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TMI Blog1961 (8) TMI 34X X X X Extracts X X X X X X X X Extracts X X X X ..... though search warrants, does not amount to compulsion within the meaning of Art. 20 (3). Section 73, Evidence Act also contemplates the obtaining of specimen handwriting. If a person gives the specimen handwriting voluntarily ,it cannot be said that he was compelled to give it. If the police merely requests the accused, then it does not amount to compulsion, but if it directs the accused to write and if physical force is used or if there is any show of force or threat, then alone would it be compulsion. Inducement is not compulsion. I.L.R. 1957 Mad. 66, (1960) 3 S.C.R. 116, A.I.R. 1961 S.C. 29, A.I.R. 1959 Bom. 865, I.L.R. (1952) 2 Cal. 106, A.I.R. 1955 Cal. 247, I.L.R. 1952 Tr. Co. 447, A.I.R. 1958 All. 119. Refers to Willis on Constitutional Law dealing with self-incrimination. In A.I. R. 1960 S. C. 1125 s. 27 of the Evidence Act has been held to be constitutional. M.C. Setalvad, Attorney General of India, B. Sen and T. M. Sen, for Intervener No. 1. There are four elements in Art. 20(3) which must be satisfied before a person can claim the protection of Art. 20(3), namely (i) he must be accused, (ii) he must have been compelled, (iii) he Must have been compelled to be a witne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .Ed. 1021 and 1030. The word "'witnesses" should be given its natural interpretation. The original rule in England was that you will not be put in court and compelled to give evidence against yourself and referred only to testimony given in court. Article 20 (3) gives the same guarantee. Wigmore vol. 8, p. 623, Phipson on Evidence, 9th Edition, p.214. It protects extraction of incriminatory statements or communi- cations, but not the exhibition of body or any part of it for examination. Merely handing over of a document is not covered by the guarantee as it does not amount to communication. 29 L.Ed. 746. There is no compulsion if the witness or accused does not object. 87 L.Ed. 376, 76 L.Ed.211, 71 L.Ed. 560, Wigmore vol. 8, p. 399. S. M. Bose Advorate-General for the State of West Bengal, B. Sen, and P. K. Bose, for appellant in Cr. A.No. 174 of 1959. The question concerned in Cr. A. No. 174 of 1959 is whether the obtaining of specimen handwriting under s.73 of the Evidence Act amounts to testimonial compulsion. Decision,-, which hold that it is so are : A. 1. R. 1957 M. P.73, A. I. R. 1959 M. P. 411; A. I. R. 1960 Ker.392; A. I. R. 1959 Mad. 396. Willoughby vol. 2, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tta, for Intervener No. 3. P. S. Safeer and R. S. Gheba, for appellant in Cr. As. Nos. 110 and 111 of 1958. The words used in Art. 20(3) are not "appear as a witness against himself." It covers the stage of investigation also and protects all action of an accused person that may be used against him at the trial. Section 6 of the Prisoners Identification Act makes a person who refused to give his photograph or measurement, guilty of an offence. No person can waive the fundamental right guaranteed under Art. 20(3). A.I.R. 1959 S. C. 149. Any part of the evidence contributed to by the accused under compulsion is hit by the guarantee. H. R. Khanna in reply. Sections 1, 118,132 and 139 of the Evidence Act show that the words "to be a witness" means giving evidence in court and must he restricted to judicial proceedings. The mere fact that an accused person 'is in police custody does not raise any presumption. that compulsion has been used. 1961. August 4. The Judgment of Sinha C. J., Imam, Gajendragadkar, Subba Rao, Wanchoo, Raghubar Dayal, Rajagopala Ayyangar and Mudholkar JJ., was delivered by SINHA C. J.-These appeals have been beard together only insofar a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and 29, in view of the provisions of Art. 20(3) of the Constitution. It is an admitted fact that those specimen writings of the accused had been taken by the police while he was in police custody, but it was disputed whether the accused had been compelled to give those writings within. the meaning of cl. (3) of Art. 20. The plea of the accused that he was forced by the Deputy Superintendent of Police to give those writings has not been accepted by the learned Trial Judge. But those documents have been excluded from consideration, as inadmissible evidence, on the ground 'that though there was no threat or force used by the police in obtaining those writings farm the accused person, yet in the view of the Court ""the element of compulsion was implicit in his being at that time in police custody." In this conclusion both the Trial Judge and the High Court have agreed. The identification of the accused person was also sought to be proved by the evidence of witnesses, who identified him at an identification parade. But the holding of the identification parade has not been sought to be brought within the prohibition of cl. (3) of Art. 20. After eliminating the Exs. 27, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order to compare the impressions on those glass panes and phials with those of the accused the investigation police officer got the impressions of the palms and fingers of the accused taken in the presence of a Magistrate.On the evidence adduced by the prosecution,including the fact of the recovery of the firearms and the evidence of the identity of the impressions of the accused taken as aforesaid, he was convicted and sentenced by the Courts below to certain terms of imprisonment and was also ordered to pay a fine of one thousand rupees. On appeal, the sentence of fine and imprisonment was modified by the Court of Appeal. In revision in the High Court, both the revisional applications were dismissed. The convicted person prayed for and obtained the necessary certificate of fitness under Art. 134(1) (e) of the Constitution from the High Court of Punjab. The points raised in this Court were; (1) that s. 27 of the Indian Evidence Act is violative of Art. 14 of the Constitution; and (2) the impressions of the appellant's palms and fingers taken from him after his arrest, which were compared with the impressions on the glass panes and phials, were not admissible evidence in view o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting and signature, contending that Art. 20 (3) of the Constitution prohibited any such specimens being taken against the will of the accused. After bearing the parties, the learned Magistrate overruled the objection on behalf of the accused and allowed the prayer by the prosecution for taking the specimen writing and signature of the respondent. The respondent moved the High Court at Calcutta under s. 439 of the Cr. P.C. and Art. 227 of the Constitution. The case was heard by a Division Bench consisting of J.P. Mitter and Bhattacharyya, JJ, on July 2 and 3, 1958, but the judgment was not delivered until the 4th of June, 1959. The Court held that the prohibition contained in Art. 20 (3 of the Constitution applied: to the case of writing and signature to be taken, as directed by the learned Magistrate. The Court. relied upon the decision of this Court in: M.P. Sharma's case.(1) In coming to this conclusion, the Division Bench disagreed with the previous decision of another Division Bench of that, Court in the case of Sailendra Nath Sinha v. The State ([1955] A. 1. R. Cal. 247.), which had laid down that a mere direction under s.73 of the Evidence Act to a person accused of an of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resaid of the Constitution gives complete protection of the widest amplitude to an accused person, irrespective of the time and place and of the nature of the evidence, whether it is oral or documentary or material. The extreme form, which his argument took can best be stated in his own words as follows : ""Anything caused, by any kind of threat or inducement, to be said or done, by a person, accused or likely to be accused of any. offence, by non-voluntary positive act or speech, of that person which furthers he cause of any prosecution against him or which results or is likely to result in the incrimination of hat person qua any offence, is violative of the, fundamental right guaranteed under el. of Art. 20 of the Constitution of India According to his argument, if an accused person makes any statement or any discovery, there is not only a rebuttable presumption that he had been compelled to do so, but that it should be taken as a conclusive proof of that inferential fact. Any kind of inducement, according to him, is also included in the expression 'compulsion' by the police or elsewhere. The test, according to him, is not the volition of the accused but the inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Procedure came within the ambit of the prohibition of cl. (3) of Art. 20 of the Constitution, this Court covered a much wider field, Besides laying down that the search and seizure complained of in that case were not within the prohibition, this Court examined the origin and scope of the doctrine of protection against self-incrimination with reference to English Law and the Constitution of the United States of America, with particular reference to the Fourth and 'Fifth Amendments. On an examination of the case law in England and America and the standard text books on Evidence, like Phipson and Wigmore, and other authorities, this Court observed as follows :- "Broadly stated the guarantee in Art.20(3) is against "testimonial compulsion". It is suggested that this is confined to the oral evidence of a person standing his trial for an offence when called to the witness-stand, We can see no reason to confine the content of the constitutional guarantee to this barely literal import. So to limit it would be to rob the guarantee of its substantial purpose and to miss the substance for the sound as stated in certain American decisions. The phrase used in article 20(3) i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the views thus expressed by this Court after full deliberation, we do not find any good reasons for departing from those views. But the Court went on to observe that "'to be a witness" means "to furnish evidence" and includes not only oral testimony or statements in writing of the accused but also production of a thing or of evidence by other modes. It may be that this Court did not intend to lay down-certainly it was not under discussion of the Court as a point directly arising for decision -that calling upon a person accused of an offence to give his thumb impression, his impression of palm or fingers or of sample handwriting or signature comes within the ambit of ",to be a witness" which has been equated to "to furnish evidence". Whether or not this Court intended to lay down the rule of law in those wide terms has been the subject matter of decisions, in the different High Courts in this country. Those decisions are, by no means, uniform ; and conflicting views have been expressed even in the same High Court on different occasions. It will serve no useful purpose to examine those decisions in detail. It is enough to point out that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts or photographs, it has been declared lawful by s. 6 to use all necessary means to secure the taking of the required measurements or photographs. Similarly, s.73 of the Evidence Act authorises the Court to permit the taking of finger impression or a specimen handwriting or signature of a person present in Court, if necessary for the purpose of comparison. The matter maybe looked at from another point of view. The giving of finger impression or of specimen signature or of handwriting, strictly speaking, is not ",to be a witness". "To be a witness" means imparting knowledge in respect of relevant fact, by means of oral statements or statements in writing, by a person who has personal knowledge of the facts to be communicated to a court or to a person holding an enquiry or investigation. A person is said to be a witness, to a certain state of facts which has to be determined by a court or authority authorised to come to a decision, by testifying to what he has seen, or something he has heard which is capable of being beard and is not hit by the rule excluding hearsay or giving his opinion, as an expert, in respect of matters in controversy. Evidence has been cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed person is called upon by the Court or any other authority holding an investigation to give his finger impression or signature or a specimen of his handwriting, he is not giving any testimony of the nature of a 'personal testimony'. The giving of a "personal testimony' must depend upon his volition. He can make any kind of statement or may refuse to make any statement. But his finger impressions or his handwriting, in spite of efforts at concealing the true nature of it by dissimulation cannot, change their intrinsic character. Thus, the giving of finger impressions or of specimen writing or of signatures by an accused person, though it may amount to furnishing evidence in the larger sense, is not included within the expression to be a witness'. In order that a testimony by an accused person may be said to have been self-incriminatory, the compulsion of which comes within the prohibition, of the constitutional provision, it must be of such a' character,that byitselfit- should have the tendency of incriminating the accused, if riot also of actually doing so. In other words,it should be a statement which makes the case against the accused person atleast p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed person to,, a police. officer leading to the discovery of a fact which may or may not prove incriminatory has been made admissible in evidence by that Section. If it is not incriminatory of the person giving the information, the question does not arise. It can arise only when it is of an incriminatory character so far as the giver of the information is concerned. If the self- incriminatory information has been given by an accused person without any threat, that will be admissible in evidence and that will not be hit by the provisions of el. (3) of Art. 20 of the Constitution for the reason that there has been no compulsion. It must, therefore, be held that the provisions of s. 27 of the Evidence Act are not within the prohibition aforesaid, unless compulsion has been used in obtaining the information. In this connection the question was raised before us that in order to bring the case within the prohibition of cl. (3) of Art. 20, it is not necessary that the statement should have been made by the accused person at a time when he fulfilled that character ; it is enough that he should have been an accused person at the time when the statement was sought to be proved in Court, ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld not, by itself, be the foundation for an inference of law that the accused was compelled to make the statement. Of course, it is open to an accused person to show that while he was in police custody at the relevant time, he was subjected to treatment which, in the circumstances of the case, would lend itself to the inference that corapulsion was, in fact, exercised. In other words, it will be a question of fact in each case to '-- determined by the Court on weighing the facts and circumstances disclosed in the evidence before it'. In view of these considerations, we have come to the following conclusions :- (1) An accused person cannot be said to have been compelled to be a witness against himself simply because he made a statement while in police custody, without anything more.' In other words, the mere fact of being in police custody at the time when the statement in question was 'made would not., by itself, as a proposition of law, lend itself to the inference that the accused was compelled to make the statement, though that fact, in conjunction with other circumstances disclosed in evidence in a particular case, would be a relevant consideration in an enqu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Lord the Chief Justice. We agree with these answers; but as we have reached the same conclusion, by a somewhat different approach, and for different reasons, these have to be briefly indicated. The question as regards the meaning to be attached to the words "to be a witness" as used in Art.20(3) of the Constitution' came up for consideration in M.P. Sharma's Case ([1954] S.C.R. 1077.). It was heard by all the eight Judges who constituted the Court at the time, and they came to a unanimous decision. The Court in that case had to decide whether search and seizure of documents under ss.94 and 96 of the Code of Criminal Procedure is a compelled production of the same so as to infringe the provisions of Art.20(3) of the Constitution. After pointing out that the guarantee in Art.20(3) was against, "testimonial compulsion", Jagannadhadas J. speaking for the Court said "The phrase used in Art.20(3) is "to be a witness". A person can "be a witness" not merely by giving oral evidence but also by producing documents or making intelligible gestures as in the case of a dumb witness (see section 119 of the Evidence Act) or the like. "To ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... witness" is to "furnish evidence". Rival interpretations were suggested before us which it was claimed on behalf of the protagonists will solve the problem once for all. One of the propositions put forward was that "to be a witness" as used in Art. 20(3) cannot refer to anything said or done at the stage of investigation of an offence. We agree with our learned brethren that this is an unduly narrow construction. As was pointed out in Sharma's Case([1954] S.C.R. 1077.) the phrase used in Art. 20(3) is "to be a witness" and not "to appear as a witness". That by itself justifies the conclusion "that the protection afforded to an accused in so far as it is related to the phrase "to be a witness" is not merely in respect of testimonial compulsion in the court room but may well extend to compelled testimony previously obtained from him". If the protection was intended to be confined to being a witness in Court then really it would have been an idle protection. It would be completely defeated by compelling a person to give all the evidence outside court and then, having what he was so compelled to do, proved in court t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n for committing theft. By producing this plan is he not giving evidence against himself ? To a person not overburdened with technical learning, the giving of evidence, would appear to be the real function of a witness. Indeed English literature is replete with instances of the use of the word "witness" as meaning "'evidence." To give one example ; Shakespeare's Horatio speaking to Hamlet says:- "Season your admiration for a while with an attent ear, till I may deliver, Upon the witness of these gentlemen, This marvel to you" (Hamlet, Act I, Scene, III) There can be no doubt that to the ordinary user of English words, the word ,,witness" is always associated with evidence, so that to say that to be a witness is to furnish evidence is really to keep to the natural meaning of the words. But, what is the purpose of evidence ? Section 3 of the Indian Evidence Act defines evidence thus "Evidence means and includes (1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence; (2) all documents produced for the inspection of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m an accused person. It has been felt that the existence of such an easy way would tend to dissuade persons in charge of investigation or prosecution from conducting diligent search for reliable independent evidence and from sifting of available materials with the care necessary ascertainment of truth. If it is permissible in law to obtain evidence from the accused person by compulsion, why tread the bard path of laborious investigation and prolonged examination of other men, materials and documents? It has been well said that an abolition of this privilege would be an incentive for those in charge of enforcement of law "to sit comfortably in the shade rubbing red pepper into a poor devil's eyes rather than to go about in the sun hunt' up evidence". (Stephen., History of Criminal Law, p. 442)., No less serious is the danger that some accused persons at least, may be induced to furnish evidence against themselves which is totally false out of sheer despair and an anxiety to avoid an unpleasant present. Of all these dangers the Constitution-makers were clearly well aware and it was to avoid them that Art. 20 (3) was put in the Constitution, It is obvious however tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se. In either of these two latter cases, the evidence given tends by. itself to incriminate the accused person. But the evidence of specimen handwriting or the impressions of the accused person's fingers, palm or foot, will incriminate him, only if on comparison of these with certain other handwritings or certain other impressions., identity between the two sets is established. By themselves, these impressions or the handwritings do not incriminate the accused person., or even tend to do so. That is why it must be held that by giving these impressions or specimen handwriting, the accused person does not furnish evidence against himself, So when an accused person is compelled to give a specimen handwriting or impressions of his finger,pahm or foot, it may be said that he has been compelled to be a witness ; it cannot however be said that he has been compelled to be a witness against himself. This view, it may be pointed out, does not in any way militate against the policy underlying the rule against "testimonial compulsion" we have already discussed above. There is little risk, if at all, in the investigator or the prosecutor being induced to lethargy or inaction beca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ill be other cases where the accused gives the information without any compulsion. Where the accused is compelled to give information it will be an infringement of Art. 20(3); but there is no such infringement where he gives the information without any compulsion. Therefore, compulsion not being inherent or implicit in the fact of the information having been received from a person in custody, the contention that s. 27 necessarily infringes Art.20(3) cannot be accepted. A question was raised in the course of the discussion as to when a person can be said to have been "'compelled" within the meaning of Art.20(3). One view is that there must be an element of constraint or coercion in the physical sense before it can be said that an accused person has been "compelled". The other view is that in addition to cases where there has been such constraint or coercion an- accused should be said to have been ",compelled" to be a witness whenever there has been inducement or promise which persuaded the accused to be a witness, even though there has been no such coercion or constraints In Criminal Appeals Nos. 110 and 111 the information proved under s.27 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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