The Accused as a Competent Witness: Section 21

Section 21 permits an accused person to give evidence on oath in his own defence, in disproof of the charges made against him or against any person charged together with him at the same trial. It contains two safeguards. He may not be called as a witness except on his own request. And his failure to give evidence is not to be made the subject of any comment by the prosecution, nor may any presumption be drawn against him or against a co-accused from it. The provision therefore creates an option and protects the accused who declines to exercise it.

1. The Provision

1. Competence. An accused person is a competent witness for the defence and may give evidence on oath in disproof of the charges made against him or against any person charged together with him at the same trial.
2. Only on his own request. He shall not be called as a witness except on his own request, so neither the prosecution nor the court may compel him into the witness box.
3. No adverse comment. His failure to give evidence shall not be made the subject of any comment by the prosecution or give rise to any presumption against himself or any person charged together with him at the same trial.

The provision corresponds to the general rule in the criminal procedure statute permitting an accused to offer himself as a witness for the defence, and it is reproduced in the Act because the Act contains its own procedural code for trials before a special judge.

2. Why It Matters in a Corruption Trial

• Section 20 places a burden on the accused. Once acceptance of an undue advantage is proved, the presumption operates and the accused must rebut it. He may do so from the prosecution's own material, but where his explanation depends on facts within his knowledge, giving evidence on oath is the most direct way of putting them before the court.
• Section 13(1)(b) requires an account. The disproportionate assets offence turns on the public servant satisfactorily accounting for his resources, and the account is frequently given through documents and witnesses rather than by the accused himself, but the option exists.
• The cost of testifying. An accused who enters the witness box may be cross-examined on the whole case, and a poor performance under cross-examination can convert a defensible position into a hopeless one. That is why the option is exercised sparingly in practice.
• The examination under the criminal procedure statute is different. The questioning of the accused to enable him to explain the circumstances appearing against him is not evidence on oath and he is not liable to cross-examination on it; his answers may be taken into consideration but cannot by themselves found a conviction.

3. Article 20(3) and the Right against Self-Incrimination

Article 20(3) provides that no person accused of any offence shall be compelled to be a witness against himself. Section 21 is consistent with it: the accused testifies only on his own request, and his silence attracts no comment or presumption. The constitutional right nevertheless has a wider operation, and its limits should be stated accurately.

1. It protects against compulsion, not against evidence. Material obtained without compelling a testimonial act is outside it.
2. It extends beyond the trial. The protection is available to a person formally accused and to one against whom an accusation exists at the stage of investigation, which was settled in Nandini Satpathy v. P.L. Dani, (1978) 2 SCC 424.
3. Physical evidence is not testimony. Specimen handwriting, fingerprints, and samples taken for comparison are not testimonial compulsion, the rule stated in State of Bombay v. Kathi Kalu Oghad and applied in this field to the taking of voice samples, which the Supreme Court held permissible on a magistrate's order in Ritesh Sinha v. State of Uttar Pradesh, (2019) 8 SCC 1.
4. Involuntary techniques are outside it. In Selvi v. State of Karnataka, (2010) 7 SCC 263 the Court held that narcoanalysis, polygraph examination and brain electrical activation profiling conducted without the consent of the subject violate Article 20(3) and the personal liberty guaranteed by Article 21.
5. A statutory presumption does not offend it. Section 20 operates on facts proved by the prosecution and casts a burden of explanation; it does not compel the accused to testify, and he may rebut it without entering the witness box.

4. Related Topics and Provisions