by Police - Bureau of Police Research and Development

The Indian Police Journalnot accept this contention and observed that if Art. 20(3) will beinterpreted in this manner, the whole objective of such protectionwill frustrate. Art. 20(3) provides protection even at the stage ofinvestigation. Protection available in Sec. 161(2) Cr.P.C. is widerduring investigation. This provision provides protection only duringinvestigation and this protection is for incriminatory questions in thepresent case or some other case as the words used in Sec. 161(2) are:“answer to which would have tendency to expose him to a criminalcharge or to a penalty or forfeiture”. Supreme court observed that Sec.161(2) is parliamentary glass to the constitutional provision containedin Art. 20(3):“…Sec.161(2) of the Code might cover not merely accusationsalready registered in Police Stations, but those which are likely tobe the basis for exposing a person to a criminal charge. Indeed, thiswider construction, if applicable to Art. 20(3), approximates theconstitutional clause to the explicit statement of the prohibition inSec. 161(2). This later provision meaningfully uses the expression‘expose himself to a criminal charge’. Obviously, these wordsmean not only cases where the person is already exposed to acriminal charge, but also instances which will imminently exposeare conterminous in the protective area. While the Code may bechanged, the Constitution is more enduring.” Sec. 161(2) protects against compelled testimony and gives two rightsto person being interrogated: (1) Right to Refuse - person may expresslyrefuse to answer incriminatory questions, (2) Right to Silence - personmay not answer, but keep silence. In case of Smt. Selvi v. State ofKarnataka AIR 2010 SC 1974, court widened sweep of compelledtestimony and observed that statement obtained by narco-analysis testcauses violation of Art. 20(3) and it is gross violation of Right to Silenceas in case narco-analysis person is not in the situation to calculatewhether question is exculpatory or inculpatory and, therefore, not inthe situation to exercise his Right to Silence:“In our considered opinion, the compulsory administrationof the impugned techniques violates the ‘Right against Selfincrimination’.This is because the underlying rational of the saidright is to ensure the reliability as well as voluntariness of statementthat are admitted as evidence. This court has recognized thatJanuary - March, 2013125