Report No. 69
VI. Position of the Accused
70.28. It is now necessary to deal with an important point relating to the accused. We have referred above to two privileges: the right to silence (the right not to be questioned) and the privilege against self-incrimination. When the accused offers himself as a witness, he certainly waives the first privilege, referred to above, namely, the right not to be questioned. The question arises whether he waives the second privilege also, namely, the right not to be compelled to answer incriminating questions. If he is not deemed to have waived the second privilege, the next question is, is it desirable to make a provision in the opposite direction, that is to say, to the effect that he can be compelled to answer incriminating questions and to what extent?
70.29. In India, in 1955, when the accused was made a competent witness in all criminal cases by amending the Code of Criminal Procedure, 1898, then in force, this question was not dealt with specifically in the relevant statutory provision. But there appears to be need for a specific provision on the subject. Sarkar has drawn attention to the need for specific provisions as to the situation where the accused becomes a witness. He has stated:1
"As to the competency of an accused to testify for the defence, it was at long last recognised by the legislature by a slovenly addition of section 342A to the Criminal Procedure Code, 1898 (by Act 26 of 1955) which leaves unsolved many important problems like the answering of any criminating question by the accused in his cross-examination, or any question tending to show that the accused has committed or been convicted of or been charged with any offence other than that wherewith he is then charged, or is a bad character & C. & C. These and many other questions would naturally crop up when an accused comes to offer himself as a witness for the defence. These and other intricate questions have been dealt with in the English Criminal Evidence Act, 1898, (61-62 Vict., C. 36), section 1(e), (f), (g) & c. of that Act. Section 342 of the Burma Criminal Procedure Code, as amended by Burma Act, 13 of 1945, which proceeds on the lines of the English Criminal Evidence Act, 1898, is a better piece of legislation."
1. Sarkar Law of Evidence, (1965) Preface 5.
70.30. We are dealing with this question because it is one of importance, and also of some difficulty. Judicial decisions are scanty, and take the view1 that the accused is in the same position as a witness. But the question is not merely whether what has been laid down should be codified. There are a few other aspects also to be considered. In Laxmipat's ease2 the following observations were made by the Supreme Court in regard to a person who was not the accused, after referring to article 20(3) of the Constitution and section 132, Evidence Act:
"A person who voluntarily answers questions from the witness box waives the privilege which is against being compelled to be a witness against himself because he is then not a witness against himself but against others Section 132 of the Indian Evidence Act sufficiently protects him since his testimony does not go against himself. In this respect the witness is in no worse position than the accused who volunteers to give evidence on his own behalf or on behalf of a co-accused, There foo the accused waives the privilege conferred on him by the article3, since he is subjected to cross-examination and may be asked questions incriminating him."
The observations were, however, obiter.
1. (a) Khandaszvami (in re:), AIR 1957 Mad 727 (734): (b) People's Insurance Co. v. Sardul Singh, AIR 1962 Pun 101.
2 Laxmipat Choraria v. State of Maharashtra, AIR 1968 SC 938 (944), para. 13 (on appeal from ILR 1966 Born 347.).
3. Emphasis added.
70.31. Two aspects to be borne in mind.-
So far as the narrow legal aspect of the matter is concerned, in taking a decision on the question, two sides of the mater must be borne in mind. On the one hand, the Code of Criminal Procedure can only make the accused a competent witness; it cannot make him a compellable witness, in view of the provision in article 20(3) of the Constitution. And, if it cannot make him a compellable witness, then it could be argued (in theory) that it cannot make him a compellable witness in relation to particular questions.
On the other hand, however, if incriminating questions are entirely excluded when the accused becomes a witness, cross-examination of the accused (as a witness) would be rendered almost impossible. Practical considerations, thus justify the later course. By this course, the constitutional provision in article 20(3) is not violated, since the accused voluntarily offers himself as a witness and it would be a reasonable view to take that he waives the privilege.
70.32. Recommendation as to the accused.-
We are of the view that the position regarding the extent to which the accused, when appearing as a witness, may be compelled to incriminate himself should be dealt with more specifically than at present and that in the interests of neatness and clarity the situation of the accused should be dealt with in a separate sub-section.
70.33. Distinction between accused and witness.-
It may be noted that in England, in the case of the common law privilege of refusing to answer incriminating questions, it is perfectly lawful and proper for the question to be put, and it is for the witness to claim privilege if he thinks fit1. But, as already stated, an accused person who elects to give evidence on his own behalf cannot claim privilege in respect of the offence with which he is charged. There is a specific statutory provision on the subject2 in England.
1. Boyle v. Wiseman, (1855) 10 Exch 647.
2. Para. 70.24, supra.
70.34. Question not to impeach credit.-
This is as regards the incriminating questions which are relevant to the matters in issue. So far as questions which are put to a witness relating to his credit are concerned, the matter pertains to section 148. Should be accused have to face every question which is asked to impeach his credit, including questions about his past offences or convictions? That point will be considered under section 148.
70.35. Recommendations as to section 132.-
Our recommendation, then, on the subject of cross-examination of the accused concerning his capacity as a witness under section 132, is as follows:-
An accused person who offers himself as a witness in pursuance of section 315 of the Code of Criminal Procedure, 1973, may be compelled to answer questions which incriminate him as to the offence charged. This, provision should be added in section 132 of the Act. The matter should be dealt with in a separate sub-section.
VII. Provis.- Extension to Spouse
70.36. Section 132, Proviso-Protection for the wife of the witness.-
This takes us to the proviso to section 132, which (in effect) provides that if a witness is compelled to give certain answers to incriminating questions, the answers shall not subject him to any arrest or prosecution, or be proved against him in any criminal proceeding, except a prosecution for giving false evidence. It is to be noted that there is no protection for a question which may incriminate the spouse of the witness. An interesting point that can be raised in this connection is, how far a witness ought to be forced to incriminate his spouse.
The principle that the peace of families should be preserved, is well-known to the law of evidence. It is on this principle that section 122 protests from disclosure communications during marriage. The protection given by section 122 rests upon the ground that the admission of such testimony would have a powerful tendency to disturb the peace of families and to weaken the mutual confidence upon which the happiness of the married status depends.
70.37. On this principle, it is desirable that under section 132 also, a witness should not be placed in a position where he would be made to answer a question that might harm the interests of the spouse. It is true that section 120 makes the parties and their spouses competent witnesses. But that does not necessarily imply that there should be no protection for particular kinds of communications, or questions when are of importance with reference to the husband-wife relationship.
70.38. In English law1 a witness can refuse to answer questions incriminating a spouse. For civil cases, this is now specifically recognised by statute2. In criminal cases, the rule that the privilege extends to the spouse, is a rule which applies by virtue of the common law3. The rule at common law is that no witness, whether party or stranger, is (except is specified cases compellable to answer any question or to produce any document, the tendency of which is to expose the witness (or the wife or the husband of the witness), to any criminal charge, penalty or forfeiture.
1. Halsbury's, 3rd End., Vol. 15, p. 422, para. 760.
2. Civil Evidence Act, 1968, section 14(1)(b).
3. R. v. All Saints Worcester, (1817) 6 M&S 194 (201) (spouse).
70.39. One possible objection to the suggestion made above may be answered here, it may argued that in England the witness is completely protected and may refuse to answer incriminating questions, while, in India, the privilege of the witness is limite.- he must answer the question, but once he gives the answer, is not used against him later1. This distinction, however, is not of, any practical consequence for the point under consideration, because the quality of the privilege is not material; what needs to be stressed is, that whatever protection the law gives to a witness in respect of criminating questions concerning the witness himself, should be available in respect of incriminating questions concerning his or her spouse also.
1. Section 132, proviso.
70.40. We, therefore, recommend that section 132 should be extended to questions incriminating the spouse.