PETITIONER: NANDINI SATPATHY Vs. RESPONDENT: DANI … · 2007-04-13 ·...

SC-NandhinSatpathy-OverNiteDetention-1978.txt 4/13/2007

PETITIONER:NANDINI SATPATHY

Vs.

RESPONDENT:DANI (P.L.) AND ANR.

DATE OF JUDGMENT07/04/1978

BENCH:KRISHNAIYER, V.R.BENCH:KRISHNAIYER, V.R.SINGH, JASWANTTULZAPURKAR, V.D.

CITATION:1978 AIR 1025 1978 SCR (3) 6081978 SCC (2) 424CITATOR INFO :R 1979 SC 447 (7)RF 1981 SC 379 (62)RF 1992 SC 604 (58)D 1992 SC1795 (7)

ACT:Penal Code, (Act V). 1860-S.179-Whether mens rea forms anecessary component of S. 179-Defences open under Section179 I.P.C. r/w Section 161 Criminal Procedure Code.Criminal Procedure Code, 1973, S. 161(2)-Parameters ofSection 161(2), what are-Whether the tendency to expose aperson to a criminal charge embrance answers which have aninculpatory impact in other criminal cases in posse or inesse elsewhere,-"Any person supposed to be acquainted" in S.161 (1) Whether includes an accused person or only awitness-When does an answer acquire confessional statuswithin the meaning of S. 27 of Evidence Act."Right to silence", when applicable-Constitutional rightunder Art. 20(3) examined, explained and made explicit-Meaning of the word "accused" occurring in Art. 20(3)whether it includes a suspect-accused-Constitution of India,1950, Art. 20(3).Examination of a witness by Police under S. 161-Effect ofproviso and marginal note, Crl. P C., 1973.

HEADNOTE:The appellant, a former Chief Minister of Orissa and onetime Minister at the National level was directed to appearat the Vigilance Police Station, Cuttack, in September, 1977for being examined in connection with a case registeredagainst her by the Deputy Superintendent of Police,Vigilance, Cuttack u/s 5 (2) read with s. 5 (1) (d) and (e)of the Prevention of Corruption Act and u/s. 161/165, 120Band 109 I.P.C. On the strength of the first information, inwhich the appellant, her son and others were shown asaccused persons investigation was commenced. During thecourse of the investigation it was that she was interrogatedwith reference to a long string of questions, given to herin writing. The gravamen of the accusation was one ofacquisition of assets disproportionate to the known, licitsources of income and probable resources over the years ofthe accused, who occupied a public position and exercisedpublic power for a long spell during which the appellant by

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receipt of illegal gratification aggrandised herself.Exercising her right of guaranteed under Art. 20(3) of theConstitution, the appellant refused to answer, with theresult a complaint was filed by the Deputy Superintendent ofPolice, Vigilance (Directorate of Vigilance) Cuttack,against the appellant, under s. 179 I.P.C. before the Sub-Divisional Judicial Magistrate, Sadar, Cuttack. TheMagistrate took cognizance of the offence and issued summonsof appearance against the appellant-accused. Aggrieved bythe action of the Magistrate and urging that the complaintdid not and could not disclose an offence, the accused-appellant removed the High Court under Art. 226 of theConstitution as well as under s. 401 of the Cr. P. Code,challenging the validity of the Magisterial proceeding. Thebroad submission, unsuccessfully made before the High Court,was that the charge rested upon a failure to answerinterrogations by the police but this charge wasunsustainable because the umbrella of Art. 20(3) of theConstitution and the immunity under Section 161(2) of theCr. P. Code were wide enough, to shield her in her refusal.The plea of unconstitutionality and illegality, put forwardby this preemptive proceeding was rebuffed and so theappellant appealed to this Court by certificate grantedunder Art. 132(1) resulting in two appeals.Allowing the appeals and quashing the prosecutionproceedings the Court609HELD : 1. When a woman is commanded into a police stationviolating the commandment of Section 160 of the Code when aheavy load of questions is handed in some permissible somenot, where the area of constitutional protection againstself-crimination is (until this decision) blurred in someaspects, when, in this Court, counsel for the accusedunreservedly undertakes to answer in the light of the lawherein laid down, when the object of the prosecution is tocompel contrite compliance with Section 161 Cr. P.C.abandoning all contumacy and this is achieved by theundertaking, when the pragmatic issues involved are socomplex that effective barricades against police pressure tosecure self-incrimination need more steps as indicated inthis judgment that persistence in the prosecution is seeminghomage to the rule of law and quashing the prosecutionsecures the ends of justice and the right thing to do is toquash the prosecution as it stands at present. That thisdimension of the problem has escaped the Executive'sattention for reasons best left unexplored is regrettable.[650 H, 651 A-C]It is quite probable that the very act of directing a womanto come to the police station in violation of section 160(1)Cr. P.C. may make for tension and negate voluntariness. Itis likely that some of the questions are self-criminatory.More importantly, the admitted circumstances are such thatthe trying magistrate may have to hold an elaborate enquiryabout other investigations, potential and actual, to decideabout the self-accusatory character of the answers. And,finally, the process of proving proneness for self-incrimination will itself strike a below on the veryprotection under Art. 20(3). [649 G-H, 650 A](a) S. 161 enables the police to examine the accused duringinvestigation; [644 C](b) The prohibitive sweep of Art. 20(3) goes back to thestage of police interrogation not, as contended commencingin Court only; [644-C].(c) The provisions of Art. 20(3) and section 161(1)substantially cover the same area so far as policeinvestigations are concerned; [644-C](d) The ban on self-accusation and the right to silence,

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while on investigation or trial is under way, goes beyondthat case and protects the accused in regard to otheroffences pending or imminent, which may deter him fromvoluntary disclosure of criminatory matter,, [644 C-D](e) Compelled testimony' must be read as evidence procurednot merely by physical threats or violence but by psychictorture, atmospheric pressure, environmental coercion tiringinterrogative prolixity, overbearing and intimidatorymethods and the like not legal penalty for violation. Sothe legal perils following upon refusal to answer or answertruthfully cannot be regarded as compulsion within themeaning of Art. 20(3). The prospect of prosecution may leadto legal tension in the exercise of a constitutional right,but then, a stance of silence is running a calculated risk.On the other hand, if there is any mode of pressure, subtleor crude, mental or physical, direct or indirect, butsufficiently substantial, applied by the policeman forobtaining information from an accused strongly suggestive ofguilt it becomes compelled testimony violative of Art.20(3); [644 D-F](f) A police officer is clearly a person in authority.Insistence on answering is a form of pressure especially inthe atmosphere of the police station unless certain safeguards erasing duress are adhered to. Frequent threats ofprosecution if there is failure to answer may take on thecomplexion of undue pressure violating Art. 20(3). Legalpenalty may by itself does not amount to duress but themanner of mentioning it to the victim of interrogation mayintroduce an element of tension and tone of commandperilously hovering near compulsion; [644 F-G](g) Self incrimination or tendency to expose oneself to acriminal charge is less than 'relevant' and more than'confessional'. Irrelevance is impermissible; whilerelevance is licit if the relevant questions are loaded withguilty inference in the event of an answer being suppliedthe tendency to incriminate springs into existence; [644 G-H]610(h) The accused Person cannot be forced to answerquestions. merely because the answers thereto are notimplicative when viewed in isolation and confined to thatparticular case. He is entitled to keep his mouth shut ifthe answer sought has a reasonable prospect of exposing himto guilt in some other accusation actual or imminent, eventhough the investigation under way is not with reference tothat. In determining the incriminatory character of ananswer ,the accused is entitled to consider and the Courtwhile adjudging will take note of the setting, the totalityof circumstances, the equation, personal and social whichhave a bearing on making an answer substantially innocentbut in effect guilty in import. However, fancifulclaims, unreasonable apprehensions, and vague possibilitiescannot be the hiding ground for an accused person. He isbound to answer where there is no clear tendency tocriminate. [644 H, 645 A-B](i) Section 179 I.P.C. has a component of mens rea andwhere there is no wilful refusal but only unwitting omissionor innocent warding off, the offence is not made out. [645-C](j) Where there is reasonable doubt indicated by theaccused's explanation he is entitled to its benefit andcannot be forced to substantiate his ground lest, by thisprocess, he is constrained to surrender the very privilegefor which he is fighting. What may apparently be innocentinformation may really be innocent or noxious viewed in thewider setting. [645 C-D](k) The right to consult an advocate of this choice shall

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not be denied to any person who is arrested. This does notmean that persons who are not under arrest or custody can bedenied that right. The spirit and sense of Art. 22(1) isthat it is fundamental to the rule of law that the serviceof a lawyer shall be available for consultation to anyaccused person tinder circumstances of near-custodialinterrogation. Moreover, the observance of the rightagainst self-incrimination is best promoted by conceding tothe accused the right to consult a legal practitioner of hischoice. Lawyer's presence is a constitutional claim in somecircumstances in our country also, and, in the context ofArt. 20(3), is an assurance of awareness and observance ofthe right to silence. Art. 20(3) and Art. 22(1) may in away be telescoped by making it prudent for the police topermit the advocate of the accused, if there be one, to bepresent at the time he is examined. Over-reaching Art.20(3) and S. 161(2) will be obviated by this requirement.It is not that the police must secure the services of alawyer. That will lead to police-station-lawyer system, anabuse which breeds other vices. But if an accused personexpresses the wish to have his lawyer by his side when hisexamination goes on, this facility shall not be denied,without being exposed to the serious reproof thatinvoluntary self-crimination secured in secrecy and bycoercing the will was the project lawyer cannot harangue thepolice but may help his client and complain on his behalfalthough his very presence will ordinarily remove theimplicit menace of a police station. No doubt the presenceof a lawyer is asking for the moon in many cases until apublic defender system becomes ubiquitous. The police neednot wait more than for a reasonable while for an advocate'sarrival. But they must invariably warn and record that factabout the right to silence against self-incrimination; andwhere the accused is literate take his written acknow-ledgment. [645 G-H, 646 A-E](1) 'Third degree' is an easy temptation where the pressureto detect is heavy, the cerebration involved is hard and theresort to torture may yield high dividends. [646 F][Keeping in view the symbiotic need to preserve the immunitywithout stifling legitimate investigation after anexamination of the accused, where a lawyer of his choice isnot available, the police official should take him to amagistrate, doctor or other willing and responsible non-partisan official or non-official and allow a secludedaudience where he may unburden himself beyond the view ofthe police and tell whether he has suffered duress, whichshould be followed by judicial or some other custody for himwhere the police cannot teach him. That collocutor maybriefly record the relevant conversation and communicate itnot to the police but to the nearest magistrate Pilotprojects on this pattern may yield experience to guide thepractical processes of implementing Art. 20(3). These arenot mandates but strong suggestions.] [64 D-E]611(m) Many of the questions put by the police are not. self-incriminatory, remote apprehensions being wholly irrelevant.To answer is citizen's duty; failure is asking forconviction. The appellant shall undertake to answer allquestions put to her which do not materially incriminate herin the pending or imminent investigations or prosecutions.If she claims immunity regarding any questions she will,without disclosing details, briefly state in which case oroffence in the offing makes her reasonably apprehend self-incrimination by her refused answers. If, after the wholeexamination is over, the officer concerned reasonablyregards any refusal to answer to be wilful violation underpretence of immunity from self-incrimination, he will be

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free to prosecute the alleged offender after studying therefusal to answer in the light of the principles earlier setout, Section 179 I.P.C. should not be unsheathed toopromiscuously and teasingly to tense lay people into vagueconsternation and covert compulsion although the properoffice of Section 179 I.P.C. is perfectly within theconstitutional limits of Art. 20(3). [651 C-F]2. The rule, of law becomes a rope of sand if the lawfulauthority of public servants can be defined or disdained bythose bound to obey. The might of the law, in the lastresort guarantees the right of the citizen and no one, be heminister or higher, has the discretion to disobey withoutrunning a punitive risk. Chapter X of the Indian Penal Codeis designed to penalise disobedience of public servantsexercising lawful authority. S. 179 is one of theprovisions to enforce compliance when a public servantlegally demands truthful answers but is met with blankrefusal or plain mendacity. [620 F-G]3. A break down by S. 179 I.P.C. yields the followingpieces (a) the demanding authority must be a public servant;a police officer is obviously one; (b) the demand, must beto state the truth- on a subject in the exercise of legalpowers; and, indubitably, an investigating officer enjoyssuch powers under the Cr. P. Code, and, in the instant case,requisition was precisely to tell the truth on matterssupposedly pertinent to the offence under investigation. S.161 of the Cr. P. Code obligates "any person supposed to beacquainted with the facts and circumstances of the case" toanswer truthfully "all questions relating to such case otherthan questions the answers to which would have a tendency toexpose him to a criminal charge". [621 A-B]In the present case, admittedly oral answers to writteninterrogations were sought, although not honest speech but'constitutional' silence greated the public servant. Andthis refuge by the accused under Art. 20(3) drove thedisenchanted officer to seek the sanction of section 179I.P.C. If the literal force of the text governs the complexof facts, the Court must convict, lest the long arm of theinvestigatory law should hang limp when challenged by thenegative attitude of inscrutability worn by the interrogateunless within the text and texture of the section-built-indefences exist. [621 B-C]4. The area covered by Art. 20(3) of the Constitution andsection 161(2) of the Criminal Procedure Code issubstantially the same. So much so, terminologicalexpansion apart, sec. 161(2) is a parliamentary gloss on theconstitutional clause. [623D]A constitutional provision receives its full semantic rangeand so it follows that a wider connotation must be impartedto the expressions 'accused of any offence' and 'to bewitness against himself'. Art. 20(3) of the Constitutionwarrants no such truncation as argued by Counsel but, as inMiranda v. Arizona, 384 U.S. 436 (1966) ruling extends theembargo to police investigation, also. A narrow meaning mayemasculate a necessary protection. There are only twoprimary queries involved in this clause that seals the lipsinto permissible silence (i) Is the person called upon totestify 'accused of any offence' and (ii) is he beingcompelled to the witness against himself ? [623 E-F]Miranda v. Arizona, 384 U.S. 436 (1966); referred to.A wider construction viz. that s. 161(2) of the Code mightcover not merely accusations already registered in policestations but those which are likely to be basis for exposinga person to a criminal charge, if applicable to Art. 20(3),approximates the constitutional clause to the explicitstatement of612

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the Prohibition in s. 161(2). S. 161(2) meaningfully usesthe expression 'expose himself to a criminal charge'.Obviously, these words mean, not only cases Where the personis already exposed to a criminal charge but also instanceswhich Will imminently expose him to criminal charges. InArt. 20(3) the expression (accused of any offence' must meanformally accused in praesenti not in futuro-not evenimminently as decisions now stand. The expression "to bewitness against himself" means more than the court process,Any giving of evidence, any furnishing of information, iflikely to have an incriminating impact ensures thedescription of being witness against himself. Not beinglimited to the forensic stage by express words in Art.20(3) the expression must be construed to apply to everystage where furnishing of information and collection ofmaterials takes place. That is to say, even theinvestigation at the police level is embraced by Art. 20(3).This is precisely what s. 161(2) means. [623 G-H, 624 A-B]Sub-section (2) of S. 161 Cr. P. C. relates to oralexamination by police officers and grants immunity at thatstage. Briefly, the Constitution and them Code arecoterminous in the protective area. While the Code may bechanged, the Constitution is more enduring. [624 B-C]6. Under the Indian Evidence Act the Miranda exclusionaryrule that custodial interrogations are inherently coercivefinds expression (s. 26), although the Indian provisionconfines it to confession which is a narrower concept thanself-incrimination. [624 D]7. Speaking pragmatically, there exists a rivalry betweensocietal interest in effecting crime detection andconstitutional rights which accused individuals possess.Emphasis may shift, depending on circumstances, in balancingthese interests as has been happening in America. Ourconstitutional perspective has, therefore, to be relativeand cannot afford to be absolutist, especially when torturetechnology, crime escalation and other social variablesaffect the application of principles in producing humanejustice. [624 E-G]Couch v. United States, 409 U.S. 322, 336 (1972) referredto.8. Two important considerations must be placed at theforefront before sizing up the importance and impregnabilityof the anti-self-incrimination guarantee. They are (i) notto write off the fear of police torture leading to forcedself incrimination as a thing of the past and (ii) never toforget that crimes, in India and internationally are growingand criminals are out writing the detectives. [625 C, G]The first obligation of the criminal justice system is tosecure justice by seeking and substantiating truth throughproof. The means must be as good as the ends and thedignity of the individual and the freedom of the humanperson cannot be sacrificed by resort to improper means,however worthy the ends. Therefore. 'Third degree' has tobe out-lawed and indeed has been. [626 F-G]The cherished principle behind the Maxim `nemo tenetursceipsum tenetur' meaning "a man cannot represent himself asguilty" which proscribes compulsory self-accusation, shouldnot be dangerously over broad nor illusorily whittled down.And it must openly work in practice and not be a talismanicsymbol. If Art. 20(3) is not to prove a promise ofunreality the Court must clothe it with flesh and blood.[626 H, 627 B-C]Miranda v. Arizona, 384 U.S. 436 (1966), Brown v. Walker, 40L. Ed. 819 referred to.A moral from the Miranda reasoning is the burning relevanceof erecting protective fenders and to make their observancea police obligation so that the angelic Art. 20(3) may face

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upto Satanic situations. [630 F-G]9. The framers of our Constitution have cognised certainpessimistic poignancies and mellow life meanings andobligated Judges to maintain a 'fair state-individualbalance' and to broaden the fundamental right to fulfil itspurpose, lest frequent martyrdoms reduce the article to amock formula. Even silent approaches, furtive moves, slightdeviations and subtle ingenuities613may erode the article's validity unless the law outlawsillegitimate and unconstitutional procedures before theyfind their first firm footing. The silent cause of thefinal fall of the tall tower is the first stone obliquelyand obliviously removed from the base. [631 E-F]And Art. 20(3) is a human article, a guarantee of dignityand integrity and of inviolability of the person and refusalto convert an adversary system into an inquisitorial schemein the antagonistic ante-chamber of a police station. Andin the long run, that investigation is best which usesstratagems least, that policeman deserves respect who giveshis fists rest and his wits restlessness.10. Sec. 161(2) is a sort of parliamentary commentary onArt. 20(3) of the Constitution. The scope of s. 161 doesinclude actual accused and suspects and therefore the policehave power under sections 160 and 161 of the Cr. P.C. toquestion a person who then was or in the future mayincarnate as an accused person. 'Any person' in s. 161 Cr.P.C. would include persons then or ultimately accused. [632E-F]Any person supposed to be acquainted with the facts andcircumstances of the case includes an accused person whofills that role because the police suppose him to havecommitted the crime and must, therefore, be familiar withthe facts. The supposition may later prove a fiction butthat does not repel the section. Nor does the marginal note'examination of witnesses by police' clinch the matter. Amarginal note clears' ambiguity but does not controlmeaning. Moreover, the suppositions accused figuresfunctionally as a witness. To be a witness, from functionalangle, is to impart knowledge in respect of a relevant fact,and that is precisely the purpose of questioning the accusedunder section 161 Cr. P.C. The dichotomy between'witnesses' and ,accused' used as terms of art. does nothold good here. The amendment, by Act XV of 1941, of Sec.161(2) of the Cr. P. Code is a legislative acceptance ofthe Pakala Narayana Swami reasoning and guards against apossible repercussion of that ruling. The appellantsquarely fell within the interrogational ring. To holdotherwise is to fold up investigative exercise, sincequestioning suspect is desirable for detection of crime andeven protection of the accused. 'Extreme positions mayboomerang in law as in politics. [633 F H, 634 A-B]M. P. Sharma v. Satish Chandra, Dist, Magistrate, Delhi[1954]1 S.C.R. 1077, Jakala Narayanaswami v. Emperor,A.I.R. 1939 PC 47, Mahabir Mandal and Ors. v. State ofBihar, [1972] 3 SCR 639, 657; followed.11. Suspects, not yet formally charged but embryonicallyare accused on record, also may swim into the harbour ofArt. 20(3) and therefore a person formally brought into thepolice diary as an accused person is eligible for theprophylactic benefits of Art. 20(3) of the Constitution.[635 B-G]State of Bombay v. Kathi Kalu Oghad, [1962] 3 SCR 10reiterated.Raja Narayan Lal Bansilal v. Manek Phiroz Mistry and Ors.[1961] 1 S.C.R. 417; Ramesh Chandra Mehta v. State of W. B.[1969] 2 S.C.R. 461 and Bhagwandas Goenka v. Union of India,

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Crl. A. 131-132 of 1961 S.C. dated 20-9-63; referred to.12. It is plausible that where realism prevails overformalism and probability over possibility. the enquiriesunder criminal statutes with quasi-criminal investigationsare of an accusatory nature and are sure to end inprosecution when the offence is grave and the evidencegathered good. And to deny the protection of aconstitutional shield designed to defend a suspect becausethe enquiry is preliminary and may possibly not reach theCourt is to erode the substance while paying hollow homageto the holy verbalism of the Article. [637 H, 638A]Ramesh Chandra Mehta v. State of W.B. [1961] 2 S.C.R. 461and Raja Narayan Lal Bansilal v. Manak Phiroz Mistry andOrs.,[1961] I S.C.R. 417, referred to.13. The view that the bar in Art. 20(3) operates only whenthe evidence previously procured from the accused is soughtto be introduced into the caseat the trial by the Court will be sapping the juice andretaining the rind of Art. 20(3) doing interpretativeviolence to the humanist justice of the proscription. Thetext of the clause contains no such clue, its intendment isstultified by such a judicial amendment and an expansiveconstruction has the merit of natural meaning, self-fulfilment of the 'silence zone' and the advancement ofhuman rights. The plea for narrowing down the play of thesub-article to the forensic phase of trial cannot beaccepted. It works where the mischief is, in the womb, i.e.the police process. [638 B-D]14. Both precedent procurement and subsequent exhibition ofself criminatting testimony are obviated by intelligentconstitutional anticipation. If the police can interrogateto the point of self-accusation, the subsequent exclusion ofthat evidence at the trial hardly helps because the harm hasbeen already done. The police will prove through otherevidence what they have procured through forced. confession.So it is that the foresight of the framers has preemptedself-incrimination at the incipient stages by not expresslyrestricting it to the trial stage in Court. True, compelledtestimony previously obtained is excluded. But thepreventive blow falls also on pre-court testimonial compul-sion. The condition is that the person compelled must be anaccused. [639 B-D]15. Not all relevant answers are criminatory; not allcriminatory answers are confessions. Tendency to expose toa criminal charge is wider than actual exposure to suchcharge. The spirit of the American rulings and thesubstance of this Court's observations justify this 'wheelswithin wheels' conceptualization of self-accusatorystatements. The orbit of relevancy is large. Every factwhich has a nexus with the case does not make it noxious tothe accused. Relevance may co-exist with innocence andconstitutional censure is attracted only when inference ofnascence exists. And an incriminatory inference is notenough for a confession. Only if, without more, the answerestablished guilt, does it amount to a confession. [639 E-G]Answers that would, in themselves, support a conviction areconfessions but answers which have a reasonable tendencystrongly to point out to the guilt of the accused areincriminatory. Relevant replies which furnish a real andclear link in the chain of evidence indeed to bind down theaccused with the crime become incriminatory and offend Art.20(3) if elicited by pressure from the mouth of the accused.An answer acquires confessional status only if, in terms ofsubstantially, all the facts which constitute the offenceare admitted by the offender. If his statement alsocontains self-exculpatory matter it ceases to be aconfession. Article 20(3) strikes at confessions and self-

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incriminations but leaves untouched other relevant facts.[640 A-C]16. The claim of a witness of privilege against self-incrimination has to be tested on a careful consideration ofall the circumstances in the case and where it is clear thatthe claim is unjustified, the protection is unavailable.[640C]Merely because he fancied that by such answer he wouldincriminate himself he could not claim the privilege ofsilence. It must appear to the court that the implicationsof the question, in the setting in which it is asked, makeit evident that a responsive answer or an explanation of whyit cannot be answered might be dangerous because injuriousdisclosure could result. The apprehension of incriminationfrom the answer sought must be substantial and real asdistinguished from danger of remote possibilities orfanciful flow of inference. Two things need emphasis. Thesetting of the particular case, the context and theenvironment i.e. the totality of circumstances, must informthe perspective of the Court adjudging the incriminatoryinjury, and where reasonable doubt exists, the benefit mustgo in favour of the right to silence by a liberal con-struction of the Article. [640 D-F]But the true test is; could the witness (accused) havereasonably sensed the peril of prosecution from his answerin the conspectus of circumstances ? The perception of thepeculiarities of the case cannot be irrelevant in properappraisal of self-incriminatory potentiality. [640G]Hoffman v. United States 341 U.S. 479 and Malloy v. Bagan,12 L.Ed. 2d. 653 quoted with approval.17. The policy behind the privilege under our scheme, doesnot swing so wide as to sweep out of admissibilitystatements neither confessional per se nor guilty intendency but merely relevant facts which viewed in anysetting, does not have a sinister import. To spread the netso wide is to make a mockery of the examination of thesuspect, so necessitous in the search for truth. Over-breadth undermines, and such morbid exaggeration of awholesome protection must be demurred. [640 H, 641 A-B]On the bounds between constitutional proscription andtestimonial permission Art. 20(3) could be invoked onlyagainst statements which had a material bearing on thecriminality of the maker of the statement._ "By itself doesnot exclude the setting or other integral circumstances butmeans something in the fact disclosed a guilt element. Thesetting of the case is an implied component of thestatement. [641 B-D]State of Bombay v. Kathikalu Oghad, [1962] 3 SCR P. 10referred to.18. Relevancy is tendency to make a fact probable.Crimination is a tendency to make guilt probable.Confession is a potency to make crime conclusive. The taintof tendency, under Art. 20(3) and s. 161 (1) is more or lessthe same. It is not a remote, recondite, freak or fancifulinference but a reasonable, real, material or probablededuction. This governing test holds good, it is pragmatic,for one feels the effect, its guilty portent fairly clearly.[641 E-F]19. There is need for regard to the impact of the pluralityof other investigations in the offing or prosecutionspending on the amplitude of the immunity. 'To be witnessagainst oneself' is not confined to particular offenceregarding which the questioning is made but extends to otheroffences about which the accused has reasonable apprehensionof implication from his answer. This conclusion also flowsfrom tendency to be exposed to a criminal charge. 'Acriminal charge' covers any criminal charge than under

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investigation or trial or imminently threatens the accused.[641 G-H, 642 A]20. The setting of the case or cases is also of the utmostsignificance in pronouncing on the guilty tendency of thequestion and answer. What in one milieu may be colourless,may, in another be criminal. While subjectivism of the accused mayexaggeratedly apprehend a guilty inferencelingering behind every non-committal question, objectivismreasonably screens innocent from innocent answers.Therefore, making a fair margin for the accused's credibleapprehension of implication from his own mouth, the Courtwill view the interrogation objectively to hold itcriminatory or otherwise without surrendering to thehaunting subjectivism of the accused. The dynamics ofconstitutional silence cover many interacting factors andrepercussions from speech. [642 A, C-D]21. The policy of the law is that each individual accusedincluded, by virtue of his guaranteed dignity has a right toa private enclave where he may lead a free life withoutover-bearing investigatory invasion or even crypto-coercion.The protean forms gendarme duress assumes. the environmentalpressures of police presence, compounded by incommunicadoconfinement and psychic exhaustion, torturesomeinterrogation and physical menances and other ingenious,sophisticated procedures-the condition, mental, physical,cultural and social of the accused, the length of theinterrogation and the manner of its conduct and a variety oflike circumstances, will go into the pathology of coercedpara confessional answers. The benefit of doubt wherereasonable doubt exists, must go in favour of the accused.[643 C-D]State of Bombay v. Kathikalu Oghad, [1962] 3 SCR 10,referred to.Observation[Such deviance as in this case where a higher level policeofficer, ignorantly insisted on a woman appearing at thepolice station, in fragrant contravention of the wholesomeproviso to Section 160(1) of the Cr. P.C. must be visitedwith prompt punishment, since policemen may not be a lawunto themselves expecting others to obey the law. The wagesof indifference is reprimand, of intransigence disciplinaryaction. If the alibi is that the Sessions Court haddirectedthe accused to appear at the police station, that is noabsolution for a police officer from disobedience of thelaw. There is public policy, not complimentary to thepolice personnel, behind this legislative proscription whichkeeps, juveniles and females from police company except atthe former's safe residence. May be, in later years,community confidence and consciousness will regard thepolice force as entitled to better trust and soften thestigmatising or suspicious provisions now writ across theCode].

JUDGMENT:CIVIL APPELLATE JURISDICTION : Civil Appeal No. 315 of 1978.From the Judgment and Order dated 30-1-1978 of the OrissaHigh Court in C.D.C. No. 961/77.

ANDCRIMINAL APPEAL NO. 101 of 1978

From the Judgment and Order dated 30-1-1978 of the OrissaHigh Court in Criminal Revision No. 397 of 1977.G. Rath, S. K. Bagga, (Mrs.) S. Bagga and Indu Talwar forthe Appellant.B. M. Patnaik, A. G.. Orissa, Vinoo Bhagat and R. K. Mehta

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for Respondent No. 1.The Judgment of the Court was delivered by A pensive prefaceKRISHNA IYER, J.-Every litigation has a touch of humancrises and, as here, it is but a legal projection of life'svicissitudes.A complaint was filed by the Deputy Superintendent ofPolice, Vigilance (Directorate of Vigilance), Cuttack,against the appellant, the former Chief Minister of Orissaunder section 179 I.P.C., before the Sub-divisional JudicialMagistrate Sadar, Cuttack, alleging offending facts which wewill presently explain. Thereupon the Magistrate tookcognizance of the offence and issued summons for appearanceagainst the accused (Smt. Nandini Satpathy). Aggrieved bythe action of the Magistrate and urging that the complaintdid not and could not disclose an offence, the agitatedaccuse appellant moved the High Court under Art. 226 of theConstitution as well as under section 401 of the Cr. P.Code, challenging the validity of the Magis terialproceeding. The broad submissions, unsuccessfully madebefore the High Court, was that the charge rested upon afailure to answer interrogations by the police but thischarge was unsustainable, because the umbrella of Article20(3) of the Constitution and the immunity under section161(2) of the Cr. P. Code were wide enough to shield her inher refusal. The plea of unconstitutionality and illegalityput forward by this preemptive proceeding was rebuffed bythe High Court and so she appealed to this Court bycertificate granted under Article 132(1), resulting in theabove two appeals, their by taking a calculated risk whichmight boomerang on the litigant if she failed because whatthis Court now decides finally binds.Every appeal to this court transcends the particular lis toincarnate as an appeal to the future by the invisible manywhose legal lot we617decide, by laying down the law for the nation under Article141; and, so, we are filled with humility in essaying thetask of unravelling the sense and sensibility, the, breadthand depth, of the principle against self-incriminationenshrined in Art. 20(3) of our Constitution and embracedwith specificity by Section 161(2) of the Cr. P. Code.Here we must remember, concerned as we, are in expounding anaspect of the Constitution bearing on social defense andindividual freedom, that humanism is the highest law whichenlivens the printed legislative text with the life-breathof civilized values. The judge who forgets this rule of lawany day regrets his nescient verdict some day.Now, we move on to the riddle of Art. 20(3), the range ofthe 'right to silence and the insulation of an accusedPerson from police interrogation under section 161(2) of theCr. P. Code. Counsel on both sides have presented therival viewpoints with utmost fairness some scholarship andwe have listened to them, not as an abstract intellectualexercises peppered by lexical and precedential erudition butas deeper dives into the meaning of meanings and the exaltedadventures in translation of twinkling symbols. OurConstitutional guarantees are phrased like the great sutras-pregnant brevities enwombing founding faiths.The basic facts which have given rise to this case need tobe narrated but the law we have to settle reminds us, not ofa quondam minister, the appellant, but of the numerousindigents, illiterates and agrestics who are tensed andperplexed, by police processes in station recesses, beingunversed in the arcame implications of Art. 20(3) and unableto stand up to rough handling despite section 161(2). Law-in-action is tested by its restless barks and bites 'in thestreets and its sting in hostile camps, especially when the

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consumers are unaware of the essential contents of theprotective provisions,-and not by its polished manners andsweet reasonableness in forensic precincts. The pulse ofthe agitated accused, hand-cuffed and interrogated, the rudevoice and ready rod of the head constable and the psychicstrain, verging on consternation, sobbing into involuntaryincriminations, are part of the scenario of policeinvestigation which must educate the Court as it unveils thenuances of Art. 20(3) and its inherited phraseology. Apeople whose consciousness of rights is poor, a land wherelegal services at-the incipient stages are, rare and aninvestigative personnel whose random resort to third degreetechnology has ancient roots-these and a host of otherrealistic factors must come into the Court's ken wheninterpreting and effectuating the constitutional right ofthe suspect accused to remain silent. That is why quicksurgery, when constitutional questions affecting the weakernumbers are involved, can be successful failure. We arecognizant of the improved methods and refined processes ofthe police forces, especially be, Vigilance wings andIntelligence squads with special training in expertinvestigation and use of brains as against brawn. Thisremarkable improvement, in Free India, in police practiceshas not unfortunately. been consistent and torture tacticshave not been transported for life from our land as somerecent happenings have regrettably revealed.5-315SCI/78618Necessarily, the Court must be guided by principledpragmatism, not cloud-cuckoo-land idealism. This sets ourperspective.The factsBack to the facts. Smt. Nandini Satpathy, a former ChiefMinister of Orissa and one time minister at the nationallevel was directed to appear at the Vigilance, PoliceStation, Cuttack, in September last year, for being examinedin connection with a case registered against her by theDeputy Superintendent of Police, Vigilance, Cuttack, undersection 5 (2) read with section' 5 ( 1 ) (d) & (e) of thePrevention of Corruption Act and under section 161/165 and120-B and 109 I.P.C. On the strength of this firstinformation, in which the appellant, her son and others wereshown as accused persons, investigation was commenced.During the course of the investigation it was that she wasinterrogated with reference to a long string of questions,given to her in writing. Skipping the details of thedates and forgetting the niceties of the provisions, thegravamen of the accusation was one of acquisition of assetsdisproportionate to the known, licit sources of income andprobable resources over the years of the accused, whooccupied a public position and exercised public power for along spell during which, the police version runs, the ladyby receipt of illegal gratification aggranaised herself--apattern of accusation tragically and traumatically so commonagainst public persons who have exercised and exited frompublic power, and a phenomenon so suggestive of Lord Acton'sfamous dictum. The charge, it is so obvious, has a wide-ranging 'scope and considerable temporal sweep, coveringactivities and acquisitions, sources and resources privateand public dealings and nexus with finances, personal and ofrelatives. The dimensions of the offences naturallybroadened the area of investigation, and to do justice tosuch investigation, the net of interrogation had to be castwide. Inevitably, a police officer who is not too precise,too sensitive and too constitutionally conscientious is aptto trample under foot the guaranteed right of testimonialtacitness. This is precisely the grievance of the

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appellant, and the defence of the respondent is the absenceof the 'right of silence, to use the familiar phrase of20th century vintage.Our ApproachCounsel's submissions have zeroed in on some basicquestions. Speaking broadly, there are two competing socialinterests a reconciliation of which gives the clue to abalance between the curtailed or expanded meaning for thesententious clause against self-incrimination in ourConstitution. Section 161(2) Cr. P.C. is more concrete.We may read both before venturing a bhashyam on their text :

"Art. 20(3)-No person accused of any offenceshall be compelled to be a witness againsthimself"."Section 161(2) Cr. P.C. enjoins :"such person shall be bound to answer trulyall questions relating to such ease put to himby such officer, other than619questions the answers to which would have atendency to expose him to a criminal charge orto a penalty or forfeiture."

The elucidation and application of these provisions will bebetter appreciated in the specific setting of the pointsformulated in the course of the arguments. And so we nowset down the pivotal issues on which the submissions werefocussed, reminding ourselves that we cannot travel beyondthe Atlantic to lay down Indian law although counsel invitedus, with a few citations, to embark on that journey. Indiais Indian, not alien. and jurisprudence is neither eternalnor universal but moulded by the national genius, life'srealities, culture and ethos of each country. Even so,humanist jurists will agree that in this indivisible humanplanet certain values, though divergently expressed, havecosmic status, spreading out with the march of civilizationin space and time. To understand ourselves, we must listento voices from afar, without forsaking our identity. TheGandhian guideline has a golden lesson for judges whenrulings and text books outside one's jurisdiction are cited:

"I do not want my house to be walled in on allsides and my windows to be stuffed. I wantthe cultures of all lands to be blown about myhouse as freely, as possible. But I refuse tobe blown off my feet by any."

(Young India 1-6-1921)".To build bridges of juridical understanding based on highervalues, is good; to don imported legal haberdashery, onmeretricious appeal, is clumsy.The IssuesThe points in controversy may flexibly be formulated thus1. Is a person likely to be accused of crimes i.e. asuspect accused, entitled to the sanctuary of silence as one'accused of any offence' ? Is it sufficient that he is apotential-of course, not distant-candidate for accusation bythe police ?2. Does the bar against self-incrimination operate notmerely with reference to a particular accusation in regardto which the police investigator interrogates, or does itextend also to other pending or potential accusationsoutside the specific investigation which has led to thequestioning ? That is to say, can an accused person, who isbeing questioned by a police officer in a certain case,refuse to answer questions plainly non-criminatory so far asthat case is concerned but probably exposes him to theperils of inculpation in other cases in posse or in esseelsewhere ?

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3. Does the constitutional shield of silence swing intoaction only in Court or can it barricade the 'accused'against incriminating interrogation at the stages of policeinvestigation ?4. What is the ambit of the cryptic expression 'compelledto be a witness against himself' occurring in Article 20(3)of the Constitution ?620Does 'compulsion' involve physical or like pressure orduress of an unlawful texture or does it cover also thecrypto-compulsion or psychic coercion, given a tensesituation or officer in authority interrogating an accusedperson, armed with power to insist on an answer ?5. Does being 'a witness against oneself' includetestimonial tendency to incriminate or probative probabilityof guilt flowing from the answer ?6. What are the parameters of Section 161(2) of the Cr.Procedure Cod-. ? Does tendency to expose a person to acriminal charge embrace answers which have an inculpatoryimpact in other criminal cases actually or about to beinvestigated or tried ?7. Does 'any person' in Section 161 Cr. Procedure Codeinclude an accused person or only a witness ?8. When does an answer self-incriminate or tend to exposeone to a charge ? What distinguishing features mark offnocent and innocent, permissible and impermissibleinterrogations and answers ? Is. the setting relevant orshould the answer, in vacuo, bear a guilty badge on itsbosom ?9. Does mens rea form a necessary component of section 179I.P.C., and, if so, what is its precise nature ? Can a mereapprehension that any answer has a guilty potential salvagethe accused or bring into play the exclusionary rule ?10. Where do we demarcate the boundaries of benefit ofdoubt in the setting of section 161(2) Cr. P. Code andSection 179 I.P.C. ?Section 179 I.P.C.This formulation does focus our attention on the pluralrange of jural concerns when a court is confronted with anissue of testimonial compulsion followed by a prosecutionfor recusancy. Preliminarily, let us see the requirementsof section 179 I.P.C. since the appeals directly turn onthem. The rule of law becomes a rope of sand if the lawfulauthority of public servants can be defied or disdained bythose bound to obey. The might of the law, in the lastresort, guarantees the right of the citizen, and no one, behe minister or higher, has the discretion to disobey withoutrunning a punitive risk. Chapter X of the Indian Penal Codeis designed to penalise disobedience of public servantsexercising lawful authority. Section 179 is one of the pro-visions to enforce compliance when a public servant legallydemands truthful answers but is met, with blank refusal orplain mendacity. The section reads :

" 179 whoever, being legally bound to statethe truth on any subject to any public servantrefuses to answer any question demanded of himtouching that subject by such public servantin the exercise of the legal powers of suchpublic servant, shall be punished with simpleimprisonment for a term which may extend tosix months, or with fine which may extend toone thousand rupees, or with both."

621A break-down of the provision yields the following

pieces : (a) the demanding authority must be a publicservant; a police officer-is obviously one, (b) The demandmust be to state the truth on a subject in the exercise of

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legal powers; and, indubitably, an investigating officerenjoys 'such powers under the Cr. P. Code, and here, therequisition was precisely to tell the truth on matterssupposedly pertinent to the offences under investigation.Section 161 of the Cr. P.C. obligates 'any person supposedto be acquainted with the facts and circumstances of thecase to answer truthfully 'all questions relating to suchcase .... other than questions the answers to which wouldhave a tendency to expose him to a criminal charge'. In thepresent case, admittedly, oral answers to writteninterrogatories were sought, although not honest 'speech but'constitutional' silence greeted the public servant. Andthis refuge by the accused under Art. 20(3) drove thedisenchanted officer to seek the sanction of section 179I.P.C. If the literal force of the text governs the complexof facts. the court must convict, lest the- long arm of theinvestigatory law should hang limp when challenged by thenegative attitude of inscrutability, worn by the'interrogatee'-unless within the text and texture of thesection built-in defences exist. They do, is theappellant's plea; and this stance is the subject of thedebate before us.What are the defences open under Section 179 I.P.C. readwith section 161 (1) Cr. P. C. ? Two exculpatory channelsare pointed out by Sri Rath, supplemented by a thirdparamount right founded on constitutional immunity againsttestimonial self-incrimination. To itemise them for readyreference, the arguments are that (a), 'any person insection 161(1) excludes an accused person (b) that questionswhich form links in the chain of the prosecution case-theseinclude all except irrelevant ones-are prone to expose theaccused to a criminal charge or charges since several othercases are in the offing or have been charge-sheeted againstthe appellant and (c) the expansive operation of thebenignant shield against self-accusation inhibitselicitation of any answers which the accused apprehends maythrow inculpatory glow. This wide vindication, if valid,will be the biggest interpretative bonus the court can awardto criminals as it foredooms to failure of criminal justiceand police truth tracking, says the learned AdvocateGeneral. True, courts self-criminate themselves if theykeep the gates ajar for culprits to flee justice under theguise of interpretative enlargement of golden rules ofcriminal jurisprudence.The Constitution and the criminalThe inherent quandary of the penal law in this area springsfrom the implanted dilemma of exacting solicitude forpossible innocents forced to convict themselves out of theirown lips by police tantrums and the social obligation of thelimbs of the law and agencies of justice to garner truthfrom every quarter, to discover guilt, wherever hidden, andto fulfill the final tryst of the justice system withsociety. Which is to shield the community againstcriminality by relentless pursuit of the culprit, by proofof guilt and punishment of crime, not facilitation of thefleeing criminal from the chase of the appointed authoritiesof the State622charged with the task of investigating, testing, proving andgetting punished those whose anti-social exploits makecitizens' life vulnerable.The paradox has been put sharply by Lewis Mayers : "Tostrike the balance between the needs of law enforcement onthe one hand and the protection of the citizen fromoppression and injustice at the hands of the law-enforcementmachinery on the other is a perennial problem of statecraft. The pendulum over the years has swung to the right.

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Even as long ago as the opening of the twentieth century,Justice Holmes declared that 'at the present time in thiscountry there is more danger that criminals will escapejustice than that they will be subject to tyranny. As thecentury has unfolded, the danger has increased.Conspiracies to defeat the law have, in recent decades,become widely and powerfully organized and have been able touse modern advances in communication and movement to makedetection more difficult. Lawbreaking tends to increase.During the same period, an increasing awareness of thepotentialities of abuse of power by law enforcementofficials has resulted, in both the judicial and thelegislative spheres, in a tendency to tighten restrictionson such officials, and to safeguard even more jealously therights of the accused, the suspect, and the witness. It isnot too much to say that at mid-century we confront a realdilemma in law enforcement.In consequence, there is clearly discernible a tendency toreexamine the assumptions on which rest our complex of rulesand doctrines which offer obstacles, perhaps wisely, to thediscovery and proof of violations of law. In such a re-examination, the cluster of rules commonly grounded underthe term 'privilege against self-incrimination', which hasfor many decades been under attack, peculiarly calls forrestudy. In the words of Wigmore, 'Neither the history ofthe privilege, nor its firm constitutional anchorage needdeter us from discussing at this day its policy. As abequest of the 1600's, it is but a relic of controversies,and convulsions which have long since ceased...... Nor doesits constitutional sanction, embodied in a clause of half adozen words, relieve, us of the necessity of considering itspolicy.......... A sound and intelligent opinion must beformed upon the merits of the policy."Justice Douglas made this telling comment:

"As an original matter it might be debatablewhether the provision of the Fifth Amendmentthat no person "shall be compelled in anycriminal case to be a witness against himself'serves the ends of justice" (1952).

These prologuic lines serve as background to a balancedapproach to the crucial question posed before us.A police lapseBefore discussing the core issues, we wish to note ourregret, in this case, at a higher level police officer,ignorantly insisting on a woman appearing at the policestation in flagrant contravention of the wholesome provisoto Section 160(1)623of the Cr.P.C. Such deviance must be visited with promptpunishment since policemen may not be a law unto themselvesexpecting others to obey the law. The wages of indifferenceis reprimand, of intransigence disciplinary action. If thealibi is that the Sessions Court had directed the accused toappear at the police station that is no absolution for apolice officer from disobedience of the law. There ispublic policy, not complimentary to the police personalbehind this legislative proscription which keeps juvenilesand females from police company, except at the former's saferesidence. May be, in later years, community confidence andconsciousness will regard the police force as entitled tobetter trust and soften the stigmatising or suspiciousprovisions now writ across the Code.It is necessary, to appreciate the submissions, to rememberthe admitted fact that this is not the only case orinvestigation against the appellant and her mind may movearound these many investigations, born and unborn, as she isconfronted with questions. The relevance of this factor

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will be adverted to later.Setting the perspective of Art. 20(3) and Sec. 161 (2).Back to the constitutional quintessence invigorating the banon self-incrimination. The area cove-red by Art. 20(3) andSection 161(2) is substantially the same. So much so, weare inclined to the view, terminological expansion apart,that Section 161(2) of the Cr.P.C. is a parliamentary glosson the constitutional clause. The learned Advocate Generalargued that Art. 20(3), unlike Section 161(1), did notoperate at the anterior stages before the case came to courtand the accused's incriminating utterance, previouslyrecorded, was attempted to be introduced. He relied on somepassages in American decisions but, in our understanding,those passages do not so circumscribe and, on the otherhand, the land mark Miranda v. Arizona(1) ruling did extendthe embargo to police investigation also. Moreover, Art. 20(3), which is our provision, warrants no such truncation.Such a narrow meaning may emasculate a necessary protection.There are only two primary queries involved in this clausethat seals the lips into permissible silence, (i) Is theperson called upon to testify ,accused of any offence', (ii)Is he being compelled to be witness against himself ? Aconstitutional provision receives its full semantic rangeand so it follows that a wider connotation must be impartedto the expressions 'accused of any offense' and 'to bewitness against himself. The learned Advocate General,influenced by American decisions rightly agreed that inexpress terms Section 161(2) of the Code mightcover not merely accusations already registered in policestations but those which are likely to be the basis forexposing a person to a criminal charge. Indeed, this widerconstruction, if applicable to Art. 20(3), approximates theconstitutional clause to the explicit statement of theprohibition in section 161(2). This latter provisionmeaningfully uses the expression 'expose himself to acriminal charge. Obviously, these words mean, not onlycases where the person is already exposed to a criminalcharge but also instances which will imminently expose himto criminal charges. In Art.(1)384 U.S 436 (1966).62420(3), the expression 'accused of any offence, must meanformally accused in praesenti not in futuro-not evenimminently as decisions now stand. The- expression 'to bewitness against himself' means more than the court process.Any. give of evidence, any furnishing of information, iflikely to have an incriminating impact. answers the descrip-tion of being witness against oneself. Not being limited tothe forensic stage by express words in Art. 20 (3), we haveto construe the expression to apply to every stage wherefurnishing of information and collection of materials takesplace. That is to say, even the investigation at the policelevel is embraced by Art. 20(3). This is precisely whatSection 161(2) means. That sub-section relates to oralexamination by police officers and grants immunity at thatstage. Briefly, the Constitution and the Code arecoterminous in the protective area. While the Code may bechanged the Constitution is more enduring. Therefore, wehave to base our conclusion not merely upon Section 1 61 (2)but on the more fundamental protection, although equal inambit, contained in Art. 20(3).In a way this position brings us nearer to the Mirandamantle of exclusion which extends the right against self-incrimination, to police examination and custodialinterrogation and takes in suspects as much as regularaccused persons. Under the Indian Evidence Act, the Mirandaexclusionary rule that custodial interrogations are

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inherently coercive finds expression (section 26), althoughthe Indian provision confines it to confession which is anarrower concept than self-crimination.We halve earlier spoken of the conflicting claims requiringreconciliation. Speaking pragmatically, there exists arivalry between societal interest in effecting crimedetection and constitutional rights which accusedindividuals possess. Emphasis may shift, depending oncircumstances, in balancing these interests as has beenhappening in America, Since Miranda there has been retreatfrom stress on protection of the accused and gravitationtowards society's interest in convicting lawbreakers.Currently, the trend in the American jurisdiction accordingto legal journals, is that 'respect for (constitutional)principles is eroded when they leap their proper bounds tointerfere with the legitimate interests of 'society inenforcement of its laws........ (78) Couch v. United States,409 U.S.322, 336 (1972). Our constitutional perspectivehas, therefore, to be relative and cannot afford to be abso-lutist, especially when fortune technology crime escalationand other social variables affect the application ofprinciples in producing humane justice.Whether we consider the Talmudic law or the Magna Carta, theFifth Amendment, the provisions of other constitutions orArticle 20(3), the driving force- behind the refusal topermit forced self-crimination is the system of torture byinvestigators and Courts from medieval times to modern days.Law is a response to life and the English rule of theaccused's privilege of silence may easily be traced as asharp reaction to the court of Star-Chamber when self-incrimina-625tion was not regarded wrongful. Indeed, then the centralfeature of the criminal proceedings, as Holdsworth hasnoted, was the examination of the accused.The horror and terror that then prevailed did, as a reactiongive rise to the reverential principle of immunity frominterrogation for the accused. Sir James Stephen hasobserved :

"For at least a century and a half the(English) Courts have acted upon thesupposition that to question a prisoner isillegal This opinion arose from a peculiar andaccidental state of things which has longsince- passed away and our modem law is infact derived from somewhat questionable sourcethough it may no doubt be defended (Sir JamesStephen (1857)."

Two important considerations must be placed at the forefrontbefore sizing up the importance and impregnability of theanti-self-incrimination guarantee. The first is that wecannot afford to write off the fear of police tortureleading to forced self-incrimination as a thing of the past.Recent Indian history does not permit it, contemporary world history does not condone it. A recent articleentitled 'Minds behind Bars', published in the December,1977 issue of the Listener, tells an awesome story : "Thetechnology of torture all over the world is growing evermore sophisticated-new devises can destroy a prisoner's willin a matter of hours-but leave no visible marks or signs ofbrutality. And government-inflicted terror has evolved itsown dark sub-culture. All over the world, torturers seem tofeel a desire to appear respectable to their victims Thereis an endlessly inventive list of new methods of inflictingpain and suffering on fellow human beings that quickly crosscontinents and ideological barriers through some kind ofinternational secret-police net work.

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that we feel that public opinion in several countries ismuch more aware of our general line than before. And thatis positive. I think, in the long run, governments can'tignore that. We are also encouraged by the fact that,today, human rights are discussed between governments theyare now on the international political agenda. But, in theend, what matters is the pain and suffering the individualendures in police station or cell."Many police officers, Indian and foreign, may be perfectgentlemen, many police stations, here and elsewhere, may bewholesome. Even so the law is made for the generality andGresham's Law does not spare the Police force.On the other hand, we must never forget that crimes, inIndia and internationally, are growing and criminals areoutwitting the detectives. What holds good in the cities ofthe United States is infecting other 'countries, includingour own. An American author in a recent book(1) has stated: "What do you think the city of tomorrow will(1) Roger Lamphear, J.D.'s book entitled 'To Solve the Age-Old problem of Crime.626be ? In 1969 the National Commission on the Causes andPrevention of Violence made alarming predictions. You willEve in a city where everyone has guns Houses will beprotected by grils and spy equipment. Armed citizen patrolswill be necessary. The political extremes will be smallarmies. Busses will have to carry armed guards. There willbe hatred and war between the races, and between the richand the poor. (63, Pg. 44) In other words, your city win bea place of terror."From 1969 to 1974 the number of crimes for each hundredthousand people is up 38%. (48, pg. 12) Violent crimes rose47%. (48, pg. 23) Robbery increased 48%. (48, pg. 25)Burglary went up a whopping 53%. (48, pg. 29) Theft rose35%. (48, pg. 32) The chances are becoming better and betterthat you or someone dear to you will be a victim. Thechances are also better that a close relative will beinvolved in crime as criminal.". . . In only 12% of the serious crimes is there a suspectarrested. Half of those are convicted. (Serious crimeincludes homicide, burglary, aggravated assault, larcenyover $ 50, forcible rape, robbery, and auto theft.) (63 pg.XVIH)."The situation is so discouraging that only half the peoplebother to report serious crime. ( 63, pg. XVIII) Even then,in 1974, 82% of the known burglaries went unsolved. (48, pg.42) That means only 18% of the half known to the police weresolved."...... President Johnson's message to Congress March 8,1965 is as true today as it was then

'Crime has become a malignant enemy inAmerica's midst...... We must arrest andreverse the trend towards lawlessness .... Wecannot tolerate an endless, self-defeatingcycle of imprisonment, release, andreimprisonment which fails to alterundesirable attitudes and behaviour. We mustfind ways to help the first offender avoid acontinuing career to crime."'

The first obligation of the criminal justice system is tosecure justice by seeking and substantiating truth throughproof. Of course, the means must be as good as the ends andthe dignity of the individual and the freedom of the humanperson cannot be sacrificed by resort to improper means,however worthy the ends. Therefore, 'Third degree has to beoutlawed and indeed has been. We have to draw up clearlines between the whirlpool and the rock where the safety of

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society and the worth of the human person may co-exist inpeace.We now move down to the role of the Latin Maxim 'nemo tene-tur sciepsum tenetur' which, literally translated means, aman cannot represent himself as guilty. This rule prevailedin the Rabbinic courts and found a place in the Talmud (noone can incriminate, himself). Later came the Star Chamberhistory and Anglo-American revulsion. Imperial Britaintransplanted part of it into India in the627Cr. P.C. Our Constitution was inspired by the high-mindedinhibition against self-incrimination from Anglo-Americansources. Thus we have a broad review of the origins andbearings of the fundamental right to silence and theprocedural embargo on testimonial compulsion. The Americancases need not detain us, although Miranda V. Arizona(supra) being the Lodestar on the subject, may be referredto for grasping the basics of the Fifth Amendment bearing onoral incrimination by accused persons.We have said sufficient to drive home the anxious point thatthis cherished principle which proscribes compulsory self-accusation, should not be dangerously over-broad norillusorily whittled down. And it must openly work inpractice and not be a talismatic symbol. The Miranda rulingclothed the Fifth Amendment with flesh and blood and so mustwe, if Art. 20(3) is not to prove a promise of unreality.Aware that the questions raised go to the root of criminaljurisprudence we seek light from Miranda for interpretation,not innovation, for principles in their settings, notborrowings for our conditions. The spiritual thrust of thetwo provisions is the same and it is best expressed in thewords of Brown v. Walker.(1)"Over 70 years ago, our predecessors on this Courteloquently statedThe maxim nemo tenetur sceipsum accusare had its origin in aprotest against the inquisitorial and manifestly unjustmethods of interrogating accused persons, which (have) longobtained in the continental system, and, until the expulsionof the Stuarts from the British throne in 1688, and theerection of additional barriers for the protection of thepeople against the exercise of arbitrary power, (were) notuncommon even in England. While the admissions orconfessions of the prisoner when voluntarily and freelymade, have always ranked high in the scale of incriminatingevidence, if an accused person be asked to explain hisapparent connection with a crime under investigation, thecase with which the questions (384 US 443) put to him mayassume an inquisitorial character, the temptation to pressthe witness unduly, to browbeat him if he be timid orreluctant, to push him into a corner, and to entrap him intofatal contradictions, which is so painful evident in many ofthe earlier state trials, notably in those of Sir NicholasThrockmorton, and Udal, the Puritan Minister, made thesystem so odious as to give rise to a demand for its totalabolition. The change in the English criminal procedure inthat particular seems to be founded upon no statute and nojudicial opinion, but upon a general and silent acquiescenceof the courts in a popular demand. But, however adopted, ithas become firmly embedded in English, as well as inAmerican jurisprudence. So deeply did the iniquities of theancient system impress themselves upon the minds of theAmerican colonists that the States, with one accord, made adenial of the right to question an accused person a part oftheir fundamental law, so that a maxim, which in England wasa mere rule of evidence, became clothed in this country withthe impregnability of a constitutional enactment."(1) 40 L.Ed. 819.

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628Chief Justice Warren mentioned the setting of the case andof the times such as official overbearing, 'third degree',sustained and protracted questioning incommunicado, roomscut off from the outside world, methods which flourished butwere becoming exceptions. 'But',, noted the Chief Justice,'they are sufficiently widespread to be the object ofconcern'. The Miranda court quoted from the conclusion ofthe Wickersham Commission Report made nearly half a centuryago, and continued words which ring a bell in Indian bosomsand so we think it relevant to our consideration and readit;

"To the contention that the third degree isnecessary to get the facts, the reportersaptly reply in the language of the presentLord Chancellor of England (Lord Sankey) : 'Itis not admissible to do a great right by doinga little wrong ........ It is not sufficientto do justice by obtaining a proper result byirregular or improper means.' Not only doesthe use of the third degree involve a flagrantviolation of Law by the officers of the law,but it involves also the dangers of falseconfessions, and it tends to make police andprosecutors less zealous in the search forobjective evidence. As the New Yorkprosecutor quoted in the report said, 'It is ashort cut and makes the police lazy andunenterprising.' Or, as another officialquoted remarked : 'If you use your fists, youare not so likely to use your wits. (384 US448)' We agree with the conclusion expressedin the report, that 'The third degreebrutalizes the police, hardens the prisoneragainst society, and lowers the esteem inwhich the administration of justice is held bythe public.' "

[IV National Commission on Law Observance and Enforcement,Report on Lawlessness in Law Enforcement 5(1931).]

(7) 'Again we stress that the modernpractice of in custody interrogation ispsychologically rather than physicallyoriented, As we have stated before, "SinceChambers v. Florida, 309 US 227 (84 L.Ed.716), this Court has recognized that coercioncan be mental as well as physical and that theblood of the accused is not the only hallmarkof an unconstitutional inquisition." Blackburnv. Alabama, 4 L.Ed. 2d 242. Interrogationstill takes place in privacy. Privacy resultsin secrecy and this in turn results in a gapin our knowledge as to what in fact goes on inthe interrogation rooms. A valuable source ofinformation about present police practises,however, may be found in various policemanuals and texts which document proceduresemployed with success in the past, and whichrecommend various other effective tactics.These texts (384 US 449) are used by lawenforcement agencies themselves as guides. itshould be noted that these texts professedlypresent the most enlightened and effectivemeans presently used to obtain statementsthrough custodial interrogation. Byconsidering these texts and other data, it ispossible to describe procedures observed andnoted around the country."

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629The officers are told by the manuals that the'principal psychological factor contributingto successful interrogation is privacy beingalone with the person under interrogation.'(Inbau & Reid,-Criminal Interrogation andConfessions (1962, at 1.) The efficacy of thistactic has. been explained as follows :

'If at all practicable, the interrogation should take placein the investigator's office or at least in a room of hisown choice. The subject should be deprived of everypsychological advantage. In his own home he may beconfident, indignant, or recalcitrant. He is more keenlyaware of his rights and more (384 US 450) reluctant to tellof his indiscretions or criminal behaviour within the wallsof his home.. Moreover his family and other friends arenearby, their presence lending moral support. In his ownoffice, the investigator possesses all the advantages Theatmosphere suggests the invincibility of the forces of thelaw.' [O'Hara, Fundamentals of Criminal Investigation (1956)at 99].To highlight the isolation and unfamiliar surroundings, themanuals instruct the police to display an air of confidencein the suspects guilt and from outward appearance tomaintain only an interest in confirming certain details.The guilt of the subject is to be posited as a fact. Theinterrogator should direct his comments toward the reasons,why the subject committed the act rather than court failureby asking the subject whether he did it. Like other men,perhaps the subject has had a bad family life, had anunhappy childhood, had too much to drink, had an unrequiteddesire for women. The officers are instructed to minimisethe moral seriousness of the offense, (Inbau & Reid, supraat 34-43, 87) to cast blame on the victim or on society.These tactics are designed to put the subject in apsychological state where his story is but an elaboration ofwhat the police purport to know already that he is guilty.Explanations to the contrary are dismissed and discouraged.The texts thus stress that the major qualities aninterrogator should possess are patience and perseverance.One writer (384 US 451) describes the efficacy of thesecharacteristics in this manner :'In the preceding paragraphs emphasis has been placed onkindness and stratagems. The investigator will, however,encounter many situations where the sheer weight of hispersonality will be the deciding factor. Where emotionalappeals and tricks are employed to no avail, he must rely onan oppressive atmosphere of dogged persistence. He mustinterrogate steadly and without relent, leaving the subjectno prospect of surcease. He must dominate his subject andoverwhelm him with his inexorable will to obtain the truth.He should interrogate for a spell of several hours pausingonly for the subject's necessities in acknowledgment of theneed to avoid a charge of duress that can be technicallysubstantiated. In a serious case, the interrogation maycontinue for days, with the required intervals for food andsleep, but with no respite from the atmosphere ofdomination. It is possible in630this way to induce the subject to talk without resorting toduress or coercion. The method should be used only when theguilt of the subject appears highly probable. (O'Hara, Supraat 112)The manuals suggest that the, suspect be offered legalexcuses for his actions in order to obtain an initialadmission of guilt. Where there is a suspected revenge-killing, for example, the interrogator may say :

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'Joe, you probably did not go out looking for this fellowwith the purpose of shooting him. My guess is, how-ever,that you expected something from him and that's why youcarried a gun-for your own protection. You know him forwhat he was, no good. Then when you met him he probablystarted using foul, abusive, language and he gave someindication that (384 US 452) he was about to pull a gun onyou, and that's when you had to act to save your own life.That's about it, isn't it, Joe ?' (Inbau & Reid, supra, at40).

Having then obtained the admission ofshooting, the interrogator is advised to referto circumstantial evidence which negates theself-defense explanation. This should enablehim to secure the entire story. One textnotes that "Even if he fails to do so, theinconsistency between the subject's originaldenial of the shooting and his presentadmission of at least doing the shooting willserve to, deprive him of a self-defense 'out'at the time of trial." (Ibid).When the techniques described above proveunavailing, the texts recommend they bealternated with a show of some hostility. Oneploy often used has been termed the "friendly-unfriendly" or the "mutt and Jeff" act.

A thorough and intimate sketch is made of the versatility ofthe arts of torture developed officially in American countrycalculated to break, by physical or psychological crafts,the morale of the suspect and make him cough up confessionalanswers. Police sops and syrups of many types areprescribed to wheedle unwitting words of guilt from tough orgentle subjects. The end product is involuntaryincrimination, subtly secured, not crudely traditional. Ourpolice processes are less 'scholarly' and sophisticated, but?Another moral from the Miranda reasoning is the burningrelevance of erecting protective fenders and to make theirobservance a police obligation so that the angelic article[20(3)] may face upto satanic situations. Says ChiefJustice Warren

"In these cases, we might not find thedefendants' statements to have beeninvoluntary in traditional terms. Our concernfor adequate safeguards to protect preciousFifth Amendment right is, of course, notlessened in the slightest. In each of thecases, the defendant was thrust into an un-familiar atmosphere and run through menacingpolice interrogation procedures. Thepotentiality for compulsion is forcefullyapparent, for example, in Miranda, where the631indigent Mexican defendant wag a seriouslydisturbed individual with pronounced sexualfantasies, and in Stewart, in which thedefendant was an indigent Los Angeles Negrowho had dropped out of school in the sixthgrade. To be sure, the records do not evinceovert physical coercion or patentpsychological ploys. The fact remains that innone of these cases did the officers undertaketo afford appropriate safeguards at the outsetof the interrogation to insure that thestatements were truly the product of freechoice. (8,9). It is obvious that such aninterrogation environment is created for no

23


purpose other than to subjugate the individualto the will of his examiner. This atmospherecarried its own badge of intimidation. To besure, this is not physical intimidation, butit is equally destructive of human dignity.[Professor Sutherland recent article, Crimeand Confession, 79 Hary 1 Rev 21, 37 (1965)].The current practice of incommunicadointerrogation is at odds with one of ourNation's (384 US 458) most cherishedprinciples-that the individual may not becompelled to incriminate himself. Unlessadequate protective devices are employed todispel the compulsion inherent in custodialsurroundings, no statement obtained from thedefendant can truly be the product of his freechoice."

We feel that by successful interpretation judge-centred lawmust catalyze community-centred legality.There is one touch of nature which makes the judicial worldkin the love of justice-in-action and concern for humanvalues. So, regardless of historical origins and politicalborrowings, the framers of our Constitution have cognisedcertain pessimistic poignancies and mellow life meanings andobligated judges to maintain a 'fair state individualbalance' and to broaden the fundamental right to fulfil itspurpose, lest frequent martyrdoms reduce the article to amock formula. Even silent approaches, furtive moves, slightdeviations and subtle ingenuities may erode the article'svalidity unless the law outlaws illegitimate andunconstitutional procedures before they find their firstfirm footing. The silent cause of the final fan of the talltower is the first stone obliquely and obliviously removedfrom the base. And Art. 20(3) is a human article, aguarantee of dignity and integrity and of inviolability ofthe person and refusal to convert an adversary system intoan inquisitorial scheme in the antagonistic antechamber of apolice station. And in the long run, that investigation isbest which uses stratagems least, that policeman deservesrespect who gives his fists rest and his wits restlessness.The police are part of us and must rise in peoples' esteemthrough firm and friendly, not foul and sneaky strategy.The police reflect the State, the State society. The Indianlegal situation has led to judicial concern over the, Statev. individual balance. After tracing the English andAmerican developments in the law against self-incrimination,Jagannadhadas, J., in M. P. Sharma's(1) case observed(1) [1954] S.C.R. 1077, at 1085, 1086.632

"Since the time when the principle ofprotection against self-incrimination becameestablished in English law and in othersystems of law which have followed it, therehas been considerable debate as to the utilitythereof and serious doubts were held in somequarters that this principle has a tendency todefeat justice. In support of the principleit is claimed that the protection of accusedagainst self-incrimination promotes activeinvestigation from external sources to findout the truth and proof of alleged orsuspected crime instead of extortion ofconfessions on unverified suspicion.... On theother hand, the opinion has been strongly heldin some quarters that this rule has anundesirable effect an social interests andthat in the detection of crime, the State is

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confronted with overwhelming difficulties as aresult of this privilege. It is said this hasbecome a hiding place of crime and hasoutlived its usefulness and that the- rightsof accused persons are amply protected withoutthis privilege and that no innocent person isin need of it. . . . ""In view of the above background, there is noinherent reason to construe the ambit of thisfundamental right as comprising a very widerange. Nor would it be legitimate to confineit to the barely literal meaning of the wordsused, since it is a recognised doctrine thatwhen appropriate a constitutional provisionhas to be liberally construed, so as toadvance the intendment thereof and to preventits circumvention......Issues Answered.'Any person' in Sec. 161Cr.P.C.

We will now answer the questions suggested at the beginningand advert to the decisions of our Court which set the toneand temper of the 'silence' clause and bind us willy nilly.We have earlier explained why we regard Section 161 (2) as asort of parliamentary commentary on Article 20(3). So, thefirst point to decide is whether the police have power underSections 160 and 161 of the Cr. P.C. to question a personwho, then was or, in the future may incarnate as, an accusedperson. The Privy Council and this Court have held that thescope of section 161 does include actual accused andsuspects and we deferentially agree without repeating thedetailed reasons urged before us by counsel.The Privy Council, in Pakala Narayana Swami v. Emperor(1)reasoned at p. 51 :

" If one had to guess at the intention of theLegislature it,, framing a Section in thewords used, one would suppose that they had inmind to encourage the free disclosure ofinformation or to protect the person makingthe statement from a supposed unreliability ofpolice testimony as to alleged statements orboth. In any case the reasons would apply as

(1) A.I.R. 1939 P.C. 47.633

might be thought a fortiori to an allegedstatement made by a person ultimately accused.But in truth when the meaning or words isplain it is not the duty of the Courts to busythemselves with supposed intentions.I have been long and deeply impressed with thewisdom of the rule, none believe universallyadopted, at least in the Courts of law inWestminster Hall, that in construing wills andindeed statutes, and all written instruments,the grammatical and ordinary sense of thewords is to be adhered to, unless that wouldlead to some absurdity, or some repugnance orinconsistency with the rest of theinstruments, in which case the grammatical andordinary sense of the words may be modified,so as to avoid that absurdity and incon-sistency, but no farther : Lord Wensleydale in(1875) 6 HLC 613 at p. 106.My Lords, to quote from the language of TindalC.J. when delivering the opinion of the Judgesin (1844) 11 CL & F 85 at page 143, 'The onlyrule for the construction of Acts ofParliament is that they should be construed

25


according to the intent of the Parliamentwhich passed the Act. If the words of thestatute are in themselves precise andunambiguous, then no more can be necessarythan to expound those words in their naturaland ordinary sense. The words themselvesalone do in such case best declare theintention of the law-giver. But if any doubtarises from' the terms employed by theLegislature, it has always been held a safemeans of collecting the intention, to call inaid the ground and cause of making thestatute, and to have recourse to the preamblewhich according to Dyer C.J. (1562) 1 Plowd353 at p. 369 is a key to open the minds ofthe makers of the Act, and the mischiefs whichthey are intended to redress. : Lord HalsburyLC in (1891) AC 531 at p. 542.'

They reached the conclusion that 'any person' in s. 161 Cr.P.C.; would include persons then or ultimately accused. Theview was approved in Mahabir Mandal v. State of Bihar.(1) Wehold that 'any person supposed to be acquainted with thefacts and circumstances of the case' includes an accusedperson who fills that role because the police suppose him tohave committed the crime and must, therefore, be familiarwith the facts. The supposition may later prove a fictionbut that does not repel the section. Nor does the marginalnote 'examination of witnesses by police' clinch the matter.A marginal note clears ambiguity but does not controlmeaning. Moreover, the suppositions accused figuresfunctionally as a witness. 'To be a witness', from afunctional angle, is to impart knowledge in respect of arelevant fact, and that is precisely the purpose ofquestioning the accused under section 161, Cr. P.C. Thedichotomy between 'witnesses' and 'accused' used as terms ofart, does not hold good here. The(1) [1972] 3 S.C.R. 639 at p. 657.6-315 SCI/78.634amendment, by Act XV of 1941, of sec. 162(2) of theCr.P.Code is a legislative acceptance of the Pakala NarayanaSwamy reasoning and guards against a possible repercussionof the ruling. The appellant squarely fell within theinterrogational ring. To hold otherwise is to fold upinvestigative exercise, since questioning suspects isdesirable for detection of crime and even protection of theaccused. Extreme positions may boomerang in law as inpolitics. Moreover, as the Miranda decision states (p. 725,726) :

"It is an act of responsible citizenship forindividuals to give whatever information theymay have to aid in law enforcement.Confessions remain a proper element in lawenforcement. Any statement given freely andvoluntarily without any compelling influencesis. of course, admissible in evidence. Thefundamental import of the privilege whilean individual is in custody is not whether heis allowed to talk to the police without thebenefit of warnings and counsel but whether hecan be interrogated. There is no requirementthat police stop a person who enters a policestation and states that he wishes to confessto a crime, or a person who calls the policeto offer a confession or any other statementhe desires to make. Volunteered statements ofany kind are not barred by the Fifth Amendment

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and their admissibility is not affected by ourholding today. (emphasis added)

A recurrent argument, made in these cases is that society'sneed for interrogation outweighs the privilege. Thisargument is not unfamiliar to this Court. See. e.g.,Chambers v. Florida, 309 US 227, 240-241, 84 Led 716, 724,60 S Ct 472 (1940). The whole thrust of our foregoingdiscussion demonstrates that the Constitution has prescribedthe rights of the individual when confronted with the powerof Government when it provided in the Fifth Amendment thatan individual cannot be compelled to be ;A witness againsthimself. That right cannot be abridged. As Mr. JusticeBrandeis once observed

"Decency, security and liberty alike demandthat government officials shall be subjectedto the same rules of conduct that are commandsto the citizens. In a government of lawsexistence of the government will be imperiledif it fails to observe the law scrupulously.Our Government is the potent, the omnipresentteacher. For good or for ill, it teaches thewhole people by its example. Crime iscontagious. If the Government becomes a law-breaker, it breeds contempt for law; itinvites every man to become a law untohimself, it invites anarchy. To declare thatin the administration of the criminal law theend justified the means would bring terribleretribution. Against that pernicious doctrinethis635Court should resolutely set its face."Olmstead v. UnitedStates, 277 US 438, 485, 72 L ed 944, 959, 48S Ct 564, 66 ALR 376 (1928) (dissentingopinion)."

In this connection, one of our country's distinguishedjurists has pointed out : "The quality of a nation'scivilization can be largely measured by the methods it usesin the enforcement of the criminal law. "(emphasis added)Art. 20(3) 'Accused of an offence'It is idle to-day to ply the query whether a person formallybrought into the police diary as an accused person iseligible for the prophylactic benefits of Art. 20(3). Heis, and the learned Advocate General fairly stated,remembering the American cases and the rule of liberalconstruction, that suspects, not yet formally charged butembryonically are accused on record, also may swim into theharbour of Art. 20 (3 ). We note this position but do nothave to pronounce upon it because certain observations inOghad's case [1962 (3) SCR 10] conclude the issue. And inBansilal's case [1961 (1) SCR 417] at p. 438, this Courtobserved

"Similarly, for invoking the constitutionalrights against testimonial compusionguaranteed under Art. 20(3) it must appearthat a formal accusation has been made againstthe party pleading the guarantee and that itrelates to the commission of an offence whichin the normal course may result inprosecution. Here again the nature of theaccusation and its probable sequel orconsequence are regarded as important.Thus we go back to the question which we havealready posed, was the appellant accused ofany offence at the time when the impugnednotices were served on him ? In answering this

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question in the light of the tests to which wehave just referred it will be necessary todetermine the scope and nature of the enquirywhich the inspector undertakes under s. 240;for, unless it is shown that an accusation ofa crime can be made in such an enquiry, theappellant's plea under Art. 20(3) cannotsucceed. Section 240 shows that the enquirywhich the inspector undertakes is in substancean enquiry into the affairs of the companyconcerned.If, after receiving the report, the CentralGovernment is satisfied that any person isguilty of an offence for which be iscriminally liable, it may, after taking legaladvice, institute criminal proceedings againstthe offending person under s. 242(1); but thefact that a prosecution may ultimately belaunched against the alleged offender will notretrospectively change the complexion orcharacter of the proceedings held by theinspector when he makes the investigation.Have irregularities been committed in managingthe affairs of the636company; if yes, what is the nature of theirregularities ? Do they amount to thecommission of an offence punishable under thecriminal law? If they do who is liable forthe said offence ? These and such otherquestions fall within the purview of theinspector's investigation. The scheme of therelevant sections is that the investigationbegins broadly ,with a view to examine themanagement of the affairs of the company tofind out whether any irregularities have beencommitted or not. In such a case there is noaccusation, either formal or otherwise,against any specified individual; there may bea general allegation that the affairs areirregularly, improperly or illegally managed;but who would be responsible for the affairswhich are reported to be irregularly managedis a matter which would be determined at theend of the enquiry. At the commencement ofthe enquiry and indeed throughout itsproceedings there is no accused person, noaccuser and no accusation against anyone thathe has committed an offence. In our opinion ageneral enquiry and investigation into theaffairs of the company thus contemplatedcannot be regarded as in investigation whichstarts with an accusation contemplated in Art.20(3) of the Constitution. In this connectionit is necessary to remember that the relevantsections of the Act appear in Part VI whichgenerally deals with management andadministration of the companies."In Raja Narayanlal Bansilal v. Maneck PhirozMistry and Anr. (supra), the admissibility ofa statement made before an Inspector appointedby the Government of India under the IndianCompanies Act, 1923, to investigate theaffairs of a Company and to report thereon wascanvassed. It was observed at p. 43 6 :".......... one of the essential conditionsfor invoking the constitutional guarantee

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enshrined in Art. 20(3) is that a formalaccusation relating to the, commission of anoffence, which would normally lead to hisprosecution, must have been levelled againstthe party who is being compelled to giveevidence against him."

Sinha, C. J., speaking for the majority of the Court inKathi Kalu Oghad's case,(1) stated thus :

"To bring the statement in question within theprohibition of Art. 20(3), the person accusedmust have stood in the character of an accusedperson at the time he made the statement. itis not enough that he 'should become anaccused, any time after the statement has beenmade."

Further observations in Bansilars case make it out that inan enquiry undertaken by a Inspector to investigate into theaffairs of a company, the statement of a person not yet anaccused, is not hit by Art. 20(3).(1) [1962] 3 S.C.R. 10 at 37.637Such a general enquiry has no specific accusation before itand, therefore, no specific accused whose guilt is to beinvestigated. Therefore,, Art. 20(3) stands excluded.In R. C. Mehta v. State of West Bengal(1) also the Courtobserved

"........ Normally a person stands in thecharacter of an accused when a FirstInformation Report is lodged against him inrespect of an offence before an Officercompetent to investigate it, or when acomplaint is made relating to the commissionof an offence before a Magistrate competent totry or send to another Magistrate for trial ofthe offence. Where a Custom Officer arrests aperson and informs that person of the groundsof his arrest, (which he is bound to do underArt. 22(1) of the Constitution) for thepurpose of holding an enquiry into theinfringement of the provisions of the SeaCustoms Act which he has reason to believe hastaken place, there is no formal accusation ofan offence: In the case of an offence byinfringement of the Sea Customs Act andpunishable at the trial before a Magistratethere is an accusation when a complaint islodged by an officer competent in that behalfbefore the Magistrate."

Reliance was placed on Ghagwandas Goenka v. Union ofIndia(2) where this Court has said :

"The information collected under s. 19 is forthe purpose of seeing whether a prosecutionshould be launched or not. At that stage wheninformation is being collected there is noaccusation against the person from whominformation is being collected. It may bethat after the information has been collectedthe Central Government or the Reserve Bank maycome to the conclusion that there is no casefor prosecution and the person concerned maynever be accused. It cannot therefore bepredicted that the person from whominformation is being collected under s. 19 isnecessarily in the position of an accused.The question whether he should be made anaccused is generally decided after informationis collected and it is when a show cause

29


notice is issued, as was done in this case onJuly 4, 1955, that it can be said that aformal accusation has been made against theperson concerned. We are therefore of theopinion that the appellant is not entitled tothe protection of Art. 20(3) with respect tothe information that might have been collectedfrom him under, s. 19 before July 4, 1955."

It is plausible to argue that, where realism prevails overformalism and probability over possibility, the enquiriesunder criminal statutes with quasi-criminal investigationsare of an accusatory nature and are,(1) [1969] 2 S.C.R. 461.(2) Crl. Appeals Nos. 131 & 132/61 dt. 20-9-63 (Unreportedjudgement).638sure to end in prosecution, if the offence is grave and theevidence gathered good. And to deny the protection of aconstitutional shield designed to defend a suspect becausethe enquiry is preliminary and may possibly not reach thecourt is to erode the substance while paying hollow homageto the holy verbalism of the article. We are not directlyconcerned with this facet of Art. 20(3); nor are we free togo against the settled view of this Court. There it is.At what stage of the justice process does Art. 20(3) operate?Another fatuous opposition to the application of theconstitutional inhibition may be noted and negatived. Doesthe ban in Art. 20(3) operate only when the evidencepreviously procured from the accused is sought to beintroduced into the case at the trial by the court? Thissubmission, if approved, may sap the juice and retain therind of Art. 20(3) doing interpretative violence to thehumanist justice of the proscription.The text of the clause contains no such clue, its intendmentis stultified by such a judicial 'amendment' and anexpensive construction has the merit of natural meaning,self-fulfilment of the 'silence zone' and the advancement ofhuman rights. We over-rule the plea for narrowing down theplay of the sub-article to the forensic phase of trial. Itworks where the mischief is, in the womb, i.e. the policeprocess. In the language of Miranda.

"Today, then, there can be no doubt that theFifth Amendment privilege is available outsideof criminal court proceedings and serves toprotect persons in all settings in which theirfreedom of action is curtailed in anysignificant way from being compelled toincriminate themselves."

The constitutional shield must be as broad as thecontemplated danger. The Court in M.P. Sharma's (supra) casetook this extended view.

"Indeed, every positive volitional act whichfurnishes evidence. is testimoney, andtestimonial compulsion connotes coercion whichprocures the positive volitional evidentiaryacts of the person, as opposed to the negativeattitude of silence or submission on his part.Nor is there any reason to think that theprotection in respect of the evidence soprocured is confined to what transpires at thetrial in the court room. The phrase used inarticle 20(3) is "to be a witness" and not to"appear as a witness": It follows that theprotection afford to an accused in so far asit is related to the phrase "to be a witness"is not merely in respect of testimonial

30


compulsion in the court room but may wellextend to compelled testimony previouslyobtained from him. It is available thereforeto a person against whom a formal accusationrelating to the commission of an offence hasbeen levelled which in the normal course mayresult in prosecution. Whether it isavailable to other persons in other situationsdoes not call for decision in this case.(emphasis, added)639Considered in this light, the guarantee underarticle 20(3) would be available in thepresent cases to these petitioners againstwhom a First Information Report has beenrecorded as accused therein. It would extendto any compulsory Process for production ofevidentary documents which are reasonablylikely to support a prosecution against them."[P. 1088]

We have to apply this rule of construction, an off-shoot ofthe Heydon's case doctrinre, while demarcating the suspectand the sensitive area of self-crimination and the protectedsphere of defensive. silence. If the police can interrogateto the point of self-accusation, the subsequent exclusion ofthat evidence at the trial hardly helps because the harm hasbeen already done. The police will prove through otherevidence what they have procured through forced confession.So, it is that the foresight of the framers has preemptedself-incrimination at the incipient stages by not expresslyrestricting it to the trial stage in court. True, compelledtestimony previously obtained is excluded. But thepreventive blow falls also on pre-court testimonialcompulsion. The condition, as the decisions now go, is thatthe person compelled must be an accused. Both precedentprocurement and subsequent exhibition of self-criminatingtestimony are obviated by intelligent constitutionalanticipation.(i) What is an incriminatory statement ?(ii) What is compelled testimony ?Two vital, yet knotty, problems demand solution at thisstage. What is 'being witness against oneself'? Or, in theannotational language of sec. 161 (2), when are answerstainted with the tendency to expose an accused, to acriminal charge ? When can testimony be castigated as'compelled' ? The answer to the first has been generallyoutlined by us earlier. Not all relevant answers arecriminatory; not- all criminatory answers are confessions.Tendency to expose to a criminal charge is wider than actualexposure to such charge. The spirit of the American rulingsand the substance of this Court's observations justify this'wheels within wheels' conceptualization of self,-accusatorystatements. The orbit of relevancy is large. Every factwhich has a nexus to any part of a case is relevant, butsuch nexus with the case does not make it noxious to theaccused. Relevance may co-exist with innocence and consti-tutional censure is attracted only when inference of nocenceexists. And an incriminatory inference is not enough for aconfession. Only if, without more, the answer establishesguilt, does it amount to a confession. An illustration willexplicate our proposition.Let us hypothesize a homicidal episode in which A dies and Bis suspected of murder; the scene of the crime being 'C'.In such a case a bunch of questions may be relevant and yetbe innocent. Any one who describes the scene as well-woodedor dark or near a stream may be giving relevant evidence ofthe landscape. Likewise, the medical evidence of the wounds

31


on the deceased and the police evidence of the spots whereblood pools were noticed are relevant but vis-a-vis B mayhave no incriminatory force. But an answer that B was seenat or near640the scene, at or about the time of the occurrence or hadblood on his clothes will be criminatory, is the hazard ofinculpatory implication. In this sense, answers that would,in themselves, support a conviction are confessions butanswers which have a reasonable tendency strongly to pointout to the guilt of the accused are incriminatory. Relevantreplies which furnish a real and clear link in the chain ofevidence indeed to bind down the accused with the crimebecome incriminatory and offend Art. 20(3) if elicited bypressure from the mouth of the accused. If the, statementgoes further to spell in terms that B killed A, it amountsto confession. An answer acquires confessional status onlyif, in terms or substantially, all the facts whichconstitute the, offence ate admitted by the offender. Ifhis statement also contains self-exculpatory matter itceases to, be a confession. Article 20(3) strikes atconfessions and self-incriminations but leaves untouchedother relevant facts.In Hoffman v. United States (341 US 479) the Supreme Courtof the United States considered the scope of the privilegeagainst self-incrimination and held that it would extend notonly to answers that would in themselves support aconviction but likewise embrace those which would furnish alink in the chain of evidence needed to prosecute theclaimant. However, it was clarified that the link must bereasonably strong to make the accused apprehend danger fromsuch answer. Merely because he fancied that by such answerhe would incriminate himself he could not claim theprivilege of silence. It must appear to the court that theimplications of the question, in the setting in which it isasked, make it evident that a responsive answer or anexplanation of why it cannot be answered might be dangerousbecause injurious disclosure could result. The apprehensionof incrimination from the answer sought must be substantialand real as distinguished from danger of remotepossibilities or fanciful flow of inference. Two thingsneed emphasis. The setting of the particular case, thecontext and the environment i.e., the totality ofcircumstances, must inform the perspective of the Courtadjudging the incriminatory injury, and where reasonabledoubt exists, the benefit must go in favour of the right tosilence by a liberal construction of the Article. In Malloyv. Bogan, (12 L.Ed. 2d 653), the Court unhesitatingly heldthat the claim of a witness of privilege against self-incrimination has to be tested on a careful consideration ofall the circumstances in the case and where it is clear thatthe claim is unjustified, the protection is unavailable. Wehave summarised the Hoffman standard and the Malloy test.Could the witness (accused) have reasonably sensed the perilof prosecution from his answer in the conspectus ofcircumstances? That is the true test. The perception ofthe peculiarities of the case cannot be irrelevant in properappraisal of self-incriminatory potentiality. The cases ofthis Court have used different phraseology but set downsubstantially the same guidelines.Phipson, it is true, has this to say on self-incrimination :'The rule applies to questions not only as to directcriminal acts, but as to perfectly innocent matters formingmerely links in the chain of proof'. We think thisstatement too widely drawn if applied to Indian Statutoryand Constitutional Law. Cross also has overstated the lawgoing by Indian provisions by including in the prohibition

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even those answers 'which might be used as a step towardsobtaining evidence against him'. (The641policy behind the privilege, under our scheme, does notswing so wide as to sweep out of admissibility statementsneither confessional per se nor guilty in tendency butmerely relevant facts which, viewed in any setting, does nothave a sinister import. To spread the net so wide is tomake a mockery of the examination of the suspected, sonecessitous in the search for truth. Overbreadthundermines, and we demur to such morbid exaggeration of awholesome protection. Neither Hoffman nor Malloy nor Manes(42 L.Ed. 2s 574) drives us to this devaluation of thepolice process. And we are supported by meaningful hintsfrom prior decisions. In Kathi Kalu Oghad's(1) case, thisCourt authoritatively observed, on the bounds betweenconstitutional proscription and testimonial permission :

"In order that a testimony by an accusedperson may be said to have been self-incriminatory, the compulsion of which comeswithin the prohibition of the constitutionalprovisions, it must be of such a characterthat by itself it should have the tendency ofincrimination the accused, if not also ofactually doing so. In other words, it shouldbe a statement, which makes the case againstthe accused person at least probable,considered by itself".

Again, the court indicated that Art. 20(3) could be invokedonly against statements which 'had a material bearing on thecriminality of the maker of the statement'. 'By itself'does not exclude the setting or other integral circumstancesbut means something in the fact disclosed a guilt element.Blood on clothes, gold bars with notorious marks andpresence on the scene or possession of the lethal weapon orcorrupt currency have a tale to tell, beyond red fluid,precious metal, gazing at the stars of testing sharpness orvalue of the rupee. The setting of the case is an impliedcomponent of the statement.The problem that confronts us is amenable to reasonablesolution. Relevancy is tendency to make a fact probable.Crimination is a tendency to make guilt probable.Confession is a potency to make crime conclusive. The taintof tendency, under Art. 20(3) and section 161 (1), is moreor less the same. It is not a remote, recondite, freak ,orfanciful inference but a reasonable, real, material orprobable deduction. This governing test holds good, it ispragmatic, for you feel the effect, its guilty portent,fairly clearly.We, however, underscore the importance of the specificsetting of a given case for judging the tendency towardsguilt. Equally emphatically, we stress the need for regardto the impact of the plurality of other investigations inthe offing or prosecutions pending on the amplitude of theimmunity. 'To be witness against oneself' is not confinedto particular offence regarding which the questioning ismade but extends to other offences about which the accusedhas reasonable apprehension of implication from his answer.This conclusion also flows(1) [1962] (3) S.C.R. 10 at P. 32.642from 'tendency to be exposed to a criminal charge'. 'Acriminal charge' covers any criminal charge than underinvestigation or trial or imminently threatens the accused.The setting of the case or cases is also of the utmostsignificance in pronouncing on the guilty tendency of thequestion and answer. What in one milieu may be colourless,

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may, in another be criminal. 'Have you fifty rupees in yourpocket ?' asks a police officer of a P.W.D. engineer. Hemay have. It spells no hint of crime. But if, aftersetting a trap, if the same policeman, on getting thesignal, moves in and challenges the engineer, 'have youfifty rupees in your pocket?' The answer, if 'yes',virtually proves the guilt. 'Were you in a particular houseat a particular time?' is an innocent question; but in thesetting of a murder at that time in that house, where noneelse was present, an affirmative answer may be anaffirmation of guilt. While subjectivism of the accused mayexaggeratedly apprehend a guilty inference lingering behindevery non-committal question, objectivism reasonably screensnocent from innocent answers. Therefore, making a fairmargin for the accused's credible apprehension ofimplication from his own mouth. the court will view theinterrogation objectively to hold it criminatory orotherwise, without surrendering to the haunting subjectivismof the accused. The dynamics of constitutional 'silence'cover many interacting factors and repercussions from'speech'.The next serious question debated before us is to theconnotation of 'compulsion' under Art. 20(3) and itsreflection in Section 161(2). In Kathi Kalu Oghad's case(supra), Sinha, C.J., explained :

"In order to bring the evidence within theinhibition of cl. (3) of Art. 20 it must beshown not only that the person making thestatement was an accused at the time he madeit and that it had a material bearing on thecriminality of the maker of the statement, butalso that he was compelled to make thatstatement. 'Compulsion in the context, mustmean what in law is called 'duress'. In theDictionary of English Law by Earl Jowitt,'duress' is explained as follows :'Duress is where a man is compelled to do anact by injury, beating or unlawfulimprisonment (sometimes called duress instrict sense) or by the threat of beingkilled, suffering some grevious bodily harm,or being unlawfully imprisoned (sometimescalled menace, or duress per minas). Duressalso includes threatening, beating orimprisonment of the wife, parent or child of aperson.The compulsion in this sense is a physicalobjective act and not the state of mind of theperson making the statement, except where themind has been so conditioned by some extra-neous process as to render the making of thestatement involuntary and therefore extorted.Hence, the mere asking by a police officerinvestigating a crime against a certainindividual to do a certain thing is notcompulsion within the meaning of Art. 20(3).Hence, the mere fact that the accused person,643when he made the statement in question was inpolice custody would not, by itself, be the-foundation for an inference of law that theaccused was compelled to make the statement.Of course, it is open to an accused person toshow that while he was in police custody atthe relevant time, he was subjected to.treatment which, in the circumstances of thecase, would lend itself to the inference that

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compulsion was, in fact, exercised. In otherwords, it will be a question of fact in eachcase to be determined by the Court on weighingthe facts and circumstances disclosed in theevidence before it."

This question of fact has to be carefully considered againstthe background of the circumstances disclosed in each case.The policy of the law is that each individual, accusedincluded, by virtue of his guaranteed dignity, has a rightto a private enclave where he may lead a free life withoutoverbearing investigatory invasion or even crypto-coercion.The protean forms gendarme duress assumes. the environmentalpressures of police presence, compounded by incommunicadoconfinement and psychic exhaustion, torturesomeinterrogation and physical menaces and other ingenious,sophisticated procedures the condition, mental, physical,cultural and social, of the accused, the length of theinterrogation and the manner of its; conduct and a varietyof like circumstances, will go into the pathology of coercedpara-confessional answers. The benefit of doubt, wherereasonable doubt exists, must go in favour of the accused.The U.S. Supreme Court declared, and we agree with it,that......... our contemplation cannot be only of what hasbeen of what may be. Under any other rule a constitutionwould indeed be as easy of application as it would bedeficient in efficacy and power. Its general principleswould have little value and be converted by precedent intoimpotent and lifeless formulas. Rights declared in wordsmight be lost in reality. And this has been recognized.The meaning (384 US 444) and vitality of the Constitutionhave developed against narrow and restrictive construction.'(54 L.Ed. 793, 810).Making Art. 20(3) effective in actionImpregnability of the constitutional fortress built aroundArt. 20(3) is the careful concern of the Court and, for thispurpose, concrete directives must be spelt out. To leavethe situation fluid, after a general discussion andstatement of broad conclusions, may not be proper whereglittering phrases pale into gloomy realities in the darkrecesses where the law has to perform. Law is what law doesand tot what law says. This realisation obligates us toset down, concrete guidelines to make the law a workingcompanion of life. In this context we must certainly beaware of the burdens which law enforcement officials bear,often under trying circumstances and public ballyhoo andamidst escalating as well as novel crime proliferation. Ourconclusions are, therefore, based upon an appreciation ofthe difficulties of the police and the necessitities of theConstitution.644The functional role and practical sense of the law is ofcrucial moment. "An acre in Middle sex," said Macaulay, "isbetter than a principality in Utopia." (Introduction of 'Lawin America' by Bernard Schwartz.) This realism has greatrelevance when dealing with interrogation, incrimination,police station, the Constitution and the code.Now we will first formulate our findings on the variousmatters argued before us and discussed above. Then, we willfortify the observance of the legal requirements by thepolice through practical prescriptions and proscriptions.We hold that section 161 enables the police to examine theaccused during investigation. The prohibitive sweep of Art.20(3) goes back to the stage of police interrogation-not, ascontended, commencing in court only. In our judgment, theprovisions of Art. 20(3) and section 1 61 ( 1 )substantially cover the same area, so far as police in-vestigations are concerned. The ban on self-accusation and

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the right to silence, while one investigation or trial is-under way, goes beyond that case and protects the accused inregard to other offences pending or imminent, which maydeter him from voluntary disclosure of criminatory matter.We are disposed to read 'compelled testimony' as evidenceprocured not merely by physical threats or violence but bypsychic torture, atmospheric pressure, environmentalcoercion, tiring interrogative prolixity, overbearing andintimidatory methods and the like-not legal penalty forviolation. So, the legal perils following upon refusal toanswer, or answer truthfully, cannot be regarded ascompulsion within the meaning of Art. 20(3). The prospectof prosecution may lead to legal tension in the exercise ofa constitutional right, but then, a stance of silence isrunning a calculated risk. On the other hand, if there isany mode of pressure, subtle or crude, mental or physical,direct or indirect, but sufficiently substantial, applied bythe policeman for obtaining information from an accusedstrongly suggestive of guilt, it becomes 'compelledtestimony', violative of Art. 20(3).A police officer is clearly a person in authority.Insistence on answering is a form of pressure especially inthe atmosphere of the police station unless certainsafeguards erasing duress are adhered to. Frequent threatsof prosecution if there is failure to answer may take on thecomplexion of undue pressure violating Art. 20(3). Legalpenalty may by itself not amount to duress but the manner ofmentioning it to the victim of interrogation may introducean element of tension and tone of command perilouslyhovering near compulsion-.We have explained elaborately and summed up, in substance,what is self-incrimination or tendency to expose oneself toa criminal charge. It is less than 'relevant' and more than'confessional. Irrelevance is impermissible but relevanceis licit but when relevant questions are loaded with guiltyinference in the event of an answer being supplied, thetendency to incriminate springs into existence. We holdfurther that the accused person cannot be forced to answerques-645tions merely because the answers thereto are not implicativewhen viewed in isolation and confirmed to that particularcase. He is entitled to keep his mouth shut if the answersought has a reasonable prospect of exposing him to guilt insome other accusation actual or imminent, even though theinvestigation underway is not with reference to that. Wehave already explained that in determining the incriminatorycharacter of an answer the accused is entitled to con-sider--and the Court while adjudging will take note of-thesetting, the totality of circumstances, the equation,personal and social, which have a bearing on making ananswer substantially innocent but in effect guilty inimport. However, fanciful claims, unreasonable prehensionsand vague possibilities cannot be the hiding ground for anaccused person. He is bound to answer where there is noclear tendency to criminate.We have no doubt that section 179 I.P.C. has a component ofmens rea and where there is no wilful refusal but onlyunwitting omission or innocent warding off, the offence isnot made out, When there is reasonable doubt indicated bythe accused's explanation he is entitled to its benefit andcannot be forced to substantiate his ground lest, by thisprocess, he is constrained to surrender the very privilegefor which he is fighting. What may apparently be innocentinformation may really be nocent or noxious viewed in thewider setting.It may not be sufficient merely to state the rules of

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jurisprudence in a branch like this. The man who has towork it is the average police head constable in the Indiancountryside. The man who has to defend himself with theconstitutional shield is the little individual, by andlarge. The place where these-principles have to have playis the unpleasant police station, unused to constitutionalnuances and habituated to other strategies. Naturally,practical points which lend themselves to adoption withoutmuch sophistication must be indicated if this judgment is tohave full social relevance. In this perspective we addressourselves to the further task of concretising guidelines.Right at the beginning we must notice Art. 22(1) of the Con-stitution, which reads :

"No person who is arrested shall be detainedin custody without being informed, as soon asmay be, of the grounds for such arrest norshall he be denied the right to consult , andto be defended by, a legal practitioner of hischoice."

The right to consult an advocate of his choice shall not bedenied to any person who is arrested. This does not meanthat persons who are not under arrest or custody can bedenied that right. The spirit and sense of Art. 22 (1 ) isthat it is fundamental to the rule of law that the servicesof a lawyer shall be available for consultation to anyaccused person under circumstances of 'near-custodialinterrogation. Moreover, the observance of the rightagainst self-incrimination is best promoted by conceding tothe accused the right to consult a legal practitioner of hischoice.646Lawyer's presence is a constitutional claim in somecircumstances in our country also, and, in the context ofArt. 20(3), is an assurance of awareness and observance ofthe right to silence. The Miranda decision has insistedthat if an accused person asks for lawyer's assistance, atthe stage of interrogation, it shall be granted before Com-mencing or continuing with the questioning. We think thatArt. 20 (3) and Art. 22(1) may, in a way, be telescoped bymaking it prudent for the Police to permit the advocate ofthe accused, if there be one, to be present at the time beis examined. Over-reaching Art. 20(3) and section 161(2)will be obviated by this requirement. We do not lay downthat the Police must secure the services of a lawyer. Thatwill lead to 'police-station-lawyer' system, an abuse whichbreeds other vices. But all that we mean is that if anaccused person expresses the wish to have his lawyer by hisside when his examination goes on, this facility shall notbe denied, without being exposed to the serious reproof thatinvoluntary self-crimination secured in secrecy and bycoercing the will, was the project.Not that a lawyer's presence is a panacea for all problemsof involuntary self-crimination, for he cannot supplyanswers or whisper hints or otherwise interfere with thecourse of questioning except to intercept where intimidatorytactics are tried, caution his client where incrimination isattempted and insist on questions and answers being notedwhere objections are not otherwise fully appreciated. liecannot harangue the police but may help his client andcomplain on his behalf, although his very presence willordinarily remove the implicit menace of a police station.We realize that the presence of a lawyer is asking for themoon in many cases until a public defender system becomesubiquitous. The police need not wait more than for areasonable while for an advocate's arrival. But they mustinvariably warn--and record that fact about the right tosilence against self-incrimination; and where the accused is

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literate take his written acknowledgement.'Third degree' is an easy temptation where the pressure todetect is heavy, the cerebration involved is hard and theresort to torture may yield high dividends. Das Gupta J,dissenting for the minority on the Bench, drove home a pointwhich deserves attention while on constitutionalconstruction

"It is sufficient to remember that long beforeour Constitution came to be framed the wisdomof the policy underlying these rules had beenwell recognised. Not that there was no viewto the contrary; but for long it has beengenerally agreed among those who have devotedserious thought to these problems that fewthings could be more harmful to the detectionof crime or conviction of the real culprit,few things more likely to hamper thedisclosure of truth than to allowinvestigators or prosecutors to slide down theeasy path of producing by compulsion,evidence, whether oral or documentary, from anaccused person. It has been felt that647the existence of such an easy way would tendto dissuade persons in charge of investigationor prosecution from conducting diligent searchfor reliable independent evidence, and fromsifting of available materials with the carenecessary for ascertainment of truth. If itis permissible in law to obtain evidence fromthe accused person by compulsion, why treadthe hard path of laborious investigation andprolonged examination of other men, materialsand documents ? It has been well said that anabolition of this privilege would be anincentive for those in charge of enforcementof law to sit comfortably in the shade rubbingred pepper into a poor devil's eyes ratherthan to go about in the sun hunting upevidence'. (Stephen, History of Criminal Law,p. 442). No less serious is the danger thatsome accused persons at least, may be inducedto furnish evidence against themselves whichis totally false--out of sheer despair and ananxiety to avoid an unpleasant present. Ofall these dangers the Constitution makers wereclearly well aware and it was to avoid themthat Art. 20(3) was put in the Constitution."The symbiotic need to preserve the immunitywithout stifling legitimate investigationpersuades us to, indicate that after anexamination of the accused, where lawyer ofhis choice is not available, the policeofficial must take him to a magistrate, doctoror other willing and responsible non-partisanofficial or non-official and allow a secludedaudience where he may unburden himself beyondthe view of the police and tell whether he hassuffered duress, which should be followed byjudicial or some other custody for him wherethe police cannot teach him. That collocutormay briefly record the relevant conversationand communicate it-not to the police-but tothe nearest magistrate. Pilot projects onthis pattern may yield experience to guide thepractical processes of implementing Art.20(3). We do not mandate but strongly

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suggest.The statement of the accused, if voluntary, isadmissible, indeed, invaluable. To eraseinvoluntariness we must erect safeguards whichwill not 'kill the goose'. To ensure thisfree will by inbuilt structural changes is thedesideratum. Short-run remedies apart long-run recipes must be innovated whereby fistsare replaced by wits, ignorance by awareness,'third degree' by civilized tools andtechnology. The factotum policeman who doeseverything from a guard of honour to trafficpatrol to subtle detection is an obsolescentsurvival Special training, special legalcourses, technological and other detective up-dating, are important. An aware police man isthe best social asset towards crimelessness.The consciousness of the official as much asof the community is the healing hope for acrime-ridden society. Judge-centred remediesdon't work in the absence of communitycentered rights. All these add up toseparation of investigatory personnel from thegeneral mass and in-service specialisation ofmany lines on a scientific basis. This shouldbe done vertically and horizontally. Moreimportantly, the policeman must be releasedfrom addiction to coercion and be sensitizedto constitutional values.648The Indian Republic cannot fulfil its socialjustice tryst without a serious strategy ofcultural and organisational transformation ofpolice intelligence and investigation,abjuring fists and emphasizing wits, settingapart a separate, sophisticated force withspecial skills, drills, techniques andtechnology and aloof from the fossilising,sometimes marginally feudal, assignments-likeV.I.P. duty, sentry duty, traffic duty, lawand order functions, border securityoperations. They must develop an ethos andethic and professionalism and probity whichcan effectively meet the challenge of criminalcunning, the menace of macabre intricacies andthe subtle machinations of white collar crimi-nals in politics, business and professions andcan do so without resort to vulgarity,violence or other vice. The methods, mannersand morals of the police force are the measureof a society's cultural tolerable and agovernment's real refinement.Such a broad project is overdue.Constitutions are not self-working. Judicialfire-fighting does not prevent fires. So itis that we stress hopefully the larger changesnow needed especially because the recurrenttheme of police role in a Welfare State isreportedly engaging the attention of anational commission. Our observations arefragmentary being confined to theconstitutional imperative of Art. 20(3). Aholistic perspective informs our suggestions.Our purpose is not to sterilise the police butto clothe the accused with his proper right ofsilence. Art. 20(3) is not a paper tiger buta provision to police the police and to

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silence coerced crimination. The dissentingwords of Mr. Justice White bear quotation inthis context :" .... The Courts duty to assess theconsequences of its action is not satisfied bythe utterance of the truth that a value ofour system of criminal justice is 'to respectthe inviolability of the human personality'and to require government to produce theevidence against the accused by its ownindependent labours. (Ante, at 715.) More thanthe human dignity of the accused is involved;the human personality of others in the societymust also be preserved. Thus the, valuesreflected by the privilege are not the soledesideratum; society's interest in the generalsecurity is of equal weight.""The obvious underpinning of the Court'sdecision is a deep-seated distrust of allconfessions. As the Court declares that theaccused not be interrogated without counselpresent, absent a waiver of the right tocounsel, and as the Court all but admonishesthe lawyer to advise the (384 US 538) accusedto remain silent, the. result adds up to ajudicial judgment that evidence from theaccused should not be used against him in anyway, whether compelled or not. This is thenot so subtle overtone of the opinion-that itis inherently wrong for the police to gatherevidence from the accused himself. And thisis precisely the nub of this dissent. I seenothing wrong or immoral and certainly nothingunconstitutional in the police's asking asuspect whom they have reasonable cause toarrest whether or not649lie killed his wife or in confronting him withthe evidence on which the arrest was based, atleast where he has been plainly advised thathe may remain completely silent. (see Escobedov. Illinois, 12 L.Ed. 2d 977). Until today,'the admissions or confessions of theprisoner, when voluntarily and freely made,have always ranked high in the scale ofincriminating evidence'. Brown v. Walker, 40L. Ed. 819, see also Hopt v. Utah 28 L. Ed.262. Particularly when corroborated, as wherethe police have confirmed the accused'sdisclosure of the hiding place of implementsor fruits of the crime, such confessions havethe highest reliability and significantlycontribute to the certitude with which we maybelieve the accused is guilty. Moreover, itis by no means certain that the process ofconfessing is injurious to The accused. Tothe contrary it may provide psychologicalrelief and enhance the prospects forrehabilitation.This is not to say that the value of respectfor the inviolability of the accused'sindividual personality should be accorded noweight or that all confessions should beindiscriminately admitted. This Court haslong read the Constitution to proscribecompelled confessions, a salutary rule fromwhich there should be no retreat."

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The law will only limp along until the tools are tuned. Wehave proposed the first stone, not the last step.A final note on the actual case on hand. While some aspectsof Art. 20(3) have been authoritatively expounded, otheraspects have remained obscure and unexplored. A flash floodof demands against self-incriminatory interrogation hasrisen now when very important persons of yesterday have gotcaught in the criminal investigations coils of today. Andwhen the big fight forensic battles the small gain by thevictory, if any. The fact that the scope of the protectionagainst self-accusation has not been clarified before inthis area makes it necessary for us to take a gentler viewin this case, in the interest of justice. Moreover on ourinterpretation, the magistrate, trying the case undersection 179 I.P.C. and in a setting where the accusedallegedly has a number of other offenses to answer for, willbe thrown into a larger enquiry than the simplistic oneordinarily neededWe have declared the law on a thorny constitutional questionwhere the amber light from American rulings and beacon beamsfrom Indian precedents have aided us in our decision. It isquite probable that the very act of directing a woman tocome to the police station in violation of section 160(1)Cr.P.C. may make for tension and relate voluntaries. It islikely that some of the questions are selfcriminatory. Moreimportantly, the admitted circumstances are such that thetrying magistrate may have to hold an elaborate enquiryabout other investigations, potential and actual, to decideabout the self accusatory character of the answers. And,finally, the process of proving proneness for self-incrimination will itself strike a blow on the7-315SCI/78650very protection under Art. 20(3). We have more reasons thanone to conclude that the ends of justice will be ill-servedby an endless magisterial chase of a charge the legalclarity of which is, by this judgment, being authoritativelyunveiled and the factual foundation of which may have someinfirmities. An the consequences of refusal to answer, ifmost of the questions are self-condemning and a few formalones innocuous, were not gone into by us. So, we suggestedto counsel that the authority of the law be vindicated bythe accused undertaking to answer all relevant, notcriminatory, interrogations and, on this pledge ofcompliance, the State withdraw the prosecution protempore.If the accused went back on the undertaking a prosecutioncould again be launched and the party proceeded against forbreach of the plighted word. The response from the State isa remarkable assertion of legal rectitude and exposition ofthe principles for exercise of the power to withdraw, and,finally. a conclusion couched thus

"After careful consideration from all anglesand in the facts and circumstances on record,Government have come to the conclusion, thatthere are no circumstances to justifywithdrawal by the State Government."

We, think that a litigant, be he the highest or lowest inthe State, should not lecture to the court but listen andexplain its difficulties. We do not draw any inferenceabout the prosecution as motivated, which was theappellant's recurrent theme; for that is irrelevant incourt. But we confess that the statement of the State callsto mind the words of Hamlet : "The lady protests too much,methinks."We must record our appreciation of the services of theAdvocate General but in the statement put in, the State'scounsel perhaps, bad to 'speak the speech'. Maybe.

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To conclude. We have bestowed some thought on the law andconsider this case preeminently one where the Government,acting without ill-will or affection, should have withdrawnthe prosecution. By Government we mean the complainant-public servant who is the party respondent. We do not needthe Government to exercise its power to direct itssubordinate to withdraw and know that it is not eo nomineparty before us--a public servant is not a benamidar ofGovernment but an officer, in his own right, saddled withstatutory behests to execute. We note with satisfactionthat this Government is moved only by legal, not extraneous,considerations in launching and refusing to withdraw theprosecution against the appellant. We have indicated some(not all) reasons, pertinent in law, for legitimatelywithdrawing a prosecution and the very fact that this Courtsuggested it is ordinarily sufficient to rule out the chargeof improper grounds and yet the State argues overzealouslyabout the proper criteria. We could have given morerelevant reasons but do not do so since the correct course,at this stage, is to quash the prosecution as it stands atpresent.Why do we ? To serve the ends of justice. When a woman iscommanded into a police station, violating the commandmentof Section 160 of the Code, when a heavy load of questionsis handed in,651some permissible, some not, where the area of constitutionalprotection against self-crimination is (until this decision)blurred ill some aspects, when, in this court, counsel forthe accused unreservedly undertakes to answer in the lightof the law we here lay down, when the object of theprosecution is to compel contrite compliance with Section161 Cr.P.C. abandoning all contumacy and this is achieved bythe undertaking, when the pragmatic issues involved are socomplex that effective barricades against police pressure tosecure self-incrimination need more steps as indicated inour judgement, we hold that persistence in the prosecutionis seeming homage to the rule of law and quashing theprosecution secures the ends of justice-the right thing todo is to quash the prosecution as it stands at present. Weregret that this dimension of the problem has escaped theExecutive's attention. for reasons best left unexplored.The conspectus of circumstances persuades us to exercise ourpower under Art. 266 read with Art. 136 and section 401 ofCr.P.C. to make the following direction. We are satisfiedthat many of the questions put by the police are not self-incriminatory, remote apprehensions being wholly irrelevant.To answer is citizen's duty; failure is asking forconviction. The appellant shall undertake to answer allquestions put to her which do not materially incriminate herin the pending or imminent investigations or prosecutions.If she claims immunity regarding any questions she will,without disclosing details, briefly state in which case oroffence in the offing makes her reasonably apprehend self-incrimination by her refused answers. If, after the wholeexamination is over, the officer concerned reasonably re-gards any refusal to answer to be a wilful violation underpretense of immunity from self-incrimination, be will befree to prosecute the alleged offender after studying therefusal to answer in the light of the principles we have setout. Section 179 I.P.C. should not be unsheathed toopromiscuously and teasingly to tense lay people into vagueconsternation and covert compulsion although the proper,office of Section 179 I.P.C. is perfectly within theconstitutional limits of Art. 20(3)The appellant, through her counsel, undertakes to abide bythe above directions to answer all police interrogations

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relevant but not self-incriminatory (as explained earlier).The police Officer shall not summon her to the policestation but examine her in terms of the proviso to section160(1) of the Cr.P.Code. The appellant shall, Within tendays from today, file a written undertaking on the linesdirected above, although, regardless thereof her counsel'sundertaking will bind her. Indeed, we direct her to answerin accordance with the law we have just clarified.The prosecution proceedings in complaint case No. 2(c) 388of 1977 on the file of the Sub Divisional Magistrate Sadar,Cuttack, are hereby quashed and the appeals allowed.S.R.Appeals allowed.

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