Report No. 41
24.51. Section 342(2.-does it offend Article 20(3).-
Section 342(2) is ambivalent in its import. The first part rightly provides that the accused shall not render himself liable to punishment by refusing to answer the questions put by the Court or by giving false answers to them, but the section immediately gives the warning to the accused that "the Court and the jury (if any) may draw such inference from such refusal or answers as it thinks just." It has been suggested that in view of the clear possibility of the Court drawing an adverse inference from a refusal to answer, the section offends Article 20(3) of the Constitution, in that its indirect effect may be to compel the accused to be a witness against himself. We note that two learned authors1 have expressed doubts about the constitutional validity of the provision.
1. Seervai Constitutional Law, (1966), p. 442, para. 12.43; Basu Commentary on the Constitution, (1962), Vol. 2, pp. 3.-37.
24.52. View of High Courts.-
The matter has not come up before the Supreme Court, but High Courts have held that the provision does not conflict with the Constitution. The reasoning on which one of the decisions is based1 is that the drawing of an adverse inference is a far cry from being compelled to be a witness. A distinction is made between "evidence" and "statement" and it is said that the statement of the accused is not "evidence". It is also stated2 that no oath is administered to the accused and therefore he is not a "witness". We are afraid, however, that it is possible to argue that the permissibility of drawing an adverse inference would, at least in some cases, amount to an indirect compulsion of the accused to enter the witness box.
Where the prosecution evidence is strong, this will be particularly so. It cannot be denied that the accused will be placed in a dilemma: he must either answer the questions under section 342 or enter the witness box under section 342A. The first course compels him to incriminate himself, because the answers can be used against him. The second course also compels him to incriminate himself, because, once he enters the witness box, he is bound to be cros.-examined.
It may be said that the privilege against sel.-incrimination operates regardless of the ultimate result, and emphasises that certain means cannot be adopted even for a righteous end. In a Calcutta case,1 the Judges observed.-
"If a person accused of an offence refuses to answer a question on the ground that by answering it he will incriminate himself or to produce a document on the ground that it will incriminate him he will in a way be admitting his guilt, and yet, if effect is to be given to Article 20(3) of the Constitution, he will, in effect be protected from being compelled to furnish evidence of his admitted guilt and protected even by the issue of, if necessary, a writ. This may seem odd, but in balancing the advantages of an effective detection of crime, with information collected from all sources, against the observance of civilised standards of enquiry and the upholding of the dignity of man, the framers of our Constitution like those of the Constitution of America, have given preference to the latter."
1. Benson Lal v. State, AIR 1956 All 341 (344), para. 33 (DB).
2. B.N. Ramakrishna (in re:), AIR 1955 Mad 100 (119), para. 60 (Ramaswami J.).
3. Collector of Customs v. Calcutta Motor and Cycle Co., AIR 1958 Cal 682 (690), para. 19 (P.B. Chakravarti C.J. and K.C. Das Gupta J.).
24.53. Amendment recommended.-
We, therefore, recommend that the latter part of section 342(2) be omitted. Since section 342(3) provides that the answers (whether false or true given by the accused may be taken into consideration in such inquiry or trial, there is no need to state in section 342(2) that the court "may draw such inference from such answers as it thinks just."
24.54. Section 342(3).-
The latter part of section 342(3) provides that the answers given by the accused may be put in evidence for or against him in an inquiry into, or trial for, any other offence which such answers may tend to show he has committed. Such use of the answers for the accused would be governed by the Evidence Act. Reference may be made to su.-sections (1), (2), (3) of section 21 and illustrations (c), (d) and (e) thereto, and also sections 157 and 159, of the Evidence Act.
The answers given by the accused may amount to an admission of some other offence or may by themselves constitutes an offence, e.g., contempt of court or defamation. As regards the latter case, the question may arise whether the answers enjoy any absolute protection. In a Bombay case1 it was held, that the criminal law of defamation being codified in section 499 of the Indian Penal Code, the case must (if an exemption is claimed) be brought within the four corners of one of the nine exceptions given below that section.
The Court followed a Calcutta decision,2 wherein the judgment contains a comprehensive discussion of the law of defamation under the Indian Penal Code. A wider view was taken in one case by the Madras High Court,3 holding that such answers enjoy absolute protection, and that this rule of the English law was not intended to be abrogated by section 499 of the Indian Penal Code; but this was ove.-ruled in a latter case.4 The Allahabad High Court5 has taken the wider view, recognising absolute protection for answers given by the accused.
These decisions, however, are not based on the effect of section 342(3), but on an interpretation of section 499, Indian Penal Code. Most courts have assumed that the answers given by the accused can be used in evidence in a latter prosecution for defamation filed against the accused, and have proceeded to deal with the case on the other legal issues. We have considered the question whether this position requires to be disturbed. It was stated before us, that the accused is in a less favourable position than a witness to whom section 132, Evidence Act, gives full protection.
Though the accused is not, in law, "compelled" to answer the questions put under section 342 (so that the analogy of section 132 may not be strictly appropriate), yet the accused has to answer the questions in order to save himself from conviction for the offence for which he is under trial. Such compulsion as there may be is, in our view, no compulsion in law. If the accused, while answering such questions, commits an offence, such as defamation, contempt of court, or uttering obscene words, there is no reason why he should not be punishable. Any privilege that the substantive law itself recognises in such cases would, no doubt, be available; but the procedural law need not, in our opinion, add its own special cloak of protection to the accused.
1. Bhai Shanti v. Umrao Amir, ILR 50 Born 162: AIR 1926 Born 141 (143) (FB).
2. Satish Chandra v. Ram Dayal, ILR 48 Cal 388: AIR 1921 Cal 1: 24 CWN 982 (SB).
3. Venkata Reddy (in re:), 1912 ILR 36 Mad 216 (FB).
4. Tiruvengade Mudali v. Tripuransu Udai, 1926 ILR 49 Mad 728 (737): AIR 1926 Mad 906 (FB)
5. Muni Pathak, ILR 50 All 169: AIR 1927 All 707 (708) (Dalai J.).
24.55. Section 342(4).-
It would be more appropriate to place su.-section (4) of section 342 immediately after su.-section (1) instead of at the end.
24.56. Section 342A.-
Under section 342A, (which was inserted in 1955), the accused is now a competent witness for the defence and can give evidence in disproof of the charges made against him or against his c.-accused. Are the words1 "in disproof of the charges" intended merely to prevent the accused from implicating other c.-accused ? Or do they also shut out cros.-examination of the accused as to the main offence? The position in this respect appears to be somewhat obscure.
It is also not clear as to what is the scope of the cross¬exainination of the accused when he offers himself as witness. Can questions regarding his character or impeaching his credit be put in cros.-examination ? If such questions are permissible, to what extent can he be questioned in respect of previous convictions?2 All these matters may prove to be controversial, but having regard to the fact that section 342A has been recently introduced and apparently has not created any difficulty so far, we are not recommending any elaboration of the section.
1. The wording follows that of section 7, Prevention of Corruption Act, 1947.
2. Cf. section 1 of the (English) Criminal Evidence Act, 1898.
24.57. Section 343.- No change is needed in section 343.
24.58. Section 344(1A) provides for the postponement of the commencement of an inquiry or trial and for adjournment during the inquiry or trial. It empowers the court to remand the accused, if in custody, for not more than 15 days at a time. The explanation at the end of the section states that if sufficient evidence has been obtained to raise a suspicion that the accused may have committed an offence, and it appears likely that further evidence may be obtained by a remand, this is a reasonable cause for a remand, mainly because of the explanation in these terms, the view has been taken that remands can be given by Magistrates under section 344 even at the stage of investigation and even before a court has taken cognizance of the offence on a police report.
24.59. Detention under section 167(1).-
In our opinion, this reliance on section 344 is not correct, as the explanation cited above is only an explanation to that section and cannot be read into section 167. This lax view of the two sections seems to have been taken in order to avoid the practical difficulty that arises in cases where investigation is prolonged, the accused has been arrested and detained in custody, and the maximum period of 15 days allowed for such detention under section 167(2) is found to be inadequate. The Code, however, makes a clear distinction between detention in custody before taking cognizance and detention in custody after taking cognizance. The former is covered by section 167 and the latter by section 344. The two are, in our opinion, mutually exclusive and ought to be kept so.
24.60. Maximum period should be increased.-
There is, however, no doubt that serious offences take a long time for investigation and the police often find it necessary to place the accused person under arrest even before the investigation is quite complete. The only way of solving this difficulty appears to be to increase the period of remand mentioned in section 167(2) to "fifteen days at a time and sixty days in the whole". There may be some risk that if this amendment was made in section 167(2) remands would be asked for, and granted, as a matter of routine up to the permissible limit of 60 days. But such an amendment appears to us to be unavoidable.
