TMI Blog1978 (4) TMI 236X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch 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 Necessarily, the Court must be guided by principled pragmatism, not cloud-cuckoo-land idealism. This sets our perspective. The f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anded 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 vali ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9;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- incrimination 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the United States is infecting other 'countries, including our own. An American author in a recent book(1) has stated : What do you think the city of tomorrow will (1) Roger Lamphear, J.D.'s book entitled 'To Solve the Age- Old problem of Crime. be ? In 1969 the National Commission on the Causes and Prevention of Violence made alarming predictions. You will Eve in a city where everyone has guns Houses will be protected by grils and spy equipment. Armed citizen patrols will be necessary. The political extremes will be small armies. Busses will have to carry armed guards. There will be hatred and war between the races, and between the rich and the poor. (63, Pg. 44) In other words, your city win be a place of terror. From 1969 to 1974 the number of crimes for each hundred thousand people is up 38%. (48, pg. 12) Violent crimes rose 47%. (48, pg. 23) Robbery increased 48%. (48, pg. 25) Burglary went up a whopping 53%. (48, pg. 29) Theft rose 35%. (48, pg. 32) The chances are becoming better and better that you or someone dear to you will be a victim. The chances are also better that a close relative will be involved in crime as criminal. . . . In only 12% o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said sufficient to drive home the anxious point that this cherished principle 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 talismatic symbol. The Miranda ruling clothed the Fifth Amendment with flesh and blood and so must we, if Art. 20(3) is not to prove a promise of unreality. Aware that the questions raised go to the root of criminal jurisprudence we seek light from Miranda for interpretation, not innovation, for principles in their settings, not borrowings for our conditions. The spiritual thrust of the two provisions is the same and it is best expressed in the words of Brown v. Walker.(1) Over 70 years ago, our predecessors on this Court eloquently stated The maxim nemo tenetur sceipsum accusare had its origin in a protest against the inquisitorial and manifestly unjust methods of interrogating accused persons, which (have) long obtained in the continental system, and, until the expulsion of the Stuarts from the British throne in 1688, and the erection of additional barriers for the protection of the people against the exercise of arbitrary power, (were) not u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y irregular or improper means.' Not only does the use of the third degree involve a flagrant violation of Law by the officers of the law, but it involves also the dangers of false confessions, and it tends to make police and prosecutors less zealous in the search for objective evidence. As the New York prosecutor quoted in the report said, 'It is a short cut and makes the police lazy and unenterprising.' Or, as another official quoted remarked : 'If you use your fists, you are not so likely to use your wits. (384 US 448)' We agree with the conclusion expressed in the report, that 'The third degree brutalizes the police, hardens the prisoner against society, and lowers the esteem in which the administration of justice is held by the public.' [IV National Commission on Law Observance and Enforcement, Report on Lawlessness in Law Enforcement 5(1931).] (7) 'Again we stress that the modern practice of in custody interrogation is psychologically rather than physically oriented, As we have stated before, Since Chambers v. Florida, 309 US 227 (84 L.Ed. 716), this Court has recognized that coercion can be mental as well as physical and that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other men, perhaps the subject has had a bad family life, had an unhappy childhood, had too much to drink, had an unrequited desire for women. The officers are instructed to minimise the moral seriousness of the offense, (Inbau Reid, supra at 34-43, 87) to cast blame on the victim or on society. These tactics are designed to put the subject in a psychological state where his story is but an elaboration of what the police purport to know already that he is guilty. Explanations to the contrary are dismissed and discouraged. The texts thus stress that the major qualities an interrogator should possess are patience and perseverance. One writer (384 US 451) describes the efficacy of these characteristics in this manner : 'In the preceding paragraphs emphasis has been placed on kindness and stratagems. The investigator will, however, encounter many situations where the sheer weight of his personality will be the deciding factor. Where emotional appeals and tricks are employed to no avail, he must rely on an oppressive atmosphere of dogged persistence. He must interrogate steadly and without relent, leaving the subject no prospect of surcease. He must dominate his subject and ov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unwitting words of guilt from tough or gentle subjects. The end product is involuntary incrimination, subtly secured, not crudely traditional. Our police processes are less 'scholarly' and sophisticated, but ? Another 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 article [20(3)] may face upto satanic situations. Says Chief Justice Warren In these cases, we might not find the defendants' statements to have been involuntary in traditional terms. Our concern for adequate safeguards to protect precious Fifth Amendment right is, of course, not lessened in the slightest. In each of the cases, the defendant was thrust into an un- familiar atmosphere and run through menacing police interrogation procedures. The potentiality for compulsion is forcefully apparent, for example, in Miranda, where the indigent Mexican defendant wag a seriously disturbed individual with pronounced sexual fantasies, and in Stewart, in which the defendant was an indigent Los Angeles Negro who had dropped out of school in the sixth grade. To be sure, the records do not evince overt physica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... must rise in peoples' esteem through firm and friendly, not foul and sneaky strategy. The police reflect the State, the State society. The Indian legal situation has led to judicial concern over the, State v. individual balance. After tracing the English and American developments in the law against self-incrimination, Jagannadhadas, J., in M. P. Sharma's([1954] S.C.R. 1077, at 1085, 1086.) case observed Since the time when the principle of protection against self-incrimination became established in English law and in other systems of law which have followed it, there has been considerable debate as to the utility thereof and serious doubts were held in some quarters that this principle has a tendency to defeat justice. In support of the principle it is claimed that the protection of accused against self-incrimination promotes active investigation from external sources to find out the truth and proof of alleged or suspected crime instead of extortion of confessions on unverified suspicion.... On the other hand, the opinion has been strongly held in some quarters that this rule has an undesirable effect an social interests and that in the detection of crime, the State i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instruments, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity and incon- sistency, but no farther : Lord Wensleydale in (1875) 6 HLC 613 at p. 106. My Lords, to quote from the language of Tindal C.J. when delivering the opinion of the Judges in (1844) 11 CL F 85 at page 143, 'The only rule for the construction of Acts of Parliament is that they should be construed according to the intent of the Parliament which passed the Act. If the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense. The words themselves alone do in such case best declare the intention of the law-giver. But if any doubt arises from' the terms employed by the Legislature, it has always been held a safe means of collecting the intention, to call in aid the ground and cause of making the statute, and to have recourse to the preamble which according to Dyer C.J. (1562) 1 Plowd 353 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shes to confess to a crime, or a person who calls the police to offer a confession or any other statement he desires to make. Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today. (emphasis added) A recurrent argument, made in these cases is that society's need for interrogation outweighs the privilege. This argument is not unfamiliar to this Court. See. e.g., Chambers v. Florida, 309 US 227, 240-241, 84 Led 716, 724, 60 S Ct 472 (1940). The whole thrust of our foregoing discussion demonstrates that the Constitution has prescribed the rights of the individual when confronted with the power of Government when it provided in the Fifth Amendment that an individual cannot be compelled to be ;A witness against himself. That right cannot be abridged. As Mr. Justice Brandeis once observed Decency, security and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizens. In a government of laws existence of the government will be imperiled if it fails to observe the law scrupulously. Our Government is the potent, the omnipresent teacher. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 240 shows that the enquiry which the inspector undertakes is in substance an enquiry into the affairs of the company concerned. If, after receiving the report, the Central Government is satisfied that any person is guilty of an offence for which be is criminally liable, it may, after taking legal advice, institute criminal proceedings against the offending person under s. 242(1); but the fact that a prosecution may ultimately be launched against the alleged offender will not retrospectively change the complexion or character of the proceedings held by the inspector when he makes the investigation. Have irregularities been committed in managing the affairs of the company; if yes, what is the nature of the irregularities ? Do they amount to the commission of an offence punishable under the criminal law? If they do who is liable for the said offence ? These and such other questions fall within the purview of the inspector's investigation. The scheme of the relevant sections is that the investigation begins broadly ,with a view to examine the management of the affairs of the company to find out whether any irregularities have been committed or not. In such a case there is no ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ] 2 S.C.R. 461.) also the Court observed ........ Normally a person stands in the character of an accused when a First Information Report is lodged against him in respect of an offence before an Officer competent to investigate it, or when a complaint is made relating to the commission of an offence before a Magistrate competent to try or send to another Magistrate for trial of the offence. Where a Custom Officer arrests a person and informs that person of the grounds of his arrest, (which he is bound to do under Art. 22(1) of the Constitution) for the purpose of holding an enquiry into the infringement of the provisions of the Sea Customs Act which he has reason to believe has taken place, there is no formal accusation of an offence: In the case of an offence by infringement of the Sea Customs Act and punishable at the trial before a Magistrate there is an accusation when a complaint is lodged by an officer competent in that behalf before the Magistrate. Reliance was placed on Ghagwandas Goenka v. Union of India(Crl. Appeals Nos. 131 132/61 dt. 20-9-63 (Unreported judgement).) where this Court has said : The information collected under s. 19 is for the purpose of seein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of the 'silence zone' and the advancement of human rights. We over-rule the plea for narrowing down the play of the sub-article to the forensic phase of trial. It works where the mischief is, in the womb, i.e. the police process. In the language of Miranda. Today, then, there can be no doubt that the Fifth Amendment privilege is available outside of criminal court proceedings and serves to protect persons in all settings in which their freedom of action is curtailed in any significant way from being compelled to incriminate themselves. The constitutional shield must be as broad as the contemplated danger. The Court in M.P. Sharma's (supra) case took this extended view. Indeed, every positive volitional act which furnishes evidence. is testimoney, and testimonial compulsion connotes coercion which procures the positive volitional evidentiary acts of the person, as opposed to the negative attitude of silence or submission on his part. Nor is there any reason to think that the protection in respect of the evidence so procured is confined to what transpires at the trial in the court room. The phrase used in article 20(3) is to be a witness and not to a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earlier. 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 to any part of a case is relevant, but such nexus with the case does not make it noxious to the accused. Relevance may co-exist with innocence and consti- tutional censure is attracted only when inference of nocence exists. And an incriminatory inference is not enough for a confession. Only if, without more, the answer establishes guilt, does it amount to a confession. An illustration will explicate our proposition. Let us hypothesize a homicidal episode in which A dies and B is suspected of murder; the scene of the crime being 'C'. In such a case a bunch of questions may be relevant and yet be innocent. Any one who describes the scene as well-wooded or dark or near a stream may be giving relevant evidence of the landscape. Likewise, the medical evidenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the incriminatory injury, and where reasonable doubt exists, the benefit must go in favour of the right to silence by a liberal construction of the Article. In Malloy v. Bogan, (12 L.Ed. 2d 653), the Court unhesitatingly held that 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. We have summarised the Hoffman standard and the Malloy test. Could the witness (accused) have reasonably sensed the peril of prosecution from his answer in the conspectus of circumstances? That is the true test. The perception of the peculiarities of the case cannot be irrelevant in proper appraisal of self-incriminatory potentiality. The cases of this Court have used different phraseology but set down substantially the same guidelines. Phipson, it is true, has this to say on self-incrimination : 'The rule applies to questions not only as to direct criminal acts, but as to perfectly innocent matters forming merely links in the chain of proof'. We think this statement too widely drawn if applied to Indian Statutory an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (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 you feel the effect, its guilty portent, fairly clearly. We, however, underscore the importance of the specific setting of a given case for judging the tendency towards guilt. Equally emphatically, we stress the 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. 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 crimin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mind has been so conditioned by some extra- neous process as to render the making of the statement involuntary and therefore extorted. Hence, the mere asking by a police officer investigating a crime against a certain individual to do a certain thing is not compulsion within the meaning of Art. 20(3). Hence, the mere fact that the accused person, when he made the statement in question was in police custody would not, by itself, be the- foundation for an inference of law that the accused was compelled to make the statement. Of course, it is open to an accused person to show that while he was in police custody at the relevant time, he was subjected to. treatment which, in the circumstances of the case, would lend itself to the inference that compulsion was, in fact, exercised. In other words, it will be a question of fact in each case to be determined by the Court on weighing the facts and circumstances disclosed in the evidence before it. This question of fact has to be carefully considered against the background of the circumstances disclosed in each case. The policy of the law is that each individual, accused included, by virtue of his guaranteed dignity, has a right to a p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by Bernard Schwartz.) This realism has great relevance when dealing with interrogation, incrimination, police station, the Constitution and the code. Now we will first formulate our findings on the various matters argued before us and discussed above. Then, we will fortify the observance of the legal requirements by the police through practical prescriptions and proscriptions. We hold that section 161 enables the police to examine the accused during investigation. The prohibitive sweep of Art. 20(3) goes back to the stage of police interrogation-not, as contended, commencing in court only. In our judgment, the provisions of Art. 20(3) and section 1 61 ( 1 ) substantially cover the same area, so far as police in- vestigations are concerned. The ban on self-accusation and the right to silence, while one 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. We are disposed to read 'compelled testimony' as evidence procured not merely by physical threats or violence but by psychic torture, atmospheric pressure, environmental coerc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubstantially innocent but in effect guilty in import. However, fanciful claims, unreasonable prehensions 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. We have no doubt that section 179 I.P.C. has a component of mens rea and where there is no wilful refusal but only unwitting omission or innocent warding off, the offence is not made out, When 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 nocent or noxious viewed in the wider setting. It may not be sufficient merely to state the rules of jurisprudence in a branch like this. The man who has to work it is the average police head constable in the Indian countryside. The man who has to defend himself with the constitutional shield is the little individual, by and large. The place where these-principles have to have play is the unpleasant police station, unused to constitutional nuan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s a panacea for all problems of involuntary self-crimination, for he cannot supply answers or whisper hints or otherwise interfere with the course of questioning except to intercept where intimidatory tactics are tried, caution his client where incrimination is attempted and insist on questions and answers being noted where objections are not otherwise fully appreciated. lie 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. We realize that 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 acknowledgement. '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. Das Gupta J, dissenting for the minority on the Bench, drove home a point which deserves a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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). We do not mandate but strongly suggest. The statement of the accused, if voluntary, is admissible, indeed, invaluable. To erase involuntariness we must erect safeguards which will not 'kill the goose'. To ensure this free will by inbuilt structural changes is the desideratum. Short-run remedies apart long- run recipes must be innovated whereby fists are replaced by wits, ignorance by awareness, 'third degree' by civilized tools and technology. The factotum policeman who does everything from a guard of honour to traffic patrol to subtle detection is an obsolescent survival Special training, special legal courses, technological and other detective up- dating, are important. An aware police man is the best social asset towards crimelessness. The consciousness of the official as much as of the community is the healing hope for a crime-ridden society. Judge-centred remedies don't work in the absence of community centered rights. All these add up ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nvolved; the human personality of others in the society must also be preserved. Thus the, values reflected by the privilege are not the sole desideratum; society's interest in the general security is of equal weight. The obvious underpinning of the Court's decision is a deep-seated distrust of all confessions. As the Court declares that the accused not be interrogated without counsel present, absent a waiver of the right to counsel, and as the Court all but admonishes the lawyer to advise the (384 US 538) accused to remain silent, the. result adds up to a judicial judgment that evidence from the accused should not be used against him in any way, whether compelled or not. This is the not so subtle overtone of the opinion-that it is inherently wrong for the police to gather evidence from the accused himself. And this is precisely the nub of this dissent. I see nothing wrong or immoral and certainly nothing unconstitutional in the police's asking a suspect whom they have reasonable cause to arrest whether or not lie killed his wife or in confronting him with the evidence on which the arrest was based, at least where he has been plainly advised that he may remain comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of section 160(1) Cr.P.C. may make for tension and relate voluntaries. It is likely that some of the questions are selfcriminatory. 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 blow on the 7-315SCI/78 very protection under Art. 20(3). We have more reasons than one to conclude that the ends of justice will be ill-served by an endless magisterial chase of a charge the legal clarity of which is, by this judgment, being authoritatively unveiled and the factual foundation of which may have some infirmities. An the consequences of refusal to answer, if most of the questions are self-condemning and a few formal ones innocuous, were not gone into by us. So, we suggested to counsel that the authority of the law be vindicated by the accused undertaking to answer all relevant, not criminatory, interrogations and, on this pledge of compliance, the State withdraw the prosecution protempore. If the accused went back on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 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 ill some aspects, when, in this court, counsel for the accused unreservedly undertakes to answer in the light of the law we here lay 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 our judgement, we hold that persistence in the prosecution is seeming homage to the rule of law and quashing the prosecution secures the ends of justice-the right thing to do is to quash the prosecution as it stands at present. We regret that this dimension of the problem has escaped the Executive's attention. for reasons best left unexplored. The conspectus of circumstances persuades us to exercise our power under Art. 266 read with Art. 136 and section 401 of Cr.P.C. to make the following direction. We are satisfied that many of the questi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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