Summary: The police are legally obligated to conduct investigations and gather evidence through lawful means. Under Article 20(3) of the Constitution, an accused person cannot be compelled to confess, as the right against self-incrimination is a protected fundamental right. Therefore, choosing not to make self-incriminating statements or confessions cannot be construed as “non-cooperation” during a police investigation. Such refusal, being constitutionally valid, cannot be used by the police as grounds to oppose bail or anticipatory bail applications.
Introduction
Petitions seeking regular bail/ anticipatory bail are routinely opposed by the State on various grounds. These include, the gravity of offence, antecedents of the accused, there being a flight risk, etc.
Another rather nebulous ground, which we consider in this article, is “non-cooperation” by the accused during the investigation. In most cases, this ‘non-cooperation’ refers to the accused either not confessing his guilt or making statements that would otherwise prove the case against them. The State/ Police then oppose the grant of bail/ anticipatory bail to the accused on the ground of alleged ‘non-cooperation’.
This article explains the concept of “non-cooperation”, clarifies that refusing to confess or reveal incriminating evidence does not constitute “non-cooperation”, and that such actions cannot be used as grounds to oppose a bail application.
Right Against Self Incrimination
The constitutional protection against self-incrimination is provided under Article 20(3) of the Constitution of India, which reads as under:
“(3) No person accused of any offence shall be compelled to be a witness against himself.”
This protection operates in a broad space and is available to every person in India and is not confined to ‘citizens’ alone.
To appreciate the scope and ambit of the operation of Article 20(3), it would be pertinent to refer to a constitution bench judgement by 11 judges of the Hon’ble Supreme Court in The State of Bombay v Kathi Kalu Oghad[1], wherein the Court clarified that:
“It is well established that clause (3) of Article 20 is directed against self-incrimination by an accused person. Self-incrimination must mean conveying information based upon the personal knowledge of the person giving the information.
The Apex Court further noted that “In order to bring the evidence within the inhibitions of clause (3) of Article 20, it must be shown not only that the person making the statement was an accused at the time he made it and that it had a material bearing on the criminality of the maker of the statement, but also that he was compelled to make that statement. “Compulsion” in the context, must mean what in law is called “duress””.
Thus, self-incrimination, as protected under Article 20(3), is to be understood as being compelled to make a statement, which could prove the case against the accused, or even make proving it more probable.
In addition to this constitutional safeguard, Section 26 of the Indian Evidence Act, 1872 (now Section 23, BSA 2023), further reinforces the protection against self-incrimination, by making any confession before a police officer inadmissible as evidence.
Non-Cooperation and Self Incrimination: Interpretation by Courts in India
In Hemant Kumar v State of Haryana [2], the Hon’ble Supreme Court granted anticipatory bail and rejected the contention of “non- cooperation”, by holding that “On behalf of the State, it was sought to be argued that the appellant was not cooperating with the investigation. But in response to our query about the nature of such non-cooperation, it was submitted on behalf of the State that the appellant as an accused was not helping out for recovery of the sum allegedly paid to him as a bribe. In our opinion, however, participation in the investigation does not entail making self incriminating statements, which seems to be the reason for which the State wants him in custody.
In Bijender v State of Haryana [3], the Hon’ble Supreme Court was considering a petition against the rejection of anticipatory bail, wherein the petitioner was accused of taking a bribe. The State/ Police authorities sought arrest of the petitioner/ accused, on the ground that he had not helped recover the bribe amount nor provided any other relevant facts. The Hon’ble Supreme Court rejected this ground for opposing the bail plea, holding that “We cannot treat the behaviour attributed to the appellant to be instances of non-cooperation, justifying dismissal of his appeal for pre-arrest bail. An accused, while joining investigation as a condition for remaining enlarged on bail, is not expected to make self-incriminating statements under the threat that the State shall seek withdrawal of such interim protection.
A judgement dated December 17, 2024, by the Hon’ble Punjab and Haryana High Court in Jatinder Kumar Bablu v State of Punjab, specifically considered what amounts to ‘non-cooperation’ by an accused and held:
“7. The term ‘non-cooperation in investigation’ must be interpreted with precision and care. Cooperation with the investigating agency involves: (i) accused attending and participating in the investigation as directed; (ii) providing truthful and relevant information; and (iii) assisting in uncovering facts or evidence within their personal knowledge or possession.
8. However, this obligation does not extend to: (a) compelling the accused to admit to the commission of an offence; (b) extracting self-incriminatory information; or (c) using coercion to secure statements or confessions.
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11. Insistence by the State on custodial interrogation solely to compel the petitioner to incriminate himself runs afoul of constitutional safeguards. Such an approach would not only violate Article 20(3) of the Constitution of India, but also set a dangerous precedent, undermining the balance between investigative needs and individual rights.”
The Hon’ble High Court granted anticipatory bail in the matter of Jatinder Kumar Bablu, noting that refusal to confess his guilt cannot be construed as ‘non-cooperation’ and is no ground to deny bail.
The Hon’ble Punjab & Haryana High Court further shed light on this issue through a judgement dated May 8, 2025, in Jatinder Sharma v State of Haryana[4], wherein it noted that “This Court has observed a curious trend, where the jurisdictional police authorities deem the bail applicant to be uncooperative merely because he would not confess to his guilt.”
While dealing with this issue, the Hon’ble High Court referred to Article 20(3) of the Constitution, and also, the Constitution Bench judgement of the Supreme Court in Selvi Vs. State of Karnataka[5], to reiterate the settled position that an accused can be made to give physical evidence such as blood and fingerprints, as this is not an overt statement against himself or a disclosure made under compulsion. However, the High Court further clarified that an accused “cannot be expected to make self-inculpatory statements as that would amount to testimonial compulsion.”
Accordingly, the Hon’ble High Court proceeded to allow the grant of anticipatory bail and rejected the contention of “non-cooperation” by the State/ Police, reasoning:
“It appears that under the garb of non-cooperation during investigation, the investigating agency is compelling the petitioner to make self-incriminating statements. It is the duty of the Investigating Officer to conduct a fair, impartial, and thorough investigation by gathering all relevant evidence, both oral and documentary, to establish the truth of the matter. Relying solely on self-incriminating statements made by the accused is not only legally unsound, but also contrary to the principles of natural justice and fair trial. It is the responsibility of the investigating officer to actively seek out such corroborative material and build a case based on objective findings rather than mere admissions, which may be influenced by coercion, fear, or misunderstanding. Opposing the release of an accused on bail solely because he refuses to testify against himself is a draconian practice that, in good conscience, cannot be allowed to continue unchecked by this Court.”
OUR VIEW
Judicial pronouncements reinforcing the right against self-incrimination are crucial to protecting personal liberty. Further, they lend clarity and remove uncertainty around what can be considered as “non-cooperation”. This clarity, in turns, strengthens the protection accorded to personal liberty, guaranteed by the right to life under Article 21.
The courts have clarified that investigative authorities are duty bound to conduct a fair investigation and build a case against the accused by lawful means. They cannot fail in this obligation and resort to compelling confessions. The courts have reaffirmed the principle that an accused cannot be denied bail merely because he refuses to confess. This cannot be termed as “non-cooperation” and is no basis for opposing the grant of bail to an accused. The silence is lawful. The assertion of ‘non-cooperation’, to oppose liberty of the accused, is not.
[1] AIR 1961 SC 1808
[2] Special Leave Petition (Crl.) No. 232 of 2024
[3] Special Leave Petition (Crl.) No. 1079 of 2024
[4] CRM M 19150 of 2025
[5] (2010) 7 SCC 263