# R. KRISHNA !YER, JASWANT SINGH AND v. D. TULZAPURKAR, JJ.J - **Citation:** [1978] 3 S.C.R. 608 - **Court:** Supreme Court of India - **Decided:** 1978-04-07 - **Case number:** Civil Appeal No. 315 of 1978 - **Bench:** V. R. Krishna !Yer, Jaswant Singh, V. D. Tulzapurkar - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/r-krishna-yer-jaswant-singh-and-v-d-tulzapurkar-jj-j-7371 - **Pages:** 44 ## Headnote c D E F G H Penal Code, (Act V). 1860-S.179-Whether mens rea forms a necessary component of S. 179-Defences open under Section 179 l.P.C. rlw Section 161 Criminal Procedure Code, Criniinal Procedure Code, 1973, S. 161(2)-Paraineters of Section 16lt2), what are-Whether the tendency to expose a person to a criminal charge embrance answers which have an inculpatory impact in other criminal cases in posse or in esse elsewhere,-"Any person supposed to be acquaintr:d'' in S. lbl (1) Whether includes an accused person or only a lvitness-When does an answer acquire confessional status within the meaning of S. 27 of Evidence Act. "Right to silence", when applicable-Constitutional right under Art. 20(3) exa1nined, explained and made explicit-Meaning of the word "accused" occurring in Art. 20(3) whether it includes a suspect-accused-Constitution of lndia, 1950, Art. 20(3). Examination of a witness by Police under S. 161-Eflect of proviso and marginal note, Cr!. P C., 1973. The appelJant, a former Chief Minister of Orissa and one time Minister at the National level was directed to appear at the Vigilance Police Station. Cuttack, in September, 1977 for being examined in connection with a case registered against her by the Deputy Superintendent of Police, Vigilance, Cuttack u/s 5(2) read withs. 5(1)(d) and (e) of the Prevention of Corruption Act and u/s. 161/165, 120B and 109 I.P.C. On the strength of the first information. in which the appellant, her son and others were shown as accused persons investigation was commenced. During the course of the investigation it was that she was interrogated with reference to a long string of questions, given to her in writing. The gravamen of the accusation was one of acquisition of assets disproportionate to the known, licit sources of income and probable resources over ihe years of the accused, who occupied a public position and exercised public power for a long spell during which the appellant by receipt of illegal gratification aggrandised herself. Exercising her right of 'silence guaranteed under Art. 20(3) of the Constitution, the appel1ant refused to answer, with the result a, complaint was filed by the Deputy Superintendent of Police, Vigilance (Directorate of Vigilance) Cuttack, against the appellant, under s. 179 I.P.C. before the Sub-Divisional Judicial Magistrate, Sadar, Cuttack. The Magistrate took cognizance of the offence and issued summons of appearance against the appellant-accused. Ag.crieved by the action of the Magistrate and urging that the complaint did not and could not disclose an offence, the accused-appellant moved the High Court under Art. 226 oi the CciJ.stitution as well as under s. 401 of the Cr. P. Code, challenging the validity of the Magisterial proceeding. The broad submission, unsuccessfully made before the High Court, was that the charge rested upon a failure to answer interrogations by the police but this charge was unsustainable because the umbrella of Art. 20(3) of the Constitution and the immunity under Section 161(2) of the Cr. P. Code were wide enough to shield her in her refusal. The plea of unconstitutionality and illegality, put fonvard by this pre-emptiye proceeding was rebuffed and so th~ appellant appealed to this Court by certificate granted under Art. 132(1) resulting in two appeals. Allowing the appeals a.nd quashing the prosecution procecdinrs the Court • •. - ~ .... / 1" ' ... • .. - .• NANDINI SATPATHY V. DANI 609 HELD : 1. When a woman is commanded into a police station violating A the commandment of Section 160 of the Code when a heavy load of questions is handed in some permissible some not, where the area of constitutional protection against self-crimination is (until this decision) blurred in some aspects, when, in this Court, counsel for the accused unreservedly undertakes to answer in the light of the law herein laid down, when the object of the prosecution is to compel contrite compliance with Section 161 Cr. P.C. abandoning all contun1acy a ## Text _Characters 0–39,669 of 144,344. This is a partial read: ask again with offset=39669 for what follows._ 608 A NANDINI SATPATHY V· DANI (P.L.) AND ANR. April 7, 1978 B (V. R. KRISHNA !YER, JASWANT SINGH AND V. D. TULZAPURKAR, JJ.J c D E F G H Penal Code, (Act V). 1860-S.179-Whether mens rea forms a necessary component of S. 179-Defences open under Section 179 l.P.C. rlw Section 161 Criminal Procedure Code, Criniinal Procedure Code, 1973, S. 161(2)-Paraineters of Section 16lt2), what are-Whether the tendency to expose a person to a criminal charge embrance answers which have an inculpatory impact in other criminal cases in posse or in esse elsewhere,-"Any person supposed to be acquaintr:d'' in S. lbl (1) Whether includes an accused person or only a lvitness-When does an answer acquire confessional status within the meaning of S. 27 of Evidence Act. "Right to silence", when applicable-Constitutional right under Art. 20(3) exa1nined, explained and made explicit-Meaning of the word "accused" occurring in Art. 20(3) whether it includes a suspect-accused-Constitution of lndia, 1950, Art. 20(3). Examination of a witness by Police under S. 161-Eflect of proviso and marginal note, Cr!. P C., 1973. The appelJant, a former Chief Minister of Orissa and one time Minister at the National level was directed to appear at the Vigilance Police Station. Cuttack, in September, 1977 for being examined in connection with a case registered against her by the Deputy Superintendent of Police, Vigilance, Cuttack u/s 5(2) read withs. 5(1)(d) and (e) of the Prevention of Corruption Act and u/s. 161/165, 120B and 109 I.P.C. On the strength of the first information. in which the appellant, her son and others were shown as accused persons investigation was commenced. During the course of the investigation it was that she was interrogated with reference to a long string of questions, given to her in writing. The gravamen of the accusation was one of acquisition of assets disproportionate to the known, licit sources of income and probable resources over ihe years of the accused, who occupied a public position and exercised public power for a long spell during which the appellant by receipt of illegal gratification aggrandised herself. Exercising her right of 'silence guaranteed under Art. 20(3) of the Constitution, the appel1ant refused to answer, with the result a, complaint was filed by the Deputy Superintendent of Police, Vigilance (Directorate of Vigilance) Cuttack, against the appellant, under s. 179 I.P.C. before the Sub-Divisional Judicial Magistrate, Sadar, Cuttack. The Magistrate took cognizance of the offence and issued summons of appearance against the appellant-accused. Ag.crieved by the action of the Magistrate and urging that the complaint did not and could not disclose an offence, the accused-appellant moved the High Court under Art. 226 oi the CciJ.stitution as well as under s. 401 of the Cr. P. Code, challenging the validity of the Magisterial proceeding. The broad submission, unsuccessfully made before the High Court, was that the charge rested upon a failure to answer interrogations by the police but this charge was unsustainable because the umbrella of Art. 20(3) of the Constitution and the immunity under Section 161(2) of the Cr. P. Code were wide enough to shield her in her refusal. The plea of unconstitutionality and illegality, put fonvard by this pre-emptiye proceeding was rebuffed and so th~ appellant appealed to this Court by certificate granted under Art. 132(1) resulting in two appeals. Allowing the appeals a.nd quashing the prosecution procecdinrs the Court • •. - ~ .... / 1" ' ... • .. - .• NANDINI SATPATHY V. DANI 609 HELD : 1. When a woman is commanded into a police station violating A the commandment of Section 160 of the Code when a heavy load of questions is handed in some permissible some not, where the area of constitutional protection against self-crimination is (until this decision) blurred in some aspects, when, in this Court, counsel for the accused unreservedly undertakes to answer in the light of the law herein laid down, when the object of the prosecution is to compel contrite compliance with Section 161 Cr. P.C. abandoning all contun1acy and this is achieved by the undertaking, when the pragmatic issues involved are so com_plex that effective barricades against police pressure to secure self-incrimination need more steps as indicated in this judgment that persistence B in the prosecution is seeming homage to the rule of law and quashing the prosecution secures the ends of justice and the right thing to do is to quash the prosecution as it stands at present. That this dimension of the problem has escaped the Executive's attention for reasons best left unexplored is regrettable. [650 H, 65! A-Cl It is quite probable that the very act of directing a woman to come to the police station in violation of section 160(1) Cr. P.C. may make for tension and C J negate voluntariness. It is likely that some of the questions are self-criminatory. l\.fore importantly, the admitted circumstances are such that the trying magistrate may have to hold an elaborate enquiry about other investigations, potential and actual, to decide about the self-accusatory character of the answers. And. finally, the proces·1 cf provin.~ proneness for self-incrimination \vill itself strike . a below on the very protect10n under Art. 20(3). f649 G-H, 650 A] (a) S. 161 enables the police to examine the accused during investigation: [644 CJ (b) The prohibitive s\veep of Art. 20(3) goes back to the stage of police interrcgation not, as co"0-tended coillmencing in Court only; f644·C]. (c) The provisions of Art. 20(3) and section 161(1) substantially cover the same area so far as police investigations are concerned; f644-C] (d) The ban on self·accusation and the right to silence, while on investigation or trial is under \Vay, goes beyond that case and protects the accused in regard to other offences pending or imminent, which /may deter him fron1 voluntary disclosure of criminatory matter; [644 C-D] D E ( e) 'Compelled testimony' must be read as evidence procured not merely by physical threats or violence but by psychic torture, atmospheric pressure, environmental coercion tiring interrogative prolixity, overbearing and intimidatory methods and the like not legal penalty for violation. So the legal perils foliowing upon refusal to ansv.'er or answer truthfully cannot be regarded as compulsion v.iithin the meaning of Art. 20(3). The prospect of }' prosecution may lead to legal tension in the exercise of a constitutional right, but then, a stance of silence is running a calculated risk. On the other hand, if there is any n1ode of pressure, subtle or crude, mental or physical, direct or indirect, but sufficiently substantial, applied by the policeman for obtaining information from an accused strongly suggestive of guilt it becomes compelled testimony violative of Art. 20(3); [644 D-F] (f) A police officer is clearly a person in authority. Insistence on answering is a forn1 of pressure especially in the atmosphere of the police station unless certain safe guards erasing duress are adhered to. Frequent threats of prosecution if there is failure to answer may take on the complexion of undue pressure violating Art. 20(3 J. Legal penalty may by itself does 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 perilously hovering near compulsion; [644 F-G] (g) Self incrimination or tendency to expose oneself to a criminal charge is less than 'relevant' and more than 'confessional'. Irrelevance is impermissible; H while relevance is licit if the relevant questions are loaded with guilty inference in the event of an answer being supplied the tendency to incriminate springs into existence; [644 G-H] A B c D E F H 610 SUPREME COURT REPORTS [1978] 3 S.C.R. (h) The accused person cannot be forced to answer questions merely because the answea1 thereto are not implicative when viewed in isolation and confined to that particular case. He is entitled to keep his mouth shut if the ans\ver. sought has a ~easonable prospect of exposing him to guilt in some other a~cusation actual or imminent, even though the investigation under way is not \V1th rcferenc.e to !hat. In determining the incriminatory character of an ans\ver the accused 1s entitled to consider and the Court while adjudging will take note of the setting, the totality of circumstances, the equation, personal and social \Vhich have a bearing on making an answer substantially innocent but in effect guilty in import. However, fanciful claims, unreasonable apprehensions. and vague possibilities cannot be the hiding ground for an accused person. He is bound to answer where there is no clear tendency to criminate. [644 H, 645 A-BJ (i) Section 179 l.P.C. has a component of mens rea and where there is no ·wilful refusal but only unwitting omission or innocent warding off, the offence is not made out. f645-C] (j} Where there is reasonable doubt indicated by the accused's explanation he is entitled to its benefit and cannot be forced to sub~tantiate his ground lest, by this process, he is constrained to surrender the very privilege for which be is fighting. What may apparently be innocent information n1ay really be nocent or noxious vie-;.ved in the wider setting. [645 C-D] (k} The right to consult an advocate of this choice shall not be denied to any person who is arrested. This does not mean that persons who are not under arrest or custody· can be denied that right. The spirit and sense of Art. 22(1} is that it is fundamental to the rule of la¥/ that the service of a lawyer shall be available for consultatioo._1 to a.ny accused person under circ:umstances of near-custodial interrogation. Moreover, the observance of the right against self-incrimination is best promoted by conceding to the accused the right to consult a 1egal practitioner of his choice. Lawyer's presence is a constitutional claim in some circumstances in our country also, and. in the context of Art. 20 (3), is an assurance of awareness and observance of the right to silence. Art. 20(3) and :\rt. 22(1) may in a way be telescoped bv n1aking it prudent for the police to permit the advocate of the accused, if there be one, to be present at the time he is examined. Over-reaching Art. 20(3) and S. 161(2} will be obviated by this requirement. It is not that the police must secure theservices of a lawyer. That will lead to police-station-lawyer system, an abuse which breeds other vices. But if an accused person expresses the wish to have his lawyer by his side when his examination goes on, this facility shall not be denied. without being exposed to the serious ;reproof that involuntary selfcrimination secured in secrecy and by coercing the \Vill -.·:a~ the project. ,\ lawyer cannot harangue the police but may help his client and complain on his behalf although his very nresence will ordinarily ren1ove the in1plicit n1enace of a police station. No doubt the presence of a lawyer is asking for the moon in many cases until a public defender system becomes ubiquitous. The police need not wait more than for a reasonable \Vhile for an advocate's arrival. But they must invariably \Varn and record that fact about the right to silence against self-incrimination: and where the accused is literate take his \vritten acknowledgment [645 G-H, 646 A-EJ (l) 'Third degree' is an easy temptation where the oressure to dete-ct is heavy. the cerebration involved is hard and the resort to torture may yield high dividends. [646 FJ [J(eeping in vie\v the symbiotic need to preserve the immunity without stifling le!!itimate investigation after an examination of the accused, v.·here a Jaw'Yer of his choice is not available, the police official should take him to a magistrate, doctor or other willing and responsible non-partisan official or non-official and allow a secluded audience where he may unburden himself beyond the view of rhc police and tell whether he has suffered duress, which should be follo\ved by iudicial or some other custody for him where the poli~ can'llot te?.ch Jiim. That collocutor may briefly record the relevant conversatton and communicate it not to the police but to the nearest magistrate Pilot projects on this pattern may yield experience to guide the practical urocesses of imolementing Art. 20(3}. These are not mandates but strong suggestions.] [64 D-E] -1 • NANDINI SATPATHY V. DANI 611 (m) Many of the questions put by the police are not self-incriminalory, A remote apprehensions being wholly irrelevant. To answer is citizen's duty; failure is asking for conviction. The appellant shall undertake to answer all .questions put to her which do not materially incriminate her in the pending or imminent investigations or prosecutions. If she claims immunity regarding any questions she will, without disclosing details, briefly state in which case or offence in the offing makes her reasonably apprehend self-incrimination by her refused answers. If, after the whole examination is over, the officer concerned reasonably regards any refusal to ansv.'er to be wilful violation under pretence of imn1unity from self-incrimination, he will be free to prosecute the B alleged offender after studying the refusal to answer in the light of the principles earlier set out, Section 179 LP .C. should not be unsheathed too pron1iscuously and teasingly to tense lay people into vague consternation and covert compulsJon 3Jthough the proper office of Section 179 I.P .C. is perfectly wiihin the constitutional limits of Art. 20(3). [651 C·F] 2. The rule of law· becomes a rope of sand if the lawful authority of public servants can be defined or disdained by those bound to obey. The might of the law, in the last resort guarantees the right of the citizen and no one, be he minister or higher, has the discretion to disobey without running a punitive risk. Chapter X of the Indian Penal Code is designed to penalise disobedience of public servants exercising lawful authority. S. 179 is one of the provisions to enforce compliance when a public servant legally demands truthful ansv:.'ers but is met with blank refusal or plain mendacity. (620 F-G] 3. A break down by S. 179 I.P.C. yields the following pieces (a) the demanding authority must be a public servant; a police officer is obviously one; (b) the demand, must be to state the truth. on a subject in the exercise of legal powers; and, indubitably, a-o- investigating officer enjoys such powers under the ·(~r. P. Code, and, in the instant case, requisition was precisely to tell the truth on matters supposedly purtine1:it to the offence under investigation. S. 161 of the Cr. P. Code obligates "any person supposed to be acquainted with the facts and circumstances of the case" to answer truthfully "all queslions relating to such case other than questions the answers to which \vould have a tendency to expose him to a criminal charge". [621 A-B] In the present case, admittedly oral answers to written interrogations were sought, although not honest speech but 'constitutional' silence greated the public servant. And this refuge by the accused under Art. 20(3) drove the disenchanted officer to seek the sanction of section 179 J.P .C. If the literal force of the text governs the comrlex of facts, the Court must convict, lest the Jong arm of the investigatory law should hang liif\.p when challe•ngcd by the ncgativ-;: attitude of inscrutability worn by the interrogatee unless \Vithin the text and texture of the section-built-in defences exist. [621 B-C] 4. The area covered by Art. 20(3) of the Constitution and section 161(2) of the Criminal Procedure Code is substantially the sa1ne. So much so, terminological expansion apart, sec. 161(2) is a parlian1entary gloss on the constitutional clause. [623D] A constitutional provision receives its full sen1antic range and so it follows c D E F that a wider connotation must be imparted to the expressions 'accused of any offence' and 'to be witness against himself'. Art. 20(3) of the Constitution warrants no such,truncation as argued by Counsel but, as in Miratyja v. Arizona, G 384 U.S. 436 (1966) ruling extends the embargo to police investigation, also. A narrow meaning may emasculate a necessary protection. There are only two primary queries involved in this clause that seals the lips into permissible silence (i) Is the person called upon to testify 'accused of any offence' and (ii) is he being compelled to the witness against himself ? [623 E-F] Miranda v. Arizona, 384 U.S. 436 (1966); referred to. A wider construction viz. that s. 161 (2) of the Code might cover not H merely accusations already registered in police stations but those which are likely to be basis for exposing a person to a criminal charge, if applicable to Art. 20(3), approximates the constitutional clause to the explicit statement of A B c D E ' 612 SUPREME COURT REPORTS (1978] 3 S.C.R. t~e prohibition in s. 161 (2). S. 161 (2) meaningfully uses the expression 'expose himself to a criminal charge'. Obviously, these words mean, not only cases where the person is already exposed to a criminal charge but also instances which ~ill imminently expose him to criminal charges. In Art. 20(3) the expression (accused of any offence' must mean formally accused in praesenti not in futuro-not even imminently as decisions now stand. The expression "to be witness against himself" means more than the court process., Any giving of evidence, any furnishing of information, if likely to have an incriminating impact ensures the description of being witness against himself. Not being limited to the forensic stage by express words in Art. 20(3) the expression must be construed to apply to every stage where furnishing of information and collection of materials takes place. That is to say, even the investigation at the police level is embraced by Art. 20(3). This is precisely wha.t s. 161(2) means. [623 G-H, 624 A-BJ Sub-section (2) of S. 161 Cr. P. C. relates to oral examination by police officers and grants immunity at that stage. Briefly, the Constitution and the Code are coterminous in the protective area. While the Code may be changed, the Constitution is more enduring. [624 B-C] 6. Under the Indian Evidence Act the Miranda exclusionary rule that custo~ dial interrogations are inherently coercive finds expression (s. 26), although the Indian provision confi'IlCs it to confession which is a narrovter concept than self-incrimination. [624 DJ 7. Speaking pragmatically, there exists a rivalry between societal interest in effecting crime _detection and constitutional rights which accused individuals possess, Emphasis may shift, depending on circumstances, in balancing the5c interests as bas been happening in America. Our constitutional perspective has, therefore, to be relative and cannot afford to be absolutist, especially when torture technology, crime escalation and other social variables affect the application of principles in producing humane justice. [624 E-G] Couch v. United States, 409 U.S. 322, 336 (1972) referred to. 8. Two important considerations n1ust be placed at the forefront before sizing up the importance and impregnability of the anti-self-incrimination guarantee. They are (i) not to write off the fear of police torture leading to forced self incrimination as a thing of the past and (ii) never to forget that crimes, in India and internationally are growing and criminals are outwriting the detectives. [625 C, G] The first obligation of the criminal justice system is to secure justice by seeking and substanciating truth through proof, The means must be as good as the ends and the dignity of the individual and the freedom of the human person cannot be sacrificed' by resort to improper means, however worthy the ends. Therefore. 'Third degree' has to be out-lawed and indeed has been. [626 F-G] The cherished principle behind the Maxim 'nemo tenetur sceipsum tenetur' meaning "a man cannot represent himself as guilty" which proscribes compulsory self-accusation, should not be dangerously over broad nor illusorily \vhittled down. And it must openly work in practice and not be a talismatic symbol. If Art. 20(3) is not to prove a promise of unreality the Court must G clothe it with flesh and blood. [626 H, 627 B-C] H Miranda v. Arizona, 384 U.S. 436 (1966), Brown v. Walker, 40 L. Ed. 819 referred to. A moral from the Miranda reasoning is the burning relevance of erecting protective fenders and to make their observance a police obligation so that the angelic Art. 20(3) may face upto Satanic situations. [630 F-GJ 9. The fran1ers of our Constitution have cognised certain pessimistic poignancies and mellow life meanings and obligated Judges to. maintain a 'f'!-ir state-individual balance' and to broaden the fundamental nght ,to fulfil its purpose, lest frequent !martyrdoms redu~e the ~t!cle .to a mock. for~a. Even silent approaches, furtive moves, shght deviations and subtle 1ngenu1ttes • ) 1 • •. NANDINI SATPATHY V. DANI 613 may erode the article's validity unless the law outlaws illegitimate and unconsA titutional proce_Qures before they find their first firm footing. The silent cause of the final fall of the tall tower is the first stone obliquely and obliviously removed from the base. [631 E-F] And Art. 20(3) is a human article, a guarantee of dignity and integrity and of inviolability of the person and refusal to convert an adversary systen1 into an inquisitorial scheme in the antagonistic μnte-chamber of a police station. And in the long run, that investigation is best which uses strategems B least, that policeman deserves respect who gives his fists rest and his wits restlessness. 10. Sec. 161 (2) is a sort of parliamentary commentary on Art. 20(3) of the Constitution. The scope of s. 161 does include actual accused and suspects and therefore the police have power under sections 160 and 161 of the Cr. P.C. to question a person who the~ was or in the future may incapnate as an accused person. 'Any person' in s. 161 Cr. P.C. would include persons then or ultimately accused. [632 E-F] C Any person supposed to be acquainted with the facts and Circumstances of the case includes an accused person who fills that role because the police suppose him to have committed the crime and must, therefore, be familiar with the fact~. The supposition may later prove a fiction but that does not repel the section. Nor does the marginal note 'examination of witnesses by poJice' clinch the matter. A marginal note clears' ambiguity but does not control meaning. Moreover, the suppositious accused figures functionally as a witness. To be a witness, from functional angle, is to impart knowledge in respect of a relevant fact, and that is precisely the purpose of questioning the accused under section 161 Cr. P.C. The dichotomy between 'witnesses' and 'accused' used as terms of art. does not hold good here. The amendment, by Act XV of 1941, of Sec. 161(2) of the Cr. P. Code is a legislative acceptance of the Pakala Narayana Swami· reasoning and guards against a possible repercussion of that ruling. The ap_pellant squarely fell within the interrogational ring. To hold otherwise is to fold up investigative exercise, since questioning suspect is desirable for detection of crime and even protection of the accused. Extreme positions may boomerang in law as in politics. [633 F H, 634 A-B] M. P. Sharma v. Salish Chandra, Dist, Magistrate, Delhi [1954] S.C.R. 1077, !aka/a Narayanaswami v. Emperor, A.I.R. 1939 PC 47, Mahabir Mandal and Ors. v. State of Bihar, [1972] 3 SCR 639, 657; followed. 11. Suspects, not yet formally charged but embryonically are accused on record, also may swim into the harbour,. of Art. 20(3) and therefore a person formally brought into the police diary as an accused person is eligible for the prophylactic benefits of Art: 20(3) of the Constitution. [635 B-G] State of Bombay v. Kathi Kalu Oghad, [1962] 3 SCR 10 reiterated. Raja Narayan Lal Bansilal v. Manek Phiroz Mistry and ()rs. [1961} 1 S.C.R. 417; Ramesh Chandra Mehta v. State of W. B. [1969] 2 S.C.R. 461 and Bhagwandas Goenka v. Union of India, Crl. A. 131-132 of 1961 S.C. dated 20-9-63; referred to. 12. It is plausible that where realism prevails over formalism and probabi~ Hty over possibility. the enquiries under criminal statutes with quasi-criminal investigations are of an accusatory nature and are sure to end in prosecution when the offence is grave and the evidence gathered good. And to deny the protection of a constitutional shield designed to defend a suspect because the enquiry is preliminary and may possibly not reach the Court is to erode the substance while paying hollow homage lo the holy verbalism of the Article. [637 H. 638A] D E F G Ramesh Chandra Mehta v. State of W.B. [1961] 2 S.C.R. 461 and Raja Narayan Lal Bansilal v. Manak Phiroz Mistry and Ors., [1961] 1 S.C.R. 417, H referred to. 13. The view !hat the bar in Art. 20(3) operates only when the evidence previously procurid from the accused is sought to be introduced into the case A B c D F G H 614 SUPREME COURT REPORTS [1978] 3 S.C.R. at the trial by th.c Court will be sapping the juice and retaining the rind of ~rt. 20 (3) doing interpretative violence to the humanist justice of the proscrip~ ·lion. The text of the clause contains no such clue, its intendment is stultified by such a judicial amendment and an expansive construction has the merit of natural meaniqg, self-fulfilment of the 'silence zone' and the advancement of huma:l! rights. The. plea for narrowing down the play of the sub-article to the forensic phase of tnal cannot be accepted. lt \vorks where the mischief is, in the womb, i.e. the police process. l638 B-Dl 14. Both precedent procurement and subsequent exhibition of self criminatting testimony are obviated by intelligent constitutional anticipation. If the police can inter:.rogate to the point of self-accusation, the subsequent exclusion of that evidence at the trial hardly helps because the harn1 has been already done. The police will prove through other evidence what they have procured through forced confession. So it is that the foresight of the framers has preempted self-incrimination at the incipient stages by not expressly restricting it to the trial stage in Court. True, compelled testimony previously obtained is excluded. But the preventive blow falls. also on pre-court testimonial compulsion. The condition is that the perscn compelled must be an accused. [639 B-D] 15. Not all relevant answers are criminatory; not all criminatory answers are confessions. Tendency to expose to a criminal charge is wider than actual exposure to such charge. The spirit of the American rulings and the substance of this Court's observations iustify this 'wheels \Vithin wheels' conceptualization of self-accusatory statements. The orbit of relevancy is large. Every fact which has a ne~us with the ca~c does uot make it noxious to the accused. Relevance may co-exist with innocence and constitutional censure is attracted only \vhen inference .of nocence exists. And an incrirllinatory inference is not enough for a confession. Only if, ¥,rithout more, the ansv.'er established guilt, does it amount to a confession. [639 E·G] Answers that would, in themselves, support a conviction are confessions but answers whkh have a reasonable tendency strongly to point out to the guilt of the accused are incriminatory. Rc1evant replies which furnish a real and clear link in the chain of evidence indeed to bind down the accused with the crime become incriminatory and offend. Art. 20(3) if elicited by pressure from the mouth of the accused. An answer acquires confessional status only if, in terms of substantially, aII the facts which constitute the offence are admitted by the offender. If his statement also contains self-exculpatory matter it ceases to be a confession. Article 20 (3) strikes at confessions and self-incriminati0ns but Iea\'es untouched other relevant facts. [640 A-CJ 16. The claim of a witness of privilege against self-incrimination has to be tested on a careful consideration of alI the circumstances in the case and where it is clear that the claim is unjustified, the protection is unavailable. [640C] f\.ferely because he fancied that bv such answer he would incriminate himself he could not claim the privilege of silence. It must appear to the court that the implications of the question, in the setting in which it is asked, make it evident that a responsi\.'.e answer or an cxolanation of v.1hy it cannot be answered might be dangerous because injurious disclosure could result. The apprehension of incrirnination from the ansv..·cr sought must be sub<;tantial ·and real as distinguished from danger of remote possibilities or fanciful flo',V of inference. Two things need emphasis. The ~etting of the particular case, the context ~d the. environment i.e. the tc•tality nf circumstances. must inform the perspective ot the Court adjudging the incriminatory injury, and 1 \Vhcre reasona~le doubt exists. the benefit must go in favour of the right to silen(c by a llheral construction of the Artcle. [640 D-F] But the true test is; could the vvitness (accu<;ed) have reasonably sensed the peril of prosecution from his ansv..·er in the conspectus of circumstances ? The perception of the peculiarities of the case cannot be irrelevant in proper appraisal of self-incriminatory potentiality. r640GJ Hof/1nan v. [Jnited States 341 U.S. 479 and Malloy v. Bagan, 12 L.Ed. 2d. 653 quoted 'vith approval. .J .• T • .. • ' ·~ I NANDINI SATPATHY V. DANI 615 17. The policy behind the privilege under our scheme, does not swing so A wide as to s\veep out of adrnissibility statements neither confessional per se nor guilty in tendency but merely relevant facts which viewed in any setting, does not have a si11ister import. To spread the net so "'idc is to tnake a mockery of the examination of the suspect, so necessitous in the search for truth. Over-breadth undermines, and such morbid exaggeration of a wholesome protection must be demurred. [640 H, 641 A-B] On the bounds between constitufonal proscription and testimonial penllissicn B Art. 20(3) could be invoked only against statements which had a material bearing on the criminality of the maker of the statement.~ "By itself does not exclude the setting or other integral circumstances but means something in the fact disclosed a g;1ilt element. The setti'flg of the case is an iinplied component of the statement. [641 B-DJ State of Bo1nbay v. Kathikalu Oghad, [1962] 3 SCR P. 10 referred to. 1 S. Relevancy is ·tendency to make a fact probable. Crimination is a ten· C dency to make guilt probable. Confession is a potency to make crime con· elusive. 'fh_e taint of tendency, under Art. 20(3) ands. 161(1) is more or less the same. It is not a remote, recondite, freak or fanciful inference but a reasonable, real, materi_al or probable deduction. This governing test holds good, it is pragmatic, for one feels the effect, its guilty portent fairly clearly. [641 E-F] 19. There is need for regard to the impact of the plurality of other investi· gations in the offing or prosecutions pending on the amplitude of the immunity. 'To be 'Wi.!.ness against oneself' is not confined 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 answer. This conciusi :in also flow3 from tendency to be exposed to a crin1in>1l o:hargc. "A criminal charge' covers any criminal charge than under investigation or trial or imminently threatens the accused. [641 G-H, 642 A} 20. The setting of the case or cases is also of the utmost significance in pronouncing on the guilty tendency of the question and ans\ver. What in one milieu m:J.Y be colourless, may, in another be criminal. While ...ding. The broad submissions, unsuccessfully made before the High Court, was that the charge rested upon a failure to answer interrogations by the police but this charge was unsustainable because G the umbrella of Article 20(3) of the Constitution and the immunity under section 161 (2) .of the Cr. P. Code were wide enough to shield her in her r~fusal. The plea of unconstitutionality and illegality, put forward by this pre-emptive proceeding was rebuffed by the High Court and so she appealed to this Court by certificate granted under Article 132(1), resulting in the above two appeals, thereby tak?ng a calculated risk which might boomerang on the litigant if she failed, H because what this Court now decides finally binds. · .. A., • Every appeal to thi's court transcends the particular !is to incarnate / ' as an appeal to the future by the invisible many whose legal lot w~ ...,... ' ' , ..>. ., 1 . ' NANDINI SATPATHY v. DANI (Krishna Iyer,!.) 617 decide by laying down the Jaw for the nation under Article 141; and, so, we are filled with humility in essaying the task of unravelling the sense and sensibility, the breadth and depth, of the principle against self-incrimination enshrined iil Art. 20(3) of our Constitution and embraced with specificity by Section 161 (2) of the Cr. P. Code. Here we must remember, concerned as we are in expounding an aspect of the Constitution bearing on social defence and individual freedom, that humanism is the highest Jaw which enlivens the printed legislative text with the life-breath of civilized values. The judge who forgets this rule of law any day regrets his nescient verdict some day. Now, we move on to the riddle of Art. 20(3), the range of the 'right to silence' and the insulation of an accused person from police interrogation under section 161 (2) of the Cr. P. Code. Counsel on both sides have presented the rival viewpoi'o.ts with utmost fairness some scholarship and we have listened to them, not as an abstract intellectual exercises peppered by lexical and precedential erudition but as deeper dives into the meaning of meanings and the exalted adventures in translation of twinkling symbols. Our Constitutional guarantees are phrnsed like the great sutras-pregnant brevities enwombing founding faiths. The basic facts which have given rise to this case need to be narrated but the law we have to settle reminds us, not of a quondam minister, the appellant, but of the numerous indigents, illiterates and agrestics who are tensed and perplexed by police processes in station recesses, being unversed in the arcame implications of Art. 20 ( 3) and unable to stand up to rnugh handling despite section 161(2). Lawin-action is tested by its restless barks and bites in the streets and its sting in hostile camps, especially when the consumers are unaware of the essential contents of the protective provisions,-and not by its polished manne~s and sweet reasonableness in forensic precincts. The pulse of the ~itated accused, hand-cuffed and interrogated, the rude voice and ready rod of the head constable and the psychic strain, verging on consternation, sobbing into involuntary incriminations, are part of the scenario of police investigation which must educate the Court as it unveils the nuances of Art. 20(3) and its inherited phraseology. A people who'se consciousness of rights is poor, a land where legal services at the incipient stages are rare and an investigative personnel whose random reson to third degree technology has ancient roots-these and a host of other realistic factors must come into the Court's ken when interpreting and effectuating the constitutional right of the suspect accused to remain silent. That is why quick surgery, when constitutional questions affecting the weaker numbers are involved, can be successful failure.