In criminal law, self-incrimination is the act of making a statement that exposes oneself to an accusation of criminal liability or prosecution. Self-incrimination can occur either directly or indirectly: directly, by means of interrogation where information of a self-incriminatory nature is disclosed; or indirectly, when information of a self-incriminatory nature is disclosed voluntarily without pressure from another person.

In many legal systems, accused criminals cannot be compelled to incriminate themselves—they may choose to speak to police or other authorities, but they cannot be punished for refusing to do so. There are 108 countries and jurisdictions that currently issue legal warnings to suspects, which include the right to remain silent and the right to legal counsel.[3] These laws are not uniform across the world; however, members of the European Union have developed their laws around the EU's guide.

In India, under Article 20 (3) of the Constitution, the defendant has the right against self-incrimination, but witnesses are not given the same right.A defendant must be informed of their rights before making any statements that may incriminate them. Defendants must not be compelled to give any statements. In the case that a defendant is pressured into giving a statement that is self-incriminating, the statement will not be admissible in a court of law.[12]

The Code of Criminal Procedure and the Indian Constitution give defendants the Right to Silence, i.e. the right to withhold self-incriminating information to authorities. Defendants must inform the authorities that they are exercising their Right to Silence; withholding information is not considered using their right to withhold information that can potentially be self-incriminating.[12] In order to exercise their right to remain silent, the defendant must verbally and clearly state that they are doing so.

For example, a defendant can say, "I am exercising my right to remain silent and will not be answering any further questions."[12] Article 20 (3) does not pertain to those who made a confession willingly without being intimidated or coerced into making such statement.

Models of Criminal Justice System

The design and structure of the Indian criminal justice system in contemporary times are concerned, two models have been influential, viz., the Crime Control Model, and the Due Process Model.[1] Both, the Crime Control Model and the Due Process Model, are based on competing priorities and therefore the respective design and structure of the criminal justice system under these models looks and works completely differently from each other.

Whereas the Crime Control Model focuses on crime reduction, the Due Process Model focuses on protection of individual rights against the state.[2] The phrase 'criminal justice system', as used above in the context of the Due Process Model, compendiously refers to the investigation agency (usually the local police, but sometimes the legislatures create investigation agencies specifically dedicated to certain types of offences)[3], the trial courts, the prosecutors, the criminal defence bar, and the prison system.

The investigation agencies are usually in-charge of registering those criminal complaints where the offences disclosed are within their jurisdiction to investigate[4] them. These investigations are concluded by the investigation agency, either on its own, or through prosecutors, presenting a statement of charges against the alleged accused named in this statement. This statement of charges is of no legal or evidentiary[5] significance, unless it is given some judicial recognition by a court of law.

What is Self-Incrimination

In criminal law, self-incrimination is the act of making a statement that exposes oneself to an accusation of criminal liability or prosecution. Self-incrimination can occur either directly or indirectly: directly, by means of interrogation where information of a self-incriminatory nature is disclosed; or indirectly, when information of a self-incriminatory nature is disclosed voluntarily without pressure from another person.[6] Self-incrimination can happen in a number of ways. A person may accidentally say something that suggests involvement or knowledge of the crime.

For example, a person may say that they only drove the car and had no idea their friends would commit a crime. By saying this, the person is actively admitting to aiding and abetting.

It's also important to note that there may be significant pressure to admit guilt while under arrest. Police may be more aggressive with questioning which puts pressure on the individual to confess or supply information in order to alleviate the stress of the situation.

Other individuals may feel immense guilt regardless of whether they engaged in criminal acts. In many cases, investigators may exploit guilt during questioning to get a confession quickly. People may break under these conditions, and incriminate themselves unfairly.

Self-incrimination is a legal principle under which a person cannot be compelled to provide information or testify against themselves in a criminal case. In various jurisdictions, including the US and India, the right against self-incrimination is enshrined as a constitutional or legal protection. The doctrine is based upon the following legal maxim:

· Nemo teneteur prodre accussare seipsum – It states that a man cannot be compelled to state any self-incriminating statement.

India
In India, under Article 20 (3) of the Constitution, the defendant has the right against self-incrimination, but witnesses are not given the same right.[7]

A defendant must be informed of their rights before making any statements that may incriminate them. Defendants must not be compelled to give any statements. In the case that a defendant is pressured into giving a statement that is self-incriminating, the statement will not be admissible in a court of law. The Code of Criminal Procedure and the Indian Constitution give defendants the Right to Silence, i.e. the right to withhold self-incriminating information to authorities.

Defendants must inform the authorities that they are exercising their Right to Silence; withholding information is not considered using their right to withhold information that can potentially be self-incriminating. In order to exercise their right to remain silent, the defendant must verbally and clearly state that they are doing so.

For example, a defendant can say, "I am exercising my right to remain silent and will not be answering any further questions." Article 20 (3) does not pertain to those who made a confession willingly without being intimidated or coerced into making such statement.[8]

England
The right against self-incrimination originated in England and Wales.[9] In countries deriving their laws as an extension of the history of English Common Law, a body of law has grown around the concept of providing individuals with the means to protect themselves from self-incrimination.

Applying to England and Wales, the Criminal Justice and Public Order Act 1994 amended the right to silence by allowing inferences to be drawn by the jury in cases where a suspect refuses to explain something, and then later produces an explanation. In other words, the jury is entitled to infer that the accused fabricated the explanation at a later date, since the accused refused to provide the explanation during the time of the police questioning. The jury is also free not to make such an inference.

Right Against Self-Incrimination

One of the most important rights available to recently arrested individuals is the right to remain silent. This right exists to prevent self-incrimination. The period between an arrest and release or police custody is the most tenuous in that many people may feel pressured to admit to the crime whether they committed it or not.

In US The Fifth Amendment provides protection to individuals from being compelled to incriminate themselves. According to this Constitutional right, individuals have the privilege against self-incrimination. They can refuse to answer questions, refuse to make potentially incriminating statements, or refuse to testify at a trial in any criminal case. This right is applicable to the States through the Fourteenth Amendment.[10]

In Malloy v. Hogan, 378 U.S. 1 (1966), the Supreme Court held, "When determining if state officers properly obtained a confession, one must focus on whether the statements were made freely and voluntarily without any direct or implied promise or improper influence." Malloy also incorporated the Fifth Amendment right against self-incrimination against the states.[11]

In Griffin v. California, 380 U.S. 609 (1965), the Supreme Court held that at trial, if the accused invokes his Fifth Amendment right not to self-incriminate, neither the prosecution nor the judge may tell the jury that that silence is evidence that the defendant is making an admission of guilt.[12]

In Miranda v. Arizona, 384 U.S. 436 (1966), the Supreme Court held 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," therefore finding self-incrimination protections in the Fourth Amendment. If the individual is not made aware of his rights (including the right to an attorney and the right to remain silent), then self-incriminating statements the individual makes will be inadmissible in court.[13]

Miranda Rights

Once law enforcement has probable cause and a warrant, they can perform an arrest. Police are required to inform people of their Miranda Rights. Named after the 1966 Miranda v. Arizona Supreme Court case. Miranda Rights state that if a person is arrested, they have the right to an attorney, the right to remain silent, and the right to a state-appointed attorney if the individual cannot afford one.

Legal and Constitutional Position
Since this work deals entirely with 'custodial statements', it would be prudent to define this phrase at the outset. For a 'custodial statement' to come within the purview of this work:

1. the statement should be given by a 'person accused of an offence'
2. the statement should be given to a 'police officer;
3. the statement should be given in writing, or in any case must be reduced into writing; or recorded by way of audio or audio-visual mode;
4. the statement should be confessional or self-incriminatory in its character
5. the statement may or may not have been given in the course of investigation (i.e. the date on which the statement was given, or recorded, may precede the date when the investigation into the offences, in the trial whereof the statement is sought to be admitted, began.)[14]

The legal and constitutional position regarding the admissibility of custodial confessions in India is to be found in primarily three sources: (a) the Code of Criminal Procedure, 1973 (the '1973 Code'), (b) the Indian Evidence Act, 1872 (the 'Evience Act'), and (c) some key provisions of the chapter on fundamental rights of the Indian Constitution. In this regard the key principles of law that maybe deduced by a combined reading of these three may be summarised in the following manner:

1. No person accused of any offence shall be compelled to be a witness against himself.
2. Any statement obtained by a police officer in the course of an investigation is inadmissible during a trial, except in the following three situations:
   1. if this statement is a dying declaration given to a police officer
   2. if this statement is a prior statement of a prosecution witness obtained in the course of investigation that is now being used by the defence for the purposes of cross-examining such prosecution witness
   3. if this statement is a prior custodial statement of the accused that is covered by section 27 of the Evidence Act
3. Any confession, custodial or otherwise, that the accused may have given to a police officer is per se inadmissible.
4. Any confession that the accused may have given to anybody else while being in the custody of a police officer (i.e., a custodial confession) is also per se inadmissible.
5. That a part, or those parts, of the custodial statement of the accused person that result in the discovery of facts that can be said to have been discovered in direct consequence of the information disclosed in the custodial statement is also admissible against the accused notwithstanding whether such information amounts to a confession or not. This principle of law is known in India, the UK, and the US as the doctrine of 'confirmation by subsequent recovery.

As per Indian Constitution Article 20 grants protection against arbitrary and excessive punishment to an accused person, whether citizen or foreigner or legal person like a company or a corporation. It contains three provisions in that direction:
It contains provisions related to:

• No ex-post-facto law
• No double jeopardy
• No self-incrimination

• No self-incrimination: No person accused of any offence shall be compelled to be a witness against himself.
• The protection against self-incrimination extends to both oral evidence and documentary evidence.
• However, it does not extend to:
• compulsory production of material objects,
• compulsion to give thumb impression, specimen signature, blood specimens, and
• compulsory exhibition of the body.
• Further, it extends only to criminal proceedings and not to civil proceedings or proceedings which are not of criminal nature.

Person accused of Offences

Here in India this privilege is only available to a person accused of an offence i.e. "person against whom a formal accusation relating to the commission of an offence has been levelled, which may result in prosecution". In India, a formal accusation can be made by lodging of an F.I.R. or a formal complaint against a person accusing him of committing a crime, it is not necessary that the trial or enquiry should have commenced before a court.

Article 20(3) operates only on the making of such formal accusation. It is imperative to note that, "a person cannot claim the protection if at the time he made the statement, he was not an accused but becomes an accused thereafter." Article 20 (3) does not apply to departmental inquiries into allegations against a government servant since there is no accusation of any offence.[17]

In M.P. Sharma v. Satish Chandra[18], it was held that a person whose name is mentioned in the first information report as an accused can claim protection under Article 20(3). The privilege against self-incrimination is available at both trial and pre-trial stage i.e. when the police investigation is going on and the person is regarded as an accused, or even if his name is not mentioned in the FIR as an accused.

In the case of Balasaheb v. State of Maharashtra[19], it was held that a witness in a police case, who is also an accused in the complaint case for the same incident, cannot claim absolute immunity from testifying in the case. However, he may refuse to answer those questions which tend to incriminate him.

Compulsion to be a witness.
In State of Bombay v. Kathi Kalu Oghad[20], the court held that it must be shown that the person was compelled to make a statement which was likely to incriminate him. Compulsion is duress: it should be a physical objective act and not a state of mind like beating, threatening, imprisonment of wife, parent or child of a person. Art.20(3) does not apply if a person makes a confession without any inducement or threat.

In the case of State (Delhi Administration) v. Jagjit Singh[21], the court held that if an accused has been granted pardon under section 306 of the Criminal Procedure Code, he ceases to be an accused and becomes a witness for the prosecution and his evidence cannot be used against him in other cases. Section 132 of the Indian Evidence Act protects a witness from being prosecuted on the basis of the information given by him in a criminal proceeding which tends to incriminate him.

Compulsion resulting in giving evidence against himself.
An accused can be compelled to submit to investigation by giving thumb impressions or specimen for writings or exposing body for the purpose of identification. In Kathi Kalu's case, 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.

In Amrit Singh v. State of Punjab[22], the accused had charges of rape and murder of an eight year old girl. When the body of the deceased was discovered, some strands of hair were found in the closed fist of the child. The Police wanted to analyse the hair of the accused, but the accused refused to give the sample. The court found the accused to be protected against self-incrimination, so he had the right to refuse to give hair sample. But if the right against self-incrimination is considered in such a broad manner, then it might lead to misuse of this right by the accused.

Voice Sampling during Criminal Investigation, violative or not?
What is voice sampling
Voice sample refers to the recorded tone of the person. It is mainly based on the accent of the person. Voiceprint identification is a technique through which the voice features of the speaker are recognized. Voiceprint identification is generally used in criminal investigations to solve complicated matters or matters which are pending before the court. It is a technique through which the court can speed up the proceedings of adjudging the guilt or innocence of the accused.

Voice Sampling under law
Section 53 (1) of the Code of Criminal Procedure allows examination of accused by a medical practitioner at the request of a police officer to collect samples for DNA analysis or taking general body measurements and "such other tests necessary"

• The phrase "such other tests" in Section 53 (1) is read to include a collection of voice samples. However, there is no specific provision for testing voice samples under criminal procedure laws as it is a relatively new technological tool.

Magistrate is empowered to direct.
In the case of K.S Puttuswamy and others vs UOI[23] court decided that the Magistrate is empowered to direct the accused person to give his voice sample for criminal investigation until the subsequent provisions are embedded by the Legislature and thus, such power has been given to the Magistrate under Article 142 of the Constitution of India which empowers the Supreme Court to pass any decree or order necessary for doing complete justice in any case or matter pending before it.

Also in the case of Pravinsinh Nrupatsinh Chauhan v. State Of Gujarat[24] (2022) Court referred to apex court decision Ritesh Sinha Vs. State of Uttar Pradesh[25] (2019) which also indicated that magistrate is empowered to direct the accused person to give his voice sample for the investigation and it doesnot violate the fundamental right to privacy and cannot be construed to be absolute and must bow down to compelling public interest. This right is not absolute though it is protected as an intrinsic part of the right to life and personal liberty under Article 21 of the Constitution of India.[26]

In Selvi vs State of karnataka[27] which the connection between the right to privacy and Article 20(3) of the Constitution was drawn. In this case, the court had declared that the narco-analysis and lie detector test cannot be conducted without the permission of the accused person otherwise it would infringe the right of the accused person.

The court held that the choice is left to the person who chooses to speak or remain silent and cannot be restrained by anyone especially in a situation where he faces criminal charges and punishment. In Puttaswamy's case, the Supreme Court had already declared that privacy allows the person to think and act freely.

Earlier, the Supreme Court in Suchita Srivastava (2009) and NALSA (2014) held that the right to make a personal choice of one's life is regarded as the important aspect of the right to privacy. Therefore, the court cannot force a person to give a voice sample which would infringe the fundamental right to privacy under Article 20(3) of the Constitution.

But While relying on Ritesh Sinha v. State of Uttar Pradesh & Anr, the Supreme Court had declared that the fundamental right to privacy must not rise above the public interest, and thus, it is not absolute.

Sampling does not violate the rights under Article 20(3).
In the case of Ravi Parkash Sharma v State of Punjab(2022)[28] Court relied on the judgement of Ritesh Sinha v. State of Uttar Pradesh, 2019, that the directions to take voice samples do not infringe Article 20(3) of the Constitution of India. The Punjab and Haryana High Court has made it clear that directions to take voice sample of accused does not infringe his/her rights under Article 20(3) of the Constitution of India.

The bench comprising Justice Avneesh Jhingan dismissed the petition, challenging the Lower Court's order which directed the Petitioner-accused to give his voice sample. It observed that the infringement of the fundamental right to privacy cannot be raised to create a bubble to scuttle the investigation.

In the case of State of Bombay vs Kathi Kalu Oghad, the Supreme Court had held that there is no infringement of Art.20(3) of the Constitution if an accused person is asked to give his specimen handwriting or signature; or impressions of his fingers, palm or foot to the investigating officer or under orders of a court for the purpose of comparison under the provisions of Sec-73 of the Indian Evidence Act.

In the case Kamal Pal and Another v. State Of Punjab(2021[29]) With the advancement of technology, the modes of communication are changing. To keep pace with the change, new technology is required to be used for collecting and comparing evidence. One method being tapping of communication devices but after compliance of the procedure laid down. It is in that context that taking of voice samples are necessitated. The samples collected are not evidence in itself, rather are tools to identify the voice recording collected as evidence."

Voice sampling even without permission of the accused?
In the case of Mahesh Lal N.Y v. State of Kerala(2022)[30] it was held that the consent of an accused is not necessary to acquire their voice sample for the purpose of comparison, since it has already been established that obtaining voice samples of the accused do not infringe Article 20 (3) of the Constitution of India.

In the recent case of Raj Kumar Singh Chouhan vs State of Rajasthan(2022)[31], the learned counsel on behalf of the accused contended that the voice sample cannot be taken against the choice of the accused otherwise it would result in self-incrimination under Article 20(3) of the Constitution of India. The learned counsel for the accused has also referred to the judgment given in Vikramjeet Singh vs.State of Rajasthan[32]. Thus, while relying on the judgment passed by the Supreme Court in Ritesh Sinha v State of Uttar Pradesh & Anr., the Hon'ble court rejected the plea of the accused and it was held that it is not compulsory to take their consent also no need to be heard during the investigation.

In R.K. Akhande vs. Special Police Establishment[33], the Madhya Pradesh High Court held that necessitating the accused person to give the voice sample does not mean that he is giving evidence against himself.

Also, In Kamal Pal and Another v. State of Punjab[34], the Punjab and Haryana High Court held that the accused who is judicially directed to give the voice sample for the purpose of inquiry or comparison purposes do not infringe the right to privacy.

Conclusion
A voice sample is a method through which the recording of the voice is taken from the accused of the purpose of comparing the other recording speech or conversation. The legislation had not made any laws relating to a voice sample. The court had tried its best to pronounce its judgment which would deliver justice to the society without ignoring the intent of the legislation. Such an instance can be seen in Ritesh Sinha v. State of Uttar Pradesh & Anr in which the Supreme Court declared that the accused person has to give a voice sample for investigation in criminal matters and thus, it does not violate Article 20(3) of the Constitution of India.

Right to privacy refers to the choice of the person to safeguard his details about his private life. The mobile phone, laptop, or any other form containing the personal details of the person cannot be disclosed to the third party without seeking his permission. And, so the Supreme Court had already stated that the court cannot issue an order against the person or accused person to give his voice sample without his will otherwise it would resultantly violate his right to privacy.[35]

End Notes:

1. Id.; Bruce Berner, Miranda Project Introduction, 40 VAL. U. L. REV. 599, 599 (2006)
2. Bruce Berner, Id. at 599
3. See e.g. the Delhi Special Police Establishment Act, 1946, § 2(1); Prevention of Money Laundering Act, 2002
4. See e.g. Code of Criminal Procedure, 1973, § 154
5. R v. Lillyman, [1896] 2 QB 167
6. Self-incrimination - Wikipedia
7. www.legalserviceindia.com
8. Khare, Harshit. "Privilege Against Self-Incrimination". Legal Service India. Retrieved 26 March 2018
9. Helmholz, Richard H. (1990). "Origins of the Privilege against Self-Incrimination: The Role of the European Ius Commune". New York University Law Review. 65: 962–990
10. self-incrimination | Wex | US Law | LII / Legal Information Institute (cornell.edu)
11. 378 U.S. 1 (1966)
12. 380 U.S. 609 (1965)
13. 384 U.S. 436 (1966)
14. A 'self-incriminatory' statement is meant here in the same way it as has been defined by the Supreme Court of India in State of Bombay v. Kathi Kalu Oghad, AIR 1961 SC 1808
15. GEORGE C. THOMAS III & RICHARD LEO, CONFESSIONS OF GUILT: FROM TORTURE TO MIRANDA AND BEYOND 63-64 (2012, Oxford University Press)
16. https://www.drishtiias.com/daily-updates/daily-news-analysis/right-against-self-incrimination-and-constitutional-remedies
17. https://blog.ipleaders.in/right-against-self-incrimination/
18. 1954 AIR 300
19. 1994 CRILJ 3044
20. 1961 AIR 1808
21. AIR 1989 SC 598
22. AIR 2007 SUPREME COURT 132
23. AIR 2018 SC (SUPP) 1841
24. 2023 LiveLaw (SC) 463
25. AIR 2018 SC (SUPP) 1841
26. https://www.livelaw.in/news-updates/punjab-and-haryana-high-court-direction-voice-sample-not-infringe-article-203-constitution-of-india-195634
27. AIR 2010 SUPREME COURT 1974
28. 2022 LiveLaw (PH) 54
29. AIR 2013 SUPREME COURT 3150, 2013
30. 2022 LiveLaw (Ker) 29
31. AIR ONLINE 2018 RAJ 1044
32. 2022 LiveLaw (Ker) 29
33. https://blog.ipleaders.in/is-taking-a-voice-sample-from-the-accused-without-his-consent-unconstitutional/