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PETITIONER: THE STATE OF BOMBAY

       Vs.

RESPONDENT: KATHI KALU OGHAD AND OTHERS

DATE OF JUDGMENT: 04/08/1961

BENCH: SINHA, BHUVNESHWAR P.(CJ) BENCH: SINHA, BHUVNESHWAR P.(CJ) IMAM, SYED JAFFER DAS, S.K. GAJENDRAGADKAR, P.B. SARKAR, A.K. SUBBARAO, K. WANCHOO, K.N. GUPTA, K.C. DAS DAYAL, RAGHUBAR AYYANGAR, N. RAJAGOPALA MUDHOLKAR, J.R.

CITATION:  1961 AIR 1808            1962 SCR  (3)  10  CITATOR INFO :  R          1962 SC1821  (290)  R          1965 SC1251  (4,19,25,ETC.)  E          1970 SC 940  (11,13,14)  F          1973 SC1196  (23)  R          1978 SC1025  (34,44,48,62)  R          1978 SC1770  (41)  RF         1979 SC  14  (7,15)  RF         1980 SC 185  (6,8,9)  D          1980 SC 791  (7)  RF         1981 SC 379  (68)

ACT: Testimonial Compulsion Obtaining specimen writing and thumb impression  from  accused- Statement of  accused  in  Police custody   used  in  evidence-If  contravene   constitutional guarantee Constitution of India, Art. 20(3).

HEADNOTE: Section 73 of the Indian Evidence Act empowers the court to, obtain specimen writing or signature and finger  impressions of an accused person for purposes of Comparison. 11 Sections  5  and 6 of the Identification  of  Prisoners  Act empower   a   Magistrate  to  obtain   the   photograph   or measurements of an accused person.  Section 27 of the Indian Evidence Act permits the reception in evidence of statements made by an accused person in police custody which lead to  a discovery. It was contended by the accused persons that  the obtaining  of  evidence  in any of these  ways  amounted  to compelling the person accused of an offence "to be a witness against  himself"  in  contravention of Art.  20(3)  of  the Constitution.   It  was  further  contended  that  it   ’was implicitly  the fact that the accused was in police  custody

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when’ the specimen signatures or thumb impressions etc. were obtained that compulsion was used. Held,  that there was no infringement of Art. 20(3)  of  the Constitution  in  compelling an accused person to  give  his specimen  handwriting  or signature, or impressions  of  his thumb, fingers, palm or foot to the investigating officer or under orders of a court for the purposes of comparison. Held,  further, that the provisions of s. 27 of  the  Indian Evidence Act did not offend Art. 20(3) unless compulsion was used  in  obtaining  the information.   Compulsion  was  not inherent  in  the  receipt of information  from  an  accused person  in  the  custody of a lice officer;  it  will  be  a question of fact in each case to be determined by the  court on  the evidence before it whether compulsion had been  used in obtaining the information. M.P.   Sharma  v.  Satish  Chandra,  (1954)   S.C.R.   1077, reconsidered. Per  Sinha, C.J., Imam, Gajendragadkar, Subba Rao,  Wanchoo, Raghubar Dayal, Rajagopala Ayyangar and Mudholkar, jj.   The correct  position with respect to the guarantee  under  Art. 20(3) is that-               (i)   the  guarantee  includes not  only  oral               testimony  given in court or out of court  but               also  statements in writing which  incriminate               the maker when figuring as an accused person;               (ii)  the  words "to be a witness"  in   Art..               20(3)  do  not  include the  giving  of  thumb               impression  or  impression of  palm,  foot  or               fingers or specimen writing or exposing a part               of   the  body  by  an  accused   person   for               identification;               (iii) "self-incrimination"   means   conveying               information based upon the personal  knowledge               of  the  given and does not include  the  mere               mechanical process of               12               producing  documents  in court  which  do  not               contain’ any statement of the accused based on               his personal knowledge;               (iv)  in order to come within the  prohibition               of Art. 20(3) the testimony must be of such  a               character  that by itself it should have  the,               tendency to incriminate               the accused; and               (V)   to avail of the protection of Art. 20(3)               the person must have stood in the character of               an  accused  person at the time  he  made  the               statement.               Per S. K. Das, Sarkar and Das Gupta, JJ.-               (i)   The protection afforded by Art. 20(3) is               not   merely   in   respect   of   testimonial               compulsion in the court room but extends  also               to  compelled  testimony  previously  obtained               from the accused.               (ii)  The  words  "to be a  witness"  in  Art.               20(3)  mean,, to furnish evidence" and  cannot               be  confined to imparting personal  knowledge;               such evidence can be furnished through lips or               by  production of a thing or of a document  or               in other modes.               (iii) An  accused  person  furnishes  evidence               when  he  gives his  specimen  handwriting  or               impressions of his fingers or palm or foot.               (iv)  But  in  doing so the accused  does  not               furnish   evidence  against  himself   as   by

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             themselves  these specimens or impressions  do               not  incriminate or even tend  to  incriminate               the  accused  and  he cannot  be  said  to  be               compelled  "to be a witness against himself  "               when  he is compelled to give the specimen  or               impression.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: criminal Appeal No. 146  of 1958. Appeal  by special leave from the judgment and  order  dated April  14,  1957,  of the Bombay High  Court  at  Rajkot  in Criminal (jail) Appeal No. 73 of 1956.                             AND Criminal Appeal No. 174 of 1959. Appeal  by special leave from the judgment and  order  dated June  4,  1956,  of  the Calcutta  High  Court  in  Criminal Revision No. 623 of 1958. 13 H.   R.  Khanna and T. M. Sen, for the appellant in Cr.   A. No.  146 of 1958.  Specimen handwritings of the accused  had been  taken  during investigation while the accused  was  in police custody.  These have been excluded from consideration by  the  Courts below on the ground that obtaining  of  such signatures offended Art. 20 (3)11 the courts holding that an element  of compulsion was implicit in the accused being  in police custody at the time the handwritings were taken.  The mere fact that the accused was in police custody does not by itself  imply  that compulsion was used  for  obtaining  the specimen handwritings.  Even if there is compulsion, it does not  amount to testimonial compulsion.  Action  taken  under ss.  94 and 96 Criminal Procedure Code to secure  production of  documents  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. 1.  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 14 been compelled to be a witness and (iv) his witnessing  must be against himself.  There must be an element of compulsion, a  voluntary act is not compulsion.  Coercion is an  element of compulsion.  In inducement or moral compulsion, the  mind is not free.  There was nothing in England which prevented a voluntary statement. (1954) S.C.R. 1077 and (1960) 3  S.C.R. 116, 125.  The fact whether a person has been compelled does not rest solely on the effect which the presence of a police officer might have on the mind of the person.  I.L.R. (1952)

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2  Cal.  106, Willis p. 524, A.I.R. 1955 Cal. 247.   Even  a direction  under  s. 73, Evidence Act would  not  amount  to compulsion.   A.I.R. 1958 All. 119, 160 U.S. 355:  40  L.Ed, 454.   Merely because a person who makes a statement  is  in police  custody  it cannot be inferred that  compulsion  has been  used.  Willis p. 521.  Observations in  Sharma’s  case with  regard to the words "to be a witness"  are  excessive. It  would  be  useful  to see what  is  the  American  fifth amendment.  To be a witness means that a person either  says something  or  writes  something which he  knows.   He  must depose  or write as to something of which he has  knowledge. In  giving a thumb impression or specimen writing  a  person does not say or write anything against himself. S.   M. Sikri Advocate-General, Punjab, N. S. Bindra and  D. Gupta,  for respondent in Cr.  As.  Nos. 110 and 111 of  58. Section  5  of the Identification of  Prisoners  Act,  1920, permits the obtaining of finger prints of an accused  person by  order of a Magistrate.  This is not hit by Art. 20  (3). Article 20 (3) does not apply to the stage of investigation. It only prohibits the compulsory examination or famishing of incriminatory  statements or communication by  the  accused. It does not include the compulsory production of  documents. Even  if Art. 20 (3) prohibits the compulsory production  of documents, it does not prohibit the compulsory 15 examination  of the body of the accused or any part  of  it. In order to test whether there has been compulsion or not it is  the nature of the action of the authority or court  that determines  the  question and not the state of mind  of  the accused.   The privilege granted to an accused person  under Art, 20 (3) is by its nature capable of waiver and if  there is  no  protest,  it is deemed to  have  been  waived.   The Article deals with the stage of conviction.  Wigmore vol. 8, p.276, 304, 317 and 319. 53 L.Ed. 97,109, 54 L.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, para 720,  29  L.Ed. 746.   Testimonial compulsion means that you cannot  make  a witness say what he does not want to say in court.   Section 118,  Evidence  Act indicates that "testify" means  to  make statements in Court and not statements outside court. 16 I.L. R. 1 Rang. 759.  Article 20(3) applies only to    oral statements made before the court. S. P.  Verma, for respondent in Cr.  A.        No. 146/1958. Sharma’s  case  puts the right construction on  Art.  20(3). The  question  of  inconvenience should not  be  taken  into

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consideration.  350 U.S. 422: 100 L.Ed. 511.  Article  20(3) could  be split up into 6 components, i. e. (i)  No  person, (ii)  accused of an offence, (iii) shall be compelled,  (iv) to be, (v) to be a witness, and (vi) to be a witness against himself.  In the present case it is not necessary to discuss (i). (ii) indicates a time whenever incrimination is eminent and the guarantee comes into play.  "’Accused of an offence" is  merely descriptive of the person.  Whenever a person  is accused, nothing obtained from him by compulsion can be used against  him. 340 U.S.’ 332; 95 L.Ed. 306; 266 U.S.  34;  69 L.Ed. 158.  "Accused of an offence" does not mean accused at the time when a person is compelled to provide evidence.  A. I. R. 1960 S.C. 1125. (iii) In case of police custody  there is  irrefutable  presumption of compulsion.  A. I.  R.  1960 Cal.  318.   In  other cases it may be a  question  of  fact whether  there was compulsion or not.  Compulsion  means  an act   which  is  involuntary,  under  threat,  coercion   or inducement.   It has to be seen what has motivated the  act. Compulsion means any non-voluntary positive act not of  free volition.  (iv)  The  words used are ",to be"  and  not  ,to appear". This brings in the idea of all kinds of  testimony (evidence)  and  removes  all restrictions as  to  time  and place.  (v)  To  be a witness, means  to  furnish  evidence. Wigmore  8th vol. p.362. Best on Evidence p. 11 2.  Phipson, p.  2.  A.I.R.  1960  Ker.  392;  169  E.R.  909.   American Jurisprudence,  vol.  58,  p. 57. (vi).   To  be  a  witness against  himself  means  to do a positive  act  which  would incriminate  him.   A.I.R. 1956 Mad.  165.   Compelling  the production  of  any sort of evidentiary  document  which  is likeiy to help the prosecution 17 is hit by the guarantee.  The object of the guarantee is not to let a person degrade ’himself 1958 Cal, 682; I.L.R.  1957 Cutt, 200. R.   C. Datta, 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  as they involve substantial questions of law as  to the  interpretation  of the  Constitution,  with  particular reference  to,  cl.(3) of Art. 20.  This  larger  Bench  was constituted  in order to reexamine some of the  propositions of   law laid down by this Court in the case of M.P.  Sharma v.Sathish Chandra(1),because when one of the cases was heard by five of us, we felt that (1) [1954] S.C.R. 1077. 18 some  of the propositions therein laid down may  have been

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too  widely stated, and, therefore, required to be  restated with more particularity.  We have not heard counsel for  the parties  ion the merits of the orders passed by  the  Courts below, but have confined the discussions at the Bar, insofar as they had any bearing on the questions of law relating  to the   interpretation   of  el.  (3)  of  Art.  20   of   the Constitution. It is not necessary to state in any detail the facts of each of the cases now before us.  We shall, therefore, state only so  much of the facts as have ’Occasioned calling in aid  of the  provisions of el. (3) of Art. 20 of  the  Constitution. In the first case, namely, Criminal Appeal 146 of 1958, the. State  of  Bombay is the appellant,.   The  ,respondent  was charged,  alongwith another person, under s. 302, read  with s. 34 of the 1. P. C., as also under s. 19(e) of the  Indian Arms Act (XI of 1878).  The Trial Court found him guilty  of those  charges-and  sentenced him to imprisonment  for  life under  s. 302, read with s. 34 of the I.P.C. and to. a  term of  two years rigorous imprisonment for the.  offence  under the  Arms  Act.   At the trial  the  identification  of  the respondent, as one of the two alleged culprits, was the most important  question  to be decided by  the  Court.   Besides other evidence, the prosecution adduced in evidence a  chit- Ex. 5-alleged to be in his handwriting and said to have been given  by  him.   In order to prove that Ex. 5  was  in  the handwriting of the respondent, the police had obtained from him,  during the investigation, three specimen  handwritings of his on three separate, sheets of paper which were  marked as Exs. 27, 28 and 29.  The disputed document, namely,  Ex.5 was compared with the admitted handwritings on Exs. 27,  28 and  29 by the Handwriting Expert whose evidence was to  the effect  that they are all writings by the same  person.   At the trial and in the High Court, 19 the  question  was  raised as to the  admissibility  of  the specimen  writings contained in Exs. 27, 28 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, 28 and 29 from their  consideration the High Court, on a consideration of the other evidence  in the  case, came to the conclusion that the identity  of  the respondent  had  not been established  beyond  a  reasonable doubt.   Hence,  giving  him  the  benefit  of  doubt,  they acquitted  him.   The State of Bombay moved this  Court  and obtained special leave to appeal from the Judgment and Order of acquittal, passed by the High Court.  On these facts, the only questions of constitutional importance that this  Bench

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has  to determine are; (1) whether by the production of  the specimen handwritings  Exs. 27, 28, and 29-the accused could be said to have been "a witness against himself’ within  the meaning of Art. 20(3) of the                              20 Constitution; and (2) whether the were fact that when  those specimen handwritings had been given, the accused person was in  police custody could, by itself, amount  to  compulsion, apart  from any other circumstances which could be urged  as vitiating  the  consent  of  the  accused  in  giving  those specimen handwritings.  This Bench is not concerned with the further  ques tion whether in all the circumstances  "closed by  the evidence in this case, the accused could be said  to have  been  compelled, as a matter of fact, to  give.  those specimens. In Criminal Appeals 110 and 111 of 1958, which arose out  of the same set of facts, the accused person has been convicted by the Courts below under ss. 380 and 457 of the I.P.C.,  as also  under. s.19(f) of the Indian Arms Act.  The  facts  of the   case  necessary  for  bringing  out  the   points   in controversy are that a shop in Hissar in Punjab was burgled. In  the course of the burglary four  double-barrelled  guns, one  single-barrelled gun and a rifle were  stolen.   During his interrogation by the police at the investigation  stage, the appellant is alleged to have given the information  that out of the arms stolen from the shop at Hissar he had buried one 22 bore rifle, two 12 bore doublebarrelled gunk; and one 18  single-barrelled gun at a certain place.  It is  alleged that  as a consequence of the information thus given by  the accused  and  on his pointing out the exact  location  where these  buried articles could be found, the rifles  and  guns were  actually  recovered.   During  the  investigation  the police  had  taken  possession of certain  glass  panes  and phials from the burgled shop which bore some palm and finger impressions  (Exs.   P10 to  P12) In 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 21 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 of the provisions of Art. 20(3) of the Constitution.  Though the  provisions  of  ss. 5 and 6 of  the  Identification  of Prisoners Act, 1920, (XXXIII of 1920) have not in terms been attacked as ultra vires Art. 20(3) of the Constitution,  the effect  of  the argument based on that article is  to  bring into controversy the constitutionality of ss. 5 and 6 of the Act.  As a matter of fact, one of the propositions of law to be urged in support of the appeals is stated in these terms;

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"that  ss. 5 and 6 of the Identification of  Prisoners  Act, 1920,  read with Art. 20(3) of the Constitution  render  the evidence of measurements to be inadmissible". In the last case, Criminal Appeal 174 of 1959, the State  of West  Bengal  has  preferred this appeal  by  special  leave granted by this Court under Art. 136(1) of the  Constitution against  the  judgment  and  order  of  the  High  Court  at Calcutta,    dated   June   4,   1959,   passed    in    its revisional    jurisdiction,   against  an   order   of   the Magistrate,  First Class, Howrah; directing, the  respondent to give his 22 specimen  writing and signature, under s. 73 of  the  Indian Evidence Act.  It is only necessary to state  the  following facts in order to bring out the questions of law bearing  on the   interpretation  of  the  Constitution.    During   the investigation of a criminal case relating to trafficking  in ,contraband  opium, the respondent’s residence was  searched and certain quantity of contraband opium was alleged to have been  found in his possession.  The respondent,  along  with another  person,  was produced before a  Magistrate  of  the first  Class at Howrah and was later released on bail.  from the   materials   and   statements   obtained   during   the investigation  of the case by the police, it was  considered that  there  were  reasonable grounds to  believe  that  the endorsement  on the , back of certain railway  receipts  for consignment of goods seized at Howrah Railway Station was in the  handwriting of the respondent, and it  was,  therefore, necessary to take his specimen writing and signature for the purpose  of comparison and verification.  When  the  accused were  produced  before  the  Magistrate,  the  Investigating Officer made a prayer to the Magistrate for taking  specimen writing  and signature of the respondent.  On  an  adjourned date  when  the accused persons, including  the  respondent, were present in the Court of the Magistrate, the  respondent declined  to  give  his  specimen  writing  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 23 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 (2),  which  had laid  down that a mere direction under s.73 of the  Evidence Act  to a person accused of an offence to give his  specimen writing  did not come within the prohibition of Art. 20  (3) of  the Constitution.  The earlier Bench further  held  that the decision of this Court in Sharma’s case(2), referred  to above,  did  not govern the case of direction given  by  the Court  under  s.73 of the Evidence Act for  giving  specimen writing.   Instead  of referring the question  to  a  larger Bench,  the  later  Division  Bench  took  upon  itself   to

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pronounce  against the considered view of that Court in  the earlier decision.  The State of West Bengal naturally had to come  up  to  this Court to get  the  constitutional  issues determined  because the issues raised were  of  far-reaching importance in the investigation and trial of criminal cases. The  main  question which arises for determination  in  this appeal is whether a direction given by a Court to an accused person  present  in Court to give his specimen  writing  and signature for the purpose of comparison under the provisions of s.73 of the Indian Evidence Act infringes the fundamental right enshrined in Art. 20 (3) of the Constitution. The  arguments at the Bar may be classified as taking  three distinct lines.  The first line, on the one extreme, may  be said  to have been taken by Mr. Sikri, the Advocate  General of Punjab, and which may be characterised as a narrow view, (1)  [1954] S. C. R. 1077. (2)  [1955] A. 1. R. Cal. 247. 24 runs as follows: Cl. (3) aforesaid, in view of its  setting, its  history  and  the  policy  underlying,  the   privilege accorded  by the Constitution to an accused  person,  should not be applied at ,he stage of investigation of an  offence. It  should be confined to cases of compulsory extraction  of incriminating  statements  or communications by  an  accused person  in Court, the expression compelled to be a  witness’ being  understood  as meaning being compelled to  give  oral testimony’.   It does not include the compulsory  production of   documents.   Similarly,  it  does  not   prohibit   the compulsory.  exhibition  or examination of the body  of  the accused, or any part of it, or the taking of specimen  writ- ing, thumb impression of the palm or the feet or the fingers of  an  caused.  Whether or not there  has  been  compulsion should  be  judged by the nature of the action taxi  by  the authority, or the Court that determines the controversy, and not the state of mind of the accused. On the other extreme is the argument by Mr. S.P. Varma,  for the accused in the first case, who contended that the clause aforesaid  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 25 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 incriminatory nature of the statement  or  communi- cation.   Hence,  any statement made to  a  police  officer, while  in  police  custody,  brings  the  same  within   the prohibitory ambit of the clause of the Constitution.  On the face  of them, the propositions propounded by Mr. Varma  are much too broadly and widely stated to be accepted.

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The   third   view,  which  may  be  characterised   as   an intermediate  view,  was advocated by the  learned  Attorney General,  appearing  for  the Union.  According  to  him,  a person  seeking  protection under the clause  must  satisfy %II  the four constituent elements contained in cl.  (3)  of Art.  20, namely, (1) he must be an accused person;  (2)  be must have been compelled; (3) the compulsion must be to be a witness; and (4) against himself.  Compulsion, according  to him, means coercion or constraint and does not include  mere asking by the police to do a certain thing or the  direction by  a court to give a thumb impression or specimen  writing. In  other  words, compulsion has to be equated to  what  has been  sometimes characterised as "’third degree" methods  to extort  confessional  statements.  "To be a witness"  is  an expression  which must be understood in consonance with  the existing law of evidence and criminal, procedure, e.g.-  ss, 27 and 73 of the Evidence Act and ss. 94 and 96 of the  Code of  Criminal Procedure.  Though, according to  English  Law, the expression is confined to oral testimony, he was prepare to go to the length of conceding that any statement, whether oral  or in writing by an accused person,  transmitting  his knowledge disclosing relevant 26 facts  of  which  he  was aware, would  amount  to  bring  a witness’  against  himself.   But mere  production  of  some material  evidence,  by itself, could not  come  within  the ambit of the expression to be a witness’, The several questions for decision arising out of this batch of  cases  have  to  be  answered  with  reference  to   the provisions  of cl. (3) of Art. 20 of the Constitution  which is in these terms :-               "No  person  accused of any offence  shall  be               compelled to be a witness against himself" These provisions came up for consideration by the Full Court in  the case of M. P. Sharma V. Satish Chandra.  (1)  Though the question directly arising for decision in that case  was whether  a  search  and  seizure  of  documents  under   the provisions  of  ss.  94  and 96  of  the  Code  of  Criminal 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               (1)   [1954] S.C.R. 1077.                                     27               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) is "to be  a               witness".   A person can, "be a  witness"  not

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             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  be  a witness" is nothing more  than  "to               furnish  evidence", and such evidence  can  be               furnished  through lips or by production of  a               thing or of a document or in other modes.   So               far  as production of documents is  concerned,               no  doubt,  section 139 of the  Evidence  Act               says  that  a person producing a  document  on               summons  is not, a, witness, But that  section               is  meant  to  regulate the  right  of  cross-               examination.   It  is  not  a  guide  to   the               connotation of the word "witness", which  must               be’ understood in its natural sense, i.e.,  as               referring to a person who furnishes  evidence.               Indeed,  every positive volitional  act  which               furnishes  evidence is testimony,  and  testi-               monial  compulsion  connotes  coercion   which               procures  the positive volitional  evidentiary               acts of the person, as opposed to the negative               attitude of silence or submission on his part.               Nor  is  there any reason to think  that  the’               protection  in  respect of  the  evidence  so:               procured is confined to what transpires at the                             trial  in the court room.  The phrase used  in               article 20(3) is "to be a witness" and not  to               "’appear  as a witness" : It follows 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  com-               pulsion in the court room but may well  extend               to  compelled  testimony  previously  obtained               from  him.  It is available therefore’,  to  a               person against whom a formal accusation               28               relating to the commission of an, offence  has               been  levelled which in the normal course  may               result in prosecution.  Whether :it is  avail-               able to other persons in other situations does               not call for decision in this case." This  Court did not accept the contention at  the  guarantee against  testimonial  compulsion  to  be  confined  to  oral testimony at the witness stand when standing trial for an of Fence.   The  guarantee was, thus,held to include  not  only oral  testimony given in court or out of court, but also  to statements  in  writing which incriminated the   maker  when figuring as an accused person.  After having heard elaborate arguments  for and against 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

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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-most recent decision, to  which  our attention was called, is of a Full Bench of the Kerala  High Court in the case of State of Kerala 29 v.   K.K. Sankaran Nair(1).  In that case, Ansari C. J., who delivered  the opinion of the Court, has made  reference  to and  examined in detail the pronouncements of the  different High Courts.  Ultimately he came to the conclusion that  the decision of this Court in Sharma’s Case (2)  also  covered the  case  of  a specimen handwriting given  by  an  accused person, under compulsion. "To be a witness" may be equivalent to "furnishing evidence" in  the sense of making oral or written statements, but  not in  the  larger  sense of the expression so  as  to  include giving of thumb impression or impression of palm or foot  or fingers  or specimen writing or exposing a part of the  body by   an  accused  person  for  purpose  of   identification. "Furnishing  evidence"  in the latter sense could  not  have been within the contemplation of the Constitution-makers for the  simple  reason that-though they may  have  intended  to protect  an  accused  person  from  the  hazards  of   self- incrimination,  in  the  light of the  English  Law  on  the subject-they could not have intended to put obstacles in the way of efficient and effective investigation into crime  and of bringing criminals to justice.  The taking of impressions or parts of the body of an accused person very often becomes necessary  to help the investigation of a crime.  It  is  as much  necessary to protect an accused person  against  being compelled  to incriminate himself, as to arm the  agents  of law  and  the  law courts with legitimate  powers  to  bring offenders to justice.  Further more it must be assumed  that the Constitution-makers were aware of the existing law,  for example,  s.73  of the Evidence Act or ss. 5 and  6  of  the Identification  of prisoners Act (XXXIII of 1920).Section  5 authorises  a Magistrate to direct any person to  allow  his measurements  or photographs to be (1)A.I.R.1960 Kerala  392 (2)[1954] S.C.R.1077. 30 taken,  if  he  is satisfied that it is  expedient  for  the purposes  of any investigation or proceeding under the  Code of Criminal Procedure to do so Measurements’ include  finger impressions and foot-print impressions.  If any such  person who  is directed by a Magistrate, under s. 5 of the Act,  to allow his measurements or photographs to be taken resists or refuses   to  allow  the  taking  of  the  measurements   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

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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 classified  by text writers into three  categories,  namely, (1) oral testimony; (2) evidence furnished by documents; and (3)  material evidence.  We have already indicated  that  we are  in agreement with the Full Court decision  in  Sharma’s case (1) that the prohibition in cl.(3) of Art.20 covers not only oral testimony given by a person accused of an  offence but also (1)  [1954] S. C. R. 1077. 31 his  written  statements  which may have a  bearing  on  the controversy  with reference to the charge against him.   The accused  may  have documentary evidence  in  his  possession which  may throw some light on the controversy.  If it is  a document, which is not his statement conveying his  personal knowledge  relating  to the charge against him,  he  may  be called  upon  by  the’ Court to  produce  that  document  in accordance.  with  the provisions of s.139 of  the  Evidence Act, which, in terms, provides that a person may be summoned to  produce a document in his possession Cur power and  that he  does not become a witness by the mere fact that  he  has produced  it; and therefore, lie cannot  be  cross-examined. Of  course,  he can be cross-examined if he is called  as  a witness  who  has  made statements  conveying  his  personal knowledge by reference to the contents of the document or if he  his  given  his statements in Court  otherwise  than  by reference to the contents of the documents.  In our opinion, therefore,  the  observations  of  this  Court  in  Sharma’s case(,) that s.139 of the Evidence Act has no bearing on the connotation  of  the word ’witness’ is  not  entirely  well- founded  in  law.   It is well-established  that  cl.(3)  of Art.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 and cannot include merely the mechanical process of  producing documents in court which may throw a light  on any  of the points in controversy, but which do not  contain any   statement  of  the  accused  based  on  his   personal knowledge.   For  example,  the accused  person  may  be  in possession  of a document which is in his writing  or  which contains  his  signature  or  his  thumb  impression.    The production of such a document, with a view to comparison  of the  writing or the signature or the impression, is not  the statement of (1)  [1954] S.C.R. 1077. 32 an accused person, which can be said to be of the nature  of a personal testimony.  When an accused 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’.

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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   probable,  considered  by  itself.    A   specimen handwriting or signature or finger impressions by themselves are no testimony at all being wholly innocuous because  they are  unchangeable except in rare cases where the  ridges  of the fingers or the style of writing have been tampered with. They  are  only materials for comparison in  order  to  lend assurance  to  the Court that its inference based  on  other pieces  of  evidence is reliable.They are neither  oral  nor documentary  evidence  but belong to the third  category  of material evidence which is outside the limit of ’testimony’. Similarly,during the investigation of a crime 33 by  the police, if an accused person were to point  out  the place  where the corpus delicti was lying concealed  and  in pursuance  of such an information being given by an  accused person,  discovery is made within the meaning of  s.-47  of the Evidence Act, such information and the discovery made as a  result of the information may be proved in evidence  even though  it  may tend to incriminate the  person  giving  the information,  while  in police custody.  Unless it  is  held that the provisions of s. 27 of the Evidence Act, in so  far as  they make it admissible evidence which has the  tendency to   incriminate   the  giver  of   the   information,   are unconstitutional as coming within the prohibition of el. (3) of  Art.  20, such information would  amount  to  furnishing evidence.  This Court in Sharma’s case (1) was not concerned with   pronouncing   upon  the  constitutionality   of   the provisions  of  s. 27 of the Evidence Act.   It  could  not, therefore,  be said to have laid it down that such  evidence could not be adduced by the prosecution at the trial of  the giver of the information for an alleged crime.  The question whether  s.  27  of the Evidence  Act  was  unconstitutional because  it  offended  Art.  14  of  the  Constitution   was considered  by this court in the, case of State of U. P.  v. Deomen  Upadhyaya(2).  It was held by this Court that s.  27 of  the  Evidence  Act  did  not  offend  Art.  14  of   the Constitution  and  was,  therefore, intra  vires.  But   the question   whether  it  was  unconstitutional   because   it contravened  the  provisions of el. (3) of Art. 20  was  not considered  in that case.  That question may,  therefore  be treated as an open one.  The question has been raised in one of  the cases before us and has, therefore, to be  decided. The  information given by an accused 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 (1) [1954] S.C.R 1077. (2) [1961] 1 S.C.R.14. 34 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

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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, even though he may not  have  been  an accused person at the time he had made that statement.   The correctness  of  the decision of the Constitution  Bench  of this  Court in the case of Mohamed Dastagir v. The State  of Madras  (1) was questioned because it was said that  it  ran counter  to the observations of the Full Court  in  Sharma’s Case.  (2)  In the Full Court decision of  this  Court  this question  did not directly arise ; nor was it  decided.   On the  other hand, this Court, in Sharma’s case(2), held  that the  protection  under Art. 20 (3) of  the  Constitution  is available  to a person against whom a formal accusation  had been  levelled, inasmuch as a First Information  Report  had been lodged against him.  Sharma’s case (2), therefore, ’did not decide anything to the contrary of what this Court  said in Mohamed Dastagir v. The State of Madras(,). (1)  [1960] 3 S.C.R. 116. (2) [1954] S.C.R. 1077. 35 The  latter  decision  in  our opinion  lays  down  the  law correctly. In order to bring the evidence within the inhibitions of cl. (3)  of  Art. 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 be was  compelled  to make that statement.  "Compulsion’ in the context, must mean what  in  law  is called ’duress’.   In  the  Dictionary  of English  Law  by  Earl  Jowitt,  ’duress’  is  explained  as follows.: "   Duress  is  where a man is compelled to  do  an  act  by injury,  beating or unlawful imprisonment (sometimes  called duress  in strict sense) or by the threat of  being  killed, suffering  some  grievous bodily harm, or  being  unlawfully imprisoned  (sometimes called menace, or duress per  minas). Duress also includes threatening, beating or imprisonment of the wife, parent or child of a person." The compulsion in this sense is a physical objective act and not  the state of mind of the person making  the  statement, except  where  the  mind has been  so  conditioned  by  some extraneous process as to render the making of the  statement involuntary  and,  therefore,  extorted.   Hence,  the  mere asking  by a police officer investigating a crime against  a certain  individual to do a certain thing is not  compulsion within  the meaning of Art. 20 (3).  Hence, the  mere  fact- that  the  accused  person, when he made  the  statement  in question was in police custody would 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, 36 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

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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 enquiry whether  or not  the  accused  person had been  compelled  to  make  the impugned statement. (2)  The  mere questioning of an accused person by a  police officer,  resulting  in  a voluntary  statement,  which  may ultimately turn out to be incriminatory, is not compulsion’. (3)  To  be  a  witness’ is  not  equivalent  to  garnishing evidence’  in its widest significance ; that is to  say,  as including  not merely making of oral or  written  statements but  also production of documents or giving materials  which may  be  relevant  at  a trial to  determine  the  guilt  or innocence of the accused. (4)  Giving thumb impressions or impressions of foot or palm or fingers or specimen writings or showing parts of the body by way of identification were not included in the expression to be a witness 37 (5)  ’To be a witness’ means imparting knowledge  in respect of relevant facts by an oral statement  or  a  statement  in writing, made or given in Court or otherwise. (6)  ’To  be  a witness’ in its ordinary  grammatical  sense means  giving  oral testimony in Court.  Case law  has  gone beyond this strict literal interpretation of the  expression which  may  now  bear  a  wider  meaning,  namely,   bearing testimony in Court or out of Court by a person accused of an offence, orally or in writing. (7)  To   bring  the  statement  in  question   within   the prohibition  of  Art. 20(3), the person  accused  must  have stood  in the character of an accused person At the time  he made the statement.  It is not enough that he should  become an accused, any time after the statement has been made. The  appeals  will now be listed for hearing  on  merits  in accordance with the above principles. The  Judgment  of S. K. Das, Sarkar and  Das  Gupta,  JJ.was delivered by DAS  GUPTA,  J.-Is  a person compelled  "to  be  a  witness" against  himself  within  the meaning of  Art.20(3)  of  the Constitution  when  he  is compelled to  give  his  specimen handwriting  or  signature, or impressions of  his  fingers, palm or foot to the investing officer?  Is he compelled  "to be a witness" against himself within the meaning of the same constitutional  provisions when he is compelled to give  his specimen  handwriting  and  signature  for  the  purpose  of comparison  under  the  provisions of s. 73  of  the  Indian Evidence Act?  These Are the main questions canvassed before us  and they have both been answered in the negative in  the judgment  just pronounced by my Lord the Chief Justice.   We agree  with these answers; but as we have reached  the  same conclusion, by a 38 somewhat  different  approach, and  for  different  reasons, these have to be briefly indicated. The  question as regards the  meaning to be attached to  the

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words  "to  be  a  witness" as  used  in  Art.20(3)  of  the Constitution’  came  up for consideration in  M.P.  Sharma’s Case  (1).   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  be a witness" is nothing more than  "’to               furnish  evidence"  and such evidence  can  be               furnished through the lips or by production of               a thing or of a document or in other modes." He  next observed that s.139 of the Evidence Act which  says that  a  person  producing a document on summons  is  not  a witness,  is  really meant to regulate the right  of  cross- examination  and cannot be "la guide to the  connotation  of the word "witness in Art.20(3), which must be understood  in its  natural  sense,  i.e., as. referring to  a  person  who furnishes evidence", and then proceeded :-               "Indeed,  every positive volitional act  which               furnishes       evidence    is    testimony               (1)   [1954] S.C.R. 1077.               39               and  testimonial compulsion connotes  coercion               which   procures   the   positive   volitional               evidentiary acts of the person, as opposed  to               the negative attitude of silence or submission               on his part". It was further stated that there was no reason to think that the  protection in respect of the evidence so  procured  was confined to what transpired at the trial in the court room. If  the  learned Judges had hoped that by  their  exhaustive judgment they would end all disputes about the limits of the protection  granted by Art. 20 (3), these hopes  were  soon, shattered.   Questions  were before long raised  before  the different  High Courts, as to whether on the  interpretation of  the  words  "to  be a witnes" given  by  this  Court  in Sharma’s  Case,  compelling an accused person  to  give  his finger  prints or impressions of palm or foot or a  specimen handwriting  in the course of investigation, amounted to  an infringement of Art. 20(3).  The conclusions reached by  the different  High  Courts, and in one case at  least,  by  two Benches of the same High Court were different.  That is  why it  has become necessary to examine the question again,  and see how far, if at all. the interpretation given in Sharma’s Case(1) requires modification. The  complaint against the interpretation given in  Sharma’s Case(1) is that it does not solve the problem as to what the words  "to  be  a witness mean;  but  merely  postpones  the difficulty,  of  solving it by substituting  the  words  "to furnish  evidence"  for the words, "to be  a  witness".   It throws  no  light.  it  is  said,  on  what  is  "furnishing evidence",  and  unless that is clear, little is  gained  by saying  that  "to be a witness" is  to  "furnish  evidence". Rival interpretations were suggested before us which it  was claimed on behalf of the protagonists will solve the problem

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once for all. (1)  [1954] S.C.R. 1077. 40 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(1) 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  through   other   witnesses.    An interpretation    which    so   completely    defeats    the constitutional guarantee cannot, of course, be correct.  The contention  that  the protection afforded by Art.  20(3)  is limited to the stage of trial must therefore be rejected. That brings us to the suggestion that the expression "to  be a witness" must be limited to a statement whether oral or in writing by an accused person imparting knowledge of relevant facts;  but that mere production of some material  evidence, whether docum entary or otherwise would not come within  the ambit of this expression.  This suggestion has found  favour with the majority of the Bench; we think however that  this. is  an  unduly  narrow interpretation.  We  have  to  remind ourselves that while on the one hand we ’should bear in mind that  the  Constitution-makers could not  have  intended  to stifle legitimate modes of investigation we have to remember further that quite clearly they thought that certain  things should not be (1)  [1954] S.C.R. 1077.                              41 allowed  to  be clone, during the investigation,  or  trial, however  helpful they might seem to be to the  unfolding  of truth  and an unnecessary apprehension of disaster  to,  the police  system A and the administration of  justice,  should not deter us from giving the words their proper meaning. it. appears to us that to limit the meaning of the words "to  be a  witness"  in  Art. 20(3) in the  manner  suggested  would result  in allowing compulsion to be used in  procuring  the production from the accused of a large number of  documents, which are of evidentiary value, sometimes even more so  than any  oral  statement of a witness might  be.   Suppose,  for example,  an accused person has in his possession, a  letter written to him by an alleged co-conspirator in reference  to their common intention in connection with the conspiracy for committing  a  particular  offence.   Under  s.  10  of  the Evidence  Act this document is the relevant fact as  against the accused himself for the purpose of proving the existence of  the conspiracy and also for the purpose of showing  that any  such person was a party to it.  By producing this,  the accused  will  not be imparting, any personal  knowledge  of facts;  yet  it  would certainly be  giving  evidence  of  a relevant  fact.  Again, the possession by an accused of  the plan  of a house where burglary has taken place would  be  a relevant  fact  under  s.8 of the Evidence  Act  as  showing preparation for committing theft.  By producing this plan is he not giving evidence against himself ?

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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:- 42               "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  the               Court;  such documents are called  documentary               evidence." Section 5 states that evidence may be given in any, suit  or proceeding  of the existence or non-existence of every  fact in  issue  and  of  such other  facts  as  are  "hereinafter declared  to  be  relevant and of no  others."  Then  follow several sections laying down what are relevant facts. It  is  clear  from the scheme of  the  various  provisions, dealing  with the matter that the governing idea is that  to be evidence, the oral statement or a statement contained  in a document, shall have a tendency to prove a fact-whether it be a fact in issue or a relevant fact-which is sought to  be proved.  Though this definition of evidence is in respect of proceedings in Court it will be proper, once we have come to the  conclusion,  that  the  protection  of  Art.  20(3)  is available  even at the stage of investigation, to hold  that at that 43 stage  also  the purpose of having a witness  is  to  obtain evidence and the purpose of evidence is to prove a fact. The  illustrations we have given above show clearly that  it is  not only by imparting of his knowledge that  an  accused person  assists the proving of a fact; he can do so even  by other  means.,-  such as the production of  documents  which though  not  containing  his  own  knowledge  would  have  a tendency  to make probable the existence of a fact in  issue or a relevant fact. Much  has been written and discussed in England and  America as  regards  the historical origin and  development  of  the rules against ’.’testimonial compulsion".  These matters  of history,  however, interesting they be, need not  detain  us and  we must also resist the temptation of referring to  the numerous  cases especially in America where the  concept  of "’testimonial   compulsion"  has  been  analysed.    It   is sufficient  to  remember that long before  our  Constitution came to be framed the wisdom of the policy underlying  these rules had been well recognised.  Not that there was no  view to  the contrary; but for long it has been generally  agreed among  those  who  have devoted  serious  thought  to  these problems  that  few  things could be  more  harmful  to  the detection  of crime or conviction of the real  culprit,  few

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things  more likely to hamper the disclosure of  truth  than to’  allow  investigators or prosecutors to slide  down  the easy path of producing by compulsion, evidence, whether oral or  documentary, from 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 44 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  that these dangers remain the same whether the evidence which the accused   is  compelled  to  furnish  is  in  the  form   of statements,  oral or written about his own knowledge  or  in the  shape of documents or things, which though  not  trans- mitting  knowledge of the accused person directly helps  the Court to come to a conclusion against him.  If production of such  documents,  or  things is giving  evidence,  then  the person producing it is being a witness, on what principle or reason can it be said that, this does not amount to  ’-being a  witness"  within the meaning of Art. 20 (3)  ?   We  find none. We  can  therefore find no justification for  thinking  that ",to be a witness" in Art. 20 (3) means to. impart  personal knowledge  and find no reason for departing from  what  this Court  said  in Sharma’s Case(1) that "to be a  witness"  is nothing  more than "to furnish evidence", and such  evidence be furnished through lips or by production of a thing or  of a document or in other modes. The  question  then is :. Is an  accused  person  furnishing evidence when he. is giving his specimen (1)  [1954] S.C.R 1077. 45 handwriting or impressions of his fingers, or palm or foot ? It  appears  to  us that he is : For,  these  are  relevent. facts, within the meaning of s. 9 and a. 11 of the  Evidence Act.   Just as an accused person is furnishing evidence  and by  doing so, is being a witness, when he makes a  statement that  he  did  something, or saw something, so  also  he  is giving  evidence  and  so  is being  a  "witness",  when  he produces  a letter the contents of which are relevant  under s.10., or is, producing the plan of a house where a burglary has been committed or is giving his specimen handwriting  or impressions  of  his  finger, palm or foot.  It  has  to  be noticed  however  that  Art. 20 (3) does  not  say  that  an accused  person shall not be compelled to be a witness.   It says  that  such a person shall not be, compelled  to  be  a witness against himself.  The question that arises therefore is  :  Is  an accused  person  furnishing  evidence  against himself,   when  he  gives  his  specimen  handwriting,   or impressions  of  his fingers, palm or foot 9 The  answer  to

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this must, in our opinion, be in the negative. The  matter  becomes clear, when we contrast the  giving  of such handwriting or impressions, with say, the production of a  letter  admissible  in  evidence  under  s.  10,  or  the production  of  the plan of a burgled house.  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 46 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 because  he can  get  such handwriting or impressions  from  an  accused person.   For,  by themselves they are of little  or  of  no assistance  to bring home the guilt of an accused.   Nor  is there any chance of the accused to mislead the  investigator into  wrong channels by furnishing false evidence.  For,  it is   beyond  his  power  to  alter  the  ridges   or   other characteristics of his hand, palm or finger or to alter  the characteristics of his handwriting. We  agree  therefore  with the  conclusion  reached  by  the majority  of  the  Bench that there is  no  infringement  of Art.20(3)  of  the  Constitution by  compelling  an  accused person  to  give his specimen handwriting or  signature;  or impressions   of   his  fingers,  palm  or   foot   to   the investigating  officer  or under orders of a court  for  the purpose  of  comparison under the provisions of s.73 of  the Indian  Evidence Act; though we have not been able to  agree with  the  view  of  our learned brethren  that  ,to  be  a witness" in Art.20(3) should be ’equated with the  imparting of  personal knowledge or that an accused does not become  a witness when he produces some document not in his own  hand- writing  even though it may tend to prove facts in issue  or relevant facts against him. In  Criminal  Appeals  Nos.  110 & Ill  of  1958  a  further question as regards the validity of s.27 of 47 the  Evidence Act was raised.  It was said that the  receipt of  information from an accused person in the custody  of  a police  officer  which  can  be  proved  under  s.27  is  an infringement of Art.20(3). Section 27 provides that when any fact   is  deposed  to  as  discovered  in  consequence   of Information  received from a person accused of any  offence, in  the  custody,  of  a police  officer,  so  much  of  the information,  whether it amounts to a confession or not,  as relates  distinctly to the fact thereby discovered,  may  be proved.    It  cannot  be  disputed  that  by  giving   such information the accused furnishes evidence and therefore  is a "witness" during the investigation.  Unless however he  is "’compelled" to give the information he cannot be said to be

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"compelled"  to  be  a witness; and so  Art.  20(3)  is  not infringed.   Compulsion  is  not  however  inherent  in  the receipt of information from an accused person in the custody of a police officer.  There may be cases where an accused in custody is compelled to give the information later on sought to be proved under s.27. There will 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 48 ",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 Evidence Act was  that Pokhar Singh had buried certain fire-arms in village Badesra under  Toori and these were recovered when he pointed  these out  to the investigating police officer.  This  information was  proved under s.27. But it does not appear to have  been suggested that the accused was made to give this information by inducement or threat or promise.  On the facts  therefore there is no question of the information having been received by  compulsion.   The  question whether  any  inducement  or promise  which leads an accused person to  give  information amounts  to compulsion or not, does not therefor fall to  be decided. It  may  be  pointed out that in the  other  appeals,  viz., Criminal Appeal No. 146 of’ 1958 and Criminal Appeal No. 174 of   1959,   also,  this  question  does   not   arise   for consideration in view of our conclusion that in any case the accused  does   not become a "’witness  against  himself  by giving his Specimen signatures or impressions of his fingers or   Palms. It appears to us to be equally unnecessary to     decide another  question  which  was mooted in the  course  of  the hearing, viz., whether the prohibition of Art.20(3) operates only  after a person has been accused of an offence or  even before  that  stage.   Admittedly, in all  these  cases  the person  on whose behalf the protection under Art.  20(3)  is claimed  gave  the  specimen signatures  or  impressions  of fingers  or palms after he had been actually accused  of  an offence. We  think it right therefore not to express any  opinion  on any of these questions.                              49