SUBEDAR Vs. STATE

JUDGEMENT

(1.) This Revision springs from an alleged violation of the fundamental right granted under Clause (3) of Article 20 of the Constitution in the words: 'No Person accused of any offence shall be compelled to be a witness against himself. The question is of importance and requires careful consideration.

(2.) The facts are these. Dhanna filed a complaint for offences under Sections 420, 405, 467 and 384 I.P.C. against four persons including one Subedar, and when the Magistrate decided to make a preliminary enquiry under Section 202 Cr. P. C., got them summoned as his witnesses in order to satisfy the Magistrate that there was just ground for issuing process against them. Three of the accused duly appeared and were examined as witnesses. But Subedar did not respond, and consequently Dhanna got a warrant issued against him. When he appeared in execution of the warrant he claimed the privilege of Article 20 (3) of the Constitution and contended that he could not be compelled to give evidence against himself. The learned Magistrate held that Subedar could not claim the privilege so long as he was not summoned as an accused person, and further that there were certain rulings which permitted an accused person to be examined as a witness under section 202 Cr. P. C. Accordingly he overruled Subedar's contention and directed him to testify. Subedar filed a Revision before the Sessions Judge, and having failed there has come up in Revision to this Court. The stand he has taken is that the learned Magistrate's order contravenes Article 20 (3) inasmuch as it amounts to compelling him to furnish evidence against himself.

(3.) The doctrine of immunity from self-crimination is founded on the presumption of innocence which characterises the English system of criminal justice, and a fundamental principle of that system of justice (which differs from the inquisitorial procedure obtaining in Prance and some other Continental countries) is that it is for the prosecution to prove the guilt of the accused and that the latter need not make any statement if he does not want to. In the words of Mayne in his "Criminal Law" "It is the business of the Crown to prove him guilty, and he need not do anything but stand by and see what case has been made out against him......He is entitled to rely on the defence that the evidence as it stands is inconclusive and that the Crown is bound to make it conclusive without any help from him." The English Criminal Evidence Act of 1898 provides that although the accused is competent to be a witness on his own behalf, he cannot be compelled to give evidence against himself, and that if he does give evidence in his defence, the prosecution may comment upon such evidence but must not comment upon his omission to do so.