Post – Arrest Rights of Accused

• Right to Speedy Investigation:
  • • Nature and scope of the right: Reasonably expeditious investigation of crimes is in the interest of both, the society as well as the accused. From the point of view of society, expeditious investigation of crimes increases efficacy in the criminal law process and respect for the law. From the point of accused, constitutional guarantee of speedy investigation is essential to protect at least three basic demands of criminal justice system, as pointed out in Richard M. Smith Vs. Fred M Mooey :
      • ” to prevent undue and oppressive incarceration prior to trial;
      • to minimize anxiety and concern accompanying public accusation; and
      • to limit the possibilities that long delay will impair the ability of an accused to defend himself.”

      To harmonise these two competing interests, Sixth Amendment to the American Constitution guarantees to every person right to speedy trial.

      The American Supreme Court by their creative interpretation of the provisions of the Sixth Amedment extended its scope to the criminal investigations also. In Robert D. Dickey Vs. State of Florida , Mr. Justice Brannan and Mr. Justice Marshall observed:
      ” Does the speedy trial guarantee apply to all delays between a defendant’s arrest and his sentencing? The view that it does is not without support in the wording of the Sixth Amendment. The Constitution says that an ‘accused’ is entitled to ‘speedy trail’ in all criminal prosecution. ‘Can it be that one becomes an ‘accused’ only after he is indicted or that the Sixth Amendment subdivides ‘prosecution’ into various stages, granting the right to speedy trial in some and withholding it in others? In related contexts involving other Clauses of the Sixth Amendment, we have held that the ‘prosecution’ of an ‘accused’ can begin before his indictment; for example in Escobedo Vs. Illinois (1964) 378 US 478, 490, 12 Law Ed 2d 977, 986, 84 SCT 1758, we spoke of the time when ‘investigation is no longer a general inquiry into an ‘unsolved crime but has begun to focus on a particular suspect. And as regards realisation of the purposes of the Speedy Trial Clause, the possibility of harm to interests protected by the clause is certainly great whenever delay occurs after arrest.”

      In America position of law is settled that the right to speedy trail includes within its sweep the right to speedy investigation and commences from the point of time when Government decides to prosecute and has sufficient evidence for arrest or indictment of a person. Secondly, sufficiently long delay raises a probability of substantial prejudice to the accused. Neither he looses his right by silence or inaction on the part of the government nor the prejudice is a material consideration or an issue in deciding the infringment of this fundamental right of the accused.

      Prior to decision in Maneka Gandhi Vs. Union of India judicial approach in India had been dismal. In A.K. Gopalan Vs. Union of India it was held by the Supreme Court that no person can be deprive of his life of liberty except according to the procedure established by law and by ‘procedure established by law’ it meant the procedure enacted by the legislature. Whether procedural prescription is just, reasonable and fair, was beyond the jurisdiction of the Court to decide. But Maneka Gandhi’s case added life and blood to fundamental right to life and liberty enshrined in Art. 21 of the Constitution by giving a hospitable interpretation to the words (procedure established by law). It was held that procedure established by law for deprivation of life or liberty should not suffer from the vice of arbitrariness, unreasonableness unfairness. The second epoc making landmark in this field was Hussainara Khatoon Vs. State of Bihar where the Court impressed by philosophy behind the Sixth Amendment to the American Constitution and also Art. 3 of the European Convention on Human Rights, gave a new shape and life to the rights guaranteed under Art. 21.

      It was held that even under the Constitution of India, though speedy trial is not specifically enumerated as a fundamental right, it is implicit in the broad sweep and content of Art. 21 as interpreted in Maneka Gandhi’s case. This position was reiterated by the Supreme Court in subsequent decisions. Secondly, it was held that Art. 21 confers a fundmental right on every person not to be deprived of his life or liberty except in accordance with the procedure prescribed by law and it is not enough to constitute complance with the requirement of that Article that some semblance of a procedure should be prescribed by law, but that the procedure should be ‘reasonable’, fair and just’. If a person is deprived of his liberty under a procedure which is not ‘reasonable, fair or just, such deprivation would be violative of his fundamental right under Art. 21 and he would be entitled to enforce such fundamental right and secure his release. Thirdly, it was held that if the procedure prescribed by law does not ensure a speedy trial for determination of the guilt of such person, it cannot be regarded as reasonable, fair and just procedure and would be contrary to the mandate of Art. 21. Therefore, there can be no doubt that speedy trial and by speedy trial it is meant reasonably expeditious trial, is an integral and essential part of the fundamental right to life and liberty enshrined in Art. 21.

    • Procedural prescription for securing speedy investigation: Section 173 of the Code mandates that every investigation shall be completed without unnecessary delay. Under the old Code (Code of Criminal Procedure, 1898), the Magistrate was empowered to authorise detention of accused to custody for fifteen days. but there was a complaint that this provision has been observed more in breach than in compliance in as much as a practice of doubtful legality has been developed whereby police file ‘preliminary’ or incomplete chargesheet and move the Court for remand under Section 344 of that Code. It was felt that in some cases delay in investigation may be due to the fault of the police but it cannot be deemed that there may be genuine cases where it may not be practicable to complete the investigation within 15 days. Therefore, the Law commission in its 14th Report recommended that this period should be extended to 60 days. However, it was considered that even if this period is extended to 60 days there is no guarantee that the illegal practice referred to above would not be continued. So a satisfactory solution of the problem was provided by conferring on the Magistrate the power to extend the period of detention beyond 15 days whenever he is satisfied that adequate grounds exist for granting such extension. The second step which the legislature took was to incorporate sub-section (5) in Section 167 of the Code empowering the Magistrate to stop investigation of cases triable as summons cases, unless the investigating officer satisfies the Magistrate that there are special reasons and in the interest of justice the continuation of the investigation beyond the period of six months is necessary. The order passed by the Magistrate is subject to review by Sessions Judge who may direct further investigation to be made into the offence subject to such directions with regard to bail and other matters as he may specify. In making these provisions legislative appears to be that in no case the investigation should prolong for more than six months unless for some special reasons continuation of such an investigation beyond this period is necessary. To give effect to the legislative period is necessary. To give effect to the legislative intent various State Governments have framed rules under the Police Act, 1866 containing instructions to investigating officers to ensure speedy investigation of criminal cases.As already discussed, in cases of investigation relating to summons cases, if the investigation is not concluded within a period of six months from the date of arrest of the accused, the Magistrate is bound to make an order stopping further proceedings in the investigation unless the investigating officer satisfies the Magistrate that for some special reasons and in the interest of justice continuation of the investigation beyond six months is necessary.

      The Calcutta High Court took the view that power given to the Magistrate to allow the police to the police to continue investigation beyond a period of six months has to be exercised before expiry of six months and such a discretion exercised by the Magistrate in allowing the police to continue investigation after this statutory period of six months will be without jurisdiction.

    • Effect of delay in investigation:
      Summons Cases: So far as effect of non-compliance with this wholesome provision of law is concerned, there are two views in this regard. The Calcutta High Court has taken the view that if the investigation has been conducted by the police without order of the Magistrate , the illegality is of such a nature that if subsequently, police files a challan based on such an illegal investigation, the Magistrate with the same. In such a situation the Magistrate is bound to discharge or acquit the accused after stopping the proceedings under S. 258 of the Code.Second view is that if the permission has not been obtained for continuation of investigation beyond period of six months it cannot be deemed to be implied permission to continue investigation and further investigation is not warranted by law. However, unless prejudice has been caused to the accsued or has occassioned miscarriage of justice, the proceedings before the Magistrate shall not be vitiated. the earlier view of Delhi High Court was in consonance with the law laid down by Calcutta high Court, but in subsequent decision the Division bench of Delhi High Court deviated from earlier view and held that the investigation beyond period of six months without permissions of the Magistrate will not automatically nullify the continuance of the trial. However, it was held, the Magistrate will only look into evidence collected within the period of six months and will ignore the other material and then decide whether to take cognizance or not. In my opinion the view taken by the Madras High Court seems to be correct, because under S. 173 (8) of the Code even after filling challan police has a right to investigate the case and if further evidence is obtained, there is no bar that it cannot be used against the accused.

  Warrant cases: So far as the investigation of cases triable as warrant cases is concerned, there is no specific provision in the Code analogous to S.167 (5) of the Code where the Magistrate could enforce speedy investigation. However, the Code only prescribes statutory protection against prolonged custodial detention of the accused pending investigation. Such protection are in the form of right to be released on bail after detention in custody for a specified period. Under Section 167 of the Code if the accused has been arrested for an offence triable as warrant case has been arrested for an offence triable as warrant case the Magistrate can authorise the detention of such person to judicial custody initially for the first fifteen days (or the police custody as the case may be) but thereafter from time to time he can authorize detention to judicial custody for a maximum period of sixty days in case of offence not punishable with death or imprisonment for life or imprisonment for a term of not less than ten years and ninety days in those cases where offence alleged against the accused is punishable with such punishment as aforesaid. This period of sixty days or ninety days is inclusive of the period of initial detention for first fifteen days. If the police does not file a final report against the accused within this period of sixty or ninety days, as the case may be, a valuable right to be released on bail accrues to the accused. By incorporating these provisions in the Code, it seems, legislature intended that the Magistrate is required to monitor the investigation and see if the investigation is being conducted expeditiously and if not, whether to authorise further detention of the accused in custody. However, there is no provision under which a Magistrate can give specific directions to the police to speed up investigation and failing which we may take action in the direction of stopping the investigation.

• Effect and consequences of inordinate delay in the investigation: Inordinate delay by the police in the investigation of criminal cases is violative of fundamental right under Art. 21 of the Constitution and gives rise to a right in favour of the accused to move the High Court under Art. 226 or to the Supreme Court under Art. 32 of the Constitution for the enforcement of his right. In cases of inordinate delay there are two approaches followed by the Courts. The first approach is to release the accused on personal bond or without any bond. Where an accused had been in jail for the maximum term which could have been awarded to him if found guilty for the offence he was charged with, he was ordered to be released from custody forthwith. In cases, where no charge sheet has been filed for three years, accused remaining in jail custody, they were ordered to be released on furnishing personal bonds in meager amounts. In such cases of pre-trail long detentions, it was pointed out by the Supreme Court that the Magistrate concerned should not act mechanically in authorising detention and abdicate their function to monitor investigation to ensure prompt investigation. In all those cases accused persons were either released without bonds or on their own bonds.The second approach is somewhat radical and revolutionary. In Krishan Bahadur Vs. State , Patna High Court took a lead in this regard. Where the accused was in jail forever 40 months without any charge sheet having been filed by the police, it held that the delay in submission of final report was not bona fide but really in pursuance of mala fide exercise of investigational powers obviously designed to keep the prisoner under detention for an indefinite period. In this case the petitioner was set free. Jammu and Kashmir High Court has gone a step further to quash the investigation which has been pending for about two years and eight months without filing of a challan by the police. It was held that right to speedy public trial is applicable not only to actual proceedings in the Court but includes within its sweep the proceedings of police investigation which is violation of Art. 21 of the Constitution. Similar approach has been adopted by Allahabad High Court and Madras High Court where the proceedings were quashed on the ground of inordinate delay in completion of investigation. In these cases investigation was pending for 7 and 12 years respectively.

  The second approach adopted by various High Courts seems to be more effective. Inordinate delays in investigation raise presumption that either there is no evidence against the accused to put him on trial or the investigation is mala fide with a view to keep the accused in custody or harass him. In both the cases the appropriate remedy is quashing of the investigation proceedings.

• Right to Bail
  Bail system is a mechanism devised by law to secure the presence of accused at the trial. By this system, the accused is placed in the custody of his bailees, who are his jailor and responsible for his production as and when required by the Court of face trial. The Code of Criminal Procedure classifies offences into two categories for the purpose of bail viz. (i) bailable offences; and (ii) non- bailable offence.1 Though the subject of bail in itself is so vast that it is difficult to discuss in a small paper, yet in this chapter discussions shall be confined to the aspect of bail from the point of view of the accused i.e. as to when it can be claimed as a matter of right; when it is a subject matter of discretion of court; what are the factors relevant in exercising such discretion and when the bail can be cancelled.
  • Bail in bailable cases: Bail in bailable cases can be claimed as a matter of right. When a person is arrested by the police for a cognizable and bailable offence, police is bound to inform him that he is entitled to be released on bail and that he may arrange for sureties on the behalf.2 However, if such person is unable to furnish he is produced before the Magistrate within twenty four hours of his arrest as already discussed. However, occasion may arise when instead of appearing before the police, accused may appear before the Magistrate. In such eventuality when accused appears before the Magistrate, he surrenders himself to the custody of the Magistrate.3 In both the eventualities – either when the accused has been produced by the police or accused appears before the Magistrate at his own – Magistrate is bound to release such accused on bail since grant of bail in bailable cases is a matter of right.4 In bailable offences even police officer arresting a person is under legal obligation to realease him on bail. Authority to arrest is derived from the statute and no executive instructions or rules to the contrary can abridge or run counter to the statutory provisions.5
  • Bail in non-bailable cases: Bail in non-bailable is a matter of discretion. However, such discretion is required to be exercised by the Court on sound principles judicially recognized and not on whims or caprice. Principles governing the exercise of discretion in non-bailable cases are discussed below:
    • Principles governing discretion in grant of bail in non-bailable cases.Justice Krishna Iyer, in G. Narasimhule Vs. Public Prosecutor A.P.i6 quoted as follow:

      ‘An appeal to a judge’s discretion is an appeal to his judicial conscience. The discretion must be exercised, not in opposition to, but in accordance with, establishmed principal of law’.

      What is the judicial discretion in the context of bail. Justice Krishna Iyer quoted Benjamin Cordoze:7
      ‘The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from concreted principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition methodized by analogy; disciplined by system, and subordinated to ‘the premoridial necessity of order in the social life’. Wide though in all conscience is the field of discretion that remains.’

      What are those principles? The principles formulated by the Courts are based on two considerations firstly, the release of accused on bail may occasion feeling of accused from justice and secondly, his release on bail may expose the society to the danger of repetition of same crime. On the other hand there is a competing claim of liberty of a person which is always considered to be necessary for the existence of the society. Therefore, to harmonise thee two competing claims the Courts have formulated certain principles which have bearing on the exercise of their discretion. The relevant consideration a judge is required to take into consideration, while exercising his discretion in granting or refusing bail are:

      • Possibilities of accused fleeing from justice.
      • Likelihood of accused repeating the same offence.
      • Likelihood of accused interfering in investigation by tempering with prosecution witnesses.
      • Likelihood of retribution against the accused.

      In regard to the first element Lord Compbell C.J. Concurred and coleridge J. set down the law as follows:8
      ‘ I do not think that an accused party is detained in custody because of his guilty, but because there are sufficient probable grounds for the charge against him as to make it proper that he should be tried, and because the detention is necessary to ensure his appearance at trial.

      … It is very important element in considering whether the party, if admitted to bail, would appear to take his trial; and i think that in coming to a determination on that point to a determination on that point three elements will generally be found the most important; the charge, the nature of evidence by which it is supported and the punishment to which the party would be liable if convinced. In the present case, th charge is that of wilful murder; the evidence contains an admission by the prisoners of the truth of the charge, and the punishment of the offence is, by law, death’.

      These three factors i.e. nature of offence, nature of evidence to prove the offence and finally the severity of punishment conviction for offence will entail are factors in determing the questions whether there are possibilities of accused fleeing from justice.
      The second consideration for grant of bail is chances of accused repeating the same offence if released on bail. In this context the previous history of accused is relevant. Thought less bail order has enable the bailee to exploit the opportunity to inflict further crimes on the members of society.8a

      The third factor in exercise of discretion is possibility of accused tempering with prosecution witnesses. Facts bearing on the position of accused with reference to the victim and the witnesses are relevant consideration. Where there was evidence that accused persons were senior officers of police and due to their persuation witnesses changed their statements, chances of accused tempering with evidence being found eminent bail was cancelled even when it was granted.9

      Fourth factor which influences the exercise of discretion of court is likelihood of desperate reprisal, if enlarged on bail, which may put the bailee in jeopardy and his own safety may be more in prison than in vengeful village where fueds have provoke the violent offence.10

      These are some of the factor which are not, in any way, exhaustive catalogue but only relevant for the exercise of sound discretion. Apart from these, peculiar facts and circumstances of the case, may be found to be relevant in the exercise of discretion in each individual case. In the light of these principles, now we shall discuss the exercise of discretion in granting bail at different formes.

    • Bail by MagistrateS. 437 of the Code empowers the Magistrate to grant bail in non-bailable offences. For the purpose of bail offences have been classified into two categories. (i) Offences punishable with death, imprisonment for life or imprisonment for a term of ten years and (ii) other offences. In cases of offences punishable with death, discretion imprisonment for ten years discretion of the Magistrate in granting bail is excluded unless the accused is sick, infirm person, or a woman.11 S. 437 contemplates two stages for exercise of discretion by the Magistrate. Firstly, when the accused is initially produced before him after arrest. AT this stage the Magistrate is only to scrutinise the case with reference to S. 437 (1) i.e. whether ‘there appear to be reasonable grounds for believing that the accused has been guilty of such offences’. At that stage there will be some material for accusation or for strong suspicion of commission of such an offence by the accused, therefore, unless the Magistrate can proceed under the proviso, he cannot exercise his discretion in granting bail in such cases.12 Once the investigation progresses, the Magistrate has to scrutinize the case with reference to S. 437 (7). But S. 437 of the Code presupposes competency of Magistrate to try an accused for such offences and since he is not competent to try such cases, he cannot exercise his discretion to grant bail in those cases where offence alleged is punishable with death, imprisonment for life, or imprisonment for not less than ten years. The power of officer in-charge of police station and that of the magistrate in this regard are concurrent.

      In other cases, the Magistrate can exercise his discretion in granting bail in non-bailable offences. In exercise of his power, the Magistrate will consider the same factor or refusal of bail in non-bailable cases.

    • Bail by High Court or Court of SessionsS. 437 of the Code is concerned only with the court of Magistrate. It expressely excludes the High Court and the Court of Sessions. Unlike S. 437 (1) of the Code there is no ban imposed under S. 439 (1) of the Code against grant of bail by the High Court or the Court of Sessions to grant bail to persons accused of an offence punishable with death, or imprisonment for life. It is only when accused has failed to get bail before the Magistrate and after the investigation has progressed throwing light on the evidence and circumstances implicating the accused, that the High Court or the Court of Sessions will be approached by the accused.13 This section confers special powers on the High Court or the Court of Sessions in respect of bail. However, the High Court or the Court of Sessions will have to exercise its judicial discretion in considerating the question of grant of bail under S. 439 (1) of the Code and the consideration for grant of bail in both the cases i.e. under S.437 (1) and 439 (1) of the Code are the same as have been discussed earlier. Power under S. 439 (1) of the Code can be exercised where Magistrate has refused to grant bail in non-bailable offence.
    • Anticipatory bailS. 438 of the code empowers the Court of Sessions and the High Court to pass an order directing release on bail of a person apprehending arrest in a non-bailable case. In order to apply for bail under this section, the applicant must show that he has ‘reasons to believe’ that he may be arrested for a non-bailable offence and ‘reasons to believe’ here is not equivalent to fear for which applicant may have vague apprehension that some one is going to make an accusation against him.14 Such an application can be moved to the Court of Sessions or the High Court within whose jurisdiction the arrest is apprehended.15 However, anticipatory bail is a device to secure the individual liberty it is neither a passport to commission of crime nor a shield against any all kinds of accusation, likely or unlikely.16 Secondly, on the application of the applicant High Court or the Court of Sessions must apply its own mind to the question and decide whether there is a case made out for grant of such relief. It cannot leave the question for the decision of the Magistrate concerned under s. 437 of the Code as and when an occasion arises, since such course will defeat the very object of S. 438. Thirdly, filing of FIR is not a pre-condition for moving for anticipatory bail. The eminent of a likely arrest is sufficient to enable a person to move an application. Fourthly, anticipatory bail can be granted even after the FIR has been recorded but the applicant has not been arrested. And, Finally provisions of S. 438 of Code cannot be invoked after the arrest of the accused.17
• Right to Legal Assistance:
  • Right to presence of a counsel during interrogation: In United States of America, incriminatory statement made by an accused voluntarily during the interrogatory process can be proved against him. Sixth Amendment to the American Constitution guarantees right against self-incrimination which means that any incriminatory statement obtained though compulsion, physical or psychic or atmospheric, cannot be proved against the accused. By creative interpretation of the provisions of the Sixth Amendment in Meranda Vs. Arizona , U.S. Supreme Court extended the scope of this right to custodial interrogations also in which confession may be improperly obtained not because of any specific third degree practices of the police but because the entire aura and atmosphere of the police interrogation without notification of right and offer of assistance of counsel tend to subjugate the individual to the will of his examiner. Therefore, in order to provide safeguard to the accused against custodial compulsions, the law has been laid down requiring exclusion of defendant’s statement unless (i) he has been informed of his constitutional right to silence; and (ii) right to presence of an attorney retained by him or when he has not retained one, the lawyer has been provided to him at state expenses. It is also the mandatory duty of the police to inform and warn the accused of possible adverse use of such statement.In India the position in this regard is different, because of statutory protections to accused against self-incrimination against proof of confessional statements made by the accused to police officer. Under the Indian Evidence Act confessional statement made by the accused to a police officer unless made in the immediate presence of the Magistrate is inadmissible against the accused. but this protection is narrow in nature though the scope of constitutional protection against self-incrimination is wife. The Code makes provision that State shall provide legal assistance to accused but not at the investigatory stage. Judicial approach even in this regard had been apathetic when the Supreme Court construed this provision to mean that neither the police, nor the Magistrate nor the Court is under obligation to provide a counsel at state expenses and Court is only to afford necessary opportunity to accused to engage a counsel himself or to got his relatives to engage one for him. By passage of time there has been a marked improvement in the judicial approach towards the right of accused to legal assistance.

    Prior to Nandini Satpathy’s case the area of right to legal counselling at interrogatory stage was obscure. It is in this case that the Supreme Court for the first time explored this right and held that the spirit and sense of Art. 22 (1) is that it is fundamental to the rule of law that the services of a lawyer shall be available for consultation to any accused person under circumstances of near custodial interrogation, since observance of the right against self-incrimination, is best promoted by conceding to the accused the right to consult a legal practitioner of his choice. But this right in India is not the same in amplitude as in Miranda’s case . In America securing the presence of a counsel even at state expenses before interrogation of accused commences, is mandatory. But in India it is only recommendatory prescription to avoid serious reproof that involuntary self-incrimination secured in secrecy and by coercing the will. The only duty on the part of police recognised is to inform the accused of his right to have his counsel but the police need not wait more than for a reasonable time for an advocate’s arrival. Thus the decision proved to be recommendatory without laying down the probable consequences on denial of such right to the accused.

    Judicial approach on the right of accused to have the presence of his counsel by his side as reflected from subsequent decisions is not consistant and encouraging. As, for example, Delhi High Court refused to allow the presence of a lawyer during interrogation even where it was asked for by the accused on the ground that Nandini Satpathi’s did not lay down any mandate but only suggested strongly that it would be prudent for the police to allow a lawyer where the accused wants to have at the time of interrogation if police wants to escape the censure that its interrogation is carried on in secrecy under physical and psychic torture. The Madras High Court took the view that there is distinction between ‘right to consult a legal advisor’ and ‘requiring a lawyer to be present while examination or interrogation of a person goes on’ and the lawyer cannot be allowed to be present since interrogation necessarily has to be secret and in fact even the identity of person interrogation or examined may have to be kept secret until a later stage. Secondly, it was held that only a person accused of an offence is entitled to such right and since proceedings under S. 108 of Customs Act are not accusatorial -cum-investigatory proceedings, person examined is not entitled to such right. However, Madhya Pradesh High Court has taken a practical view of this right to allow a lawyer to be present during interrogation when the circumstances go warranted that the accused shall be subjected to torture and forced to answer self-incriminatory question.

    The next important question arises as to what should be role of the lawyer during interrogatory process? Whether he should be allowed to object to the questions put by interrogator which in his opinion cannot be asked or should the accused be allowed to communicate with his lawyer before he should answer the questions? In this regard Bombay High Court took the view that if an advocate was permitted to actively participate during interrogation it would mean that the interrogation and investigation would be reddled with objections and interruptions, right or wrong and would render the entire proceedings a force which certainly cannot be permitted. The advocate, therefore, can only be permitted to be a silent spectator in the proceedings and cannot be allowed to be an active participant. If he has any objection to the questions asked or to the conduct of the investigator, he can make his objections in writing after the interrogation and investigation, advocate was allowed to sit behind the suspect at a distance of six feet to avoid any prompting but he was not permitted to raise any objections of any kind during interrogation and the proceedings.

    On the basis of Maneka Gandhi’s case it was observed by the Supreme Court in Hussainare Khatoon’s case that right to free legal services is clearly an essential ingredient of ‘reasonable, fair and just’ procedure for deprivation of life and liberty of a person accused of an offence and it must be held implicit in the constitutional guarantee under Art. 21 of the constitution. This case pertained to the right to legal assistance at pre-trial and trial stages. Even at post-trial stage right to free legal assistance at state expenses has been recognized in order to enable the convict to file an appeal. In Khatri Vs. State of Bihar , Supreme Court went to step further in holding that constitutional obligation to free legal assistance not only arises at trial stage but also when the accused is produced for the first time in the Court. Sheela Barse Vs. State of Maharashtra is another important case where Supreme Court recognized the right to legal assistance as a fundamental right of an accused and constitutional obligation of the State to provide free legal assistance to those put in jeopardy at their lives or personal liberty.

    Whatever limited be the role of a lawyer present during custodial interrogation, at least it is a guarantee against application of third degree methods and right to presence of a lawyer, particularly when accused wants the presence of lawyer besides him should not be denied to the accused. It is therefore, necessary that judicial safeguards against self-incrimination is Nandini Satpathy’s case requiring police to allow the counsel of accused to remain present should be given statutory recognition by incorporating suitable provision in this regard in the Code.

  • Right to legal assistance in proceedings before the Magistrate: After arrest of an accused the police is bound to produce him before the Magistrate within twenty four hours. At this stage accused has a right to oppose remand either to police or to judicial custody and to enforce his right to bail. Without any legal assistance an accused, particularly when he is illiterate or unable to secure services of a lawyer due to poverty or incommunicado situation, will not be in a position to enforce his right. In this field the approach of the Supreme Court has been much encouraging. In Hussainara Khatoon’s case free legal assistance at state expenses was held to be an essential ingredient of fair procedure. In sukhdas’s case Supreme Court went a step further in on joining a duty on the Magistrate or the Sessions Judge before whom accused is produced, to inform the accused about his right to free legal assistance and further in Khatri’s case recognised the right of accused to get free legal assitance also at the stage when he is produced for the first time in the Court. A duty was also imposed on the Magistrates to make available services of a lawyer to the accused in order to enable him to oppose remand and apply for bail.
• Right to be informed of the grounds of arrest:
  • Nature and scope of right: Under Art. 22 (1) of the Constitution of India, no person, who is arrested, can be detained in custody without being informed, as soon as may be, of the grounds of such arrest. The constitutional intent has been translated into legislative action by incorporating provisions in the Code requiring the officer arresting a person without warrants to forthwith communicate to him full particulars of the offence of which he is arrested or other grounds of such arrest.1 These provisions are mandatory and their non-compliance amounts to non-compliance with the procedure established by law and renders the arrest and detention of such person illegal.2 The underlying principle in requiring the officer arresting the person to furnish forthwith full particulars of the offence for which he has been arrested is to enable the person so arrested to move the Court for the enforcement of his right and secure his release.3
  • Effect of non-communication grounds of arrest to accused:From the study of decisional material the position in regard to effect of non-communication of ground of arrest to accused is that it renders the detention illegal. But Courts are silent on the aspect as to what consequences should ensure for breach of this mandatory provision. Whether the accused shall be released from custody or have no authority to authorise further detention of such person can only claim compensation for violation of this right? To my mind, non-communication of the grounds to the person arrested is breach of his fundamental right entitling him to invoke appropriate remedy for the enforcement of his right. However, it will be a far reaching proposition of law to conclude that in such cases accused shall be entitled to be released from custody. Even the Magistrate can compel the police to inform the accused of grounds of arrest or may himself inform the accused of grounds of arrest or may himself inform him of such grounds.
    Though the constitution made it a fundamental right of accused to be informed of ground of arrest, but this provision is observed more in breach rather than in compliance. It is on account of the fact that there is no provision in the Code make it obligatory on the police officers. To make this provision more effective it is necessary and proper that police officials must serve a brief statement of the reasons, grounds of arrest and the provisions of law under which the arrest is sought to be made. Such a provision, if incorporated in the Code would provide a check on the police officers from withholding grounds of arrest.
• V. Right to be produced before a Magistrate within 24 hours of arrest:
  • Nature and scope of the right:Under Art. 22 (2) of the Constitution the arrested person has a right to be produced before the Magistrate within 24 hours of such arrest excluding the time necessary for journey from the place of arrest to the Court of the Magistrate. Beyond this period he cannot be detained by police without the authority of a Magistrate. The philosophy behind this principle is that in a matter of life or liberty judicial authority must intervene at the earliest opportunity and the accused must be given an opportunity to make a representation against his further detention.
  • Effect of non-production of accused before Magistrate within 24 hours of arrest:The effect of non-production of the accused within 24 hours of his arrest before a Magistrate is that the detention becomes illegal. Where customs authourities arrested a person involved in smuggling case and kept the person in custody for 27 hours without interruption without producing him before a Magistrate, the detention was held to be illegal.1 Similar view has been taken by the Supreme court in Saptawna Vs. State of Assam2 that detention of a person beyond 24 hours without production before a Magistrate renders the detention illegal. In case neither any information regarding commission of a cognizable offence against a person had been received nor there were reasonable suspicion of his having committed such offence, nor any case registered against such person, successive remand by the Magistrate authorising detention of such person to custody was held to be illegal.3 However, detention in breach of this provision will be illegal but if such person has been produced before the Magistrate, his further detention by the Magistrate becomes legalised and same cannot be attacked on the footing of the detention at earlier point of time being ilelgal.4 In Saptawna’s case5 it was argued that accused was entitled to be released on the ground that he was not produced before the Magistrate within 24 hours of his arrest. This contention was negatived and it was held that even if the petitioner had been under illegal detention earlier, his detention becomes lawful when he has been produced before the Magistrate and who remanded him to custody.
• Right against further detention except by authority of law and in accordance with procedural mandate:After the accused has been produced before the Magistrate, his further detention can be authorised only by hm in accordance with procedural mandate. Such further detention of accused is governed by the provisions of S. 167 of the Code which contemplates two kinds of custodies viz. (i) detention of accused in police custody; and (ii) detention of accused in judicial custody. If the investigation cannot be completed within twenty hours and police requires the custody of the accused for further period, the Magistrate is competent to authorised detention in police custody but only for a period of 15 days in whole. It police custody is not requested for by the police, the Magistrate can authorise the detention of accused in judicial custody for the first fifteen days and thereafter for a total period of sixty days in cases not punishable with death, imprisonment for life or imprisonment for a term of not less than ten years. In cases where offence alleged against the accused to judicial custody for a period of ninety days (inclusive of initial period of fifteen days). After expiry of this period of sixty or ninety days, if police has not filed a final report against the accused he becomes entitled to be released on bail. Procedural requirements to be observed by the magistrate are discussed separately as under.
  • Remand to police custody:
    A Magistrate exercising jurisdiction under S.167 of the Code is obliged to apply his mind to the material produced before him, hear and the accused either in person or through his counsel as also the prosecution and then determine the significant question within the parameters prescribed in S. 167 of the code. This, in essence, is a judicial function and in doing so Magistrate exercises his judicial mind.1 When the accused is produced before the Magistrate, his first detention can only be for a period of fifteen days and not beyond that. He can remand the accused to police custody if a request has been made in this regard or authorise his detention in judicial custody. But the first and initial detention can only be for the first fifteen days inclusive of the period of detention in police custody, if any, authorised by such Magistrate.The period of fifteen days starts running as soon as the accused is produced before the Magistrate.2 The earlier view taken by the Delhi High Court3 was that once the accused is remanded to judicial custody he cannot be sent back again to police custody in connection with or in continuation of the same investigation even though the first period of fifteen days has not exhausted. However, this view was not subsequently approved of by the same High Court ad it was held that the nature of custody can be altered from judicial to police and vice versa during the period of first fifteen days mentioned in S. 167 (2) of the Code.4 After the first period of fifteen days has elapsed, even if more serious or henious offence is made out against the accused during the investigation of the same offence, is no ground to authorise his detention in police custody.5 Remand to police custody after expiry of initial period of fifteen days is illegal.6 However, the limit of fifteen days in whole is applicable in a single case against the accused. If he is found concerned in another case and police custody is requested for, he can be remanded to police custody for a period of fifteen days in whole in other case.7 In Dhaman Hiranand Vs. Emperor8 the judicial committee had taken the view that once the powers conferred by the first part of S. 167 (2) of the Code have been exercised by a Magistrate, they becomes exhausted and cannot be revied and that an accused cannot be in Magistrial custody in one case and police custody in a other case. But this view does not find favour in subsequent decisions. If the accused has already been in police custody for fifteen days, he cannot be remanded to police custody by invoking inherent power of the High Court under S. 482 of the Code.9 Now it is well settled law that the Court will have no inherent power to remand an accused to any custody unless the power is conferred by law.10 In case the accused is granted bail by the Court, he cannot be committed to police custody for the purpose of recovery of any article.11

    In Anupam J. Kulkarni’s case12 the Supreme Court has finally and authoritatively settled the position in regard to remand to police custody in the following manner: whenever any person is arrested under Section 57 of the Code he should be produced before the nearest Magistrate within 24 hours as mentioned therein.

    The Judicial Magistrate can in the first instance authorise the detention of the accused in such custody i.e. either police or judicial from time to time but the total period of detention cannot exceed fifteen days in the whole. Within this period of fifteen days there can be more than one order changing the nature of such custody either from police to judicial or vice versa.

  • Remand to judicial custody:Section 167 of the Code provides that the Magistrate can authorise the detention of an accused initially for the first fifteen days. Thereafter, he is required to monitor the investigation and form an opinion whether the further detention of the accused is justified and warranted by the circumstances. Thus accused can successively be remanded to judicial custody but for a maximum period of ninety days in these cases where the offence alleged is punishable with date, imprisonment for life or imprisonment for a term but less than ten years and in other cases detention can be authorised only for sixty days.13
  • Right to be released on bail after 90/60 days on failure by police to file challan:After expiry of 60/90 days of detention in custody, if the police does not file challan against the accused, he becomes entitled to be released on bail. Right to be released on bail after expiry of sixty or ninety days is a valuable safeguard against prolonged detention of th accused is custody. The calculation of these sixty or ninety days has been subject of judicial pronouncements. In computing the period of sixty or ninety days, the detention of the accused in police custody under S. 57 of the Code has to be excluded.14 In calculating a day as a unit of time the day is to be taken as interval from one mid-night to another and it will be incorrect to taken into consideration fraction of two days to make up one day. Thus, the day on which the custody is granted cannot be excluded.15

    Provisions of the proviso to S. 167 (2) of the Code cannot be overcome by the police by filing piecemeal challan against the accused. Where the police filed a challan before expiry of 60 days in respect of certain offences but for some offences after expiry of 90 days it was held that investigation of a case under Section 154 (2), S. 155, S. 156 (1) and S. 157 of the Code refers to investigation of a case which would indicate that the investigation is to be of a ‘case’ and not to be conducted piecemeal with reference to each offence, committed in a transaction of occurrence. The investigation contemplated is of a ‘case’ i.e. all the facts and circumstances of the case which would mean all the offences involved therein. Therefore, when Section 173 of the Code so asks of completion of investigation it must ordinarily be taken to refer to completion of investigation of all the facts and circumstances relating to the case whether the transaction involves one offence or plurality of offences. Therefore, a final report or charge sheet under S. 173 of the code could be filed only after completion of investigation in the case relating to all the offences arising in a case.
    In order to avail benefit of bail under the proviso to Section 167 (2) of the Code, accused is not bound to move any formal application.16 Such right once accrued to the accused on failure to file report under Section 173 of the Code is not defeated even if the police files the challan after expiry of that period during pendency of bail application under Section 167 (2) of the Code17, nor such right can be defeated even if the police has filed challan after the specified period, as such a right of accused is absolute and undefeatable.18

  • Character of bail under Section 167 of the Code:Under Section 167 of the Code the bail granted to an accused of failure of police to file challan against him within specified period, by deeming provisions has been taken to be bail under chapter XXXIII of the Code.19 In its nature it is a fictional bail for the purpose of the said chapter. The purpose is obvious, as to requirements of surety bond (S. 441-42), effect of forefeiture of bond (S.447); discharged of surety (S.444); enforcement of surety bond (S. 446); and cancellation of bail by the Court granting if (S. 437(5)). It follows, that once an accused has been released on bail it cannot be cancelled merely because the challan has been filed by the prosecution.20
    Moreover, it is well settled law that post-bail conduct is only material for consideration of question of cancellation of bail of an accused. There are only two paramount consideration for taking decision regarding cancllation of bail viz. (i) likelihood of the accused fleeing from justice and (ii) his tempering with prosecution evidence. Both these consideration relate to ensuring a fair trail of the case in the Court.21. Therefore, bail granted under the provisions of Section 167 of the Code, for all practical purpose, has all the characteristics of a regular bail so far as effect and consequences are concerned and cannot be cancelled except on recognised principles.
• Right against self-incrimination:
  • General history:
    The quality of a Nation’s civilisation can be largely measured by the methods it uses in the enforcement of its criminal law.1 There was a time when in English system of criminal law inquisitorial and manifestly unjust methods of interrogating accused were lawful. Therefore, the rule against self-incrimination originated in England as a sequal of reaction against horrors and terrors perpetuated by Star Chamber. This doctrine did not have its origin to any legislative philosophy but to a general and silent acquiesence of the courts in a popular demand. Thereafter it became firmly embedded in English as well as in American criminal jurisprudence. In England the maximum ‘nemo tentur se ipsum tenetur‘ originated as a mere rule of evidence. However, this maxim (literally translated means a man cannot represent himself as guilty (prevalied in the Rabbinic Courts and found a place in the Talmud (no one can incriminate himself. Later case the Star Chamber history and Anglo-American revulsion. Imperial Britain transplanted part of it into India in the Code. Prior to that the Sixth Amendment to the American Constitution recognised the right as fundamental and the innovative interpretation of this right in Miranda’s case1a added flesh and blood to this right. The framers of our Constitution were aware of th importance of this right in a democratic country and thus specifically incorporated this right as a fundamental right under Art. 20 (3) of the Constitution.Art. 20 (3) of the Constitution proclaim that no person accused of an offence shall be compelled to be a witness against himself. The import of this great right can be understood by answers to three questions: (i) who can claim this privilege; (ii) when he can claim this privilege; and (iii) what this privilege proclaim to forbid?
  • Who can claim the privilege against self-incrimination:Under Art. 20 (3) of the Constitution, a person ‘accused of an offence’ is entitled to claim privilege against self-incrimination. Who is an accused? This expression pre-supposes two things: (i) accusatorial imputations against a person; and (ii) initiation of investigatory nature of inquiry against him purpose thereof is to collect evidence against him with a view to prosecute him.) These two requirements are so inter-related as are inseparable from each other. When an offence is committed, the criminal law is put into motion by a report of facts constituting such offence to police which is recorded in the shape of First Information Report or secondly by filling a complaint of facts constituting such offence before a Magistrate. In M.P. Sharma vs. Satish Chandra2 it was held that a person whom a formal accusation relating to the normal course may result in the prosecution, he stands in the capacity of an accused and is entitled to claim this protection. Similar view has been taken by the Supreme Court3 in subsequent decisions and it was held that a person against whom FIR has been recorded as accused therein the guarantee under Art. 20 (3) would be available.4 Thus the nature of the accusation and its probable sequel or consequences are regarded as important factors in determining whether a person has acquired the character of an accused.

    The second aspect which requires examination is that in order that a person has become an accused, the accusatorial imputations must lead to investigatory inquiry with a view to his prosecution. If the purpose of inquiry in which accused is summoned to take part is not the criminal prosecution, the proceedings will not be investigatory nature and the protection of Art. 20 (3) will not be available. For example where the High Court passes an order for examination of any person under Section 450 (6) of the Companies Act and compells him to answer any question put to him and it is likely that in cases such person may be compelled to be a witness against himself, yet the person being compelled not being an accused cannot invoke the protection of Art. 20 (3) even though the evidence taken from him during compulsion may ultimately lead to a prosecution against him, in as much as the purpose of inquiry is only to a certain the affairs of the Company.5

  • When such right can be claimed?The next question arises when an accused can invoke this privilege? Whether the ban is only against compulsive testimony in Court proceedings or also extends prior to that? It was argued in M.P. Sharma’s case6 that this privilege is available to accused only against compulsive testimony in the Court. But this contention was negatived and it was held that the phrase used in Art. 20(3) is ‘to be a witness’ and not ‘to appear as a witness’ and therefore the protection afforded to an accused in so far as it is related to the phrase ‘to be a witness’ is not merely in respect of testimonial compulsion in the court room but may well extend to compelled testimony previously obtained from him. Again this issue came up for consideration before the Supreme Court in State of Bombay Vs. kathi Kalu Oghad7 and it was argued at bar that privilege accorded by the Constitution to an accused person should not be applied at the stage of investigation of an offence and should be confined to cases of compulsory extraction of incriminating statement or communication by an accused person in court and ‘to be witness’ be construed as ‘being compelled to give oral testimony’. A bench consisting of eleven learned judges finally settled the law that the protection afforded to accused in respect of testimonial compulsion is not merely in the court room but may well extend to compelled testimony previously obtained from him. It means protection against self-incrimination is available even at the investigational stage.
  • What the privilege against self-incrimination proclaims to forbid:Art. 20 (3) of the Constitution mandates that the accused shall not be compelled to be witness against himself. Here the prohibition is against (i) compulsion; and (ii) compulsion must be to be ‘witness against himself’. Therefore, the bar is against compulsion self-accusation, and not against volitional testimony. In M.P. Sharma’s case8 while commenting on this aspect it was observed by the Supreme Court that every positive volition act which furnishes evidence is testimony and testimonial compulsion connotes coercion which procure the positive volitional evidentiary acts of the person, as opposed to be negative attitude of silence or submission on his part. This view was approved by the Supreme Court in Kathi Kalu’s case.9 From the analysis of these two decisions, it emerges that the Court took a very narrow view of word ‘compulsion’ to mean ‘duress’ or ‘coercion’ which is equivalent to what has been sometimes characterised as ‘third degree’ methods to extort confessional statements. Secondly, it was laid down that in cases of custodial interrogation, there can be no presumption that a statement made by the accused while in police custody was involuntary. The custodial statements were presumed to be voluntary unless accused could show that he was subjected to treatment which in the circumstances of the case would lend itself to the inference that compulsion was in fact exercised.

    But the whole complexion changed after Nandini Satpath’s case10 where the Supreme Court took a more hospitable and broad view of ‘compulsion’ to include not only physical but psychic and atmospheric conditions of interrogation and tone and temper of the interrogator. Justice Krishna Iyer observed:

    ” … We are disposed to read ‘compelled testimony’ as evidence procured not merely by physical threats or violence but by psychic tortures, atmospheric pressures, environmental coercion, tiring interrogatory methods and the like – not legal penalty for violation. So… the legal perils following upon refusal to answer, or answer truthfully, cannot be regarded as compulsion within the meaning of Art,. 20 (3). The prospect of prosecution may lead to legal tension in the exercise of consitutional right, but then, a stance of silence is running a calculated risk. On the other hand, if there is any mode physical, direct or indirect, but sufficiently substantial, applied by the policemen for obtaining information from an accused strongly suggestive of guilt, it becomes ‘compelled testimony’ violative of Art. 20 (3)..”

    The Court further explained: ”The police officer is clearly a person in authority. Insistence on answering a form of pressure especially in the atmosphere of the police station unless certain safeguards erasing duress are adhere to. Frequent threats of prosecution if there is failure to answer may take on the complexion of undue pressure violating Art.20 (3). legal penalty may be itself not amount to duress but the manner of mentioning it to the victim of interrogation may introduce an element of tension and tone of command periolously hovering near compulsion.”

    In the investigatory process police may put question to accused. Police may require the accused to produce certain documents or require him to furnish his specimen handwriting or signatures, thumb or finger impressions or photographs or sample of his blood or a variety of act which may be necessary for, or facilities in the investigation and help the investigator to reach correct conclusions regarding commission of an offence. Whether all these acts come within the prohibitive sweep of Art. 20 (3)?

    In M.P. Sharma’s case11 the Court held that a person ‘be a witness’ not merely by giving evidence but also by producing documents or making intelligible gestures as in the case of dumb witness. ‘To be a witness’ is nothing more than ‘to furnish evidence’ and such evidence can be furnished through lips or by producing a thing or a document or in other modes. Every positive volitional act which furnishes evidence was held to be testimony and testimonial compulsion was held to cannot coercion which procures the positive volitional evidentiary acts of the person, as opposed to the negative attitude of silence or submission on his part. But in later decision the Supreme Court deviated from this position. In Kathi Kalu Oghad’s case12 it was held ‘to be a witness’ means ‘imparting personal knowledge’ in respect of relevant facts, by means of oral statements or statements in writing by a person who has personal knowledge of the facts to be communicated to a Court or to a person holding an inquiry or investigation. In order that a testimony by an accused may be said to have been self-incriminatory which comes within the prohibition of constitutional provision, 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.

    However, in the same case three learned judges gave a dissenting judgement, though reached the same conclusion but for different reasons. According to this view any fact which makes the existence or non-existence of a fact in issue or a relevant fact probable is ‘evidence’ within the meaning of S-3 and 5 of the Indian Evidence Act and production of such evidence amounts to ‘to be a witness’. They agreed with the view expressed in M.P. Sharma’s case12a that ‘to be a witness’ means ‘to furnish evidence’. For example an accused has in his possession a letter written to him by an alleged co-cospirator in reference to their common intention in connection with the conspiracy is relevant under S. 10 of the Evidence Act for the purpose of providing the existence of the conspiracy and also for the purpose of showing that any such person was a party to it. In this case whether there was a conspiracy and accused was member thereof is fact in issue and even though these documents do not contain his personal knowledge would have a tendency to make probable the existence of the fact in issue or a relevant fact and therefore, production thereof amounts to ‘furnishing evidence’ and such person’s producing it is ‘being a witness’. Similarly in cases where accused gives his specimen signatures or writing or finger prints, palm or foot prints, does furnish evidence and so is being a ‘witness’. But what Art. 20 (3) forbids is that such person shall not be compelled to be a witness against himself. In case of production of letters the evidence given tends by itself to incriminate the accused person but the evidence of specimen handwriting or the impression of the accused person’s fingers, palm or foot, will incriminate him only if on comparison of these with certain other handwritings or certain other impressions, identity between the two sets is establishment. By themselves these impressions or the handwritings do not incriminate the accused or even to do so. Because of this reason it was held that by giving finger prints or specimen handwriting or signatures the accused does not furnish evidence ‘against himself’ . So when an accused is compelled to give a specimen handwriting or impressions of his finger, palm or foot, it may be said that he has been compelled to be a witness, however, it cannot be said that he has been compelled to be a witness against himself.

    The reasons given in the minority judgment appear to be more logical. It slightly widens the scope of immunity against compulsive testimony as compared to view taken by majority. Secondly, the majority approach is likely to promote lethargy and callousness on the part of investigating agency and will induce it to resort to compulsive methods in security evidence. Moreover, no less serious is the danger that accused person at least, may be induced to furnish evidence against himself which is totally false – out of sheer despair and an anxiety to avoid an unpleasant present. Of all these dangers the constitution makers were clearly well aware and it was to avoid them that Art. 20 (3) of the Constitution was put in. As per the law authoritatively laid down by the majority, the scope of testimonial compulsion has been narrowed down.

  • Right to silence – Nature and ScopeInvestigatory process empowers the police to examine persons supposed to be acquainted with the facts and circumstances of the commission of the offence. Under the Code, the police can examine any such person.13 Such person when questioned by the police is bound to answer truly all questions relating to such case put to him by such officer except the questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture.14 The person examined under this section by the police is bound to answer truly all the question and failure to answer such questions or giving false reply thereto constitutes an offence punishable under the law.15

    Statement of the person accused of an offence can be divided into three categories (i) confessional; (ii) incriminatory; and (iii) relevant. A statement which has potency to make crime conclusive is a confession. A statement which has tendency to make the guilt probable is relevant. The constitutional bar extends only to the first two kinds of statements and not to the third. A statement in response to question cannot be taken to be incriminatory or relevant without first judging the setting of the case. It is equally important to stress the need for regard to the impact of the plurality of other investigation in the offing or prosecution pending on the amplitude of this immunity in order to understand the meaning of phrase ‘tendency of expose him to a criminal prosecution’.

    The issue of protection against testimonial compulsion under the Constitution came up for consideration in Kathi kallu Oghad case.16 In this case the Court observed:
    ‘ 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 provisions, it must be of such a character that by itself it should have the tendency of incriminating the accused, if not all 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.’

    Two principles are discernable from the above statement. Firstly, the statement considered by itself should be incriminatory and secondly it goes to make the case against the accused at least probable, in the context of case against the accused under investigation. It did not apply if the answer has a tendency or potentiality to expose him to a future prosecution on the basis of such statement. But in Nandini Satpathy’s case17 Supreme Court rediscovered and resurrected the contours of this right and held that 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 disclosing incriminatory matter. In this case the court construed the words ‘to be a witness against himself’ as not confining 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 answers. This conclusion was drawn from the phraseology ‘tendency to expose to a criminal charge’ which covers ‘any’ criminal charge then under investigation or trial or imminently threats the accused.18

  • Statutory safeguards against testimonial compulsion:
    • In relation to oral statements made by accused:As already discussed, in United States of America any statement made by an accused to police during interrogation under due due observance of rule against self-incrimination, is admissible. Non observance of rules of warning to accused of possible use of such statement against him and absence of his counsel render the statement inadmissible. But in India, more stringent provisions have been made in the Indian Evidence Act making confessional statement made by the accused to the police under certain circumstances inadmissible. Law forbids a police officer from offering or making or caused to be offered or made any inducement, threat or promise as is mentioned in Section 24 of the Indian Evidence Act.19 However, it is not the duty of the police officer to prevent by any caution or otherwise, any person from making any statement during the course of any investigation which such person may be disposed to make of his own free will.20 A confession made by an accused person cannot be proved against him in a criminal proceedings, if the making of the confession appears to the Court to have been caused by any inducement threat or promise, having reference to the charge against the accused person, proceeding from a person in authority (and a police officer is a person in authority) and sufficient, in the opinion of the Court, to give the accused person grounds, which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him.21 There is complete bar to the admissibility of a confessional statement made by the accused to a police officer.22 Even the confession made by an accused whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate, cannot be proved against him.23 Such a confession cannot be recorded by a police officer on whom any power of a Magistrate has been conferred under any law for the time being in force,24 and only Metropolitan Magistrate or Judicial Magistrate can record such confession in accordance with the requirements of S. 164 of the Code.25 However, there is an exception to the above exclusionary rules that if any information has been give by an accused while in police custody and in consequences of such information some facts have been discovered, so much of such information as distinctly relates to the facts thereby discovered, whether it amounts to a confession or not, can be proved against the accused.26 This proviso covers only that part of the information supplied by the accused which is the direct and immediate cause of discovery.27 Therefore, only three things will be relevant in the information: (i) Knowledge of the accused; (ii) presence of a particular thing to his knowledge; (iii) Knowledge as to place of recovery of a thing.28 Such a statement of accused may have potency to prove his guilt hence may be termed a confessional statement nevertheless it will be admissible.
    • In relation to production of documents by the accused:Under S. 91 of the Code a police officer of the Court has power to issue summons/written requisitions to produce documents necessary for inquiry/investigation. Here any person includes an accused. But Supreme Court29 has held that this section is not applicable to the accused and accused cannot be compelled or asked to produce document which has bearing on the charge against him as it violates his fundamental right under Art. 20 (3) of the Constitution. Gujarat High Court30 while construing ‘any person’ as not to include an accused held that documents based on the knowledge of the accused and compulsion to produce document would tend to impart his knowledge contained in such document which may be destructive of his defence so an accused cannot be compelled to produce such document. Similar view has been taken by Orissa High Court.31 According to Patna High Court32 accused cannot be compelled to discover that which, if answered, may tend to subject him to any punishment or penalty. So an accused cannot be compelled to disclose or produce forged documents which are incriminatory and based on his personal knowledge and which tend to incriminate him, in a trial for offence under S. 468 IPC33
  • Compulsory act by accused which tend to establish identity and compulsive testimony: During the course of investigation occasion may arise which necessitate the medical examination of accused or exposure of his body for the purpose of identification by witnesses or obtaining his signatures handwriting, thumb, palm or foot impressions, for the purpose of establishing identity of culprit. Whether asking an accused to under go medical test or give a blood sample or expose his body for identification by the witnesses or give him handwriting, thumb, palm or foot impressions, runs counter to his right against self-incrimination? In this regard Supreme Court34 has taken the view that such a course does not amount to compelling an accused to be a witness against himself within the meaning of Art. 20 (3) of the Constitution. However, it must be noted that before an accused can be asked to do certain acts there must be law which authorises the police or the Magistrate to ask the accused to do certain things. Unless there is statutory prescription, accused cannot be asked to do a particular act. This aspect is discussed under separate heads as under:
    • Sample of voice of accused : There is no provision in the Indian Evidence Act or any other law which remotely suggest that a person can be compelled to give his sample voice for comparison with one sought to be proved. Even witness cannot be asked to do so.35 On the same analogy an accused, who is placed in more privileged position, cannot be compelled to give his sample voice for comparison.
    • Taking hair sample of accused : When the person’s body, its marks and traits are in issue, there is ordinarily no other or better evidence available for the prosecution for the purpose of identification. A Magistrate can, under Section 9 of the Indian Evidence Act, direct the accused to give specimen sample of his fairs for comparison with those in possession of investigator. Such a course does not offend against privilege against self-incrimination.36 It has been observed by the Supreme Court that from mycroscopic examination of the hair it is possible to say whether they are of the same or different colours or size and from examination it may help in determining where the hair came from.37
    • Exposure of body of accused for identification by witnesses : Under S. 9 of the Indian Evidence Act the police can request the Magistrate to conduct an identification parade of the accused for the purpose of his identification by prosecution witnesses and the Magistrate can direct the accused to join such an identification parade. Such a demand can also be made by an accused to remove all doubt.38 Such a course does not violate the right of accused under Art. 20 (3).39 In Mahipal Maderna’s case 40 it was held that exhibition of the body of accused and the privilege does not extend to the use of defendent’s body as real evidence.
    • Medical examination of the accused : Under Section 53 of the Code a person can be compelled to undergo medical examination, and it does not violate his right against self-incrimination under Art. 20 (3) of the Constitution. If the nature of the offence alleged to have been committed by the accused coupled with circumstances under which it was committed afford reasonable grounds for believing that an examination of the person will afford evidence as to the commission of the defence, then it has been made lawful for the medical practitioner to act at the request of the police officer not below the rank of Sub-Inspector and to carry out examination of the body of the person arrested in order to ascertain the facts which may afford evidence and for that purpose even use of force is permissible.41
    • Taking of thumb, foot, palm prints and writing and signature of accused for comparison : Under S. 5 of the Identification of Prisoners Act, during the course of an investigation, a Magistrate can direct the accused to give his measurements which include palm, and thumb-impressions and finger and foot prints. Accused also can be asked to pose for a photograph under the said provision.41a None of the acts on the part of the accused offence against the constitutional guarantee against self-incrimination.42 However, difficulty arises when an accused is asked to give his specimen handwriting or signatures for comparison with one in possession of police. In Kalu Kathi Oghad’s43 case the Supreme Court had held that giving thumb impressions or impressions of foot or palm or fingers or specimen handwriting or signatures do not amount compelling an accused to be a witness against himself. This view was reiterated by the Supreme Court in State (Delhi Administration) Vs. Pali Ram44 that compelling an accused to give his specimen handwriting or signature does not amount to compelling him to be a witness.In obtaining specimen handwriting or signature of accused for comparison coercive methods are applied by the investigating officer in case of refusal by the accused to give such writing or signature. IN order to avoid such methods by the police it is only proper that necessary provisions in the Code itself should be made under which an investigating officer may seek help of the Magistrate in getting specimen handwriting of accused or any other person particularly when such a course does not violate the constitutional right of accused against self incrimination.
• Right to Medical Examination : When a person is arrested on a charge of committing an offence of such a nature and under such circumstances that there are reasonable grounds for believing that an examination of his person will afford evidence as to the commission of an offence, under S. 53 of the Code police can get him medically examined by a registered medical practitioner. Similarly, accused has also the right to get himself medical examined. Under S. 54 of the Code when a person who is arrested whether on the charge or otherwise, at the time when he is produced before the Magistrate or at any time during the period of his detention in custody alleges that the examination of his body will aford evidence which will either disprove the commission of any offence by him or will establish the commission of any offence by any other person against his body, the Magistrate is under a duty to direct the examination of the body of such person by a registered medical practitioner if requested by the accused unless the Magistrate is of the view that request is made for the purpose of vaxation or delay of for defeating the ends of justice. This is a new provision added in the Code. The purpose of adding this provision as explained by the Joint committee is to protect the person arrested from two excesses viz. Probability of his false implication and his being subjected to physical torture.
• Right of Accused During Search and Seizure : For effective investigation of crimes, the Code confers vast powers on the police officers to conduct search for the purpose of collecting evidence. Such powers when exercised tend to make serious inroad on the fundamental rights of the person. Therefore, there is a conflict between individual right to life, liberty and property and the societal interests in detection of crimes and punishment of offenders. But, in a country where the rule of law prevails, every act of the executive is governed by the provisions of law and no act is lawful which neither has sanction of the law nor is in consonance with legal prescriptions. In India, Courts have followed the traditional common law approach on the subject of search and seizure by police in investigational proceedings. It is still in developing stage and little decisional material is found on various controversial and sensitive areas of search and seizure. However, powers of police on the subject of search and seizure are governed by statutory provisions contained in the Code which makes exhaustive provisions on the subject of powers of police and procedure for search and seizure.Under the scheme of the Code, the searches can be categorised into two categotries (i) general search under a warrant; and (ii) investigational police search without warrant. Under the Code, powers of general search can only be exercised by courts by issuing general search warrants. Search of specific places or for specified things can also be conducted by the police. Both are discussed seaparately.
  • General search under warrants of Court
    • Procedural Prescriptions : A General search can be defined to be a roving search of any place in possession of any person for any thing whether specified or unspecified. No such power is vested in the police and such a search can only be conducted under a search warrant issued by a competent Magistrate. S. 91 of the code empowers both, the Court as well as officer in charge of a police station to issue summons/written orders to a person to produce a document or a thing necessary for any investigation, inquiry or trial. S. 93 (1) (a) of the code empowers the court to issue search warrants if in its opinion such person would not produce document or thing. The above section pre-supposes issue of summons/written orders and since no summons can be issued to an accused under this section requiring him to produce any document or thing, this provision has no application to the accused.1 Therefore, in case of document or thing in possession of an accused, only a search warrant can be issued by the Court or the police can conduct a search under S.165 of the Code.On comparison of the powers of the Court to issue search warrants under S. 93(b) and ( c ) and the powers of the police to conduct such search under S. 165 of the Code. It emerges that S. 93 (1) (b) comprehends a situation where the Court issues a search warrant in respect of document or thing to be recovered from a certain place but it is not known to the court whether that document or thing is in possession of any particular person. Under clause (b) there is a definite allegation to recover certain document or thing from a certain specified place but the court is unaware of the fact whether that document or thing is in possession of a particular person.2 S. 165 of the Code empowers an officer in charge of a police station to search ‘any place’ if he is of the opinion that any thing necessary for the investigation can be found at any place within his jurisdiction. In such a case officer in charge of a police station is aware of the place where the thing can be found but is not aware of the place where the thing can be found but is not aware as to in whose possession the place it is. In this situation, powers of the court and the powers of an officer in charge of a police station are co extensive.

      The second situation comprehended by Section 93 ( c ) is where the Court is unaware not only the person but even the place where the document may be found and for recovery of such document or thing general search is necessary.3 S. 165 of the code does not contemplate such a situation nor does it confer powers an police officer to enable him to search any place for any thing in possession of any person. Such a power is only vested in the Court.

      In such a situation police will have to obtain general search warrants from the court were it is not definite as to in whose possession or at which particular place a document or thing can be found S. 93 of the also presupposes pendency of ‘inquiry’ or ‘trial’ or ‘other proceedings’. Therefore, unless some proceedings are pending before the court, it cannot issue search warrants, to facilitate police in the investigation of a case.

    • Effect of general search by police without warrant : The effect of a search of a general nature conducted by the police officer is that the search will be quite illegal. Accused has a right to resist illegal search as will be discussed in the succeeding part of this head.
  • Investigational police search without warrants : S. 165 of the Code confers powers on police officers to conduct a search for a thing necessary for investigation which can found at any place within his jurisdiction he can conduct such search. Any place includes any place in possession of an accused. However, there are certain pre-requisites for exercise of such powers which can discussed separately.
    • Jurisdictional pre-requisites for a search : There are two jurisdictional pre-requisites which must exist before a police officer can exercise his power to conduct a search. These are:(1) There must be an investigation pending before a search can be conducted; and
      (2) The officer in charge of a police station or the officer conducting investigation must be competent to investigate the case.4

      These two pre-requisites must exist and are sine qua non for exercising power of search conferred on a police officer.5

    • Effect of search in breach of jurisdictional pre-requisites: When a search is conducted in breach of jurisdictional pre-requisites, it will be void. Such a search can be challanged under Art. 226 of the constitution or under S. 482 of the Code and court can declare such a search and seizure as void. Consequences of a void search are that the person whose property or documents have been seized by the police will reference to such serach, will have to be restored to him apart from right to resist such search. Where FIR did not make out any case against a person, search on such an investigation was held to be illegal and Calcutta High Court6 ordered restoration of property seized. Similarly where no case was registered against a person but police seized certain documents, seizure was held illegal and property was restorated to the person from whose possession same was seized.7 In both these cases the search suffered from jurisdictional defects and therefore was void. However, Supreme Court8 did not approve of the approach adopted by Calcutta High Court in the above case where it held that property seized under S. 37 and 38 of foreign Exchange Regulation Act was not liable to be returned. But this case is clearly distinguishable. Supreme Court based its decision firstly on the reason that S. 165 of the code cannot be read into S. 37 of the Foreign Exchange regulation Act so search in contravention of S. 165 of the Code was valid. Secondly, the officer conducting the search was competent to take decision to conduct a search keeping in view the powers conferred upon him under the Act and circumstances of the case. In Calcutta case since no offence was disclosed on the facts mentioned in the FIR hence police officer was incompetent to take decision to conduct the search and therefore, search in Calcutta case suffered from jurisdictional error where as in case before the Supreme Court there was no jurisdictional error. Therefore the search in Calcutta case was void but in case before the Supreme Court was valid. Calcutta case can be defended on other ground too. It is well settled law that if FIR does not disclosed any cognizable offence taken the facts mentioned therein to be true, it can quashed by the High Court in exercise of its powers under Art. 226 of the Constitution or S. 482 of the code.9 Why a search based on similar ground cannot be quashed? There is no substantial difference between the two and effect of both is the same.However, to my mind such order for restoration of property can only be passed where recovery of any article does not constitute any independent and distinct offence. As, for example, in a void search recovery of illegal arms or narcotics may constitute independent offence making the person from whose possession same has been recovered, liable to be prosecuted and in such cases no restoration of property can be ordered.
    • Decisional pre-requisites for a search : Before conducting a search, a police officer is required to take a decision whether the search, in the circumstances of the case, should or should not be conducted. There are two statutory pre-requisites which govern his discretion in taking a decision in this regard. These are:(1) Such officer must have reasonable ground for believing that any thing necessary for the purpose of an investigation into any offence may be found in any place; and
      (2) Such thing, in the opinion of such officer cannot otherwise be obtained without undue delay.10
    • Effect of search in breach of decisional pre-requisites : As already pointed out, the Supreme Court11 did not accept the proposition that facts giving ground for belief to a police officer are justiciable. However, in my view, if on the facts disclosed, a police officer had no reasonable grounds for believing that a thing necessary for investigation may be found at a place and carried out search, he will be exceeding his powers and the search will be illegal. In this view I am supported by Rehman’s case12 where Supreme Court held that the jurisdiction or power to make a search is conferred by the statute and not derived from the reasons recorded though recording of reasons is an important steps in the matter of search and to ignore it is to ignore the material part of the provisions governing search and the search will be illegal. It is, therefore, clear that recording of reasons is not a jurisdictional error but decisional or procedural error absenceof which will render the search illegal. Effect or illegal search is discussed in the following pages. Accused has right to resist such search.
    • Procedural pre-requisites for a search : The third stage in a search is reached when the police officer has taken a decision to conduct a search. After he has taken the decision, he has to comply with certain procedural pre-requisites. These pre-requisites can be divided into two categories (1) procedural pre-requisite ‘for conducting’ a search; and (2) procedural pre-requisites ‘in conducting’ a search.
      • Procedural pre-requisites for conducting a search:
        • He must record reason in writing for:
          • Having ground for believing that my thing for the purpose of investigation into any offence may be found in any place;
          • For his opinion that such thing cannot otherwise be obtained without undue delay;
          • If subordinate has been deputed to conduct the search:
            • Must record reasons in writing for his inability to conduct the search personally
            • Shall deliver to such subordinate officer an order in writing to make search;
            • shall specify thing for which search is to be conducted; and
            • shall specify the place to be searched for such thing;
        • Shall forthwith send to the nearest Magistrate empowered to take cognizance of offence copies of any record mentioned at Serial No. (i) to (iii)13
      • Effect of search in violation of procedural pre- requisites for a search : There are two consequences of an illegal search: (1) the person whose premises is sought to be searched shall have right to resist such a search14 and (2) because of illegality in a search the court may be inclined to examine carefully the evidence regarding seizure. Beyond these two consequences no further consequences ensure.15 Again, it was laid down by the Supreme Court that the manner of recovery of thing may affect the varacity of evidence but once the Court presumes the recovery to be proved, manner of recovery becomes immaterial and the evidence will be read against the accused.16 Illegal search does not vitiate the trail.17
        Right to private defence of body in relation to search arises only when the person whose premises are sought to be searched apprehends assault or use of force from the police and not until then. Therefore, unless there is use of force by the police right to private defence of body cannot be exercised even though occasion must have arisen for exercise of right of private defence of the property.It may also be noted that the right to resist illegal search is available only before the commencement of search. If the search has been commenced or completed, the person whose premises has been searched cannot exercised such right. In Shyam Lal Vs. State of M.P.18 It was held by the Supreme Court that when search was complete accused assulted the police officers in order to bring them back and to do things against their will, the act was not justified and no right to private defence can be claimed in such a situation.
      • Procedural pre-requisites in conducting a search : In conducting a search the police officer conducting search is bound to follow the procedure prescribed under S. 100 of the Code. The important requirements of S. 100 of the Code are (i) before making a search the police officer shall call upon two or more independent and respectable inhabitants of the locality or other locality if no such inhabitant of same locality is available or willing to witness the search, (ii) he shall conduct the search in the presence of the witnesses and a list of seized articles shall be prepared by him and signed by such witnesses; (iii) occupants of the place searched or some other person on their behalf shall be permitted to attend during search; (iv) copy of the list of articles seized and signed by witnesses shall be delivered to the occupant of the premises or the person; (v) if any person has been searched to recover property or any thing he was concealing about his person, list of things taken possession of shall be prepared and a copy thereof shall be delivered to such person. These are the procedural requirements in conducting a search.
      • Effect of search in breach of procedural pre-requisites in conducting a search : The effect of irregularities committed in conducting search, therefore, do not have any effect of making the search illegal. Breach of procedural requirements in conducting a search may cast a suspicion on recovery in the absence of probable explanation for non-compliance with such requirements.

      In India, the Courts have followed the traditional common-law approach that illegality in search will not make the evidence of recovery inadmissible but may put the Court on guard to review the evidence with case. Therefore, evidence even if illegally obtained, or any irregularity committed during the course of a search is admissible except where some prejudice is caused to the accused. The only safeguard laid down is that such evidence must be viewed with care and caution.19

    • Personal search of the accused : Under S. 51 of the Code whenever a person is arrested by a police officer under a warrant or without warrants, unless the person is released on bail, he is required to be searched. Police officer arresting a person is to take all the articles in possession of person so arrested except necessary wearing apparels. The purpose of taking personal search of person so arrested is to keep his belonging in safe custody. Sub-section (2) of S. 51 provides that a female is to be searched only by another female with strict regard to decency.
• Right of accused to get the defense version considered : Investigation of the crime is a solemn duty imposed by law on the police officers. A fair and untained investigation is the right of the accused. It is not the duty of the investigating officer to bolster up the prosecution case or investigate the case with pre-conceived idea of collecting such evidence as may enable the court to record a conviction. It is his duty to search out the real and unvarnished truth.1
  • Duty of police towards accused when any defence is disclosed by him : It is the duty of the investigation officer to consider the defence version given by an accused. Under S. 161 of the Code an investigating officer can examine any person which includes examination of accused also.2 it is not uncommon that at that stage accused gives his own version of the story which may disprove commission of any offence by him. He may give names of certain witnesses who may support his version or he may produce certain documents which may disprove commission of any offence by him. Therefore, it is the duty of the investigating officer that where he comes across by evidence which has important bearing on his conclusion regarding involvement of the accused in the crime to collect such evidence and consider the same in an impartial manner. Such material may throw any doubt regarding mental condition of an accused and it is his duty to place such material before the Court.3
  • Remedy against refusal by police to consider defense of accused based on oral evidence : Accused has a right to put up defense in his statement under S. 161 of the Code whenever examined by the investigating officer. He may even give names of the person who may support his version. It is the duty of the investigation officer to examine such witnesses and consider if defence of the accused is plaussible. But the investigating officer may not consider such defence based on oral evidence nor may examine any such witnesses named by the accused. Such refusal may be wilful in order to give different colour to the story with a view to book the accused. In such cases where circumstances warrant that the investigating officer is ignoring defence with a view to give particular shape to the prosecution case accused can make a request to the Magistrate to record statements of such witnesses under S. 164 of the code.4 Such a request can even be made by a witness.5 Even where the investigating officer refuses to take into consideration defence version or tries to give different colour to the story in order to book the accused. Thus, so far as refusal to consider defence version based on oral testimony is concerned, accused has a procedural remedy which can be availed by him if police refuses or ignore to consider the same in order to save himself from false implication.
  • Remedy against refusal to consider defence based on documentary evidence : Difficulty arises when the police officer refuses or ignores the defence version disclosed by accused and which is based on documentary evidence either produced or referred to by him to be in possession of certain person or authority. Such documentary evidence may have an important bearing on the defence and which may negative the commission of any offence by the accused. There is no provision in the Code under which such documents can be ordered to be considered though the intervention of some judicial authority in case of refusal to consider such evidence by the police. Consequently, without making any efforts to procure such documents, police may form an opinion that there is sufficient evidence against the accused and put in challan against him. Even the Court may refuse to look into such documents produced by the accused at the time of consideration of question of framing change leaving him to prove such documents in his defence evidence. There is another reason for insistence on taking documentary evidence produced by an accused in possession by the police that during the course of investigation police is in a position to determine about the genuineness or otherwise of the documents produced by an accused. If found genuine, pleader of the prosecution will be in a position to admit or dey them. Court can and has a right to form its own opinion in the light of admitted documents. If the documents produced by the accused are such which proves his innocence, then whole exercise by the police will be nothing but wastage of its own time and the valuable time of the Court. If the provisions are made in the code making it obligatory on the part of officer in charge of a police station to take into possession any documents produced by the accused and consider it at the time of formation of final opinion by him, accused can be saved from undue harassment and agony on the one hand and it will save valuable time of the courts on the other hand. It will be more appropriate that Magistrate should be empowered to take into possession the documents produced by the accused on refusal by the police to take them in their possession and give necessary direction to the officer in charge of the police station to consider such documents after making necessary inquiry about their genuineness or otherwise. This is a procedural lacuna and to achieve this object necessary amendment as suggested in suggestions, may be incorporated in the Code.(1969) 21 Law Ed 2^nd 607; 393 US 374. In Bamer Vs. Wingo  (1972) 33 Law Ed 2^nd 101; 407 US 514 it was held: ”the right to speedy trial is generally different from any of the other rights enshrined in the Constitution for the protection of the accused. In addition to the general concern that all accused person s be treated according to decent and fair procedure there is a societal interest in providing a speedy trial which exist separate from and at times in opposition to, the interest of the accsued.

References

• (1970) 26 Law Ed 2d 26.
• AIR 1978 SC  597.
• AIR 1950 SC  97.
• Supra  note 3.
• AIR 1979 S2
• Supra note 3.
• State of Maharasthra Vs. Champalal Puna ji Shah, AIR 1981 SC 1975. See also T.V. Vatheeswaran vs. State of Tamil Nadu, AIR 1983 SC 361.
• Section 167 of the Code.
• Objects and reasons, Code of Criminal Procedure (Amendment) bill, 1973 S.O.R. Gaz. Of India,
• 10.12.1970, Part II Section 2. Extra. p.1309.
• S. 167 (6) of the Code.
• Ibid.
• Jay Shankar Jha Vs. State, 1982 Cri. L.J. 744 (Cal.). See also Ram Kumar Vs. State, 1981 Cr. L.J. 1288 (Cal.)
• Ram Kumar Vs. State, 1981 Cri. L. J. 1288 (Cal.) See also Ram Baksh Vs. State of West Bengal, 1983, Cri. L.J. 39.
• Jagan Nath Vs. State, 1983 Cri. L. J. 1748 (Mad.).
• Raj Singh Vs. State, 1985 Cri. L. J. NOC 41 (Del.).
• State Vs. Jai Bhagwan, 1985 Cri. L. J. 932 (Del.).
• S. 167 of the Code.
• Supra  note 3.
• Mohd. Saleem Khan Vs. State of UP AIR 1982 SC 1096. See also Mantoo Mazoomdar Vs. State of Bihar Air 1989 SC 847.
• Ibid.
• AIR 1971 Pat. 237.
• Kuldeep Singh s. State of J & K, 1971 Cri. L. J. 1941.
• Sarit Kumar Bose Vs. State of UP, 1984 ALL. L. J. 344.
• D.R. Devarajan Vs. Sate of Tamil Nadu, 1985 Cri. L J. 1614.
• Schedule I of the Code.
• S.50 (1) of the Code.
• Niranjan Singh Vs. Prabhakar AIR 1980 SC 785.
• State of Gujarat Vs. Lal Singh AIR 1981 SC 368.
• State of Gujarat Vs. Lal Singh AIR 1981 SC 368.
• AIR 1978 SC 429. Quoted from 1. Bovu. Law Dict., Rawles III Revision p. 885 – quoted in Judicial Discretion – National college of the State Judiciary, Reno, Vevada page 14.
• Ibid.
• Supra Note 6.
• Id.
• Gurcharan Singh Vs. State (Delhi Admn.) AIR 1978 SC 179.
• Id.
• Id.
• Id.
• Id.
• Gurbux Singh Vs. State of Punjab AIR 1980 SC 1932.
• N.K. Nayar Vs. State of Maharashtra 1985 Cri. L. J.1887.
• Supra Note 15.
• Id.
• (1966) 384 US 436.
• S. 24.
• S. 304.
• Tara Singh Vs. State, AIR 1951 SC 441.
• AIR 1978 SC 1025.
• Supra note 1.
• Ram Lalwani Vs. State, 1981 Cri. L. J. 97 (Del.).
• Anil G. Merchant Vs. Director of Revenue Intelligence Madras, 1986 Cri. L. J. 1273 (Mad.)
• Munna singh Vs. State of M.P., 1989 Cri. L. J. 380 MP.
• Abdul Rajak Hazi Mohd. Vs. Union of India, 1986, Cri. L. J. 2011 (Bom.).
• AIR 1978 SC  597.
• AIR 1978 SC 1360
• H.M. Hoskat Vs. State of Maharashtra, Air 1978 SC 48
• AIR 1981 SC  928.
• AIR 1981 SC  928.
• Supra note 5.
• Supra note 13.
• AIR 1986 SC  991.
• AIR 1981 SC 928.
• S. 50 (1)
• Shivaj Vs. State of Karnataka, 1987 Cri. L. J. 1750.
• Govind Prashad Vs. State of West Bengal, 1975 Cri. L. J. 1249.
• Kaiser Otmar Vs. State, 1981 Cri. L. J. NOC 208 Mad.
• AIR 1971 SC 813. See also Rajnikant Vs. State of Orissa,  1975 Cri. L. J. 1983.
• Zakiamlova Vs. Deputy Commissioner, Cocher,  1972, Cri. L. J. 578.
• Supra note 3 second case.
• Supra note 3.
• Kashmir Singh Vs. State of Punjab,  1983 Cri. L. J. 51.
• Central Bureau of investigation Vs. Anupam Kulkarni, 1992 Cri. L. J. 2768.
• Gian Singh Vs. State (Delhi Administration), 1981 Cri. L. J. 100. See also Trilochan Singh Vs. State (Delhi Administration), 1981 Cri. L. J. 1773.
• State Vs. Dharam Pal and Ors., 1982 Cri. L. J. 1103.
• State Vs. Mehar Chand 1969 Delhi Law Times 1979.
• Karuppasamy Vs. State of Tamil Nadu, 1989 Cri. L. J. (NOC) 217.
• S. Harsimran Singh Vs. State of Punjab, 1984 Cri. L. J. 253.
• AIR 1937 Sind 251.
• State of Kerala Vs. K. V. Sadanandan, 1984 Cri. L. J. 1823.
• Raj Kapoor Vs. State,  1980 Cri. L. J. 202 (SC), See also Parida Vs. State of Orissa, AIR 1975 SC 1485.13
• I. N. Jayadeesh Vs. State of Kerala, <14/strong> 1980 Cri. L. J. 906.
• Supra note 2.
• Proviso, Sub-section (2), S. 167 of the Code.
• Arjun Singh Vs. State of Rajasthan, 1987 Cri. L. J. 1236; Reroz Vs. State, 1986 Cri. L. J. 409; Jagdish Vs. State of MP,  1984 Cri. L. J. 79; Jai Singh Vs. State of Haryana, 1980 Cri. L. J. 1229; Tarsem Kumar Vs. State,  1976 Cri. L. J. 1303; L. R. Chawla Vs. Murari, 1976 Cri. L. J. 212.
• Ibid.
• Umeshankar Vs. State of MP, 1982 Cri. L. J. 1187 (MP).
• Pandi Vs. State, 1971 Cri. L. J. 1503 (Mad.).
• Bashir Vs. State of Haryana, AIR 1978 SC 55. See also Babu Bhai Parshotam Das Vs. State of Gujarat, 1982 Cri. L. J. 248; Mangal Hemram and Ors.Vs. State of Orissa, 1982 Cri. L. J. 687.
• Supra  nonte 23.
• Raghubir Singh Vs. State of Bihar, AIR 1987 SC 149; Bijyakantan Mohanty Vs. State,  of 1976 Cri. L. J. 211; jagir Singh Vs. State, 1976 Cri. L. J. 1007 (Del.).
• Delhi Administration Vs. Sanjay Gandhi, AIR 1978 SC 961; Gurcharan Singh Vs. State (Delhi Admn.) AIR 1978 SC 179.
• Chambrs Vs. Florida, 1940 309 US 227, 240-241; 84 L. Ed. 716, 724; 60 S Ct. 472.
• (1966) 384 US 436.
• AIR 1954 SC 300.
• State of Bombay Vs. Kathi Kalu Oghad AIR 1961 SC 1808. see also Supra note 2.
• Bansilal Vs. M.P. Mistry, AIR 1961 SC 29.
• J. Joseph Vs. Narayanan, AIR 1964 SC 1552.
• Supra  note 4.
• Supra note 5.
• Supra  note 4.
• Supra note 5.
• Supra note 2.
• Supra note 4.
• Supra note 5.
• Supra note 4.
• S. 161 of the Code.
• S. 161 (2).
• S. 179 of Indian Penal Code, 1860.
• Supra note 5.
• Supra note 2.
• Ibid.
• S. 163 (1) of the Code.
• S. 163 (2) of the Code.
• S. 24 of Indian Evidence Act.
• Id. S. 25.
• Id. S. 26.
• Proviso to S. 164 of the code.
• S. 164 (1).
• S. 27 Indian Evidence Act.
• Mohammad Inavatullah Vs. State of Maharasthra, AIR 1976 SC 483.
• Ibid.
• State of Gujarat Vs. R, AIR 1939 PC 47. See also Veera Ibrahm Vs. State of Mahashtra, AIR 1976 SC 1171.
• Ranchodji Khimji Vs. Tempto Jehangir, AIR 1961 Gu. 137.
• Lakhan Lal Baronia Vs. State of UP, 1991 Cri. L. J. 2546.
• Bimalkant Vs. M. Chandrashekhar 1986 Cri. L. J. 689
• Sheonandan Prasad and Ors. Vs. State of Bihar, 1972 Cri. L. J. NOC 26 (Pat.)
• Supra note 5.
• Vinod Kumar Vs. State 1981 Cri. L. J. 927 (Del.).
• Mahipal Maderna and others Vs. State of Rajasthan, 1971 Cri. L. J. 1405.
• K.K. Yadav Vs. State of Gujarat, AIR 1966 SC 821.
• Dalbir Kaur Vs. State of Punjab, 1976 4 SCC 158.
• Supra note 5.
• Supra note 58.
• S. 53 of the Code.
• S. 5 of Identification of Prisoners Act, 1920.
• Supra, note 5.
• Supra note 5.
• AIR 1979 SC 14.
• Shankarlal Vs. State of Gujarat AIR 1965 SC 1251. See also Ram Rakha Vs. Sat Pal 1973 Cri. L. J. 93.
• V.S. Kuttan Pillai Vs. Ramakrishnan AIR 1980 SC 185.
• Ibid.
• S. 165 of the code.
• State of Rajasthan Vs. Rehman AIR 1960 SC 210. See also State of Assam Vs. upendra Nath Rajkhowa  1975 Cri. L. J. 354.
• Supra Note 9.
• Supra note 10
• Dr. Pratap Singh and Ors. Vs. Director of Enforcement, Foreign Exchange Regulation Act and Ors. AIR 1985 SC 989.
• State of haryana Vs. Bhajan Lal  AIR 1992 SC 604.
• S. 165 (1) of the Code.
• Ibid.
• Supra note 8.
• S. 165 of the Code.
• Supra note 23. See also Mithu Khan Vs. State of Rajasthan AIR 1969 Raj. 121, State of UP Vs. Ram Snehi 1969 Cri. L. J. 952; N. Krishna Chandra Vs. State of Orissa 1984 Cri. L. J. 1409.
• Radha Kishan vs. State of UP AIR 1963 SC 822. See also Purushottam Das Vs. State 1975 Cri. L. J. 309; Hari Kishan Vs. State of UP  1970 ALL L.J. 1337.
• Naba kumar Das Vs. State of West bengal AIR 1974 SC 777 See also Om Wati Vs. State (Delhi Admn.) 1990 Cri. L. J. 304.
• State of Maharashtra Vs. natwar Lal AIR 1980 SC 593.
• AIR 1972 SC 886.
• Pooran Vs. Director of Inspection  93 ITR 585 (1974).
• Jamuna Vs. state of Bihar 1974 Cri. L. J. 890 Pat.
• Nandini Satpathy Vs. K. L. Dhani  AIR 1978 SC 1025.
• Kullapan Vs. State of Kerala  1986 Cri. L. J. 271.
• In re C.W. Case AIR 1948 Mad. 489.
• Kunju Kuttu Vs. State of Kerala 1988 Cri. L. J. 504.