K. N. Seth, J. :- The constitutional validity of Section 342 of the Code of Criminal Procedure, 1898 was unsuccessfully challenged in Banwari Lal v. The State, AIR 1956 All 341 : (1956 Cri LJ 664). The Bench negatived the contention that the provisions of Section 342 of the Code are violative of Article 22(2) (sic) (20(3) ?) of the Constitution of India. Before the Bench hearing the above noted cases it was urged that in view of the decision of the Supreme Court in State of Bombay v. Kathi Kalu Oghad. AIR 1961 SC 1808 : (1961-2 Cri LJ 856) the authority of the judgement of this Court in the case referred to above has been shaken. Reference was also made to the views expressed by Seervai in his treatise Constitutional Law of India"s and Durga Das Basu"s views in his Commentary on the Constitution of India. It was felt that the question of validity of Sub-Sections (2) and (3) of Section 342 of the Code requires reconsideration and consequently the following question has been referred to a Full Bench :-

"Whether Sub-Sections (2) and (3) of Section 342 of the Code of Criminal procedure are inconsistent with Article 20(3) of the Constitution."

2. Article 20(3) provides that "No person accused of any offence shall be compelled to be a witness against himself" and enshrines in our Constitution the doctrine against self-incrimination. The doctrine is well established in countries which have based their criminal law on principles of English jurisprudence. It is designed to protect the accused from being compelled by hope or fear to admit facts or deny them. No compulsion, physical or moral could be used to extort a communication from an accused. The doctrine had its origin in 16th century England in protest against the inquisitional methods of the Ecclesiastical Courts. The principle of immunity from self-incriminating evidence is based on the "presumption of innocence" and so long as the presumption remains as one of the fundamental cannons of criminal jurisprudence, evidence against the accused should come from sources other than the accused. In England the principle has been incorporated in the Criminal Evidence Act, 1898, which provides that though the accused is a competent witness on his own behalf, he cannot be compelled to give evidence against himself and his failure to give evidence in defence cannot be commented upon. The protection is extended to a witness other than the accused.

3. The principle of protection against compulsion of self-incrimination was adopted in the Fifth Amendment to the Constitution of the U.S.A. of which the relevant part is :

"No person...... shall be compelled in any criminal case to be a witness against himself,..................." The protection is provided not only to an accused on trial but to all persons giving testimony. The privilege against self-incrimination has been judicially enlarged to include oral as well as documentary evidence in criminal as well as civil proceedings and is not confined to evidence in Court but extends to evidence even before legislative committees and other tribunals. The Fifth Amendment guarantees freedom only from compulsion. As accused may voluntarily elect to give evidence but if he elects not to give evidence in defence this fact cannot be considered to his prejudice.

4. This protection against self-incrimination is clubbed with the guarantees in the Fourth Amendment which provides :-

"The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated; and no warrants shall issue, but upon probable cause, supported by oath or affirmations and particularly describing the place to be searched, and the persons or things to be seized."

5. The law of crime in India, based on English jurisprudence, has adopted the principle of "presumption of innocence of the accused" as one of its cardinal principles. The burden is on the prosecution to prove a person guilty of the offence with which