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NATIONAL LAW INSTITUTE UNIVERSITY

SUBJECT – Criminal Law- III

A PROJECT ON -

A Critical Analysis of Nandini Satpathy Vs P.L. Dani

SUBMITTED BY- SUBMITTED TO-

Yashovardhan Singh DR. PK Shukla

2017 BA.LL.B 118

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ACKNOWLEDGEMENT

I would like to begin with acknowledging our Prof. PK Shukla who gave us this opportunity to work on a
project work, giving us full autonomy to choose our topics as well as guidance where ever needed.

I would also like to thank the director of the university and the administration who have given us all the
requisite facilities like library, Wi-Fi connection, computer lab, photo stat which make the task much
easier and efficient.

Also, I would like to extend my gratefulness to my batch mates and parents who have supported me
throughout in this endeavour.

Yashovardhan Singh

2017 B.A.LL.B 118

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INDEX

Contents
ACKNOWLEDGEMENT......................................................................................................................................................... 2

INTRODUCTION.................................................................................................................................................................. 4

RELEVANT FACTS OF THE CASE............................................................................................................................................ 6

PRINCIPLES DEVELOPED IN THE CASE REGARDING CRPC...................................................................................................... 6

CURRENT POSITION OF LAW............................................................................................................................................. 17

CONCLUSION.................................................................................................................................................................... 18

BIBLIOGRAPHY................................................................................................................................................................. 20
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INTRODUCTION

Right against self-incrimination came into existence during the medieval times, with the Latin maxim
of ‘nemon tenetur seipsum accusare,’ which means no person is obliged to accuse himself. 1 This right
gradually developed in common law to be considered as an essential right and an important facet of the
principles of natural justice. This right is recognized in India as an inherent right enshrined in Article
20(3) of the Constitution of India and by virtue of section 161(2) of the Code of Criminal Procedure,
1973.2 These two legal provisions essentially cover the same subject matter, wherein they state that a
person is not liable to answer questions, which might result in his incrimination. This right was
recognized and its nuances were discussed and reiterated in the landmark case of Nandini Satpathy v.
P. L. Dani.3 This case is one of the most popularly cited cases when it comes to self-incrimination and
right to be silent.4 But this case and the current standing of law on the subject matter have certain flaws
in the principles that have been developed therein. Hence in this paper, the researcher will firstly
discuss the relevant facts of the case, and then analyze the issues and principles that cropped up in the
case regarding criminal procedure, with the help of fact analysis and hypothetical situations. And
finally the researcher shall discuss the trajectory of cases and the current position of law on the subject.
The purpose of this paper is to understand the principles regarding of section 161(2) and their
applicability, which shall be done by critically analyzing the case.

1
Michael Macnair, The early development of the privilege against self-incrimination, OXFORD JOURNAL OF LEGAL STUDIES
66, 73 (1990).

2
Hereinafter, “CrPC.”

3
Nandini Satpathy v. P. L. Dani, (1978) 2 SCC 424; hereinafter, “Nandini Satpathy case.”

4
Kalpana Bhardwaj & Brijandra Panwar, Role of Judiciary in Protection of Human Rights, 1 INTERNATIONAL RESEARCH
JOURNAL 5 114, 115 (2010).
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RELEVANT FACTS OF THE CASE

In Nandini Satpathy v. P. L. Dani,5 the appellant is Mrs. Nandini Satpathy who was the former Chief
Minister of Orissa. She had been called to the Vigilance Police Station, Cuttack in connection with the
case registered against her and her sons under Prevention of Corruption Act. An FIR had been filed
against these persons on the grounds of acquisition of disproportionate assets during the time of the
public position she was in. Regarding this she was to being examined by way of a questionnaire that
was handed to her, which she was supposed to answer orally. She refused to answer certain questions
and remained silent regarding them, since they were self-incriminatory in nature. Upon her refusal she
6
was charged under section 179 of the Indian Penal Code, 1860 that deals with refusal to answer a
public servant on the subject matter. She further challenged herself being booked under section 179 of
the IPC on the ground that she had a right to remain silent under section 161(2) of the CrPC and
Article 20(3) of the Constitution. She initially approached the High Court, which did not hold in her
favour and did not consider her to have a right to remain silent, upon which she appealed to the
Supreme Court.

PRINCIPLES DEVELOPED IN THE CASE REGARDING CrPC

The Nandini Satpathy case is essentially a constitutional law case wherein certain issues pertaining to
Criminal Procedure have been discussed. Justice Krishna Iyer, who gave the majority judgment, has
discussed ten issues, of which three were regarding Criminal Procedure. 7 In this paper these issues
regarding CrPC shall be discussed in light of the judgment and hypothetical situations. The primary
issue discussed was regarding the principle laid down by section 161(2) of CrPC, and to what extent
might a person be justified in not answering a question on the ground that it is self-incriminatory in
nature. Second issue discussed is whether section 161(2) applies only to a witness or does it also
extend to include an accused person, who can claim immunity under Article 20(3) of the Constitution.
And finally the last issue is whether there is a contradiction between section 161(2) of CrPC and
section 179 of the IPC.

5
Supra note 3.

6
Hereinafter, “IPC.”

7
ASHUTOSH KUMAR MISHRA, 50 LEADING CASES OF SUPREME COURT IN INDIA 47 (2014).
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Principle 1:

“A person while being examined under section 161 of the CrPC is not required to answer those
questions that have a tendency to self-incriminate.”8

As aforementioned the main issue discussed in the case was regarding the main principle of section
161(2) of CrPC and when this section is applicable. section 161(2) of the CrPC requires that every
person being questioned must answer truly the question posed to him. 9 But within the clause itself
there is an exception to this that if answering the questions can lead to the incrimination of that person,
then he is not bound to answer those questions. In this case, the main principle developed regarding
this was that, “even if answering a question has the tendency or probability of incriminating the person,
then he/she is not bound to answer it.” 10

For arriving at this conclusion the Supreme Court relied on State of Bombay v. Kathi Kalu Oghad.11
This case extensively discussed the principle of self-incrimination. And it was in this case that the
Court highlighted as to what qualifies as ‘tendency to self-incriminate.’ They held that when there is a
probability of accusation actual or imminent, after taking all circumstances into account; then the
person is not liable to answer the question. But if it appears that there is not possibility of crimination
then the person is bound to answer the question. To explain crimination, the Court also discussed the
difference between confession and crimination. In case of a confession, it is defined as “the potency to
make crime conclusive”12 whereas crimination on the other hand means that there is “tendency to make
guilt probable.”13 Therefore tendency is the possibility of guilt on the part of the person.

Hypothetical situation 1: Z has murdered X, and there is sufficient evidence pointing towards it. With
respect to this incident it is also suspected that Y might have been involved by helping Z to hide the

8
Supra note 3.

9
SC SARKAR, THE CODE OF CRIMINAL PROCEDURE 573 (10th ed. LexisNexis, New Delhi 2012); B ATUK LAL, COMMENTARY ON
CRIMINAL PROCEDURE, 1973 869 (5th ed. Orient Publishing Company, Allahabad 2010).

10
Supra note 3; BATUK, supra note, 9.

11
State of Bombay v. Kathi Kalu Oghad, AIR 1961 SC 1808; hereinafter, “Kathi Kalu case.”

12
Id.

13
Id.
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murder weapon. Y is being examined by the Police Officer regarding the incident and the murder
weapon by virtue of section 161 of the CrPC. During the examination the Police Officer asked whether
Y had touched the murder weapon immediately after the incident occurred. Y can choose to not answer
this question because if he did, it means that he did help in hiding the weapon, then there is very
reasonable possibility that if he says yes he may be charged for abetment, since the only reason he
touched the murder weapon immediately after the murder was probably to hide it.

Hypothetical situation 2: X, the husband is married to Y, the wife and during the period of them being
married to each other X used to constantly have sexual intercourse with Z, and eventually married her
and disappeared with Z for a year. Y came to know of Z’s existence as X’s second wife, and filed a
complaint against X. X was found and called for examination regarding the offence of bigamy. During
the examination, X was asked whether in the last one year he had had sexual intercourse with ‘his
wife.’ X can remain silent on the matter since he had been missing for a year and not in contact with Y,
so probably he did not have sexual intercourse her. Hence if he answers the question positively it
essentially means that he has had sexual intercourse with Z, whom he is conceding to as his wife. If he
does so, it brings up the charge of bigamy on him.

Hypothetical situation 3: X writes a defamatory post about Y on a social networking website,

Handbook. Regarding the same an examination is to be conducted for which X was called and asked
whether he owned an account on the social networking website, Niyogi 6000. X refuses to answer on
the ground that if he answers the question he may be implicated for the defamatory statement on
Handbook. In this case section 161(2) of the CrPC and the principle developed in the Nandini Satpathy
case cannot save him because there is no possibility or tendency of him facing a penalty, charge or
forfeiture if he answers the question truly.

For arriving at the main principle aforementioned, the Supreme Court had primarily relied on the
Hoffman test and the Malloy test. In Hoffman v. United States,14 the United States Supreme Court had
held that a person might not be answer questions that may lead to a conviction such that it creates a
series of link. But it is required that this link has to be a very strong one, and cannot be a fanciful
inference. In this case it was held that merely because the person assumed answering the question

14
Hoffman v. United States, 341 US 479.
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might incriminate him when it is just a remote possibility and not a direct consequence, then the person
cannot take the privilege of being silent.15

This is where it is an extension of the Miranda rights.16 Miranda rights essentially state that a person
does not need to give statement that can incriminate him/her. 17 But the Hoffman test extends this and
lays down that there needs to be a strong nexus between the statement that may be made and the
possibility of incrimination, it cannot be based on mere speculation that it might just lead to a charge.18
The Hoffman test is similar to the test of chain of causation, wherein it is required that there should be
no break in the chain of causation and the consequence should be direct to the event and not a remote
consequence. Similarly in the Hoffman test, the link between the statement that might be made and the
subsequent possibility of self-incrimination should be direct.

Hypothetical situation 4: X, a 26 weeks pregnant woman has an illegal abortion, for which she is
booked under the IPC. It is suspected that Y, a doctor at Secret MTP Clinic, helped her in doing the
abortion. He is called for examination as a witness, during which he is asked whether he has in his
career facilitated any illegal abortions. He can choose to not answer this question since it is indicative
of the fact that he has committed a crime under Medical Termination of Pregnancy Act, 1971 and the
IPC. This because there is a strong nexus between the statement he might make and the possibility of
him being charged.

Hypothetical situation 5: Some illegal drugs are found in the possession of certain people in a restricted
area, Narcopolis. X saw and heard these people discussing the drugs, as he was also present on the
premises. He voluntarily comes forward to become a witness on the matter and give information.
During examination he is asked why he saw and heard the discussion about drugs. X chose to remain
silent because if he answered the question it could implicate him for being on restricted premises,
which can result in prosecution.

15
Alfred Clapp, Privilege against self-incrimination, 10 RUTGERS LAW REV. 541 (1955).

16
Miranda v. Arizona, 384 U.S. 436 (1966); Akhil Amar & Renee Lettow, Fifth Amendment First Principles: The Self-
Incrimination Clause, MICHIGAN LAW REV. 857, 901 (1995).

17
David Dolinko, Is there a rationale for the privilege against self-incrimination, 33 UCLA LAW REV. 1063 (1985).

18
Fred Inbau, Self-Incrimination: What Can an Accused Person Be Compelled to Do?, JOURNAL OF CRIMINAL LAW AND
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CRIMINOLOGY 1329, 1337 (1999).

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Hypothetical situation 6: X illegally accepted a bad tender by forging his superior’s signature. It is not
known who did the forgery. The Police start examining the people from the office. During X’s
examination he is asked whether he used to forge his parent’s or teacher’s signatures back in school or
college. X cannot have the privilege of not answering since answering the question in no manner can
be linked to him being charged for forgery.

The second test relied on was the Malloy test, that was developed from Malloy v. Bogan,19 where the
Court held that whether the person is required to answer a question that might incriminate him depends
on the ‘careful consideration of all the circumstances.’20 Therefore in the Nandini Satpathy case, the
Supreme Court employed the Hoffman test and the Malloy test and concluded that “when the witness
or the accused can reasonably sense the peril of his prosecution based on the circumstances and the
nexus between them and the possibility of self-incrimination, then he is justified in not answering the
question and has the privilege of remaining silent.”21

Another interesting facet discussed was that such a threat of prosecution need not necessarily be in
connection with the subject matter for which the examination is being conducted, it could also be for
some other charge, penalty or forfeiture.22 As discussed earlier in hypothetical situation 4, if the doctor
answers the question regarding him having ever conducted an illegal abortion, then he can refuse to
answer it because it does not just bring up a charge in the present case at hand, but also previous cases.
Even if answering a question can entertain the possibility or tendency of a prosecution regarding a
different crime, then the person can choose to remain silent on the matter.

But the most striking problem with this is that how is it possible for the Police to know whether the
question asked has a tendency to incriminate with respect to a different matter. When the Police is
examining under section 161 of the CrPC, they are likely to know which questions might be self-
incriminatory and which might not be. But on the other hand if the Police are questioning on the
current matter, but the question turns out to be incriminatory with respect to a different matter of which
the Police have no knowledge, due to which the person refuses to answer, then how can the Police

19
Malloy v. Bogan, 12 L.Ed. 2d 653.

20
Id.

21
Supra note 3.

22
Id.
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know that the question has a tendency to incriminate. It is only the person who knows such a question
to be incriminatory. And in that event, since the Police have no knowledge of the question being
incriminatory, they may assume it is not and book the person under section 179 of the IPC for refusing
to answer questions asked by a public servant. This problem might be resolved if the Nandini
Sathpathy case is overruled on the matter such that a person is protected against self-incrimination only
when the incrimination is regarding the current matter. If the incrimination is regarding a different
matter then it should not be considered to be incriminatory to attract section 161(2) of the CrPC or
Article 20(3) of the Constitution.

Further this principle of self-incrimination also carries a contradiction with itself. section 161(2) of the
CrPC, entails that during examination the questions that are to be answered truly by the witness should
be ‘regarding the case.’ But in the Nandini Satpathy case it was held that questions which might not be
related to the current case, but can incriminate regarding a different matter are not required to be
answered. This contradiction is resolved by the fact that while investigating the current matter, the
Police is definitely going to ask question regarding that matter, which are to be answered truly unless
they are incriminatory in nature. It is only when there is possibility that self-incrimination on a
different matter might occur, does the ratio of Nandini Satpathy case apply wherein questions that can
incriminate the person on a different matter are also not required to be answered.

Hypothetical situation 7: X manages a shoe sweatshop for the popular brand Lynx. Although it is an
offence, he used to secretly engage in child labour because it was cheaper, but then he stopped. One
night the bodies of a woman and a child are discovered on the premises of the sweatshop. The woman
was a worker at the sweatshop and she was known to be childless. The child was a previous labourer at
the sweatshop, but the Police do not know this. The Police call X for examination, regarding the body
of the child, during which they ask him whether he knew the child and how. X refuses to answer since
although he is innocent with respect to the charge of murder, answering the question would expose him
to the charge of employing child labourers.

The purpose of section 161 is essentially to obtain evidence that can later be used in the trial by way of
contradiction.23 This is why the statements given under section 161 are not corroborative or
substantive

23
SARKAR, supra note, 9 577 (10th ed. LexisNexis, New Delhi 2012); D.D. BASU, CRIMINAL PROCEDURE CODE 1973 855
(5thed. LexisNexis, New Delhi 2014).
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evidence.24 These statements are not given under an oath and even when the statement is reduced into
writing, it is not signed.25 It can only be used by the accused to contradict the witness that is being
examined by the prosecution. Nandini Satpathy case did give the witness or accused the privilege of
remaining silent if there is a possibility that answering that question may lead to self-incrimination. But
by remaining silent the question presented is indirectly anyway being answered, and might be used for
the purpose of contradiction.

If a witness is aware of the fact that answering might lead to his incrimination, then he will obviously
not answer it. But on the other hand if answering a question is anyway not going to result in his/her
prosecution then he/she will answer truly. It is only when the person has actually done something for
which he might be prosecuted, does he choose to not answer questions that might incriminate him.
Therefore by not answering the question, the witness is in fact answering, although this has no
evidentiary value. Such an inference also cannot be used to contradict the witness; it is only for the
knowledge of the Police Officer who may infer silence in such a manner. Although especially when a
question is asked in a yes or no form, then choosing to be silent is all the more indicative of the fact
that the answer might be in yes which is why the person is not answering.

Further the wording of section 161(2) of the CrPC clearly states, “All questions asked regarding the
26
case are required to be answered truly.” And a kind of exception to this is questions that are self-
incriminatory. This means that it is understandable that if a self-incriminatory question is asked, a
person is likely to not answer that question truly, as required by the clause, so as to save himself from
being charged with a crime. Answering the questions asked truly is the first and foremost condition of
the clause,27 if that is not followed then the entire purpose of the clause of extracting evidence is lost.
To counter this, an exception is given that for those questions, i.e., self-incriminatory questions to
which a person may give false answers are not required to be answered.

Hypothetical situation 8: X used to periodically sexually abuse his niece Y. One day it is found that Y
has committed suicide, naming one of her relatives as the reason in her suicide note. X is called for

24
K.N. PILLAI, R. V. KELKAR’S CRIMINAL PROCEDURE 451 (5th ed. Eastern Book Company, Lucknow 2008).

25
BASU, supra note 23, 859.

26
The Criminal Procedure Code, 1973, Section 161.

27
Pakala Narayana Swami v. Emperor, AIR 1939 PC 47, at 51.
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examination during which the police ask him to answer in yes or no, whether he had ever sexually
abused his niece. X does not answer and remains silent. X’s silence is indicative of the fact that the
answer is yes, because if the answer were no then he would have truthfully answered that. But since
the answer is actually yes he chose to remain silent.

This is why when a person chooses to remain silent when a question is asked to him it is indicative of
the fact that the answer is probably ‘yes,’ which is why the person is not answering the question, since
if the answer was ‘no,’ the person would have truthfully answered it. Further a person is required to
answer truthfully because he is not to give a public servant false information, which is a crime under
section 177 of the IPC.

Another principle enunciated by the Supreme Court in the Nandini Satpathy case while discussing this
issue of the principles regarding section 161, was that when a witness is being examined by the Police
Officer he has the right to have his lawyer with him. 28 It can so happen that while being examined, the
witness involuntarily answers question, which might result in self-incrimination. This again goes
against the main principle discussed herein that, a person can have the privilege of remaining silent if
answering the question has a tendency of leading to his/her prosecution.29 Hence the Court discussed
how allowing the witness to have access to consult his lawyer is the solution to this problem of the
possibility of involuntary self-incrimination. This is because the lawyer can forewarn his/her client that
the question has the potential to incriminate him due to which he should ideally not answer the
question.

Hypothetical situation 9: A Magazine that goes by the name of “Yours Sensually” contains extremely
explicit pictures. This Magazine is not for sale in the Indian subcontinent because it violates the
obscenity laws (section 292, IPC), but is nevertheless dealt with illegally. X owns a shop that sells this
Magazine illegally. Y is a sleeping partner in this venture but is aware of the illegal activity that goes
on. The Police get a tip-off where they are informed about X’s shop. The Police seize all the
Magazines and call even Y for examination. But the Police denied him from having his lawyer present.
During the examination Y is asked whether he has ever owned a copy of the magazine in India, since
the ban. Y assumes that since the question relates to him owning a copy and not about the illegal sale it

28
Supra note 3.

29
Supra note 24, 448.
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is not incriminatory. Y answers truly as “yes,” which results in his prosecution for the sale and
possession of obscene books, Y challenges this prosecution under Article 20(3) of the Constitution.
Now, the entire hassle of the challenge to the prosecution could have been avoided had the Police
allowed Y to have his lawyer with him during the examination. The lawyer would have picked up on
the fact that the question is self-incriminatory, and warned Y about it in which case the prosecution
would have never occurred.

Principle 2:

“Protection under section 161(2) of the CrPC and Article 20(3) of the Constitution is granted to
witnesses as well as accused.”30

The second main principle discussed in the case is whether it is only the accused to whom the self-
incrimination principle applies or does it also extend to a witness. This principle was discussed mainly
because of two reasons. Firstly, the marginal note of section 161 of the CrPC uses the word, ‘witness,’
but in the clause (1) says, ‘any person’ and clause (2) uses the ‘person’ and not witness. Therefore the
entire debate came about as to whom does section 161 apply to and who is saved from self-
incrimination. The Court settled on the matter that the section is applicable to ‘anyone who is
acquainted with the facts and the circumstances of the case’31 as mentioned in the section itself. 32 This
means that the section contemplates a witness to the case, but it can also include an accused such that
the witness becomes an accused of the crime subsequently.33 Hence it was concluded that section 161
extends to witnesses as well as accused.

The second reason for the discussion of the principle is regarding a constitutional matter wherein it was
debated whether Article 20(3) of the Constitution applies to those who have not yet been declared to be
an accused. In the Nandini Satpathy case the issue was that, Article 20(3) grants protection against
self-incrimination to those who have been accused, so how could the appellant take protection under
this Article, when she has not yet been formally accused, but was merely called as a witness for

30
Supra note 3.

31
Supra note 26.

32
Mahabir Mandal v. State of Bihar, (1972) 1 SCC 748; Supra note 24, 450.

33
Dina Nath Ganpat Rai, Re. AIR 1940 Nag 186, at 189.
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examination under section 161 of the CrPC. The Court applied the same logic they did for the previous
reason that section 161 of the CrPC includes witnesses who might become an accused. Therefore even
an ‘accused’ in Article 20(3) includes a person who might become an accused in the future.

Hypothetical situation 10: X and Y are archenemies since school, and are known to have threatened
each on several occasions. Y is also of a loose character and is cheating on his wife; Z. Z has
knowledge of this, but Y does not know that she knows. One day Y started getting blank calls, found
notes threatening him at his doorstep and found his car tyres slashed. Y immediately files a complaint
against X for harassment. Based on the complaint, witnesses are called for examination. One of the
witnesses called is Z. During the examination, the Police mention that the number from where the calls
were made was traced to the office of Z. They ask whether she had made the calls. Upon the asking of
this question Z is extremely flustered, and starts thinking about her marriage. This is direct question,
which can be answered in ‘yes’ or ‘no.’ Z does not consult a lawyer, and immediately without realizing
answers ‘yes.’

The Police book her for harassment, which she challenges under Article 20 (3) of the Constitution and
section 161(2) of the CrPC. The ratio of Nandini Satpathy case also says that under Article 20 (3),
compelled testimony also occurs when there is psychological, atmospheric pressure, intimidatory
methods are used, etc. Z claims that because her husband was cheating and she was being questioned,
there was pressure on her, and she did not intend to answer the question. In such a situation, technically
with respect to only whether she can challenge the prosecution, it is considered that although she was
not an accused when called for examination, she can exercise her right under Article 20(3) of the
Constitution and section 161(2) of the CrPC. The investigation regarding her may not have started with
her being an accused, but even if there is possibility of her becoming one subsequently, then she has a
right against self-incrimination. Hence at least with respect to section 161 of the CrPC, witnesses
include persons who might subsequently become an accused.

Hypothetical situation 11: X, Y and Z study in the same medical college where X and Y are Z’s
seniors. Because Z belongs to a Scheduled Caste and got admission based on reservation, X and Y do
not think he belongs in the college. Hence they would deliberately mix insects in Z’s food on several
occasions, after which Z files a complaint. Among several seniors even X and Y are called for
examination under section 161 of the CrPC. During investigation they are asked whether they
have ever
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caused any trouble to Z and in ‘what all ways.’ X and Y both can in this situation have the privilege of
remaining silent since answering the question can lead to them being charged with a crime. They may
not be ‘accused’ yet but since there is a potential that answering the question might lead to self-
incrimination, X and Y by virtue of section 161(2) of the CrPC are not mandatorily required to answer
such questions.

Principle 3:

“There is no contradiction between section 161(2) of the CrPC and section 179 of the IPC,
they both are in fact in consonance.”

The final principle that was formulated in the Nandini Satpathy case on the matter of procedure was
regarding the contradiction between section 161(2) of the CrPC and section 179 of the IPC. section
161(2) as aforementioned acts as an exception to the general rule wherein the witness is not required to
answer self-incriminatory questions. But on the other hand section 179 of the IPC states that ‘refusing
to answer a public servant who is authorized to question’ is punishable.34 In fact this was essentially
the main issue in the Nandini Satpathy case. Because she refused to answer certain questions by virtue
of section 161(2) of the CrPC, the Police booked her under section 179 of the IPC, which she
challenged.

But the Court held that there in fact was no contradiction between the two sections, because when these
two sections are read together it is evident that section 161(2) of the CrPC is merely in furtherance of
section 179 of the IPC.35 section 179 of the IPC and section 161(2) of the CrPC essentially cover the
same subject matter, it is only that section 161(2) has an additional condition in the form of an
exception of the general rule.36 This exception is that a person can refuse to answer those questions,
which are self-incriminatory. Therefore in Nandini Sathpathy case it was held that there was no
contradiction between these two sections, and they are in fact in consonance. And it is only when there
is no actual tendency to self- incriminate; section 179 of the IPC applies.

34
The Indian Penal Code, 1860, Section 179.

35
Supra note 3.
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36
Supra note 24, 451.
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Although the researcher opines that, these two sections cannot really be considered to be in consonance
when right to self-incrimination also protects a person on a different subject matter and not the present
matter. As aforementioned when the tendency is regarding a different subject matter, it is only the
witness who knows that the question is incriminatory; the Police have no knowledge of it. In such a
case the Police becomes justified to impose section 179 of the IPC on the witness for refusing to
answer, because for the Police there is no apparent tendency of self-incrimination.

Hypothetical situation 12: X dies 3 years after her marriage because of third degree burn injuries. Y,
the husband is called as a witness because X’s parents alleged that their daughter was being harassed
for a dowry by members of the family, although they do not know exactly who. Further during
investigation, the Police find that Y owned a gold watch, which he wanted as dowry from his wife.
When examination was being conducted, Y is asked how he came to be in possession of the gold
watch. Y had in fact stolen this watch, and it was not given as a dowry. Hence Y refuses to answer the
question. Since the Police do not know about the theft part, they also do not know that there is a
tendency to self-incriminate upon answering the question, therefore they charge Y under section 179 of
IPC.

Therefore the researcher opines that right to remain silent should not be given to the witness when the
self-incrimination is regarding a different matter, because the Police are not capable of realizing the
tendency of it. In such a situation the Police is rightly justified in booking the witness under section
179 of the IPC. It is only if the witness challenges this charge and goes to the Court, is there a
possibility that the tendency might become apparent to others. Also it is not right that a crime goes
unpunished. If the part regarding self-incrimination on a different matter is done away with then it is in
fact a good thing because at least a different crime will be known of.

CURRENT POSITION OF LAW

Right against self-incrimination still remains the same as it was held in the Nandini Satpathy case.37
The Court also gave a certain guidelines to be followed regarding the principles discussed earlier. 38 Of
these was that under section 161(2) of the CrPC, if there is a possibility or potential for the question
asked to

37
Arvind Khanna v. CBI, Criminal Rev. Pet. No. 443/2010.
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38
Supra note 3; J.K. Das, Investigation Technologies in Criminal Cases and the Right to Health in India, 12 ASIA-PACIFIC
JOURNAL ON HUMAN RIGHTS AND LAW 56, 59 (2011).
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be self-incriminatory, then such a question is not required to be answered by the witness. This principle
was reiterated from the Kathi Kalu case, where the Court said that after taking all the circumstances
into account it is evident that the question asked has a tendency to self-incriminate, the person has the
privilege to remain silent.39 This case was again discussed in Selvi v. State of Karnataka,40 regarding
self-incrimination, wherein the debate was regarding evidentiary value of extrinsic and intrinsic
evidence with respect to brain mapping, narco analysis and polygraph test. This case also discussed
Nandini Satpathy case and held that the statements given under section 161(2) of the CrPC do not have
any evidentiary value. And a statement may not be given if the question asked can be self-
incriminatory.

Further the Court also held that section 161(2) of the CrPC and Article 20(3) of the Constitution can
give protection to witnesses who have been called for examination, although they may have not been
formally accused yet. This is because such witnesses who have been called have the potential of
becoming an accused subsequently. This question had actually initially cropped up in the Kathi Kalu
case, but it was not settled properly, which was later done by Nandini Satpathy case.

Overall the position that was taken in the Nandini Satpathy case is the current position of law.
Although the guidelines that were given by the Supreme Court are not a mandatory, but merely a
suggestion.41 But the principles that were developed in the case revolving around section 161(2) of the
CrPC are still valid and good in law.42

39
Supra note 11.

40
Selvi v. State of Karnataka, 2010 7 SCC 263.

41
Supra note 3; Abdul Rajak Mohammed v. Union of India, 1986 Cri LJ 2019 (Bom); Ram Lalwani v. State, 1981 Cri LJ
97, at 100.

42
Ram Bhajan Rai, Relavance of Statements recorded by the Police during Investigation, (2001) 5 SCC (Jour) 14.
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CONCLUSION

Nandini Satpathy case was essentially a Constitutional law case, but even with respect to Criminal
Procedure, this case developed one of the most important principles of right against self-incrimination.
These principles made the interpretation of section 161(2) of the CrPC more coherent, by stating as to
what question asked by the Police during the examination of witnesses, qualify as a ‘tendency to self-
incriminate.’ This is also important because it made protection under right against self-incrimination
available to witnesses as well, who have not yet been formally accused, but can subsequently become
accused.
1
The case also stressed a lot on the importance of legal aid, by stating that a witness can have his lawyer
present with him during examination, so as to consult him/her. And finally this case showed how
section 161(2) of the CrPC and section 179 of the IPC do not clash with each other but are in fact in
consonance. This judgment is considered to be good in law, although in regards to the main principle,
it should ideally not allow right against self-incrimination to extend to ‘tendency to be incriminated for
a different matter.’ But nevertheless this case to this day acts as one of the most cited and important
cases for right against self-incrimination because of its well-found and sound principles developed.
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BIBLIOGRAPHY

BOOKS:
 SC SARKAR, THE CODE OF CRIMINAL PROCEDURE (10th ed. LexisNexis, New Delhi 2012).
 ASHUTOSH KUMAR MISHRA, 50 LEADING CASES OF SUPREME COURT IN INDIA (2014).
 BATUK LAL, COMMENTARY ON CRIMINAL PROCEDURE, 1973 (5th ed. Orient Publishing
Company, Allahabad 2010).
 D.D. BASU, CRIMINAL PROCEDURE CODE 1973 (5th ed. LexisNexis, New Delhi 2014).
 K.N. PILLAI, R. V. KELKAR’S CRIMINAL PROCEDURE (5th ed. Eastern Book Company, Lucknow 2008).
 S.R. ROY, B.B. MITRA ON CODE OF CRIMINAL PROCEDURE (20th ed. Kamal Law House, Calcutta 2003).

ARTICLES:
 Michael Macnair, The early development of the privilege against self-incrimination, OXFORD
JOURNAL OF LEGAL STUDIES 66, 73 (1990).
 Kalpana Bhardwaj & Brijandra Panwar, Role of Judiciary in Protection of Human Rights, 1
INTERNATIONAL RESEARCH JOURNAL 5 114, 115 (2010).
 Alfred Clapp, Privilege against self-incrimination, 10 RUTGERS LAW REV. 541 (1955).
 Akhil Amar & Renee Lettow, Fifth Amendment First Principles: The Self-Incrimination
Clause, MICHIGAN LAW REV. 857, 901 (1995).
 David Dolinko, Is there a rationale for the privilege against self-incrimination, 33 UCLA LAW
REV. 1063 (1985).
 Fred Inbau, Self-Incrimination: What Can an Accused Person Be Compelled to Do?, JOURNAL OF
CRIMINAL LAW AND CRIMINOLOGY 1329, 1337 (1999).
 J.K. Das, Investigation Technologies in Criminal Cases and the Right to Health in India, 12
ASIA-PACIFIC JOURNAL ON HUMAN RIGHTS AND LAW 56, 59 (2011).
 Ram Bhajan Rai, Relavance of Statements recorded by the Police during Investigation, (2001)
5 SCC (Jour) 14.

CASES:
 Nandini Satpathy v. P. L. Dani, (1978) 2 SCC 424.
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 State of Bombay v. Kathi Kalu Oghad, AIR 1961 SC 1808.

 Hoffman v. United States, 341 US 479.
 Miranda v. Arizona, 384 U.S. 436 (1966).
 Malloy v. Bogan, 12 L.Ed. 2d 653.
 Pakala Narayana Swami v. Emperor, AIR 1939 PC 47.
 Mahabir Mandal v. State of Bihar, (1972) 1 SCC 748.
 Dina Nath Ganpat Rai, Re. AIR 1940 Nag 186, at 189.
 Arvind Khanna v. CBI, Criminal Rev. Pet. No. 443/2010.
 Selvi v. State of Karnataka, 2010 7 SCC 263.
 Abdul Rajak Mohammed v. Union of India, 1986 Cri LJ 2019 (Bom).
 Ram Lalwani v. State, 1981 Cri LJ 97.

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