Tuesday, December 2, 2014

Once a witness, never an Accused?

The Question.
Picture this for a moment. The police send you a notice under Section 91 Criminal Procedure Code [Cr.P.C.] 1973, asking you to furnish some documents in relation to your business. You provide detailed information as provided by your chartered accountant, and move on with life. Three weeks later, the police arrest you for having embezzled money from public funds. The information you gave under Section 91 is now the most incriminating material the police has against you. Can they do so?  

Tricks of the Trade.
Why did I specifically mention Section 91? There is, after all, the more usual method of gathering information by recording statements of witnesses as under Sections 161-62 Cr.P.C. Take a closer look at Section 162(1): not only does it specifically require statements should not be signed, it also restricts them from being used for any purpose other than contradicting the witness. The police are not so blithe and incompetent as to ignore this, which throws Section 161 statements out the window. 

On the other hand, Section 91 Cr.P.C. offers the police brilliant leeway to do as they please. The police can ask you to produce anything really without there being any bar on how the information may be utilised. Have a look:

          91(1) :Whenever any Court or any officer in charge of a police station considers that the production of any document or other thing is necessary or desirable for the purposes of investigation, inquiry, trial or other proceeding under this Code ... such Court may issue a summons, or such officer a written order, to the person in whose possession or power such document or thing is believed to be, requiring him to attend and produce it, or to produce it, at the time and place stated in the summons

Contrary to the Right against Self-Incrimination?
Traditionally, the right against self-incrimination prevents any individual from being a witness against himself. Would the example I raised above be hit by this prohibition? Certainly, until one looks at Article 20(3) of the Constitution of India which guarantees this fundamental right. Unlike the Fifth Amendment to the Constitution of the USA, Article 20(3) does not protect an individual from being a witness against himself. The individual must be accused of an offence to be protected.

This distinction is crucial and meaningful. The Supreme Court has relied on this text to restrict the ambit of Article 20(3), holding that it applies only after there is a formal accusation against an individual [seeRomesh Chandra Mehta v. State of West Bengal, AIR 1970 SC 940]. However attractive (and perhaps principally sound) the argument on self-incrimination appears, there is just no escaping the unambiguous restriction that has been placed by the Constitution. The police aren't prohibited because you aren't an accused, when it mattered.

How to Prove these Documents?
Well, the material can certainly be brought to trial, but what now? The question is very interesting. Documents do not become evidence by merely being exhibited in Court; these have to then be proved by bringing a witness as per Sections 67-73 of the Indian Evidence Act [IEA] 1872. The now-accused person cannot be made a prosecution witness, so how will these documents be provedMany lawyers who I have met recently believe that this is a most pertinent issue, that settles the matter in favour of not using these documents at trial. I disagree.

I would argue that the documents I provided are an admission I made. Section 17, IEA defines an admission as "a statement, oral or documentary or contained in electronic form, which suggests any inference as to any fact in issue or relevant fact". Admissions by a party to proceedings are also considered as admissions [Section 18, IEA.] The documents I submit under Section 91 are certainly suggestive of inferences as to the fact in issue and/or relevant facts, for otherwise I would not be facing trial. Section 21. IEA leaves no doubt that admissions "can be used against person who makes them".

Plugging the Gaps
Intuitively, few would claim using evidence I gave as a witness against me later is fair in a liberal system. I demonstrated how our particular liberal system this is clearly permissible. The rather large Section 91 shaped hole in the law of self-incrimination in India is disturbing, as it allows the police to do indirectly what they could not do directly. Unless the scope of Article 20(3) is broadened to cover any individual, the possibility of such abuse looms writ large.


  1. What about the admissibility of 161 statements in a case different from the one under enquiry?

  2. Hi

    The answer lies in Section 162(1). The second part of this provision reads "nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made".

    As long as the statement is not used in respect of a trial for any offence "under investigation at the time when such statement was made", the 161 statement can be used. But the value of this would be pretty negligible, owing to this being an unsigned statement