Criminal Investigation

Understanding the conundrum: Forcing to give specimen handwritings during the investigation to subsume under ‘compelled to be a witness against himself’

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Introduction

Article 20(3) of the Indian Constitution provides an accused with immunity against self-incrimination.  It is founded on the legal principle “nemo teneteur prodre accussare seipsum,” which translates to “No man is required to testify against oneself.” This right may extend to the accused’s testimony in court, compulsion on the accused to produce or permit the collection of material evidence, legal compulsion to respond to questions, adverse assumptions drawn from silence, psychological persuasion to answer questions, confession of guilt, or coercion by torture or other forms of inhuman or degrading treatment.

The legislature has protected a citizen’s right against self-incrimination in the Criminal Procedure Code. In accordance with section 161 (2) of the Code of Criminal Procedure, a person is obliged to answer truthfully any questions posed by a police officer, with the exception of those whose replies might subject the person to a criminal accusation, punishment, or forfeiture. But Article 20(3) does not apply when the accused confesses without any enticement, fear, or promise.

‘A witness against himself’ within the meaning of Article 20(3) of the Constitution

Article 20(3) reads that –

“No person accused of any offence shall be compelled to be a witness against himself”

The protection against self-incrimination is an essential principle of common criminal law jurisprudence. This provision’s distinguishing qualities are that

  • the charged is presumed to be innocent,
  • the prosecution is responsible for establishing his guilt,
  • and that the accused is not required to make any statements against his will.

This clause includes the following elements:

  • The accused has the right to stay silent or to avoid self-incrimination.
  • The right exempts a person from becoming a witness against oneself.
  • It gives protection against coercion that might result in his providing evidence against himself.

A person accused of a crime cannot be compelled to witness against himself. The law states that nobody must incinerate himself. The prosecution is responsible for establishing guilt. The authorities must remind the accused of his right to remain silent and inform him that any statements he makes against himself may be used against him. A statement given under the influence is inadmissible in court.

Also, Article 11.1 of the Universal Declaration of Human Rights, 1948 specifically provides that everyone charged with a criminal offence has the right to be presumed innocent unless proven guilty in a public trial where he has afforded all essential protections for his defense. On similar lines, the International Covenant on Civil and Political Rights, 1966, to which India is a party, states in Art. 14(3)(g) states no one can be compelled to testify against oneself or to admit guilt.

Forcing/Compelling someone to give specimen handwriting

If the accused is subjected to compulsion and gives a statement while under its effect, the court must disregard it. That is to say, he cannot be compelled to witness against himself. A non-voluntary statement cannot be used as a witness.

In Nandini Satpathy Vs. P.L. Dani, it was held that the protection extends not only to the use of the information obtained as evidence in a criminal prosecution but also to the extraction of the incriminating statements.

In Kalawati v. State of H. P., the supreme court of India ruled that Article 20(3) cannot be enforced if the statement was given willingly and was not coerced by fear, enticement, or promise. Similarly, even if retracted confessions have limited probative value, they are not in violation of this condition.

To comprehend the reach of “compulsion” “to be a witness,” it is necessary to comprehend the court processes that attempted to offer a clearer understanding of this article and its breadth. In the M.P. Sharma v. Satish Chandra case, the term “to be a witness” was given a fairly broad connotation. It was determined that the compelled collection of fingerprints or handwriting samples also violates a person’s right and may be invoked under Article 20. (3). However, a subsequent judgment, State of Bombay v. Kathi Kalu, decided that “to be a witness” is not synonymous with “providing evidence.” Thus, the capturing of fingerprints, samples of handwriting, or obligatory pictures would not fall within the definition of “to be a witness”; if this is the case, it would compromise the integrity of the court system. Additionally, the court defined the concept of “to be a witness” by stating that it would only include personal information.

Interpreting State of Bombay v. Kathu Kalu, in light of compelling witness to give specimen handwritings during the investigation of a case

The Supreme Court’s ruling in the State of Bombay v. Kathu is still applicable and has been adopted in future rulings. In Kathu Kalu’s case (Supra), the majority held that to be a “witness” may be equivalent to providing evidence in the sense of making oral or written statements, but that giving a thumb impression or impression of palm or foot or finger, specimen writing, or exposing a part of one’s body for identification purposes are not included in the expression “to be a witness.” The framers of the Constitution may have sought to shield the accused from the dangers of self-incrimination, based on English law on the issue. They could not have aimed to impede an efficient and effective investigation of the crime and bringing the criminals to justice. It is just as important to safeguard the accused from being compelled to incriminate himself as it is to provide law enforcement and courts with the legal authority to bring criminals to justice. The court ruled that finger impressions or samples of signatures or handwriting are not admissible as witnesses. Being a witness entails communicating knowledge of pertinent facts orally or in writing by a person with personal knowledge of the facts to be conveyed to a court or to a person conducting an investigation or inquiry. A person is considered a witness to a certain state of facts that must be determined by a court or other decision-making authority when he testifies to what he has seen, or something he has heard that is capable of being heard and is not barred by the rule excluding hearsay, or when he gives his opinion as an expert on matters in dispute. In addition, it was determined that when an accused individual is requested by a court or other investigating body to provide a finger impression, signature, or sample of his handwriting, he is not providing a ‘personal testimony.’ The decision to provide a personal testimonial must be his own. He is free to make any type of comment or to make none at all. However, it is impossible to alter the inherent nature of his fingerprints or handwriting notwithstanding his attempts to disguise their actual nature via deception. Thus, the provision of finger imprints, writing samples, or signatures by an accused person is not included in the phrase “to be a witness,” despite the fact that it may constitute providing evidence in a broader sense.

Concluding remarks and my opinion

The law states that an accused person is deemed innocent unless proved guilty, and Article 20(3) is necessary for this reason. Article 20(3) of the Indian Constitution defends the accused’s rights and protects him from inhumane treatment. There are three requirements to trigger this section. The right is only accessible to an accused and may only be claimed in criminal procedures, not civil ones. Section 161(2) of the Criminal Procedure Code ensures identical rights for the accused. If a person legitimately and voluntarily delivers a statement that is evidence against himself, it would be admissible in court. Second, it is the responsibility of the authorities to convince the individual that he has the right to remain silent. In other words, the accused must be informed of his rights. This privilege is available to the accused at any moment throughout the criminal proceedings. A person must not be coerced to speak against himself; there should be no element of compulsion. Thirdly, the statement must serve as evidence against the speaker. No one should be compelled to cremate himself; thus, this right is extended to every person on earth.

In my personal opinion, a boundary should be drawn between an individual’s rights and the administration of justice. The right to remain silent is a crucial clause that protects the rights of an accused throughout the inquiry process. No one should be coerced into saying anything that may be used against him. There is a distinction, however, between gathering proof and compelling someone to confess. Until and unless a ‘compulsion’ is issued, anything is authorised in order to extract evidence, which is crucial to the investigation process.


ABOUT THE AUTHOR

Kamlesh Vishnoi

Kamlesh is a final year honours student of criminal law at National Law University, Jodhpur. He can be reached at kamlesh@nlujodhpur.ac.in.

5 comments on “Understanding the conundrum: Forcing to give specimen handwritings during the investigation to subsume under ‘compelled to be a witness against himself’

  1. Really Insightful analysis of complex issues. Thank you.

    Like

  2. Really Insightful analysis of complex issues. Keep it up Mr Kamles.

    Like

  3. Vidani Singh

    Well articulated and research article. Improving the quality of the platform.

    Like

  4. Nice blog and more useful information in your blog. we also a new era law firm name as JPV Law Associates
    who dedicated to provide pioneering solutions to its clients.

    Like

  5. Siddhi Pareek

    Great Read Mr. Kamlesh! Thanks for sharing.

    Like

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