TEAM CODE: Team 1

BEFORE THE HON’BLE SC OF INDIKIA

IN THE MATTER OF:

MR. BALWANT RAI ... PETITIONER

V.

THE UNION OF INDIKIA ... RESPONDENT

WRIT PETITION NO. ****/2021

ON SUBMISSION TO THE HON’BLE SC OF INDIKIA

UNDER ART. 32 OF THE CONST. OF INDIKIA

WRITTEN SUBMISSIONS ON BEHALF OF THE PETITIONER

COUNSEL APPEARING ON BEHALF OF THE PETITIONER

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TABLE OF CONTENTS
List of Abbreviations 3

Index of Authorities.................................................................................................................4

Statement of Jurisdiction........................................................................................................7

Statement of Facts....................................................................................................................8

Issues Presented.........................................................................................................................9

Summary of Arguments.........................................................................................................11

Arguments Advanced..............................................................................................................15

Prayer for Relief.......................................................................................................................29

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LIST OF ABBREVIATIONS
¶ : Paragraph

AIR : All India Report

All : Allahabad

AP : Andhra Pradesh

Art. : Article

Bom : Bombay

Cal : Calcutta

Del : Delhi

DPSP : Directive Principles of State Policy

HC : High Court

IT Act : Information Technology Act

Kar : Karnataka

PIL : Public Interest Litigation

PDS : Public Distribution System

SC : Supreme Court

SCC : Supreme Court Cases

SLP : Special Leave Petition

u/s : Under Section

UOI : Union of India

US : United States

UK : United Kingdom
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INDEX OF AUTHORITIES
CONSTITUTION

1. INDIA CONST. art. 21.

2. INDIA CONST. art. 32.
3. INDIA CONST. art. 20, cl.3.
4. INDIA CONST. art. 22, cl. 2.
Const. of Indikia........................................................passim

STATUTES

1. The Code of Criminal Procedure, 1973..................................................................................19

2. Indian Evidence Act, 1872.......................................................................................................5
CASES
1. Dr KS Rao v. State of Hydrabad, AIR 1957 AP 416.
2. G.K. Moopanar, M.L.A. And Others v. State Of Tamil Nadu, 1990 CriLJ 2685.
3. Raj Pal Singh v. State of U.P., 1983 Crl.L.J. 109.
4. Kana v. State of Rajasthan, 1980 CriLJ 344.
5. Elumalai v. State of Tamil Nadu, 1983 Mad LW (Cri) 121
6. Manubhai Ratilal Patel through Ushaben v. State of Gujarat, AIR 2013 SC 313.
7. Kanu Sanyal v. District Magistrate, AIR 1974 SC 510.
8. Darjeeling, Col. Dr. B. Ramachandra Rao v. State of Orissa, AIR 1971 SC 2197.
9. Gautam Navlakha v. National Investigation Agency, MANU 2021 SC 0350.
10. Prem Chand Garg v. Excise Commissioner, U.P., AIR 1963 SC 996
11. Simranjit Singh Mann v. Union of India, JT 1992 (5) SC 441
12. S. Pratap Singh v. State of Punjab, AIR 1964 SC 72.
13. Joginder Kumar v. State of U.P., 1994 (4) SCC, 260.
14. Gulab Chand Upadhyaya v. State of U.P., 2002 CriLJ 2907.
15. Ranjit Singh v. The State of Pepsu, AIR 1959 SC 843.
16. Selvi & Ors v. State of Karnataka, AIR 2010 SC 1974
17. Maneka Gandhi v. Union of India, A.I.R. 1978 S.C. 597.
18. Dr KS Rao v. State of Hydrabad, AIR 1957 AP 416.
19. State of UP v. Ramsagar Yadav, (1985) 1 Crimes 344.
20. Nandini Satpathy Vs.PL Dani, A.I.R. 1978 S.C. 1025.
21. The State Of Bombay v. Kathi Kalu Oghad And Others, A.I.R. 1961 S.C. 1808.

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22. M. P. Sharma v. Satish Chandra, A.I.R. 1954 S.C. 300.
23. 1 VISHAKA & ORS. V STATE OF RAJASTHAN & ORS., AIR 1997 SC 3011.
24. 1 Neelabati Behera v. State of Orissa, A.I.R. 1993 S.C. 1960.
25. 1 Chairman Railway Board v. Chandrima Das, (2000) 2 SCC 465.
26. Amin And Anr. V. The State, AIR 1958 All 293.
27. Raja Narayanlal Bansilal v. Maneck Phiroz Mistry, A.I.R. 1961 S.C. 29
28. Anuradha Bhasin v. Union Of India, 2020 SCC Online SC 25..

FOREIGN CASES

1. Stuart v. Palmer, 74 N.Y. 183, 188.

2. Greene v. Secretary of States for Home Affairs, 1941 3 All ER 104
3. Storck v Germany 61603/00 [2005 ECHR 406
4. Woolmington v. DPP, 1935 AC 462.
5. Miranda V. Arizona, 384 U.S. 436 (1966).

BOOKS

1. D. D. Basu Commentary on The Constitution of India, (8th ed., Lexis Nexis Butterworth
Wadhwa Publications, Nagpur, 2008)
2. M P Jain, Indian Constitutional Law, (7th ed., Lexis-Nexis Butterworth Wadhwa
Publications, Nagpur, 2016)
3. Miranda Warning Equivalents Abroad
4. Susanne Sreedhar Hobbes on Resistance: Defying the Leviathan, Cambridge University Press,
2010. P.70
5. Law Commission of India, 118th Report on Article 20(3) of the Constitution of India and
6. the Right to Silence The State Filing Writ Petition Under Article 32: Analysing the
Maintainability
7. M.P. Jain, Indian Constitution Law 98 (Kamal Law House, Calcutta, 5th Edn,1998)
8. Dr. J.N. Pandey, Constitutional Law of India (Central Law Agency, Allahabad, 54th
Edn,2017)
9. R.V. Kelkar’s, Criminal Procedure (Eastern Book Company, Lucknow, 4th Edition, 2001)
10. Ratanlal Ranchhoddas, The Code of Criminal Procedure (LexisNexis Butterworths
Wadhwa, Nagpur, 2009)
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1. Art. 11, Universal Declaration of Human Rights,1948.

2. Art. 11.1, Universal Declaration of Human Rights, 1948.
3. Art. 14(3)(g), International Covenant on Civil and Political Rights, 1966.

ARTICLES

1. Steven Forde ,John Locke and the Natural Law

2. Inbau, Fred E, “Self Incrimination: What Can Be an Accused Person Be Compelled To Do”
3. Journal of Criminal Law and Criminology, Vol. 89, No.4, Summer 1999.
4. M.R.T. MacNair, “The Early Development of the Privilege against Self-Incrimination”
5. Oxford Journal of Legal Studies, Vol. 10, No. 1 (Spring, 1990), pp. 66-68
6. 3. Pankaj Kumar Pandey, “Protection against Self-Incrimination” as a Fundamental Right in
7. India: A Critical Appraisal, Indian Bar Review, Vol. XLII (4) 2015.

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STATEMENT OF JURISDICTION

The Hon‟ble Supreme Court of Indikia has the jurisdiction in this matter under Article 32 of
the Constitution of Indikia which reads as follows:

“32. Remedies for enforcement of rights conferred by this Part-

(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of
the rights conferred by this Part is guaranteed.
(2) The Supreme Court shall have power to issue directions or orders or writs, including writs
in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever
may be appropriate, for the enforcement of any of the rights conferred by this Part.”

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STATEMENT OF FACTS

BACKGROUND

Indikia is among the most populated countries of the world and is positioned on the Hadenese
subcontinent in south-central Luthania. Though the literacy rate of Indikia is 72.99%, the
masses by and large are not aware about current issues and government policies. Due to low
level of literacy as well as ignorance and non-availability of birth control measures amongst
the population at large, the population of Indikia grew in an uncontrolled manner, which
caused a huge strain on the resources as well as upon the legal machinery established to
maintain law and order.

DISTRUST AMONG THE PEOPLE AND THE STATE MACHINERIS

There is a general distrust amongst the people of Indikia and the state machineries, which was
also shown in various media reports in Indikia and international media. Many cases were filed
in the Supreme Court against atrocities committed by the state machinery. The police were
also accused of using unusual and at times illegal means while investigating cases and coming
to a conclusion. Moreover, the police were hailed as the main perpetrators of fear by many
human rights groups in Indikia as well as in the international arena.

ARREST OF MR. BALWANT RAI

Mr. Balwant Rai is a leading TV and stage personality. He was arrested by the Indikian Police
under the suspicion of committing a murder. The police sought the custody of Mr. Rai on the
sole ground of recovering the weapon used. When being presented in front of the court for his
remand hearing, Mr. Rai gave an undertaking to the court that no incriminating evidence was
found from him and that he did not wish to answer any questions related to recovery as well.
He informed the court that he does not know anything about such murder or the murder
weapon and secondly that he does not want to answer any incriminating questions related to
the same. He also informed the court that at the time of arrest he was not informed of any of
his right against self-incrimination. To this point, the prosecutor argued that the State was not
under any obligation to do so. After hearing arguments from both the sides, the judge allowed
the request of the State and gave Mr. Rai seven days of Police Custody.

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PETITION FILED BY MR. BALWANT RAI

Mr. Rai was aggrieved by the order of the judge. Thus, he has now approached the Supreme
Court under Article 32 against the remand order.

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ISSUES PRESENTED

ISSUE 1

WHETHER WRIT PETITION IS MAINTAINABLE?

ISSUE 2

WHETHER THE REMAND ORDER IS PATENTLY ILLEGAL?

ISSUE 3

WHETHER THE ACCUSED CAN REFUSE TO MAKE A DISCLOSURE STATEMENT AND

WHETHER THE POLICE ARE UNDER OBLIGATION TO APPRAISE THE ACCUSED ABOUT THE
RIGHT AGAINST SELF-INCRIMINATION?

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SUMMARY OF ARGUMENTS
[1]. WHETHER THE WRIT PETITION IS MAINTAINABLE?

It is humbly submitted by the petitioner before the honorable Supreme Court that the writ
petition filed by the petitioner would be maintainable as writ petition under Article 32 of the
Constitution can be entertained if there is a breach of fundamental rights and a violation of
the principles of natural justice. Here, the detention of the petitioner is of illegal nature and
violates among other the fundamental right to life enshrined in Art.211 of the constitution.
The the purpose of the Heabeas Corpus is to provide the remedy to an individual who has
been wrongfully deprived of his personal liberty and the SC in
Manubhai Ratilal Patel
through Ushaben vs. State of Gujarat2 , Kanu Sanyal v. District Magistrate,3
Darjeeling,
Col. Dr. B. Ramachandra Rao v. State of Orissa4 laid down the provision for issue whether
habeas corpus petition could be entertained against an order of remand passed by a judicial
magistrate.

It is also humbly submitted that the remand order passed by Honorable Judge is illegal as it
is passed just a matter of course and not on reasonable grounds. When the investigation is
progressing, with not enough evidence/grounds against the accused to seek police, it is not
necessary to grant police custody.5 Denying a person his liberty is a serious matter6 and it
should necessarily be based on sufficient grounds. The petition of Habeas Corpus is not a
substantive law rather malleable in nature. The purpose of the Habeas Corpus is to protect a
person who is illegally restrained of his liberty.

[2]. WHETHER THE REMAND ORDER IS PATENTLY ILLEGAL?

It is humbly submitted before the honourable court that the remand order is patently illegal.
Remand is not to be passed in a routine manner and is generally sought to complete
investigation when there are strong evidences against the accused. The same also observed by

1
INDIA CONST. art. 21.
2
Manubhai Ratilal Patel through Ushaben vs. State of Gujarat, AIR 2013 SC 313.
3
Kanu Sanyal v. District Magistrate, AIR 1974 SC 510.
4
Darjeeling, Col. Dr. B. Ramachandra Rao v. State of Orissa, AIR 1971 SC 2197.
5
Dr KS Rao Vs. State of Hydrabad, AIR 1957 AP 416.

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Joginder Kumar Vs. State of U.P., 1994 (4) SCC, 260.

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the court in the case Raj Pal Singh v. State of U.P.7, that that remand order cannot be without
application of mind and it must not be in a routine and mechanical manner. However, in the
present case, the remand order is sought on the sole ground of the recovery of weapon 8 and
there are no evidences which indicate that the murder weapon belongs to the petitioner. The
magistrate should discourage giving tendency of police to take remand to extort confession.
Keeping in mind, the previous instances of the Indikian Police using unfair means to derive
the conclusion9, there is a high probability that the Police will tend to violate this right of the
petitioner to obtain the statements forcefully. Thus, violating his right to remain silent and
right against self-incrimination which is provided under the Article 20(3) of the Constitution
of India.10 Therefore, for all that, the remand order should be declared as patently illegal.

[3]. WHETHER THE ACCUSED CAN REFUSE TO MAKE A DISCLOSURE STATEMENT AND
WHETHER THE POLICE ARE UNDER OBLIGATION TO APPRAISE THE ACCUSED ABOUT THE
RIGHT AGAINST SELF-INCRIMINATION?
It is humbly submitted before the court that the accuse can refuse to make the disclosure
statement, the accused has the privilege to remain silent as per provision of right against self-
incrimination guaranteed by the Art.20(3) of the constitution and Sec.161(2) of CrPC. The
right against self-incrimination protects the suspects from giving forced evidences against
themselves. The SC in Nandini Satpathy Vs.PL Dani stated that the right against self-
incrimination is similar in ambit to Sec. 161(2) of CrPC, therefore the petitioner can refuse to
make incriminatory statements. It was also stated in this judgement that the right to remain
silent is essential part of right against self – incrimination, thus giving it a constitutional status.
The protection granted to Art.20 is of highest order & as per Anuradha Bashin Vs UOI, the
state cannot take away the fundamental rights guaranteed to a citizen in cavalier fashion
therefore, the accused can refuse to make a disclosure statement using his constitutionally
protected rights.

It is also pleaded that the police are under obligation to appraise the accused of all of his rights
as detune including the right against self-incrimination as per landmark judgement of DK
Basu Vs. State of WB, The right against self-incrimination is essential part of fair trail within
the ambit of right to life, SC in Nandini Sathpathy Vs. PL Dani stated that it is essential for the

7
Raj Pal Singh v. State of U.P., 1983 Crl.L.J. 109.
8
Moot Proposition, ¶6.
9
Supra note 25.
10
INDIA CONST. art. 20, cl.3.

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accused to realize his right against self-incrimination and put the responsibility upon state to
ensure that has been intimated of his right ideally through an attorney, Therefore to safeguard
the accused against exploitation of state , It is implicit that the police should inform the
accused of his right against self-incrimination.

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ARGUMENTS ADVANCED
[1]. THAT THE WRIT PETITION IS MAINTAINABLE

1. It is humbly submitted by the petitioner before the honorable Supreme Court that the writ
petition filed by the petitioner is maintainable. A writ petition under Article 32 of the
Constitution can be entertained if there is (i) a breach of fundamental rights; and (ii) a
violation of the principles of natural justice. It is pleaded that the detention of the petitioner
is of illegal nature and violates among other the fundamental right to life enshrined in
Art.2111 of the constitution.

2. Article 32 of the Constitution of India is meant to ensure observance of the rule of law
and prevent abuse or misuse of power. It is designed to ensure that each and every authority
in the State, including the Government, acts bona-fide and within the limits of its powers
and that when a court is satisfied that there is an abuse or misuse of power, it is incumbent
on the court to afford justice to the individual.12 The fundamental right to move the Hon’ble
Supreme Court can be appropriately described as the cornerstone of the democratic edifice
raised by the Constitution.13 The Hon’ble Supreme Court in the case of Prem Chand Garg
v. Excise Commissioner, U.P.14, held that in discharging duties assigned to the court, the
Supreme Court has to play the role of a ‘sentinel on the qui vive’ and it must always regard
it as it’s solemn duty to protect the said fundamental rights ‘zealously and vigilantly’. It has
also been observed by the court that a mere threat to infringement of fundamental rights is
enough to justify the issue of writ.15 Therefore, the petitioner has right of constitutional
remedies as per the provisions of Art.3216 of the constitution.

[1.1]. THE PRECEDENT OF MAINTAINABILITY OF HABEAS CORPUS IN CASES OF REMAND

ORDER

It is humbly submitted that the issue whether the writ of habeas corpus is maintainable is case
of police custody as per the provision of sec. 167 of CrPC17 is not res integra. The SC in

11
INDIA CONST. art. 21.
12
S. Pratap Singh v. State of Punjab, AIR 1964 SC 72.
13
Pawan Reley, The State Filing Writ Petition Under Article 32: Analysing the Maintainability, Legit Eye,
https://legiteye.com/the-state-filing-writ-petition-under-article-32-analysing-the-maintainability-by-pawan-reley/
(last visited December 6, 2021).
14
Prem Chand Garg v. Excise Commissioner, U.P., AIR 1963 SC 996
15
Simranjit Singh Mann Vs. Union of India, JT 1992 (5) SC 441
16
INDIA CONST. art. 32.
17
The Code of Criminal Procedure, 1978, No. 2, Acts of Parliament, 1974.

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Manubhai Ratilal Patel through Ushaben vs. State of Gujarat 18 , Kanu Sanyal v. District
Magistrate,19 Darjeeling, Col. Dr. B. Ramachandra Rao v. State of Orissa 20 laid down the
provision for issue whether habeas corpus petition could be entertained against an order of
remand passed by a judicial magistrate. The SC relying on the mentioned cases quoted
through J. UU Lalit in Gautam Navlakha vs National Investigation Agency 21 in (para 63) “If
the remand is absolutely illegal or the remand is afflicted with the vice of lack of
jurisdiction, a Habeas Corpus petition would indeed lie. Equally, if an order of remand is
passed in an absolutely mechanical manner, the person affected can seek the remedy of
Habeas Corpus”.

Therefore, a division bench of 3 judges of SC has recognized that the writ of Habeas Corpus
can be maintained in case of police remand as per sec.167 of CrPC.

[1.2] THE ILLEGALITY OF REMAND ORDER

It is humbly submitted that the remand order passed by Honorable Magistrate is illegal on the
ground that it has be passed in a mechanical manner on the basis of an evidence with weak
probative value against a dignified citizen striping him of his right to fair trail and due process
of law guaranteed under Art.2122 of the constitution. There remand orders have to be passed
on after the application of mind in case to cases basis and only when it is absolutely
necessary.23 It was also observed by the court in the case Raj Pal Singh v. State of U.P.24, that
that remand order cannot be without application of mind and it must not be in a routine and
mechanical manner. As per the existing laws, for the police custody, it is necessary to get
strong evidence and important material must be recovered from the accused. However, in the
present case, the remand order is sought on the sole ground of the recovery of weapon. 25
Moreover, the petitioner has also submitted an undertaking to the court that no incriminating
evidence can be found from him.26 Also, there are no evidences which indicate that the
murder weapon belongs to the petitioner. When the investigation is progressing, with not
enough evidence/grounds against the accused to seek police, it is not necessary to grant police

18
Manubhai Ratilal Patel through Ushaben vs. State of Gujarat, AIR 2013 SC 313.
19
Kanu Sanyal v. District Magistrate, AIR 1974 SC 510.
20
Darjeeling, Col. Dr. B. Ramachandra Rao v. State of Orissa, AIR 1971 SC 2197.
21
Gautam Navlakha vs National Investigation Agency, MANU 2021 SC 0350.
22
INDIA CONST. art. 21.
23
G.K. Moopanar, M.L.A. And Others vs State Of Tamil Nadu, 1990 CriLJ 2685.
24
Raj Pal Singh v. State of U.P., 1983 Crl.L.J. 109.
25
Moot Proposition, ¶6.
26
Moot Proposition, ¶7.

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custody.27 Denying a person his liberty is a serious matter 28 and it should necessarily be based
on sufficient grounds. It was held in the case Gulab Chand Upadhyaya v. State of U.P.29, that
a Magistrate has the power to restrict investigation., if there is no strong evidence against the
accused.

The scheme of Section 16730 is obvious and is intended to protect the accused from the
methods which may be adopted by some overzealous and unscrupulous police officers. The
person has a right to remain silent and cannot be compelled to answer any incriminating
question. The right against self-incrimination is guaranteed under the Article 20 (3) of the
constitution. Article 20(3) aims to prevent the forcible 'conveyance of personal knowledge that
is relevant to the facts in issue'. Considering the previous instances of the Indikian Police using
unfair means to derive the conclusion31, there are high chances that the Police will tend to
violate this right of the petitioner to obtain the statements forcefully, if the custody of the
accused is given to the police. Therefore, the Magistrate should discourage giving the policy
custody of the accused.

[1.3] THE PETITION OF HABEAS CORPUS IS NOT A SUBSTANTIVE LAW RATHER

MALLEABLE IN NATURE

It is humbly submitted that the purpose of the Heabeas Corpus is to provide the remedy to
an individual who has been wrongfully deprived of his personal liberty. In Kanu Sanyal v.
District Magistrate, Darjeeling and others32, it was laid down that the writ of habeas corpus
deals with the machinery of justice, not the substantive law. The object of the writ is to

secure release of a person who is illegally restrained of his liberty.33

Likewise, in Ranjit Singh v. The State of Pepsu34 (now Punjab), after referring to Greene v.
Secretary of States for Home Affairs35, this Court observed that the whole object of
proceedings for a writ of habeas corpus is to make them expeditious, to keep them as free from
technicality as possible and to keep them as simple as possible. The Bench quoted Lord

27
Dr KS Rao Vs. State of Hydrabad, AIR 1957 AP 416.
28
Joginder Kumar Vs. State of U.P., 1994 (4) SCC, 260.
29
Gulab Chand Upadhyaya v. State of U.P., 2002 CriLJ 2907.
30
The Code of Criminal Procedure, 1973, No. 2, Acts of Parliament, 1974.
31
Supra note 25.
32
Kanu Sanyal v. District Magistrate, AIR 1974 SC 510.
33
Manubhai Ratilal Patel through Ushaben vs. State of Gujarat, AIR 2013 SC 313.
34
Ranjit Singh Vs. The State of Pepsu, AIR 1959 SC 843.
35
Greene v. Secretary of States for Home Affairs, [1941] 3 All ER 104

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Wright who, in Greene’s case, had stated thus: “The incalculable value of Habeas Corpus is
that it enables the immediate determination of the right to the appellant’s freedom.

In Storck v Germany, the EU court stated that the right to liberty is too important right in a
constitutional democracy to be taken away by state.36

Therefore, the writ of Habeas Corpus is essentially malleable to fulfill the need of any
citizen deprived of his personal liberty in an illegal manner even if the substantive laws are
silent on the issue.

[2.] THAT THE REMAND ORDER IS PATENTLY ILLEGAL

It is humbly submitted before the honourable court that before making an order of remand to
Police custody under section 167 of the Code of Criminal Procedure 37 the Magistrate should
satisfy himself that - (1) there are grounds for believing that the accusation against the person
sent up by the Police is well founded, (2) there are good and sufficient reasons for remanding
the accused to Police custody instead of detaining him in magisterial custody. It is not to be

given in a routine manner. Remand is generally sought to complete investigation when there
are strong evidences against the accused. However, in the present case, the probative value of
the evidence submitted by police is weak. Also, the accused has already given an undertaking
highlighting that he knows nothing about murder weapon38 and compelling the accused to give
disclosure statement violates his right to remain silent and has a tendency by police to extort
confession which clearly violates right against self-incrimination which is provided under the
Article 20(3) of the Constitution of India.39 Also, the proposition is silent about the jurisdiction
of the court and the judge. Therefore, it is on the respondent to prove that the respective court
have the jurisdiction over the matter beyond any reasonable doubt. If the respondent fails to
prove the same, then the remand orders would be prima facie illegal on the grounds that the
said order is out of the jurisdiction of the respective court.

habitual offender. He is a leading TV and stage personality.40 He will not be a threat to society.

36
Storck v Germany 61603/00 [2005] ECHR 406
37
The Code of Criminal Procedure, 1973, No. 2, Acts of Parliament, 1974.
38
Moot Proposition, ¶7.
39
INDIA CONST. art. 20, cl.3.
40
Moot Proposition, ¶6.

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Furthermore, another reason to issue the remand orders in a general scenario is that accused
may pose a threat to the society and the evidences. But, here the accused, Mr. Balwant Rai, is
not a

[2.1] Remand order not to be passed in a routine manner

S. 167(1) of Cr.P.C41. suggests that an investigating officer can ask for remand only when
there are grounds for believing that the accusation or information is well founded and it
appears that the investigation cannot be completed within the period of 24 hours fixed by S.
5742. Therefore, it follows that a remand by a Magistrate is not an automatic one and sufficient
grounds must exist for the Magistrate to exercise their powers of remand. It was also observed
by the court in the case Raj Pal Singh v. State of U.P.43, that that remand order cannot be
without application of mind and it must not be in a routine and mechanical manner. However,
in the present case, the remand order is sought on the sole ground of the recovery of weapon. 44
Moreover, the petitioner has also submitted an undertaking to the court that no incriminating
evidence can be found from him.45
In another case, G.K. Moopanar, M.L.A. And Ors. v. State of Tamil Nadu 46, it was also held
that ''Under the provisions of the Criminal Procedure Code, the duty of the police officer is to
produce the arrested persons before the concerned Magistrate within 24 hours along with their
remand report and a copy of the diary maintained by him at the time of the remand as required
under S. 167, Cr.P.C.47 Thereafter, it is for the concerned Magistrate to apply his mind and
satisfy himself that the accused should be remanded to judicial or police custody.'' It was also
held in Kana v. State of Rajasthan48, Magistrate must give reasons for authorizing detention of
accused to custody. Such orders cannot be passed as a matter of course. Therefore, it can be
implied that there should be application of mind and reasonability from case-to-case basis to
grant police custody. Therefore, the remand should not be made mechanically and as a matter
of routine and such routines should be deprecated.49

41
The Code of Criminal Procedure, 1973, No. 2, Acts of Parliament, 1974.
42
The Code of Criminal Procedure, 1973, No. 2, Acts of Parliament, 1974, §6.
43
Raj Pal Singh v. State of U.P., 1983 Crl.L.J. 109.
44
Moot Proposition, ¶6.
45
Moot Proposition, ¶7.
46
G.K. Moopanar, M.L.A. & Ors. v. State of Tamil Nadu, 2002 Cri LJ 2907.
47
The Code of Criminal Procedure, 1973, No. 2, Acts of Parliament, 1974.
48
Kana v. State of Rajasthan, 1980 CriLJ 344.
49
Elumalai v. State of Tamil Nadu, 1983 Mad LW (Cri) 121

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[2.2] Remand orders should only be given when there are strong evidences

In the opinion of the High Court a remand to Police custody ought only to be granted in cases
of real necessity and when it is shown in the application that there is good reason to believe
that the accused can point out properly or otherwise assist the Police in elucidating the case.
Here, the accused is not willing to answer any question relating to the murder or the weapon. 50
He is exercising his right to remain silent.
Therefore, it follows that he won’t assist the Police in any manner regarding the ongoing case.
It was held in the case Gulab Chand Upadhyaya v. State of U.P.51, that a Magistrate has the
power to restrict investigation., if there is no strong evidence against the accused. In the
present case, the probative value of the evidence submitted by police is weak. The proposition
is silent whether the murder weapon was recovered from the petitioner or somewhere else and
there are no evidences which indicate that the murder weapon belongs to the petitioner.
Compelling the accused to answer the question related to the murder will amount to the
violation of his right to silence and the right to self-incrimination granted under the Article
20(3) of the Constitution of India52.
The SC in Selvi & Ors Vs. State of Karnataka53, recognized the right against self-
incrimination should be construed with right to liberty as per Art.21 54, and due process of law
as per Menaka Gandhi Judgment.55 The SC also quoted that these rights emanating from Art.
20 and 21 are non-derogable in nature. These right guarantees the right to fair trail and ensures
the presumption of innocence. A general statement by the officer applying for remand that the
accused may be able to give further information should not be accepted. As per the existing
laws, for the police custody, it is necessary to get strong evidence and important material must
be recovered from the accused. The evidence with which the accused has to be confronted in
police custody, has to be with police and there should be strong evidence.

It was observed in the case, Dr KS Rao Vs. State of Hydrabad56, in remanding the accused to
police custody the Magistrate ought to follow the provisions of section 167 of the Code 57 and
should give proper reasons for handing over the accused to the police custody. When the
investigation is progressing, with not enough evidence/grounds against the accused to seek

50
Moot Proposition, ¶7.
51
Gulab Chand Upadhyaya v. State of U.P., 2002 CriLJ 2907.
52
INDIA CONST. art. 20, cl.3.
53
Selvi & Ors v. State of Karnataka, AIR 2010 SC 1974.
54
INDIA CONST. art. 21.
55
Maneka Gandhi v. Union of India, A.I.R. 1978 S.C. 597.
56
Dr KS Rao Vs. State of Hydrabad, AIR 1957 AP 416.
57
The Code of Criminal Procedure, 1973, No. 2, Acts of Parliament, 1974, .

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police, it is not necessary to grant police custody.

[2.3 ]Magistrate should discourage tendency of police to take remand to extort confession

The detention in police custody is generally disfavoured by law. The Police are too often
desirous of retaining the accused in their custody for the longer period than twenty-four hours
merely in the hope of extracting some admission of guilt from him. This is contrary to section
163 and the following section of the Code of Criminal Procedure, and to the spirit of the Code

generally; and Magistrates must be careful not to facilitate this object by too great a readiness in
granting remands.58 The provisions of law lay down that such detention can be allowed only in
special circumstances and that can be only by a remand granted by a magistrate for reasons
judicially scrutinised and for such limited purposes as the necessities of the case may require.
The scheme of Section 16759 is obvious and is intended to protect the accused from the methods
which may be adopted by some overzealous and unscrupulous police officers.

In the case State of UP v. Ramsagar Yadav60, it was held by the court that that a remand to Police
custody should not be given unless the officer making the Application is able to show definite
and satisfactory grounds. Remand order should not be passed mechanically without proper
application of mind. Moreover, there were many instances in which cases were filed in the
Supreme court against atrocities committed by the state machinery, specifically police against
some areas of the population. The police were also accused of using unusual and at times illegal
means while investigating cases and coming to a conclusion. 61It follows that the Indikian Police
tends to misuse its powers. At this point it would be necessary to shed some light on the case
Joginder Kumar v. State of U.P.62 , where the court considered the dynamics of misuse of police
power of arrest and opined that “No arrest can be made because it is lawful for the police officer
to do so. The existence of the power of arrest is one thing. The justification for the exercise of it
is quite another. No arrest should be made without a reasonable satisfaction reached after some
investigation about the genuineness and bonafides of a complaint and a reasonable belief both
as to the person's complicity and even so as to the need to effect arrest. Denying person his
liberty is a serious matter.”

58
\https://www.highcourtchd.gov.in/sub_pages/left_menu/Rules_orders/high_court_rules/vol-III-
pdf/chap11partB.pdf (last visited 6 December, 2021).
59
The Code of Criminal Procedure, 1973, No. 2, Acts of Parliament, 1974.
60
State of UP v. Ramsagar Yadav, (1985) 1 Crimes 344.
61
Moot Proposition, ¶5.
62
Joginder Kumar Vs. State of U.P, 1994 (4) SCC, 260

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The person has a right to remain silent and cannot be compelled to answer any incriminating
question. The right against self-incrimination is guaranteed under the Article 20 (3) of the
constitution63 and the right to remain silent was also recognized as an essential part of the said
article by the Supreme Court.64 These right guarantees the right to fair trail and ensures the
presumption of innocence. Article 20(3)65 aims to prevent the forcible 'conveyance of personal
knowledge that is relevant to the facts in issue'. If the custody of the accused is given to the
police, then taking into consideration the previous instances of the Indikian Police using unfair
means to derive the conclusion66, there are high chances that the Police will tend to violate this
right of the petitioner to obtain the statements forcefully. Therefore, the Magistrate should
discourage giving the policy custody of the accused.

Therefore, in the present case, as there are no strong evidences against the accused and he has
already given an undertaking that he will not answer any questions related to the murder weapon
that was recovered by the police, there seems no sufficient grounds to remand the accused in
police custody for seven days.

63
INDIA CONST. art. 20, cl.3.
64
Nandini Satpathy Vs.PL Dani, A.I.R. 1978 S.C. 1025.
65
Supra note 27.
66
Supra note 25.

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[3.] THAT THE ACCUSED CAN REFUSE TO MAKE A DISCLOSURE

STATEMENT AND THE POLICE ARE UNDER OBLIGATION TO APPRAISE
THE ACCUSED ABOUT THE RIGHT AGAINST SELF INCRIMINATION.

It is humbly submitted by the petitioner before the honourable Supreme Court that an
accused can refuse to make a disclosure statement as he can the constitutional right
against self – incrimination. 67 It is also submitted that petitioner has right to know about
all of his rights as an accused which includes the right against self-incrimination as per the
provisions laid down by the honourable SC of India. 68

[3.1] Accused Can Refuse to Make a Disclosure Statement.

It is humbly submitted that an accused can refuse to make a disclosure statement during an
interrogation by the police in course of the investigation. The disclosure statements have the
tendency to expose the petitioner to a criminal charge therefore are self-incriminatory in
nature. The petitioner has protection against self-incrimination guaranteed by the Art.20(3)
of constitution.69 Similar protection is granted to an accused as per Sec.161(2)70 with a
wider ambit. The right against self-incrimination is also recognized in the laws of the
evidence in India.71 The SC in M. P. Sharma V. Satish Chandra 72. and The State of Bombay
vs Kathi Kalu Oghad and Others73 clearly said that an accused has right against self-
incrimination that gives the privilege to the accused to not make incriminatory statements.

67
INDIA CONST. art. 22, cl. 2.
68
The State Of Bombay vs Kathi Kalu Oghad And Others, A.I.R. 1961 S.C. 1808.
69
INDIA CONST. art. 20, cl.3.
70
The Code Of Criminal Procedure, 1978, No. 2, Acts of Parliament, 1974.
71
The Indian Evidence Act, 1872, No. 1, Acts of Parliament, 1872.
72
M. P. Sharma v. Satish Chandra, A.I.R. 1954 S.C. 300.
73
The State Of Bombay vs Kathi Kalu Oghad And Others, A.I.R. 1961 S.C. 1808.

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[3.1.2] Jurisprudence of of right against self-incrimination

The right to self-incrimination is based on the principal of Nemon tenetur seipum accusare”
that is “No man is obliged to accuse himself”74. This right emanates from the right to life
and liberty and due process of law. The SC in Selvi & Ors v. State of Karnataka75. Speaking
through J. Balakrishnan recognized the right against self-incrimination should be construed
with right to liberty as per Art.2176, and due process of law as per Menaka Gandhi
Judgment. The SC also quoted that these rights emanating from Art. 20 and 21 are non-
77

derogable in nature. These right guarantees the right to fair trail and ensures the
presumption of innocence.

The right against self-incrimination comes from the famous jurist John Locke’s Bill of
Right’s later adopted in 5th Amendment of the US Constitution 78 bought into spirit through
Miranda rights. Locke was a proponent of natural law school and believed it has some
amount of moral considerations attached to it. This moral consideration results in
presumption of innocence for an accused thereby also resulting in right against self-
incrimination.

Thomas Hobbes believed that you ought to resist against testifying against yourself as it
might lead to conviction which would threaten your existence or your life, therefore, he was
a staunch supporter of resistance against punishment as the primary reason of entering into a
social contract is for self-preservation and by testifying against yourself you destroy the
main purpose of it.79

74
Law Commission of India, 118th Report on Article 20(3) of the Constitution of India and
the Right to Silence, (May 2002)
75
Selvi & Ors v. State of Karnataka, AIR 2010 SC 1974.
76
INDIA CONST. art. 21.
77
Maneka Gandhi v. Union of India, A.I.R. 1978 S.C. 597.
78
Steven Forde ,John Locke and the Natural Law, (Dec 1,20201, 10:48 PM)
http://www.nlnrac.org/earlymodern/locke
79
Susanne Sreedhar Hobbes on Resistance: Defying the Leviathan, Cambridge University Press, 2010. P.70

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[3.1.2] The accused has constitutional protection of Right against self-incrimination in

Article 20(3) & Sec. 161 of CrPC.

It is humbly submitted that sec 161 of CrPC80 pertains to examination of an accused by the
police.

Sec. 161 (2) of CrPC81 reads, Such person shall be bound to answer truly all questions
relating to such case put to him by such officer, other than questions the answers to which
would have a tendency to expose him to a criminal charge or to a penalty or forfeiture.

Sec. 161 (2) of CrPC patently gives privilege to an any person examined by the police to
refrain from giving incriminatory statements. Therefore, the right against self-incrimination
is further protected by CrPC.

Article 20(3) reads, “(3) No person accused of any offence shall be compelled to be a
witness against himself.”

Sec. 161 (2) of CrPC patently gives privilege to an any person examined by the police to
refrain from giving incriminatory statements, Supreme Court in Nandini Satpathy vs Dani
(P.L.) And Anr. stated that protection granted as per Sec.161(2) and Art. 20(3) cover the
similar ambit.

[3.1.2.1] Right to remain Silent.

It is humbly submitted that the accused has right to remain silent during an interrogation or
trail. The right to silence is an essential part of right against self-incrimination. The SC has
recognized in Nandini Satpathy Vs.PL Dani82 the right to remain silent as an essential part
of Art.20(3).
About 108 Jurisdictions recognized the right to remain silent Including commonwealth
nations such as UK, Australia, Canada, Bangladesh, Ireland, Pakistan along with US.83
The right to remain silent is part of rights of accused in UK. In case of Woolmington v.
DPP84, the Lordships quoted that courts should not conclude that an accused is guilty
merely based on his silence. The burden of proof is upon the prosecution, to prove that an
accused is culprit. The accuse has right to remain silent.

80
The Code Of Criminal Procedure, 1978, No. 2, Acts of Parliament, 1974.
81
The Code Of Criminal Procedure, 1978, No. 2, Acts of Parliament, 1974.
82
Nandini Satpathy Vs.PL Dani, A.I.R. 1978 S.C. 1025.
83
The Law Library of Congress, Global Legal Research Center, Miranda Warning Equivalents Abroad,2016.
84
Woolmington v. DPP, (1935) AC 462.

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In U.S. the right to remain silent emanates from the 5 th Amendment’s right against self -
Incrimination85. The US SC in Miranda V. Arizona 86 said that right to remain silent is
impervious protection granted to an accused. Thereafter accused are informed about there
right to remain silent as Miranda Warnings.

[3.1.3] A Suspect can avail right against self-incrimination during interrogation itself.

It is humbly submitted that any person who is an accused can avail right against self-
incrimination. As per Amin and Anr. vs The State 87, any person taken in custody and
interrogated by the police, irrespective of the fact that his name is not in FIR, is also an
accused. Therefore, SC relying on Raja Narayanlal Bansilal vs Maneck Phiroz Mistry88, The
State of Bombay vs Kathi Kalu Oghad 89 stated that any suspect can avail constitutional
protection granted under 20(3) expanding the ambit of the word “accused of an offence” in
Art.20(3) from accused to suspect.90

The pertaining right can be availed immediately after registration of FIR and the accused
cannot doesn’t need to wait for the commencement of the trail to avail the privilege. 91

Therefore, the nature of the privilege is pre-emptive. SC through J Balakrishnan quoted,

“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 already been 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 pre-empted self- incrimination at the incipient stages
by no expressly restricting it to the trial stage in court.”

Therefore, the petitioner poses the right against self-incrimination from the moment he was
interrogated as an accused/suspect.

85
U.S. CONST. amend. V, § 3
86
Miranda V. Arizona, 384 U.S. 436 (1966).
87
Amin And Anr. vs The State, AIR 1958 All 293.
88
Raja Narayanlal Bansilal vs Maneck Phiroz Mistry, A.I.R. 1961 S.C. 29.
89
The State Of Bombay vs Kathi Kalu Oghad And Others, A.I.R. 1961 S.C. 1808.
90
Nandini Satpathy vs Dani (P.L.) And Anr, AIR 1978 SC 1025.
91
M.P. Sharma v. Satish Chandra, AIR 1954 SC 300.

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[3.1.4] International commitments of Indika

It is humbly submitted before the court that Indika is a signatory of many international
treaties, which recognize right against self-incrimination and right to fair trial. Following the
spirit of Art.51 of the constitution 92 and the doctrine of “Pacta sunt servanda” the treaties
should be upheld in good faith.
The UDHR for in Art.11 guarantees the right to fair trail93.

Art. 11.1, Universal Declaration of Human Rights, 194894.

Every person accused of committing a penal offence has the right to be presumed innocent
until proven guilty in a public trail during which he has every guarantee necessary for
defending himself.

In the International Covenant on Civil and Political Rights, 1966. Under Art. 14(3)(g) it
lays down.

That no accused shall be compelled to testify against himself or to confess guilt.95

It is pleaded that the it is the duty of Indika to upheld the Its commitment under UDHR and
ICCPR. The Vienna Convention on the Law of Treaties mandates Indika to maintain the
international commitment. The SC speaking trough J. Verma in Vishaka Case 96 pointed out
that international conventions and norms are of great significance. The SC in many cases
like Neelabati Behera vs. State of Orissa (1993)97 and Chairman Railway Board vs.
Chandrima Das (2000)98 has taken in consideration, the responsibility of state to upheld
international responsibility.

Therefore, the petitioner has the right to against self-incrimination emanating from the
international responsibility of the Indika.

92
INDIA CONST. art. 51.
93
Art. 11, Universal Declaration of Human Rights,1948, (Adopted on 10 dec 1948).
94
Art. 11.1, Universal Declaration of Human Rights, 1948, (Adopted on 10 dec 1948).
95
Art. 14(3)(g), International Covenant on Civil and Political Rights, 1966.
96
VISHAKA & ORS. V STATE OF RAJASTHAN & ORS., AIR 1997 SC 3011.
97
Neelabati Behera vs. State of Orissa, A.I.R. 1993 S.C. 1960.
98
Chairman Railway Board vs. vs. Chandrima Das, (2000) 2 SCC 465.
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[3.2] THE POLICE ARE UNDER OBLIGATION TO APPRAISE THE ACCUSED

ABOUT THE RIGHT AGAINST SELF INCRIMINATION.

It is humbly submitted before the Honourable Supreme Court that the police is under the
obligation to appraise the accused of all of his rights including the right against self-
Incrimination. The right against self-incrimination is enshrined in Part III of the
Constitution99. The rights under Art.20 are non derogable in nature as per Article 359(1) 100
after the 44th amendment101.Therefore the protection granted to right against self-
incrimination is of highest order. The SC in Anuradha Basin Vs UOI 102 has quoted that the
state cannot take fundamental rights in an arbitrary manner upheld the protection granted
under Part III of the constitution. The police come under the definition of state as per Art.12
of the constitution103. Therefore, it is the inherent duty of the police to inform the accused of
his rights given in Art.20(3) along with relevant provisions of CrPC.

[3.2.1] Accused has right to fair trial as per natural justice following the due process of
law.

It is humbly submitted that the SC has recognized the “due process of law” in Menaka
Gandhi v. UOI104. It was held that the procedure established by law that is arbitrary &
without rationale is not a procedure in law. SC through J. Bhagwati pointed out that,
“Procedure established by law under article 14 should fulfil the test of reasonableness
under Article 14105. Law should be reasonable law, and not enacted piece of law.”

The law and its practice that is not reasonable and just is violative of Art.14, Art.19, Art.21.
It is pleaded that the SC has recognized right to fair trial as an essential element of
constitution in Art.21 read with Art.22.106 Therefore, police should be compelled to inform
the accused of his constitutional right against self-incrimination to upheld the due process of
law. The US court of Appeal in Stuart V. Palmer 107 postulated that due process of law must
be followed in trail to make it in consonance with natural justice.
99
INDIA CONST. art. 20, cl. 3.
100
INDIA CONST. art. 359, cl. 1.
101
The Constitution (Forty-fourth Amendment) Act, 1978, No. 88, Acts of Parliament, 1978.
102
Anuradha Bhasin vs Union Of India, 2020 SCC Online SC 25.
103
INDIA CONST. art. 12.
104
Maneka Gandhi v. Union of India, A.I.R. 1978 S.C. 597.
105
INDIA CONST. art. 14.
106
INDIA CONST. art. 21.
107
Stuart v. Palmer, 74 N.Y. 183, 188.

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[3.2.1]DK Basu Guidelines mandates the police to inform the acuused of his rights.

The right guaranteed in Art.20(3)108 is essential part of right of fair trial. 109 The Honourable
SC in Landmark Judgement of DK Basu v. State of West Bengal110 clearly recognized right
against self-incrimination a right which should be taken into consideration while informing
the accused of his rights as an accused.

In Nandini Satpathy vs Dani (P.L.)111 the court while emphasizing the rights enshrined in
Art.20(3), suggested that the right to remain silent and right against self-incrimination can
be exercised in its spirit only after the accused is aware of these rights either and therefore
police must inform the accused of their right to attorney before answering any question.

[3.2.2.] Miranda Rights

The 5th Amendment of US constitution112 grants right against the self-incrimination,

ejusdem generis to right granted in Art.20(3). The Supreme Court of US in landmark
judgment of Miranda v. Arizona113 stated that it is mandatory for the Police to inform the
accused of his right to remain silent, right against self-incrimination & right to attorney. The
court stated that any statement made by the accused in an interrogation without informing
him of his 5th amendment rights are inadmissible as evidence in court of law. Following this
judgement every accused interrogated by the police in US in informed about his right of
against self-incrimination through Miranda warnings.

[3.2.3] Jurisdiction of different countries.

It is humbly submitted that myriads of jurisdiction in eloquent democracies around the

world have provisions to compel the police to inform an accused of his right against self-
incrimination.

The French Code of Criminal Procedure in its Art. L116 114 makes it compulsory that when
an investigating judge hears a suspect, he must warn him that he has the right to remain
silent, to make a statement, or to answer questions.

108
INDIA CONST. art. 20, cl. 3.
109
The State Of Bombay vs Kathi Kalu Oghad And Others, A.I.R. 1961 S.C. 1808.
110
DK Basu vs State Of West Bengal, AIR 1997 SC 610.
111
Nandini Satpathy v. Dani (P.L.) & Anr, AIR 1978 SC 1025.
112
U.S. CONST. amend. V.
113
Miranda v. Arizona, 384 US 436 (1966).
114
Art. L116, The French Code of Criminal Procedure, 1964.

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The Constitution of South Africa ‘Sec. 35115 requires that any arrested person be

informed of their right to remain silent and the consequences of not remaining silent.

The 1987 Constitution of the Philippines, in section 12(1) of Article 3 (Bill of Rights)116
also States Any person under investigation for the commission of an offense shall have the
right to be informed of his right to remain silent

The Canadian Charter of Rights and Freedoms Makes it compulsory for the police to inform
the accused of his rights against self-incrimination emanating from section 7117.

In Germany, as per Sec. 136 of German Code of Criminal Procedure 118 suspect, arrested or
not, has to be informed before any interrogation about their right to remain silent and right
against self-incrimination.

In Israel Sec. 31 of Criminal Procedure Law, 1966119 expressly says that any officer
interrogating a suspect must intimate him of his right to right to remain silent and any
statements made by him can be used against them in court of law.

Therefore, many jurisdictions in order to upheld the natural justice the right against self-
incrimination has made it compulsory for the police to inform the suspect of his right to
remain silent.

115
SOUTH AFRICA CONST. sec. 35.
116
PHILIPPINES CONST. art. 3, cl 12(1).
117
§ 7, The Canadian Charter of Rights and Freedoms.1982.
118
§. 136, German Code of Criminal Procedure, 1987.
119
§ 31, Criminal Procedure Law, 1966.

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PRAYER FOR RELIEF

Wherefore in light of the issues raised, arguments advanced, and authorities cited, it is prayed
that this Hon'ble SC may be pleased to hold that:

1. the Writ Petition is maintainable.

2. The order of the Magistrate is patently illegal
3. the accused can refuse to make a disclosure statement
4. the police is bound to inform the accused of his right against self-incrimination

And Pass any other Order, Direction, or Relief that it may deem fit in the Best Interests of
Justice, Fairness, Equity and Good Conscience.
For This Act of Kindness, the Shall Forever Pray.

Sd/-
(Counsel for the
Petitioner)

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