“Belief however well founded, that an article sought is concealed in a dwelling house furnishes no

justification for a search of that place without a warrant. And such searches are …..unlawful
notwithstanding, facts unquestionably showing probable cause”1

….There are three interconnected rights of the accused and they should not be understood to be
exactly the same Malimath Committee on Criminal Justice Reform appears to have done in its
Report.2 These three rights of the accused are:

1. Presumption of Innocence
2. Privilege against self-incrimination
3. The right to remain silent.

…..The unanimous ruling in M.P. Sharma v Satish Chandra, that the phrase ‘to be a witness’ used in
article 20(3) was nothing more than to furnish evidence and embraced within its fold all modes
whereby evidence can be furnished, led to many strange results. Many traditionally accepted modes
of investigation and proof of crime began to be questioned for being violative of article 20(3).

….Bombay v. Kathi Kalu Oghad (11 judge bench) The Court decided on some other aspects of article
20(3) as well which we have discussed in other sub-sections of this section. In this sub-section we
shall confine our discussion to an examination of the reformulation by the eleven-judge bench of the
propositions made in M.P. Sharma, with regard to the meaning of ‘to be a witness’ in article 20(3).
All the judges unanimously decided that it was wrong to contend that the different investigative and
evidentiary practices which have been alluded to above and whose constitutional validity of article
20(3).

In V.S Kuttan Pillai v. Ramakrishnan3, the Supreme Court held that search of the premises occupied
by the accused without the accused being compelled to be a party to such a search would not be
violative of the constitutional guarantee enshrined in Article 20(3).

Selvi v. State of Karnataka4

In this case the Hon’ble Chief Justice, Justice K.G Balakrishnan spoke of behalf of the Apex
Court, and drew the following conclusions:

1
Agnella vs. United States (1925) 269 U.S. 20 (The United States Supreme Court)
2
See Malimath Committee Report, Vol 1 (2003), Ch. 3, especially Secs. 3.11 and 3.41 to 3.44. For a criticism of
the Report see Upendra Baxi, “Introductory Critque” in the critical comments published by Amnesty
International’s India Chapter (2003); see also Andrew Ashworth Q.C., Human Rights, Serious Crime, and
Criminal Procedure (London: Sweet & Maxwell, 2002) pp. 14-26; Ben Emerson & Andrew Ashworth, Human
Rights and Criminal Justice (London: Sweet & Maxwell, 2001), pp. 445-462.
3
AIR 1980 SC 185
4
AIR 2010 SC 1974
 1. The right against self-incrimination and personal liberty are non-derogable rights, their
enforcement therefore is not suspended even during emergency.
2. The right of police to investigate an offence and examine any person do not and cannot
override constitutional protection in Article 20(3);
3. The protection is available not only at the stage of trial but also at the stage of
investigation;
4. That the right protects persons who have been formally accused, suspects and even
witnesses who apprehend to make any statements which could expose them to criminal
charges or further investigation;
5. The law confers on ‘any person’ who is examined during an investigation, an effective
choice between speaking and remaining silent. This implies that it is for the person
being examined to decide whether the answer to a particular question would be
inculpatory or exculpatory;
6. Article 20(3) cannot be invoked by witnesses during proceedings that cannot be
characterised as criminal proceedings;
7. Compulsory narco-analysis test amounts to ‘testimonial compulsion’ and attracts
protection under Article 20(3);
8. Conducting DNA profiling is not a testimonial act, and hence protection cannot be
granted under Article 20(3);
9. That acts such as compulsory obtaining signatures and handwriting samples are
testimonial in nature, they are not incriminating by themselves if they are used for the
purpose of identification or corroboration;
10. That subjecting a person to polygraph test or narco-analysis test without his consent
amounts to forcible interference with a person’s mental processes and hence violates
the right to privacy for which protection can be sought under Article 20(3);
11. That courts cannot permit involuntary administration of narco-tests, unless it is
necessary under public interest.

“When several persons are jointly interested in the subject -matter of the suit, the general rule is
that the admissions of any one of these persons are receivable against himself and fellows, whether
they be all jointly suing or sued, or whether an action be brought in favour of or against one or more
of them separately, provided the admissions relate to the subject- matter in dispute, and be made
by the declaring in his character of a person jointly interested with the party against whom the
evidence is tendered.”5

Chief Justice Warren of the Supreme Court of America declared that the government may
not use statement obtained from “custodial interrogation” of defendant unless it can show
that his right against self-incrimination had been carefully secured by effective
“procedural safeguard” that does not violate due process law. This proposition is known
as Miranda Rule.6 Before the interrogation, the police must warn the accused that he has
right to remain silent. Secondly, accused must be informed that whatever statement he
makes would be used against him. Thirdly, accused is entitled to engage counsel during
such interrogation. These three conditions must be strictly complied or defendants must
have waived these rights voluntarily, knowingly and intelligently; otherwise confession is

5
Taylor, 12th Edn., s. 743, p. 475
6
Miranda v. Arizona, (1966) 384 U.S. 436; Escobedo v. Illinois, (1964) 378 U.S. 478.
inadmissible.7 American federal statute provides that confession of accused is admissible
unless it is given voluntarily.8 Singapore legal system which virtually follows Indian legal
system has empowered the sergeant-level officers to record the confession.9

Professor Glanville Williams quotes the Bentham’s strong criticism of right to silence that
“one of the most pernicious and most irrational notions that ever found its way into the
human mind”.10 Further he quotes: “Innocence never takes advantage of it; innocence
claims the right of speaking, as guilt invokes the privilege of silence.” Bentham questions
the rationality of exempting the confession made before the police because the same
confession either written on a document or conversations of such confession heard by any
witness is not exempted from furnishing the evidence. Thus Bentham said: “What the
technical procedure rejects is his own evidence in the purest and most authentic form;
what it admits is the same testimony, provided that it be indirect, that it have passed
through channels which may have altered it, and it be reduced to the inferior and
degraded state of hearsay.”11

Confession of co-accused is a weak type of evidence because it is not taken on oath, not
in the presence of accused, and such confession is not subjected cross-examination.12

The right to silence based upon the idea that ‘it is better that a hundred of the guilty
should escape than that one innocent person should perish’.13The security of innocence
may be complete without favoring the impunity of crime.14 Every precaution, which is not

7
LAW COMMISSION OF INDIA, REP. NO. 69, REVIEW OF THE PROVISIONS OF THE INDIAN
EVIDENCE ACT 1872, at 196.
8
18 U.S.C. § 3501 (a) & (b).
9
MALIMATH COMMITTEE REPORT, VOL. 1, COMMITTEE ON REFORM OF CRIMINAL JUSTICE
SYSTEM 122 (Minster of Home Affairs, Government of India 2003).
10
Right to silence justified on the ground that to try to get an accused person to give evidence against himself
was not playing the game; it was hitting below the belt, or hitting a man when he was down. Bentham criticizes
this philosophy which has led to evil result because it hindered the conviction of guilt. Further he said it
neglected the immediate interest of society that dangerous criminals should not be left free. When guilty is
acquitted, the society is punished; see GLANVILLE WILLIAMS, infra note 23, at 49-52.
11
GLANVILLE WILLIAMS, THE PROOF OF GUILT 52 (Stevens & Sons Ltd., London, 3rd ed. 1963).
12
Bhuboni Sahu v. King, 1949 P.C. 257; Hari Charan Kurmi & Jogia Hajam v. State of Bihar, A.I.R. 1964 S.C.
1184.
13
BENTHAM, op. cit. supranote 82, at 258. (JEREMY BENTHAM, THE THEORY OF LEGISLATION 164
(N.M. Tripathi Pvt. Ltd., Bombay, 1995). )
14
Ibid.
absolutely necessary for the protection of innocence, affords a dangerous lurking-place to
crime.15 Finally Bentham said: “If it is wished to protect the accused against punishment,
it can be done at once, and with perfect efficiency, by not allowing any investigation”.16
It is accused who has committed the offence. Obviously he has abundance of information
about the commission of offence. Naturally rationality allows the investigation authority
to explore that source of information at optimum level. But ironically law suggests
otherwise that the evidence of guilt of accused must be found from other source
that is ridiculous and absurd. Clarence Darrow wrote:
“The methods of the criminal courts are hundreds of years old and their conceptions a
thousand years older than that. The whole material world has been made over, but the law
and its administration have stood defying time and all the intellectual changes of our day
and ages.”17

15
Ibid.
16
WILLIAMS, op. cit. supranote 23, at 52. (GLANVILLE WILLIAMS, THE PROOF OF GUILT 52 (Stevens
& Sons Ltd., London, 3rd ed. 1963). )
17
WILLIAMS, op. cit. supranote 23, at 37. (GLANVILLE WILLIAMS, THE PROOF OF GUILT 52 (Stevens
& Sons Ltd., London, 3rd ed. 1963). )