Set back to 'right to silence'

MADURAI: In a recent  judgement, the Madurai bench of the Madras high court has ruled that an accused cannot claim absolute right to silence and is bound to give truthful answers to all relevant questions put to him during the course of investigation. However, he can refuse to reply only such questions the answers to which are likely to incriminate him.

Justice S Nagamuthu gave the ruling while dealing with an important question relating to the conflict between the fundamental rights guaranteed under the Constitution, which an accused possesses, and the larger societal interest in effecting crime detection.

The state government filed a petition challenging an order of the Judicial Magistrate, Karur, declining to authorize the detention of DMK MLA K C Palanisamy in police custody during the initial period of 15 days of remand. The DMK MLA is already facing three cases which relate to alleged sand quarrying from the Cauvery river. Though he was earlier arrested and lodged in prison in connection with the case filed by the Mayanur police, he was formally arrested by the Vangal police on October 1.

Later, the Vangal police sought custody of the accused. When he was produced before the court, Palanisamy submitted that he had no information to pass on to the investigating officer and so not willing for custody. Accepting the submission, the Judicial Magistrate dismissed the police plea. Aggrieved, the state preferred the present criminal original petition. During the hearing, Additional advocate-general K Chellapandian contended that interrogation of the accused in the case was a significant part of the investigation, and therefore, the judicial magistrate was not right in declining custody of the accused.

However, contending that the magisterial order was right, senior counsel for Palanisamy, N R Elango, said the accused enjoyed the right to freedom of speech and expression, which included the freedom to keep silent. In this case, the accused duly submitted before the magistrate that he wanted to exercise his right to keep silent and therefore, there would be no purpose served in authorizing his detention.

Rejecting the contention put forth by the senior counsel, Justice Nagamuthu, after analyzing various judgments of the Supreme Court, said, "During the course of investigation, an accused cannot be compelled to make any statement that is likely to incriminate him. However, for an accused, the freedom to keep silence, emanating from Article 19(1)(a) of the Constitution of India, is subject to reasonable restrictions provided in Section 161(2) of the Code of Criminal Procedure. Thus, if an accused is sought to be interrogated by the police, he is bound to truly answer all questions relating to the case and cannot claim absolute right to silence. The only exception is that he need not answer any question, the answer to which is likely to incriminate him.