Prohibition against self-incrimination

Prohibition against self-incrimination - Clause (3) of Article 20 provides that no person accused of any offence shall be compelled to be a witness against himself. Thus Article 20(3) embodies the general principles of english and American jurisprudence that no one shall be compelled to give testimony which may expose him to prosecution for crime. The cardinal principle of criminal law which is really the bed rock of English jurisprudence is that an accused must be presumed to be innocent till the contrary is proved. It is the duty of the prosecution to prove the offence. The accused need not make any amission or statement against his own free will. The Fifth Amendment of the American Constitution declares that 'no person shall be compelled in any criminal case to be a witness against himself.

The fundamental rule of criminal jurisprudence against self-incrimination has been raised to a rule of constitutional law in Article 20(3). A confessional statement of the accused found to be involuntary is hit by Article 20(3) of the Constitution. This guarantee extends to any person accused of an offence and prohibits all kinds of compulsions to make him a witness agaisnt himself. Explaining the scope of this clause in M.P. Sharma v. Satish Chandra, the SC observed that this right embodies the following essentials:

1. It is a right pertaining to a person who is "accused of an offence".
2. It is a protection against "compulsion to be a witness".
3. It is a protection agaisnt such compulsion relating to his giving evidence "against himself".

(1) Accused of an offence - The words 'accused of an offence' make it clear that this right is only available to a person accused of an offence. A person is said to be an accused person against whom a formal accusation relating to the commission of an offence has been levelled which in normal course may result in his prosecution and conviction. It is not necessary that the actual trial or inquiry should have started before the Court. Thus in M.P. Sharma v. Satish Chandra, it was held that a person, whose name was mentioned as an accused in the first information report by the police and investigation was ordered by the Magistrate, could claim the protection of this guarantee.

The mere fact that at the relevant time the person was arrested on suspicion of having committed an offence under Section 124 of the Bombay police act and a Punchnama had been prepared seasing the goods were immaterial when other the case was registered not the FIR was recorded by the police. Thus where a custom officer arrests a person and informs him of the grounds of his arrest for the purpose of holding an enquiry into the violation of the provisions of the sea customs act there is no formal acquisition of an offence. In Delhi Judicial Service Association vs state of Gujarat, it has been held that mere issue of notice or pendency of contempt proceedings does not attract article 20(3) as the contemners are not "accused of any offence". A criminal contempt is different from an ordinary offence. Since the contempt proceedings are not in the nature of criminal proceedings for an offence, the pendency of contempt proceedings cannot be regarded as criminal proceedings merely because it may end in imposing punishment on the contemner. A contemner is not in the position of an accused. Even if the contemner is found to be guilty of contempt, the court, may accept apology and discharge the notice of contempt, whereas tendering of apology is no defense to the trial of a criminal offence.

This shows that the guarantee in our constitution is narrower than that in the American constitution. In America the protection of self incrimination is not confined to the accused only. It is also available to a witness. The position is the same in English law. But the protection under class 3 of article 20 is only available to the accused.

(2) To be a witness - the protection is against compulsion "to be a witness". In MP Sharma vs Satish Chandra,the Supreme Court interpreted the expression to be a witness very widely so as to include oral,  documentary and testimonial evidence. The prosecution under article 20(3) covers not only merely testimonial compulsion in a court room but also compelled testimony previously obtained -- any compulsory process for production of evidentary document which are reasonably likely to support the prosecution against him. The Court accept the definition given in the Indian Evidence Act that a person can be 'a witness' not merely by giving oral evidence but also by producing documents or making intelligible gestures as in the case of a dumb witness or the like. If the interpretation of the phrase "to be a witness" adopted by the court in MP Sharma's case was to be followed; the compulsory taking of finger impression or specimen handwriting of an accused would come within the Mischief of article 20(3). This broad interpretation, it was thought, would certainly hampered the effective administration of crime and efficient administration of criminal justice.

In State of  Bombay vs Kathi Kalu, the supreme court held that the interpretation of the phrase "to be a witness" given in Sharma's case was too broad and required a qualification. "To be a witness" is not equivalent to "furnishing evidence", that is to say, as including not merely making of oral or written statements documents are giving materials which may be relevant at a trial to determine the guilt or Innocence of the accused. Self incrimination can only mean conveying information based upon personal knowledge of the person giving information and cannot include merely the mechanical process of producing documents in court which may throw light on any point in controversy, But which do not contain any statement of the accused based on his personal knowledge. Does when a person gives his finger impression or specimen writing or signature, though, it may amount to furnishing evidence in the large sense is not included within the expression "to be a witness". In these cases, he is not giving any personal testimony. They are merely materials for comparison. Hence neither seizures made under search warrant, nor the compulsory taking of photographs, finger print or specimen writing of an accused would come within the prohibition of article 20(3) it's to compel a person to say something from his personal knowledge relating to the charge against him.

Any person can be directed by the court to give foot prints for corroboration of evidence. It is not violation of protection guaranteed under article 20(3). The non compliance of the direction may lead to adverse interference never the less same cannot be entertained as sole basis of conviction. 

In state vs M Krishna Mohan, the SC has held that taking of specimen fingerprint and handwriting from accused is not prohibited by article 20(3) as being "witness against himself".

 

The appealent who was not an accused in the police case but in fact a witness whose statement was recorded under section 161 of CrPC although his name figured as an accused in the complaint filed later on in the same case, was held not to be entitled to a blanket protection under article 20(3), for invoking the constitutional right under article 20(3), a formal accusation against the person claiming the protection must exist. In   case of trial in the police case, if answer to certain questions tends to incriminate or otherwise, it has to be considered at that time. 

It has been held that the information given by an accused person after his arrest to a police officer which leads to the discovery of a fact under section 27 of the evidence act is admissible in evidence under article 20(3) of the constitution. In Parshadi v. U.P State, An accused who was charged with committing of a murder stated to the police that he would give clothes of the deceased which he had placed in a pit and thereafter he dug out the pit in presence of witnesses and took out the clothes which were identified as the clothes belonging to the deceased. The supreme court held that the statement of the appellant was admissible in evidence.

State of Maharashtra V. Kamaal Ahmad Mohammed Vakil Ansari, abom blast case in 7 different first class compartment of local trains of Bombay resulting in death of 187 persons and severe injuries to 829 persons and accusation respondents pressed for summoning in the witness at serial No. 63 and 66 as defence witnesses. The object for summoning them was that they had recorded the confessional statements of three witnesses during the course of Investigation in special Case No. 4 of 2009. The object of the accused - respondent was to show that others were responsible for actions for whom the accused-responded were being blamed. The question involved was whether the confessional statement of the three accused person recorded in special case number 4 of 2009 would be relevant in special case number 21 of 2006. The Council for the accused-respondents contended that since no accused could be compelled to be a witness against himself, it would not be open to the accused- respondents to summon the three accused persons who had made confessional statement in view of article 20(3). Court held that the plea advanced would not be available in view of the protection afforded to a witness who would find himself in such a situation under section 132 of the evidence act. The three accused person in special case number 4 of 2009 were not the accused in a special case number 21 of 2006.

(3) Compulsion to give evidence "against himself" - The protection under Article 20(3) is available only against the compulsion of accused to give evidence "against himself". But left to himself he may vouluntarily wave his privilege by entering into the witness-box or by giving evidence voultarily on request. Request implies no compulsion; therefore, evidence given on request is admissible against the person giving it. To attract the protection of Article 20(3) it must be shown that the accused was compelled to make the statement likely to be incriminative to himself. Compulsion means duress which includes threatening, beating or imprisoning of the wife, parent or child of a person. Thus where the accused makes a confession without any inducement, threat or promise Article 20(3) does not apply.  

In Nandini satpathey v. P.L. Dani, the supreme Court has considerably widened the scope of clause (3) of Article 20. The court has held that the prohibitive scope of Article 20(3) goes back to the stage of police interrogation not commencing in court only. It extends to, and protects the accused in regard to other offences - pending or imminent - which may deter him from voluntary disclosure. The phrase 'compelled testimony' must be read as evidence procured not merely by physical threats or violence but by psychic (mental) torture, atmospheric pressure, environmental coercion, tiring interrogatives, proximity, overbearing and intimidatory methods and the like. Thus compelled testimony is not limited to physical torture or coercion, but extends also to techniques of psychological interrogation which cause mental torture in a person subject to such interoogation. In that case, the appellant was a former chief Minister of Orissa. Certain charges of corruption were levelled against her and in the course of inquiry she was called upon to attend at a police station and to answer certain written questions. The appellant refused to answer questions and claimed the protection of Article 20(3). She was prosecuted under Section 179, I.P.C., for refusing to answer questions put by a lawful authority. According to the court, self-incrimination is less than "relevant" and more than "confession". Irrelevance is impermissible relevance is licit, but when relevant questions are loaded with guilty inference in the event of an answer being supplied, the tendency to incriminate springs into existence. The accused person cannot be force to anwer questions merely because the answers thereto are not implicative when viewed in isolation and confined to that particular case. He is entitled to keep his mouth shut if the answer has a reasonable prospect of exposing him to guilty in some other acusation, actual or imminent, even if the investigation is not with reference to that. However, he is bound to answer where there is no clear tendency to criminate. This means that the protectuion is available when police examines the accused during investigation under Section 161 of the Cr.P.C. Further, the right to silence is not limited to the case for which he is examined but extends to the accused in regard to other offences pending or imminent which may deter him from voluntary disclosure of criminatory matter. 

In Mohd. Dastgir v. State of Madras, the appellant went to the bungalow of Deputy Superintendent of Police to offer him bribe in a closed envelope. The police officer on opening it found the envelope containing currency notes He threw it at the face of the appellant who took it. Thereafter, the police officer asked the appellant to handover the envelope containing the currency notes. The appellant took out some currency notes from his pocket and place it on the table which was seized by the police officer. The appellant contended in appeal before the Supreme court that the currency notes should not be produced in evidence as he was compelled by the police officer to give to him. The Supreme Court held that the accused was not compelled to produce the notes as no duress was applied on him to produce the notes. Moreover, the appellant was not an 'accused' at the time the currency notes were seized from him.

In Yusufali v. State of Maharashtra, a tape-recorded statement made by the accused though made without knowledge of the accused but without force or oppression was held to be admissible in evidence.

In V.S. Kuttan Pillai v. Ram Krishnan, the court held that search of the premises occupied or in possession of person accused of an offence or seizure of anything from there was not violative of Article 20(3) of the Constitution. If any document is recovered as a result of search and seizure it can be produced in the courts as an evidence against the accused as he is compelled to give witness against himself.

In Amrit Singh v. State of Punjab it has been held that asking an accused of his hair for purpose of identification amounts to testimonial compulsion. The accused has right to refuse to give specimen of his hair for purpose of identification. He cannot be made witness against himself in view of Art. 20(3) of the Constitution.

Narcoanalysis, Polygraphy and Brain Finger Printing tests of accused - Violates Article 20(3) -- In Selvi v. state of Karnataka, the accused had challenged the validity of certain scientific techniques namely, Narcoanalysis, Polygraphy and Brain Finger Printing (BEAP) tests without their consent as violative of Article 20(3) of the Constitution. They argued that these scientific techniques were softer alternatives to the regrettable use of third egree methods by investigators and violated right against self incrimination in Article 20(3) of the Constitution. The State argued that it was desireable that crime should be efficiently investigated particularly sex crimes as ordinary mehods were not helpful in these cases. So the issue was between 'efficient investigation' and 'preservation of individual liberty'. A three Judge Bench of the Supreme Court unanimously held - These tests are testimonial compulsions and are prohibited by Article 20(3) of the Constitution. These tests do not fall within the scope of expression "such other tests" in Explanation of Section 53, Cr.P.C. The protection of self incrimination is available at the stage of investigation also and it is also available to witnesses. In Narcoanalysis test, a drug is given to him so that he can divulge important information. The drug is Known as Sodicum Pentothal -- used or introduced as general anaesthesia in surgical operations. The Polygraphy and Brain Finger Printing (BEAP) test is also known as the Wave Test. Electric waves are introduced into the mind. The compulsary administration of the narcoanalysis techniques constitutes cruel, inhuman or degrading treatment. Article 21 of the Constitution disapproves of involuntary testimony irrespective of the nature and degree of coercion, threats fraud or inducement used to elicit the evidence. The popular means of the terms such as 'torture and cruel'. 'inhuman or degrading' treatment are associated withgory images of blood letting and broken bones. A forcible invasion into a person's mental process is also an affront to human dignity and liberty often with granve and long and lasting consequesnces. The Internation Conventions though not ratified by parliament are of persuasive value since they represent an involving international consensus on the issue - Convention Against Torture and other cruel, Inhuman or Degrading Treatment or Punishment (1984) -- Regarding the contention raised by the respondents that compelling interests demands such techniques for investigation of crimes in future the Court held -- It is the function of the legislature to consider and make propert law of the isse. But if such matter comes before the court, the Court shall interpret the mandate of the constitutional provisions available to the citizens and apply in their favour. The Court laid down the follwoing guidelines for these tests:

1. No Lie Detector Tests should be adminishtered except on the basis of the consent of the accused. An option should be given to the accused whether he wishes to avail such test.
2. If the accused volunteers for a Lie Detector Test, he should be given access to a lawyer and physical, emotional and legal implications of such a test should be explained to him by the police and his lawyer.
3. The consent should be recorded by a Judicial Magistrate.
4. During the hearing before the Magistrate, the person alleged to have agreed should be duly represented by a lawyer.
5. At the hearing the person in question should also be told in clear terms that the statement that if made shall not be a confidential statement to the Magistrate but will have the statement made to the police.
6. The Magistrate shall consider all factors relating to the detention including the length of detention and the nature of the interrogation.
7. The actual recording of the Lie Detector shall be done by an independent agency (such as a hospital) and conducted in the presence of a lawyer.
8. A full medical and factual narration of the manner of the information received must be taken on record.

Conclusion

Article 20(3) of the Indian Constitution enshrines the fundamental right against self-incrimination, a principle deeply rooted in both English and American jurisprudence. This provision ensures that no person accused of an offence can be compelled to be a witness against themselves, safeguarding the presumption of innocence until proven guilty. The scope of Article 20(3) has been extensively interpreted by the judiciary, particularly in landmark cases such as *M.P. Sharma v. Satish Chandra* and *State of Bombay v. Kathi Kalu*, which have clarified its application and limitations.

The protection under Article 20(3) is specifically available to individuals formally accused of an offence, and it extends to prohibiting any form of compulsion—whether physical, psychological, or environmental—that forces the accused to provide evidence against themselves. However, it does not extend to non-testimonial evidence such as fingerprints, handwriting samples, or other physical evidence, as these do not involve personal testimony based on the accused's knowledge.

The judiciary has also addressed the admissibility of confessions and statements made under duress, emphasizing that any evidence obtained through coercion, whether physical or mental, is inadmissible. Furthermore, the Supreme Court has ruled that scientific techniques like narcoanalysis, polygraph tests, and brain fingerprinting violate Article 20(3) unless conducted with the voluntary consent of the accused, ensuring that individual liberty and dignity are not compromised in the pursuit of efficient investigation.

In conclusion, Article 20(3) serves as a critical safeguard for the rights of the accused, balancing the need for effective criminal investigation with the protection of individual freedoms. The judicial interpretations of this provision have reinforced its role as a cornerstone of criminal jurisprudence in India, ensuring that the principles of fairness, justice, and human dignity remain central to the legal process.