A
person accused of any offence or a person arrested is entitled to various
fundamental rights under the Constitution of India and also other statutory
rights under ordinary laws. The main issue that arises for consideration is
whether a person arrested under the Customs Act,1962 (hereafter referred to as
'the Customs Act') can claim right under Article 20(3) of the Constitution of
India(hereafter referred to as ' the Constitution') when his statement is being recorded under
S.107 or S.108 of the Customs Act.
Article
20(3) of the Constitution provides that- 'No
person accused of any offence shall be compelled to be a witness against
himself.'
Article 20(3) simply declares that no
person accused of any offence shall be compelled to be a witness against
himself. “Analyzing the
terms in which this right has been declared in our Constitution, it may be said
to consist of the following components. (1) It is a right pertaining to a
person "accused of an offence" (2) It is protection against
"compulsion to be a witness", and (3) It is a protection against such
compulsion resulting in his giving evidence "against himself".”[1]
Thus, the meaning and the scope of this Article
depend mainly on the interpretation of three words viz. “person accused of any
offence”, “compelled” and “be witness against himself”. The word “police
officer” does not find mention in the Article. This Article does not make it
clear as to who can not compel accused to be a witness against himself. However, the word “compels” gives some
indication that it would mean a person or authority that is in a position to
compel a person to give evidence by virtue of his statutory or executive power.
This means neither by a legislative mandate nor by an executive fiat can a
person be compelled to be a witness against himself. Therefore, as a necessary corollary a police
officer or a person in authority or a court can not compel accused to be a
witness against himself as they are the only persons who are in a position to
compel accused to give evidence against himself. It is also not stated in the
Article the type of proceedings in respect of which this protection is
available. However, in the case of Nandini Satpathy v. P. L. Dani[2] it is held “The
area covered by Art. 20 (3) and Section 161 (2) is substantially the same... Section 161 (2) of the Cr.
P. C. is a parliamentary gloss on the constitutional clause...”
Section 161(2) of the Code protects during investigation any person from
answering questions which would have tendency to expose him to a criminal charge, penalty or forfeiture.
This means that a person can not be compelled to be a witness against himself
in respect of the types of proceedings mentioned in S.161(2) of the Code.
Object and history of Article 20
(3):
“Article
20(3) embodies the principle of protection against compulsion of
self-incrimination which is one of the fundamental canons of the British system
of criminal jurisprudence and which has been adopted by the American system and
incorporated as an article of its Constitution. It has also, to a substantial
extent been recognized in the Anglo-Indian administration of criminal justice
in this country by incorporation into various statutory provisions.
In
order, therefore, to arrive at a correct appraisal of the scope and content of
the doctrine and to judge to what extent that was intended to be recognized by
our Constitution-makers in Art. 20(3), it is necessary to have a cursory view
of the origin and scope of this doctrine and the implications there of as
understood in English law and in American law and as recognized in the Indian
law.
In
English law, this principle of protection against self-incrimination has a
historical origin. It resulted from a feeling of revulsion against the
inquisitorial methods adopted and the barbarous sentences imposed, by the Court
of Star Chamber, in the exercise of its criminal jurisdiction. This came to a
head in the case of --- 'John Lilburn 3 State Trials 1315(A)', which brought
about the abolition of the Star Chamber and the firm recognition of the
principle that the accused should not be put on oath and that no evidence
should be taken from him. This principle, in course of time, developed into its
logical extensions, by way of privilege of witnesses against
self-incrimination, when called for giving oral testimony or for production of
documents. A change was introduced by the Criminal Evidence Act of 1898 by
making an accused a competent witness on his own behalf, if he applied for it.
But so far as the oral testimony of witnesses and the production of documents
are concerned, the protection against self-incrimination continued as before.
(See Phipson on Evidence, 9th Edition, pp. 215 and 474).
These
principles, as they were before the statutory change in 1898, were carried into
the American legal system and became part of its cannon law. (See Wigmore on
Evidence, Vol. VIII, pp. 301 to 303). This was later on incorporated into their
Constitution by virtue of the Fifth Amendment thereof. The language of the
Fifth Amendment was considered by the American Courts as being wide enough to
cover all the aspects of the principle of protection against self-incrimination
as administered under the English common law including oral testimony of
witnesses and production of documents. (See Willis on Constitutional Law, pp.
518 and 519).
In
the course of time further extensions of that privilege were recognized by the
Courts relating to searches and seizures. It came to be held that unreasonable
searches and seizures of documents fell equally within the mischief of the
Fourth and Fifth Amendments (---'Boyd v. United States United
States
“The
main object of Art. 20 (3) is to give protection to an accused person not to be
compelled to incriminate himself and that is in consonance with the basic
principle of criminal law accepted in our country that an accused person is
entitled to rely on the presumption of innocence in his favour and cannot be
compelled to swear against himself.”[4]
Meaning of “to be a witness”:
"To
be a witness" means imparting knowledge in respect of relevant facts, by
means of oral statements or statements in writing by a person who has personal
knowledge of the facts to be communicated to a court or to a person holding an
enquiry or investigation. A person is said 'to be a witness' to a certain state
of facts which has to be determined by a court or authority authorised to come
to a decision, by testifying to what he has seen, or something he has heard
which is capable of being heard and is not hit by the rule excluding hearsay,
or giving his opinion, as an expert, in respect of matters in controversy...
the prohibition in cl. (3) of Art. 20 covers not only oral testimony given by a
person accused of an offence but also his written statements which may have a
bearing on the controversy with reference to the charge against him. The
accused may have documentary evidence in his possession which may throw light
on the controversy. If it is a document which is not his statement conveying
his personal knowledge relating to the charge against him, he may be called
upon by the Court to produce that document in accordance with the provisions of
S. 139 of the Evidence Act, which, in terms, provides that a person may be
summoned to produce a document in his possession or power and that he does not
become a witness by the mere fact that he has produced it; and therefore, he
cannot be cross-examined... It is well established that cl. (3) of Art. 20 is
directed against self-incrimination by an accused person. Self-incrimination
must mean conveying information based upon the personal knowledge of the person
giving the information and cannot include merely the mechanical process of
producing documents in court which may throw a light on any of the points in
controversy, but which do not contain any statement of the accused based on his
personal knowledge.... 'To be a witness' is not equivalent to 'furnishing
evidence' in its widest significance; that is to say, as including not merely
making of oral or written statements but also production of documents or giving
materials which may be relevant at a trial to determine the guilt or innocence
of the accused... 'To be a witness' means imparting knowledge in respect of
relevant facts by an oral statement or a statement in writing, made or given in
Court or otherwise... 'To be a witness' in its ordinary grammatical sense means
giving oral testimony in Court. Case law has gone beyond this strict literal
interpretation of the expression which may now bear a wider meaning, namely,
bearing testimony in Court or out of Court by a person accused of an offence,
orally or in writing.”[5]
“Person accused of any offence”:
Present
position of law on this subject is as under:
“It
is available therefore to a person against whom a formal accusation relating to
the commission of an offence has been leveled which in the normal course may
result in prosecution.”[6]
“C1.(3)
of Art.20 declares that no person accused of any offence shall be compelled to
be a witness against himself. It does not refer to the hypothetical person who
may in the future be discovered to have been guilty of some offence. In order
that the guarantee against testimonial compulsion incorporated in Art.20(3) may
be claimed by a person, it has to be established that when he made the
statement in question, he was a person accused of an offence.
A
person called for questioning during investigation by authorities under the
provisions of the Customs Act or the Foreign Exchange Regulation Act (FERA) is
not an accused.”[7]
“The
guarantee is, it is true, not restricted to statements made in the witness box.
But in order that the guarantee against testimonial compulsion incorporated in
Article 20 (3) may be claimed by a person it has to be established that when he
made the statement sought to be tendered in evidence against him, he was a
person accused of an offence. Normally a person stands in the character of an
accused when a First Information Report is lodged against him in respect of an
offence before an Officer competent to investigate it, or when a complaint is
made relating to the commission of an offence before a Magistrate competent to
try or send to another Magistrate for trying the offence. Where a Customs
Officer arrests a person and informs that person of the grounds of his arrest,
which he is bound to do under Article 22 (1) of the Constitution for the
purposes of holding an enquiry into the infringement of the provisions of the
Sea Customs Act which he has reason to believe has taken place, there is no
formal accusation of an offence. In the case of an offence by infringement of
the Sea Customs Act and punishable at the trial before a Magistrate there is an
accusation when a complaint is lodged by an officer competent in that behalf
before the Magistrate. Hence a person against whom an enquiry is made by the
Customs Officer under the Sea Customs Act is not a person accused of an offence
and the evidence, if any, collected by examining him under Section 171A of the
Sea Customs Act is not inadmissible.
Section
104 (1) of the Customs Act 1962 only prescribes the conditions in which the
power of arrest may be exercised. The Officer must have reason to believe that
a person has been guilty of an offence punishable under Section 135; otherwise
he cannot arrest such person. But by informing such person of the grounds of
his arrest the Customs Officer does not formally accuse him with the commission
of an offence. Even under the Act of 1962 a formal accusation can only be
deemed to be made when a complaint is made before Magistrate competent to try
the person guilty of the infraction under Sections 132, 133, 134 and 135 of the
Act. Any statement made under Sections 107 and 108 of the Customs Act by a
person against whom an enquiry is
made by a Customs Officer is not a statement made by a person accused of an
offence.”[8]
“When
the statement of a person was recorded by the Customs Officer under Section
108, that person was not a person "accused of any offence" under the
Customs Act. An accusation which would stamp him with the character of such a
person was levelled only when the complaint was filed against him, by the
Assistant Collector of Customs complaining of the commission of offences under
Section 135 (a) and Sec. 135 (b) of the Customs Act.”[9]
Reasons for
reconsidering the issue:
In Miranda v. Arizona
"Today,
then, there can be no doubt that the Fifth Amendment privilege is available
outside of criminal court proceedings and serves to protect persons in all
settings in which their freedom of action is curtailed in any significant way
from being compelled to incriminate themselves... We have concluded that
without proper safeguards the process of in-custody interrogation of persons suspected or accused of crime contains
inherently compelling pressures which work to undermine the individuals will to
resist and to compel him to speak where he would not otherwise do so freely...
To summarize we hold that when an individual is taken in custody or otherwise deprived of his freedom by the
authorities in any significant way and is subject to questioning, the
privilege against self-incrimination is jeopardized.”
In
Nadini Sathpathi’s case (supra) certain observations of the Supreme Court leads
to the conclusion that the protection under Art.20(3) is available to a person
who is arrested on reasonable suspicion of having committed coginzable offence.
The Court said:
“.. It is plausible to argue that,
where realism prevails over formalism and probability over possibility, the
enquiries under criminal statutes with quasi-criminal investigations are of an
accusatory nature and are sure to end in prosecution, if 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 to the holy verbalism of the article. We are not directly
concerned with this facet of Art. 20 (3); nor are we free to go against the
settled view of this Court...
In our judgment the
provisions of Art. 20 (3) and Section 161 (1) substantially cover the same
area, so far as police investigations are concerned. The ban on self-accusation
and the right to trial is under way, goes beyond that case and protects the
accused in regard to other offences pending or imminent, which may deter him
from voluntary disclosure of incriminatory matter.”[11]
The
Court in M. P. Sharma's case (AIR 1954 SC 300)
expressed its view that it was not going in to the larger controversy
whether in other situations the protection under Article 20(3) could be claimed
or not. The court observed:
“The
constitutional shield must be as broad as the contemplated danger... It follows
that the protection afforded to an accused in so far as it is related to the
phrase "to be a witness" is not merely in respect of testimonial
compulsion in the court room but may well extend to compelled testimony
previously obtained from him. It is available therefore to a person against
whom a formal accusation relating to the commission of an offence has been
levelled which in the normal course may result in prosecution. Whether it is available to other persons in
other situations does not call for decision in this case (emphasis added)...”
Recently
the Hon’ble Supreme Court has taken the following view, in the context of interpretation
of S.167 of the Code, with regard to terms “accused”, “accused person”, “a
person accused of an offence”
“...From
the foregoing discussion, it is clear that the word 'accused' or 'accused
person' is used only in a generic sense in Section 167(l) and (2) denoting the "person" whose liberty is
actually restrained on his arrest by a competent authority on well founded
information or formal accusation or indictment... In other words, the 'person arrested' under FERA or Customs Act
is assimilated with the characteristics of an 'accused' within the range of
Section 167(l) and as such liable to be detained under Section 167(2) by a
Magistrate when produced before him.
...Further,
Justice Yogeshwar Dayal speaking for the majority in Union of India v. O. P.
Gupta, (1990) 2 DL 23 (FB) in the later part of his judgment the learned Judge
has observed that "The word accused is to be construed in its widest
connotations. It means the one who is arrested and detained."[12]
The
above quoted observations in the case of Deepak Mahajan supra make it clear
that the Hon’ble Supreme Court of India has knowingly or unknowingly adopted
the test of “deprivation of freedom” for the interpretation the term “accused”
as applied by the Supreme Court of US in the Miranda’s case in the context of
Fifth Amendment. If, viewed in this background, it sounds preposterous to
contend that a person held accused under the Code will not be considered to be
accused for the purpose of the provision of the Constitution or that a person
arrested is not accused of an offence. On the contrary the provisions of the
Constitution are ordinarily required to be interpreted more liberally than the
provisions of an ordinary law, unless contrary intention is manifest.
The word “accused” used in Article 20(3),
therefore, should also mean “a suspect arrested under a reasonable belief of
having committed a cognizable offence”. The requirement as propounded by the
Supreme Court in its judgments that there should be formal accusations in the
form of FIR or complaint etc against the arrested person so as to invoke the
constitutional guarantee under Article 20(3) is artificial and not in
consonance with the object of the said provision. Under the provisions S.42 of
Cr P C a person can be arrested by police without warrant even though no formal
FIR or complaint has been filed against such person. The arrest can be made by
police merely on reasonable suspicion or upon personal knowledge or upon
receipt of credible information that a person has been concerned in cognizable
offence. Sometimes during the investigation of an offence a person or persons
not named in the FIR or complaint are arrested on the basis of evidence
gathered indicating his/their guilt. In all this situations there are no formal
accusations against the person so arrested. In these kinds of situations can a
person be denied the protection guaranteed under Article 20(3)? Would it be
just to deny this fundamental right to such a person on the technical ground
that there are no formal accusations against him? This interpretation would
lead to patent absurdity and in the words of the Supreme Court it is to
erode the substance while paying hollow homage to the holy verbalism of the
article. Thus, it is
not correct to say that for being “accused” within the meaning of Art.20(3)
there should be formal accusations against a person.
In the light of the above interpretation, let
us consider the issue that if a person arrested under s.104 of the Customs Act
is held to be accused within the meaning of Article20(3) of the Constitution,
whether he can be compelled to give his self-incriminatory or self-inculpatory
statement under S.107 or 108 of the Customs Act against the constitutional
guarantee. There is some conflict between the provision of Article 20(3) of the
Constitution and S.107 and S.108 of the
Customs Act, if, these sections of the Customs Act are not held subject to the
Constitutional provision.
Under
Section 107 of the Customs Act Any officer of customs empowered in this behalf
by general or special order of the Commissioners of Customs may, during the
course of any inquiry in connection with the smuggling of any goods-(a) Require
any person to produce or deliver any document or thing relevant to the inquiry
(b) Examine any person acquainted with the facts and circumstances of the case.
Under Section 108 of the Customs Act any Gazetted Officer of the customs has
power to summon any person whose attendance he considers necessary either to
give evidence or to produce a document or any other thing in any inquiry which
such officer is making in connection with the smuggling of any goods. A person so summoned is bound to attend
either in person or by an authorized agent, as such officer may direct and he
is bound to state the truth upon any subject respecting he is examined or makes
statements and produce such documents and other things as may be required. An inquiry under S.108 as aforesaid is
deemed to be a judicial proceeding within the meaning of s.193 and 228 of the
Indian Penal Code,1860 (45 of 1860). A close reading of these two sections
leads to following result:
S.107 gives power to any custom officer
empowered in that behalf by general or special order of Commissioner of
Customs, whereas S.108 gives power to any Gazetted Officer only. The former
does not caste duty to speak truth, whereas, latter caste duty to speak truth
on the person summoned. The proceedings before the former is not deemed to be a
judicial proceeding within the meaning of S.193 and S.228 of the IPC, whereas
proceeding before latter is deemed to be a judicial proceeding within the
meaning of S.193 and S.228 of IPC (not considered judicial proceeding for all
purposes). Under the former the empowered officer can examine any person
without enforcing attendance, whereas the latter speaks of issuance of summons
to any person whose attendance the officer considers necessary and empowers the
Gazetted Officer to enforce attendance. Section 107 of the Customs Act does not
prescribe the mode/manner by which an empowered officer can inform any person
to do things mentioned therein. Therefore, the empowered officer can by even
oral order exercise powers conferred under this Section. Whereas S.108
specifically provides for issue of summon for the purposes mentioned therein.
S.153 of the Act makes provision for the mode of communication of summons or
order etc. So far as S.108 is concerned
it runs counter to the provisions of Article 20(3) of the Constitution and S161
of the Code, if viewed in the above background. Since, S.108 castes duty to
give statement or to produce any document or thing and duty to speak truth,
recording of a statement after arrest will certainly amount to infringement of
the fundamental right under article 20(3). In the case of a conflict between
the constitutional provision and an ordinary law, it is obvious that the former
prevails over the latter. However, it must be remembered that if the power of
arrest is not exercised by a custom officer while conducting inquiry, there is
no presumption that the inquiry would end in prosecution. Hence, in such a case the protection against testimonial
compulsion will not be available to the person summoned for inquiry. The issue
can be resolved from another angle also. When a person is arrested under S.104
of the Customs Act, the question of issuing summon to him does not arise as he
is in the custody of a Custom officer.
Perhaps, due to this reason Parliament has deliberately not provided for
issue of summons in Section 107.[13]
In this type of situation an empowered officer has to exercise power under
S.107 if, he so desires, as the arrested person is in his custody and he is not
supposed to exercise power under S108. In Section 107 no duty is caste to speak
truth and therefore right under Article 20(3) applies to him with full force.
In such a situation other provisions of Code (including provision of custodial
interrogation) which are not contrary to the Customs Act may also apply with
equal force. Consequently after arrest a person can not be compelled to answer
the question that may expose him to a criminal charge, penalty or forfeiture in
the Court of law. So far as examination of other persons under Section 107 is
concerned, it gives power to an empowered officer to record statement on the
spot during the investigation, search, seizure etc. Insistence of the procedure
of issue of summons under S.108 may not help an officer to conduct inquiry in a
given circumstances. Therefore, it is left open to the empowered officer to go
to a person acquainted with the facts of a particular case rather than waiting
for him to respond to a summons. In view of this legal position distinction
should be made between a statement of a person recorded under 107 and S.108 of
the Customs Act,1962 when power of arrest is exercised and when power of arrest is not exercised by a Gazatted Officer for the departmental adjudication and/or for
prosecution. Exercise of power of arrest under S.104 of the Customs Act,1962
raises a presumption that the same has been exercised for prosecuting the
person so arrested. The power of arrest is a drastic power affecting liberty of
an individual and it cannot be invoked lightly unless there is an intention to
prosecute within a reasonable time. For the purpose of the departmental
adjudication a Gazetted Officer has sufficient power to enforce attendance and
record a statement under 108 of the Customs Act,1962. Therefore when a person
is arrested by a Custom officer, the officer really intends to prosecute the
person so arrested in addition to deal with him departmentally and consequently
the right flowing from Art.20 (3) will be obviously available to the person so
arrested.
[8] AIR 1970 SC 940 Ramesh
Chandra Mehta v. State of W.B. (Para 11, 14,26, 27), AIR 1972 SC 1224 Harbansingh Sardar Lenasingh v. State of
Maharashtra,AIR 1973 SC 1196 Ramanlal Bhogilal Shah v. D. K. Guha,AIR 1976 SC
1167 Veera Ibrahim v. State of Maharashtra,AIR 1981 SC 379 : 1980 Cri.L.J. 1424
Balakishan A. Devidayal v. State of Maharashtra
[9] AIR 1976 SC 1167 Veera
Ibrahim v. State of Maharashtra Maharashtra
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