The Miranda decision was rendered under a system of law in which an utterance made by a suspect before the police could lead to his conviction and even the imposition of the death penalty. From the judgment in the Miranda case it further appears that the police would subject the suspect to incommunicado interrogation in a terribly oppressive atmosphere. The interrogator would employ all the intimidation tactics and interrogations skills at his command, not to find out the truth but to somehow crack the suspect and make him ‘confess’ to his guilt. It was in such a situation that the US Supreme Court evolved the Miranda rules, in order to provide necessary protection to the accused against self-accusation and to ensure the voluntary nature of any statement made before the police, and came to hold and direct as under:
“To summarize, we hold that when an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning, the privilege against self- incrimination is jeopardized. Procedural safeguards must be employed to protect the privilege, and unless other fully effective means are adopted to notify the person of his right of silence and to assure that the exercise of the right will be scrupulously honored, the following measures are required. He must be warned prior to any questioning that he has the right to remain silent; that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. Opportunity to exercise these rights must be afforded to him throughout the interrogation. After such warnings have been given, and such opportunity afforded him, the individual may knowingly and intelligently waive these rights and agree to answer questions or make a statement. But unless and until such warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be used against him.” (Emphasis Added)
450. We have not the slightest doubt that the right to silence and the right to the presence of an attorney granted by the Miranda decision to an accused as a measure of protection against self-incrimination have no application under the Indian system of law. Interestingly, an indication to this effect is to be found in the Miranda judgment itself. Having set down the principle, extracted above, that Court proceeded in the next part (Part IV) of the judgment to repel the arguments advanced against its view and to find support for its view in other jurisdictions. Part IV of the judgment begins as under:
“A recurrent argument made in these cases is that society’s need for interrogation outweighs the privilege. This argument is not unfamiliar to this Court ……”
451. Rejecting the argument, the Court pointed out that very firm protections against self-incrimination were available to the accused in several other jurisdictions, in which connection it also made a reference to Indian laws. The Court observed:
“The experience in some other countries also suggests that the danger to law enforcement in curbs on interrogation is overplayed. … … … ….. In India, confessions made to police not in the presence of a magistrate have been excluded by rule of evidence since 1872, at a time when it operated under British law.”
452. The Court then noticed Sections 25 and 26 of the Indian Evidence Act and then referred to the decision of the Indian Supreme Court in Sarwan Singh v. State of Punjab[88] in the following words:
“To avoid any continuing effect of police pressure or inducement, the Indian Supreme Court has invalidated a confession made shortly after police brought a suspect before a magistrate, suggesting: “[I]t would, we think, be reasonable to insist upon giving an accused person at least 24 hours to decide whether or not he should make a confession.”
453. The US Supreme Court, thus, clearly acknowledged and pointed out that the measures to protect the accused against self-incrimination evolved by it under the Miranda rules were already part of the Indian statutory scheme.
454. Moreover, a bare reference to the provisions of the CrPC would show that those provisions are designed to afford complete protection to the accused against self-incrimination. Section 161(2) of the CrPC disallows incriminating answers to police interrogations. Section 162(1) makes any statements, in any form, made to police officers inadmissible excepting those that may lead to discovery of any fact (vide Section 27 of the Evidence Act) and that may constitute a dying declaration (vide Section 32 of the Evidence Act). Coupled with these provisions of the CrPC is Section 25 of the Evidence Act that makes any confession by an accused made to a police officer completely inadmissible. Section 163 of the CrPC prohibits the use of any inducement, threat or promise by a police officer. And then comes Section 164 CrPC, dealing with the recording of confessions and statements made before a magistrate. Sub-section (1) of Section 164 provides for recording any confession or statement in the course of an investigation, or at any time before the commencement of the inquiry or trial; sub-section (2) mandates the magistrate to administer the pre- confession caution to the accused and also requires him to be satisfied, as a judicial authority, about the confession being made voluntarily; sub- section (3) provides one of the most important protections to the accused by stipulating that in case the accused produced before the magistrate declines to make the confession, the magistrate shall not authorize his detention in police custody; sub-section (4) incorporates the post- confession safeguard and requires the magistrate to make a memorandum at the foot of the confession regarding the caution administered to the accused and a certificate to the effect that the confession as recorded is a full and true account of the statement made. Section 164 of the CrPC is to be read along with Section 26 of the Evidence Act, which provides that no confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a magistrate, shall be proved as against such person.
455. It is thus clear to us that the protection to the accused against any self-incrimination guaranteed by the Constitution is very strongly built into the Indian statutory framework and we see absolutely no reason to draw any help from the Miranda principles for providing protection against self- incrimination to the accused.
456. Here it will be instructive to see how the Miranda decision has been viewed by this Court; in what ways it has been referred to in this Court’s decisions and where this Court has declined to follow the Miranda rules.
457. Significant notice of the Miranda decision was first taken by a three- Judge bench of this Court in Nandini Satpathy. The appellant in that case, a former Chief Minister of Orissa, was summoned to the police station in connection with a case registered against her under Section 5(1) and (2), Prevention of Corruption Act, 1947, and Sections 161/165, 120-B and 109 of the Penal Code, and was interrogated with reference to a long string of questions given to her in writing. On her refusal to answer, a complaint was filed against her under Section 179 of the Penal Code and the magistrate took cognizance of the offence. She challenged the validity of the proceedings before the High Court. The High Court dismissed the petition following which the Chief Minister came to this Court in appeal against the order passed by the High Court. It was in that context that this Court made a glowing reference to the Miranda decision; however, in the end, this Court refrained from entirely transplanting the Miranda rules into the Indian criminal process and, with regard to the Indian realities, “suggested” certain guidelines that may be enumerated as under:
“(a) Under Article 22(1), the right to consult an advocate of his choice shall not be denied to any person who is arrested. Articles 20(3) and 22(1) may be telescoped by making it prudent for the police to permit the advocate of the accused to be present at the time he is examined. Over-reaching Article 20(3) and Section 161(2) will be obviated by this requirement. But it is not as if the police must secure the services of a lawyer, for, that will lead to ‘police station- lawyer’ system with all its attendant vices. If however an accused expresses the wish to have his lawyer by his side at the time of examination, this facility shall not be denied, because, by denying the facility, the police will be exposed to the serious reproof that they are trying to secure in secrecy and by coercing the will an involuntary self-incrimination. It is not as if a lawyer’s presence is a panacea for all problems of self-incrimination, because, he cannot supply answers or whisper hints or otherwise interfere with the course of questioning except to intercept where intimidatory tactics are tried and to caution his client where incrimination is attempted and to insist on questions and answers being noted where objections are not otherwise fully appreciated. The lawyer cannot harangue the police, but may help his client and complain on his behalf. The police also need not wait for more than a reasonable time for the advocate’s arrival.
(b) Where a lawyer of his choice is not available, after the examination of the accused, the police officer must take him to a magistrate, a doctor or other willing and responsible non-partisan official or non-official and allow a secluded audience where he may unburden himself beyond the view of the police and tell whether he has suffered duress, in which case he should be transferred to judicial or other custody where the police cannot reach him. The collocutor communicate the relevant conversation to the nearest magistrate.”
458. In later decisions, Nandini Satpathy guidelines and the Miranda rule are referred to, approved and followed in an ancillary way when this Court moved to protect or expand the rights of the accused against investigation by lawless means, but we are not aware of any decision in which the Court might have followed the core of the Nandini Satpathy guidelines or the Miranda rule.
459. In Poolpandi, the appellants before this Court, who were called for interrogation in course of investigation under the provisions of the Customs Act, 1963, and the Foreign Exchange Regulation Act, 1973, claimed the right of presence of their lawyer during interrogation, relying strongly on Nandini Satpathy. The question before the Court was thus directly whether a person summoned for interrogation is entitled to the presence of his lawyer during questioning. But a three-judge bench of this Court rejected the appeal, tersely observing in paragraph 4 of the judgment as under:
“Both Mr. Salve and Mr. Lalit strongly relied on the observations in Nandini Satpathy v. P.L. Dani. We are afraid, in view of two judgments of the Constitution Bench of this Court in Ramesh Chandra Mehta v. State of W.B. and Illias v. Collector of Customs, Madras, the stand of the appellants cannot be accepted. The learned counsel urged that since Nandini Satpathy case was decided later, the observations therein must be given effect to by this Court now. There is no force in this argument.”
460. More recently in Directorate of Revenue Intelligence, (to which one of us, Aftab Alam J., is a party) the question before the Court was, once again, whether a person summoned for interrogation by the officers of the Directorate of Revenue Intelligence in a case under the Narcotic Drugs and Psychotropic Substances Act, 1985, had the right of the presence of his lawyer at the time of interrogation. The Court, after discussing the decision in Nandini Satpathy and relying upon the decision in Poolpandi, rejected the claim; but, in light of the decision in D.K. Basu and with regard to the special facts and circumstances of the case, directed that the interrogation of the respondent may be held within sight of his advocate or any person duly authorized by him, with the condition that the advocate or person authorized by the respondent might watch the proceedings from a distance or from beyond a glass partition but he would not be within hearing distance, and the respondent would not be allowed to have consultations with him in the course of the interrogation.
461. But, as has been said earlier, Nandini Satpathy and Miranda may also be found referred quite positively, though in a more general way, in several decisions of this Court. In D.K. Basu, this Court, while dealing with the menace of custodial violence, including torture and death in the police lock-up, condemned the use of violence and third-degree methods of interrogation of the accused, and described custodial death as one of the worst crimes against the society. In paragraph 22 of its judgment, the Court observed:
“…..Any form of torture or cruel, inhuman or degrading treatment would fall within the inhibition of Article 21 of the Constitution, whether it occurs during investigation, interrogation or otherwise……The precious right guaranteed by Article 21 of the Constitution of India cannot be denied to convicts, under-trials, detenus and other prisoners in custody, except according to the procedure established by law by placing such reasonable restrictions as are permitted by law.”
462. In that connection, the Court examined international conventions and declarations on the subject and visited other jurisdictions, besides relying upon earlier decisions of this Court, and laid down a set of guidelines to be strictly followed in all cases of arrest or detention as preventive measures. While dealing with the question of striking a balance between the fundamental rights of the suspect-accused and the necessity of a thorough investigation in serious cases that may threaten the very fabric of society, such as acts of terrorism and communal riots etc. this Court, in paragraph 32 of the judgment, referred to the opening lines of Part IV of the judgment in Miranda.
“A recurrent argument, made in these cases is that society’s need for interrogation outweighs the privilege. This argument is not unfamiliar to this Court. [See e.g., Chambers v. Florida[89], US at pp. 240-41: L Ed at p. 724: 60 S Ct 472 (1940)]. The whole thrust of our foregoing discussion demonstrates that the Constitution has prescribed the rights of the individual when confronted with the power of Government when it provided in the Fifth Amendment that an individual cannot be compelled to be a witness against himself. That right cannot be abridged.” (Emphasis Original)
463. Navjot Sandhu is a case under the Prevention of Terrorism Act, 2002 (in short “POTA”). The law of the POTA is a major departure from the ordinary mainstream criminal law of the country. Under Section 32 of the Prevention of Terrorism Act, 2002, contrary to the provisions of the CrPC and the Evidence Act, as noted above in detail, a confession made by an accused before a police officer, not lower in rank than a Superintendent of Police, is admissible in evidence though subject, of course, to the safeguards stipulated in sub-sections (2) to (5) of Section 32 and Section 52 that lay down the requirements to be complied with at the time of the arrest of a person. Insisting on a strict compliance with those safeguards, the Court in Navjot Sandhu pointed out that those safeguards and protections provided to the accused were directly relatable to Articles 21 and 22(1) of the Constitution and incorporated the guidelines spelled out by this Court in Kartar Singh and D.K. Basu. In that regard, the Court also referred in paragraph 55 of the judgment to the decision in Nandini Satpathy, and in paragraph 63 to the Miranda decision, observing as follows:-
“In the United States, according to the decisions of the Supreme Court viz., Miranda v. Arizona[90]; Escobedo v. Illinois[91] the prosecution cannot make use of the statements stemming from custodial interrogation unless it demonstrates the use of procedural safeguards to secure the right against self-incrimination and these safeguards include a right to counsel during such interrogation and warnings to the suspect/accused of his right to counsel and to remain silent. In Miranda case (decided in 1966), it was held that the right to have counsel present at the interrogation was indispensable to the protection of the Vth Amendment privilege against self-incrimination and to ensure that the right to choose between silence and speech remains unfettered throughout the interrogation process. However, this rule is subject to the conscious waiver of right after the individual was warned of his right.”
464. As we see Navjot Sandhu, it is difficult to sustain Mr. Ramachandran’s submission made on that basis. To say that the safeguards built into Section 32 of the POTA have their source in Articles 20(3), 21 and 22(1) is one thing, but to say that the right to be represented by a lawyer and the right against self-incrimination would remain incomplete and unsatisfied unless those rights are read out to the accused and further to contend that the omission to read out those rights to the accused would result in vitiating the trial and the conviction of the accused in that trial is something entirely different . As we shall see presently, the obligation to provide legal aid to the accused as soon as he is brought before the magistrate is very much part of our criminal law procedure, but for reasons very different from the Miranda rule, aimed at protecting the accused against self-incrimination. And to say that any failure to provide legal aid to the accused at the beginning, or before his confession is recorded under Section 164 CrPC, would inevitably render the trial illegal is stretching the point to unacceptable extremes.
The object of the criminal law process is to find out the truth and not to shield the accused from the consequences of his wrongdoing. A defense lawyer has to conduct the trial on the basis of the materials lawfully collected in the course of investigation. The test to judge the Constitutional and legal acceptability of a confession recorded under Section 164 CrPC is not whether the accused would have made the statement had he been sufficiently scared by the lawyer regarding the consequences of the confession. The true test is whether or not the confession is voluntary. If a doubt is created regarding the voluntariness of the confession, notwithstanding the safeguards stipulated in Section 164 it has to be trashed; but if a confession is established as voluntary it must be taken into account, not only constitutionally and legally but also morally.
Source : Md.Ajmal Md.Amir Kasab @Abu … vs State Of Maharashtra (2013)3SCC(Cri)481
