The prohibition against self-incrimination is one of the fundamental rules of the common law. The characteristic feature of this rule is that the accused is presumed to be innocent and that it is for the prosecution to establish his guilt and the accused need not make any statement if he does not want to make his statement.
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In India, this privilege is embodied in Article 20 (3) which reads:
ADVERTISEMENTS:
“No person accused of an offence shall be compelled to be a witness against himself.” This provision contains the following components: (1) It is a right pertaining to a person accused of an offence. (2) It is a protection against compulsion to be a witness. (3) It is a protection against such compulsion resulting in his giving evidence against himself.
(1) It is a right pertaining to a person accused of an offence:
The privilege under Article 20 (3) Is confined to an accused only. In R.K. Dalmia vs. Delhi Administration, AIR 1962 S.C. 1821, it has been held that a person against whom an offence, has been leveled which in normal course is not necessary that the actual trial or inquiry should have started before the court.
In United States, the protection of self-incrimination is not confined to the accused only. It Is also available to a witness. Such is the position In England also. Hence, the protection under Article 20 (3) is a narrower concept than the American and English concepts.
(2) It is a protection against compulsion to be a witness:
The protection under Article 20 (3) is against protection to be a witness. In M.P. Sharma v. Satish Chandra, AIR 1954 S.C. 300, the Supreme Court interpreted the expression “to be a witness” very widely so as to include oral, documentary and testimonial evidence.
ADVERTISEMENTS:
‘To be a witness” means nothing more than to furnish evidence and evidence can be furnished through the lips, by production of a thing or a document, or in any other mode. Every positive volitional act which furnishes evidence is testimony, and testimonial compulsion connotes coercion which perceives the positive volitional evidentiary acts of the person as opposed to the negative attitude or silence or submission on his part, which is not permissible under Article 20 (3).
It has been held that the information given by an accused person after his arrest to a police officer who leads to discovery of a fact under Section 27 of the Evidence Act is admissible in Evidence under Article 20(3). In Pardeshi vs. State of U.P., AIR 1957 S.C. 211, an accused who was charged with committing a murder, stated to the police that he would give the clothes of the deceased, which he had placed in a pit and thereafter he dug out the pit in the presence of the witnesses and took out the clothes which were identified as the clothes belonging to the deceased. The Supreme Court held that the statement of the appellant was admissible in evidence.
(3) Protection against compulsion to be witness against himself:
The protection available to the accused under Article 20 (3) is against compulsion to be a witness against himself. The accused may, however, waive voluntarily his privilege by entering into the witness-box or by giving evidence voluntarily on request. In State of Bombay v. Kathi Kalu, AIR 1961 S.C. 1808, it has been held that request is admissible against the person giving it.
Compulsion means duress which Includes threatening, beating or imprisoning the wife, parents or child of a person. But where the accused makes the confession without any inducement, threat or promise, the protection of Article 20 (3) does not apply in his case.