Nandini Satpathy s. Dani (P.L.) & ANR [1978] INSC 82 (7 April 1978)

KRISHNAIYER, V.R.

SINGH, JASWANT TULZAPURKAR, V.D.

CITATION: 1978 AIR 1025 1978 SCR (3) 608 1978 SCC (2) 424

CITATOR 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 a necessary component of S. 179-Defences open under Section 179 I.P.C. r/w Section 161 Criminal Procedure Code .

Criminal Procedure Code, 1973, S. 161(2)-Parameters of Section 161(2), what are-Whether the tendency to expose a person to a criminal charge embrance answers which have an inculpatory impact in other criminal cases in posse or in esse elsewhere,-"Any person supposed to be acquainted" in S.

161 (1) Whether includes an accused person or only a witness-When does an answer acquire confessional status within the meaning of S. 27 of Evidence Act.

"Right to silence", when applicable-Constitutional right under 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 of proviso and marginal note, Crl. P C., 1973.

HEADNOTE:

The appellant, a former Chief Minister of Orissa and one time Minister at the National level was directed to appear at the Vigilance Police Station, Cuttack, in September, 1977 for being examined in connection with a case registered against 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, 120B and 109 I.P.C. On the strength of the first information, in which the appellant, her son and others were shown as accused persons investigation was commenced. During the course of the investigation it was that she was interrogated with reference to a long string of questions, given to her in writing. The gravamen of the accusation was one of acquisition of assets disproportionate to the known, licit sources of income and probable resources over the years of the accused, who occupied a public position and exercised public power for a long spell during which the appellant by receipt of illegal gratification aggrandised herself.

Exercising her right of guaranteed under Art. 20(3) of the Constitution, the appellant refused to answer, with the result a complaint was filed by the Deputy Superintendent of Police, Vigilance (Directorate of Vigilance) Cuttack, against the appellant, under s. 179 I.P.C. before the Sub- Divisional Judicial Magistrate, Sadar, and Cuttack. The Magistrate took cognizance of the offence and issued summons of appearance against the appellant-accused. Aggrieved by the action of the Magistrate and urging that the complaint did not and could not disclose an offence, the accused- appellant removed the High Court under Art. 226 of the Constitution as well as under s. 401 of the Cr. P. Code, challenging the validity of the Magisterial proceeding. The broad submission, unsuccessfully made before the High Court, was that the charge rested upon a failure to answer interrogations by the police but this charge was unsustainable because the umbrella of Art. 20(3) of the Constitution and the immunity under Section 161(2) of the Cr. P. Code were wide enough, to shield her in her refusal.

The plea of unconstitutionality and illegality, put forward by this preemptive proceeding was rebuffed and so the appellant appealed to this Court by certificate granted under Art. 132(1) resulting in two appeals.

Allowing the appeals and quashing the prosecution proceedings the Court 609

HELD : 1. When a woman is commanded into a police station violating the commandment of Section 160 of the Code when a heavy load of questions is handed in some permissible some not, where the area of constitutional protection against self-crimination is (until this decision) blurred in some aspects, when, in this Court, counsel for the accused unreservedly undertakes to answer in the light of the law herein laid down, when the object of the prosecution is to compel contrite compliance with Section 161 Cr. P.C.

abandoning all contumacy and this is achieved by the undertaking, when the pragmatic issues involved are so complex that effective barricades against police pressure to secure self-incrimination need more steps as indicated in this judgment that persistence in the prosecution is seeming homage to the rule of law and quashing the prosecution secures the ends of justice and the right thing to do is to quash the prosecution as it stands at present. That this dimension of the problem has escaped the Executive's attention for reasons best left unexplored is regrettable.

[650 H, 651 A-C] It is quite probable that the very act of directing a woman to come to the police station in violation of section 160(1) Cr. P.C. may make for tension and negate voluntariness. It is likely that some of the questions are self-criminatory.

More importantly, the admitted circumstances are such that the trying magistrate may have to hold an elaborate enquiry about other investigations, potential and actual, to decide about the self-accusatory character of the answers. And, finally, the process of proving proneness for self- incrimination will itself strike a below on the very protection under Art. 20(3). [649 G-H, 650 A] (a) S. 161 enables the police to examine the accused during investigation; [644 C] (b) The prohibitive sweep of Art. 20(3) goes back to the stage of police interrogation not, as contended commencing in Court only; [644-C].

(c) The provisions of Art. 20(3) and section 161(1) substantially cover the same area so far as police investigations are concerned; [644-C] (d) The ban on self-accusation and the right to silence, while on investigation or trial is under way, goes beyond that case and protects the accused in regard to other offences pending or imminent, which may deter him from voluntary disclosure of criminatory matter,, [644 C-D] (e) Compelled testimony' must be read as evidence procured not merely by physical threats or violence but by psychic torture, atmospheric pressure, environmental coercion tiring interrogative prolixity, overbearing and intimidatory methods and the like not legal penalty for violation. So the legal perils following upon refusal to answer or answer truthfully cannot be regarded as compulsion within the meaning of Art. 20(3). The prospect of prosecution may lead to 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, subtle or crude, mental or physical, direct or indirect, but sufficiently substantial, applied by the policeman for obtaining information from an accused strongly suggestive of guilt 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 in the atmosphere of the police station unless certain safe guards erasing duress are adhered to. Frequent threats of prosecution if there is failure to answer may take on the complexion of undue pressure violating Art. 20(3). Legal penalty may by itself does not amount to duress but the manner of mentioning it to the victim of interrogation may introduce an element of tension and tone of command perilously hovering near compulsion; [644 F-G] (g) Self incrimination or tendency to expose oneself to a criminal charge is less than 'relevant' and more than 'confessional'. Irrelevance is impermissible; while relevance is licit if the relevant questions are loaded with guilty inference in the event of an answer being supplied the tendency to incriminate springs into existence; [644 G- H] 610 (h) The accused Person cannot be forced to answer questions. merely because the answers thereto are not implicative when viewed in isolation and confined to that particular case. He is entitled to keep his mouth shut if the answer sought has a reasonable prospect of exposing him to guilt in some other accusation actual or imminent, even though the investigation under way is not with reference to that. In determining the incriminatory character of an answer ,the accused is entitled to consider and the Court while adjudging will take note of the setting, the totality of circumstances, the equation, personal and social which have a bearing on making an answer substantially innocent but in effect guilty in import. However, fanciful claims, unreasonable apprehensions, and vague possibilities cannot be the hiding ground for an accused person. He is bound to answer where there is no clear tendency to criminate. [644 H, 645 A-B] (i) Section 179 I.P.C. has a component of mens rea and where there is no willful refusal but only unwitting omission or innocent warding off, the offence is not made out. [645- C] (j) Where there is reasonable doubt indicated by the accused's explanation he is entitled to its benefit and cannot be forced to substantiate his ground lest, by this process, he is constrained to surrender the very privilege for which he is fighting. What may apparently be innocent information may really be innocent or noxious viewed in the wider setting. [645 C-D] (k) The right to consult an advocate of this choice shall not be denied to any person who is arrested. This does not mean that persons who are not under arrest or custody can be denied that right. The spirit and sense of Art. 22(1) is that it is fundamental to the rule of law that the service of a lawyer shall be available for consultation to any accused person tinder circumstances of near-custodial interrogation. Moreover, the observance of the right against self-incrimination is best promoted by conceding to the accused the right to consult a legal practitioner of his choice. Lawyer's presence is a constitutional claim in some circumstances in our country also, and, in the context of Art. 20(3), is an assurance of awareness and observance of the right to silence. Art. 20(3) and Art. 22(1) may in a way be telescoped by making it prudent for the police to permit the advocate of the accused, if there be one, to be present 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 a lawyer. That will lead to police-station-lawyer system, an abuse which breeds other vices. But if an accused person expresses the wish to have his lawyer by his side when his examination goes on, this facility shall not be denied, without being exposed to the serious reproof that involuntary self-crimination secured in secrecy and by coercing the will was the project lawyer cannot harangue the police but may help his client and complain on his behalf although his very presence will ordinarily remove the implicit menace of a police station. No doubt the presence of a lawyer is asking for the moon in many cases until a public defender system becomes ubiquitous. The police need not wait more than for a reasonable while for an advocate's arrival. But they must invariably warn and record that fact about the right to silence against self-incrimination; and where the accused is literate take his written acknow- ledgment. [645 G-H, 646 A-E] (1) 'Third degree' is an easy temptation where the pressure to detect is heavy, the cerebration involved is hard and the resort to torture may yield high dividends. [646 F] [Keeping in view the symbiotic need to preserve the immunity without stifling legitimate investigation after an examination of the accused, where a lawyer of his choice is not available, the police official should take him to a magistrate, doctor or other willing and responsible non- partisan official or non-official and allow a secluded audience where he may unburden himself beyond the view of the police and tell whether he has suffered duress, which should be followed by judicial or some other custody for him where the police cannot teach him. That collocutor may briefly record the relevant conversation and communicate it not to the police but to the nearest magistrate Pilot projects on this pattern may yield experience to guide the practical processes of implementing Art. 20(3). These are not 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 for conviction. The appellant shall undertake to answer all questions put to her which do not materially incriminate her in the pending or imminent investigations or prosecutions.

If she claims immunity regarding any questions she will, without disclosing details, briefly state in which case or offence in the offing makes her reasonably apprehend self- incrimination by her refused answers. If, after the whole examination is over, the officer concerned reasonably regards any refusal to answer to be willful violation under pretence of immunity from self-incrimination, he will be free to prosecute the alleged offender after studying the refusal to answer in the light of the principles earlier set out, Section 179 I.P.C. should not be unsheathed too promiscuously and teasingly to tense lay people into vague consternation and covert compulsion although the proper office of Section 179 I.P.C. is perfectly within the constitutional limits of Art. 20(3). [651 C-F]

2. The rule, of law becomes a rope of sand if the lawful authority of public servants can be defined or disdained by those bound to obey. The might of the law, in the last resort guarantees the right of the citizen and no one, be he minister or higher, has the discretion to disobey without running a punitive risk. Chapter X of the Indian Penal Code is designed to penalise disobedience of public servants exercising lawful authority. S. 179 is one of the provisions to enforce compliance when a public servant legally demands truthful answers but is met with blank refusal or plain mendacity. [620 F-G]

3. A break down by S. 179 I.P.C. yields the following pieces (a) the demanding authority must be a public servant;

a police officer is obviously one; (b) the demand, must be to state the truth- on a subject in the exercise of legal powers; and, indubitably, an investigating officer enjoys such powers under the Cr. P. Code, and, in the instant case, requisition was precisely to tell the truth on matters supposedly pertinent to the offence under investigation. S. 161 of the Cr. P. Code obligates "any person supposed to be acquainted with the facts and circumstances of the case" to answer truthfully "all questions relating to such case other than questions the answers to which would have a tendency to expose him to a criminal charge". [621 A-B] In the present case, admittedly oral answers to written interrogations were sought, although not honest speech but 'constitutional' silence grated the public servant. And this refuge by the accused under Art. 20(3) drove the disenchanted officer to seek the sanction of section 179 I.P.C. If the literal force of the text governs the complex of facts, the Court must convict, lest the long arm of the investigatory law should hang limp when challenged by the negative attitude of inscrutability worn by the interrogate unless within the text and texture of the section-built-in defences exist. [621 B-C]

4. The area covered by Art. 20(3) of the Constitution and section 161(2) of the Criminal Procedure Code is substantially the same. So much so, terminological expansion apart, sec. 161(2) is a parliamentary gloss on the constitutional clause. [623D] A constitutional provision receives its full semantic range and so it follows that a wider connotation must be imparted to the expressions 'accused of any offence' and 'to be witness against himself'. Art. 20(3) of the Constitution warrants no such truncation as argued by Counsel but, as in Miranda v. Arizona, 384 U.S. 436 (1966) ruling extends the embargo to police investigation, also. A narrow meaning may emasculate a necessary protection. There are only two primary queries involved in this clause that seals the lips into permissible silence (i) Is the person called upon to testify 'accused of any offence' and (ii) is he being compelled 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 might cover not merely accusations already registered in police stations but those which are likely to be basis for exposing a person to a criminal charge, if applicable to Art. 20(3), approximates the constitutional clause to the explicit statement of 612 the Prohibition in s. 161(2). S. 161(2) meaningfully uses the expression 'expose himself to a criminal charge'.

Obviously, these words mean, not only cases Where the person is already exposed to a criminal charge but also instances which Will imminently expose him to criminal charges. In Art. 20(3) the expression (accused of any offence' must mean formally accused in praesenti not in futuro-not even imminently as decisions now stand. The expression "to be witness against himself" means more than the court process, Any giving of evidence, any furnishing of information, if likely to have an incriminating impact ensures the description of being witness against himself. Not being limited to the forensic stage by express words in Art.

20(3) the expression must be construed to apply to every stage where furnishing of information and collection of materials takes place. That is to say, even the investigation 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 oral examination by police officers and grants immunity at that stage. Briefly, the Constitution and them Code are coterminous in the protective area. While the Code may be changed, the Constitution is more enduring. [624 B-C]

6. Under the Indian Evidence Act the Miranda exclusionary rule that custodial interrogations are inherently coercive finds expression (s. 26), although the Indian provision confines it to confession which is a narrower concept than self-incrimination. [624 D]

7. Speaking pragmatically, there exists a rivalry between societal interest in effecting crime detection and constitutional rights which accused individuals possess.

Emphasis may shift, depending on circumstances, in balancing these interests as has been happening in America. Our constitutional perspective has, therefore, to be relative and cannot afford to be absolutist, especially when torture technology, crime escalation and other social variables affect the application of principles in producing humane justice. [624 E-G] Couch v. United States, 409 U.S. 322, 336 (1972) referred to.

8. Two important considerations must be placed at the forefront before sizing up the importance and impregnability of the anti-self-incrimination guarantee. They are (i) not to write off the fear of police torture leading to forced self incrimination as a thing of the past and (ii) never to forget that crimes, in India and internationally are growing and criminals are out writing the detectives. [625 C, G] The first obligation of the criminal justice system is to secure justice by seeking and substantiating truth through proof. The means must be as good as the ends and the dignity of the individual and the freedom of the human person cannot be sacrificed by resort to improper means, however worthy the ends. Therefore. 'Third degree' has to be out-lawed and indeed has been. [626 F-G] The cherished principle behind the Maxim `nemo tenetur sceipsum tenetur' meaning "a man cannot represent himself as guilty" which proscribes compulsory self-accusation, should not be dangerously over broad nor illusorily whittled down.

And it must openly work in practice and not be a talismanic symbol. If Art. 20(3) is not to prove a promise of unreality 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, 40 L. Ed. 819 referred to.

A moral from the Miranda reasoning is the burning relevance of erecting protective fenders and to make their observance a police obligation so that the angelic Art. 20(3) may face upto Satanic situations. [630 F-G]

9. The framers of our Constitution have cognised certain pessimistic poignancies and mellow life meanings and obligated Judges to maintain a 'fair state-individual balance' and to broaden the fundamental right to fulfill its purpose, lest frequent martyrdoms reduce the article to a mock formula. Even silent approaches, furtive moves, slight deviations and subtle ingenuities 613 may erode the article's validity unless the law outlaws illegitimate and unconstitutional procedures before they find their first firm footing. The silent cause of the final fall of the tall tower is the first stone obliquely and obliviously removed from the base. [631 E-F] And Art. 20(3) is a human article, a guarantee of dignity and integrity and of inviolability of the person and refusal to convert an adversary system into an inquisitorial scheme in the antagonistic ante-chamber of a police station. And in the long run, that investigation is best which uses stratagems least, that policeman deserves respect who gives his fists rest and his wits restlessness.

10. Sec. 161(2) is a sort of parliamentary commentary on Art. 20(3) of the Constitution. The scope of s. 161 does include actual accused and suspects and therefore the police have power under sections 160 and 161 of the Cr. P.C. to question a person who then was or in the future may incarnate as an accused person. 'Any person' in s. 161 Cr.

P.C. would include persons then or ultimately accused. [632 E-F] Any person supposed to be acquainted with the facts and circumstances of the case includes an accused person who fills that role because the police suppose him to have committed the crime and must, therefore, be familiar with the facts. The supposition may later prove a fiction but that does not repel the section. Nor does the marginal note 'examination of witnesses by police' clinch the matter. A marginal note clears' ambiguity but does not control meaning. Moreover, the suppositions accused figures functionally as a witness. To be a witness, from functional angle, is to impart knowledge in respect of a relevant fact, and that is precisely the purpose of questioning the accused under section 161 Cr. P.C. The dichotomy between 'witnesses' and ,accused' used as terms of art. does not hold good here. The amendment, by Act XV of 1941, of Sec. 161(2) of the Cr. P. Code is a legislative acceptance of the Pakala Narayana Swami reasoning and guards against a possible repercussion of that ruling. The appellant squarely fell within the interrogational ring. To hold otherwise is to fold up investigative exercise, since questioning suspect is desirable for detection of crime and even protection of the accused. 'Extreme positions may boomerang 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 of Bihar, [1972] 3 SCR 639, 657; followed.

11. Suspects, not yet formally charged but embryonically are accused on record, also may swim into the harbour of Art. 20(3) and therefore a person formally brought into the police diary as an accused person is eligible for the prophylactic benefits of Art. 20(3) of the Constitution.

[635 B-G] State of Bombay v. Kathi Kalu Oghad, [1962] 3 SCR 10 reiterated.

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, Crl. A. 131-132 of 1961 S.C. dated 20-9-63; referred to.

12. It is plausible that where realism prevails over formalism and probability over possibility. the enquiries under criminal statutes with quasi-criminal investigations are of an accusatory nature and are sure to end in prosecution when the offence is grave and the evidence gathered good. And to deny the protection of a constitutional shield designed to defend a suspect because the enquiry is preliminary and may possibly not reach the Court is to erode the substance while paying hollow homage to the holy verbalism of the Article. [637 H, 638A] Ramesh Chandra Mehta v. State of W.B. [1961] 2 S.C.R. 461 and Raja Narayan Lal Bansilal v. Manak Phiroz Mistry and Ors.,[1961] I S.C.R. 417, referred to.

13. The view that the bar in Art. 20(3) operates only when the evidence previously procured from the accused is sought to be introduced into the case 614 at the trial by the Court will be sapping the juice and retaining the rind of Art. 20(3) doing interpretative violence to the humanist justice of the proscription. The text of the clause contains no such clue, its intendment is stultified by such a judicial amendment and an expansive construction has the merit of natural meaning, self- fulfilment of the 'silence zone' and the advancement of human rights. The plea for narrowing down the play of the sub-article to the forensic phase of trial cannot be accepted. It works where the mischief is, in the womb, i.e.

the police process. [638 B-D]

14. Both precedent procurement and subsequent exhibition of self criminatting testimony are obviated by intelligent constitutional anticipation. If the police can interrogate to the point of self-accusation, the subsequent exclusion of that evidence at the trial hardly helps because the harm has been already done. The police will prove through other evidence what they have procured through forced. confession.

So it is that the foresight of the framers has preempted self-incrimination at the incipient stages by not expressly restricting it to the trial stage in Court. True, compelled testimony previously obtained is excluded. But the preventive blow falls also on pre-court testimonial compulsion. The condition is that the person compelled must be an accused. [639 B-D]

15. Not all relevant answers are criminatory; not all criminatory answers are confessions. Tendency to expose to a criminal charge is wider than actual exposure to such charge. The spirit of the American rulings and the substance of this Court's observations justify this 'wheels within wheels' conceptualization of self-accusatory statements. The orbit of relevancy is large. Every fact which has a nexus with the case does not make it noxious to the accused. Relevance may co-exist with innocence and constitutional censure is attracted only when inference of nascence exists. And an incriminatory inference is not enough for a confession. Only if, without more, the answer established guilt, does it amount to a confession. [639 E-G] Answers that would, in themselves, support a conviction are confessions but answers which have a reasonable tendency strongly to point out to the guilt of the accused are incriminatory. Relevant replies which furnish a real and clear link in the chain of evidence indeed to bind down the accused 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 of substantially, all the facts which constitute the offence are admitted by the offender. If his statement also contains self-exculpatory matter it ceases to be a confession. Article 20(3) strikes at confessions and self- 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 of all the circumstances in the case and where it is clear that the claim is unjustified, the protection is unavailable.

[640C] Merely because he fancied that by such answer he would incriminate himself he could not claim the privilege of silence. It must appear to the court that the implications of the question, in the setting in which it is asked, make it evident that a responsive answer or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result. The apprehension of incrimination from the answer sought must be substantial and real as distinguished from danger of remote possibilities or fanciful flow of inference. Two things need emphasis. The setting of the particular case, the context and the environment i.e. the totality of circumstances, must inform the perspective of the Court adjudging the incriminatory injury, and where reasonable doubt exists, the benefit must go 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) have reasonably sensed the peril of prosecution from his answer in the conspectus of circumstances ? The perception of the peculiarities of the case cannot be irrelevant in proper appraisal 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.

615

17. The policy behind the privilege under our scheme, does not swing so wide as to sweep out of admissibility statements neither confessional per se nor guilty in tendency but merely relevant facts which viewed in any setting, does not have a sinister import. To spread the net so wide is to make a mockery of the examination of the suspect, so necessitous in the search for truth. Over- breadth undermines, and such morbid exaggeration of a wholesome protection must be demurred. [640 H, 641 A-B] On the bounds between constitutional proscription and testimonial permission Art. 20(3) could be invoked only against statements which had a material bearing on the criminality of the maker of the statement._ "By itself does not exclude the setting or other integral circumstances but means something in the fact disclosed a guilt element. The setting of the case is an implied component of the statement. [641 B-D] State of Bombay v. Kathikalu Oghad, [1962] 3 SCR P. 10 referred 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 taint of tendency, under Art. 20(3) and s. 161 (1) is more or less the same. It is not a remote, recondite, freak or fanciful inference but a reasonable, real, material or probable deduction. 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 plurality of other investigations in the offing or prosecutions pending on the amplitude of the immunity. 'To be witness against oneself' is not confined to particular offence regarding which the questioning is made but extends to other offences about which the accused has reasonable apprehension of implication from his answer. This conclusion also flows from tendency to be exposed to a criminal charge. 'A criminal charge' covers any criminal charge than under 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 utmost significance in pronouncing on the guilty tendency of the question and answer. What in one milieu may be colourless, may, in another be criminal. While subjectivism of the accused may exaggeratedly apprehend a guilty inference lingering behind every non-committal question, objectivism reasonably screens innocent from innocent answers.

Therefore, making a fair margin for the accused's credible apprehension of implication from his own mouth, the Court will view the interrogation objectively to hold it criminatory or otherwise without surrendering to the haunting subjectivism of the accused. The dynamics of constitutional silence cover many interacting factors and repercussions from speech. [642 A, C-D]

21. The policy of the law is that each individual accused included, by virtue of his guaranteed dignity has a right to a private enclave where he may lead a free life without over-bearing investigatory invasion or even crypto-coercion.

The protean forms gendarme duress assumes. the environmental pressures of police presence, compounded by incommunicado confinement and psychic exhaustion, torturesome interrogation and physical menances and other ingenious, sophisticated procedures-the condition, mental, physical, cultural and social of the accused, the length of the interrogation and the manner of its conduct and a variety of like circumstances, will go into the pathology of coerced para confessional answers. The benefit of doubt where reasonable 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 police officer, ignorantly insisted on a woman appearing at the police station, in fragrant contravention of the wholesome proviso to Section 160(1) of the Cr. P.C. must be visited with prompt punishment, since policemen may not be a law unto themselves expecting others to obey the law. The wages of indifference is reprimand, of intransigence disciplinary action. If the alibi is that the Sessions Court had directed 616 the accused to appear at the police station, that is no absolution for a police officer from disobedience of the law. There is public policy, not complimentary to the police personnel, behind this legislative proscription which keeps, juveniles and females from police company except at the former's safe residence. May be, in later years, community confidence and consciousness will regard the police force as entitled to better trust and soften the stigmatising or suspicious provisions now writ across the Code].

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 315 of 1978.

From the Judgment and Order dated 30-1-1978 of the Orissa High Court in C.D.C. No. 961/77.

AND CRIMINAL APPEAL NO. 101 of 1978 From the Judgment and Order dated 30-1-1978 of the Orissa High Court in Criminal Revision No. 397 of 1977.

G. Rath, S. K. Bagga, (Mrs.) S. Bagga and Indu Talwar for the Appellant.

B. M. Patnaik, A. G.. Orissa, Vinoo Bhagat and R. K. Mehta for Respondent No. 1.

The Judgment of the Court was delivered by A pensive preface KRISHNA IYER, J.-Every litigation has a touch of human crises and, as here, it is but a legal projection of life's vicissitudes.

A complaint was filed by the Deputy Superintendent of Police, Vigilance (Directorate of Vigilance), Cuttack, against the appellant, the former Chief Minister of Orissa under section 179 I.P.C., before the Sub-divisional Judicial Magistrate Sadar, Cuttack, alleging offending facts which we will presently explain. Thereupon the Magistrate took cognizance of the offence and issued summons for appearance against the accused (Smt. Nandini Satpathy). Aggrieved by the action of the Magistrate and urging that the complaint did not and could not disclose an offence, the agitated accuse appellant moved the High Court under Art. 226 of the Constitution as well as under section 401 of the Cr. P.

Code, challenging the validity of the Magis terial proceeding. The broad submissions, unsuccessfully made before the High Court, was that the charge rested upon a failure to answer interrogations by the police but this charge was unsustainable, because the umbrella of Article 20(3) of the Constitution and the immunity under section 161(2) of the Cr. P. Code were wide enough to shield her in her refusal. The plea of unconstitutionality and illegality put forward by this preemptive proceeding was rebuffed by the High Court and so she appealed to this Court by certificate granted under Article 132(1), resulting in the above two appeals, their by taking a calculated risk which might boomerang on the litigant if she failed because what this Court now decides finally binds.

Every appeal to this court transcends the particular lis to incarnate as an appeal to the future by the invisible many whose legal lot we 617 decide, by laying down the law for the nation under Article 141; and, so, we are filled with humility in essaying the task of unravelling the sense and sensibility, the, breadth and depth, of the principle against self-incrimination enshrined in Art. 20(3) of our Constitution and embraced with specificity by Section 161(2) of the Cr. P. Code.

Here we must remember, concerned as we, are in expounding an aspect of the Constitution bearing on social defense and individual freedom, that humanism is the highest law which enlivens the printed legislative text with the life-breath of civilized values. The judge who forgets this rule of law any day regrets his nescient verdict some day.

Now, we move on to the riddle of Art. 20(3), the range of the 'right to silence and the insulation of an accused Person from police interrogation under section 161(2) of the Cr. P. Code. Counsel on both sides have presented the rival viewpoints with utmost fairness some scholarship and we have listened to them, not as an abstract intellectual exercises peppered by lexical and precedential erudition but as deeper dives into the meaning of meanings and the exalted adventures in translation of twinkling symbols. Our Constitutional guarantees are phrased like the great sutras- pregnant brevities enwombing founding faiths.

The basic facts which have given rise to this case need to be narrated but the law we have to settle reminds us, not of a quondam minister, the appellant, but of the numerous indigents, illiterates and agrestics who are tensed and perplexed, by police processes in station recesses, being unversed in the arcame implications of Art. 20(3) and unable to stand up to rough handling despite section 161(2). Law- in-action is tested by its restless barks and bites 'in the streets and its sting in hostile camps, especially when the consumers are unaware of the essential contents of the protective provisions,-and not by its polished manners and sweet reasonableness in forensic precincts. The pulse of the agitated accused, hand-cuffed and interrogated, the rude voice and ready rod of the head constable and the psychic strain, verging on consternation, sobbing into involuntary incriminations, are part of the scenario of police investigation which must educate the Court as it unveils the nuances of Art. 20(3) and its inherited phraseology. A people whose consciousness of rights is poor, a land where legal services at-the incipient stages are, rare and an investigative personnel whose random resort to third degree technology has ancient roots-these and a host of other realistic factors must come into the Court's ken when interpreting and effectuating the constitutional right of the suspect accused to remain silent. That is why quick surgery, when constitutional questions affecting the weaker numbers are involved, can be successful failure. We are cognizant of the improved methods and refined processes of the police forces, especially be, Vigilance wings and Intelligence squads with special training in expert investigation and use of brains as against brawn. This remarkable improvement, in Free India, in police practices has not unfortunately. been consistent and torture tactics have not been transported for life from our land as some recent happenings have regrettably revealed.

5-315SCI/78 618 Necessarily, the Court must be guided by principled pragmatism, not cloud-cuckoo-land idealism. This sets our perspective.

The facts Back to the facts. Smt. Nandini Satpathy, a former Chief Minister of Orissa and one time minister at the national level was directed to appear at the Vigilance, Police Station, Cuttack, in September last year, for being examined in connection with a case registered against her by the Deputy Superintendent of Police, Vigilance, Cuttack, under section 5 (2) read with section' 5 ( 1 ) (d) & (e) of the Prevention of Corruption Act and under section 161/165 and 120-B and 109 I.P.C. On the strength of this first information, in which the appellant, her son and others were shown as accused persons, investigation was commenced.

During the course of the investigation it was that she was interrogated with reference to a long string of questions, given to her in writing. Skipping the details of the dates and forgetting the niceties of the provisions, the gravamen of the accusation was one of acquisition of assets disproportionate to the known, licit sources of income and probable resources over the years of the accused, who occupied a public position and exercised public power for a long spell during which, the police version runs, the lady by receipt of illegal gratification aggranaised herself--a pattern of accusation tragically and traumatically so common against public persons who have exercised and exited from public power, and a phenomenon so suggestive of Lord Acton's famous dictum. The charge, it is so obvious, has a wide- ranging 'scope and considerable temporal sweep, covering activities and acquisitions, sources and resources private and public dealings and nexus with finances, personal and of relatives. The dimensions of the offences naturally broadened the area of investigation, and to do justice to such investigation, the net of interrogation had to be cast wide. Inevitably, a police officer who is not too precise, too sensitive and too constitutionally conscientious is apt to trample underfoot the guaranteed right of testimonial tacitness. This is precisely the grievance of the appellant, and the defence of the respondent is the absence of the 'right of silence, to use the familiar phrase of 20th century vintage.

Our Approach Counsel's submissions have zeroed in on some basic questions. Speaking broadly, there are two competing social interests a reconciliation of which gives the clue to a balance between the curtailed or expanded meaning for the sententious clause against self-incrimination in our Constitution. 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 offence shall be compelled to be a witness against himself".

"Section 161(2) Cr. P.C. enjoins :

"such person shall be bound to answer truly all questions relating to such ease put to him by such officer, other than 619 questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture." The elucidation and application of these provisions will be better appreciated in the specific setting of the points formulated in the course of the arguments. And so we now set down the pivotal issues on which the submissions were focussed, reminding ourselves that we cannot travel beyond the Atlantic to lay down Indian law although counsel invited us, with a few citations, to embark on that journey. India is Indian, not alien. and jurisprudence is neither eternal nor universal but moulded by the national genius, life's realities, culture and ethos of each country. Even so, humanist jurists will agree that in this indivisible human planet certain values, though divergently expressed, have cosmic status, spreading out with the march of civilization in space and time. To understand ourselves, we must listen to voices from afar, without forsaking our identity. The Gandhian guideline has a golden lesson for judges when rulings and text books outside one's jurisdiction are cited :

"I do not want my house to be walled in on all sides and my windows to be stuffed. I want the cultures of all lands to be blown about my house as freely, as possible. But I refuse to be blown off my feet by any." (Young India 1-6-1921)".

To build bridges of juridical understanding based on higher values, is good; to don imported legal haberdashery, on meretricious appeal, is clumsy.

The Issues The points in controversy may flexibly be formulated thus

1. Is a person likely to be accused of crimes i.e. a suspect accused, entitled to the sanctuary of silence as one 'accused of any offence' ? Is it sufficient that he is a potential-of course, not distant-candidate for accusation by the police ?

2. Does the bar against self-incrimination operate not merely with reference to a particular accusation in regard to which the police investigator interrogates, or does it extend also to other pending or potential accusations outside the specific investigation which has led to the questioning ? That is to say, can an accused person, who is being questioned by a police officer in a certain case, refuse to answer questions plainly non-criminatory so far as that case is concerned but probably exposes him to the perils of inculpation in other cases in posse or in esse elsewhere ?

3. Does the constitutional shield of silence swing into action only in Court or can it barricade the 'accused' against incriminating interrogation at the stages of police investigation ?

4. What is the ambit of the cryptic expression 'compelled to be a witness against himself' occurring in Article 20(3) of the Constitution ? 620 Does 'compulsion' involve physical or like pressure or duress of an unlawful texture or does it cover also the crypto-compulsion or psychic coercion, given a tense situation or officer in authority interrogating an accused person, armed with power to insist on an answer ?

5. Does being 'a witness against oneself' include testimonial tendency to incriminate or probative probability of 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 a criminal charge embrace answers which have an inculpatory impact in other criminal cases actually or about to be investigated or tried ?

7. Does 'any person' in Section 161 Cr. Procedure Code include an accused person or only a witness ?

8. When does an answer self-incriminate or tend to expose one to a charge ? What distinguishing features mark off nocent and innocent, permissible and impermissible interrogations and answers ? Is. the setting relevant or should the answer, in vacuo, bear a guilty badge on its bosom ?

9. Does mens rea form a necessary component of section 179 I.P.C., and, if so, what is its precise nature ? Can a mere apprehension that any answer has a guilty potential salvage the accused or bring into play the exclusionary rule ?

10. Where do we demarcate the boundaries of benefit of doubt in the setting of section 161(2) Cr. P. Code and Section 179 I.P.C. ? Section 179 I.P.C.

This formulation does focus our attention on the plural range of jural concerns when a court is confronted with an issue of testimonial compulsion followed by a prosecution for recusancy. Preliminarily, let us see the requirements of section 179 I.P.C. since the appeals directly turn on them. The rule of law becomes a rope of sand if the lawful authority of public servants can be defied or disdained by those bound to obey. The might of the law, in the last resort, guarantees the right of the citizen, and no one, be he minister or higher, has the discretion to disobey without running a punitive risk. Chapter X of the Indian Penal Code is designed to penalise disobedience of public servants exercising lawful authority. Section 179 is one of the pro- visions to enforce compliance when a public servant legally demands truthful answers but is met, with blank refusal or plain mendacity. The section reads :

" 179 whoever, being legally bound to state the truth on any subject to any public servant refuses to answer any question demanded of him touching that subject by such public servant in the exercise of the legal powers of such public servant, shall be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both." 621 A break-down of the provision yields the following pieces : (a) the demanding authority must be a public servant; a police officer-is obviously one, (b) The demand must be to state the truth on a subject in the exercise of legal powers; and, indubitably, an investigating officer enjoys 'such powers under the Cr. P. Code, and here, the requisition was precisely to tell the truth on matters supposedly pertinent to the offences under investigation.

Section 161 of the Cr. P.C. obligates 'any person supposed to be acquainted with the facts and circumstances of the case to answer truthfully 'all questions relating to such case .... other than questions the answers to which would have a tendency to expose him to a criminal charge'. In the present case, admittedly, oral answers to written interrogatories were sought, although not honest 'speech but 'constitutional' silence greeted the public servant. And this refuge by the accused under Art. 20(3) drove the disenchanted officer to seek the sanction of section 179 I.P.C. If the literal force of the text governs the complex of facts. the court must convict, lest the- long arm of the investigatory law should hang limp when challenged by the negative attitude of inscrutability, worn by the 'interrogatee'-unless within the text and texture of the section built-in defences exist. They do, is the appellant's plea; and this stance is the subject of the debate before us.

What are the defences open under Section 179 I.P.C. read with section 161 (1) Cr. P. C. ? Two exculpatory channels are pointed out by Sri Rath, supplemented by a third paramount right founded on constitutional immunity against testimonial self-incrimination. To itemise them for ready reference, the arguments are that (a), 'any person in section 161(1) excludes an accused person (b) that questions which form links in the chain of the prosecution case-these include all except irrelevant ones-are prone to expose the accused to a criminal charge or charges since several other cases are in the offing or have been charge-sheeted against the appellant and (c) the expansive operation of the benignant shield against self-accusation inhibits elicitation of any answers which the accused apprehends may throw inculpatory glow. This wide vindication, if valid, will be the biggest interpretative bonus the court can award to criminals as it foredooms to failure of criminal justice and police truth tracking, says the learned Advocate General. True, courts self-criminate themselves if they keep the gates ajar for culprits to flee justice under the guise of interpretative enlargement of golden rules of criminal jurisprudence.

The Constitution and the criminal The inherent quandary of the penal law in this area springs from the implanted dilemma of exacting solicitude for possible innocents forced to convict themselves out of their own lips by police tantrums and the social obligation of the limbs of the law and agencies of justice to garner truth from every quarter, to discover guilt, wherever hidden, and to fulfill the final tryst of the justice system with society. Which is to shield the community against criminality by relentless pursuit of the culprit, by proof of guilt and punishment of crime, not facilitation of the fleeing criminal from the chase of the appointed authorities of the State 622 charged with the task of investigating, testing, proving and getting punished those whose anti-social exploits make citizens' life vulnerable.

The paradox has been put sharply by Lewis Mayers : "To strike the balance between the needs of law enforcement on the one hand and the protection of the citizen from oppression and injustice at the hands of the law-enforcement machinery on the other is a perennial problem of state craft. The pendulum over the years has swung to the right.

Even as long ago as the opening of the twentieth century, Justice Holmes declared that 'at the present time in this country there is more danger that criminals will escape justice than that they will be subject to tyranny. As the century has unfolded, the danger has increased.

Conspiracies to defeat the law have, in recent decades, become widely and powerfully organized and have been able to use modern advances in communication and movement to make detection more difficult. Lawbreaking tends to increase.

During the same period, an increasing awareness of the potentialities of abuse of power by law enforcement officials has resulted, in both the judicial and the legislative spheres, in a tendency to tighten restrictions on such officials, and to safeguard even more jealously the rights of the accused, the suspect, and the witness. It is not too much to say that at mid-century we confront a real dilemma in law enforcement.

In consequence, there is clearly discernible a tendency to reexamine the assumptions on which rest our complex of rules and doctrines which offer obstacles, perhaps wisely, to the discovery and proof of violations of law. In such a re- examination, the cluster of rules commonly grounded under the term 'privilege against self-incrimination', which has for many decades been under attack, peculiarly calls for restudy. In the words of Wigmore, 'Neither the history of the privilege, nor its firm constitutional anchorage need deter us from discussing at this day its policy. As a bequest of the 1600's, it is but a relic of controversies, and convulsions which have long since ceased...... Nor does its constitutional sanction, embodied in a clause of half a dozen words, relieve, us of the necessity of considering its policy.......... A sound and intelligent opinion must be formed upon the merits of the policy." Justice Douglas made this telling comment:

"As an original matter it might be debatable whether the provision of the Fifth Amendment that no person "shall be compelled in any criminal case to be a witness against himself' serves the ends of justice" (1952).

These prologuic lines serve as background to a balanced approach to the crucial question posed before us.

A police lapse Before discussing the core issues, we wish to note our regret, in this case, at a higher level police officer, ignorantly insisting on a woman appearing at the police station in flagrant contravention of the wholesome proviso to Section 160(1) 623 of the Cr.P.C. Such deviance must be visited with prompt punishment since policemen may not be a law unto themselves expecting others to obey the law. The wages of indifference is reprimand, of intransigence disciplinary action. If the alibi is that the Sessions Court had directed the accused to appear at the police station that is no absolution for a police officer from disobedience of the law. There is public policy, not complimentary to the police personal behind this legislative proscription which keeps juveniles and females from police company, except at the former's safe residence. May be, in later years, community confidence and consciousness will regard the police force as entitled to better trust and soften the stigmatising or suspicious provisions now writ across the Code.

It is necessary, to appreciate the submissions, to remember the admitted fact that this is not the only case or investigation against the appellant and her mind may move around these many investigations, born and unborn, as she is confronted with questions. The relevance of this factor will be adverted to later.

Setting the perspective of Art. 20(3) and Sec. 161 (2).

Back to the constitutional quintessence invigorating the ban on self-incrimination. The area cove-red by Art. 20(3) and Section 161(2) is substantially the same. So much so, we are inclined to the view, terminological expansion apart, that Section 161(2) of the Cr.P.C. is a parliamentary gloss on the constitutional clause. The learned Advocate General argued that Art. 20(3), unlike Section 161(1), did not operate at the anterior stages before the case came to court and the accused's incriminating utterance, previously recorded, was attempted to be introduced. He relied on some passages in American decisions but, in our understanding, those passages do not so circumscribe and, on the other hand, the land mark Miranda v. Arizona(1) ruling did extend the 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 clause that seals the lips into permissible silence, (i) Is the person called upon to testify ,accused of any offence', (ii) Is he being compelled to be witness against himself ? A constitutional provision receives its full semantic range and so it follows that a wider connotation must be imparted to the expressions 'accused of any offense' and 'to be witness against himself. The learned Advocate General, influenced by American decisions rightly agreed that in express terms Section 161(2) of the Code might cover not merely accusations already registered in police stations but those which are likely to be the basis for exposing a person to a criminal charge. Indeed, this wider construction, if applicable to Art. 20(3), approximates the constitutional clause to the explicit statement of the prohibition in section 161(2). This latter provision meaningfully uses the expression 'expose himself to a criminal charge. Obviously, these words mean, not only cases where the person is already exposed to a criminal charge but also instances which will imminently expose him to criminal charges. In Art.

(1)384 U.S 436 (1966).

624 20(3), the expression 'accused of any offence, must mean formally accused in praesenti not in futuro-not even imminently as decisions now stand. The- expression 'to be witness against himself' means more than the court process.

Any. give of evidence, any furnishing of information, if likely to have an incriminating impact. answers the descrip- tion of being witness against oneself. Not being limited to the forensic stage by express words in Art. 20 (3), we have to construe the expression to apply to every stage where furnishing of information and collection of materials takes place. That is to say, even the investigation at the police level is embraced by Art. 20(3). This is precisely what Section 161(2) means. That sub-section relates to oral examination by police officers and grants immunity at that stage. Briefly, the Constitution and the Code are coterminous in the protective area. While the Code may be changed the Constitution is more enduring. Therefore, we have to base our conclusion not merely upon Section 1 61 (2) but on the more fundamental protection, although equal in ambit, contained in Art. 20(3).

In a way this position brings us nearer to the Miranda mantle of exclusion which extends the right against self- incrimination, to police examination and custodial interrogation and takes in suspects as much as regular accused persons. Under the Indian Evidence Act, the Miranda exclusionary rule that custodial interrogations are inherently coercive finds expression (section 26), although the Indian provision confines it to confession which is a narrower concept than self-crimination.

We halve earlier spoken of the conflicting claims requiring reconciliation. Speaking pragmatically, there exists a rivalry between societal interest in effecting crime detection and constitutional rights which accused individuals possess. Emphasis may shift, depending on circumstances, in balancing these interests as has been happening in America, Since Miranda there has been retreat from stress on protection of the accused and gravitation towards society's interest in convicting lawbreakers.

Currently, the trend in the American jurisdiction according to legal journals, is that 'respect for (constitutional) principles is eroded when they leap their proper bounds to interfere with the legitimate interests of 'society in enforcement of its laws........ (78) Couch v. United States, 409 U.S.322, 336 (1972). Our constitutional perspective has, therefore, to be relative and cannot afford to be abso- lutist, especially when fortune technology crime escalation and other social variables affect the application of principles in producing humane justice.

Whether we consider the Talmudic law or the Magna Carta, the Fifth Amendment, the provisions of other constitutions or Article 20(3), the driving force- behind the refusal to permit forced self-crimination is the system of torture by investigators and Courts from medieval times to modern days.

Law is a response to life and the English rule of the accused's privilege of silence may easily be traced as a sharp reaction to the court of Star-Chamber when self- incrimina- 625 tion was not regarded wrongful. Indeed, then the central feature of the criminal proceedings, as Holdsworth has noted, was the examination of the accused.

The horror and terror that then prevailed did, as a reaction give rise to the reverential principle of immunity from interrogation for the accused. Sir James Stephen has observed :

"For at least a century and a half the (English) Courts have acted upon the supposition that to question a prisoner is illegal This opinion arose from a peculiar and accidental state of things which has long since- passed away and our modem law is in fact derived from somewhat questionable source though it may no doubt be defended (Sir James Stephen (1857)." Two important considerations must be placed at the forefront before sizing up the importance and impregnability of the anti-self-incrimination guarantee. The first is that we cannot afford to write off the fear of police torture leading to forced self-incrimination as a thing of the past.

Recent Indian history does not permit it, contemporary world histor y does not condone it. A recent article entitled 'Minds behind Bars', published in the December, 1977 issue of the Listener, tells an awesome story : "The technology of torture all over the world is growing ever more sophisticated-new devises can destroy a prisoner's will in a matter of hours-but leave no visible marks or signs of brutality. And government-inflicted terror has evolved its own dark sub-culture. All over the world, torturers seem to feel a desire to appear respectable to their victims There is an endlessly inventive list of new methods of inflicting pain and suffering on fellow human beings that quickly cross continents and ideological barriers through some kind of international secret-police net work.

that we feel that public opinion in several countries is much more aware of our general line than before. And that is positive. I think, in the long run, governments can't ignore that. We are also encouraged by the fact that, today, human rights are discussed b