Indian Penal Code, 1860 described what “Offences” are and prescribed punishments for committing such offences. Section 2(n) of the Criminal Procedure Code,1973. defines the word “offence” to mean any act or omission made punishable by any law for the time being in force and includes any act in respect of which a complaint may be made under Section 20 of the Cattletrespass Act, 1871. Section 40 of the Indian Penal Code, 1860 defined an “offence” as a thing made punishable by the Code (Indian Penal Code).
The Code of Criminal Procedure, 1973 (Cr.P.C.) came into force from 1.4.1974. It deals with the procedure to be followed in apprehending the criminals, investigating the criminal cases and their trial before the Criminal Courts. It is to provide a machinery for determining the guilt of, and imposing punishment on, offenders under the substantive criminal law, like, the Indian Penal Code (I.P.C.) or offences under any other law. The Code of Criminal Procedure Code, 1973 deals with the entire gamut of procedure to be followed by the Police and the Magistrate courts with regard to arresting of accused, producing them before the Magistrate/ court, Police Custody, Judicial Custody, investigation, Bails, trial etc.,
The word “Arrest” has not been defined under the Cr.P.C. However, as per the popular meaning, the word “Arrest” denotes the apprehension or restrainment or the deprivation of one’s personal liberty to go wherever he pleases. The word “arrest” involves taking into custody of another person under authority of law, for the purpose of holding or detaining him to answer criminal charge and preventing the commission of an offence. Chapter V of the Cr.P.C. deals with Arrest of persons. Section 41(1) of the Code describes the circumstances under which a person can be arrested. Section 41A provides that in all cases where the arrest of a person is not required under section 41(1), a Police Officer shall issue a notice directing the person against whom a complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a Cognizable Offence and the accused who complies with the conditions of the said notice is not required to be arrested. These are the safeguards provided by law to an accused and also to ensure that the Police personnel do not misuse their power.
Section 57 provides that the arrested persons shall not be detained in Police custody exceeding twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate’s Court.
This section also provides that with a special order of the Magistrate under Section 167 of the Code, a Police officer may detain a person in his custody
Section 167 provides that where the investigation cannot be completed within 24 hours, the police officer investigating the offence shall produce the arrested person before the nearest Magistrate within the said period of 24 hours as stated in Section 57. Section 167(2) provides that the Magistrate to whom an accused person is forwarded under this section may, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole.
The expression “Such custody” implies either Police Custody or Judicial Custody.
The purpose of forwarding an accused person to Police custody is to enable the police to interrogate the accused and to gather information and evidence on the crime as part of the investigation so that the offence allegedly committed by the accused can be proven before the Court of law
However, it is not unknown about the police excesses. In Police custody, the accused are coerced, threatened, induced or subjected to physical torture to bring out the ‘truth’. Several accused died in lockup unable to bear the physical torture, ill famously called as “third degree”, during the course of police custody. The central Government shared the details of the custodial deaths reported between April 1, 2017 and March 31, 2022 in all states and Union Territories across India, in the Rajya Sabha in February, 2023 that a total of 146 cases of death in police custody were reported during 2017-2018, 136 in 2018- 2019, 112 in 2019-2021, 100 in 2020-2021 and 175 in 2021-2022.
Whereas our Indian Constitution which is the most humane document gave the citizens human rights not only for mere animal existence but also to lead life to the full and to lead a dignified life.
Article 20(3) of the Constitution of India provided protection to an accused which states that “No person accused of any offence shall be compelled to be a witness against himself”.
This means that an accused need not answer to any of the questions which are self-incriminating. It is for the State/ Prosecution to establish the guilt of the accused. The accused has a constitutional right to be silent.
In the case of Nandini Satpathi Vs.P.L. Dani [AIR1978SC1025], Supreme Court had upheld the right of an accused to be silent. Similarly, in the case of Smt.Selvi Vs. State of Karnataka [2010(7)SCC263], Supreme Court had, while reiterating the right of an accused to be silent, held that, without consent of the accused, no Narco Tests or Polygraph tests be conducted.
The basic principle of criminal jurisprudence is that until guilt is proved, an accused should not be treated as a “criminal” or “convicted” and presumed to be innocent. It is based on the doctrine that it is better that 100 guilty persons escape than one innocent suffer. It is also called as “Blackstone’s Ratio”. Therefore, an accused should be treated with respect and with full dignity. The Police Investigating officer can investigate and gather evidence, prove the same before the court of law beyond doubt and get the accused convicted. As per the criminal jurisprudence, the burden to prove the guilt of an accused is on prosecution/ police.
Therefore, an accused has right to be silent. In consonance therewith, Section 161 of the Code provides as under:
In the case of Nandini Satpathy, Justice V.R.Krishna Iyer stated as under:
‘Third degree’ is an easy temptation where the pressure to detect is heavy, the cerebration involved is hard and the resort to torture may yield high dividends’.
Justice Das Gupta had opined in his minority judgment, in the case of State of Bombay Vs.Kathi Kalu Oghadu [[1962] 3 SCR 10], as under:
“It is sufficient to remember that long before our Constitution came to be framed the wisdom of the policy underlying these rules had been well recognized. Not that there was no view to the contrary; but for long it has been generally agreed among those who have devoted serious thought to these problems that few things could be more harmful to the detection of crime or conviction of the real culprit, few things more likely to hamper the disclosure of truth than to allow investigators or prosecutors to slide down the easy path of producing by compulsion, evidence, whether oral or documentary, from an accused person. It has been felt that the existence of such an easy way would tend to dissuade persons in charge of investigation or prosecution from conducting diligent search for reliable independent evidence and from sifting of available materials with the care necessary for ascertainment of truth. If it is permissible in law to obtain evidence from the accused person by compulsion, why tread the hard path of laborious investigation and prolonged examination of other men, materials and documents ?
It has been well said that an abolition of this privilege would be an incentive for those in charge of enforcement of law to sit comfortably in the shade rubbing red pepper into a poor devil’s eyes rather than to go about in the sun hunting up evidence’. (Stephen, History of Criminal Law, p. 442). No less serious is the danger that some accused persons at least, may be induced to furnish evidence against themselves which is totally false-out of sheer despair and an anxiety to avoid an unpleasant present. Of all these dangers the Constitution makers were clearly well aware and it was to avoid them that Article 20(3) was put in the Constitution.”
Therefore, the burden is on the Police/ Prosecution to prove the guilt of the accused and the accused has the right to be silent. It is recognized and acknowledged by the Supreme Court in Nandini Satpathy’s case that when investigators are under pressure to deliver results there would be a tendency to apply and rely on methods involving coercion, threats, inducement or deception in spite of the legal prohibitions against them.
When an accused has right to be silent, the question of handing over the accused to Police Custody does not or should not arise.
Justice Das Gupta had opined in his minority judgment, in the case of State of Bombay Vs.Kathi Kalu Oghadu [[1962] 3 SCR 10], as under:
“It is sufficient to remember that long before our Constitution came to be framed the wisdom of the policy underlying these rules had been well recognized. Not that there was no view to the contrary; but for long it has been generally agreed among those who have devoted serious thought to these problems that few things could be more harmful to the detection of crime or conviction of the real culprit, few things more likely to hamper the disclosure of truth than to allow investigators or prosecutors to slide down the easy path of producing by compulsion, evidence, whether oral or documentary, from an accused person. It has been felt that the existence of such an easy way would tend to dissuade persons in charge of investigation or prosecution from conducting diligent search for reliable independent evidence and from sifting of available materials with the care necessary for ascertainment of truth. If it is permissible in law to obtain evidence from the accused person by compulsion, why tread the hard path of laborious investigation and prolonged examination of other men, materials and documents ?
It has been well said that an abolition of this privilege would be an incentive for those in charge of enforcement of law to sit comfortably in the shade rubbing red pepper into a poor devil’s eyes rather than to go about in the sun hunting up evidence’. (Stephen, History of Criminal Law, p. 442). No less serious is the danger that some accused persons at least, may be induced to furnish evidence against themselves which is totally false-out of sheer despair and an anxiety to avoid an unpleasant present. Of all these dangers the Constitution makers were clearly well aware and it was to avoid them that Article 20(3) was put in the Constitution.”
Therefore, the burden is on the Police/ Prosecution to prove the guilt of the accused and the accused has the right to be silent. It is recognized and acknowledged by the Supreme Court in Nandini Satpathy’s case that when investigators are under pressure to deliver results there would be a tendency to apply and rely on methods involving coercion, threats, inducement or deception in spite of the legal prohibitions against them.
When an accused has right to be silent, the question of handing over the accused to Police Custody does not or should not arise.
The former Supreme Court Justice V.R.Krishna Iyer said “the basic rule may perhaps be tersely stated as Bail, not Jail.” In the case of Satender Kumar Antel Vs.Central Bureau of Investigation [(2021)10SCC 773], Supreme Court elaborately discussed about the concept of personal liberty and emphasized on the need based arrest of accused persons. Recently, Supreme Court had sent a Session Judge of Lucknow Court to judicial academy for upgradation of his judicial skills for not following its catena of judgements in granting of bails to accused persons. Similarly, in the landmark case of Arnesh Kumar Vs.State of Bihar [2014 8 SCC 273], Supreme Court had emphasized the need of maintaining a balance between individual liberty and societal order while exercising the power of arrest. Supreme Court expressed its utter dissatisfaction over the Magistrates routinely authorizing the accused to be sent to Police Custody on mere asking for it by the Police
Therefore, when an accused need not be a witness against himself as per Article 20(3) of the Constitution of India, when an accused need not even be required to be arrested in all the cases, when “Bail” is the basic rule, when Section 161(2) of the Code of Criminal Procedure, 1973 provides that the accused need not state anything which is self-incriminating and the above said provisions of the Evidence Act, 1872 which provide that any confessional statements made by an accused in Police Custody are not admissible before the court, then enacting Section 167 which empowers the Magistrate to allow police custody of the accused for interrogation of the accused is not only illogical but also unconstitutional. When an accused is arrested in the circumstances as mentioned in Section 41 of the Code, i.e., when a person is accused of an offence which attracts the punishment of imprisonment for more than seven years and/or may commit another crime or tamper with or destroy the evidence or run away from justice and consequently arrested, he or she can be forwarded to judicial custody to ensure that the accused does not resort to any of such things during the course of investigation.
It is this provision which enables the police to take custody of accused when the police may have an opportunity to resort to excesses, the notoriously called “third degree” methods.
When the accused has the constitutional right to be silent and need not be arrested in all the cases, it is rather legislative excess to confer the power on the Magistrate to send an accused person to Police Custody, especially when Supreme Court has been frowning upon the lower courts for denying bail to the accused persons and reiterating several times that the accused need not be arrested in all the cases routinely.
Therefore, Section 167 of the Code in so far as it provides for empowering the Magistrate to forward an accused person to Police custody is clearly in violation of Article 20(3) and unconstitutional. Hence, it is time for the Parliament to amend Section 167 of the Code and explicitly provide for not forwarding or sending the accused persons to Police Custody in true spirit of Article 20(3) of the Constitution of India.
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