commission in this regard ?
6)      Is it viable and prudent to make these changes ?
Chapterisation
Chapter 1 – deals with the right against self-incrimination during investigation by
the police and examines the various provisions of the Code of Criminal Procedure
in this regard.
Chapter 2 – looks at the right against self-incrimination during trial and examines
the various provisions of the Code of Criminal Procedure in this regard.
Chapter 3 – examines the various suggestions made by the Mallimath Committee
and attempts to critically evaluate them.
Sources of Data –
An exhaustive research was done using primary sources like case law as well as
secondary sources from books, articles and over the internet. A comprehensive
bibliography is provided at the end of this project.
The Right against Self-Incrimination during Investigation by Police
The first point that needs to be dealt with is whether the constitutional guarantee
against self-incrimination applies only while a person is under trial in a court room
or if it can be exercised by the accused at the time of investigation by the police.
This matter was clearly decided in the landmark case of M. P. Sharma v. Satish
Chandra[5]. The Supreme Court rejected the narrow interpretation of the doctrine
that it applied only to oral evidence of a person standing trial for an offence when
called to the witness stand, by saying that there was no reason to confine the
content of a constitutional guarantee to this bare literal import, for, so to limit it
would rob it of it’s purpose and to “miss the substance for the sound”.[6] In the
words of Jagannadhadas, J. :
“Indeed, every positive volitional act which furnishes evidence is testimony, and
testimonial compulsion connotes coercion which procures the positive volitional
evidential acts of the person, as opposed to the negative attitude of silence or
submission on his part. Nor is there any reason to think that the protection in
respect of the evidence so procured is confined to what transpires at the trial in the
court room. The phrase used in article 20(3) is &#8220;to be a witness&#8221;
and not to &#8220;appear as a witness&#8221;; It follows that the protection
afforded to an accused in so far as it is related to the phrase &#8220;to be a
witness&#8221; is not merely in respect of testimonial compulsion in the court
room but may well extend to compelled testimony previously obtained from him.
It is available therefore to a person against whom a formal accusation relating to
the commission of an offence has been leveled which in the normal course may
result in prosecution. Whether it is available to other persons in other situations
does not call for decision in this case.”
Now that it has been established that the constitutional right against self-
incrimination applies to the accused even at the stage of police investigation, the
researcher will proceed to examine the various provisions in the Code of Criminal
Procedure (henceforth “the code”) pertaining to investigation by the police which
need to be looked at in the context of the right against self-incrimination.
91. (1) Whenever any Court or any officer in charge of a police station considers
that the production of any document or other thing is necessary or desirable for the
purposes of any investigation, inquiry, trial or other proceeding under this Code by
or before such Court or officer, such Court may issue a summons, or such officer a
written order, to the person in whose possession or power such document or thing
is believed to be, requiring him to attend and produce it, or to produce it, at the
time and place stated in the summons or order.
93. (1)(a) Where any Court has reason to believe that a person to whom a
summons or order under Section 91 or a requisition under sub-section (1) of
Section 92 has been, or might be, addressed, will not or would not produce the
document or thing as required by such summons or requisition, or
(b) Where such document or thing is not known to the Court to be in the
possession of any person, or
(c) Where the Court considers that the purposes of any inquiry, trial or other
proceeding under this Code will be served by a general search or inspection,
To begin with, Section 91 of the Code allows for the Court or any officer in charge
of a police station to by means of a summons or a written order require a person to
produce before them any document or thing which the Court or the Officer
considers necessary for the purposes of investigation, trial or other proceeding
under the code by or before such Court or Officer. The Section clearly affords no
right against self-incrimination as by means of this provision the investigating
officer may simply ask the accused to produce the murder weapon. Even if the
accused is only required to produce some documentation which may be used to
attribute a motive to him this would be violate the spirit of the right against self-
incrimination. This provision would clearly be violative of Article 20(3) since it
would compel the accused to bring before the authorities documents or something
which may be used as evidence against him and thereby this section would be
compelling the accused to give evidence against himself. In this context it is
interesting to note Section 93 of the Code of Criminal Procedure. Section 93 (1)
(a) provides that where any court has reason to believe that a person to whom a
summons or order under section 91 or a requisition under sub-section (1) of
section 92 has been, or might be, addressed, will not or would not produce the
document or thing as required by such summons or requisition, it may issue a
search warrant. This provision too may be seen as violative of Article 20(3).
The above has been the subject of much controversy which the researcher will
attempt to resolve by means of looking at case law on the subject. In M. P. Sharma
v. Satish Chandra, the contention put forth was that a search to obtain document
for investigation into an offence is a compulsory procuring of incriminatory
evidence from the accused himself and is, therefore, hit by Article 20(3) as
unconstitutional and illegal. A specific reference was made to Sections 94 and 96
of the Criminal Procedure Code, 1898 (henceforth “the old Code”), both of which
are re-enacted in almost identical language as Sections 91 and 93 in the new Code,
in support of the submission that a seizure of documents on search is in the
contemplation of law a compelled production of documents. A Constitution Bench
of 8 Judges of the Supreme Court unanimously rejected this contention. It would
be appropriate at this point to cite a part of the judgement relevant to the issue at
hand :
“A power of search and seizure is in any system of jurisprudence an overriding
power of the State for the protection of social security and that power is
necessarily regulated by law. When the Constitution makers have thought fit not to
subject such regulation to constitutional limitations by recognition of a
fundamental right to privacy, analogous to the American Fourth Amendment, we
have no justification to import it, into a totally different Fundamental right, by
some process of strained construction. Nor is it legitimate to assume that the
constitutional protection under Article 20(3) would be defeated by the statutory
provisions for searches.”
It was concluded that a search under the enabling provisions of the Criminal
Procedure Code cannot be challenged as illegal on the ground of violation of
Article 20(3). It must be made clear that the question whether there is any element
of compulsion in issuing a summons to a person accused of an offence under
Section 91 (old-Section 94, to produce a document or thing in his possession or
power considered necessary or desirable for any inquiry, investigation or trial
under the Code of Criminal Procedure was kept open. In other words, the question
whether the expression &#8216;person&#8217; in Section 91 would comprehend
a person accused of an offence was left open.
In State of Bombay v. Kathi Kalu Oghad[7], the issue was whether obtaining
specimen handwriting or thumb impression of the accused would contravene the
constitutional guarantee in Article 20(3). In this case there was some controversy
about certain observations in M. P. Sharma case and, therefore, the matter was
heard by a Bench of 11 Judges. Two opinions were handed down, one by Chief
Justice Sinha for himself and 7 brother judges, and another by Das Gupta, J., for
himself and 2 other colleagues. In Sinha, C.J.&#8217;s opinion, the observation in
M. P. Sharma case  that Section 139 of the Evidence Act has no bearing on the
connotation of the word &#8216;witness&#8217; is not entirely well founded in
law. Immunity from self-incrimination as enacted in Article 20(3) was held to
mean conveying information based upon the personal knowledge of the person
giving the information and could not include merely the mechanical process of
producing documents in court which may throw a light on any of the points in
controversy, but which do not contain any statement of the accused based on his
personal knowledge. It was concluded that to be a witness is not equivalent to
furnishing evidence in its widest significance which would mean that production
of document or giving materials which may be relevant at trial to determine the
innocence or guilt of the accused would not come under the scope of the term
“give evidence”.
What was kept open in the Sharma Case, whether a person accused of an offence
could be served with a summons to produce documents, was decided when it was
observed that immunity from self-incrimination would not comprehend the
mechanical process of producing documents in court which may throw a light on
any of the points in controversy but which do not contain a statement of the
accused based on his personal knowledge.
The matter again came up before a Constitutional Bench of the Supreme Court in
Shyamlal Mohanlal v. State of Gujarat[8]. The question that was ultimately put
forth before the Supreme Court was whether the expression
&#8216;person&#8217; in Section 94(1) which is the same as Section 91(1) of the
new Code, comprehends within its sweep a person accused of an offence and if it
does, whether an issue of summons to produce a document in his possession or
power would violate the immunity against self-incrimination guaranteed by
Article 20(3). The majority opinion handed down by Sikri, J. ruled that Section
94(1) upon its true construction does not apply to an accused person.With regard
to the decision of the larger bench in the Kathi Kalu Oghad case the learned judge
said the following :
“There is one other consideration which is important. Art. 20(3) has been
construed by this Court in Kalu Oghad&#8217;s case to mean that an accused
person cannot be compelled to disclose documents which are incriminatory and
based on his knowledge. Section 94, Criminal Procedure Code, permits the
production of all documents including the above-mentioned class of documents. If
section 94 is construed to include an accused person, some unfortunate
consequences follow. Suppose a police officer &#8211; and here it is necessary to
emphasize that the police officer has the same powers as a Court &#8211; directs
an accused to attend and produce or produce a document. According to the
accused, he cannot be compelled to produce this document under Art. 20(3) of the
Constitution. What is he to do ? If he refuses to produce it before the Police
Officer, he would be faced with a prosecution under section 175, Indian Penal
Code, and in this prosecution he could not contend that he was not legally bound
to produce it because the order to produce is valid order if section 94 applies to an
accused person. This becomes clearer if the language of section 175 is compared
with the language employed in section 485, Cr.P.C. Under the latter section a
reasonable excuse for refusing to produce is a good defence. If he takes the
document and objects to its production, there is no machinery provided for the
police officer to hold a preliminary enquiry. The Police Officer could well say that
on the terms of the section he was not bound to listen to the accused or his
counsel. Even if he were minded to listen, would he take evidence and hear
arguments to determine whether the production of the document is prohibited by
Art. 20(3). At any rate, his decision would be final under the Code for no appeal or
revision would lie against his order. Thus it seems to us that if we construe section
94 to include an accused person, this construction is likely to lead to grave
hardship for the accused and make investigation unfair to him.”
Thus it is indisputable that according to the majority opinion the expression
&#8216;person&#8217; in Section 91(1), (new Code) does not take within its
sweep a person accused of an offence which would mean that a summons issued
to an accused person to produce a thing or document considered necessary or
desirable for the purpose of an investigation, inquiry or trial would imply
compulsion and the document or thing so produced would be compelled testimony
and would be violative of the constitutional immunity against self-incrimination.
Thus the Shyamlal case effectively changed the law in this regard without
expressly overruling the Kathi Kalu Oghad case by holding that “person” did not
include the accused for the purposes of Section 91.
Clearly, there appears to be some conflict between the Kathi Kalu Oghad case and
the one in the case of Shyamlal Mohanlal. The conflict however, though not
specifically dealt with was for all practical purposes resolved in the case of V.S
Kuttan Pillai v. Ramkrishnan[9]. Another problem that struck the Researcher was
that in the later case of Shivanandan v. State[10], it was clearly held that the word
“person” in this section does not include the accused. Now since the word
“person” does not include the accused under Section 91 of the Code, does this
mean that the court cannot issue a search warrant to search the premises of the
accused. Surely, such a conclusion would be taking the right against self-
incrimination too far since in this case, the accused is not doing anything to
incriminate himself as it is a third party which is searching the premises, the
accused not being required to do anything. This problem too was resolved by
looking at the decision in the V.S Kuttan Pillai case. The learned judge put forth
the proposition that the problem in practice however will not arise since Section
93 (1) (c) provides that where the Court considers that the purposes of any inquiry,
trial or other proceeding under this Code, will be served by a general search or
inspection, it may issue a search-warrant. Thus the premises of the accused may be
searched under this provision and it is not necessary to apply 93(1)(a) to the
accused.
If we now look at Sections 91 and 93 together, it can be seen that the accused
cannot be compelled to produce and document or thing but a search warrant may
be issued to search the premises of the accused or any area which the court feels
necessary. This serves to protect the accused’s right against self-incrimination, yet
ensuring that vital evidence will not go unfound or unused.
161. Examination of witnesses by police.—(1) Any police officer making an
investigation under this Chapter, or any police officer not below such rank as the
State Government may, by general or special order, prescribe in this behalf, acting
on the requisition of such officer, may examine orally any person supposed to be
acquainted with the facts and circumstances of the case.
(2) Such person shall be bound to answer truly all questions relating to such case
put to him by such officer, other than questions the answers to which would have a
tendency to expose him to a criminal charge or to a penalty or forfeiture.
(3) The police officer may reduce into writing any statement made to him in the
course of an examination under this section; and if he does so, he shall make a
separate and true record of the statement of each such person whose statement he
records.
The next section that requires to be looked at is Section 161. Clause (1) of this
provision deals with examination of “any person supposed to be acquainted with
the facts and circumstances of the case”. The first question which presents itself is
whether this phrase would include the accused. This phrase would not necessarily
include the accused in all situations. It is certainly not an impossibility that the
police may have by mistake accused an innocent man and while it is unlikely that
such a person would have no knowledge of the facts and circumstances of the case
altogether, it certainly is a possibility. The important part of the phrase in this
regarn would be the words “supposed to”. This clearly gives discretion to the
police to examine any person based on their suspicions and hence no real problem
arises in this regard.
It is clear from the language of clause (2) that the Constitutional right against self-
incrimination has been incorporated into this section by the legislators. The
landmark case with regard to this section is that of Nandini Sathpathy v. P.L
Dani[11].  The judgement given by Krishna Iyer, J is a very long one which in
addition to dealing with almost every issue which may arise as regards this section
also deals with constitutional issues as well as suggests guidelines for police
behaviour, hence the researcher will restrict himself to looking at the aspects
which concern Section 161.
To begin with “any person in Section 161 was held to include “persons then or
ultimately accused”. The Court relied on the decision of the Privy Council in
Pakala Narayan Swamy v. Emperor[12] which was affirmed by the Supreme
Court in Mahabir Mandal v. Bihar[13]. The language of the judgment is very
verbose, and H.M Seervai criticizes Krishna Iyer, J for the same.[14] In any case
in the Researcher’s opinion the court was correct in holding the above. In the
Researcher’s opinion the reason for holding “any person” to include the accused
would be firstly that the language used says <span style="text-decoration:
underline;">any person and this would lead to an inference that no group of
people were intended to be left out by the legislators. Secondly, along the lines of
the reasoning used by the court in the above mentioned cases, since it is an
established principle that the right against self-incrimination should be extended to
the accused not just at the time of trial but from the stage of investigation by the
police, Section 161, simply gives effect to the constitutional provision. The
Researcher also feels it would be appropriate at this point to reproduce the
operative part of the judgement in regard to whether the term “any person”
includes the accused.
“We hold that &#8216;any person supposed to be acquainted with the facts and
circumstances of the case&#8217; includes an accused person who fills that role
because the police suppose him to have committed the crime and must, therefore,
be familiar with the facts. The supposition may later prove a fiction but that does
not repel the section. Nor does the marginal note &#8216;examination of
witnesses by police&#8217; clinch the matter. A marginal note clears ambiguity
but does not control meaning. Moreover, the suppositious accused figures
functionally as a witness. &#8216;To be a witness&#8217;, from a functional
angle, is to impart knowledge in respect of a relevant fact, and that is precisely the
purpose of questioning the accused under Section 161, Cr. P.C. The dichotomy
between &#8216;witnesses&#8217; and &#8216;accused&#8217; used as terms
of art, does not hold good here.”
Thus, the section makes no distinction between one person acquainted with the
facts and circumstances of the case and another. It does not divide them into
classes of complainants, accused persons and witnesses, instead they are all
interrogates.[15]
Next, Krishna Iyer, J, said “The area covered by Article 20(3) and Section 161(2)
is substantially the same. So much so, we are inclined to the view, terminological
expansion apart, the Section 161(2) of the Cr. P.C. is a parliamentary gloss on the
constitutional clause.” The Researcher however feels it necessary to point out at
this stage that in fact Section 161 is actually wider than Article 20(3) since in
order to avail of the protection of Article 20(3) an individual would have to be a
person “accused of any offence” wheras Section 161(2) allows for any person
being examined by the police by virtue of Section 161(1) to avail the right against
self-incrimination. This is all the more important since the wording of Section
161(2) reads in such a manner that it allows a person to not answer a question on
the basis that it may “expose him to criminal charge” hence it is not necessary that
the statement must necessarily incriminate him in the case at hand i.e. if a
statement may cause him to be prosecuted under any section of any act he may
refrain from making it. This presents a problem in that anyone now may avail this
protection and refuse to answer a question. It would be very difficult for the
prosecution to prove that a person has refused to answer a question, the answer to
which would not expose him to any criminal charge. The problem is solved since
when a person is prosecuted under Section 179 of the IPC and chooses to use the
right against self-incrimination as a defense, once the prosecution proves that the
accused did not answer a question, the burden would shift on to the accused to
prove that if he had answered the question or made the statement that would have
exposed him to a criminal charge, penalty or forfeiture.[16]
In the Nandini Satpathy case, Krishna Iyer, J also went into the meaning of the
words “accused of an offence”, this however would not be within the purview of
this paper as the paper is restricted to looking at the right against self-
incrimination under the Criminal Procedure Code and the meaning of the term
“accused of an offence” is irrelevant in regard of Section 161 as it provides
protection for all people questioned by the police.[17]
Section 161(2) requires for all questions to be answered “truly”. This word was
included in the Criminal Procedure Code of 1882 following the decision in the
case of Empress v. Kassim Khan[18] where Garth, C.J held :
“Sections 118 and 119 (corresponding to Sections 160 and 161) are, in our
opinion, merely intended to oblige persons to give such information as they can to
police in answer to questions, which may be put to them, and they impose no legal
obligation on those persons to speak the truth , unless we import the word truly in
each section after the word ‘questions’ which we clearly have no right to do”
Subsequently in the Code of 1898, however the word truly was deleted. In the
present Code however it was re-introduced. The Law Commission in it’s Forty-
first report gave the following reason for recommending the addition of the word
“truly” into the section :
“We recognize that a legal obligation to speak the truth carries with it the liability
to punishment if the truth is not spoken. We think, however, that this is how it
should be. If it is necessary to provide that information must be supplied by every
person questioned by the police, the law must also require that the information is
not false or misleading. There seems no point in saying to every citizen in clear
terms that he must answer every question put to him by the police but need not tell
the truth”[19]
The Law Commission then went on to explain that the reason for the deletion of
the word truly was that there was excessive and unjustified prosecutions for
making false statements to the police. The Commission concluded by saying that
though that may have been a valid concern at that point of time it was not one any
longer.[20]
So the present position allows for a person to be prosecuted for not telling the truth
or for not answering a question put to them by the police under Section 161. It is
clear that a person cannot lie to the police with regard to any question even if it
were an incriminating one. So when asked an incriminating question a person may
either answer the question truthfully or remain silent. If the person chooses to
answer then, no protection is available to him as the law is only that he cannot be
“compelled” to be a witness against himself. A question answered voluntarily
would not be hit by this. Section 161 certainly does not provide for any
“compulsion”.
Coming back to the Nandini Satpathy case, the Supreme Court has held that the
accused person cannot be forced to answer questions merely because the answers
thereto are not implicative when viewed in isolation and confined to that particular
case. He is entitled to keep his mouth shut if the answer sought has a reasonable
prospect of exposing him to guilt in some other accusation actual or imminent,
even though the investigation under way is not with reference to that.[21]
Also, tendency to expose to a criminal charge is wider than actual exposure to
such charge. In determining the incriminatory character of an answer the accused
is entitled to consider- and the Court while adjudging will take note of- the setting,
the totality of circumstances, the equation, personal and social, which have a
bearing on making an answer substantially innocent but in effect guilty in import.
However fanciful claims, unreasonable apprehensions and vague possibilities
cannot be the hiding ground for an accused person. He is bound to answer where
there is no clear tendency to incriminate.[22]
Next the court said that “compelled testimony” has been considered as evidence
procured not merely by physical threats of violence but by pscychic torture,
atmospheric pressure, environmental coercion, tiring interrogative prolixity,
overbearing and intimidatory methods and the like. Frequent threats of prosecution
if there is a failure to answer may take on the complexion of undue pressure
violating Article 20(3). Legal penalty may by itself not amount to duress but the
manner of mentioning it to the victim of interrogation may introduce an element of
tension and tone of command perilously hovering near compulsion. Thus if there
is any mode of pressure subtle or crude, mental or physical, direct or indirect, but
sufficiently substantially applied by the policeman for obtaining information from
the accused strongly suggestive of guilt, it becomes compelled testimony violative
of article 20(3).[23]
Before concluding with this section a note on the evidentiary value of statements
made to the police under Section 161 is due. A statement recorded by a police
officer during investigation is neither given an oath nor is it tested by cross-
examination. According to the law of evidence such statement is not evidence of
the facts stated therein and therefore it is not considered as substantive evidence. It
is considered no evidence to initiate cases under Sections 194 and 195 of the
Indian Penal Code. However, if the person making the statement is called as a
witness, at the time of trial, his former statement, according to the normal rules of
evidence could be used for corroborating his testimony in court for showing how
his former statement was inconsistent with his deposition in court with a view to
discredit him.[24]
Sections 162 and 163 also provide some sort of protection of the right against self-
incrimination.
Section 163(1) lays down an embargo on the investigating authorities using any
inducement, threat, or promise to the maker of the statement which might
influence his mind and lead him to suppose that thereby he would gain any
advantage or avoid any evil in reference to his conduct as disclosed in
proceedings.[25]
The Right against Self-Incrimination during Trial
In the previous chapter, the researcher looked at the various sections in a
chronological fashion. The sections discussed in this chapter will not be looked at
chronologically since it would better serve the purposes of this project to examine
some of the later sections first.
315. Accused person to be competent witness.—(1) Any person accused of an
offence before a Criminal Court shall be a competent witness for the defence and
may give evidence on oath in disproof of the charges made against him or any
person charged together with him at the same trial:
Provided that—
(a)   he shall not be called as a witness except on his own request in writing;
(b)   his failure to give evidence shall not be made the subject of any comment by
any of the parties or the Court or give rise to any presumption against himself or
any person charged together with him at the same trial.
(2) Any person against whom proceedings are instituted in any Criminal Court
under section 98, or section 107, or section 108, or section 109, or section 110, or
under Chapter IX or under Part B, Part C or Part D of Chapter X, may offer
himself as a witness in such proceedings:
Provided that in proceedings under section 108, section 109 or section 110, the
failure of such person to give evidence shall not be made the subject or any
comment by any of the parties or the Court or give rise to any presumption against
him or any other person proceeded against together with him at the same inquiry.
This section is clearly envisages the right against self-incrimination. In a sense it
goes further- it gives the accused the right to silence. The prosecution cannot insist
on the accused testifying and hence will have no opportunity to cross-question the
accused unless the accused voluntarily takes the stand. Further it is important to
note that if the accused does not take the stand as a witness there will be no way to
admit any statements made by the accused to the police under Section 161 as such
evidence can only be used to corroborate or contradict. However, if the accused
does choose to take the stand as a witness in his own defense, he will be under
oath and hence when the prosecution cross-examines him, he will be bound to
answer all questions truthfully otherwise he will be subject to prosecution under
Sections 179 and 181 of the Indian Penal Code.
The right is further protected by the provisos to clause (1) and (2) which ensure
that no emphasis is placed on the party’s refusal to testify and to ensure that
lawyers cannot use the refusal to testify as something which would indicate guilt
to a judge. In reality however, since in India we do not have the jury system and
judges are supposed to be acquainted with the law, the non-testifying of the
accused would certainly go a small way in influencing the mind of the judge in a
manner adverse to the case of the accused.
If an accused person after having given his statement-in-chief, refuses to be cross-
examined, the court may expunge his statement. Further, the accused would incur
liability under Section 178 of the Indian Penal Code.
316. No influence to be used to induce disclosure.—Except as provided in sections
306 and 307 no influence by means of any promise or threat or otherwise, shall be
used to an accused person to induce him to disclose or withhold any matter within
his knowledge.
This section provides an added safeguard. It ensures that no threat may be used to
compel a person to give evidence. It also disallows any promise to induce the
person to give evidence except as provided for in sections 306 and 307 of the
code. This provision is thus clearly wider than the constitutional provision as a
promise of some reward in order to get a person o testify against himself would
certainly not fall within the meaning of the word “compel” but would be
disallowed by this section.
313. Power to examine the accused.—(1) In every inquiry or trial, for the purpose
of enabling the accused personally to explain any circumstances appearing in the
evidence against him, the Court—
(a)  may at any stage, without previously warning the accused put such questions
to him as the Court considers necessary;
(b)  shall after the witnesses for the prosecution have been examined and before he
is called on for his defence question him generally on the case:
Provided that in a summons-case where the Court has dispensed with the personal
attendance of the accused, it may also dispense with his examination under clause
(b).
(2) No oath shall be administered to the accused when he is examined under sub-
section (1)
(3) The accused shall not render himself liable to punishment by refusing to
answer such question, or by giving false answers to them.
4) The answers given by the accused may be taken into consideration in such
inquiry or trial, and put in evidence for or against him in any other inquiry into, or
trial for, any other offence which such answers may tend to show he had
committed.
The first thing to be looked at is whether this section is consistent with article
20(3) of the Constitution. There is no direct compulsion on the accused to answer
a question under this section. Clause (3) of the section makes it clear that the
accused is not bound to answer the questions. This section in fact goes even
beyond the right against self-incrimination during investigation by police provided
by Section 161(2) of the Code. In the latter provision a person only has the right
not to answer the question. He can still be prosecuted for giving a false answer.
While being examined under Section 313(3) however the accused can not even be
punished for giving a false answer.[26] The reason for this is probably because
section 161 serves primarily to help in the investigative process and not to prove
guilt of the accused. Hence a person is allowed to stay silent but not give a false
answer which would impede the investigation. Further since, the silence of the
accused will not be presented before the court, there is no need to offer him
protection for making a false statement.[27] Section 313, however comes into play
during trial where keeping silent may in itself create an adverse impression on the
judge hence the accused is given protection against prosecution even if he were to
make false statements. When an accused is examined under Section 313, he is not
a witness as he is not under oath. The word “accused” in Section 313, refers only
to a person over whom the court is exercising jurisdiction over, as such.
It can be argued that there exists an indirect compulsion resulting from the fact
that risk of his refusal to answer may be taken as a circumstance against him.
However it was held in the case of Roshanlal v. State[28] that this would not fall
within type of compulsion which comes within the prohibition of the
constitutional provision.[29] It was also held the negative attitude of silence or
submission on the part of the accused is outside the scope of testimony
compulsion envisaged in Article 20(3) of the Constitution. The Court however
also made it clear that the section should not be seen as authorizing inquisitorial
interrogation of the accused. The section is not intended to enable the court to
cross-examine the accused for the purpose of trapping him or beguiling him into
an admission of a fact which the prosecution has failed to establish.
An evasive answer by the accused in his statement under this Section is also a
circumstance which can go against him in a criminal case. In the case of J.V Wagh
v. State of Maharashtra[30], the answers given by the accused under section 313
were used as corroborative evidence to convict him. It would be useful here to
examine a part of the judgment given by the trial judge.
“Again corroboration is forthcoming to the statement of the prosecutrix by the
injuries of the appellant. As mentioned earlier, the same day at 6.45 p.m. the
appellant was medically examined and an abrasion was found on his penis by the
doctor. In statement recorded under Section 313 of the Cr.P.C., it was put to the
appellant as to how he had got the abrasion and he replied, &#8220;I do not know
about this.&#8221;
Again a clinching corroboration is forthcoming by the fact that on the pant of the
appellant, which was recovered by the Investigating Officer under a panchanama,
a human blood was found by the Chemical Analyst. This was put to the appellant
in his statement under Section 313 of the Cr.P.C. and the gave he stock answer
&#8220;I do not know about this.
An evasive answer by the accused in his Statement under Section 313 of Cr.P.C. is
also a circumstance which can go against him in a criminal case. There should
have been some explanation from the side of the appellant as to how he got the
injury on his penis and human blood on his pant. The failure on his part to offer
the same is also a circumstance, which goes against him.”
The High Court upheld the view taken by the trial judge.
The degree of weight to be attached to the silence of an accused person depends
on the nature of the case. Many factors must be taken into account in assessing it
and no hard and fast rule can be laid down.[31] It is interesting to compare the
present code with the code of 1898 in this regard. The provisions in their entirety
are quite similar. Clause (2) of the old code however reads as follows:
“The accused shall not render himself to punishment by refusing to answer such
questions, or by giving false answers to them; but the Court and the jury (if any)
may draw such inference from such refusal or answers as it thinks just”
The present code however does not mention anything about drawing an inference
based on silence. Since such a provision did exist in the old code, the legislators
must have had some reason for having omitted the line about drawing an
inference. Hence the Researcher proposes that the reason for having left this
statement out is that the legislators intended for the court not to make any
inference based on silence of the accused while being examined. This would give
full expression to the right to silence which would not really be done if an adverse
inference could be drawn based on it. A reading of the 41st Law Commission
Report however, indicates that the Commisssion was of the view that if there was
an express provision that the Court may draw any inference that it deems just from
the silence of the accused, it would be obvious that the only inference that could
be drawn would be an adverse one and hence the entire provision would be
violative of article 20(3). Though the Supreme Court had not yet ruled on the
issue, and two High Courts had clearly said that the provision was not violative of
article 20(3) since the possibility of an adverse inference being drawn would
certainly not amount to “compulsion” in any sense, the Commission suggested the
omission of this part of the provision. The report of the Commission is somewhat
contradictory in this regard. It says firstly that the provision is not violative of
article 20(3) a laid down by the two High Courts. It then goes on to examine the
section and concludes that it could be violative of article 20(3) and finally
suggested the omission of that part of the section, giving the reasoning that the
judges would be free to make any inferences anyway and hence there is no need
for there to exist an explicit provision stating the same.[32]
The present position is that the fact of silence of the accused may, with all other
circumstances of the case, be taken into account in a proper case, but even then
only if it is clearly bourne in mind that an accused person always has the right to
remain silent if he wishes.[33] The silence of the accused must never be allowed
to any degree to become a substitute for proof by the prosecution of it’s case.[34]
The real importance of this section is that there is a duty cast on the Court to
question the accused properly and fairly so that it is brought home to the accused
in clear words the exact case that the accused will have to meet, and thereby an
opportunity is given to the accused to explain such a point.[35] The section for a
moment, brushes aside all counsel, all prosecutors, all witnesses and all third
parties. It seeks to establish direct dialogue between the court and the accused  for
the purpose of enabling the accused to give his explanation. [36]
A critical analysis of the suggestions of the Malimath Committee Report on the
Right to Silence
The Committee, headed by Justice V.S. Malimath, former Chief Justice of the
Karnataka and Kerala High Courts, had the task of examining the fundamental
principles of criminal law so as to restore confidence in the criminal justice
system. This involved reviewing the Code of Criminal Procedure (CrPC), 1973,
the Indian Evidence Act, 1872, and the Indian Penal Code (IPC), 1860. The
government has maintained silence on the implementation of the report.
Said Colin Gonsalves, a lawyer from the Human Rights Law Network:
&#8220;The recommendations are like a sugar-coated pill. Though there are a few
welcome changes, the core recommendations are dangerous and will lead to
reconstructing criminal law. The report has not been circulated and most of the
participants in the conference, including senior Judges and lawyers, have not been
able to get hold of a copy.&#8221; The 158 recommendations of the committee,
arrived at after examining several national systems of criminal law, especially the
continental European systems, essentially propose a shift from an adversarial
criminal justice system, where the respective versions of the facts are presented by
the prosecution and the defence before a neutral judge, to an inquisitorial system,
where the objective is the &#8220;quest for truth&#8221; and the judicial officer
controls the investigation of offences.[37]
The Researcher shall now proceed to examine the various recommendations made
by the committee which are relevant to this paper. The Committee recommends
that &#8220;the court should have the freedom to question the accused to elicit
the relevant information and if he refuses to answer, to draw adverse inference
against the accused&#8221;. The Committee is of the opinion that if this
questioning is done &#8220;without duress&#8221;, the right to silence available
to the accused under Article 20(3) of the Constitution of India would be respected
as would the procedural provision in the CrPC (section 161(2)). In Para 3.40 of the
Report, the Committee states that the drawing of adverse inference does not offend
the right granted by Article 20(3), as &#8220;it does not involve testimonial
compulsion.&#8221; [38]
The Committee felt that while respecting the right of the accused a way must be
found to tap this critical source of information. The Committee feels that without
subjecting the accused to any duress, the court should have the freedom to
question the accused to elicit the relevant information and if he refuses to answer,
to draw adverse inference against the accused.
The Committee felt that at present the participation of the accused in the trial is
minimal. He is not even required to disclose his stand and the benefit of special
exception to any which he claims. This results in great prejudice to the prosecution
and impedes the search for truth. The Committee has therefore felt that the
accused should be required to file a statement to the prosecution disclosing his
stand. For achieving this, the following recommendations are made:-
( <img src='http://legalsutra.org/wp-includes/images/smilies/icon_cool.gif' alt='8)'
class='wp-smiley' /> Section 313 of the Code may be substituted by Sections 313-
A, 313-B and 313-C on the following lines:
a) 313-A: In every trial, the Court shall, immediately after the witnesses for the
prosecution have been examined, question the accused generally, to explain
personally any circumstances appearing in the evidence against him.
b) 313-B(1): Without previously warning the accused, the Court may at any stage
of trial and shall after the examination under Section 313-A and before he is called
on his defence put such questions to him as the court considers necessary with the
object of discovering the truth in the case. If the accused remains silent or refuses
to answer any question put to him by the court which he is not compelled by law
to answer, the court may draw such appropriate inference including adverse
inference as it considers proper in the circumstances.
c) 313-C(1): No oath shall be administered when the accused is examined under
Section 313-A or Section 313-B and the accused shall not be liable to punishment
for refusing to answer any question or by giving false answer to them.
The answers given by the accused may be taken into consideration in such inquiry
or trial, and put in evidence for or against him in any other inquiry into, or trial
for, or any other offence which such answers may tend to show he has committed.
As a state party to the ICCPR, India is obliged to respect Article 14(3)(g) which
refers to various &#8220;minimum guarantees&#8221; and states that everyone
has a right not to be compelled to testify against himself or to confess guilt.
Similar provisions are also found in Principle 21 of the UN Body of Principles for
the Protection of All Persons under any form of Detention or Imprisonment and
Article 61(1)(g) and 67(1)(g) of the Rome Statute of the International Criminal
Court. The prohibition against compelling an accused to testify or confess guilt is
broad. It prohibits the authorities from engaging in any form of coercion, whether
direct or indirect, physical or psychological. It prohibits torture and cruel, inhuman
and degrading treatment. It prohibits treatment, which violates the right of
detainees to be treated with respect for the inherent dignity of the human person. A
leading commentator on the ICCPR observes that even the imposition of judicial
sanctions to compel the accused to testify would be prohibited.[39]
Since at no time does the Committee seek to challenge the constitutional right, the
issue thus remains as to what constitutes compulsion. The Committee&#8217;s
position that drawing adverse inference when the accused remains silent is not
&#8220;compulsion&#8221; ignores the object of the right and undermines the
spirit of the fundamental right to silence.
In its 180th report issued in May 2002, the Law Commission of India has stated
unequivocally that any move to amend the provisions of the CrPC (in the manner
that the Malimath Committee has suggested) would be &#8220;ultra vires of
Article 20(3) and Article 21 of the Constitution of India&#8221;. In its report, the
Law Commission noted:
&#8220;Apart from the above statutory consideration, there is a constitutional
implication if we take into account the observations of the dissenting Judges in
Adamson vs. California (1947) 332 US 46&#8230;If you cannot compel an
accused to make a statement against himself, you cannot draw any inference
against him because he remains silent, since that would obviously oblige him to
speak, rather than remain silent.
To draw an adverse inference from the refusal to testify is indeed to punish a
person who seeks to exercise his right under Art. 20(3). Just as no inference of
guilt can be made from the fact that the accused is invoking the protection of Art.
20(3), so no inference of guilt can be made from the mere fact that he refuses to
answer or to make a statement.&#8221;
The principle against self-incrimination and adverse inferences is considered a
principle of fundamental justice in Canada and is protected by the 5th and 14th
amendments of the US Constitution. Similar provisions also exist in New Zealand
and South Africa. In Ireland the right to silence has been guaranteed in Article 38
of the Constitution. However there are limited exceptions in relation to certain
offences against the state and drug trafficking. In order for such adverse inference
to be authorized though, the accused must be warned at the time of questioning
what the effect of such silence might be. In the UK, the right against adverse
inferences has been eroded in practice. However, it is still subject to stringent
restrictions and the UK has been criticized by UN human rights mechanisms in
this regard.[40]
The right to silence and the right against self-incrimination have been watered
down quite considerably by interpretation. The defendant, if he so desires, can be
a witness in his trial. His confession outside the court either to a police officer
under POTA or the magistrate is admissible. He is expected to explain every
adverse circumstance to the court at the conclusion of evidence with the court
having the jurisdiction to draw adverse inference while appreciating the evidence
against him.[41]
Another problem as regards the suggestions made by the Malimath Committee, is
that since as per the sections which are to replace the old Section 313, an adverse
inference may be drawn from silence but the accused is still protected from
prosecution if he gives a false answer. This would simply encourage the accused
to instead of remaining silent when an incriminatory question is asked, to lie. This
in no way would aid the quest for truth.
The Committee seems to be under the misapprehension that the presumption of
innocence of the accused, his silence and the privilege against self-incrimination
have been principally responsible for the increase in the crime rate in the country.
This appears to be an unduly exaggerated picture of the failure of the criminal
legal and justice system.[42]
Further, the Researcher spoke a to a practicing defense counsel, Mr Maheshwara
who was of the view that the changes proposed by the Malimath committee would
have little or no effect practically since when an accused is examined under
Section 313, in reality he almost never stays silent and if he does then it would
amount to bad strategy. The nature of the examination under 313 is such that the
judge simply puts the various pieces of evidence submitted by the prosecution to
the accused. The accused can simply deny them or he can offer an explanation.
Either way staying silent would not be a smart option since the court in all
likeliness will draw an adverse inference from this. It would be simpler and
smarter to deny all proofs put forth by the prosecution.
Conclusion
Through the course of this paper the researcher has looked at whether the right
against self-incrimination has been incorporated into the Criminal Procedure Code
and to what extent. Various provisions of the code have been analyzed in relation
to the Constitutional guarantee provided in article 20(3) and as to whether they are
in accordance with. The Researcher would now like to conclude by looking at
whether the Right to Self-Incrimination should exist in the Indian Criminal Justice
system.
The object of any legal system is ensure justice. In order to do it there is in the
words of Justice Malimath “a quest for truth”. The problem is that this idea of
justice is not a simple one in itself and the complexities of the societies that we
live in do not make it’s meting out a simple task. Further society is stagnant, our
norms and values are in a constant state of change. It is thus necessary for us to
consistently analyze our justice system to see if it is serving the interests of the
present society. In this regard, the right against self-incrimination was born at a
time where there were trials by ordeal and such. The purpose of the right was to
ensure that the authorities do not beat or “compel” an innocent man to confess to a
crime that he did not commit. In those times torture and the like during trials were
not uncommon and hence the need for this right.
In the present day however, there is no concept of trial by ordeal. There is
certainly no torture during a trial. The Researcher however will concede that
violent means are often employed by the Indian Police. For this, reason it is the
submission of the Researcher that the right against self-incrimination should
remain in the stage of police interrogation. There may however arise a time when
we as a society may place enough trust in our police to remove this right
altogether. The millions of cases of ongoing police brutalities however indicate
that that time is not now.
During the trial however, the Researcher recommend the removal of the right
against self-incrimination altogether. This would involve two changes in the
Criminal Procedure Code. Firstly the removal of the part of Section 313 which
allows a person to refrain from answering a question or to give a false answer and
the amending of Section 315 to the effect that the prosecution be allowed to call
the accused to the witness stand and examine him under oath. During trial, the
accused should not be given the option to stay silent or answer a question falsely.
The purpose of the trial is to determine the truth and much may be found out from
the testimony of the accused. Though it may be true that the removal of the right
against self-incrimination may not ensure that the accused tells the truth when he
takes the stand or is being examined, at least it will ensure that if it is found that
the accused is lying, he will be punished for the same. It is the Researcher’s
submission that if for a second we put away the plethora of International
Covenants and human rights laws which have evolved over the past fifty years and
look simply at what effect the removal of the right against self-incrimination
would have on the criminal justice system, we would find that it would benefit the
ends of justice. The suggestions made by the Researcher here, go much farther
than the recommendations made by the Malimath Committee Report which the
Researcher has criticized. It is doubtless that the implementation of the
suggestions made above will run contradictory to various international covenants,
however it is important to remember that the most important thing is justice and as
long as  justice is being served covenants and principles adopted by society over
the years are of no importance.
Bibliography
<hr size="1" />[1] Edward W. Cleary , McCormick on Evidence, (3rd Edition,
Minnesota : West Publishing Co., 1984), P. 279.
[2] See Generally Ibid at 279 – 282.
[3] H.M Seervai, Constitutional Law of India : A Critical Commentary, (4th
Edition, Vol. 2, Bombay : N.M Tripathi Publishers, 1993), P. 106.
[4] Kirtiman Singh, “The Right against Self-Incrimination”, 2000 Cri. L. J. 50.
[5] AIR 1954 SC 300
The facts of the case are exceedingly complicated hence the researcher will
proceed to explain just the facts which are relevant to this paper. The District
Magistrate ordered investigation of the offenses and issued warrants for
simultaneous searches at as many as 34 places. The searches were made on the
25th November, 1953, and subsequent days and a voluminous mass of records was
seized from various places. The petitioners pray that the search warrants may be
quashed as being absolutely illegal, and ask for return of the documents seized.
The contentions raised are that the fundamental rights of the petitioners under
article 20(3) have been violated by the searches in question.
[6] Seervai 1062.
[7] AIR 1961 SC 1808
[8] AIR 1965 SC 1251
The relevant facts of the case are as follows. In that case appellant Shyamlal
Mohanlal was a licensed money-lender and according to the provisions of the
relevant Money Lending Act and Rules he was under an obligation to maintain
books. He was prosecuted for failing to maintain books in accordance with the
provisions of the Act and the Rules. The police prosecutor in charge of the case on
behalf of the prosecution presented an application requesting the court to order the
appellant Shyamlal Mohanlal to produce daily book and ledger for a certain year.
Presumably it was a request to issue summons as contemplated by Section 94 of
the old Code. The learned Magistrate rejected the request on the ground that in so
doing the guarantee of immunity from self-incrimination would be violated.
[9] MANU/SC/0285/1979
The relevant facts of the case are as follows. A complaint was filed by the first
respondent Ramakrishnan against the petitioner and 5 others for having committed
offences under Sections 403, 409, 420 and 477-A read with Section 34, Indian
Penal Code before the sub-divisional Magistrate. Original accused 1, and accused
2 the present petitioner, were respectively President and Secretary of the Sabha
and original accused 3 to 6 were described as Managers of the Institution. The
complainant made an application requesting the Magistrate to issue a search
warrant to search the office premises of the Sabha and seize the books, documents,
etc. described in the application, if found therein. On the very day the Magistrate
issued a search warrant and in fact it was executed and certain books, vouchers
and papers were produced before the Court. The present petitioner (original
accused 2) requested the learned Magistrate to recall the warrant and to return the
books and documents seized under the authority of the search warrant. The
Magistrate was of the opinion that no search warrant could be issued under
Section 91 of the Code of Criminal Procedure, 1973 and accordingly directed that
anything recovered pursuant to the search warrant issued by him be returned to the
person from whom the same were recovered. The order was, however, to take
effect after the decision on the requisition which was by then received from the
Income Tax Officer under Section 132-A of the Income Tax Act. First respondent
(original complainant) preferred a revision application to the High Court of Kerala
questioning the correctness of the decision of the Magistrate and the claim to
constitutional immunity of the accused from search and seizure of books,
documents. The High Court relying on earlier decisions of the Supreme Court as
well as those bearing on the Fifth Amendment to the American Constitution held
that the provisions relating to search contained in Section 93(1) of the Criminal
Procedure Code, 1973, are not hit by Article 20(3) of the Constitution.
[10] 1978 BLJR 726
[11] AIR 1978 SC 1025
The facts of the case are as follows. . Smt. Nandini Satpathy, a former Chief
Minister of Orissa and one time minister at the national level, was directed to
appear at the Vigilance Police Station, Cuttack, to be examined in connection with
a case registered against her by the Deputy Superintendent of Police, Vigilance,
Cuttack, under Section 5(2) read with Section 5(1)(d) and (e) of the Prevention of
Corruption Act and under Sections 161/165 and 120B and 109 IPC. On the
strength of this first information, in which the appellant, her son and others were
shown as accused persons, investigation was commenced. During the course of the
investigation she was interrogated with reference to a long string of questions,
given to her in writing. Contrary to the express provisions of Section 160(1) of the
Code, namely “that no woman shall be required to attend at any place other than
the place in which the woman resides”, the Appellant was called upon to attend at
a Police Station. The Appellant refused to answer any question claiming the
protection of Article 20(3). On her refusal to do so, she was charged before a
Magistrate for offences under S. 179 of the Indian Penal Code for refusing to
answer questions put by a person in lawful authority. Her defense that she was not
obliged to answer questions as they were incriminatory was rejected by the High
Court and the matter came before the Supreme Court in appeal.
[12] AIR 1939 PC 47
[13] (1972) 1 SCC 748
[14] Seervai 1071
[15] V.R Manohar &amp; W.W Chitley, AIR Commentaries: The Code of
Criminal Procedure, 1973, (8th Edition, Volume 2, Bombay : The All India
Reporter Ltd.), P. 74.
[16] Section 39 of the Code puts the burden of proof on the accused to prove the
“reasonable excuse” for not giving information that they may have about the
commission or intent to commit any of the offences mentioned in the section. A
similar stand may be taken in relation to burden of proof when the right against
self-incrimination is invoked as a defense.
The only problem with such a stance is that if the accused is forced to explain why
answering a question would incriminate him, it would serve to give the police the
information they were trying to obtain. This would not be admissible in court but
this is only the stage of investigation and hence the primary purpose which would
be to obtain information to help in the investigation would be served.
[17] The only reason why this would even be an issue is if Article 20(3) is to be
accorded to a person before the stage of trial (i.e. during investigation by the
police) then if the right is violated during questioning under 161, the person whose
right is violated can go straight to the Supreme Court or the High Court under
Articles 32 and 226 of the Constitution respectively.
[18] (1881) 7 Cal 121 (FB) cf. V.R Manohar P. 74
[19] Manohar 75
[20] Manohar 75
[21] Kelkar 135
[22] Kelkar 135
[23] Kirtiman Singh P. 52
[24] Kelkar  139
[25] Kelkar 148
[26] Clause (2) makes it clear that no oath is to be applied to the accused while
being examined under Section 313 and Clause (3) clearly states that the accused
shall not render himself liable to punishment for not answering truthfully while
section 161(2) provides that the accused is bound to answer all questions
truthfully.
[27] TALK ABOUT USING 161, 313  TOGETHER
[28] 1975 Cr.L.J 1866
The judgement is a small one and deals only with issue of the constitutionality of 
the concerned sections. The facts of the case itself are not given in the judgement.
[29] K.D Shah 1237
[30] 1996 Cr.L.J 1589 (Bom)
The facts of the case are as follows. The prosecutrix, Ashabai Khavale was an 8
year old who was a resident of Tamaswadi, Taluka Sakri, District Dhule. The
appellant was also a resident of the aforesaid village. On 27-7-1994 at about 1.00
p.m., the prosecutrix had gone to a grocery shop for purchasing oil. While on way
to the grocery shop, the appellant caught her and took her to a flour mill.
Thereafter, he removed her nicker and committed rape on her. She cried as a
consequence thereof; but nobody came to her rescue. Thereafter the prosecutrix
came to her house and went to sleep outside. After sometime, her mother
Sushilabai Khavale awakened her and enquired from her as to what was the
matter; whereupon she replied that the appellant had raped her. Sushilabai
Khavale went to the house of the appellant and the appellant&#8217;s brother
Daulat lifted her; threw her on the gorund; and also assaulted her. Meanwhile one
Yashwant came and asked Daulat whether he wanted to kill Sushilabai;
whereupon Daulat left her. The same day, Sushilabai along with her husband,
police patil, etc. came to police station Sakri and lodged an F.I.R. there. After his
arrest, the appellant was sent for medical examination. He was medically
examined by Dr. Sonawane (P.W. 6) on 27-7-1994 at 6.45 p.m. Dr. Sonawane
found that the appellant had sustained an abrasion on his penis of the size of 1 cm
x 1/4 cm x 1/4 cm. He also found that a small amount of smegma was present
around the corona glandis. He opined that the appellant had committed sexual
intercourse.
[31] K.D Shah 1250
[32] The 41st Report of the Law Commission of India, P. 207-209.
[33] For the puposes of this section there is no requirement that the answer to a
question would be incriminatory in order for the accused not to answer it. The
accused need not answer a question if it would cause him embarrassment, cause
him to reveal information which he for any reason may not want to reveal or
simply because he does not feel like. Of course it would not be prudent for the
accused to not answer questions as there may be an adverse presumption against
him as a result.
[34] M.R Mallick, B.B Mitra on the Code of Criminal Procedure, 1973, (16th
Edition, Volume 2, Calcutta: Arup Kumar De Kamal Law House, 1987), P. 461
[35] K.D Shah 1238
[36] Kelkar 408.
[37] Siddarth Narrain, Rights and Criminal Justice, Frontline, Volume 20, August
30- September 12, 2003.
[38] The Committee on Reforms of Criminal Justice Sysytem Report, March
2003.
[39] Amnesty International, India: Report of the Malimath Committee on Reforms
of the Criminal Justice System: Some observations, available at &lt;<span
style="text-decoration:
underline;">http://web.amnesty.org/library/Index/ENGASA200252003?
open&amp;of=ENG-IND&gt;, visited on (24/07/2004).
[40] Amnesty
[41] K.G. Kannabiran, On breaking the Silence of the Accused, The Hindu,
Sunday, Dec 08, 2002.
[42] K.G. Kannabiran, Safeguard the Rights of the Accused, PUCL Bulletin,
January, 2003.