# 19&1 'I'll.1 .Marni,tment of !itar/11~ lloltl v. The 1Vorkmrn

- **Citation:** [1962] 3 S.C.R. 10
- **Court:** Supreme Court of India
- **Decided:** 1962
- **Bench:** B. P. Sinha
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/19-1-i-ll-1-marni-tment-of-itar-11-lloltl-v-the-1vorkmrn-2314
- **Pages:** 39

## Headnote

IMAM, s. K. DAS,
P. R. GAJE);DRAGADKAR, A. IC
SAHKAR,
K. Si::HHA RAO, K. K.
WAXCHOO,
K. c.
DAS GUPTA,
RAGHUBAR
DAYAL, N. RAJAGOPALA AYYAXGAR
and ,T. R. MUllHOLKAR, JJ.)
'l'estimonial Compulsion -(Jbtai1iing «q.>ecimen u·riting and
thumb i1npreasion j1·om G('CUAP.d- Statenient of accWied in Pol1·ce
custody U.'Jl!d in et·ideru:t-lf confrca·enf ron.'ttitutional guaranteeConslitulion of India, Art. 20(8).
Section 73 of the Indian Evidence Act empowers the
court
to obtain specimen ,,·riting or signatw·e and finger
imprcs~ions of an accused person for purposes of comparison.
•
-
-
-
:.,c
3 S.C.R.
SUPREME COURT REPORTS
11
1961
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 statc1nen ts 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 implicit in the fact that the
accused was in police custody when the specimen signatures
or thumb impressions etc. were obtained that compulsion
was used.
Th. Stat• of Bombay
IlPld, 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 police 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,
re~considered.
Per Sinha, C.J., Imam, Gajendragadkar, Subba Rao,
Wanchoo, R aghubar 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
,vriting which incriminate the n1aker when figuring as an
accused person;
(ii)
the words "to be a witness" in Art. 20(3) do
not include the giving of thumb 1n1pression 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 informa ..
tion based upon the personal knowledge of the giver and
does
not
include
the n1ere
mechanical process of
v.
Kathi K"Ct-lu Oghad
1961
Th< Stat• of
Bcmbay •
v.
Kathi Kalu Oghad
12
SUl'REM}j; COtJllT REPORTS
[1962)
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 b)· Art. 20(3) is not
merely in respect of testimonial compulsion in the court
room but extends also to compelled testimony previously
obtained fron1 the accused.
(ii)
The words "to be a witness" in Art. 20(3)
tncan "to furnish evidence" anc.l cannot he confined to
imparting personal kno\\·ledge; 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 v..·hen
he gives his sp

## Text

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19&1
'I'll.1 .Marni,tment of
!itar/11~ lloltl
v.
The 1Vorkmrn
Wancl100 J.
1961
lo
StPREME COl1RT RRPORTS
[1962]
is i11 accorrlanr(' with the prrseot scale. Tho
workmen \l'l'I'C demanding HB. :J5, but the Tribunal
has fixed Rs. 20 per month anrl has pro\•idcd that
where a workman takes his meals at the hotel the
amount will be reduced by Rs. 15; but where he
lives in accommodation provided by the hotel but
docs not talw his meals there the amount will be
reduced by R~. 5; further whnr he both li,·es and
trtkPs his meals in the hotPI there will be no
dearness allowance paicl to him. We see no reason
to dis.igree with the view taken by the Tribunal
in thiR b(•half, particularly when it is ir. accordance
with what was prcrnlent in the hotel from before
according to tlw aware! of Sh1·i Dulat of .May 17,
1950.
The appeal
therefore fail:;
('Xecpt in the
mntt<'r of the modification in the casual.cum·
siekneHs leave as indicated above and it is hereby
dismissed with (·osts.
Appeal dinni88Cd enept for slight modification.
THE STATE OF BOMBAY
"·
KATHI KALU OGHAD AND OTHERS
(B. P. SINHA, c. J.. s. ,J.
IMAM, s. K. DAS,
P. R. GAJE);DRAGADKAR, A. IC
SAHKAR,
K. Si::HHA RAO, K. K.
WAXCHOO,
K. c.
DAS GUPTA,
RAGHUBAR
DAYAL, N. RAJAGOPALA AYYAXGAR
and ,T. R. MUllHOLKAR, JJ.)
'l'estimonial Compulsion -(Jbtai1iing «q.>ecimen u·riting and
thumb i1npreasion j1·om G('CUAP.d- Statenient of accWied in Pol1·ce
custody U.'Jl!d in et·ideru:t-lf confrca·enf ron.'ttitutional guaranteeConslitulion of India, Art. 20(8).
Section 73 of the Indian Evidence Act empowers the
court
to obtain specimen ,,·riting or signatw·e and finger
imprcs~ions of an accused person for purposes of comparison.
•
-
-
-
:.,c
3 S.C.R.
SUPREME COURT REPORTS
11
1961
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 statc1nen ts 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 implicit in the fact that the
accused was in police custody when the specimen signatures
or thumb impressions etc. were obtained that compulsion
was used.
Th. Stat• of Bombay
IlPld, 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 police 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,
re~considered.
Per Sinha, C.J., Imam, Gajendragadkar, Subba Rao,
Wanchoo, R aghubar 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
,vriting which incriminate the n1aker when figuring as an
accused person;
(ii)
the words "to be a witness" in Art. 20(3) do
not include the giving of thumb 1n1pression 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 informa ..
tion based upon the personal knowledge of the giver and
does
not
include
the n1ere
mechanical process of
v.
Kathi K"Ct-lu Oghad
1961
Th< Stat• of
Bcmbay •
v.
Kathi Kalu Oghad
12
SUl'REM}j; COtJllT REPORTS
[1962)
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 b)· Art. 20(3) is not
merely in respect of testimonial compulsion in the court
room but extends also to compelled testimony previously
obtained fron1 the accused.
(ii)
The words "to be a witness" in Art. 20(3)
tncan "to furnish evidence" anc.l cannot he confined to
imparting personal kno\\·ledge; 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 v..·hen
he gives his spcciincn handwriting or impressions of his
fingers or palm or foot.
(iv)
But in doing so the accused docs not furnish
evidence against himself as by themselves these specimens
or impressions do not incriminate or cv~n tcn<l to incri·
minate the accused and 1,. cannot be said to be compelled
"to be a witness against himself" v..·hen he is compelled
to give the SJ>'Cimcn or impression.
CRill!INAL APPEI,I,ATE JURISDICTION: Criminal
Appeal No. 146 of 1958.
Appeal by special leave from tho judgment
and order dated April 14, l!l57, of tho Bombay
High Court at Rajkot in Criminal (jail) Appeal
No. 73 of 1956.
AND
Criminal Appeal Ko. 174 of 19iJ!J.
Appoal by special leave from the judgment
and order dated June 4, l!J59, of the Calcutta High
Court in Criminal Revision No. 623 of 1958.
-
-
1
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-
3 S.C.R.
SUPREME COURT REPORTS
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), 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 Born. 865, I.L.R. (1952) 2
Cal. 106, A.I.R. 1955 Cal. 247, I.J,.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.G. Setalvad, Attorney General of India, B. Sen
and T. M. Sen, for Intervener No. I. 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
~-
ThlStauof
Bombay
••
Kathi Kalu Oghad
1961
Th< SIGI< of
. Bombay
v.
Kat hi Kalu Ogl1acl
14
SUPREME COURT REPORTS
[1962]
been
compelled to be
a
witness
and (iv)
his witnessing must be against himself.
There
must be an clement of compulsion, a voluntary
act is not compulsion.
Coercion is an clement
of
compulsion.
In
inducement
or
moral
compulsion, the mind is not free.
There was
nothing in England which prc1•ented a Yoluntary
stat-0ment.
(1054) S.C.R.
l0i7
and (1960) ;3
S.C R. I JG, 12/'i.
The fact whet-her a person has
been eompclle'l dops not rest solely on the effect
which the presence of a
poli~c oflicer might hav<'
on the mind of t-hc
person.
I.L.R.
(1952) 2
Cal. IOG, '\"\yillis p. G24, A.I.H. Ifl55
Cal. 24i.
E1·c1111 dirC'elion under s. i:l, E1·icknec Act 'rnuld
not amount to <'Ompulsion.
A.LR. l!lli8 All. I HI,
160 '(;.S. 31i5: ·10 L.Ed, -1:i4. Merely because a
person who makes a statement i~ in police custody
it cannot be inferred that compulsion has been
used. \Villis p. ii~I. Obscryations in Sharma's c8sc
with regard to the words "to be a witncEF" are
excessh•e.
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 lu10ws. He m11st depose or
write as to something of which he has knowledge.
In giving a thumb impr<'ssion or specimen writing
a person doc~ not S>t}' or write anything against
himself.
S. ill. Sikri Adi:orafr-Genera/, Punjab, N. S.
Bindra and D. (fupf(I., for respondent i11 Cr. As. Kos.
llO and I 11 of 58. Sectio11 5 of the Identification
of PriSOll(•rs Act., 1!)20, permits the obtaining of
finger print8 of an accused pc-rson
b~· order of 11
Magistrate.
This is not hit by Art. 20 (:3). Artie)('
20 (3) docs 11ol apply to the stage of im·<'Eti)!ation.
It on!~· prohibits the compulsory examination or
furnishiug of ineriminatm_,. stakment..' or "omm1111i-
..
cation bY the accused. It does not i11"111dc the
.._
compulso~y production
of documents. Even if
Art. 20 (3) prohibits the compulsory productio11 of
\ioeumepts, it does not prohibit the compulsory
•
•
-
--?
-
•
3S.C.R.
SUPREME COURT REPORTS
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, 3V4, 317 and
319. 53 L.Ed. 97,199, 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 i;ourt 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
ex:traction of incriminatory statements or communications, 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 Advocate-General for the State of
West Bengal, B. Sen, and P. K. Bose, for appellant
in Cr. A.No. 174of1959. The question concerned
in Cr. ~· No. 174 o~ .1959 is whether the obtaining
of spemmen handwritmg under s. 73 of the Evidence
Act amounts to testimonial compulsion. Decisions
which hold that it is so are : A. I. R. 1957 l\f. P. 73,
A. I. R. 1959 M. P. 4l1; 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 sav what he does
not want to say in court. Section 118, Evidence
Act indicates that "testify" means to make statements in Court anq pot stat\lJ'.llllnts outsjcl!J court.
lUUl
The f$tal4 of
· 'J]ombuy
v.
Ka!l;i K~lu Qghad
.J»I
TM Stal• of
Bomb<iy
v.
KQIAi Koh• Oglwld
16
SUPREME COURT REPORTS
(1962]
I. L. R. l Rang. 750.
Article 20( 3) applies only
to oral statements macle before the court.
S. I'. F ernw, for rPspondcnt in Cr. A. Ko.
146/1058. Sharma's caso puts the right conRtntction
on Art. 20( 3). The question of inconvenience should
not be taken into consideration.
350 U.S. 422: 100
L.Ed. 511. Artirle 20(3) could he split up into (i
components, i.e. (i) No person, (ii) accused of an
offence, (iii) shall bo compcll<•d, (iv) to he, (v) to
be a witness, and (vi) to be a witncs~ against himself. In the pn'scnt case it is not necessary to
discuss (i). (ii) in<licateR a timo whenever incrimination is imminent and the guarantee comes into play.
"Accused of an offence" is merely dcscripth·e of
the person. Wlwnever 11 person is accused; nothing
obtained from him by compulsion can be used
against him. 340 U.S. 332; 9:j L.Ed. 306; 2GH U.S.
34; 69 J,. F .. d. lli8. "Accused of an offence" docs not
mean accused at the timo when a person is compclkd
to provido evidence. A. I. R. 1960 S.C. 1125. (iii) In
case of police custocly there is irrebutable 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 i1woluntarv, uncler threat, coercion
or inducement. It has to he seen what has moti,·at.
ed the act. Compulsion mean~ any non-voluntary
positive act not. of frcP yolition.
(iv) The words
used arc "to bo'' and not "to appear". This brings
in the idea of all kinds of testimo1.y (evidence) and
removes all rcstrictic;ns as to time and place. (v) Tc
be a witr.c~a, means to furniRh C\'idencc. 'Vigmor<·
8th vol. p.362. Best on Eviclence p. II:?. Phipson,
p. 2. A.I.H. l!l60 Ker. 392; 1()9 E.R. 909. American
Jurisprudence, vol. 58, p. 57. (vi). To be a witnesR
against himself means to do a pnsiti\'c art which
would incriminate him.
A. LR 195G 1\fa<l. Hifi.
Compelling the production of any sort of eyic)entiary
document which is likely to help the prosecnticm,
•
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"
3 S.C.R.
SUPREME COURT REPOR'l'S
17
is hit by the guarantee. The object of the guarantee
_, is not to let a person degrade himself. l!J58 Cal.
682; I.L.R. 1957 Cutt. 200.
R. G. Datta, for Intervener No. 3.
P. S. Saf eer and R. S. Gheba, for appellant in
Cr. As. Nos. 110 and 111of1958. 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.LR. 1959 S. C. l 4!J.
Any part of the evidence
contributed to by the accused under compulsion is
hit by the guarantee.
H. R. Khanna in reply. Sections 1, IlS,132
and 139 of the Evidence Act show that the words
"to be a witness" means giving evidence in court
and must be 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 . • T.,
Imam,
Gajendragadkar, Subba Rao, Wanchoo,
Raghubar
Dayal,
Rajagopala Ayyangar
and
Mudholkar JJ., was deliverPcl hy
SINHA C .. J.-These appeals have been heard
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 re-examine some of the propositions of
law laid down by this (!)ourt in the case of M. P.
~Sharma v. Satiah Chandra('), because when one of
these cases was heard by five of us, we felt that
'
. '
(I) (I 954] S. C.R. 10771
1961
The State nf
Bombay
v.
Kathi Kalu Oghad
Sinha G. J.
1961
The Stat.e of
Bombay
v.
Kathi Kalu Oghad
Sinha C. J.
·SUPREME COURT REPORTS
[1962)
some of the propositions therein laid do\vn may ...
have \been too widely stated, and, therefore, required
to be re-a.tat\ld with more particularity. We have
not heard counsel for ]he _par-ties pn the merits of
the orders passed by the Courts below, but have
'coufined the discussions at the Bar, insofar as they
had any bearing on the questions of law relating
to' the· interpretation of cl. (3) of Art. 20 of the °"'"
Constitution.
.It is not necessary to state in any detail
the facts of each of the case~ now before us.
We
shall, pherefore, sfyl.te only so much of the facts
as have occasioned calling in aid of the provisions
of' cl. ( 3) of Art. 20 of the Con·stitution. In the ,
first case, namely,, Criminal Appeal 146 of 1958,
the State of Bombay is the appellant.
The
respondent was charged, along" ith another person,
under s. 302, read with s. 34 of the I. 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
J
for life under s. 302, read with s. 34 of the I.P .C.
and to a term of-two years rigorous imprisonment z_
for the offence under the Arms Act. At the trial
the 'identification of the respondent, as one of ihe
two alleged culprits, was the most important
quost{o:q to be doci<led by the Court.
Besides
~
other evidence, .the prosecution adduced in evidence
•j
a chit-Ex. 5-a11eged to be in his handwriting and
said to hM·e been given by him. In order to prove _.
·that Ex. q was in tho handwriting
of. the
.respondtint, the police had obtained frcm him,
during the investigation, th1:cc
specimen handwritings .of his on three separate sheets of paper
which were marked as Exs. 27, 28 and 29.
Th,.
disputed document, namely, Ex. 5 was .compar€d
with tlie admitted handwritings on Exs. 27, 28 and
..J
29 by the Haridwriting Expert whose
evidence~l
''vas td the:. eff~ct that ~hey are all writ.in gs by the
'
·s::tme'p~·rson. 'At the trial and i11.the. ]!igh. Qourt,
I
..
-
-
.J.
3 S.C.R. SUPREME COURT REPORTS
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 81cused had been
taken by the police while he was in l'olice custody,
but it was disputed whether the acer -d had been
compelled to give those writings withh. 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 fr·1m 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
consicler'ltion, 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 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
1961
· The Stal• of
Bombay
v.
Kathi Kalu Oghad
Sinha O. J.
1911
n .. s1o1tof
Bombay
v.
Kathi Kalu Ogl1ad
Sinha C. J.
20
SUPRKUE OOUR'l' REPORTS
[19()2]
Constitution; and (2) whether the mere fact that
when those specimen haudwriti11gH ha<! been giveu,
the accused person was in police custody could, by
itself, amow1t tu compulsion, apart from any other
circumslanees 11·hi\·h coui<l be 11rg«1l as vitiatii1g the
consent of th<· accm;rd in .,i,·in" those RTM'Cinwn
/":
.:".)
1·~
handwritings.
Thi' Bench is not concerned with
the further question whether in all the circumstances
disclosed by the e\·idcnce in this case, the ar;cused
could be said to have' been com1wllc<l, as a matter
of fact, to giv<' those spe«inwns.
In Criminal Appeals 110 and 111 of Hl58,
which arose out of the sanie H<'t ,of facts
the
accused person has been convicted b~· th(' Courts
below under ss. 380 and 45i of the I.P.C., as also
under s. 19( f) of the Indian Arms Aet.
The facts
of the case necessary for bringing out the points in
controversy ar~ that a 8hop in Hissar in Punjab
was burgled. In th<· eournc of t.hc burglary four
double-barrelled giurn, one single-barre lier! gun and
a rifle were stolen.
During his iutcrrogation by
the police at the iiwestigation stagl', the appellant
is alleged to have gi,·en the information that out
of the arms stolen from the shop at Hissar he had
buried one .22 bon' rifle, two .12 bore douhlebarrelled guns arnl 011e .18 singlc·harr .. lled gun at
a certain place.
It is alleged that as a consec1iwnce
of the infom1ation thus gi\·en b~· t.hc ae<,use<l and
on his pointing out the exact loeat ion where these
buriecl articles could be found, the rifk~ and guns
were actually reciwered.
During the inwstigation
the police had t'lken possession of 1·<·rtain glass
panes and phials from the hurgle<l shop which bore
some palm and finger impressions ( Exs. PI 0 to
Pl.'.!).
In onler to compare the impressions on
those glass panes anrl phials with tho,;e of the
accused. the invPstigating police officPI' got the
imprPssions of the palms and fingers of the accused
taken in the presence of a Magistrate. On the
evidence adduced by the prosecution, including the
-
'.
,
-
•
•
3 s.c.:R.
SUPREME COU:rtT REPORTS
21
fact
of the recovery of the firearms and the
evidence of the identity of the imprPssions 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) ( c)
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'e 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 vi res 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; "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
1961
T Ire State of
Bombay
v.
Kathi Kalu Oghcvl
SinhaO. J.
·---,.-.··;,.',,.----:·:"':
... ...t.
'
. ~-
~
'~-
. \
",.
22
SUPREME COURT REPORTS
[l!lG::]
1961
specimen writing '1nd signature, under s. 73 of the
Th• State of·.
Indian Evidence Act. It is only necessary to state
B0":_•Y
the following facts in order to bring out the
KathiKalu Oghad
questions of law bearing on the interpretation of
-. c_ the Constitution. During the investigation of a
Sinl.a C. J ~. ,
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
ai10ther
person,' was produced before a Magistrate of the
Ist Class at Howrah and was later released on bail.
From tile 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
aud signature for the purpose of comparison and
verification. \Vhcu
the accused were produced
before the i\Iagistrate, 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 hearing th'} 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 tbe
High Court at Calcutta under s. 43!J of the Cr. P.O.
and Art. 227. of the Constitution. The case was
heard by a Division Bench consisting of J.P. l\Iitter
and Bhattacharyya, JJ, on July 2 and 3, 1958,
but the judgment was not delivered until the
o
A
-
'
•
3 S.C.R.
SUPREME COURT REPORTS
23
~ 4th of June, 1959. The Court held that tho prohibition
contained in Art. 20 (3) of the Constitution applied
to the case of writing and signature to bo taken,
as directed by tho learned Magistrate. The Court
relied
upon
the
decision of this Court in
111.P. i:Jharma's case.(') In coming to this conclusion,
the Division Bench disagreed with tho previous
• decision
of another Division
Bench of that
Court in the case of Sailendra Nath Sinha v.
The State('), 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 tho Constitution. Tho earlier Bench further
held that the decision of this Court in Sharma's
case('), referred to above, did not govern the case of
direction given by the Court m1der s. 73 of the
Evidence Act for giving specimen writing. Instead
of referring the question to a larger Brmch, the
later Division Bench took upon itself to pronounce
against tho 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 a.rises 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.
Tho arguments at tho Bar may be classified
as taking three distinct lines.
The first line, on the
one extreme, may bo said to have been taken by
..: l\Ir. Sikri, the Advocate General of Punjab, and
which may be characterised as a narrow view,
(I) [1954) S. C.R. 1077.
(2) [l955J A. I. R. Cal. 247.
1961
The State of
Bombay
v.
Kathi Kalu Oghad
Sinha 0. J.
1961
The Stale of
Bcmf.,ay
.....
K 'l~h i K al u OglKJd
Sinha C. J.
24
SUPREME COt:RT REPORTS
[1962
runs ai; follows : Cl. (:!) aforcsai<l, in view of its
scttiug, its hii;tory anrl the policy underlying, the
privilege accorded by
the Constitution to an
accused pnson,
ohould
not
lw
applied
at
the i;titge of
inw~stigation of an
offence. It
should
be
confinf'rl to
caoes
of compulsory
extraction of ineriminating st.'llf'ments or communications by an accused person in Court, the expression
'compelled to be ;t witnoss' being understood as
meaning 'bci11g compt•llcd to gil'e oral testimony'. 1t
docs not inelud<' th<• <'ompulsor:· production of dot:unwnts. Rimilarly, it dor" uot prohibit the compulsory
exhibit.ion or examination of th:• bodr of the ;wcusecl, or any part <Jf it, or the taking of' specimen writing, thumb impression, impression of the palm or
the foet or the fin!!crn of an arcusccJ.
Wl1cthcr or
not there has h<'.'<'I~ compulsion shoukl be judged by
the nature t>f the action t11ken by tho authority,
or the Court that determines the controvcrsv, and
not tho Rtate of minrl of the accused.
"
On the other cxtn'me is the argument by
Mr. S.P. Varma, for the acl'usccl in the firnt cai;c,
who cont<:nclcd that the clause afor,,said of the
Constituti011 gi\·es ccompkte ym,\t·dion of th(• widest
amplitudt• to an accused p(•rno11, irrcsp<'cti\·e of the
time am! place and of the nature of tho tn·idcnce,
whethC'r it is oral or documentary or material. Tho
extr<'mc form, which his argument took can best be
stated in hi;; own words as follows : "Anything
caused, by any kiml of thrl'at or inducement, to
be said or done, by a pcrnon, accuHcd or likely to
be accused of any offence, by
non-voluntary
positi\'C act or speech of that person which furthers
the ca,.se of ~my prost·cution against him or which
results 01· is lik<'lv to result in the incrimination of
that person qud any offence, is violative of the
fundamc11t.al
right
guarantc:rl
under cl. (3)
of
Art. 20
of
the Co11stilution
of India".
According to his argument, if an accused person
makes any statement or any discovery, there
•
..
3 S.C.R.
SUPREME COURT REPORTS
25
is not only a rebuttable presumption tha,t he had
been compelled to do so, but that it should bo
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 communication. Hence, any statement made to a police
officer, while m police custody, brings the same
within the prohibitory ambit of tho clause of the
Constitution. On the face of them, the propositiorrn
propounded by Mr. Varma are much too brondly
and widely stated to be accepted.
'l'h e third view, which may be characterised :ts
an intermediate view, was advoca.ted by the learned
Attorney
General,
'lppearing for the Union.
According to him, a person seeking
protPction
under the clause must satisfy <tll the four constituent elements contained in cl. (3) of Art. 20,
namely, (1) he must be an accused person ; (2) he
must
hn,ve 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 tu give a thumb impression or specimen
writing. In other words, compulsion has to be
equated tu wh'lt has been sometimes chHacterised
as "third degree" methods to extort confessional
statements. "To be a witness" is an expression
which must be understood m 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 prepared to go to
the length of conceding that any statement,
whether oral or in writing by an accused person,
transmitting his knowledge disclosing relevant
1961
The State of
Bombay
v.
Kat hi K alu Oghad
Sinha 0. J.
1961
The Strik of
Bombay
v.
Kathi Kalu Og/11Jd
Si11lKJ C. J.
26
SlJPREllIE COURT REPORTS
[1962]
facts of which he was aware, woulcl amount to
'bri11g a witness'
ag~inst himself. nut mere
production of some material evidence, by itsPll;
wouhl not come within the nm bit of the expression
'to be a witness'.
The se\'cral questions
for decision arisi11g
out of this bakh of ease~ ha\'e to be answered with
reference to the provisions of cl. (:!) of • .\rt. 20 of
the Constitution which is in these terms :-
"!\o person nccuscd of any off<,ncf' shall
he compclletl to be a witness against himself."
These proYisions came up for cousiclcration Ly the
Full Court in the ease of Jl. l'. Sh-:1rnw v. Sai-i8h
Clumdra. (')
Though the question clirnctly arising
for clecision i11 that case was whether a search aml
seizure of documents uwlcr the proYisio11s of ss. !.J4
and !l(i of the Colle of Criminal Procedure came
within the ambit of the prohibition of cl. (3) of
Art. :!O of the Constitution, this Court eoyered a
much wider field,
l~esides laying down that the
8carch autl seizure complained of in that case were
not within tho prohibition, this Court exnminc<l
the origin and scope of the doctrine of protection
:>gainst self-incrimination with reference to English
Law and the Constitution of the 'Cnitcd States of
America, with particular reforcnce to the Fourth and
Fifth Amendments. On an examination of the case
law in England and America a.nd the standard text
hooks on Evidence, liko Phipson and Wigmore,
a.nd
other authorities, this Court obser\'ed as
follows:-
"Broadly
stated
the
guarantee in
Art.20(3) is against "testimonial compulsion".
It is suggested that this is confined to the
ornl <'vitlence of a person standing his trial
for an offence when called to tho witness·
stand, 'Vo can sec no reason to confine the
content of the constitutional guarantee to
this barely literal import. So to limit it would
< 1) Ll954J s.c.R. ion:
..
..
--
-
:~ l'.C.R.
SUPREME COURT REPORTS
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
wit1wss".
A person can "be a witness" not
merely by giving oral evidence but also by
producing documents or making intelligible ges·
tures 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 crossexamination. 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 testimonial compulsio>1 connotes coercion which
procures the positive volitional
cvidentiary
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. Th~ 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 compulsion 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
196'1
The State of
Bombay
v.
J{athi J(alu .Oghcui
Sinha C. J.
1961
The State of
Bombay
•. ,
Kathi Kalu. Oghad
SinJW 0. J.
sb:PREME cou'Rir REPo:R'i's
[1962j.
relating to the commission of an offence has
been levelled which in.the normal course may
result in prosecution.
Whether it is ava.ilable to other persons in other situations does
not call for decision in this case."
This Court did not accept the contention
that the guarantee against testimonial compulsion
is to be confined to oral testimony at the witness
stand when standing trial for an offence. 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 argument£ for and against
the views thus expressed by this Court after full
d!Jliberation, we do~ not find any good reasons for
departing from those view&.
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 bis thumb impression, his impression of
palm or fingers or of sa!'.Ilple handwriting or signature comes within the-ambit of "to be a witness"
which has been equated to "to furnjsh 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 i 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 FulrBench of the
Kerala High Court in the case1 of State of Kerala
•
•
-
-
--1
3 S.C.R.
SUPREME COURT REPORTS
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 Sharrna's case(') also covered the case of
a specimen har.dwriting 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 'ln accused
person very often becomes necessary to help the
investigation of a crime.