3.1 The right not to be compelled to testify against himself is a universally recognised right of the accused under Art 14 of the International convention on civil and political rights and is a fundamental right conferred by Art 20 (3) of the Constitution. It says that “No person accused of any offence shall be compelled to be a witness against himself”. This is often described as right to silence. History of mankind is replete with instances where under every type of regime the accused in custody was tortured within the four corners of the cell for forcing him to
confess or disclose information, when there is none to hear his cries or to come to his rescue. That is why compulsion is prohibited by of Article 20(3). In AIR 1992 SC 1795, the Supreme Court has pointed out that compulsion in the present context means “Duress”. It does not prohibit admission or confession which is made without any inducement, threat or promise. It also does not bar the accused from voluntarily
offering himself to be examined as a witness. Any confession made under compulsion is rendered inadmissible in evidence by virtue of S.24 of the Evidence Act. It cannot be disputed that accused is good source of information about the commission of the offence. But unfortunately this source is not fully tapped may be for the fear of infringing the accused’s right to silence granted by Article 20(3). To ascertain if there is any scope for tapping this source and to find out ways and means of enhancing contribution of the accused for better quality of criminal justice it is necessary to examine the true scope and limits of the Right to silence.
It cannot be disputed that accused is good source of information about the commission of the offence. But unfortunately this source is not fully tapped may be for the fear of infringing the accused’s right to silence granted by Article 20(3). To ascertain if there is any scope for tapping this source and to find out ways and means of enhancing contribution of the accused for better quality of criminal justice it is necessary to examine the true scope and limits of the Right to silence.
3.2 Art. 20(3) does not prohibit the accused being questioned during investigation or trial. When questioned the accused may deny or make a confession. When the accused is asked during trial whether he pleads guilty to the charge he may confess and plead guilty. If the accused is willing during investigation to make a confession, it can be got recorded by the Magistrate under section 164 of the Code. A voluntary statement by the accused leading to discovery of any incriminating fact is admissible under S-27 of the Evidence Act. Sections 306 and 307 of the Code empower the court to tender pardon to the approver who was a privy or an abettor in the commission of the offence, subject to the condition that he makes a full and complete disclosure of all the facts including his own involvement in the commission of the crime. If the person after accepting tender of pardon gives false evidence or willfully conceals any essential fact he can be deprived of the privilege of pardon and tried for the offences he is alleged to have committed as also for the offence of giving false evidence.
3.3 Section 313 of the Code confers power on the court to examine the accused only to explain any circumstances appearing in the evidence against him. Whereas Clause (a) of Sub-Section (1) of Section 313 empowers the court to put questions at any stage to the accused as it considers necessary, Clause (b) of Sub- Section (1) requires the court to question the accused generally on the case after the witnesses for the prosecution have been examined. Sub-Section (2) of 313 provides that no oath shall be administered to the accused when he is examined under Sub-Section (1). Sub-Section (3) provides that the accused shall not be liable for punishment for refusing to answer the questions put to him or for any false answers.
3.4 Sub-section(4) provides that the answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, or any other offence which such answers may tend to show he has committed. It does not empower the court to draw any inference when the accused remains silent or refuses to answer the question put to him.
3.5 If, in answer to the question put to the accused under Section 313 he voluntarily makes a self-incriminatory statement it can be taken into consideration for or against him as provided in Section 313(4). As no compulsion is involved Article 20(3) is not violated. If any incriminatory statement is voluntarily made by the accused in answer to the question put by a police officer, it cannot be regarded as one made under compulsion, vide AIR 1962 SC 1831, R.K. Dalmia Vs. Delhi Administration. In AIR 1965 SC 1251, State of Gujarat Vs. Shyamlal Mohanlal Choksi the Supreme Court has upheld the validity of Section 27 of the Evidence Act which renders the portion of the statement of the accused that leads to the discovery of any fact admissible in evidence.
3.6 Burden of Proof in Criminal cases is on the Prosecution as provided in section 101 of the Evidence Act. However, there are several statutory provisions which provide that the court may presume certain facts, place the burden on the accused of rebutting such presumption. If the accused fails to rebut the presumption the court can
proceed to give its verdict on the basis of the presumption. For the sake of convenience we shall limit our examination to only a few statutory provisions which provide for raising certain rebuttable presumptions.
3.7.1 Section 114 of the Evidence Act gives several illustrations where the Court may presume existence of certain facts.
S.114 illustration (a) reads: The court may presume
(a) that a man who is in possession of stolen goods soon after theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession”. 3.7.2 If the accused remains silent and fails to account for possession of the goods the court may convict the accused on the basis of the statutory presumption for the offence of theft or offence of receiver of the stolen goods.
Illustration (h) to section 114 reads: - “The court may presume
(h) that if a man refuses to answer a question which he is not compelled to answer, by law, the answer, if given, would be unfavourable to him”;
3.8 The expression “man” used herein is in a generic sense and does not exclude the accused. If the accused refuses to answer the questions put to him an unfavourable inference can be drawn against him.
3.9 Section 113 A of the Evidence Act provides for a presumption that the husband has abetted suicide of his wife if suicide took place within seven years of marriage and the wife was earlier subjected to cruelty. Likewise Section 113 B raises a presumption of dowry death if it is shown that prior to her death she was harassed etc in connection with demand
Burden of Proof in Criminal cases is on the Prosecution as provided in section 101 of the Evidence Act. However, there are several statutory provisions which provide that the court may presume certain facts, place the burden on the accused of rebutting such presumption.
of dowry. Again Section 114 A provides for presumption as to absence of consent in certain prosecutions for rape.
3.10 Similarly there are several special statutes which provide for raising certain presumptions placing the burden of rebutting them on the accused. Section 4 of Public Gambling Act 1867 provides that “Any person found in any common gambling house or in gambling or playing there-in shall be presumed until the contrary be proved to have been there for the purpose of Gambling”. Section 12 of the Protection of Civil Rights Act 1955 provides “where any act constituting an offence under this Act is committed in relation to a member of the Scheduled Caste as defined in clause (24) of Article 366 of the Constitution, the court shall presume, unless the contrary is proved that such act was committed on the ground of untouchability”. Certain presumptions are drawn under Section 3, 5 and 6 of Immoral Traffic (Prevention) Act 1956. In order to avoid such presumption taking effect the accused has to break his silence to rebut the presumption. This type of pressure on the accused is not regarded as compelling him to be a witness against himself in contravention of Article 20(3). The Supreme Court has held in AIR 1971 SC 2346 that no compulsion is involved in enacting a rule of absolute liability or conclusive evidence against the accused or to disclose his defence failing which an adverse inference may be drawn against the accused.
3.11 The common features discernible from the analysis of some of the statues in India in the previous paragraphs may be summarized as follows:
i. Article 20(3) does not prohibit the Investigating Officer from putting questions to the accused to elicit information about the commission of the crime and his involvement.
ii. The court can put any questions to the accused during trial to give him an opportunity to explain the circumstances appearing against him in the evidence.
iii. The accused has a right to answer or refuse to answer any question put to him during investigation or trial.
iv. The court can draw appropriate inferences from the answers given by the accused when examined under Section 313 of the Code.
v. There is no express provision empowering the court to draw an adverse inference against the accused on his failure to answer the questions put to him.
vi. On the accused failing to rebut the statutory presumption the court can proceed to treat the presumption as absolute.
following recommendations to improve the competence and credibility of the investigating agency: -
i. To provide a separate, independent, honest, competent and efficient investigation agency free from political and other pressures.
ii. To ensure that during investigation the accused and witnesses are not subjected to any torture, threats or inducements and that only the voluntary statements made by them are recorded faithfully and accurately.
iii. To suitably amend Sections 161 and 162 of the Code to provide for recording and signing the statements made by any person to the Police Officer and to render them admissible evidence.
iv. To delete Sections 25 to 29 of the Indian Evidence Act.
3.13 Further discussion shall be on the basis of these recommendations. 3.14 We shall now examine how refusal of the accused to answer the questions put to him is dealt with in different countries.
3.15 In United States of America right to silence has been granted by the 5th amendment to the Constitution. No adverse inference of guilt can be drawn from the failure of the accused to testify. However some of the American Courts have held that adverse inference can be drawn from the silence of the accused for the limited purpose of determining the quantum of punishment. Professor Ingraham holds the view that:
Every citizen has a duty to give frank answers to relevant questions concerning the crime to the Police. An obdurate silence in the face of an accusation of involvement must be capable of leading to whatever reasonable inferences can be drawn there-from. One of those is concealment of guilt.
3.16 He further points out that common sense expects one who is accused of the crime to reply, explain, admit or exonerate himself and that this does not threaten the privilege from self-incrimination.
3.17 In Canada right to silence is recognised by Section 11(c) of the Canadian Charter of Rights and Freedom. Section 4(6) of the Canadian Evidence Act 1985 provides that failure to testify shall not entitle the court to draw an adverse inference against him.
Japan the accused has the right to silence and no adverse inference can be drawn on his refusal to testify. In South Africa, right to silence is enshrined in Section 35 of the Bill of Rights and no adverse inference can be drawn against the accused for failure to answer any question during investigation or trial. 3.19 So far as Australia is concerned, in New South Wales, the accused has the right to silence and Section 20 provides that adverse inference can be drawn against the accused for failure to testify only when a comment is made by another accused in the case. The position is slightly different in the State of Queensland. In the Case of Weissensteiner vs. Queen (1993 178, Common Law Report 217) the majority has held that adverse inference can be drawn on the failure of the accused to testify where the evidence establishes a prima-facie case.
3.20 The Law Commission of North South Wales has in its recent report No.95 recommended that legislation based on Sections 34, 36 and 37 of the United Kingdom Criminal Justice and Public Order Act 1994 should not be introduced in South Wales. However they have made recommendations No.5 (a), 5(b) and No.10 to require the accused to disclose his defence in several respects and upon failure to do so to draw adverse inference and also to draw adverse inference on the refusal of the accused to testify.
3.21 United Kingdom has during last few years undertaken several measures to reform the Criminal Justice System. The reforms which have a bearing on the right to silence of the accused are contained in Sections 34, 35, 36 and 37 of the Criminal Justice and Public Order Act 1994. These provisions permit “proper inferences” being drawn from the silence of the accused to the questions put to him during investigation or trial.
3.22 In Northern Ireland there are similar provisions in the Criminal Evidence (Northern Ireland) Order 1988. In that Country the cases are tried with the help of the Jury. A case arising from Northern Ireland where silence of the accused was taken into account, came up for consideration in the House of
Lords in the case of Murray vs. DPP (1993 Cr.APP.REP.151). In that case Lord Mustill observed that no finding of guilt can be arrived at merely on the basis of the silence of the accused unless the prosecution makes out a prima-facie case. On appeal, the European Court of Human Rights in Murray Vs. United Kingdom (1996) 22 EHRR-29 upheld the validity of the Irish Law holding that they did not have the effect of denying the right of the accused to a fair trial or of rebutting the presumption of innocence flowing from Article 6 of the European Convention. The Court however held that two conditions should be satisfied for drawing
appropriate inferences from the silence of the accused, namely (i) that the prosecution must firstly establish prima-facie case and (ii) that the accused
during investigation or questioned during the trial. In the light of this decision of the European Court of Human Rights, the Criminal Justice and Public Order Act 1994 applicable to England and Wales was amended to bring it in conformity with the view taken by the European Court of Human Rights and a provision requiring the accused to be informed of his rights to call an Attorney was added.
3.23 Shortly thereafter a case arose from the United Kingdom in which the provisions of the English Act permitting appropriate inferences being drawn from the silence of the accused were challenged. The matter ultimately reached the European Court on Human Rights which rendered its judgment in Condron Vs. United Kingdom on the 2nd of May 2000. The European Court of Human Rights did not dissent from the view taken by it earlier in Murray’s case. However the Court set aside the conviction of Condron on the ground that there was misdirection by the Court to the jury in the context of the stand taken by the accused that he remained silent on the advice of his Solicitor. The provisions of law which permit appropriate inferences being drawn against the accused on his silence were up-held following its earlier decision in Murray’s case.
VIEWS OF EMINENT JURISTS
3.24 Eminent lawyer Sri Fali Nariman has said “It is time that we recognise the right of silence during a trial is not really a right, but a privilege and although every accused has a right to be presumed innocent till he is proved guilty, in terrorist related and other grave crimes the accused has an obligation to assist the discovery of truth”. Former Chief Justice Ahmadi is in favour of drawing an adverse inference on the silence of the accused only in relation matters which are within the special knowledge and not in other cases. Former Chief Justice Ranganath Misra says that requiring the accused to disclose his defence once the prosecution case/charge leveled against him is made known to him will not offend Article 20(3). He, however, says that no adverse inference should be drawn if the accused remains silent.
VIEWS OF THE HIGH COURTS
3.25 The High Courts of Guwahati, Jammu & Kashimir, Karnataka, Madras, Patna, Rajasthan, Sikkim and Uttaranchal have not expressed any views on the question of drawing adverse inference against the accused on his refusal to answer the questions put to him. They have also not expressed any opinion on the question whether the accused should be required to disclose his defence once the
prosecution case/charge levelled is made known to him. The High Courts of Andhra Pradesh, Bombay, Chattisgarh, Delhi, Gujarat, Himachal
Pradesh, Jarkhand, Kolkata, Orissa and Punjab & Chandigarh are in favour of adverse inference being drawn on the accused refusing to answer the question put to him. They are also in favour of requiring the accused to disclose his defence.
VIEWS OF THE STATE GOVERNMENTS
3.26 Only the Governments of the States of Arunachal Pradesh, Karnataka, Kerala, Haryana, Himachal Pradesh and Jammu & Kashmir have offered their views on the ‘Right to Silence’. The other States have exercised their Right to silence. The Governments of Arunachal Pradesh, Karnataka and Himachal Pradesh favour adverse inference being drawn against the accused on his silence. Kerala Govt. is not in favour of a general provision to draw adverse inference against the accused on his refusing to answer the questions put to him. Similar is the view of the Government of Jammu & Kashmir. The Governments of Karnataka, Haryana and Jammu & Kashmir are in favour of a provision being made requiring the accused to state his case in defence