CHAP, 10) PROTECTION IN RESPECT OF CONVICTION FOR OFFENCES 243

Article 20(2) and Section 300(1) of Cr. P. C.-The language used in

Section 300 (1) of Cr. P.C. is different from the language used in Article 20 (2) of the
Constitution. The former is wider than the later. Article 20 (2) of the Constitution states
that 'no one can be prosecuted and punished for the same offence more than once'. Section
300 (1) of Cr. P. C. states that "A person who has once been tried by a Court of
competent jurisdiction for an offence and convicted or acquitted of such offence shall,
while such conviction or acquittal remajns in force, not be liable to be tried again for the
same offence. nor on the same facts for any other offenc. for which a different charge
from the one made against him might have been tmade under sub-section (1) of Section
221, or for which he might have been cÍnvicted under sub-section (2) thereof."" So where
the appellant had already been convicted under Section 138 of the Negotiable Instruments
Act, 1881,he could not be tried and punished on the same facts under Section 420 or any
other provision of IPCor any other statute.20
C. Prohibition against self-incrimination-Clause (3).-fClause (3) of
Article 20 provides that no person accused of any offence shall be compelled to be a
witness against himself. Thus Article 20(3) embodies the general principles of English
and American jurisprudence that no one shall be compelled togive testimony which may
expose him to prosecution for crime. The cardinal principle of criminal law which is
really the bed rock of English jurisprudence 1s that an accused must be presumed to be
innocent till the contrary is proved. It is the duty of the prosecution to prove the offence.
The accused need not make any admission or statement, against his own free will. The
Fifth Amendment of the American Constitution declares that "no person shall be
compelled in any criminal case to be a witness again_t himself.")
The fundamental rule of criminal jurisprudence against self-incrimination has been
raised to a rule of constitutional law in Article 20(3).(This guarantee extends to any
person accused of an offence and prohibits all kinds of compulsions to make him a
witness against himself. Explaining the,scope of this clause in M.P. Sharna v. Satish
Chandra,21 the Supreme Court observed that this right embodies the following
essentials:
(1) Itisa right pertaining to a person who is "accused of an offence."
(2) It is a protection against "compulsion to be a witness".
(3) It is a protection against such compulsion relating to his giving evidence
"against himself."
(1) Accused of an offence.-The words 'accused of an offence' make it clear that
this right is only available to a person accused of an offence. A person is said to be an
accused person against whom a formal accusation relating to the commission of an
offence has been levelled which in normal course may result in his prosecution and
conviction.22 It is not necessary that the actual trial or inquiry should have started before
the Court. Thus inM.P. Sharma v. Satish Chandra,2 it was held that a person, whose
name was nentioned as an accused in the first information report by the police and
investigation was ordered by the Magistrate, could claim the protection of this guarantee.)
The mere fact that at the relevant time the person was arrested on suspicion of
having committed an offence under Section 124 of the Bombay Police Act and a
panchanama had been prepared seizing the goods were immaterial when neither the case
20. Kalla Veera Rughav Rao v. Gorantla Venkateswara Rao, AIR 2011 SC 641.
21. AlR 1954 SC 300; Narain Lal v. M.P. Mistry, AIR 1961 SC 29.
22. Narayan Lalv. M.P. Mistry, AIR 1961SC 29: R.K. Dalmia v. Delhi Administration, AIR 1962 SC
1821; K. Joseph v. Narayana, AIR 1964 SC 1552.
23. AIR 1954 SC 300: See also R.B. Shah v. D.K. Guha, AIR 1964 SC 1196.
244 CONSTITUTIONAL LAW OF INDIA (CHAP. 10

was registered nor the F.J.R. was recorded by the police. Thus where a custom officer
arrests a person and informs him of the grounds of his arrest for the purpose of holding an
inquiry into the violation of the provisions of the Sea Customs Act there is no
formal accusation of an offence.24(In Delhi Judicial Service Association v. State of
Gujarat.> it has been held that mere Ssue of notice or pendency of contempt proceedings
do not attract Article 20(3) as the contemners were not "accused of any offence". A
criminal contempt is different from an ordinary offence. Since the contempt proceedings
are not in the nature of criminal proceedings for an offence, the pendency of contempt
proceedings cannot be regarded as criminal proceedings merely because it may end in
imposing punishment on the contemner. A contemner is not in the position of an
accused. Even if the contemner is found to be guilty of contempt, the court, may accept
apology and discharge the notice of contempt, whereas tendering of apology is no defence
to the trial of a criminal offence.)
This shows that the guarantee in our Constitution is narrower than that in the
American Constitution. In America the protection of self-incrimination is not confined to
the accu_edonly. It is also available to a witness.26 The position is the same in English
law. But(the protection under clause (3) of Article 20 is only available to the accused.
(2) To be a witness.-The protection is against compulsion "to be awitness." In
M.P. Sharma v. Satish Chandra,"the Supreme Court interpreted the expression "to be
a witness" very widely soas to include oral. documentary and testimonial evidence. The
prosecution under Article 20(3) covers not merely testimonial compulsion in a court
room but also compelled testimony previously obtained-any compulsory process for
production of evidentiary document which are reasonably likely to support the prosecution
against him. The Court accepted the definition given in the Indian Evidence Act that a
person can be 'a witness' not merely by giving oral evidence but also by producing
documents or making intelligible gestures as in the case of a dumb witness or the like. If
this interpretation of the phrase "to be a witness" adopted by the Court in M.P. Sharma's
case was to be followed; the compulsory taking of finger impressions or specimen
handwriting of an accused would come within the mischief of Article 20(3)) This broad
interpretation, it was thought, would certainly hamper the effective admínistration of
crime and efficient administration of criminal justice.
In State of Bombay v. Kathi Kalu, the Supreme Court held that the
of the phrase "to be witness" given in Sharma's case was too broad interpretation
and required a
qualification. To be awitness" is not equivalent to "fumishing evidence"jthat is to say,
as including not merely making of oral or written statements but also production of
documents or giving materials which may be relevant at a tria! to determine the guilt or
innocence of the accused. Self-incrimination can only mean conveying information based
upon perSonal knowledge of the person giving information and cannot include
mechanical process of producing documents in court which may throw light onmerely
any
the
in contrOVersy, but which do not contain any point
statement of the accused based on his
personal knowledge.(Thus when a person gives his
or signature, though, it may amount to furnishingfinger impression or specimen writing
included within the expression "to be a witness". Inevidence
in the large sense is not
these cases, he is not giving any
personal testimony. They are merely materials for comparison. Hence, neither
seizures
24. Veralbrahim v. State of Maharashtra, AIR 1976 SC 1167.
25. (1991)4 SCC 406.
26. Wilis-Constitutional Law, p. 419 (1936).
27. AIR 1954 SC 300; See also Section 132,
Indian Evidence Act.
28. AIR 1961SC 1808.
CHAP. 10] PROTECTION IN RESPECT OF CONVICTION FOR OFFENCES 245

made under search-warrant,2 nor the compulsory taking of photographs, finger-print or

specimen writing of an accused would come within the prohibition of Artile 202),30
What is forbidden under Article 20(3) is to compel a person to say something trom nis
personal knowledge relating to the charge against him.
The appellant who was not an accused in the Police case but in fact a witness
whose statement was recorded under Article 161 of Cr. P.C. although his name figured as
an accused in the complaint filed later on in the same case, was held not to be entitled to a
blanket protection under Article 20 (3), for invoking the constitutional right under Article
20 (3), a formal accusation against the person claiming the protection must exist. In case
of trial in the police case, if answer to certain questions tends to incriminate or otherwise,
it has to be considered at that time,31
Ithas been held that the information given byan accused person after his arrest to a
police officer which leads to the discovery of a fact under Section 27 of the Evidence Act
is admissible in evidence under Article 20(3) of the Constitution. In Parshadi v. U.P.
State,32 an accused who was charged with committing of a murder stated to the police
that he wouldgive clothes of the deceased which he had placed in a pit and thereafter he
dug out the pit inpresence of witnesses and took out the clothes which were identified as
the clothes belonging to the deceased. The Supreme Court held that the statement of the
appellant was admissible in evidence.
(3) Compulsion to give evidence "against himself".The protection under
Article 20(3) ís available only against the compulsion of accused to give evidence
"against himself. But left to himself he may voluntarily wave his privilege by entering
into the witness-box or by giving evidence voluntarily on request. Request implies no
compulsion; therefore, evidence given on request is admissible against the person giving
it,33 To attract the protection of Article 23) it must be shown that the accused was
compelled to make the statement likely to be incriminative of himself. Compulsion
means duress which includes threatening, beating or imprisoning of the wife, parent or
child of aperson. Thus where the accused makes a confession without any inducement,
threat or promise Article 203) does not apply. )
In Nandini Satpathy v. P.L. Danj, the Supreme Court has considerably widened
the scope of clause (3) of Article 20. The Court has held that the prohibitive scope of
Article 20(3) goes back to the stage of police interrogation not commencing in court
only. It extends to, and protects the accused in regard to other offences--pending or
imminent-which may deter him from voluntary disclosure The phrase 'compelled
testimony' must be read as evidence procured not merely by physical threats or violence
tiring
but by psychic (mental) torture, atmospheric pressure, environmental coercion, Thus,
interrogatives, proximity, overbearing and intimidatory methods and the like.
to
compelled testimony is not limited to physical torture or coercion, but extends also
techniques of psychological interrogation which cause mental torture in a person subject
Chief Minister of Orissa.
to such interrogation. In that case, the appellant was a former sne
of inquiry
Certain charges of corruption were levelled against her and in the course questions. The
was called upon to attend at a police station and to answer certain written
appellant refused to answer questions and claimed the protection of Article 20(3).
She was

29. M.P. Sharma v. Satish Chandra, AIR 1955 SC 300 at p. 304.

30. State of Bombay v. Kathi Kalu, AlR 1961 SC 1808.
31. Balasaheb v. State of Maharash1ra, AIR 2011 SC 304.
32. AIR 1957 SC211.
33. State of Bombay v. Kathi Kalu, AIR 1961 SC 1808.
34. AIR 1977 SC 1025.
246 CONSTITUTIONAL LAW OF INDIA
[CHAP. 10
prosecuted under Section 179, LP.C., for refusing to answer questions put by a lawf..
authority. According tothe Court, self-incrimination is less than "relevant" and
'confessional'". Irelevance is impermissible relevance is licit, but when relevant more than
are loaded with guilty inference in the event of an answer being supplied, the questions
incriminate springs into existence. The accused person cannot be forcedtendency to ane oto
questions merely because the answers thereto are not implicat1ve when viewed in isolation
and confined to that particular case. He is entitled to keep his mouth shut if the answer
has a reasonable prospect of exposing him to guilt in some other accusation, actual or
imminent, even if the investigation is not with reference to that. However, he is bound te
answer where there is no clear tendency to criminate. This means that the
available when police examines the accused during investigation under Sectionprotection 161 of the
is
Cr.P.C. Further, the right to silence is not limited to the case for
but extends to the accused in regard to other offences pending or which he is examined
deter him form voluntary disclosure of criminatory matter. imminent which
may
In Mohd. Dastgir v. State of
Deputy Superintendent of Police to Madras,3
the appellant went to the
offer him bribe in a closed envelope.bungalow
The
of
police
officer on opening it found the envelope containing currency
of the appellant who took it. Thereafter, notes. He threw it at the face
the police officer asked the appellant to
the envelope containing the handover
from his pocket and placed currency notes. The appellant took out some currency
it on the table which was seized by the notes
appellant contended in appeal before the Supreme Court that police officer. The
be produced in evidence as he was the currency notes
by the police officer to give toshould not
Supreme Court held that the accused compelled
was not compelled to produce the notes as no him. The
was applied on him to produce the duress
notes. Moreover, the appellant was not an
the time the currency notes were seized from him. 'accused' at
In Yusufali v. State of
Maharashtra, '0 a tape-recorded statement made by the
accused though made without knowledge
was held to be admissible in of the accused but without force or
evidence. oppression
SIn V.S. Kuttan Pillai v.
Ram Krishnan,37 the Court held that
premises occupied or in possession of person accused of an offence or seizuresearch
of the
from there was not violative of of anything
recovered as a result of search andArticle 20(3) of the Constitution. If
any
seizure it can be produced in the courtS as an document is
against the accused as he is not compelled to give witness against evidence
In Amrit Singh v. State of himself.
hair for purpose of Punjab'8 it has been held that asking an accused of his
identification
right to refuse to give specimen ofamount to testimonial
made witness against himself in view his hair for purpose ofcompulsion. TheHeaccused has
of Art. 20 (3) of the identification. cannot be
In State v. M. Krishna Constitution.
Mohan,39 the Supreme Court has held that
specimen finger print and handwriting from accused is not probhibited by taking of
being 'witness against himself." Article 20 (3)as
Narcoanalysis,
Violates Article Polygraphy
20 (3).--In and Brain Finger Printing tests of
a accused
the accused have
challenged thesignificant judgment in Selvi v. State of Karnataka,40
Narcoanalysis, Polygraphy and Brainvalidity of certain scientific
Finger Printing (BEAP) tests techniques
without theirnamely.
Consent
35. AIR 1960 SC
36. AIR 1968 SC 756.
37. AIR 1980 SC 147; S.K. Singh v. V.V. Giri,
38. AIR 2007 SC 185. AIR 1970 SC 2097.
132.
39. AIR 2008 SC 368.
40. AIR 2010 SC 1974.
CHAP, 10] PROTECTION IN RESPECT OF CONVICTION FOR OFFENCES 247
as violative of Article 20 (3) of the Constitution, they argued that these scientific
techniques are softer alternatives to the regrettable use of third degree methods by
investigators and violates right against self incrimination in Article 20 (3) of the
Constitution. The State argued that it is desirable that crime should be efficiently
investigated particularly sex crimes as ordinary methods are not helpful in these cases. So
the issue was between 'efficient investigation' and 'preservation of individual liberty'A
three judge bench of the Supreme Court unanimously held that these tests are testimonial
compulsiôns and are prohibited by Article 20(3) of the Constitution. These tests do not
fall within the scope of expression"such other tests" in Explanation of Section 33
Criminal Procedure Code. The protection of self incrimination is available at the stage of
investigation also and it is also available to witnesses. In Narcoanalysis test a drug is
given to him so that he can divulge important information. The drug is known as
Sodicumn Pentothal-used or introduced as general anesthesia in surgical operations. The
Polygraphy and Brain Finger Printing (BEAP) test is also known as the Wave Test.
Electric waves are introduced into the mind. It was held that compulsary administration of
the narcoanalysis techniques constitutes cruel, inhuman or degrading treatment in the
context. Article 21 of the Constitution disapproves of involuntary testimony irespective
of the nature and degree of coercion, threats fraud or inducement used to elicit the
evidence. The popular means of the terms such as torture and cruel' inhuman or degrading
treatment are associated with gory images of blood letting and broken bones. Aforcible
invasion into a person's mental process is also an affront to human dignity and liberty
often with grave and long and lasting consequences. The Court also referred the
International conventions though not ratified by Parliament, as persuasive value since
they represent an involving international consensus on the issue.-Convention Against
Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (1984)
Regarding the contention raised by the respondents that compelling interests demands
such techniques for investigation of crimes in future the Court said that it was the
function of the legislature to consider and make proper law on the issue. But if such
matter comes before the Court the Court shall interpret the mandate of the constitutional
provisions available to the citizens and apply in his favour. The Court laid down the
following guidelines for these tests :
1. No Lie Detector Tests should be administered except on the basis of consent of
the accused. An option should be given to the accused whether he wishes to
avail such test.
2. If the accused volunteers for a Lie Detector Test, he should be given access to
a lawyer and physical, emotional and legal implications of such a test should
be explained to him bythe police and his lawyer.
3. The consent should be recorded by a Judicial Magistrate.
4. During the hearing before the Magistrate, the person alleged to have agreed
should be duly represented by a lawyer.
5. At the hearing the person in question should also be told in clear terms that
the statement that if made shall not be aconfidential statement to the
Magistrate but will have the statement made to the police.
6. The Magistrate shall consider all factors relating to the detention including the
length of detention and the nature of the interrogation.
7. The actual recording of the Lie Detector shall be done by an independent
agency (such as a hospital) and conducted in the presence of a lawyer.
8. A full inedical and factual narration of the manner of the information received
must be taken on record.