The Indian Law Institute

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1 CASES AND COMMENTS Constitutional Law Article 20(3) Physical Examination of the Accused and the privilege against Self-incrimination State of Bombay v. Kothi Kalu Oghad. * The judgment of the Supreme Court in State of Bombay v. Kothi Kalu Oghad deals with the ambit and scope of Art. 20(3) of the Constitution which reads : " No person accused of any offence shall be compelled to be a witness against himself." The case covers appeals from three states, Bombay, Punjab and West Bengal. The matter that called for the decision of the court was whether Art. 20(3) of the Constitution was violated in the following cases : (a) Compulsory obtaining of handwriting from the accused by the police during investigation of the crime for the purpose of comparison; (b) Giving of a direction by a court to an accused person present in the court to give his specimen writing and signature for the purpose of comparison under the provisions of section 73 of the Indian Evidence Act; (c) Compulsory obtaining of the impressions of the palms and fingers of the accused by the investigating police officer in the presence of a magistrate. The issues before the court led it to find out the meaning of the words " compelled ", " to be a witness " and " accused " appearing in the Article. The majority 1 arrived at 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 circum- * A.I.R S.C A Full Bench of eleven judges considered this case. Chief Justice Sinha delivered the opinion of the majority. The concurring opinion of three judges was delivered by Das Gupta, J.

2 CONSTITUTIONAL LAW ARTICLE 20(3) 553 stances disclosed in evidence in a particular case, would be a relevant consideration in an inquiry 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 c compulsion \ 3. ' To be a witness ' is not equivalent to c furnishing 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 are not included in the expression c to be a witness'. 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. c 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". 2 This comment is restricted to conclusions 3 to 5. Instead of confining itself to the specific issues before it, the court traversed much wider ground, and thus departed from the general policy of the judiciary to restrict itself to the concrete issues presented before it. 3 Even though the issues presented to the court did not call upon it to decide the question whether the privilege against self-incrimination covered required production of 2. AJ.R S.C. 1808, See, for instance, the opinion of S. R, Das, C.J., in Basheshar Nath v f T. Comm., A.I.R S.C 149,

3 554 CASES AND COMMENTS documents in the possession of the accused, yet the court held that " if it is a document which is not his statement conveying his personal knowledge relating to the charge against him, he may be compelled by the Court to produce that document in accordance with the provisions of section 139 of the Evidence Act." 4 Since the issue of documents was not before the court, no arguments for or against the applicability of the privilege to documents were made. The concurring judges reached a different conclusion on this matter. In both England 5 and the United States 6 also, the privilege applies to documents in the possession of the accused, though in the United States, by importing the concept of " public documents " 7 and " records required by law to be kept" 8 the scope and ambit of the privilege in this area has been curtailed to some extent. Further, the words " a document which is not his statement conveying his personal knowledge" may create difficulty in practice as to what such documents are. In view of these factors the court may have refrained from stating any opinion on the question of documents, particularly because even the obiter of the court is entitled to great weight by the lower courts. 9 In explaining the meaning of " to be a witness " the court said : "To be a witness means imparting knowledge in respect of relevant facts, 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 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 When an accused person is called upon by the court or any other authority holding an investigation to give hisfingerimpression or signature or specimen of his handwriting, he is not giving any testimony in the nature of a 'personal testimony.' The giving of a 'personal testimony' must depend upon his 4. supra note 2 at See Phipson, Evidence, (1952) 9th edn., p The leading American case on the subject is Boyd v. U.S., 116U.S. 161 (1886). 7. Wilson v. U.S., 221 U.S. 361 (1910). Also see Madanlal v. State, A.I.R Orissa Shapiro v. U.S., 335 U.S. 1 (1947). 9. See, for instance, Veerappa Chettiar v. /. T. Commissioner, A.I.R Mad* 56, 61 ; K. P. Doctor v. State of Bombay, A.LR Bom. 220, 224.

4 CONSTITUTIONAL LAW ARTICLE 20(3) 555 volition. He can make any kind of statement or may refuse to make any statement. But his finger impression or his handwriting, inspite of efforts at concealing the true nature of it by dissimulation cannot change their intrinsic character. Thus, the giving of finger impressions or of a 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'." 10 In this respect, reference may be made to the earlier Supreme Court judgment in Satish v. Sharma u wherein it was stated by the court: " 'To be a witness' is nothing more than to c 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 Indeed, every positive volitional act which furnishes evidences is testimony and testimonial compulsion connotes coercion which procures the positive volitional evidentiary acts of the person as opposed to negative attitude of silence or submission on his part Tfce words " every positive volitional act which furnishes evidence is testimony " appearing in this observation are not different in substance from the words " the giving of personal testimony must depend upon his volition 5> appearing in the majority judgment in the Oghad case. 13 The Sharma case was however differently interpreted by the different High Courts. A number of High Courts did not give due weight to the words " positive volitional act " (but relied on the words " to be a witness' is nothing more than to furnish evidence"), 14 though a few did. 15 On the reliance placed on the particular words 10. A.I.R S.C Emphasis added. 11. A.I.R S.C Ibid, at 304. Emphasis added. 13. Volition may be denned as exercise of will and will as conscious process in effecting a decision, Webster Dictionary, 2nd Ed., pp and Now giving of finger impressions does not require any conscious process of mind; it is a mechanical act. Finger impressions of a dead man are as accurate as that of the living. But giving of information based on "personal knowledge" certainly involves conscious operation of the mind and therefore volition. 14. See, for instance, Damodaran v. State, A.I.R Ker. 29 ; Brij Bhushan v. State, A.I.R M.P. 106; Rajmuthukoil Pillai v. Periyaswami Nadar, A.I.R Mad, 632; Bhaiuka Behara v. State, A.I.R Orissa 172; Balaraj Bhatla v. Romesh Chandra, A.I.R Ail Also, see cases cited in State of Kerala v. Sankaran, A.I.R Ker See, for instance, Pakhar Singh v. State, A.I.R Punjab 294; State v. Balwant Ganapati, (1961) Bom. L.R. 87; Mahal Chand v. State, A.I.R Cal. 123, Also see Farid Ahmed v. State A.I.R Gal. 32 ; Badri Lai v. State, A I.R Raj. 184.

5 556 CASES AND COMMENTS by a High Court depended whether Art. 20 (3) was violated, or not, 16 by compulsory obtaining of fingerprints from the accused. 17 With regard to handwriting, the case presented two situations : (i) obtaining of handwriting of the accused by the police during investigation and (ii) obtaining of handwriting from him at the direction of the court under section 73 of the Indian Evidence Act. There is no provision either in the Criminal Procedure Code 18 or in the Identification of Prisoners Act which empowers the police to obtain the handwriting from the accused by force during investigation. Therefore, if the police at the investigation stage compelled the accused to give his handwriting, it was illegal, being not authorised by law 19, and if the accused voluntarily gave his handwriting, the constitutional question could not arise. Further, the direction under sec. 73 of the Indian Evidence Act has been held to be merely of permisive nature, that is, accused cannot be compelled to obey the direction, by the various High Courts. 20 However, the Supreme Court in the case under comment seems to have assumed otherwise?. 21 It appears to be an omission in the judgment not to expressly state that the word " direction " signified order of the court demanding obedience or like, owing to conflict of judicial opinion on the point. 16. Some of the cases which upheld compulsory taking of finger impressions of the accused are : Pakhar Singh v. State, A.I.R Punj. 294 ; Mahal Chand v. State, A.I.R Gal For contrary cases, see, Damodaran v. State, A.LR Kerala 29; Brij Bhushan v. State, A.LR M. P. 106; Rajamuthukoil Pillai v. Periyasami Nadar, A.I.R Mad. 632; Bhaluka Behara v. State, A.I.R Orissa 172; Balraj v. Ramssh Chandra, A.I.R All In some cases a distinction was made between compelling the accused to give his finger impression and taking it by force from him. The latter was held not to be violative of the Article, even though the former was. See, In re Palani Goundan, A.I.R Mad. 54:6 ; Nazir Singh v. State, A.I.R M.P. 411 ; and In re Gouinda Reddy, A.I.R Mys See supra note Tarini Kumar v. State, A.I.R Gal CfBhondar v. Emperor, A.I.R Gal. 601 ; Deoman v. State, A.I.R Bom Note the following cases: State v. Parameswaran, A.I.R T.G. 482 ; and Sailendra Nath v. State, A.I.R Gal Also see badrilal v. State, A.I.R Raj. 184; and Ram Sarup v. State, A.I.R All Contra: Brij Bhushan v. State, A.I.R M.P. 107 ; Rajamuthukoil Pillai v. Periyasami Nadar, A.I.R Mad The very fact that the learned judges considered the constitutionality of section 73 of the Evidence Act suggests that they took the word "direct" in that sectiga to mean "compel".

6 CONSTITUTIONAL LAW ARTICLE 20(3; 557 Coming to the specific question whether giving of handwriting by the accused for purposes of comparison comes within the coverage of the words " to be a witness ", the court's conclusion was that it did not. It was because, in its view, when an accused person was called upon to give his handwriting " he is not giving any testimony in the nature of a 'personal testimony" which must depend upon his volition. It may be stated against this view that writing is not a purely mechanical act; it requires application of intelligence and attention. A person cannot write unless he has " personal knowledge " of the language. It may be a mechanical act for a person who is well versed in language but not for a person who is not and he must exercise conscious process of the mind. Whereas finger impression can be obtained without active co-operation of the accused, handwriting can only be obtained when the accused actively co-operates. Depending upon the desire of a person, he may write in different ways. Without in any way commenting on the wisdom of the conclusion of the court with regard to handwriting, it would have been better if the court had given its verdict in the light of this distinction between handwriting and finger impression, instead of mechanically grouping the two.^ It may be noted that some of the High Courts which upheld compulsory taking of finger impressions of the accused, had rejected forcing the accused to write for the purpose of comparison. 23 If some of the conclusions of the court are detached from the reasoning on which they are based, the results may not be happy. For instance, in conclusion numer 5 stated above, the court states: " ' 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 22. It may be stated in support of the court's conclusion that the purpose of obtaining handwriting is not to determine the sense of the matter written but to iecure a physical comparison between the written specimen and other writing. For & fuller treatment of the subject, see the Indian Law Institute's study Self-incrimina-* Hon : Physical and Medical Examination of the Accused (in the press). 23. See Farid Ahmed v. State, A.I.R. I960 Gal. 32 (handwriting violating the privilege); Mahal Chand v. State, A.I.R Gal. 123 (thumb impression not violatng the privilege) ; Badrilal v. State, A.I.R Raj See also State v. Ram Kumar, A.I.R. iy57 M.P. 73 and State v, Saakaran, A.I.R Ker. 392, where >btaining of handwriting from th^ accused was held to violate Art. 20 (3) of the Constitution and the courts did not maintain any distinction between fingerprints (the Kerala case on fingerprints to be noted is Damodaran v. State, A.I.R Ker. 29) wid handwriting.

7 558 CASES AND COMMENTS Court or otherwise." This raises the questions : What about a dumb witness who cannot speak but explains certain things by indications of his body? What about lie-detector test 24 in which the accused does not speak but the test records the physiological reactions of the accused through the operation of his mental faculties? In these examples, the acts are certainly volitional and are based on the " personal testimony " of the accused. They would certainly be covered by Art. 20(3) on the basis of the reasoning of the court. At some places it is difficult to understand the reasoning of the court. For instance, it is stated at one place 25 : " In order that a testimony by an accused person may be said to have been selfincriminatory, the compulsion of which comes within the prohibition of the constitutional provision, it must be of such a character that by itself it should have the tendency of incriminating the accused, if not also of actually doing so. In other words it should be a statement which makes the case against the accused person at least probable, considered by itself. 5 ' 26 A specimen handwriting or signature or finger impression from the accused certainly does have a tendency to incriminate him and may in fact incriminate him in those cases in which he is the real offender, though it is true that by itself they will be of no use unless compared with the other specimens. However, this may apply to oral testimony also. An oral statement by the accused may have a tendency to inculpate him though by itself considered without other circumstantial evidence that oral statement may not be sufficient to convict him. Consider the following example : Suppose a person is found dead and 'A' is the accused. He is asked the following questions : Were you at the spot where the dead body was found? Did you have a gun? Did you shoot the victim? The answer to the first question may have a tendency to incriminate him, though by ' itself ' it may not be sufficient to give rise to any inference against him. It is 24. Assuming that it is adopted in India as a criminal investigation tool. 25. At another place the court in support of its view states : "Furthermore 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)". A.I.R S.C Is this correct approach to the interpretation of the Constitution? May be the Constitution makers intended to prohibit these kinds of taking evidence from the accused. Art. 13 (1) of the Constitution which states, "All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void", clearly assumes that there may be laws existing on the eve of the Constitution which arc contrary to the Fundamental Rights. 26. A.I.R S.C

8 CONSTITUTIONAL LAW ARTICLE 20(3) 559 the consideration of this answer with other answers (namely, to questions 2 and 3) or other circumstantial evidence that may convict him. In this respect, the concurring opinion suffers to a greater extent than the majority opinion. 27 In conclusion, however, it may be stated that the court's judgment that Art. 20(3) does not apply to compulsory obtaining of finger impressions and handwriting from the accused is in the right direction, for by permitting this there is no danger that the police would be led to sit comfortably " in the shade rubbing red pepper into a poor devil's eyes than to go about in the sun hunting up evidence " one of the main arguments in favour of the privilege against selfincrimination. There is no danger that an innocent person will be convicted, that the police will be led to use " third degree " methods, and that the police will become inefficient. S. Jf. Jain* The State of Orissa v. Bhupendra Kumar Bose Orissa Municipal Election Validating Ordinance, The recent judgment of the Supreme Court in State of Orissa v. Bhupendra Kumar Bose J reversing a Bench decision of the Orissa High Court 2 requires careful study as it raises an important question as to how far the Legislature can directly annul the judgment of a High Court granting relief to a citizen. In the elections to Cuttack Municipality held early in 1958 the Congress Party (which is the ruling party) came out successful with narrow margins of votes and the chairman was elected from that party. One of the defeated candidates (who belonged to a different party) by an application under article 226 of the Constitution challenged the validity of the said election on the ground that the electoral 27. The main argument of the concurring judges in favour of non-applicability of Art. 20 (3) to handwriting and finger impressions was that "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 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". Ibid, at * Senior Research Officer, Indian Law Institute, New Delhi. 1. A.LR S.C O.J.C. No. 12 of 1959 reported in I.L.R Cuttack p. 203,