1. This Criminal Revision Application is placed before us for hearing in view of the reference order dated the 18th December, 1979 passed by Kotwal, J. The Applicant accused and Original accused No. 2 Shankar are being prosecuted for offence punishable under Section 302 read with Section 34 of Indian Penal Code for committing murder of one Shoukat on 23rd September 1978. It is not necessary to make a detailed reference to the prosecution story because we are not concerned with the merits of the case at this stage.
2. It appears from record that after completing the investigation a charge-sheet was filed by the prosecution in the Court of learned Metropolitan Magistrate, Bombay who in his turn committed both the accused persons to stand their trial before the Sessions Court Greater Bombay. Thereafter a charge under Section 302 read with Section 34 of the Penal Code was framed by the Sessions Court. This charge was framed on 9th November, 1979 and on the same day the Public Prosecutor filed an application before the Additional Sessions Judge which reads as under :
'The Accused No. 1 Anil may be directed to accompany the Police Officer to the Police Surgeon in order that blood sample of the accused is taken by the doctor for the determination of his blood group'.
This application was opposed on behalf of the accused on several grounds. According to the accused such an application is not maintainable under Section 53 of the Code of Criminal Procedure because once the charge-sheet is filed and investigation is completed the Court has no power to issue any such direction under the said section. It was also contended that the words and expression used in Section 53 have go a restricted meaning and the examination of the person an envisaged by the said provision could not be extended to extraction of blood. A contention was also raised that the said provision is violative of the Petitioner's fundamental right guaranteed under Article 20(3) as well as Article 21 of the Constitution of India. After hearing the argument in detail and relying upon the decision of the Allahabad High Court in , Jamshed v. State if Uttar Pradesh, the learned Additional Sessions Judge granted the said application and directed accused No. 1 Anil to accompany the police officer to the police surgeon in order to enable the doctor to take his blood sample for determination of his blood group. It is this order passed by the Additional Sessions Judge dated 14th November, 1979, which is challenged in this Criminal Revision Application.
3. Initially this revision application was placed for hearing before the single Judge of this Court. However as the learned Judge did not agree with some of the observations made in State of Maharashtra v. Dnyanoba , he thought it fit to refer the matter to a larger Bench and this is how this criminal Revision Application is placed before us for hearing.
4. Shri Adhik Shirodkar, the learned Counsel appearing for the petitioner contended before us that the provisions of Section 53 of the Code of Criminal Procedure are violative of the fundamental right guaranteed under. Article 20(3) of the Constitution of India as it amounts to testimonial compulsion. He then contended that there is no provision in the Code of Criminal Procedure which enables the Courts or Police to take a sample of the blood of the accused for determining the blood group. He also contended that, the words and expressions used in Section 53 will have to be given a restricted meaning and the said provision can include in its import only physical external examination and cannot include taking of blood sample for determination of blood group. He also contended that under Section 53 of the Code, power is conferred upon the investigating officer while investigation is in progress and therefore once a charge-sheet is filed the court has not power to issue any such direction. In support of his contention Shri Shirodkar was relying upon a decision of Calcutta High Court in 82 C WN 970, Gobinda Ram Singhania v. State of West Bengal as well as a decision of this court in State of Maharashtra v. Dnyanoba Bhikoba Dagade, . A contention was also raised that since the accused is released on bail he is not a person arrested within the meaning of Section 53 of the Code.
5. On the other hand Shri Kamat the learned Public Prosecutor appearing on behalf of the State contended before us that Section 53 of the Code of Criminal Procedure cannot be read in isolation. According to him in view of the authoritative pronouncements of the Supreme Court in State of Bombay v. Kathi Kalu Oghad, : 1961CriLJ856 , it cannot be said that Section 53 of the Code is violative of provisions of Article 20(3) of the Constitution of India. Shri Kamat also contended that there is no testimonial compulsion in the process of taking sample of the blood by a qualified and Registered Medical Practitioner and in no case it could be said that by this process the accused is forced to tender evidence against himself not by this process accused is being compelled to be a witness against himself. As regards the interpretation of Section 53 of the Code, the learned Public Prosecutor submitted that under the said section the Police has got enough powers to send the accused to a qualified medical practitioner for the purposes of taking sample of his blood for determining his blood group. The examination of the 'person' of the arrested as contemplated by Section 53 of the Code impliedly includes in its import taking of sample of blood for the purpose of grouping. Such a power has been conferred upon the authorities concerned by Section 53 of the Code and therefore it cannot be said that the said provision is any way violative of Article 21 of the Constitution of India. He also contended that if such a power under Section 53 is given to a police officer a court should have a wider power for the purposes of doing justice hence the order passed by the learned Additional Sessions Judge is perfectly legal and valid. In support of his contentions Shri Kamat is relying upon the decision of Allahabad High Court in Jamshed v. State of Uttar Pradesh reported in , of the Supreme Court in : 1961CriLJ856 , State of Bombay v. Kathi Kalu Oghad, a decision of the Andhra Pradesh High Court in Ananth Kumar Naik v. State of Andhra Pradesh, , a decision of Rajasthan High Court in Mahipal Maderna v. State of Rajasthan and the decision of the Supreme Court in Ram Lal Narang v. State (Delhi Admn), : 1979CriLJ1346 .
6. For properly appreciating the controversy raised before us, it will be worthwhile to make a detailed reference to the provisions of Section 53 of the Code of Criminal Procedure, which reads as under :
'53-Examination of accused by medical practitioner at the request of Police officer - (1) when a person is arrested on a charge of committing an offence of such a nature and alleged to have been committed under such circumstances that there are reasonable grounds for believing that an examination of his person will afford evidence as to the commission of an offence, it shall be lawful for a registered medical practitioner, acting at the request of a police officer not be low the rank of sub-inspector, and for any person acting in good faith in his aid and under his direction, to make such an examination of the person arrested as is reasonably necessary in order to ascertain the facts which may afford such evidence, and to use such force as is reasonably necessary for that purpose.
(2) Whenever the person of a female is to be examined under this section, the examination shall be made only by, or under the supervision of, a female registered medical practitioner.
Explanation - In this section and in S. 54 'registered medical practitioner' means a medical practitioner who possesses any recognised medical qualification as defined in clause (h) of Section 2 of the Indian Medical Council Act (102 of 1956), and whose name has been entered in a State Medical Register.
7. In Section 54 a provision is made for examination of the arrested person by a medical practitioner at the request of the arrested person himself. Sections 53 and 54 are part and parcel of Chapter V of the Code of Criminal Procedure which deals with the arrest of the person. Section 53 makes a provision for the examination of the person of the accused by a registered medical practitioner at the request of a police officer not below the rank of sub-inspector, in order to ascertain the facts which may afford evidence, and also to use such force as is reasonably necessary for that purpose. This is obviously part and parcel of the process of investigation. Section 2(h) defines the scope of investigation in the following terms :
''Investigation' includes all the proceedings under this Code for the collection of evidence conducted by a police officer, or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf'.
8. This definition is inclusive one and therefore obviously not exhaustive. It includes all the proceedings under the Code for the collection of evidence by a police officer. The investigation of crime is normally left to the Investigation Machinery and after completing the investigation the police authorities are expected to submit a report under Section 173 of the Code of Criminal Procedure. Sub-section (8) of Section `, which is newly added sub-section reads as under :-
'173(8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub-section (2) has been forwarded to the Magistrate and, where upon such investigation the officer incharge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub-sections (2) to (6) shall, as far as may be apply in relation to such report or reports as they apply in relation to report forwarded under sub-section (2)'.
9. As to what is the true import of this newly introduced sub-section (8) of Section 53 of the Code, fell for consideration of the Supreme Court in Ram Lal Narang v. State (Delhi Admn.), : 1979CriLJ1346 . After making a detailed reference to the decisions of the various High Courts and the report of the Law Commission, the Supreme Court observed that further investigation is not altogether ruled out merely because cognizance of the case has been taken by the Court. Defective investigation coming to the light during the course of trial may be cured by further investigation, if circumstances permit it. Then in paras 21 and 22 the Supreme Court observed as under :-
'21. Anyone acquainted with the day-to-day working of the criminal courts will be alive to the practical necessity of the police possessing the power to make further investigation and submit a supplemental report. It is in the interest of both the prosecution and the defence that the police should have such power. It is easy to visualise a case where fresh material may come to light which would implicate persons not previously accused or absolve persons already accused. When it comes to the notice of the investigating agency that a person already accused of an offence has a good alibi, is it not be duty of that agency to investigate the genuineness of the plea of alibi and submit a report to the Magistrate After all the investigating agency has greater resources as its command than a private individual. Similarly, where the involvement of persons who are not already accused comes to the notice of the investigating agency, the investigating agency cannot keep quiet and refuse to investigate the fresh information. It is their duty to investigate and submit a report to the Magistrate upon the involvement of the persons. In either case, it is for the Magistrate to decide upon his future course of action depending upon the stage at which the case is before him. If he has already taken cognizance of the offence, but has not proceeded with the enquiry or trial, he may direct the issue of process to persons freshly discovered to be involved and deal with all the accused, in a single enquiry or trial. If the case of which he has previously taken cognizance has already proceeded to some extent, he may take fresh cognizance of the offence disclosed against the newly involved accused and proceed with the case as a separate case. What action a Magistrate is to take in accordance with the provisions of the Code of Criminal Procedure in such situations is a matter best left to the discretion of the Magistrate. The criticism that a further investigation by the police would trench upon the proceedings before the court is really not of very great substance, since whatever the police may do, the final discretion in regard to further action is with the Magistrate. That the final word is with the Magistrate is sufficient safeguard against any excessive use or abuse of the power of the police to make further investigation. We should not, however, be understood to say that the police should ignore the pendency of a proceeding before a Court and investigate every fresh fact that comes to light as if no cognizance had been taken by the Court of any offence. We think that in the interests of the independence of the magistracy and the judiciary, in the interests of the purity of the administration of criminal justice and in the interests of the comity of the various agencies and institutions entrusted with different stages of such administration, it would ordinarily he desirable that the police should inform the Court and seek formal permission to make further investigation when fresh facts come to light.
22. As observed by us earlier, there was no provision in the Code of Criminal Procedure, 1898 which expressly or by necessary implication barred the right of the police to further investigation after cognizance of the case had been taken by the Magistrate. Neither Section 53 nor S. 190 lead us to hold that the power of the police to further investigate was exhausted by the Magistrate taking cognizance of the offence. Practice, convenience and preponderance of authority, permitted repeated investigations on discovery of fresh facts. In our view, nothwithstanding that a Magistrate had taken cognizance of the offence upon a police report submitted under Section 53 if the 1898 Code, the right of the police to further investigate was not exhausted and the police could exercise such right as often as necessary when fresh information came to light. Where the police desired to make a further investigation, the police could express their regard and respect for the Court by seeking its formal permission to make further investigation'.
10. If this was the position even under the old Code, and that too in absence of Sub-section (8) of Section 53, then in our opinion the new provision i.e. Section 53(8) of the Code of Criminal Procedure has more than amply clarified the whole position. There was no provision in the old Code of Criminal Procedure which expressly conferred a right upon police to carry on further investigation after the cognizance was taken by the Court. Sub-section (8) of Section 53, confers such an express and specific power upon the investigating officer.
11. In the present case also after the charge-sheet was submitted and the case stood committed to the Court of Session merely a permission in the form of a direction was sought from the Additional Sessions Judge who was seized of the trial to send the accused with a police officer to the police surgeon in order to enable him to take blood sample of the accused for determining the blood group. Power is still being exercised by the investigating machinery obviously under Section 53 read with S. 173(8) of the Code of Cri. Procedure and therefore it cannot be said that the permission granted by the Additional Sessions Judge before whom the trial is pending is any way illegal. It appears that after getting the report from the Criminal Analyser, about blood stains found on certain articles the investigating machinery thought it fit to get the blood group of the accused determined which step the prosecution had not taken earlier through inadvertence. It is not the case of accused that power is being exercised by the investigating agency mala fide or said agency has acted out of malice.
12. It is also not correct to say that in no case Magistrate can issue a direction, ordering the accused to submit to medical examination as contemplated by Section 53 of the Code. In this context it cannot be forgotten that a power is conferred upon the Magistrate to arrest a person who commits offence in his presence under Section 44 of the Code. Such an arrest could be for any offence. After arrest it is open to the Magistrate subject to the provisions as to bail contained in the Code, to commit the offender to custody. Can it be suggested that in such a case recourse could not be taken to the provision of Section 53 of the Code Suppose a person is granted an anticipatory bail, then can it be said that he cannot be directed to submit to medical examination under Section 53 of the Code as a condition of bail itself or otherwise. Under the Code of Criminal Procedure, if it is in the interest of justice the court has power to record additional evidence. The High Court is granted inherent powers under Section 482 of the Code to make such orders as may be necessary to secure the ends of justice. While dealing with a case where death sentence is awarded, under Section 367(1) of the Code if the High Court feels that further inquiry, including the medical examination of the accused is necessary for determining the guilt or innocence of the accused then can it be held that High Court has no such power or jurisdiction S. 53 of the Code only lays down a condition that medical examination will have to be done at the instance of a police officer not below the rank of sub-inspector. It does not debar other superior officers or the Court concerned from exercising said power if it is necessary for doing justice in a criminal case.
13. In this context a reference could usefully be made to the decision of the Supreme Court in : 1979CriLJ17 State (Delhi Admn.) v. Pali Ram. In that case the Supreme Court was concerned with the power of the Court to direct the accused to give his specimen handwriting and while upholding such a power the Supreme Court observed as under :-
'In the Revision Petition filed by the accused before the High Court a grievance is sought to be made out that the Magistrate's order will work prejudice to the defence and enable the prosecution to fill gaps and loopholes in its case. This contention was devoid of force. Once a Magistrate in seisin of a case, duly forms an opinion that the assistance of an expert is essential to enable the court to arrive at a just determination of the issue of the identity of disputed writing, the fact that this may result in the 'filling of loopholes' in the prosecution case is purely a subsidiary factor which must give way to the paramount consideration of doing justice. Moreover, it could not be predicate at the Stage whether the opinion of the Government Expert of Questioned Documents would go in favour of the prosecution or the defence. The argument raised before the High Court was thus purely speculative.
In addition to Section 73, there were two other provisions resting on the same principle, namely Section 165, Evidence Act and Section 540 Cr.P.C. 1898, which between them invest the Court with a wide discretion to call and examine any one as a witness, if it is bona fide of the opinion that his examination is necessary for a just decision of the case. In passing the order which he did, the Magistrate was acting well within the bounds of this principle'.
In our opinion these observations aptly apply to the present case also. Therefore it is open to the court which is seized of the matter to issue direction or to grant approval or permission to the police for carrying out further investigation under Section 53 of the Code of Criminal Procedure.
14. So far as the contention based on Article 20(3) is concerned in our opinion there is no substance in the said contention. As held by the Supreme Court in State of Bombay v. Kathi Kalu Oghad, : 1961CriLJ856 , mere taking of blood for determination of the blood group will not amount to testimonial compulsion within the meaning of Article 20(3) of the Constitution of India. It is not necessary to deal with the said contention in detail in view of the decision of the Supreme Court in State of Bombay v. Kathi Kalu Oghad. This court had also an occasion to consider somewhat similar question in State v. Balwant. : (1961)63BOMLR87 . In that case provisions of Section 129-A of the Bombay Prohibition Act were challenged as being violative of the protection guaranteed by Article 20(3) of the Constitution of India Negativing this contention this Court held that the said provisions do not violate the protection guaranteed by Article 20(3) of the Constitution. In no case it could be said that only because a power is a conferred upon the police officer under Section 53 of the Code of Criminal Procedure, to get examined the person of the accused by a competent person for ascertaining facts which may afford evidence that by itself is tantamount to compelling the accused to become a witness against himself. Merely by this process, he is not compelled to be a witness against himself. The Supreme Court in State of Bombay v. Kathi Kalu Oghad : 1961CriLJ856 has explained the true meaning of expression 'to be a witness' as used in the said Article 20(3) of the Constitution of India. As observed in the said decision, by using the said expression, the makers of the Constitution could not have intended to put obstacles in the way of efficient and effective investigation into crime and of bringing criminals to justice. Even otherwise mere examination of the person and taking of blood sample in itself is not an incriminating circumstances, and therefore it cannot be said that by mere taking sample of blood a person is compelled to be a witness against himself.
15. Similar view has been taken by the division Bench of Allahabad High Court in Jamshed v. State of Uttar Pradesh wherein the Allahabad High Court after making a reference to the decision of the Supreme Court in State of Bombay v. Kathi Kalu Oghad : 1961CriLJ856 has come to the conclusion that taking of blood sample of the accused does not amount to testimonial compulsion. Similar view is also taken by the Andhra Pradesh High Court in Ananth Kumar v. State of Andhra Pradesh . Therefore there is no substance in this contention.
16. It appears that under the old Code, there was no specific provision authorising the police officer under which an arrested person could be subjected to medical examination without his consent. Therefore with an intention to remove this lacuna this new provision was incorporated in the new Criminal Procedure Code, with the sole intention of facilitating effective investigation. Section 53 authorises investigating machinery to get an arrested person examined by a medical practitioner. Section 54 confers such a right upon the accused himself. This examination is contemplated under certain conditions. If the nature of the offence alleged to have been committed by the accused coupled with circumstance under which it is committed affords reasonable grounds for believing that an examination of his person will afford evidence as to the commission of the offence, then it has been made lawful for the medical practitioner to act at the request of the police officer, not below the rank of sub-inspector and to carry out examination of the person arrested in order to ascertain the facts which may afford evidence and for that purpose to use such force as may be necessary. This examination has to be carried out by a registered medical practitioner or any person acting in good faith in his aid and under his direction. It could be carried not below the rank of the police officer not below the rank of sub-inspector. Therefore sufficient safeguards are provided in the section itself. The expression used is 'examination of his person'. A contention is raised before us by Shri. Shirodkar that expression 'examination of his person' cannot include taking out blood of the arrested person for determination of its group. According to Shri Shirodkar the said expression can include in its import only external examination of the body of the person and nothing else. It is not possible for us to accept this restricted interpretation of the Section.
17. It cannot be forgotten that 'examination of the person' of the accused is contemplated as an aid to the investigation of the crime in order to ascertain facts which may afford evidence as to the commission of the offence under investigation. We do not find any intrinsic evidence or compulsion in the section itself or otherwise to restrict the meaning of expression used in this section to the examination of the skin or what is visible on the body itself. Many times it becomes necessary to make examination of some organs inside the body for the purposes of collecting evidence as to the commission of the offence.
18. In a given case for the purpose of collecting evidence it might become necessary to determine blood group of the accused. In case where the bloodstained clothes are seized from the person of the accused and the prosecution wants to connect the said evidence with the crime itself, then obviously it becomes necessary to determine the blood group of the accused and in that sense it could safely be said that taking of ample of the blood is necessary for affording evidence as to the commission of the offence. This might help even the defence to prove the innocence of the accused. In a case where the identity of the accused is the main question for consideration and decision and a bunch of hair are found at the place of occurrence, then the Investigating Officer can utilize that piece of evidence for the purpose of establishing identity of the participant in the crime. In the cases wherein identification of the accused is in issue, the body of the accused with identifying marks on it is a relevant piece of evidence for the purpose of identification of the culprit. In some cases for this purpose collection of specimen of hair of the accused may also become necessary. On the same analogy taking the sample of blood might become necessary in order to ascertain the facts which might afford such evidence.
19. As observed by this Court in State v. Sheshappa : AIR1964Bom253 , there is nothing brutal or offensive or shocking in taking blood sample under the protective eye of law. Modern community living requires modern scientific methods of crime detection lest the public go unprotected. Such scientific tests are necessary for proving the guilt as well as innocence of the accused. This is one of the well recognized method adopted in the crime detection all over the world. In this context a reference could usefully be made to the following observing in para 9 of the said judgment :
'We have pointed out before that the section itself contains limitations with regard to the procedure for extracting blood. The question as to whether the conviction of a person based on the result of the involuntary blood-test taken after extracting blood deprived a person of his liberty without due process of law guaranteed by the Fourteenth Amendment of the American Constitution arose for consideration in Breithaupt v. Abram (1957) 352 US 432 : 1 L Ed. 448. The petitioner in that case while driving a pickup truck was involved in a collision with a passenger car. Some of the passengers of the car were killed and the petitioner was seriously injured. A pint whisky bottle almost empty, was found in the glove compartment of the truck. The petitioner was, therefore, taken to a hospital and while he was lying unconscious, the smell of liquor was detected on his breath. On a request by the patrolman, and attending physician, while the petitioner was unconscious, withdrew a sample of about 20 cubic centimeters of blood by use of a hypodermic needle. Subsequent laboratory analysis showed that the blood contained about 17% alcohol. The petitioner was thereafter charged with involuntary manslaughter and in the trial, testimony regarding the blood test and its result, was admitted into evidence, despite the petitioner's objection. This testimony included the evidence of an expert that a person with 17% alcohol in his blood, was under the influence of intoxicating liquor. Although he was convicted, the petitioner did not appeal, but later he sought release from his imprisonment by a petition for a writ of habeas corpus. It was contended that the conduct of the state officers offended the 'sense of decency' and that it was 'brutal' and 'offensive' and was therefore 'shocking' to the 'conscience'. It was also said that the conduct did not comport with traditional ideas of fair play and decency. This argument was not accepted by a majority of the Supreme Court of the U.S. Mr. Justice Clark who delivered the opinion of the majority observed as follows :
'....... there is nothing 'brutal' or 'offensive' in the taking of a sample of blood when done, as in this case, under the protective eye if a physician. To be sure, the driver here was unconscious when the blood was taken, but the absense of conscious consent, without more, does not necessarily render the taking a violation of a constitutional right; and certainly the test administered here would not be considered offensive by even the most delicate. Furthermore, due process is not measured by the yardstick of personal reaction or the sphygmogram of the most sensitive person, but by that whole community sense of 'decency and fairness'. That has been woven by common experience into the fabric of acceptable conduct ..... The blood test procedure has become routine in our every day life. It is a ritual for those going into the military service as well as those applying for marriage licenses. Many colleges require such tests before permitting entrance and literally millions of us have voluntarily gone through the same, though a longer, routine in becoming blood donors'. The majority opinion, therefore was that a blood test taken by a skilled technician is not such 'conduct that shocks the conscience'. The Court also observed that this may not apply to cases where there is indiscriminate taking of blood under different conditions or by those not competent to do so. It was also observed :
'Modern community living requires modern scientific methods of crime detection lest the public go unprotected'. Mr. Justice Clark in conclusion made the following very pertinent observations :
'As against the right of an individual that his person be held inviolable, even against so slight an instruction as is involved in applying a blood test of the kind to which millions of Americans submit as a matter of course every day, must be set the interests of society in the scientific determination of intoxication, one of the great causes of the mortal hazards of the road. And the more so, since, the test likewise may establish innocence, thus affording protection against the treachery of judgment based on one or more of the senses'. This was the view taken by the Supreme Court of U.S. even when the challenge was under the Due Process Clause. So far as our Constitution is concerned, the Courts are not required to go so far and determine whether a certain procedure established by law was brutal or offensive or shocking to the conscience and was, therefore, unreasonable. Infringement of personal liberty or life, if in accordance with the procedure established by law, is not justiciable. In the Prohibition Act, which, as we have pointed out earlier, is brought on the statute book to effectuate the policy of Prohibition, the taking of blood is empowered ton be done only by a registered medical practitioner. It is thus under the protective eye of the law. It is intended to help the scientific determination of intoxication and the results of the test may as well prove innocence as the guilt of the person. We are, therefore, unable to accept the view taken by the learned Magistrate that Section 129-A of the Act is ultra vires Article 21 of the Constitution'.
20. Somewhat similar question fell for consideration of Rajasthan High Court in Mahipal v. State of Rajasthan wherein the question posed was as to whether during the investigation accused could be asked to give specimen hair and whether that will violate the rights guaranteed by Arts. 20(3) and 21 of the Constitution of India.
21. While negativing the contention based on provisions of Article 20(3) of the Constitution of India, Shinghal, J. (as he then was) held that exposing the hair or taking specimen thereof cannot be said to be furnishing evidence. Then in paras 10 and 11 of the said judgment it was observed as under :
'In this state of law, which should apply equally to our country, there can be no justification for the claim of the accused that the impugned order of the learned Magistrate denies them the privilege against self-incrimination guaranteed by Article 20(3) of the Constitution. This is a case in which the question of the identity of the accused will be the main question for consideration and decision. And the recovery of some hair from the place if occurrence has prompted the Investigating Officer to make an effort to utilise that piece of evidence for the purposes of establishing the identity of the participants in the crime, if possible. His effort to make use of that material is quite genuine for it cannot be doubted that, in the case of a person's body, its marks and traits are the main evidence for purpose of its identification and there is no reason why the Investigating Officer should be prevented from making use of it when it is well settled that there is no protection against the exhibition of the body of the accused. The privilege against self-incrimination does not extend to the use of defendant's body as real evidence.
Wigmore (supra) has summarised a number of cases on the question of the privilege against self-incrimination, and the following notes deserve a mention for purposes of the present controversy, -
'State v. Tettaton (1900) 159 Mo. 354, 60 SW 743 (testimony of physicians to the condition of a wound on defendant's head, shaved by compulsion, admissible)' (P. 390); 'State v. Mac Laughlin, (1916) 138 La 958 : 70 SC 925 (murder; no denial of constitutional privilege to use scrappings from under fingernails taken against the will'), (p. 392); Smith v. United States, 194 F 2nd 192 (D.C. Cri. 1950) (homicide and rape, forcibly dyeing defendant's hair for purposes of identification upheld)'. (p. 397), and 'People v. Strauss, (1940) 174 Misc 881, 22 N.Y.S. 155 (motion by district attorney to require defendant to be shaven and have the hair on his scalp trimmed was granted; privilege held inapplicable)' (page 398);
The view taken in these decisions seems with all respect, to be quite correct and forthright and there is not reason why the application of the Investigating Officer should not have been allowed in the present case'.
22. Then while dealing with the contention raised on behalf of the accused based on the provisions of Article 21 of the Constitution of India, the learned Judge further observed as under :-
'It does not require much argument to hold that no inhibition against the deprivation of life is involved in the impugned order of the Magistrate, for it does not impinge on the enjoyment of the life of the accused. So also, the order does not encroach upon the liberty of the accused in the sense in which the word has been used in the Constitution'.
It was also held by the learned Judge in the said decision that it is permissible to hold further investigation with the approval of the Court, even after the challan has been presented in the case and in support of this proposition a reference was made to the earlier decision of the Rajasthan High Court in Narendra Singh v. The State, .
23. The Andhra Pradesh High Court in Ananth Kumar Naik's case has also taken a view that medical examination of the arrested person under Section 53 is an investigation within the meaning of Section 2(h) of the Code. Then while dealing with the contention as to whether examination of the person by a medical practitioner would include testing his blood etc., the Andhra Pradesh High Court has observed as under :
'The further objection of Shri Ayyapu Reddy was that taking samples of blood and semen does not come within the scope of examination of the person of the arrested person. The said words take in only physical examination of the body. I cannot agree. Examination of a person by a medical practitioner must logically take in examination by testing his blood, sputum, semen, urine etc. To a question put by me, Sri Ayyapu Reddy has said that taking an x-ray photograph or electro-cardiograph is not exclude from the examination of the person of the arrested person. When that much is conceded, I see no reason why examination of blood and semen is outside the scope of Section 53.
In B. Rami Reddy v. State of A.P. Madhava Reddy, J., held that the signature of an arrested person can be taken for comparison and Article 20(3) of the Constitution does not stand in its way.
Justice Ramachandra Raju likewise held in M. Narayanswami v. Yangatanna, : AIR1975AP88 that taking thumb impression of an arrested person is not precluded by Article 20(3).
For these reasons, I cannot agree that the impugned direction that the blood and semen samples of the petitioner should be taken comes within the mischief of testimonial compulsion.
The next argument was that taking samples of blood and semen inflicts torture and pain on an under-trial prisoner and it was tantamount to an offence against the accused. It was further argued that there was no provision in the Cri.P.C. to compel under-trial prisoners to give samples of blood and semen. What I have stated above shows that under Sections 53 and 54 of the new Code there is such a power. In fact Section 53 provides that while making such an examination such force as is reasonably necessary for that purpose may be used. Therefore, whatever discomfort that may be caused when samples of blood and semen are taken from an arrested person it is justified by the provisions of Sections 52 and 54, Cri C. P'.
24. Similar view has also been taken by the Allahabad High Court in Jamshed v. State of U.P. wherein it is observed by the Division Bench of Allahabad High Court :
'...... We are therefore of the view that there is nothing repulsive or shocking to conscience in taking the blood or the appellant in the instant case in order to establish his guilt. So far as the question of causing hurt is concerned, even causing of some pain may technically amount to hurt as defined by Section 319 of the Indian Penal Code. But pain might be caused even if the accused is subjected to a forcible medical examination. For example, in cases of rape it may be necessary to examine the private parts of the culprit. If a culprit is suspected to have swallowed some stolen article, an emetic may be used and X-ray examination may also be necessary. For such propose the law permits the use of necessary force. It cannot, therefore, be said that merely because some pain is caused, such a procedure should not be permitted.'
Then after making a reference to the provisions of Section 53 of the Code of Criminal Procedure, the Allahabad high Court has observed as follows :
'This new provision of law is akin to the provision which was incorporated in the Bombay Prohibition Act referred to above. This new provision of law authorises a police officer to arrange for the medical examination of an accused for the purpose of collecting evidence and also permits the use of such force as is reasonably necessary for that purpose. It may be said that examination of person should not include taking of blood. We do not think that such a restricted meaning should be given to the phrase 'examination of a person'.
There seems to be no reason for holding that examination of a person should mean only the examination of the skin and what is visible on the body. If it is necessary to make an examination of any organ inside the body for the aforesaid purpose, we think that this is also permitted by Section 53(1) of the Code of Criminal Procedure, 1973. As has been noted above, if an accused has swallowed some stolen article, an X-ray examination may be necessary. Similarly in cases of gun shot wounds it may be necessary to find out whether there are any pellets or other marks inside the body. It should not, therefore, be confined to examination of the skin alone. It is true that section 53 refers only to examination on the request of a police officer, but if such a power is given to a police officer, the Court should have a wider power for the purposes of doing justice in criminal cases. The other relevant provision in the Criminal Procedure Code is Section 367, sub-section (1) which runs as under :
'If when such proceedings are submitted, the High Court thinks that a further inquiry should be made into, or additional evidence taken upon any point bearing upon the guilt or innocence of the convicted person, it may make such inquiry or take such evidence itself, or direct it to made or taken by the Court of Session'. This special provision has been made in case where death sentences have been awarded. In other cases, an appellate court has the power to take additional evidence, but it seems that, so far as cases of death sentences are concerned, the Legislature intended to confer a wider power on the High Court, namely that it may not only take additional evidence but can also make a further enquiry into any point bearing upon the guilt or innocence of the convicted person. If the law gives an authority to make further enquiry, it can also be deemed to have given ancillary powers to the High Court to make such directions and take such steps as may be necessary for the purposes of such further inquiry. Section 482 of the Criminal Procedure Code provides for inherent powers of the High Court to make such orders as may be necessary to secure the ends of justice. We, therefore, fell that these provisions of law as embodied in the Criminal Procedure Code, fully cover such a procedure and although there is no specific provision, yet we think that the taking of blood for the aforesaid purpose is warranted by these provisions of law. The second contention of the learned counsel for the appellant, therefore, also fails'.
25. It is no doubt true that this decision of Allahabad High Court is not followed by the single Judge of the Calcutta High Court in (1978) 82 C WN 970 G. R. Singhania v. State of West Bengal, but it is not possible for us to accept the view taken by single Judge of the Calcutta High Court for obvious reasons. The Calcutta High Court has not considered the scope of Section 173(8) as well as Section 311 of the Code of Criminal Procedure while construing the provisions of Section 53 of the Code. However, it is pertinent to note that even the single Judge of the Calcutta High Court in G. R. Singhania's case has observed that :
'Prima facie on the basis of the Supreme Court judgment (in State of Bombay v. Kathi Kalu Oghad : 1961CriLJ856 it would appear that taking of blood just like giving thumb impression or impression of foot or palm or finger or specimen writing may not be impermissible and would not come within the mischief of testimonial compulsion. Giving of blood cannot be equated with 'imparting knowledge' by statements oral or writing'.
26. In this context it cannot be for gotten that the examination contemplated by Section 53 of the Code is by registered medical practitioner and not by a laymen, which is to be done at the request of responsible police officer not below the rank of sub-inspector. The medical officer or person authorised is empowered to use such force as us necessary for carrying out such an examination. The examination of 'person of the accused' many times provides clue to establish his innocence also. Section 53 is a new provision incorporated in new Criminal Procedure Code which confers a power upon the investigation machinery to get the person of the accused examined and Section 54 confers such a right on the accused. The expression used in Section 53 i.e. 'examination of his person' will have to be given wider meaning and the provisions of Sections 53 and 54 of the Code cannot be constructed in isolation torn from its context. As observed by the Supreme Court in Sheikh Gulfan v. Sanat Kumar, : 3SCR364 , 'normally, the words used in a statute have to be constructed in their ordinary meaning but in many cases, Judicial approach finds that the simple device of adopting the ordinary meaning of words does not meet the ends of a fair and a reasonable construction. Exclusive reliance on the bare dictionary meaning of words may not necessarily assist a proper construction of the statutory provision in which the words occur. Often enough, in interpreting a statutory provision, it becomes necessary to have regard to the subject-matter of the statute and the object which it is intended to achieve. That is why in deciding the true scope and effect of the relevant words in any statutory provision, the context in which the words occur, the object of the statute in which the provision is included, and the policy underly ing the statute assume relevance and become material. As Halsbury has observed, the words 'should be constructed in the light of their context rather than what may be either their strict etymological sense or their popular meaning apart from that context'. It is equally well settled that the literal construction should not obsess the court, because it has only prima facie preference, the real object of interpretation being to find out the true intent of the law maker and that can be done only by reading the statute as an organic whole, with each part throwing light on the other and bearing in mind the rule in Heydon's case (184) 76 ER 637 which requires four things to be 'discerned and considered' in arriving at the real meaning : (1) what was the law before the Act was passed; (2) what was the mischief or defect for which the law had not provided; (3) what remedy Parliament has appointed; and (4) the reason of the remedy. Thus in the light of these principles we will have to consider the true meaning and effect of the expression used in Section 53 of the Code of Criminal Procedure.
27. The provisions of Sections 53 and 54 are incorporated in new Code on the recommendations of the Law Commission. Section 53 was intended to remove the lacuna in the old Code by reason of which it was not possible to subject an arrested person to medical examination without his consent. The new section makes this possible. It was also thought expedient to have such a provision for facilitating effective investigation. Section 53 imposes an obligation upon the arrested person to subject to medical examination at the instance of the police to help the investigation. Section 54 in its turn confers upon the arrested person a right to have himself medically examined to establish his innocence or to show that he was subjected to torture or pain etc., in the police custody. Since there was no provision in the old Code in that behalf provisions of Sections 53 and 54 are incorporated in the new Code. If the contention raised by the learned counsel before us that the examination of the person will include only superficial external examination of the skin and body is accepted then the very purpose behind the Sections 53 and 54 will be frustrated. Therefore in our opinion Andhra Pradesh as well as Allahabad High Courts were right in taking a view that the expression 'examination of the persion' as used in Section 53 will also include in its import taking of blood sample of the accused for determining his blood group in order to establish his guilt or innocence.
28. Similarly, it will not be correct to say that only because the accused person is released on bail he ceases to be in the custody and therefore powers under S. 53 of the Code of Criminal Procedure cannot be exercised. Only because the bail is granted, the reality is not changed and from that fact alone it cannot be said that he is not a 'person arrested for an offence. A person released on bail is still considered to be detained in the constructive custody of the court through his surety. He has to appear before the court whenever required or directed. Therefore to that extent his liberty is subject to restraint. He is notionally in the custody of the court, and hence continues to be a person arrested. Even in spite of the fact that the accused is released on bail he is still a person arrested on a charge of committing an offence and therefore his medical examination can be carried out under Section 53 of the Code.
29. As already observed Shri Shirodkar, the learned Counsel for the Petitioner, has placed strong reliance on the decision of this High Court in State of Maharashtra v. Dnyanoba Bhikoba Dagade . It appears that in the said case accused was charged with an offence under Section 376 of the I.P.C. An application was made before the learned Magistrate for sending the accused to the medical officer to enable him to extract his blood for analysis. The said application was granted by the learned Magistrate. Then subsequently an application was filed by the accused for cancellation of the earlier order and the said application stood rejected. This order was then challenged by the accused before the Court of Session by filing a Revision Application. The learned Sessions Judge set aside the order passed by the learned Magistrate and held that no power is vested in the Court under Section 53 of the Code to pass any such order directing the accused to submit himself to the medical examination. Against that order the State had come before the High Court. Negativing the contentions raised on behalf of the State the learned Judge took a view that Section 53 does not empower the Magistrate or the Court to issue such directions and in that context the learned single Judge observed as under :
'I am doubtful whether the provisions of this section can be invoked sometime after the person has been arrested and has been released on bail. I am also doubtful whether this section compels a person arrested to allow a medical officer to extract his blood, though it may allow the medical practitioner to otherwise medically examine him. In other words, I am not sure whether the medical examination mentioned in Section 53 includes the extraction of blood of a person arrested. It is however, not necessary for me to decide these two questions on the facts of the present case. It is abundantly clear that the two Magistrates, who passed the impugned orders, had no authority under the provisions of Section 53 to compel the accused to allow the medical practitioner to extract blood from their persons. As I have already mentioned above, there will be an infringement of Art. 21 of the Constitution of India if the person who is not authorised by law to order extraction of blood orders extraction of blood in any manner which is not again authorised by law. In the instant case Section 53 of the Criminal P.C. 1973 does not authorise the Magistrate to pass an order compelling the accused to submit themselves to the medical examination by a medical practitioner for the purpose of extraction of blood from their persons. The orders passed by the two Magistrates in the present petitions were patently illegal and without jurisdiction and were rightly set aside by the learned Additional Sessions Judge'.
30. It is quite clear from these observations that it was not necessary for the learned Judge to decide the questions now raised before us in the said case, though it is no doubt true that the learned Judge has expressed a doubt as to whether the medical examination mentioned in Section 53 would include extraction of blood of person arrested. It is further clear from the bare reading of the said judgment that the various aspects of the matter including the decision of the Supreme Court in : 1979CriLJ1346 , Ram Lal Narang v. State (Delhi Admn.) and the decisions of the Allahabad High Court in , Jamshed v. State of U.P. and of Andhra Pradesh High Court in , Ananth Kumar Naik v. State of A.P. were not brought to the notice of the learned Judge. Once it is held that Section 53 of the Code of Criminal Procedure does confer a right upon the investigating machinery to get the arrested persons medically examined by the medical practitioner and the expression used in Section 53 includes in its import the taking of sample of the blood for analysis, then obviously the said provision is not violative of the guarantee incorporated in Article 21 of the Constitution of India. In that case even if it is assumed that the person is deprived of his life or personal liberty by this process, it cannot be disputed that he is deprived of the same in accordance with the procedure established by law. Somewhat similar question was considered by this court in State v. Seshappa : AIR1964Bom253 , while deciding the validity of Section 129(A) of the Bombay Prohibition Act in the context of Article 21 of the Constitution of India, The provision made in Section 53 of the Code is intended to help the investigation of the crime on the scientific lines so as to enable collection of evidence to prove the guilt or innocence of the person. In our opinion the modern community living requires such modern scientific methods of crime detection, lest the public go unprotected.
31. It is common experience that the blood test of a person has become routine in our country also and therefore there is nothing brutal or offensive or shocking in taking blood sample under the protective eye of law, by a medical practitioner. In this view of the matter the order passed by the learned Additional Sessions Judge is wholly justified by the facts and circumstances of the case and calls for no interference in the revisional jurisdiction of this Court.
32. Hence the Revision Petition fails and is dismissed.
33. Revision dismissed.