On this blog we had earlier reported the decision of the Supreme Court in Selvi v. State of Karnataka wherein the Court had refused to allow narcotic analysis and use of truth-serum against the accused in according to the Court it violated the Right against self-incrimination available to all citizens in terms of Article 20(3) of the Constitution of India. In a recent decision, the Supreme Court however has delineated the limitations of this provision in much as it declared that this right is not available to a person to avoid answering questions in a matter where he has not been charged for an offence.
Called upon to decide the question as to "whether protection under Article 20(3) of the Constitution is available to the appellant, who though not an accused in the police case in which he has been asked to depose as a witness but figures as an accused in the complaint case filed later on in relation to the same incident", the Supreme Court in Balasaheb v. State of Maharashtra declared the law in the following terms;
5. ... Protection under Article 20(3) of the Constitution does not extend to any kind of evidence but only to self-incriminating statements relating to the charges brought against an accused. In order to bring the testimony of an accused within the prohibition of constitutional protection, it must be of such character that by itself it tend to incriminate the accused. Appellant is not an accused in the Police case and in fact a witness, whose statement was recorded under Article 161 of the Criminal Procedure Code, and, therefore, not entitled to a blanket protection. However, in case of trial in the Police case answer to certain question if tends to incriminate the appellant he can seek protection at that stage. Whether answer to a question is incriminating or otherwise has to be considered at the time it is put. Reference in this connection can be made to a decision of this Court in the case of State of Bombay vs. Kathi Kalu Oghad, AIR 1961 SC 1808, wherein it has been held as follows:
“In order that a testimony by an accused person may be said to have been self-incriminatory the compulsion of which comes within the prohibition of the constitutional provision, it must be of such a character that by itself it should have the tendency of incriminating the accused, if not also of actually doing so. In other words, it should be a statement which makes the case against the accused person at least probable, considered by itself.”
6. We are of the opinion that for invoking the constitutional right under Article 20(3) a formal accusation against the person claiming the protection must exist. Simply because the appellant figures as the accused in the complaint case, a blanket protection as claimed by him cannot be granted. Reference in this connection can be made to a decision of this Court in the case of Raja Narayanlal Bansilal v. Maneck Phiroz Mistry and Another, AIR 1961 SC 29, wherein it has been held as follows:
“The effect of this decision thus appears to be that one of the essential conditions for invoking the constitutional guarantee enshrined in Article 20(3) is that a formal accusation relating to the commission of an offence, which would normally lead to his prosecution, must have been levelled against the party who is being compelled to give evidence against himself; and this conclusion, in our opinion, is fully consistent with the two other decisions of this Court to which we have already referred.
7. Referring to the decision of this Court in the case of Ramanlal Bhogilal Shah (supra), relied on by the appellant, the same in spite of supporting his case goes against him which would be evident from the following paragraph of the said judgment:
“24. Although we hold that the petitioner is a person accused of an offence within the meaning of Article 20(3), the only protection that Article 20(3) gives to him is that he cannot be compelled to be a witness against himself. But this does not mean that he need not give information regarding matters which do not tend to incriminate him.
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9. As observed earlier the appellant is not an accused in the Police case and in fact a witness whose statement was recorded during the course of investigation under Section 161 of the Code of Criminal Procedure. In the Police case he utmost can be asked to support the case of the prosecution but no question intented to incriminate him can be asked and in case it is done the protection under Article 20(3) of the Constitution shall spring into action. What question shall be put to this appellant when he appears as a witness is a matter of guess and on that basis he does not deserve the blanket protection under Article 20(3) of the Constitution. Even at the cost of the repetition we may observe that in the Police case when he appears and asked to answer question, the answer whereof tends to incriminate him, he can refuse to answer the same pleading protection under Article 20(3) of the Constitution. In such eventuality the Court would decide the same. Therefore, at this stage the blanket protection sought by the appellant is not fit to be granted.
10. As regards the authority of this Court in the case of Nandini Satpathy (supra) the same has no bearing in the facts and circumstances of this case. There the question was as to whether the protection under Article 20(3) of the Constitution shall apply at the stage of Police interrogation and in answer thereto this Court held that it shall go back to the stage of Police interrogation and not in Court only.
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