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Aapka Consultant Judgment Series- In this series, we are providing case analysis of Landmark Judgments of Hon’ble Supreme Court of India.

Nandini Satpathy Vs. P.L. Dani and Anr.

AIR 1978 SC 1025, 1978 CriLJ 968, (1978) 2 SCC 424, (1978) SCC(Cri) 236, [1978] 3 SCR 608

Hon’ble Judges/Coram: Jaswant Singh, V.D. Tulzapurkar and V.R. Krishna Iyer, JJ.

Date of Decision: 07.04.1978


Smt. Nandini Satpathy, a former Chief Minister of Orissa and one time minister at the national level was directed to appear at the Vigilance Police Station, Cuttack for being examined in connection with a case registered against her by the Deputy Superintendent of Police, Vigilance, Cuttack, Under Section 5(2) read with Section 5(1)(d) & (e) of the Prevention of Corruption Act and Under Section 161/165 and 120-B and 109 I.P.C. During the course of the investigation, she was interrogated with reference to a long string of questions, given to her in writing. The dimensions of the offences naturally broadened the area of investigation, and to do justice to such investigation, the net of interrogation had to be cast wide. Inevitably, a police officer who is not too precise, too sensitive and too constitutionally conscientious is apt to trample underfoot the guaranteed right of testimonial tacitness. This is precisely the grievance of the appellant, and the defence of the respondent is the absence of the ‘right of silence’.


  1. Whether a suspect accused, is entitled to the sanctuary of silence as one ‘accused of any offence? Does the bar against self-incrimination operate not merely with reference to a particular accusation in regard to which the police investigator interrogates, or does it extend also to other pending or potential accusations outside the specific investigation which has led to the questioning?
  2. Does the constitutional shield of silence swing into action only in Court or can it barricade the ‘accused’ against incriminating interrogation at the stages of police investigation?
  3. What is the ambit of the cryptic expression ‘compelled to be a witness against himself occurring in Article 20(3) of the Constitution? Does being ‘a witness against oneself’ include testimonial tendency to incriminate or probative probability of guilt flowing from the answer?
  4. What are the parameters of Section 161(2) of the Cr. Procedure Code? Does tendency to expose a person to a criminal charge embrace answers which have an inculpatory impact in other criminal cases actually or about to be investigated or tried?
  5. Does ‘any person’ in Section 161 Cr. Procedure Code include an accused person or only a witness?
  6. Does mens rea form a necessary component of Section 179 I.P.C., and, if so, what is its precise nature? Can a mere apprehension that any answer has a guilty potential salvage the accused or bring into play the exclusionary rule?


The Privy Council and this Court have held in numerous cases that the scope of Section 161 does include actual accused and suspects and the court in the present case was in agreement with the decided cases. ‘Any person supposed to be acquainted with the facts and circumstances of the case’ includes an accused person who fills that role because the police suppose him to have committed the crime and must, therefore, be familiar with the facts. The supposition may later prove a fiction but that does not repel the section. Nor does the marginal note ‘examination of witnesses by police’ clinch the matter. A marginal note clears ambiguity but does not control meaning. Moreover, the suppositious accused figures functionally as a witness. ‘To be a witness’, from a functional angle, is to impart knowledge in respect of a relevant fact, and that is precisely the purpose of questioning the accused Under Section 161, Cr. P.C. The dichotomy between ‘witnesses’ and ‘accused’ used as terms of art, does not hold good here.

If the police can interrogate to the point of self-accusation, the subsequent exclusion of that evidence at the trial hardly helps because the harm has been already done. The police will prove through other evidence what they have procured through forced confession. So it is that the foresight of the framers has preempted self-incrimination at the incipient stages by not expressly restricting it to the trial stage in court. True, compelled testimony previously obtained is excluded. But the preventive blow falls also on pre-court testimonial compulsion. The condition, as the decisions now go, is that the person compelled must be an accused. Both precedent procurement and subsequent exhibition of self-criminating testimony are obviated by intelligent constitutional anticipation.

Not all relevant answers are criminatory; not all criminatory answers are confessions. Tendency to expose to a criminal charge is wider than actual exposure to such charge. The orbit of relevancy is large. Every fact which has a nexus to any part of a case is relevant, but such nexus with the case does not make it noxious to the accused. Relevance may co-exist with innocence and constitutional censure is attracted only when inference of nocence exists. And an incriminatory inference is not enough for a confession. Only if, without more, the answer establishes guilt, does it amount to a confession. The setting of the particular case, the Context and the environment i.e., the totality of circumstances, must inform the perspective of the Court adjudging the incriminatory injury, and where reasonable doubt exists, the benefit must go in favour of the right to silence by a liberal construction of the Article. We, however, underscore the importance of the specific setting of a given case for judging the tendency towards guilt. Equally emphatically, we stress the need for regard to the impact of the plurality of other investigations in the offing or prosecutions pending on the amplitude of the immunity. ‘To be witness against oneself is not confined to particular offence regarding which the questioning is made but extends to other offences about which the accused has reasonable apprehension of implication from his answer. This conclusion also flows from ‘tendency to be exposed to a criminal charge’. ‘A criminal charge’ covers any criminal charge than under investigation or trial or imminently threatens the accused.

The policy of the law is that each individual, accused included, by virtue of his guaranteed dignity, has a right to a private enclave where he may lead a free life without overbearing investigatory invasion or even crypto-coercion. The protean forms gendarme duress assumes, the environmental pressures of police presence, compounded by incommunicado confinement and psychic exhaustion, torturesome interrogation and physical menaces and other ingenious, sophisticated procedures the condition, mental, physical, cultural and social, of the accused, the length of the interrogation and the manner of its conduct and a variety of Eke circumstances, will go into the pathology of coerced para confessional answers. The benefit of doubt, where reasonable doubt exists, must go in favour of the accused.

Section 161 enables the police to examine the accused during investigation. The prohibitive sweep of Article 20(3) goes back to the stage of police interrogation-not, as contended, commencing in court only. The provisions of Article 20(3) and Section 161(1) substantially cover the same area, so far as police investigations are concerned. The ban on self-accusation and the right to silence, while one investigation or trial is under way, goes beyond that case and protects the accused in regard to other offences pending or imminent, which may deter him from voluntary disclosure of criminatory matter. ‘Compelled testimony’ as evidence includes evidence procured not merely by physical threats or violence but by psychic torture, atmospheric pressure, environmental coercion, tiring interrogative prolixity, overbearing and intimidatory methods and the like-not legal penalty for violation. “So, the legal perils following upon refusal to answer, or answer truthfully, cannot be regarded as compulsion within the meaning of Article 20(3). The prospect of prosecution may lead to legal tension in the exercise of a constitutional right, but then, a stance of silence is running a calculated risk.

A police officer is clearly a person in authority. Insistence on answering is a form of pressure especially in the atmosphere of the police station unless certain safeguards erasing duress are adhered to. Frequent threats of prosecution if there is failure to answer may take on the complexion of undue pressure violating Article 20(3). Legal penalty may by itself not amount to duress but the manner of mentioning it to the victim of interrogation may introduce an element of tension and tone of command perilously hovering near compulsion. Self-incrimination or tendency to expose oneself to a criminal charge is less than ‘relevant’ and more than ‘confessional’. Irrelevance is impermissible but relevance is licit but when relevant questions are loaded with guilty inference in the event of an answer being supplied, the tendency to incriminate springs into existence. The accused person cannot be forced to answer questions merely because the answers thereto are not implicative when viewed in isolation and confined to that particular case. He is entitled to keep his mouth shut if the answer sought has a reasonable prospect of exposing him to guilt in some other accusation actual or imminent, even though the investigation underway is not with reference to that.

Section 179 I.P.C. has a component of mens rea and where there is no wilful refusal but only unwitting omission or innocent warding off, the offence is not made out. When there is reasonable doubt indicated by the accused’s explanation he is entitled to its benefit and cannot be forced to substantiate his ground lest, by this process, he is constrained to surrender the very privilege for which he is fighting. What may apparently be innocent information may really be nocent or noxious viewed in the wider setting.

The right to consult an advocate of his choice shall not be denied to any person who is arrested. This does not mean that persons who are not under arrest or custody can be denied that right. The spirit and sense of Article 22(1) is that it is fundamental to’ the rule of law that the services of a lawyer shall be available for consultation to any accused person under circumstances of near custodial interrogation. Moreover, the observance of the right against self-incrimination is best promoted by conceding to the accused the right to consult a-legal practitioner of his choice. Article 20(3) and Article 22(1) may, in a way, be telescoped by making it prudent for the Police to permit the advocate of the accused, if there be one, to be present at the time he is examined. Over-reaching Article 20(3) and Section 161(2) will be obviated by this requirement. If an accused person expresses the wish to have his lawyer by his side when his examination goes on, this facility shall not be denied. The symbiotic need to preserve the immunity without stifling legitimate investigation persuades to indicate that after an examination of the accused, where lawyer of his choice is not available, the police official must take him to a magistrate, 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, which should be followed by judicial or some other custody for him where the police cannot teach him. This is not mandated but strongly suggested.


The appellant undertakes to abide by the above directions to answer all police interrogations relevant but not self-incriminatory. The police Officer shall not summon her to the police station but examine her in terms of the proviso to Section 160(1) of the Cr.P.C Code.

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