CHAPTER - Ill CONSTITUTIONAL FRAME WORK PROTECTING LIBERTY OF THE ACCUSED The discovery and punishment of crime are functions which produce a dramatic preponderance of .power on the part of the State. Against the resources of the state, the accused stands relatively poor and alone.' In fact, many of the rights liberties and immunities which the law declares and the Constraints on police and prosecution which their protection imposes originated not in any concern for individual rights so much as in response to the relatively weaker position of the defendant vis-a-vis the Crown.’ It is to prevent abuse by officials and others who wield power in the criminal system, that a nuraber of rights are conferred upon an accused." There are distinctly two types of rights conferred upon an accused - those that aim to counter balance his disadvantageous position e.g. the right to silence and the right not to be subjected to torture and those which aim to protect certain principles and which remain unaffected by all factual contingencies e.g. the nulla paean sine lege’ principle, or the presumption of innocence and so on. These very rights assume a different character in the administration of criminal justice wherein we meet right asserted in the character of human rights and also rights asserted in the name of faimess and natural justice. Perhaps the most widely accepted example of a human tight Lord Macdermoth, “Protection of Power under English Law’, 1957, P. 13 Stephen, J.F., "A History of English Criminal Law’ Vol. |, 1883. Stephen argues that itis proper for the tules of evidence and procedure to afford great protection to the individual in order to counter balance the greater resources of the prosecution, Keele, The Sociology of Law, 1976, pp. 185 to 187. “The principle against ex-post facto laws. Ashworth, A.J., “Concopts of Criminal Justice’ 1979, Cr. LR. 412 at 416. 170)would be “the right not to be subjected to torture”. This rights is said to here in the individual qua human being. Like the right to life, it is regarded as a right Which should be recognized in every human being, irrespective of the position in which he finds himself. More numerous are the procedural rights based on fairness and natural justice, concepts which have traditionally found their expression in such procedures as nulla peona sine lege, the presumption of innocence, the right to a fair trial, the presumption of innocence, the right to a fair trial, the procedures of natural justice and the double jeopardy rule. Constitutions of the world today give recognition to these rights by way of express legislation. The essence of such legislation is that no individual should be liable to be treated in certain ways. The context of the administration of criminal justice assumes that the State or its agents are bound not treat an individual in certain ways to exercise power over him in the name of crime control.” But the whole point of rights is that respect for them is thought worthwhile in principle. And when they are accorded recognition in the constitution of a State, it surely implies that the right cannot be taken away merely because it would benefit a majority of the society by improving crime control. The Indian Constitution accords recognistion to the human rights of an accused in Articles 20, 21 and 22. The aim of including them as fundamental rights is that certain elementary rights such as the right to life, liberty, freedom of speech and so on should be regarded as inviolable under all conditions and that he shifting majority in the legislation of the country should not have a free hand in interfering with these fundamental rights. Wolfgang and Radzinowica : “Crime & Justice’ Vol. The Criminal in the Aims of the Society, p. 1 AK. Gopalan, AIR, 1950 SC 27, (71)|- Immunity from Retrospective Criminal Legislation : It has always been thought to be of primary importance that a man should be able to know in advance what conduct is and what is not criminal, particularly when punishments and penalties are involved. A conduct may not be an offence today but it future due to a change in the circumstances that conduct may be declared as an offence by the State. Ex-post facts laws are laws which punish what had been lawful when done. There can be no doubt’, said Jagannath Das J., “as to the paramount importance of the principle that offences and punish them are bad as being highly inequitable.” An ex-post-facto law is a law that penalises retrospectively acts already done or increase the penalty for such acts. Article 20 (1) imposes a limitation on the law-making power of the legislature, Cl (i) of Article 20 runs as follows. “No person shall be convicted of any offence except for violation of a law in corce at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted by the law in force at the time of the commission of the offence.” Ordinarily, a legislature can make prospective as well as retrospective laws but clause (i) prohibits the legislature to make retrospective criminal law. A law is said to be prospective when it affects sets done or omission made after the law comes into effect. The majority of laws are prospective in their operation But some times the legislation may give retrospective effect to a law by bringing within its operation not only future acts but also acts or omission committed “ Chabra, K.0. : ‘Rights of an Accused under the Law’ 22 vil, 371 (1980), “Rao Shiv Bahadur Singh v. State of Vindya Pradesh, AIR 1983 SC 394. 172]even prior to the enactment of such a law. Though ordinarily a legislation can enact prospective as well as retrospective laws, according to the present clause a legislation shall not be competent to make a criminal law retrospective so as to prejudicially affect persons who have committed such acts prior to the enactment of that law.” The article does not prohibit the imposition of a civil liability retrospectively. This clause of Articles 20 embodies the maxim ‘Nulla peona sine elege’ which expresses the idea that no man shall be made to suffer except for a breach of the criminal law which shall be enacted before hand in precise and definite terms. The first part of clause (1) lays down that no person shall be convicted to any offence except for the violation of a law in force at the time of the commission of the act charged as an offence. This means that a person can only be convicted of any offence only if the act charged against him was an offence in the law inforce at the date of its commission. If on that date such act was not an offence no future legislation prohibiting that act with retrospective effect will justify a conviction. In other words, if an act is not an offence at the date of its commission, no future law can make it an offence." Thus where the rule made applicable from 1.7.1961 was published in the Gazzette of 7.7.1961, it was held that the rule could not be applicable in respect of acts committed before 7.7.1961." S. 304-B of the Penal Code which was inserted in the Code on 19.11.1986 creating a distinct offence of dowry death Kedar Nath Bajoria v. State of West Bengal, AIR 1954 SCR 30, Chief inspector of Mines v. K.C. Thapar AIR 1961 SC 838, * Govind Billai v. Padmanabha Pillai AIR 1965 Ker 123. 173]and providing a minimum sentence of seven years imprisonment does not apply to such death caused before the insertion of the section because of Article 20(1)."* The second part of clause (1) protects a person from a penalty greater than that which he might have been subjected to at the time of the commission of the offence." The accused committed an offence in 1947 which under the Act. then in force was payable by imprisonment or fine or both. The Act was amended in 1949 which enhanced the penalty for the same offence by an additional fine. The Supreme Court held that the enhanced payment could not be held applicable to the offence which was committed in 1947 But the accused can take advantage of the beneficial provisions of an ex- Post-facto law. The rule of beneficial construction requires that an ex-post-facto law should be applied to reduce the sentence of the previous law on the same subject. Such a law is not affected by Article 20 (1). For example, if for an offence committed on 16.08.1975 the law in force makes it punishable with imprisonment for life and by an amendment made on 1.4.1976 the same offence is made punishable by three years jail, then the above exception says that the offender can take advantage of the amended ex- post-facto law as the latter. reduced the punishment.” Il- Protection against Double Jeopardy : Soni Devrajbhai Babubhalv. State of Gujarat AIR 1991 SC 2173 ° Kedar Nath Bajoria v. State of West Bengal AIR 195 3 SC 404. T. Baral V. Henry Ah Hoe 1983 ISCC 177, [74]Clause (2) of Article 20 days “No person shall be prosecuted and punished for the same offence more than once.” The clause embodies the English Common Law rule of “nemo debet bis vexari” which means no man should be put twice in peril for the same offence and if he is prosecuted again for it for which he has already been prosecuted he can take the complete defence of his former acquittal.” Technically expressed as the plea of ‘autrefois acquit’ or ‘autrefoia convict’, the plea avere that the defendant has been previously convicted or acquitted on a charge for the same offence as that in respect of which he is arraigned now. The corresponding provision in the American Constitution is embodies in that part of the Fifth Amendment which declares that no person shall be subject - for the same offence — to be put twice in jeopardy of life or limb. '* The expression “double jeopardy” is used in the American law but not in our constitution. Under our law the principle has been recognised in Article 20 (2) of the Constitution alongwith S. 26 of the General Clauses Act 1897 and S. 300 of the Cr. P.C. 1973. Although these are the materials which formed the background of the fundamental rights giben in Article 20 (2) of the Constitution, the ambit and content of the guarantee are much narrower than those of the common law in England or the doctrine of “double jeopardy” in the U.s. Constitution. Halabury’s ‘Laws of England’ 1955 Vol. X, pp. 405-406. Gupteshwar, K. “The Rule Against Double Jeopardy under the indian Constitution’, 1956, Supreme Court Journal, XIX, 53. Nor shall any person be subject to the same offence to be twice put in jeopardy of lfe or limb"; nor shall be compelled in any criminal case to be a witness against himselt “nor be deprived of life liberty, oF property without due process of law" — Fh Amendment (75)Double Jeopardy under he American Constitution : In the American system, the Constitutional bar applies to the second prosecution irrespective of the result of the first prosecution. The constitutional safeguard can be pleaded to the second prosecution whether the accused was acquitted or convicted in the previous one. The English principle is also the same. The rule in the Indian Constitution is different. In order to bring the case of a person under the prohibition of Article 20 (2), it must be shown that he had been prosecuted before a Court and ‘punished’ by it for the same offence for which he is being prosecuted again. The Indian provision enuneiates only the provision of “autrefois convict’ and not that of a ‘autrefois acquit’. “Accordingly, there can be no constitutional bar to a second prosecution if the accused had not been punished in the first instance. The appellant,” a citizen of India, upon arrival from Jeddah at the Santa Cruz airport, Bombay, did not disclose that he had brought in gold with him. But on search, it was found that he was carrying 107 total of gold in contravention of the government notification. The customs authorities thereupon took action against him under section 167 (8) of the Sea Customs Act 1878, and confiscated the gold. Some time afterwards, a complaint was filed in the Court of the Chief Presidency Magistiate against the appellant charging him with the offence under section 8 of the Foreign Exchange Regulation Act, 1947. The appellant pleaded that his prosecution before the Magistrate was in violation of the fundamental right guaranteed under Article 20 (2) because he had already been prosecuted and punished in as much as his gold had been confiscated by * Chaudhary & Chaturvedi, “Law of Fundamental Rights’, 1989. In Maqboo! Hussain vs, State of Bombay (AIR 1953 SC 925, 176]the Customs authorities. The Court held that the Customs Authorities is not a court or judicial tribunal and the adjudging of confiscation or the increased rate of ‘duty of penalty did not constitute a judgement of a court or judicial tribunal necessary for supporting a plea of double jeopardy. The proceeding taken before the sea customs authorities were therefore not prosecution of the appellant nor did the order of confiscation constitute a punishment in flicted by a court or judicial tribunal on the appellant. ‘An enquiry had been made against the appellant under the Public Servants (Inquires) Act, 1850. (20) on receiving the report of the “Enquiry Committee’, an opportunity was given to the appellant under Article 311 (2) to show cause and he was ultimately dismissed. Soon thereafter, the police submitted a charge sheet against him for having committed offence under section 161 and 165 Penal Code 1860 and Section 5 (2) of the Prevention of Corruption Act 1947. The validity of the subsequent prosecution was challenged by the appeliant on the ground that it contravened the constitutional guarantee embodied under Article 20 (2). His plea was rejected on the ground that commissions under the Enquiries Act were in the nature of fact finding bodies of advice the government for disciplinary action against the appellant and did not amount to judicial prosecution for the offence. Ill - Protection against compelling self-incriminating evidence : Article 20 (3) runs as “no person accused to any offence shall be compelled to be a witness against himself”. This provision embodies one of the fundamental cannons of common Law on criminal jurisprudence, that the accused is presumed to be innocent that it is 77)for the prosecution to establish his guilt by collecting evidence from sources * Sodas other than the accused and that the accused need not make any statement against his own will. 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. This provision emerged as a sharp reaction to the Courts of Star Chamber of Fourteenth century England when self incrimination was not regarded as wrongful. Indeed the Central features of the criminal proceedings at that time was procuring evidence by the examination of the accused. The horror evidence by the examination of the accused. The horror and terror that then prevailed gave rise by way of reaction, to the reverential provision of immunity from interrogation for the accused. The infamous trial of James Lilliburn by that Court in 1315 resulted in the abolition of this court and more importantly gave the right against self incrimination to an accused. History, ancient and modern, is replete with example of governments that established to talitrarian rules by forcing citizens to incriminate themselves. One significant distinction of the Roman Law was the right of a Roman citizen not to be tortured for incriminating Purposes. The Bible contains an account of an incident that took place in Asia Minor where St. Paul was stretched out on the rack by Roman soldiers. When he finally co evinced them that he was a Roman citizen, there were required, by law, to stop the torture. (78]Although today's police may not use the rack to induce incriminating statements, some of their methods are no less violative of the constitutional rights of the accused. In America, the immunity is given by the Fifth Amendment which says, inter alia, that no person shall be compelled in any criminal case to be a witness against himself. The privilege against self-incrimination “registers an important advance in the development of our liberty ~ one of the greatest landmarks in man's struggle to make himself civilized, . It reflects many of our fundamental values and most noble aspirations : our unwillingness to subjects those suspected of crime to the cruel dilemma of self accusation; our preference for an accusatorial rather than an inquisitorial system of criminal justice; our fear that self-incriminating statements will be elicited by inhuman treatment and abuses; our sense of fair play which dictates “a fair state — individual balance by requiring the government to leave the individual alone until good cause is shown for disturbing him and by requiring the government in its contest with the individual to should the entire load." Our respect for the inviolability of the human personality and of the right of each individual” to a private enclave where he may lead a private life”, our distrust of self deprecatory statements As. and our realization that the privilege, while sometimes’ a shelter to the guilty’, is often a protection to the innocent......."" In India, Article 20 (3) which embodies this privilege reads : Pursley, Robert D. “Introduction to Criminal Justice’ London, 1980, p. 177. * Mandelson Wallance. ‘The American-Constituion and the Judicial Process’. The Dorsey Press, Illinois, 1980, p. 198 179] ees.“No person accused of any offeqce shall be compelled to be a witness against himself. On analysis, this provision will be found to contain the following components (1) It is a right available to a person ‘accused of an offence’ ; (2) it is a Protection against “compulsion to be a witness’; (3) it is a protection against such ‘compulsion’ resulting in his giving evidence against himself. Who is an Accused? The protection of Art 20 (3) is available to a person ‘accused of an offence’. This means a person against whom a formal accusation relating to the commission of an offence has been leveled, which in normal course may result » in his 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, if at the time he made the statement, he was not an accused but became an accused thereafter. For example, a attempted to bribe B, the Deputy Superintendent of Police, by offering him a sum of money contained in an envelope at his bungalow. He + want to B’s bungalow and presented him a closed envelope. B thought that the envelope contained a petition but on opening it he found that the envelope contained currency notes. B was annoyed and threw the envelope at A's (the appellant's) face, The envelope fell down on the floor and was picked up by A After calling his orderly, B asked A to produce the envelope which he had thrown down and which A had picked up. A took out some currency notes from his pocket and placed them on the table without the envelope. Subsequently, during police investigation, tom bits of paper were collected near the windows {80} Seeand it was alleged that the torn bits of paper were collected near the windows and it was alleged that the torn bits of pepper were collected near the windows and it was alleged that the tom bits of paper were the piece of the envelope in which the currency notes were presented to B. The notes were stamped with the official stamp of 8. A was convicted. In an appeal to the Supreme Court against the conviction, one of the questions for determination was whether the protection under Art. 20 (3) had been violated by asking the accused to produce currency notes. Dismissing the appeal, the Supreme Court said that there was No contravention of Art. 20 (3) as the appellant was not in the position of the person accused of an offence when he was asked to produce the currency notes and that, in any case, the appellant was not compelled to be a witness against himself. When asked to produce the currency notes, A could very well have refused to comply with the request. (23) 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 proceeding, the nature of the accusation and its probable consequence. Accusing a person of committing a crime in the first information report (FIR), or in a formal complaint before a magistrate, amounts to a formal accusation and the person concemed can claim the privilege. Accusation can also be made in any other formal document or notice served on that person which ordinarily resulted in his prosecution in Court. 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 Ist]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. The privilege of Art. 20 (3) is undoubtedly at the trial stage in the court form. But it is available even at the pre-trial stage, i.e. during the course of police investigations if the person concerned can be regarded as an accused.” 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 police station, was breached in this case. But the court took this opportunity to dilate at length on the scope of Art. 20 (3). K. lyer J., delivering the court's decision considered the question whether Art. 20 (3) applies only to the stage of court-trial or does it also apply to stages anterior thereto. lyer J. rule 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 (8) 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 Desai, A.K., Violation of Demo« Nandini Satpathy vs. P.L, Dani, AIR 19) sin India’ SC 1025. (82)reasonably likely to support a prosecution against him. Not only compelled testimony obtained is excluded but “the preventive blow falls also on pre-court testimonial compulsion”. The court also ruled that the ban on self accusation and the right to silence, while an investigation or trial is underway, guest beyond that case and protects the accused in regard to any other offence pending or imminent. “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 underway is not with reference to that” Further, the court held that the police must invariably warn, and record and record the fact, “about the right to silence against self, incrimination; and when the accused is literate, take his written acknowledgement.” “I believe the police has not been happy with this ruling of the court in the Nandini Satpathy case as it has felt that it would hamper its investigatory Powers. The judgement, however, does not seem to have made any appreciable dent in the exercise of investigatory powers in actual practice what with our custody deaths everyday. It is only when we have a highly sophisticated police force with special skills and techniques and modem scientific methods of investigation, that it can investigate and detect offences without resorting to testimonial compulsion during custodial interrogation and Comply in letter and in spirit with the holding of the court in the Nandini Satpathy case.” What is compulsion ? Art. 20 (3) comes into operation only when the accused is compelled to give evidence against himself 183]Duress is where a man is compelled to do an act by an injury, beating or unlawful imprisonment. It also includes threatening, beating or imprisoning of the wife, parent, or child of a person.” Itis interesting to note that in the early years of judicial history, subsequent to the enactment of the Constitution, this point of protection against self incrimination did not appear to be looked upon with favours by the courts. Judicial response to this protection tended to dilute if rather than strengthen it. Courts took a narrow view of compulsion. There was no presumption that a statement made by the accused while in police custody was involuntary. But in 1978, the privilege against self-incrimination was, as it were, rediscovered and resurrected by the Supreme Court.” This decision breathed new life into this privilege which had otherwise become merely a paper protection. The court speeding through Krishna lyer J. advocated an expansive interpretation of the phrase “compelled testimony’. It is evidence procured’ not merely by physical threats of violence" But also by psychological torture, atmospheric pressure, environmental coercion, tiring interrogative prolixity, over ~ bearing and intimidatory methods, and the like.” Any mode of pressure, “subtle or crude, mental or physicals, physical, direct or indirect, but sufficiently substantial” , applied by the police to obtain information from an accused strongly suggestive of guilt become compulsion. Admission of the tape recorded statements of an accused taken without his knowledge but without any compulsion is not barred under Art. 20 (2). State of Bombay v, Kaltu Ralu oghad AIR 1961 SC 1808 In Nandini Satpathy v. P.L. Dani (AIR 1978) SC 1025). Usutail Ismail Nagree v. State of Maharashtra, AIR 1968 SC 147; RLM, Matkan v. State of Maharashtra, AIR 1973 SC 157. [84]The article enacts a measure of protection against testimony compelled through police tourure, violence or overbearing and intimidatory methods. Art. 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.” The meaning of “to be a witness” : To be a witness means making of oral or al or written statements in written statements in writing, made or given in a court or otherwise. It means imparting knowledge in respect of relevant tacts b an oral statement or a statement in writion. “To be a witness” is not equivalent to “furnishing evidence’ in his wideest significance, i.e. to say as including not merely of oral or written statement, but also production of documents or giving materials which may be relevant at the trial to determine the quilt or innocence of the accused. Jurial opinion has wavered over the term ‘to be a witness’ The Supreme Court” said ‘to be a witness means to furnish evidence and this could be done through lips or be production of a thing or a docment or by any other mode. 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 ammb witness. A bench of the Supreme Court® consisting of eleven judges, disagreeing with the interpretation if its earlier case, (M.P. Sharma). ‘It is well established that cl. (3) of Art. (20) is directed against self- increimixtion by the accused person. Selt-incrimination must mean conveying ‘Smt. Kalawati v. State of H.P. AIR 1953 SC 131 at p. 152 In MP. Sharma v, Satish Chandra, AIR 1954 SC 300, Inthe leading case of Bombay v, Rathi Kalu Oghad (AIR 1961 SC 1808). [85]information based on 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 of Statement of the accused based on his personal knowledge, e.g. the accused persons may ie. in Possession of a document which is in his writing or which contains his signatures or thumb impressions” - The production of such a document with a view to comparison of the writing or signatures or thumb impressions is not the statement of an accused person which can be said to be in the nature of a personal testimony.” Similarly the protection does not extend to showing parts of the body by way of identification or searches made in pursuance of a warrant issued under section 96 of the cr. P.C. Drbris! word of rbifyitr id 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. Search of premises in possession of a person accused of an offence under search warrant, and seizure of documents do not stand for the purposes of Art. 20 (3) on the same footing as compelled production of documents from whom they were seized. The reason is that a search warrant is issued to a police officer and so search and seizure cannot be regard as the acts of the occupier of the premises in question; they are acts of another kind to which the cccupier is obliged to submit and are, therefore, not his testimonial acts in any sense, The Supreme Court has said that search and seizure under a search [86]warrant do not have even the remotest testimony to compel the accused to incriminate himself, S. 26, 27, of the Evidence Act: Under section 26 of the Evidence Act 1872, no confession made by a Person while in police custody is to be used against him unless it has been made in the immediate presence of a magistrate. Section 27, however, says that, the information furnished by an accused person after his arrest to the investigating officer, which leads to the discovery of incriminating articles like the weapon of offence, it is admissible in evidence and does not in any way offend Art. 20 (3) of the constitution of India, The Supreme Court held™ that when under a murder charge, the accused has stated to the police officer that he would give the clothes of the deceased, which he had placed in a pit and thereafter he, in the presence of witness, dugout the pit and took out the clothes which were identical to the clothes belonging to the deceased, the statement of the accused was held to be admissible. Administrative Proceedings : Art, 20 (3) is not applied 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. Under S. 45-G of the Banking Companies Act 1969, after an order for the winding up of a banking company has been made, the official 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, etc. and In Pershadi v. State of U.P. AIR 1987 SC 211 187]after considering the report, the High court publicly examine the directors. Section 45-G has been held valid because the object of the inquiry there under is to collect evidence and decides whether any act or omission have caused loss to the company. If as a result of the inquiry, the court comes to the conclusion that the acts or omissions did cause loss to the company, then some action might be taken against the persons examined. Thus, an accusation 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. 45-G of the Banking Companies Act.” In Raja Narayanlal Bansilal vs. Maneck Feroze Minstry the Registrar in his report to the central Government (made under s. 137 (5) of the Cornpanies Act, 1913) alleged that the business of the company was being carried on in fraud. 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 S. 239 and 240 of the Companies Act, 1966). Denying that appellants could claim any immunity under Art, 20 (3) the Supreme Court pointed out that 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 began broadly with a view to examine the management of the company to find out whether any irregularities have been committed or not’. At no stage in the inquiry, there is any accused * R. Joseph Angusthi v. Narayanan AIR 1964 SC 1552, [88]Person or accuser or accusation against any one that he has committed an offence. The commission of fences might be discovered as a result of the inquiry and then the government may institute criminal proceedings against the Persons, but the fact that a prosecution may ultimately be launched will 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 the investigation before the inspector, the Registrar is not the complainant making an accusation against the appellant; the function of the investigation is not to find out whether the said accusation is proved or not.” proceedings held before the customs authorities under S. 171 A of the sea 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 Art. 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 hit 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 concem of the customs officer is to prevent smuggling and recover 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 he person of the cause of his arrest (Art. 22 (1), the person concemed is not an accused of a crime. It is only In Raja Narayantal Bansilal v. Maneck Reroze, AIR 1961, SC 29, 189]when complaint is lodged against him before a magistrate that the person becomes an accused.” From the above, it becomes clear that the immunity under Art. 20 (3) cannot be claimed be a person in proceedings before administrative bodies on the narrow ground that there is no criminal accusation. This very much restricts the effectiveness of the immunity in these days of proliferation of administrative bodies. The aim of administrative investigations is not only to find out facts, but also to collect evidence upon which a prosecution may be based later. This means that what cannot be achieved through formal criminal proceedings can be easily achieved through administrative proceedings, and evidence thus collected can be used against the person concemed when formally prosecuted later in a criminal court. Form this point of view, the privilege against self- incrimination loses much of its efficacy in this are of growth of administrative law. IV- Right to life and personal liberty ; Of all the rights of an accused provided in our constitution and the criminal Procedure code, the most important one is enshrined in Article 21 of our constitution ‘No one shall be deprived of his life or personal liberty which had very little Positive content. The Supreme Court had for almost twenty seven years after the enactment of the constitution, taken the view that it merely embodied a facet of the Diceyean concept of the Rule of Law that no noe can be deprived of his sh Chandra Mehta v. West Bengal AIR 1970 SC 940; Vere Ibrahim v. Maharastra AIR 1976 SC “ Hansariya. B.L. “Right to life and Libety under the constitution, [90]life and personal liberty by executive action unsupported by law. It was a protection against executive action which had no authority of law. If there was a law which provided some sort of procedure, it was enough to deprive a person of his life and personal liberty. Justice S.R. Das gave an illustration that if a law 7 provided that the cool of the Bishop of Rochester be boiled in oil, it would be valid in Art. 21." But in the famous declaration in Maneka Gandhi” which according to many jurists marks a watershed in the history of the constitutional law of the country, the supreme court for the first time took the view that Art. 21 affords protection not only against executive action but also against legislation and no law can deprive a person of his life or personal liberty unless it prescribes a procedure which is reasonable, fair and just. It would be for the court to determine whether the procedure is reasonable, fair and just and if it is not, the court will strike down the law as invalid. Article 21 was not written on a clear state. It birth in the world history can be traced back to 1215, as it was in the year that Magna carta saw the light of the day.” This great charter of liberties, was issued by king John under people’ s threat of civil war. It consists of 63 clauses. Clause 29 goes as “No free men shall be taken or imprisoned, or imprisoned, or dissized, or outlawed, or exiled or in any way destroyed; nor shall we go upon him nor send upon him but by the lawful judgement of his peers and by the law of the land”. It means that no member of the Executive shall be entitled to interfere with the liberty of a citizen unless he can support his action with some provision of In AK. Gopalan vs, State of Madras AIR 1950 SC 27 AIR 1978 SC 597. & Venkata Rao, R., Liberty and Social Contiol, “Supreme Court Journal Vol. XVI 1983, P. 203. " Hansaria, B.L., Right to Life and Liberty under the constitution, (91)law. In short, no man can be subjected to any physical coercion that does not admit of legal justification. When therefore, the state, or any of its agents, deprives an individual of his personal liberty, such action can be justified only if there is a law to support such action. But in no country can there be absolute freedom of the individual. The premise underlying the English common law is that is the people's representatives assembled in the parliament who shall determine how far the rights of the individual should go and how far should they be curtailed in the collective interest or for the security of the state itself, according to the exigencies of the time. This was the theory adopted by the constitution of India in saying that life and personal liberty are subject to the “procedure established by law’. The supreme Court, in the Maneka Gandhi case, has however infused judgement review by holding that “procedure” inherently meant a fair procedure, So that Art, 21 has been turned into a safeguard against arbitrary legislation. The history of this change in view is worthy of mention here : |. Until the 1978 decision in Maneka’s case.” the view which prevailed in our Supreme Court was that there was no guarantees in our constitution against arbitrary legislation encroaching upon personal liberty. Hence, if a competent legislation makes a law providing that a person may be deprived of his liberty in certain circumstances and in a certain manner, the validity of the law could not be challenged in a court of law on the ground that the law is unreasonable, unfair or unjust. under the “due process” clause of the American constitution Pandey J.N. Constitutional Law’ 193. AIR 1978 SC 897. “ Gopalan v. State of Madras 1950 SCR 88 [92] Sree(" and 14" Amendments), the court has assumed the power of declaring unconstitutional any law which deprives a person of his liberty other than in accordance with the courts’ notions of due process’ i.e. reasonableness and fairness. In England, this is not possible in as much as the courts have no power to invalidate a law made by the parliament. As result, personal liberty is England, ‘a parliament. As result, personal liberty is in England, “a livery confined and controlled by law’. It exists only so far as it is not taken away or limited by law made by the representatives of the people. In the Gopalan case, the majority of the supreme court propounded the view that by adopting the expression procedure established by the law’, Art. 21 of our constitution had embodied the English concept of personal liberty in preference to that of American “Due process’ even though according to the minority, the result of such interpretation was to throw the most important fundamental right to life and personal liberty at the mercy of the shifting legislative majority in the parliament. The result according to the majority view of the supreme court, is due to the difference in the basic approach namely “Although our Constitution has imposed some limitations on the legislative authorities, yet, subject to and out side such limitations our constitution, has left our parliament and State legislature supreme in their respective fields. In the main - our constitution has preferred the supremacy of the legislature to that of the judiciary It was also held that there is no safeguard for personal liberty under out constitution besides Art. 21, such as natural law . In the end result, when [93] SeerPersonal liberty is taken away by a competent legislation, the person affected can have no remedy. * II. It is a striking feature of the development of the constitutional law of India, that after a long struggle which may be said to have tangibly started since 1971, the minority view in Gopalan’s case has come to triumph in the 7-Judge decision in Maneka’s case which we have already noted. This cases has categorically laid down the following propostitution overturning the majority in Gopalan : (a) Arts. 19 and 21 are not water tight compartments on the other hand, the expressions ‘personal liberty in Art. 21 is of the widest amplitude covering a variety of rights, of which some have been included in Art. 19, gives additional Protection. Hence there may be some overlap between Artc. 19 and 21, (0) As a result, a law coming under Art. 21 must also satisly the requirements of Art. 19. In other words, a law made by the state which seeks to deprive a person of his personal liberty must prescribe a procedure for such deprivation which must not be arbitrary, unfair of unreasonable. (c) once the test unreasonableness is imported to determine the validity of a law depriving a person of his liberty, it follows that such law shall be invalid if it violates the violets the owners of natural e.g. if it provides for the impending of a passport.“* Gopalan AIR 1950 SC; ADM Jabalpur v. Shukla AIR 1976 SC 1207. “Maneka Gandhi v. Union of India AIR 1978 SC 597, (94) eeFrom Gopalan to Maneka, the interpretation of Art. 21 has completed its trek from the North to the south pole. The decision in the Maneka case is being followed by the Supreme Court in subsequent cases. This new interpretation of Art. 21 which has introduced the requirement of a reasonable, fair and just procedure has been the harbinger of a most dramatic development of constitutional law, particularly in the field of criminal jurisprudence. A few of the human rights in the onus of criminal jurisprudence Owe their origin to Art. 21 of the constitution like the right to legal assistance and the right to speedy justice, V - Right to be informed of Grounds of arrest : Article 22 Under the ancient criminal procedure which differed from modern criminal procedure, person after their arrest were kept in confinement more or less secretly till their trials and could not prepare for their defence, as they had no information of the grounds of arrest and detention and moreover of evidence against them. During the confinement, they were subjected to cruel treatments and tortures in order to extort admissions and confessions of guilt justifying their. In every land and time, men have fought against arbitrary arrest and detention, It was John in 1215 that prompted the inclusion of public opinion in the Magna Carta : "No free man shall be taken or imprisoned....except by the legal judgement of his peers or by the law of the land’ Prior to the 18" Century French Revolution, Louis XVI used the infamous Letters de cachet in arresting and sentencing his subjects to imprisonment 195]without informing them about the causes and grounds and without holding their trails. These letters were issued in blanks so anyone possessing them could use these against his enemy for his revenge. The bitter reaction against this arbitrary arrest and detention led to the French Revtution which resulted in the Declaration of the Rights of men and Citizens of 1789 which incorporates thus : “No man should be accused, arrested, or held in confinement, except in cases determined by the law, and according tot he forms which it has prescribed’. Similarly, arbitrary arrest, detention and deportation for trial in distant Courts constituted one of the most bitter grievances against King George Il of England as recorded in the American Declaration of Independence. The 5" Amendment to the United States Constitution enshrines that “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law. “and to be informed of the nature and cause of accusation; “to be confronted with the witness against him; “to have compulsory process for obtaining witness in his favour; “and to have assistance of counsel for his defence”. Criminal jurisprudence requires that a person accused of a crime should be informed of the grounds of his alleged implication in the crime so as to afford 196]to him a chance to advance his defence at the earliest opportunity.” This jurisprudential concept has been enshrined in Art. 22 (1) of the constitution of India. C1 (1) of Art. 22 guarantees that “No person who is arrested shall we detained in custody without being informed as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by a legal practitioner of his choice”. The right t be informed of the grounds of arrest is a precious right of the accused person. Timely information of the grounds of arrest of arrest serves him in many ways. It enables him to move the proper court for bail, or in appropriate circumstances for a writ of “habeas corpus” or to make expeditious arrangements for his defence. A part from the constitution, this right has been incorporated in section 50 of the new code of criminal procedure 1973 which requires the arresting authorities to furnish forthwith the grounds of arrest for those arrested without warrants, According to section 50 (1), every police officer or any other person arresting any person without warrant shall forthwith communicate to him full particulars of the offence for which he is arrested or other grounds for such arrest. Prior to the constitution the right was not protected by the code of criminal procedure 1898 excepting that the accused could know only after his production before a magistrate or officer-in-charge of a police station (s. 60 cr. p. c-. 1898) or from the copy of the First Information Report filed in the court. This right was Dwivedi, 8.P. "Procedural privileges of the Accused’, 10, Indian Advocate, 1970, p. 75. 197]Protected by s. 173 of the code of criminal procedure and was claimable only when the police Report was failed after the completion of investigation. Article 22 of the constitution as well as Section 50 of the code of criminal procedure 1973 have adequately protected this aspect of the personal liberty of an accused. Section 50 (2) lays down that if arrest is made without warrant in a bailable case, the accused should be informed of his right to be released on bail after furnishing sureties. In the leading case of Madhu Limaye", the Supreme Court observed : “Art, 22 (1) embodies a rule which has always been regarded as vital and fundamental for safeguarding personal liberty in all legal systems where the Pule of Law prevails. The two requirements of clause (1) of Art. 22 are meant to afford the earliest opportunity to the arrested person to remove any mistake, misapprehension, or misunderstanding in the minds of the arresting authority and also to exactly what the accusation against him is so that he can exercise the second right namely of consulting a legal practitioner of his choice and to be defended by him” The words “as soon as may be" in Art 22 (1) would mean as early as is reasonable in the circumstances of the case however, the word “forthwith” in Section 50 (1) of the code creates a stricter duty on the part of the police officer making the arrest and would mean immediately’. It appears reasonable to expect that the grounds of arrest should be communicated to the arrested person in the language understood by him, “AIR 1969 SC 1014 on Art. 2 (1) of the constitution [98]otherwise it would not amount to sufficient compliance with the constitution requirement.” Arrest means the deprivation of a person of his liberty by legal authorties. In a free society like ours, law is quite protective of the personal liberty of every individual and does not tolerate the detention of any person without legal ’ sanction, Right to be informed of the grounds of arrest and detention, enshrined by Article 22 (1), is an inviolable right of a person accused of an offence and it enables the accused to amuck an application for bail or for habeas corpus and it also enables the accused to prepare for his defence. There has been maximum transgression of this right primarily because of section 60 of the code of criminal procedure 19 which specifically did not provide for informing the arrested accused of the grounds of arrest ; and partly it was because of the expression” as soon as may be" used in Article 22 (1). The expression gable sufficient opportunity for causing delay in fumishing the grounds of arrest until he was charge sheeted under section 173 of the code of criminal procedure. The police Report the so-called charge sheet made under section 173 of the code — can be filed in the Court only after the completion of the investigation into the case; and thereafter a copy thereof shall be furnished to the accused. Experience has shown the arresting authorities inordinately delay charge-sheetion the accused. Generally the police take a year or more in this process and most of the cases the accused remains in custody for more than the penalty of sentence prescribed for an offence. Thus, in the absence of the grounds of arrest he is disabled to move either for bail, or for habeas croups Harkishan v. State of Maharashtra AIR 1962 SC 911 199] Se