Fundamental Right against Testimonial Compulsion

(or Right to Remain Silent)

DSK, a warehouse manager of ABC, fraudulently sold the goods of ABC, of course, without ABC’s knowledge or consent.

ABC filed a suit for damages for Rs. 1 Cr against DSK as his deeds and omissions caused substantial losses to ABC. A criminal complaint u/s 409 (criminal breach of trust) and 34 (common intention) of IPC was also lodged against DSK and his three accomplices with the concerned police station.

ABC requested the civil trial court (where a suit for damages was pending) and sought summoning of DSK and his accomplices (who were the accused in the criminal case) as witnesses in the suit proceedings.

The trial court held, “If those persons are summoned as witnesses, by virtue of Section 132 of the Indian Evidence Act, they are bound to impart their personal knowledge as to the relevant facts of the present case and there is every chance of using their evidence in the criminal case against them. Thus, it will amount to testimonial compulsion.” hence, it rejected ABC's request to summon those persons as ABC's witnesses.

Should ABC appeal against the lower court’s order rejecting ABC's request to summon DSK and his accomplices (who were the accused persons in the criminal case) as ABC’s witnesses in the suit proceedings?

Please share your expert opinion.

Testimonial compulsion is the act of forcing someone to provide evidence or testimony that may incriminate themselves.

Protection against Self-Incrimination

The fundamental right guaranteed under Article 20 (3)?is protective umbrella against testimonial compulsion in respect of persons accused of an offence to be witness against themselves (self-incrimination). It means that a person (accused in a crime) cannot be forced to be a witness against himself.

This is intended to protect the accused from self-created criminal traps and to ensure justice. It applies to evidence given in the court and during investigations.

nemo debet proderese ipsum, i.e., no one can be required to be his own betrayer.?

Some relevant points about Testimonial Compulsion

1.????? The right against testimonial compulsion only applies to people accused of crimes. It doesn't apply to witnesses.

2.????? The right can be waived by the accused.

3.????? To invoke the right, there must be a formal accusation at the relevant stage.

4.????? The right applies to compelled testimony obtained before the accused as well as in the court.

5.????? The right applies to evidence that could incriminate the accused, not just personal knowledge.

6.????? The right doesn't apply to:

a.?????? Civil proceedings

b.????? Giving voice samples

c.?????? Oral testimony

d.????? Refusal to examine and cross-examine witnesses

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Some exceptions to the rule are, such as:

a.?????? Allowing the accused's photographs to be taken

b.????? Recording the accused's voice

c.?????? Testing the accused's blood sample

d.????? Using the accused's hair or other bodily material for DNA testing