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    {™ & J a) 22.11 PRIVILEGE AGAINST SELF-INCRIMINATION Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ect V Nageswara Rao Dr. V Nageswara Rao: The Indian Evidence Act, 3rd ed > Dr V Nageswara Rao: The Indian Evidence Act, 3rd ed > XXII COMPELLABILITY OF WITNESSES > Sections 120-133 XXII COMPELLABILITY OF WITNESSES Sections 120-133 22.11 PRIVILEGE AGAINST SELF-INCRIMINATION 1¢-A witness shall not be excused from answering ciul or criminal proceeding, upon the ly to crminate, such witness, or that it \Winess not excused from answering on ground thet answer wil criminals any question as to any matter relevant to the maffér in issue in any suitor in any {round that the answer to such question wil crminate, or may tend recy or indirect will expose, offend drecty or indirect to expose, such witness to a penaly or foreture of any kind compelled to give, shall subject him to any arrest or Proviso-Provided that no such answer, which witness shall be ‘except a prosecution forgiving false evidence by such prosecutog, or be proved against him in any criminal proceeding, ‘The subject ofthe right against testimonial compulsion has been discussed in the context of the legal and Conattutonal requirements of voluntariness of confessions by the accused. The rights based on the maxim nerme tnotur prodere (accusere) se jpsum—no body is obliged to prove against (accuse) himselt* The word “witness” oem 132 covers a person who is an accused in that particular case as well aS a persofl WhO 1S 2 WITNESS. Sim Fi The accused has the following testimonial rights: + Right against testimonial compulsion or selt-incrimination : + Right to silence «The refusal to answer questions cannot be the ground for drawing an adverse inference against the accused person.‘ ‘The above rights are elevated to the status of fundamental rights under Article 20 (8) of the Constitution of Ina. The ght agaist set ncriminaion i confered on a "person accused of an offence” under Article 20 (3) and not on aoe ioe ae such na cl or crimiral proceeding. The Supreme Court has held in a series of decisions that, though the protection under Arle 20 (3) extends tothe pre-al investigation stage also @ ‘person accused of an offence’ a etpe 2 person against whom some formal accusation by way of FIR or complaint must have been made," Section 132 must be read against the above backdrop of legal and constitutional postion, In the case of Balasaheb @ Ramesh Laxman v State of Maharashtra the appellant was not named as an rcused in the Police case and was infact a witness, whose statement was recorded under Articlo 161 of the eciminal Procedure Code, but he was named as an accused inthe complaint case on the same factyg Therefore, the Supreme Court held thatthe appellant was not entitled to a blanket protection in the police case as he was named only as a witness However, in case of tal in the Police case answer to certain question if tends to incriminate the appeliant he’ can seek Page 24, 22.11 PRIVILEGE AGAINST SELF-INCRIMINATION a ise has to be considereg Protection at that stage. Whether answer to a question is incriminating or otherwi Me tne, put 2.41.4 ingredients ‘The following are the ingredients ofthe section The person must be called as a witness and he shall not be excused from answering any question edi 8 to any matter relevant to the matter in issue in any suitor in any civil or criminal proceeding pon the ground that the answer to such question will criminate, or may tend oni ween Griminate, such witness, of that it wll expose, or tend directly or indirecly to expose, Penalty or forfeiture of any kind, Exception: No su fi ich compelled answer shall subject him to any arrest or prosecution, of be proved against min any criminal proceeding, except a prosecution forgiving false evidence by such answer. I may be noted that section 132 starts withthe denial of privilege of right to silence of a witness and ends up by Conferring a qualified privilege 22.11.2 “Witness shallfot be excused” and “Compelled” ‘The defirton of the word "witness" has already been discussed. Two situations might arise under the section ‘The witness may be an accused: or He may be any other person, 173) That the State shall not compel an accused person to make incriminating statements: this right includes the Tight to refuse to answer questions; and b) that the State shall not use the compelled statement against the accused, ‘The above two rights are the two sides ol ‘above aspects as components of the sar ‘accused is compelled to answer question: the same coin and Article 20 (3) should be taken as barring both the ime right. Article 20 (3) should be deemed to have been violated ifthe s even if his answers are not used against him in the same or some other trial. Section 132, on the other hand, permits the Court to compel incriminating statements but bars proof of them as against the witness making them Ifthe witness isa person other than an accused, the fundamental ight agaist testimonial compulsion will not be available to him under Article 20 (3) because, as pointed out above, tre winees ‘must be an accused person when he is compelled to testify. But, even in the case of a witness simplctur the incriminating statements compelled from the witness under section 132-cannot be used against him a the exception to the section expressly bars such proof that might ead to his arrest or prosecution except for petory. The reference to arrest and prosecution in the exception clearly shows that the compelled testimony cannot be used even for the antecedent stage of investigation by the police as a folow-up tothe testimony “Ts further clarified by section T6T (] oF Cr PC TITS which empowers the police officer to examine investigation and provides in sub-section (2): ‘Such person shall be bound to answer tly all questions relating to such case put to him by such officer, other than {questions the answers to which would have a tendency to expose him toa criminal charge orto a penalty o forfeiture 3 “compelled” is used in the proviso andthe words “shal not be excused” are employed a oe ane secton 130, The words “shal nol be excused" inne mein pat ol secher ras eee eae aaa the witness that the refusal to answer the questions might result in a charge of contempt of court or 5 or that an adverse inference will be drawn under section 114, ilustration (h) and section saan runt a compulsion by he Court and the proviso ao sppers oat he man pat hata ga eh (4) P spiceshon The right of the accused under Article 20 (3) may be viewed from two facets: Lb: $ ae i — SS ——_ a Page 3! 11 4 Diemer @ be PRIVILEGE AGAINST SELF-INCRIMINATION igh Court nee, een? Y State rep b Aras "ep by The Inspector of Poe, CBCID, Chennat. (2014), P2r® 57-501, we Maara There is als 0 the diference of opinion as o when compusion” canbe said tohave ken wil ‘~~ no option but to answer th | geoson. This finding oft ond He elt, ne mus Be tne Cou pave been compelled because the Court shat he aac, tay appet tate Sid ewdence Was ‘As he was not an accus fost under Article 20 (3) he got | yr Given vou TCE ae? ore! by the tecompel him if he refuses. Computs tc mmusion means the winess has witness has no option but to answer.n ter words, he canna lus ‘by Cour. Under Secon answer is of two type: that is, compulsion by statute and compulsion sat In is type. uness tne C ‘compel 147 and 148 of ‘Compulsion is nis by the statute... The other type of compulsion fs by Co\ sion under Sectons answer he ha 38 excuse and th compulsions us, he can else to answa. The COMP sees By Court. ot of sen conguon by Cour, he answer = *98P mace bythe prove 10 Sect place According to one view, a witness can be said to have been competed only when he has jected to he Les inating question and the Court forces him to answer the question, Ifa a luntarily, there will be no need to compel him and ‘he cannot be said to have + IMR Dineshkumar case‘ referred to above, one of the conspirators, Venkatesh, was not 2rra| r ‘witness without arraying him as an accust in chiof. The revision ‘accused person but was summoned as 2 prosecution a ej on 306 CPC 1973 and was exarin if 1s additional accused under Seco” without tendering pardon under peitionerlaccused peioned the al Court for inclusion of Vente Beftoneraccsed poten ho Cou a is ttn ‘ender section 161 OF 5319 CPC 1079 wich was eemiaten in cit coae robe used Cy Sd tney were bared BY He cccton 132° Dismissing he rein pston, the Matos igh Court hed: he was not an accused person a a) Under Art, 20 (3), Venkatesh could not claim prwiege a ‘Bombay v Kethi Kalu Oghad.'= decision of the Supreme Court in ness is asked questions which are relevar b) Under S. 132, the main part, i the wit bption but to compel the witness answer Under ‘5. 146 questions relating 10 oe eked and f they rela elevant matters S132 411 ‘apply and the Court is See Mitness will be entitled to the privilege under ts Provo» case, the High Court held that because the COU ase epic are rolovant unde the main part of S 132, the Se and hence he will be protected by the privilege under the p' implies that even if the witness answer per the nt, the Court has no ‘credibility of witness bound to compe! but ‘as no option but to compel re witness also had oviso to that the questions excuse himn and, ¢) Ina finding critical to the the witness to answer que: ence, he is entitled to the 7s oul OF compulsion by statute”. cision is: The answers given very willingly by Venkatesh 26 PW were treated jecause Court had no option but upshot of the above disturbing det falled as the witness had no option to refuse be High Court as necessarily comps sed Article 20 (3) privilege didnot apply but that did not make any difference to him. What he under section 132 proviso." moned by the Court and an oath has been 4 the mere fact that the witness is sum peefiury for speaking falsehood is itself a ‘The other view is that the me to speak the truth under the pain of administered to him compulsion. * proviso makes distinction between answers. given by the witness under ft is submitted that the 1s sion and thse answered by him voluntary. Hence, cannot be ea T° ls b Hence, jon is taken for granted by rot the witness heing summoned as a witness and administered an oath, "The re OJ process for competing the attendance of any witness” under section 235 (3) and section 243 {2yrelers oe antecedent stage ands diferent rom the later stage of competing the witness to answer Isnt estore ‘Ater appearing as a witness, 2 person may answer even ineriminatity questions vountary ey refuse to answer questions which he considers as incriminating. Hence, under section Compson by te Gout shoul flow ‘he refusal by the witness to answer questions." It cannot be led_wher tion and answers te question wilingly.* Eom pause 4 tn, Cocpubrioe fe odie G-pubrion Baoan prot, \ AHN) Uy fou 13k perussoP oe * 22.11 PRIVILEGE AGAINST SELF-INCRIMINATION m - lane i itis submitted further that if mere summoring amounts to "compulsion” in eget an cones: bY aay al cieiea mosecuton of an accused wil be violative of Acie 20 (3) of the Conse, Tina nis attendance Sane ee mawrant wil be issued to him under section 204 (1a). or (b)- GPC 1873 ympelling him inthe Cour. In other words, compeling the attendance of the a tant Ln WT ae {8 ane eating qe wa Ne sere wiss fr defence or is questoned as. “COUT VATS mnaer fon 311 Cr PC 1973 or under section 313 of the Evidence Act, 1872 by the Court. In fact, ial render it in this section shal the Indian Oaths Act, 1969, lays down: Nothing in this secon shal render ilawfulto-administe 2 in Hecwdig an ahaa he Ld penn ASS STE as he i other words, an accused cannot be summoned as @ witness for the prosecution unless he is summoned as @ 1 306 CrPC 1973. prosecution witness as an approver after tender of pardon under section. . . fh nde Court isceite vant 19 5th copii 1 on ne lesion tes 0 22.11.3 “Any matter relevant to the matter in issue’ The above phrase clarifies that the witness can be compelled to answer the questior See spe sare relevent and not relevant matters. Wih regard to questions on matters which are reeves the ora n seetion 122 shouldbe taken as 2 directive tothe Court fo compel the witness to answer and the Court aa oa ee cretbut to rompel and the winess has no option but fo answer.‘ With regard to non-elevant rae oe ine tuiion Oaths Act, 1969 makes a distinction and provides in section 148 that question relating to ihe Trediomty or character ofthe witness under section 146 may not be relevant “except in so far as [taffects the credit Site wsese by iyunng his character and provides that, in exercising its discretion, “the Court shal decide iether oF not the witnese shall be compelled to answer il, and may, iit thinks fit, wam the witness that he is not Shiged to answer ite may be noted that section 148 does not state that those questions are ‘relevant’ ut only fhavineir relevance 's limited only to challenging the credit of witness, The witness cannot be permitted to be harassed by the opposite party by going on a fishing expedition to cig up the pastor the present of the accused on petvant matters, Section 147 provides that if the question intended to shake the credit ofthe witness “relates to 9 imrttor relevant to the sult or proceeding, the provisions of section 132 shall apply thereto". Section 148 provides That tig for the Court to decide whether the witness should be compelled to answer a question intended to shake his credit and states: asked and when witness compelled to answer.— If any such question relates to a ‘except in so far as it affects the credit ofthe witness by injuring his character, led to answer it, nd may, it thinks fit, warn the witness Court to decide when question shall be matter not relevant to the suit or proceeding, the Court shall decide whether or not the witness shall be compel that he is not obliged to answer it. 2.11.4 Accused as Witness for Prosecution—Crucial Issues ‘There are three ways by which an accused can become a witness: (2) For Defence: On his written request under S. 915, proviso, CrPC. (b) For Prosecution: After he becomes an approver under S. 306 Gr.P.C. (@) Court Witness: An accused can be summoned as “Court Witness’ under S. 311 GrP.C vo 7’ ude ‘An important question has arisen regarding whether iion_can_summon a8 C al. adh prosecution witness to obtain evidence against the other a 1) of Cr PC 4973 says: (a) He shall“), oa vedalied as a wilness except on his own request in writing’™™ and the accused, ihe chooses, can appear as ‘Jofence witness and tesiy “in disproof of the charges made against him or any person charged together with him” ftmay be implied that this provision excludes the possibilty of prosecution summoning him as a witness.” The nly tar alemative for the prosecution would be to make the accomplice an approver under section. 306 and Soe ron him as a prosecution witness as under section 133 of the Evidence Act, 1872 an accomplice is @ Seinpetent witness to testy ‘agains’ an accused person. Ite defector defects again and betrays the prosecution, the prosecution can withdraw the offer of approver ship and continue with his prosecution. But in some cases the prosecution adopted the ingenious method of (a) nat naming the accomplice as an accused in the charge-sheel,(D) ‘Salement under sections 161 and 164, Cr PC 1973 and (c) summoning him as a prosecution ‘The above strategy of the prosecution came up for consideration in a number of cases. In those cases the Supreme Court and the High Courts have held that as an accomplice is a competent witness under section 133 of the Page 5 of 11 22.11 PRIVILEGE AGAINST SELF-INCRIMINATION Evidence Ac, 1872, he can be summoned as prosecution winess without any tender of pardon, and a be relied upon provided the precautionary warning of the need for corroboration under section 114, Illustration (b) is heeded" Though Hidayatula, J remarked that to Keep the sword hanging over the head of an accomplice and to examine him as a witness is to encourage perry’, His Lordship sti held that On the side of the Sate many cases were ced from the High Courts in India in which the examination of one of the suspects a6 2 wness wae nol hls to be egal and accomplice evidence was received sues! safeguards as alc idence ite cose. the concensus of opinion in In is thal the competency of en SecomPict not __ esvoyed because he could Rave been ed ji withthe accused but was not and was instead mage G8 ‘evidence in Cae ee ecautd used hose secs washed denote a person actualy on tal beore + cout ‘and not t person who coud have been so ted, The winess was, of course, wealed 28 an accomplice, The ‘evidence of such an iceomploe wes ectved with neoestary cation in thse cases. Te prosecution was not bound © prosecute her, if they thought that her evidence was necessary to break a smugglers’ ring In Pritipal Singh v State of Punjab, (2012 1 SCC 10), the Apex Court summarized the law in the light of earlier authorities as follows: to Wal, can be relied upon, however, ACCU*LY tn depo ofan accomplice in a rine who has no ben made an accused & Pe eae sayared tebe conadered wih care and cauton. An accampce who has no been pul on Wit & wh a set witness as he Jeposesin the cout ater king oath and hres ro proton in any law not at vPon MS y deposition without corroboration. who” My ® (0 Gl In RBineshkumar @ Deena State Rep By Inspector of Police, AIR 2015 SC 1816 2015, the Supreme Court (per The Queen v Gopal Doss, ILR 3 Mad 271, where it was CChelameswar J) referred to the 5~Judge Bench judgment in held (por Tumer, CJ) thatthe terms “compelled” and "permite suppose a public officer having authority to compel or to permit and ex Such compulsion or permission arises’.“In substance,” as Chelameswar, SSmpulsion is not by virtue of an obligation arising under law but imposed by the udae A refererice was also comp I secisen of the Supreme Court in Laxmipat Choraria v Siate of Maharashtra, (1968) 2 SOF 624, rane cue, wnere it was held that (1) an accomplice wes a competent witness under secton 195, @) the veteocution was not bound to prosecute the accomplice so that they could nab the rea cults with her evidence; Fay the aocomplice would be protected by section 132 (proviso) of the Evidence Ack 1872 even. if she_gave (8) the accor ising herselt and (4) n India the privilege of refusing to answer has been removed 60 at ‘Emptation to tll ale may be avoided but it was necessary t0-Give this protection, The prolecion & further fortified tertile 20 (3). Hence, in Dineshkuma it was hel thal the matter was "concluded" by Laxmipal Chora decision Py ihe prosecution was not bound fo prosecute an accomplice if they thought the evidence of accomplice, was necessary for nabbing the real culprits. But, the ortical question is: rosecution choose not to prosecute an ‘Secomplice so that they can summon him as a witness for the. prosecutos ‘and use Whe evidence agamet oMrer ‘Scased? On this queslion Chelomeswar, J oid not express any opinion and said that te question required "a deeper examination’? Fae eeriyed in those section "are so used ast pre- ising i atthe tme, the necessity when ‘J pointed out, “Turner, CJ opined that the iu This submited with respect that the above decisions require reconsideration, In Ashish C. Shah v' Sheth aselepment Put Ltd, 2011 Cr LJ 3565, the Bombay High Cour (per JH Bhatia J) rightly held that calling accused aoe eecuion witness “is against the basic principles of criminal jurisprudence because prosecution can never Sek the accused to enter into witness box as a witness of prosecution. In fac, the accused cannot be called in the ‘witness box even as defence witness unless he makes 2 written request for the same." This is the position of law Tuttonerges from the mandatory provisions of secon 315, Cr PC 1973, The issue is not at all whether an amupice is a competent witness and with what safeguards his evidence can be taken into consideration by the Reeerien issue on which both Laxmipat and Prithial Singh seem to have focused attention—but whether an con aan be summoned ata as a wilness by the prosecution without tender of pardon. itis, of course, for the Srosecuton to prosecute oF not 10 prosecute an accomplice but it is not thelr privilege not to prosecute just to emo the accomplice as a witness without tender of pardon under CrPC 1973.As the witness is not named as served, the ban of section 315, CrPC 1973. will not apply. As the accomplice is not formally arraigned as an seeveed the Constitutional protection under Article 20 (3) will nt be available to him and he can be compelled Under secon 132, the Evidence Act, 1672 o answer incriminating questions subject, of course, to the proviso to Haneef that his answers cannot be used against him. In any case, in this Scenario, the prosecution would not want to trouble the accomplice at al. By adopting this strategy, the prosecution could circumvent the Constitutional 4 acond [rowed 7 2eR) 4 ee Uyl4) Coreebond, a * prrecited 2 lid 19 twhous tio) 414hé) Dl rhe L ad Me ‘ ws yal 13 protects the accuséd from perjury SoS s “wilnoss" but both the seclions save him from proseoution for giving incriminating ansviers puIsion but_fot sel 22.11 PRIVILEGE AGAINST SELF-INCRIMINATION Page Bo hi rdle_of Article 20 (3) and the legislative hurdles of sections 306 a = the and the legist 306 and 315 a! 2nd 9 ct 315 of Gr PC 1973 and 22.11.5 Secti i ions 132 and 165, the Evidence Act, 1872 and sections 311 and 313, Cr PC 1973. Section 132 deals with i it cenrng ns ie wih 1 compelling any witness whether he is (a) called by the parties or by the Court ie can neers or prosecution; or (c) an accused or just a witness. Section 165 deals with the powe i and Courts pow to an yany witness, oF ofthe paris”. Section 311 deals with what i called “Court vines" Summoned 2 oaths ron any person as a witness, or examine any person in attendance, though v . OF recall and re-examine any person already examined’. Sections 165 roan gnabiing provisions to Sections 165 and-a11 ate only 1d “essential to the j i pul questions Ip. decover abio.obiall pena Ecol of (iawn lac and Tat excavate ust Gseison of the case", respectively. The above three sections deal with any or all vwinessbs » Ganaeee wee ness who is an accused. It is section 313 that deals with an accused but does karactrze him a8 a witness" and mekes this fue 5 fh accused "personally soa under sub-section (1)", n 313 is a beneficent provision that enables the appear as a defence whness Siete eee ‘appearing in the evidence against him” even if he does not Becused Gh ret eet tie pro fects him from contempt of Court and perjury by providing that "(3) The. rf ving false — ne Clause (4) of section 313 provides: The answers given by the accused may be taken into SIOETAtOTT Hr \quiry or trial, and put in evidence for, or against him in any other inquiry into, or trial for, any 1Q other i 31A offence which such answers may tend to show he has committed. In this clause the words “any other offence yw vi Cao ‘answers may fend to show he has comted” would cover confessional statements also but they are obviously swers to questions which he has not refused to answer (clause 3). Thus, section 313 is notin gry way viclative of the Rule sxsie! Tesibionl Corpus contained in Artile 0. tis only a enables the Court to “compel” 2 witness by not excusing him when he refuses to answer riminating questions and states in the proviso: Provided that no such answer, which a witness shall be compelled to give, shall subject him to any arrest or prosecution, or be proved against him in any criminal proceeding, except 2 e 4 2 prosecution for giving false evidence by such answer. This proviso has two limbs: (1) Protection of the witness from Arrest or prosecution for his compelled answers and (2) Absence of protection for perjury for false answers. Section because he is not administered an oath but section 132 exposes him to ‘section 132 permits testimonial computsion but Tot sel incrimination.“Is section 132 Constitution af or spendates: No person accused of any offence shall be compelled to be a witness against himself wv) [> because of Rule against Selfincrimination. Thus, c does its first limb mentioned above violate Article 20 (3) which 2 a lam - PA 2.11.6 Constitutionality of section 132 mn of decisions that Article 20 3) comprehends () right o silence, (b) right not to te compelled to give testimony and (c) Right not to be competed fo Pon eit tis also setfed law that > COP oe eorioetc operae to protect the accused (2) atthe antecedent stage of Pues (oypresent stage etihertal [20 /y vee aie and (c) against involvement in future cases. SO, the Tight is retrospective as well as prospective. Krishna }) * Ithas been settled by a long chair Jt. Iyer, J said: - sonable pros sxposing him to guilt in some other % his mouth shut fhe answer sought as 2 reasonable prospect of exposing N° @ “ Ne ea xy is not with reference to that. ~ ee sation actual or imminent, even though the investigation underway ised to decide whether a question is lat he is compelled to give cannot be sgislative provisions? (a) It is for the accu: and (b) the answers th (3) has two components: he net result of the Constitutional and le be compelled to answer; tion is what is t The right under Article 20 ( incriminating and he cannot used against him. Then, the crucial quest 5 to appear as a defence witness and dispute is that if the accused choose ; Wt Oe ieniore ‘vithout demur, he must be considered to have given snsoans vou and without compulsion. In Kunhappan v State ‘of Kerala, (1987) 2 Ker LT 222, the Hig ; court stated: ll and without Compa case offers himself to be examined 26 2 MES a presurpton maya a tne ree ea by him is voluntary’ In Bal Shanta v Urea Art A 1026 Boi 1411828 (27) CFL} 423 (FB), the Bombay High Court held that relevant ‘statements made on a hat solacmn affra ion n 8 judidal proceeding are not protected by the proviso to Section 432 of the Evidence Act, 1872 in Where the witness has not objected to answering the question put to him. . sssenal Volto Hear protetien “S128 niteffbeth Page 7 of 11 22.11 PRIVILEGE AGAINST SELF-INCRIMINATION 2 In case a person/accused has appeared as a witness on his Own ‘and he is asked an incriminating ueson, can he refuse to answer? Hee his appearance a 2 wines ‘only is voluntary but from that fact lone it cannot be presumed that he waived his privilege and that he may be willing '0 answer. 3. Is thete @ difference between a witness who willy appeared as a winess and 2 wings Wie fe ‘MP Gangadharan Vv State SI Of Police, 1989 summoned by a party or by the Court as a “Court witness"? In Cr Ld 2456, the Kerala High Court hel: rt, Only on summons he appeared and the question. Left to himself, he would ess is placed when he is examined ss his natural feeling Petitioner has not voluntarily adduced evidence before the Cour tested. This is a case where he has been compelled to answer not have come before the Couto depose, A situation n wich 2 wt before 9 Court flaw cannot be lst sight of, When a person is examined as a wines is that he has to answer the questions. in Dr Narosh Kaushal v State of Haryana, the Punjab and Haryana High Cour also held simian _aperson who fs summoned 2s wines in respons to notice and when appears to gve evidence then that evidence has to be impliedly treated as a compulsive testimony. inthe above statements the Coutts seem to imply that summons by the Court per se @ mounts fo compulsion as the witness wil be eft withthe feeling that he has to obey the Cour's order. 44. Then, is there no difference between compulsion to appear as a witness and compulson ia ect, reer ising questions? In Paddabba Redd v iyyala¥erade Red, AIR 1929 Mad. 236: 1929 (30) Cr Ld 613, the Madras High Court held: that Section 2 is something more than being put into the witness-box sa being swom to give evidence. The compulsion in the proviso refers (© compulsion by Cov ae ot compulsion under aw... But awiness who answers a question or questions puto him without Seeking the protcton ef Secton 182 by objecting fo the question pu, and requesing to be excused. rot entitled to that protection. ‘The compulsion contemplated int .criminating question for him to be considered as UX Is it necessary for the witness to raise objections to in ee esed by te Court In other words, should compulsion folow such objections? In Emperor v Chalur Singh, ILR 43 All 92: AIR 1921 All 362, the Allahabad High Court observed: ment made bya winess may stand on a diferent footing, an answer given by stn va ciminal case on oath 102 questin puto Fim eer bythe Court or by counsel on ether aimee aly uhen the quesion fs ona pont which is relevant othe case is within the protection Steed by Socton 122 of he Indian Evidence Act whether or rot the winess has ebeced to the ‘question asked to him. though a voluntary stat In Sheo Karan Lal v Bandi Prasad, AIR 1943 Pat, 117 : 1943 (44) Cr LJ 391, Patna High Court held: Section 132 does not require thatthe witness before he can claim protection under the proviso, must fist ask tobe excused ‘rom answering the question onthe ground that the answer wil criminatehim...Questions which are allowed by the Court in spite of objection by the pleader must be deemed to be relevant, so far as the witness is concemed, and he is bound to ‘ve answer. Answer so given is an answer which the witness is ‘compelled to give! within the meaning of Section 132 Page 8 of 11 IATION 22.11 PRIVILEGE AGAINST SELF-INCRIMIN: “ the Suj rst eee SCC 770, where it has been jpreme Court in Delhi 6. It is said that the “controversy has been set al Admiicretion v Jagit Singh, AR 1989 SC 598 : 1989 Cr LJ 986 : Supp eld: ithe answer to such .8 itness is legally bound to answer any question wich is Laue arawervtich 8 {Question is likely to criminate him directly or indirectly. Proviso to Section 132 expressly PrOvieGs I inet him in vies fe compe to give shal na aj him To any arrestor proseculon rr the seme canbe rowed 2000 21 6 any criminal proceeding except a prosecution for giving false evidence by such answer. The ee eats Section 132, Evidence Act, clearly protect a witness from being prosecuted on the basis of the answers gl ctming| proceeding which tnd to hint in dct onde, relevant to the matter jn issu In Laxmipat Choraria v State of Maharashtra, AIR 1968 SC 938, Hidayatullah, J held In India the prvoge of refusing to answer has been removed so thal temptation to tela fle may be avoided bet I Na necessary to give this protection. The protection is further forifed by Article 20 (3) which says that no person accused of any offence shall be compelled to be a witness against himself. In Selviv State of Kamataka, AIR 2010 SC 1974, para 123, the Supreme Court observed: Even though Section 161 (2) of he CrPC casts a wide protective net to protect the formally accused persons as well as suspects and witnesses during the investigative stage, Section 132 of the Evidence Act limits the applicability of this protection to witnesses during the tial stage, The latter provision provides that witnesses cannot refuse to answer {uestions during a tial on the ground that the answers could incriminate them. However, the proviso to this section stipulates that the content of such answers cannot expose the witness to arrest or prosecution, except for a prosecution for 1. iving false evidence. Therefore, the protection accorded to witnesses al the stage of tal is not as wide as the accorded to the accused, suspecis and winesses during Investigation (under Section 161 (2)C:PC} Eutbermore. itis naower that Te protection given io the sd during the tial stage [under Section 313 (3) and Proviso (b) to Section 315 (1), CPC], The legislative intent is o preserve the factsinding function of a eriminal Wal." —_— 22.11.6.1 Appraisal Its diffcult to see how the controversy has been resolved by the Supreme Court or how “In India the privilege of refusing to answer has been removed" by section 132 even though it has been overridden by the Constitutional provision in Artclo 20 (3). Firstly the main pat of section 132 permits compulsion to answer incriminating questions ‘and, hence, manifestly violates the accused's right not to appear as a witness or be summoned as a witness and his right to silence which is protected by Article 20 (3) and also by section 315, Cr PC 1973 which clearly mandates that he can appear as a witness only on his writen request. Secondly, the proviso to section 132, no doubt, bars cure a ee ES peace Te Ea TeTaMG LACIE aT a answers that are barred by Article 2073) are not used by prosecution, the Tact rem i aMisWeTS are given in open Court and the judge is bound tobe influenced adversely. As Ho Hock Lai points out, there are facts (1) which are barred from deliberation by Court even ifthe Court knows them and (2) facts which are barred from even proof and from even the knowledge of the Cour.!"* Obviously, in exercising “the fact-finding function of a criminal trial” that the Supreme Court was referring to in Selvi, a criminal Court cannot over-step the protective ring-fence of the fundamental rights of the accused person. Hence. itis submitted that constitutionally of section 132 requires ofthe interpretation of Arie 20 (3) by the Apex Court in Nandini’ Safpath® and number of other cases ~ 2.11.7 Role of the Court ‘The question that might arise is: If an incriminating question is asked, should the witness raise an objection or should the Court suo moto intervene and refuse to permit the question or, as under section 148, warn the witness that he is not bound to answer. Of course, it is ultimately for the witness to decide whether a question is an incriminating one or not'™ as the matter is within his especial knowledge under section 106. Section 148 expressly places the responsibil on the Court by providing that “the Court shall decide whether or not the witness shall be ‘compelled to answer i’. Itis submitted that the position might differ depending on whether the person is an accused VU — eee rer Cepending on whether the person is an accust ‘or merely a witne Page 9 of 11 22.11 PRIVILEGE AGAINST SELF.INCRIMINATION Nt must be born : only a fundamental nah ratte Evidence Act, 1872 is a pre-Constitutional statute and Article 20 (3) confers not that, inthe light o = 2ccused but, in fact, also contains a directive to the State. Hence, itis submitted t f the dynamics of a Obigation ofthe State wacr est ean ‘Proceeding, the fundamental ight ofthe accused and the Constitutional that he ne, aa Id both operate cumulatively and the Court should wam the accused might object to the enecto eo inating question even if the accused did not object-and_ conversely, the accused aa eetio he question ever ihe We $9, Hence, the Court should warn the accused that he to answer the questo ht nolto answer incriminating questions put by the prosecution and ifthe accused chooses Pt estions in spite of the waming, he cannot be said to have been compelled. The methodology of the 'ngs can be somewhat similar to what the Magistrate does under section 164, Cr PC 1973, {the witness who is asked incriminating questions under section 132 is not an accused, it is true that, under the A not main_part of the Section. Ihe Court has no discretion but to mandatory compel the witness if he refusés to answer.'"! However, itis submitted, respectully, that iis Tor the witness To raise objection to the queStions and if he

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