Right to Silence Under Article 20(3) Extends to Police Interrogation: Supreme Court

The appellant, a former Chief Minister of Orissa, was directed to appear at the Vigilance Police Station, Cuttack, to be examined in a case under the Prevention of Corruption Act and the IPC, in which she, her son and others were shown as accused (para 7). The accusation was acquisition of assets disproportionate to known sources of income, and she was given a long string of written questions (para 7). A complaint under Section 179 IPC followed, alleging failure to answer, and the Magistrate took cognizance (para 2). The High Court rejected her plea that Article 20(3) and Section 161(2) CrPC shielded her refusal, and she appealed on a certificate under Article 132(1) (para 2).

Section 161(2) CrPC is "a parliamentary gloss on the constitutional clause"; the two cover substantially the same area (paras 20, 58). Section 161 lets the police question actual accused persons and suspects (paras 41-42). Article 20(3) applies to a person formally accused, as Kathi Kalu Oghad and R.C. Mehta hold (paras 20, 43, 45), and works "in the womb, i.e. the police process", not only at trial (para 47). The right covers answers that may expose the accused in other pending or imminent cases (paras 58, 60). Incrimination means a real and probable, not remote or fanciful, tendency to make guilt probable (para 52); there is no right to refuse where there is no clear tendency to criminate (para 60). Compulsion includes psychic torture, atmospheric pressure and tiring or intimidatory interrogation, but not the legal penalty for refusing to answer (para 58); frequent threats of prosecution may become undue pressure (para 59). Section 179 IPC requires wilful refusal (para 61). If the accused wishes, the police should let his lawyer be present, and must warn him of the right to silence (paras 64-65).