This article has been written by Hrithik Maji, pursuing a Certificate Course in Advanced Criminal Litigation & Trial Advocacy from LawSikho.

Introduction 

Since the day a person is born, he has certain rights, which are guaranteed by the Constitution. The Constitution provides us many rights like the right to equality, the right to freedom, the right to education, etc. Right to silence is one of them. 

Right to silence or the right to not speak is given to an accused. During the interrogation in police custody, an accused can be silent and it is to be presumed that he/she is innocent until he /she proves guilty. This right is protected in the Constitution of India under Article 20(3) as a part of fundamental rights, which flow from the right against self-incrimination. Self-incrimination means that saying or doing something which shows that you are guilty of a crime. Not only the Indian constitution, but the criminal statute of India has also ensured the right to silence its citizens through several provisions. In this article, we would discuss the recent case Prahlad v. The State of Rajasthan, where the court held the accused guilty by drawing adverse inference and also the constitutional validity of such practice of drawing an adverse inference. The word ‘adverse inference’ suggests that the court is authorized to draw ‘such inferences as appear proper’ including an unfavorable decision from the defendant’s silence; in other words, the court may hold the defendant’s silence against him.

Prahlad v.State of Rajasthan

The aforesaid case was involving the murder of an eight-year-old girl child who was brutally raped. The trial court held the accused guilty under Section 302 of the Indian Penal Code and Section 4 of Protection of Children from Sexual Offence Act by drawing adverse inference, as he was the last person seen with the girl while buying sweets from the shop thereafter she went missing. Her body was found the next morning. The judgment was corroborated by the High Court. The accused challenged his conviction and filed a petition in the Supreme Court. 

The Supreme Court pardoned him from the POCSO charges due to a lack of valid evidence against him. However, he was sentenced to murder. The conviction was established on an adverse inference drawn by the Court from the failure of the accused to illustrate the incidents which followed after he purchased the sweets for the girl. Apart from the fact that the accused was the last person seen with the girl, the Court fully depended on the adverse inference drawn from the quietness of the accused to sentence him for her killing. A circumstance of last seen together does not by itself lead to the inference that the accused had committed the crime and a mere non-explanation by the accused about the same cannot lead to the same inference. Thus, the question which occurs from the decision is that it sets a precedent for conviction on criminal charges based on adverse inferences drawn from the silence of the accused under Section 313 of the Code of Criminal Procedure, 1973.

Section 313 and Right to remain silent

In the Trial stage section, Section 313 of the Code of Criminal Procedure provides the right to silence. The Section specifies the power of the Court to question the witness at any phase of the trial about circumstances appearing in the evidence against him. The accused is not supervised by an oath when he is examined under sub-clause (3) of this Section and is not responsible to be penalized for not replying or giving a false explanation during such an examination. In Raj Kumar Singh @ Raju @ Batya v. the State of Rajasthan, the court held that the accused must give a justification in his declarations under Section 313, Cr.P.C. regarding any incriminating substance that has been produced against him. If the accused has been provided the independence to remain silent during the investigation as well as before the court, then the accused may choose to maintain silence or even remain in complete denial when his statement under Section 313, Cr.P.C. is being recorded. However, in such an event, the court would be entitled to draw an inference, including such adverse inference against the accused as may be permissible by the law. 

However, there is no express provision that requires an explanation from the accused. Moreover, the Section exemplifies the right to silence the accused when it provides that the denial to reply by the accused is not punishable. Furthermore, it can be inferred from the non-administration of the oath to the accused before such inspection that the alleged person is not under any compulsion to reply to any questions raised under this Section. Thus, Section 313, in spirit, acts as a relief to the alleged person to clarify or deny any incriminating evidence against him if he feels fit. The Section also offers that explanations provided by the alleged person may be taken into consideration by the Court. This makes it more significant that the alleged person must reply only when he is sure that his reply could not be used as proof against him and further shows the importance of his right to silence.

Right to silence under Article 20(3)of the Constitution of India

In India, the right to silence is in the form of a part of the right against self-incrimination under Article 20(3)of the Constitution of India. The Article says that – “No person accused of an offence shall be compelled to be a witness against himself. “” This article is based on the maxim “Nemo tenetur produce access are seipsum”, which means “No man is bound to accuse himself.” Ingredients of the Article 20(3):- 

• The person accused of an offense. 
• The compulsion to be a witness.
• Compulsion resulting in giving evidence against himself. 

The person accused of an offense 

The person accused of an offense or whose against F.I.R has been registered/can take the privilege of Article 20(3) before giving any statement. The person cannot take the protection if at the time he made the statement he was not an accused but becomes accused after that. Article 20(3) not giving any protection to the alleged government servant at the time of departmental. 

In Nandini Satapathy v. P. L Dani, the accused was former Odisha chief minister. She was directed to appear in the vigilance police station for a case against her under section 109,120B,161,165 of the Indian Penal Code and Prevention of Corruption Act 1947. Where police interrogate her with lots of questions. She denied answering all the questions. Supreme Court held that the accused is protected under 20(3) and it comes into force to protect from police harassment so it will extend to police investigation also. 

The compulsion to be a witness

The protection under Article 20(3) of the Constitution will be available only when the person would be compelled to be a witness. In the case of, State of Bombay V. Kathikalu Og had the Supreme Court held that for taking protection under Article 20 (3) there must be some compulsion to give such a statement that can incriminate him. There shouldn’t be any state of mind like threatening, beating, imprisonment of wife or parents or children, etc. But if the person confesses without any threat or inducement Article 20(3) does not apply. 

In M.P Sharma v. Satish Chandra, the Supreme Court gave a broad statement of the expression “to be a witness” which was extensive of testimonial, oral, and documentary evidence. but giving foot impressions, or impression of thumb or fingers or samples of writings or exposing a body for identification are not covered by the expression ‘to be a witness’ under Article 20(3). The Court also held that the protection not only included testimonial compulsion in the Courtroom but also included compelled testimony previously obtained from him.

Compulsion resulting giving evidence against himself

An accused, who is compelled to be a witness and so compelled to give evidence against himself only then he/she can take protection under Article 20(3). In Amrita Singh v. the State of Punjab, the accused had charges of murder and rape of a minor girl. During the investigation, some samples of hair were found near the dead body. When police wanted to lab test the accused’s hair, he refused to do so. The court held that the accused is protected under Article 20(3).

Legislative intent

The legislative objective behind contemplating the process of drawing adverse inferences from the accused’s quietness can be defined by barely relating Section 313 of the Cr.p.c, 1973 with Section 342 of the Cr. P.c, 1898. Section 342 (2) stated:

“The accused shall not render himself liable to punishment by refusing to answer questions or by giving false answers to them, but the court and the jury (if any) may draw such inference from such refusal or answers as it thinks fit.” Section 313(3) of the new Code states:- “The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them.”

It is acceptable from the above announcement that the new code did not want to keep the practice of the Court to draw inferences from the denial of the accused to answer the questions asked to him under Section 313. The practice was dropped due to the prologue of Article 20(3) in the Indian Constitution which gave for protection against self-incrimination.  Well-known jurist D.D. Basu in his analysis stated while taking into account the dissenting statement of the judges in Adamson v. California that the constitutional importance of such a right under Article 20(3) is that, “if you cannot impel a convicted to make a statement against himself, you cannot draw any inference against him because he stays quiet, since that would impose him to speak, instead of remaining silent.” He also asserted that “to draw an adverse inference from the denial to testify is indeed to penalize a person who seeks to utilize his right under Article 20(3). Just as no inference of guilt can be prepared from the fact that the accused is invoking the safety of Article 20(3), so no inference of guilt can be made from the mere fact that he refuses to answer or to make a statement.” Thus, the legislative goal of the makers of the Code was never to approve adverse inferences to be brought to the detriment of the accused as it would threaten the fundamental right of the alleged person under Article 20(3).

Conclusion

Right to silence or the right to not speak is fundamental to any criminal jurisprudence of almost all the nations except a few nations. It came into force to protect the accused from unnecessary harassment by the police. The constitutional assurance under Article 20(3) of the Constitution, further, supports the right to silence of the accused. The exercise of drawing an adverse inference from the accused utilizing his right to silence would equal testimonial compulsion and would infringe Article 20(3). The legislative objective of the makers of the new Code while declining the previous provision enabling adverse inferences to be drawn from the ref that the accused to answer a quest to under Section 313 of Cr.P.C., 1973 demonstrates the same line of thought.

The court should declare ‘right to silence’ for an unrestricted right as part and parcel of ‘the right to free trial (Article 21)’ and in the process establish its rarity in the field of criminal law.

References

1. https://www.researchgate.net/publication/272954500_Drawing_Adverse_Inferences_from_the_Non-production_of_Evidence
2. https://indiankanoon.org/doc/45763796/
3. https://blog.ipleaders.in/right-against-self-incrimination/amp/#aoh=16239192418130&referrer=https%3A%2F%2Fwww.google.com&amp_tf=From%20%251%24s
4. https://cclnusrl.wordpress.com/2020/04/14/right-to-silence-a-grey-area-in-criminal-jurisprudence-in-the-light-of-prahlad-v-state-of-rajasthan-vishwas-agarwal/
5. https://criminallawstudiesnluj.wordpress.com/2019/05/15/a-case-on-silence-dissecting-the-right-to-silence-of-an-accused/amp/#referrer=https://www.google.com&csi=0

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