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TMI Blog1961 (9) TMI 24X X X X Extracts X X X X X X X X Extracts X X X X ..... 1956, the following issues were framed : "(1)Whether the application is maintainable under section 185 of the Indian Companies Act, 1913 ? (2)Whether the respondent is in possession of the sums in question belonging to the company ? " On 22nd July, 1960, the evidence for the official liquidator was closed and 19th August, 1960, was fixed for recording the evidence for the respondent, and on that day this application (LM 89 of 1960) was made praying for the adjournment of the proceedings in CO 38 of 1956 till after the decision of the criminal case pending against the respondent. Inter alia, it was also said that the subject-matter of the petition CO. No. 38 of 1956 also formed part of the subject-matter of the criminal complaint filed against the respondent in the criminal court at Delhi. It was said, that if the respondent made any statement in this court in CW No. 38 of 1956, the prosecution was bound to take advantage of it and it would seriously prejudice the defence of the respondent in the criminal case. On these grounds, it was stated that the respondent should not be examined till the criminal case was decided and he should not be compelled to depose to facts which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... principles of law embodied in article 20(3) have a very ancient lineage. A brief reference to their ancestry and the historic process through which they passed, and their recognition and development in recent times in the countries of their origin and adoption, will be of help in understanding their scope and limitations. The naked words of the statute governing constitutional privileges are not always a safe guide for determining their applicability. Where fundamental rights are involved it is the senlentia legis more than nuda verba which throws light and gives guidance. Referring to the privilege against self-incrimination Professor Wigmore said, "the woof of its long story in woven across a tangled warp composed in part of the inventions of the early colonists of the momentous contest between the courts of the common law and of the church, and of the political and religious issues of that convulsive period in English history, the days of the dictatorial Stuarts: (Wigmore on Evidence, Vol. VII, Art. 2250). This privilege was asserted first by way of opposition to the ex officio oaths of the ecclesiastical courts; and the second in opposition to the incriminating question ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d from sources other than the mouth of the accused, whereas, under the inquisitorial system the investigators try to get their case established from confessional answers to the questions put to the accused. It was the English opposition to the inquisitorial system which led ultimately to the acceptance of the right of silence. Frankfurter J. delivering the opinion of the Supreme Court of the United States in Waits v. Indiana 338 US 49, 54-55 ; 93 Law Ed. 1801,1806, said : "Ours is the accusatorial as opposed to the inquisitorial system. Such has been the characteristic of Anglo-American criminal justice since it freed itself from practices borrowed by the Star Chamber from the continent whereby an accused was interrogated in secret for hours on end ................ Under our system society carries the burden of proving its charge against the accused not out of his own mouth. It must establish its case, not by interrogation of the accused even under judicial safeguards, but by evidence independently secured through skilful investigation. 'The law will not surfer a prisoner to be made the deluded instrument of his own conviction'. 2 Hawkins, Pleas of the Crown C. 46, Art. 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial to the ends of justice. It was also said that the danger to be apprehended by the person must be real and appreciable having regard to the ordinary operation of law in the ordinary course of things, and not a danger of any imaginary and unsubstantial character, having reference to some extraordinary and barely possible contingency, so improbable that no reasonable man would suffer it to influence his conduct. It was also laid down that to entitle a party called as a witness to the privilege of silence, the court must see from the circumstances of the case, and the nature of the evidence which the witness is called to give, that there is reasonable ground to apprehend danger to the witness from his being compelled to answer. See also Reynolds, In re [1882] 20 Ch. D. 294 (CA). The colonists to America brought with them the rule cherished in England. In their anxiety to give greater permanence to the traditional rule of common law, the framers of the State Constitutions gave it statutory recognition in order to put it beyond the reach of ordinary legislative interference. The variety of phraseology does not in any way affect the basic core of the principle against compulsory ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffect of supplanting the privilege conferred by the Constitution of the United States." The principle when held applicable has been liberally construed in order to give fullest effect to the immunity and the protection afforded to a person against compulsory self-accusation (see also Arndstein v. McCarthy 54 US 701, 702-703; Hoffman v. United Stales. Hoffman's case ( supra ) which was decided in 1951 by the Supreme Court was followed in 1954 by the Court of Appeals in Maffio v. United States 209F. 225, 227, and Magruder CJ. said : "Our forefathers, when they wrote this provision into the fifth Amendment of the Constitution, had in mind a lot of history which has been largely forgotten to-day. See VIII Wigmore on Evidence (3rd ed. 1940) Art. 2250 et seq. ; Morgan, The Privilege Against Self-Incrimination, 34 Minn. L. Rev. 1 [1949]. They made a judgment and expressed it in our fundamental law, that it were better for an occasional crime to go unpunished than that the prosecution should be free to build up a criminal case, in whole or in part, with the assistance of enforced disclosures by the accused. The privilege against self-incrimination serves as a protection to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ed. 288, observed: "Indeed, today as in the past, there are students of our penal system who look upon the immunity as a mischief rather than a benefit, and who would limit its scope or destroy it altogether. No doubt there would remain the need to give protection against torture, physical or mental. Justice, however, would not perish if the accused were subject to a duty to respond to orderly enquiry. " On this matter, Professor Wigmore expressed himself as follows : "In preserving the privilege, however, we must resolve not to give it more than its due significance. We are to respect it rationally for its merits, not worship it blindly as a fetish. We are not merely to emphasise its benefits, but also to concede its shortcomings and guard against its abuses. Indirectly and ultimately, it works for good, for the good of the innocent accused and of the community at large. But directly and concretely, it works for ill, for the protection of the guilty and the consequent derangement of civic order. The current judicial habit is to ignore its later aspect and to laud it indiscriminatingly with false cant........ The privilege, therefore, should be kept within limits the stricte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f our Constitution, and elevated to the status of a fundamental right,0020had behind it, a very long history spread over centuries which have witnessed submission to, struggle with, and triumph over, tyranny. In India, prior to the Constitution, the principle was given a limited recognition in the Criminal Procedure Code, in respect of accused persons, and in the Indian Evidence Act, so far as it affected witnesses. The earlier criminal procedures for courts in the presidency towns, and in the mofussil, were consolidated for the first time by the Criminal Procedure Code (Act 10 of 1882). The law of criminal procedure, as it stood before the enactment of Act 10 of 1882, gave a great latitude to the courts relating to the examination of an accused person. The power of interrogating the accused was limited by the framers of Criminal Procedure Code (Act 10 of 1882), so that the accused may not be interrogated with a view to elicit from him some statement which might lead to his conviction. With this object in view, the words in the first paragraph of section 342 "for the purpose of enabling the accused to explain any circumstances appearing in the evidence against him" were added. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubject him to any arrest or prosecution, or be proved against him in any criminal proceeding, except a prosecution for giving false evidence by such answer." The first paragraph which embodied the law prior to the addition of the proviso denied to the witness a protection which was recognised by English law. By the addition of the proviso a qualified protection is extended to the witness who is indemnified against criminal prosecution except where he has perjured himself. The privilege of silence embodied, in the principle that no one is bound to criminate himself : nemo tenetur seipsum prodere, extended the privilege to the accused persons and witnesses alike both in England and in America. Similar privilege was formerly recognised in India, but it was withdrawn by section 32 of Act 2 of 1855. By the addition of the proviso, a compromise has been effected. The Legislature in India thought that the existence of the privilege " in some cases tended to bring about a failure of justice, for the allowance of the excuse, when the matter to which the question related was in the knowledge solely of the witness, deprived the court of the information which was essential to its arriving at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r it can be waived, and the waiver of the privilege will be implied, because of the accused's own option given in writing to appear as a witness. It is urged that S. Sardul Singh Caveeshar has a dual status; so far as the proceedings in this court are concerned he will only be a witness, but in the proceedings pending in the court of the Magistrate, he is an accused person and the criminal charge there and the enquiry here under section 185 of the Indian Companies Act cover the same ground. I may now address myself to the respective contentions of the parties. Mr. B.R. Tuli, learned counsel for the respondent, has relied upon Sharma v. Satish Chandra [1954] SCR 1077 , Allen Berry Co. (P.) Ltd. v. Vivian Bose ILR [1960] Punj. 466, Shankerlal v. Collector of Central Excise, Madras AIR 1960 Mad. 225 , Farid Ahmed v. State AIR 1960 Cal. 32 , and Madhava Naik v. Popular Bank Ltd. [1960] 30 Comp. Cas. 501 (Ker.) Mr. D.D. Khanna, learned counsel for the official liquidator, sought support from Maqbool Hussain v. State of Bombay [1953] SCR 730, Venkataraman v. Union of India [1954] SCR 1150, Raja Narayan Bansilal v. Maneck Phiroz Mistry [1960] 30 Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dras AIR 1960 SC 756, 761. After citing the above passage, it was observed by Imam J., who delivered judgment of the Supreme Court : "These observations were unnecessary in Sharma's case ( supra ) , having regard to the fact that this court held that the seizure of documents on a search warrant was not unconstitutional as that would not amount to a compulsory production of incriminating evidence". At page 760, dealing with the scope of article 20(3) of the Constitution, Imam J. said : "Before this provision of the Constitution comes into play two facts have to be established (1) that the individual concerned was a person accused of an offence and (2) that he was compelled to be a witness against himself. If only one of these facts and not the other is established the requirements of article 20(3) will not be fulfilled." In Shankarlal v. Collector of Central Excise, Madras AIR 1960 Mad. 225, notices had been issued to the petitioners under section 171A of the Sea Customs Act, 1878 to appear before the Customs Officer to show cause why penalty should not be imposed under section 167(8). It was held that as the proceedings were not judicial and petitioners were not accused, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... produce documents, he cannot be said to be a person who is accused of any offence as required by article 20(3), and, therefore, the provisions of section 240 do not offend against the fundamental rights guaranteed by article 20(3), as, at the commencement of the enquiry and throughout its proceedings there is no accused person, no accuser and no accusation against anyone, that he has committed an offence. On the basis of the above reasoning Mr. Khanna argued, with some justification, that when an application under section 185 of the Indian Companies Act, 1913, is made, the respondent is not an accused person and the official liquidator is not the accuser and there is no investigation as to the commission of any offence. The Supreme Court in Raja Narayan Bansilal's case ( supra ), also referred to its earlier decision in Venkataraman v. The Union of India [1954] SCR 1150, and also to the case of Maqbool Hussain v. State of Bombay [1953] SCR 730, which, though were not under article 20(3), but in which the general scope of article 20 had also been considered. In Maqbool Hussain's case ( supra ) Bhagwati J. said : 'The very wording of article 20 and the words used there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t be made absolute, in any way compel him to be a witness against himself, and even if a person in this position has for the purpose of securing the release of the property from attachment to reveal incidentally the whole or part of what his answer to the charge against him will be, I still do not consider that the provisions of article 20(3) of the Constitution are violated." In this case, a criminal case was pending against the petitioner and others on the basis of a case registered by the police under section 120B, read with sections 420, 409 and 477-A, Indian Penal Code. Ordinance No. 38 of 1944 was passed with the object of securing the return to the Government of the money or property in question on the conclusion of the criminal case if it results in the conviction of the accused. The District Judge acting under the Ordinance had passed an ad interim order to the effect that the property mentioned in the schedule be attached and consequently a notice was issued to the petitioner and others for appearance to show cause why the order should not be made absolute. In the writ petition made to the High Court, the contention of the petitioners that the Ordinance was violative of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led to give, which shall not subject him to any arrest or prosecution, or be proved against him in any criminal proceeding, except a prosecution for giving false evidence by such answers. The statement which would be made in this court, assuming that it would contain self-incriminating matters, is no evidence in the criminal proceedings. For these reasons, I am not at all satisfied that, by volunteering to appear as his witness in proceedings under section 185, the respondent is being deprived of the protection guaranteed under article 20(3). The constitutional interdiction relied upon by the respondent would operate only where a person accused of any offence is being compelled to be a witness against himself, but in this case he is absolutely a free agent and it is within his own volition to appear or not in these proceedings. The prohibition against testimonial compulsion applies to criminal proceedings where a person is accused of having committed an offence, but not to a proceeding in which the penalty recoverable is civil in nature and the proceedings remedial in character. The essential principle of the rule, in favour of the privilege not to speak, is not divested of its v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd allowed before he takes his stand, and before the question, whether incriminatory or otherwise, is considered by the court in the light of the surrounding circumstances. This privilege can only be invoked at the time of answering a question having the tendency to incriminate him. It is after he has taken his stand, that he can refuse to testify to a question on the ground of self-incrimination. It has to be remembered that the privilege is in the nature of a prohibition against involuntary subjection to questions. The emphasis is on a compulsory disclosure of a guilt by an accused in a criminal matter and the right does not extend to a proceeding which does not involve punishment for the commission of a crime. For the following, among other, reasons, S. Sardul Singh Caveeshar cannot claim the privilege under article 20(3) of the Constitution in proceedings under section 185 of the Indian Companies Act, 1913 : ( a )The proceedings under section 185 of the Indian Companies Act, 1913, do not partake of the character of criminal prosecution, and he is not an accused person ; ( b )He is not being subjected to a compulsion to make any Statement, and it is within his option to of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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