STATE OF DELHI Vs. MOHD AKRAM

JUDGEMENT

(1.) The learned Metropolitan Magistrate under Section 395, Cr. P.C. referred the following question for decision to the High Court :- "Whether the provision of Section 103 of the Delhi Police Act is vlolative of Article 20(3) of Constitution of India?"

(2.) One Mohd. Akram accused was challaned under Section 103 of the Delhi Police Act. He was found to be in possession of a car stereo. There was reason to believe that it was stolen or fraudulently obtained. He failed to account for its possession, when questioned by the police. Accordingly, he was challaned to stand trial for offence punishable under Section 103 of the Delhi Police Act.

(3.) The learned Magistrate on an analysis of ingredients of Section 103 of the Delhi Police Act reached the conclusion that under it, an accused is obliged to account for his possession of property or his act of offering for sale or pawning the properly, believed to be stolen or fraudulently obtained. If he chooses not to account for his possession/or his act, his silence is used for drawing an unfavourable inference. The learned Magistrate concluded that an adverse inference being drawn from silence of accused amounted to compulsive testimony against himself. In case, accused takes a stand to account for his possession, he renders himself liable to cross-examination. The testimony in cross-examination in such circumstances would be the result of coercive pressure of the provision rather than his own volition. On the above reasoning, the learned Magistrate found Section 103 of Delhi Police Act violatlve of principle of protection against self-incrimination as enshrined in Article 20(3) of the Constitution of India. According to the Learned Magistrate, Article 20(3) precludes a Judge from commenting upon the conduct of an offender on his failure to give evidence or to account for the possession over the object recovered from him. The Magistrate was of the view that if a Judge cannot compel an accused to make a statement against himself, he cannot draw an. inference against him for observing silence. He concluded that to draw an inference on refusal was In fact punishing a person who seeks to exercise his rights under Art. 20(3) of the Constitution of India. The Magistrate thus concluded that provision of Section 103 of the Delhi Police Act was violative of the protection contained in Article 20(3) of the Constitution of India and referred the same to this Court-for determination: