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Section 43G does not violate Article 20(3) of Constitution:
It is submitted by Respondents that for attracting Article 20(3) of the Constitution, three
things should be established. Firstly, the person should be accused of an offence; secondly,
such a person should be compelled to make the statement; and thirdly, such compulsion
should be for the purpose of being a witness against himself. Unless all these three
ingredients exist, the protection of Article 20(3) cannot be attracted. Usmanbhai Dawoodbhai
Memon.
It is the contention of the petitioners that 43G of TAPA does not satisfy the above mentioned
essential ingredients and hence does not infringe on Article 20(3) of the Constitution.
CONDITION 2
1. In the landmark decision of Kathi Kalu Oghad, this Hon’ble Court held the following
“(1) An accused person cannot be said to have been compelled to be a witness against
himself simply because he made a statement while in police custody, without anything
more.
In other words, the mere fact of being in police custody at the time when the statement in
question was 'made would not., by itself, as a proposition of law, lend itself to the
inference that the accused was compelled to make the statement, though that fact, in
conjunction with other circumstances disclosed in evidence in a particular case, would be
a relevant consideration in an enquiry whether or not the accused person had been
compelled to make the impugned statement.
(2) The mere questioning of an accused person by a police officer, resulting in a

voluntary statement, which may ultimately turn out to be incriminatory, is not
compulsion”
It was held that it must be necessarily shown that the witness was compelled to make a
statement likely to incriminate him. Compulsion is an essential ingredient but if a person
makes a confession without any inducement, threat or promise Article 20(3) does not apply.
The accused may waive his right against self-incrimination by voluntarily making an oral
statement or producing documentary evidence, incriminatory in nature.
Hence, the mere fact- that the accused person, when he made the statement in question was in
police custody would not, by itself, be the foundation for an inference of law that the accused
was compelled to make the statement.
The essentials or the criteria in order to invoke this protection includes “compulsion” or
“external force” but in case if an accused voluntarily by his own will gives a statement
contradicting himself and knowingly refuse to exercise the right the available, then it can be
said that the right under Article 20(3) is waived off. It is argued that Section 43 does not
compel and accused to confess but merely takes into evidence the voluntary confession.
In light of the decision it is humbly submitted that voluntary statements are not proscribed by Article
20(3) and do not amount to violation of the privilege against self-incrimination.
In V.S. Kuttan Pillai v. Ram Krishnan, the Court held that search of the premises occupied
or in possession of person accused of an offence or seizure of anything from there was not
violative of Article 20(3) of the Constitution.
If any document is recovered as a result of search and seizure it can be produced in the courts
as an evidence against the accused as he is not compelled to give witness against himself. The
immunity against self-incrimination extends to incriminating evidence which the accused
may be compelled to give, but not to such situations where incriminating evidence is being
collected without in any manner compelling the accused, or asking him to be a party to the
collection thereof.
Search and seizure under a search warrant do not have even the remotest tendency to compel
the accused to incriminate himself. "A passive submission to search cannot be styled as a
compulsion on the accused and if anything is recovered during such search which may
provide incriminating evidence against the accused it cannot be styled as a compelled
testimony."
Relying on the case of Nandini Satpathy and also C. Sampath Kumar vs. Enforcement
Officer, Enforcement Directorate, Madras, it is submitted that the legal penalties imposed
on a person on his refusal to answer truthfully, cannot be regarded as a compulsion within the
meaning of Article 20(3) of the Constitution. Therefore, it is submitted that the contentions of
the private parties do not hold good in any way.
It is also referred to the decision in Selvi, “In Indian law, there is no automatic presumption
that the custodial statements have been extracted through compulsion. In short, there is no
requirement of additional diligence akin to the administration of Miranda warnings.”
CONDITION 3
1. With regard to the issue of ‘being a witness against oneself’, it is submitted that the
witness can be classified into four types – (i) relevant yet innocent; (ii) relevant and
may have no incriminatory force; (iii) incriminatory without being confessional; and
(iv) confessional.
2. Relying on the case of Nandini Satpathy348, it is submitted that Article 20(3) applies
to confessions and self-incriminations, but leaves untouched other relevant facts.
Therefore, unless there is an admission of an offence in clear terms, the statement
even if it is gravely incriminatory in nature, will not amount to a confession349 .
3. It is further submitted that apart from above four categories of witnesses, there can be
two other categories, namely, a witness who makes an admission not amounting to
confession and a witness whose statement comprises both exculpatory and inculpatory
statements.
4. Reliance has been placed on the case of Central Bureau of Investigation vs. V.C.
Shukla & Ors.350, to state that a statement made by an accused is admissible in
evidence under Section 21 of the 1872 Act, if it falls short of a confession. It is,
therefore, submitted that the question whether a statement is a confession or not, is
essentially a question of fact, which cannot be decided in the present case.

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Section 43G does not violate Article 20(3) of Constitution:

(2) The mere questioning of an accused person by a police officer, resulting in a

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