Sambasiva Rao, J.
1. If an accused person is directed to undergo blood and seminal test for the purpose of investigation, would it amount to testimonial compulsion coming within the prohibition laid down in Article 20(3) of the Constitution? Whether such a process of investigation would be tantamount to inflicting torture and pain on the person of the accused. Whether there is any provision in the Criminal Procedure Code to direct an accused person to give samples of his blood and semen and whether the criminal court has jurisdiction to give such a direction. These are questions that arise for consideration in this petition.
2. The 5th accused has filed this petition challenging the direction of the Metropolitan Sessions Judge, Hyderabad, that the 5th accused do appear before the Director of Forensic Laboratory, Hyderabad, to enable that Director to take samples of blood and semen. This is a direction granted by the learned Sessions Judge on a petition made by the prosecution Under Section 432 Cr. P. C. for the above direction not only in regard to the 5th accused, who is the present petitioner, but also the first accused so that the prosecution could complete the investigation.
3. Some persons including the petitioner were charged with the offences of abduction and rape. It is alleged by the prosecution that they abducted a woman and took her into the house of the 1st accused in the night of 15th of October, 1976 in Hyderabad. The Divisional Detective Inspector on getting scent of this offence went to the house of A-l and knocked at the door on which it was opened. Inside he found a woman lying naked en a table and A-l standing there. There were three persons in the ante-room, The woman complained that she had come from Eluru and that night while she was returning from a picture house, she had been forcibly taken away by the five accused in a car driven by the present petitioner. She was taken to the house of A-l where A-5 raped her. While A-l began to do the same thing police came. Her Skirt was blood-stained and there was semen on the bed-sheet. After the accused were charge-sheeted before the 4th Metropolitan Magistrate, they were released on bail unconditionally. The prosecution filed a petition that A-l and A-5 be directed to be produced before the Director of Forensic Medicine Laboratory for taking samples of blood and semen. This was allowed by the learned Magistrate. On the petition of A-l this Court quashed that direction on the ground that such direction made by the Magistrate amounted to alteration of conditions of bail imposed by the learned Metropolitan Sessions Judge. Any cancellation or alteration of the conditions of bail could only be made by the Sessions Judge who had granted the bail or the High Court Under Section 439(2) Cr. P. C. Therefore, the order of the learned 4th Metropolitan Magistrate was clearly without jurisdiction and illegal. Thereafter, the prosecution applied to the Metropolitan Sessions Judge himself with the same request as stated above and that learned Judge granted the request of the prosecution in so far as the 5th accused, who is the present petitioner, is concerned.
4. Sri E. Ayyapu Reddy appearing for the petitioner has raised the points which I have mentioned even at the threshold of my order. I will now deal with them one after the other.
5. The argument relating to testimonial compulsion is founded on Clause (3) of Article 20 of the Constitution. That clause declares;
No person accused of any offence shall be compelled to be a witness against himself.
It was contended that the prohibition against an accused being a witness against himself cannot be limited to mere giving evidence. The bar is a very comprehensive one taking within its sweep even medical examinations, Reliance was placed on M. p. Sharma v. Satish Chandra : 1978(2)ELT287(SC) ; Deoman v. The State : AIR1959Bom284 ; State of Bombay v. Kathi Kalu : 1961CriLJ856 State of Gujarat v. Shamlal AIR 1965 SC 1251 : 1965 (2) Cri LJ 256 and a single Judge's Judgment of the Gujarat High Court in Najabhai v. State of Gujarat 1972 Cri LJ 1605 (Guj).
6. In M. P. Sharma v. Satish Chandra 1954 Cri LJ 865 (SC), (Supra) the Supreme Court observed (at p. 869 of Cri LJ (SC)):
'To be a witness' is nothing more than 'to furnish evidence', and such evidence can be furnished through the lips or by production of a thing or of a document or in other modes.
The Supreme Court said that there is no reason to confine the content of the constitutional guarantee to barely literal import. Stating that the protection against self incrimination continues more or less the same as in English common law so far as the accused and the production of the documents are concerned, the Supreme Court laid down (at p. 870 of Cri LJ) (SC):
Considered in this light, the guarantee under Article 20(3) would be available to persons against whom a first information report has been recorded as accused therein. It would extend to any compulsory process for production of evidentiary documents which are reasonably likely to support a prosecution against them.
7. The case before the Supreme Court was in respect of production of documents relating to the accused. This decision was followed by the Bombay High Court in Deoman v. The State 1959 Cri LJ 825 (Bom) (supra) and by the Supreme Court itself in State of Bombay v. Kathi Kalu 1961 (2) Cri LJ 856 (SC) (supra), and State of Gujarat v. Shyamlal 1965 (2) Cri LJ 256 (SC) (supra).
8. A single Judge of the Gujarat High Court in Najabhai v. State of Gujarat 1972 Cri LJ 1605 (Guj) (supra) extended the scope of this bar in regard to compelling the accused to submit himself to medical examination also; one of the reasons assigned by the learned Judge for coming to this conclusion is that there was no provision in the Criminal Procedure Code under which a Court can compel an accused person to get himself me dically examined.
9. However, the majority view in State of Bombay v. Kathi Kalu 1961 (2) Cri LJ 856 (SC) (supra) will have to be noticed in this connection. According to that view, 'to be a witness' is not equivalent to '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. The observation of the Supreme Court in M. P. Sharma v. Satisih Chandra 1954 Cri LJ 865 (SC) (supra) that Section 139 of the Evidence Act has no bearing on the connotation of the word 'witness' is not entirely well founded in law. The majority opinion further held that 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 'to be a witness'. It further held;
'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.
10. According to this majority view of the Supreme Court, the bar against testimonial compulsion is against imparting knowledge in respect of relevant facts by an oral statement or a statement in writing made or given in Court or otherwise. Giving specimen signature or handwriting or thumb impressions of fingers or palm or foot or showing parts of the body by way of identification are not included in the expression 'to be a witness'.
11. Evidently bearing all these aspects in mind the Parliament included a new provision in the Cri. P. C. of 1973 in Section 53. Its marginal note is:
Examination of accused by medical practitioner at the request of police officer.
The section reads:
53. (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 below 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 Section 54, 'registered medical practitioner' means a medical practitioner who possesses any recognised medical qualification as denned in Clause (h) of Section 2 of the Indian Medical Council Act, 1956, and whose name has been entered in a State Medical Register.
12. Section 54, in its turn, provides for an examination of the arrested person by a medical practitioner at the request of the arrested person. Now, according to Sub-section (1) of Section 53 an arrested person can be lawfully subjected to medical examination of his person by a registered medical practitioner on the request of a police officer not below the rank of a Sub-Inspector if there are reasonable grounds for believing that the examination of his person will afford evidence as to the commission of the offence. The lacuna in the old Code as pointed out by the Gujarat High Court is thus now removed by making it lawful to subject an arrested person to medical examination. If the requirements of Sub-section (1) are satisfied, then such an examination is lawful.
13. Likewise, Section 54, Cr. P. C. enables an arrested person to seek a medical examination and the Magistrate with competent jurisdiction shall grant the request of the arrested person for the medical examination unless he considers that the request is made for the purpose of vexation or delay or for defeating the ends of justice. Thus under the new Code provision is made for the medical examination of an arrested person at the instance of a police officer of a proper rank and also at the instance of the arrested person himself. Such an examination necessarily forms part in investigation as defined in; Section 2(h) of the Code. According to the said definition, 'investigation' includes all the proceedings under the 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. Subjecting an arrested person to medical examination Under Section 53 is a proceeding under the Code and therefore forms part of investigation.
14. Sri. Ayyapu Reddy endeavoured to get over the obstacle raised by Section 53, Criminal P. C. in the way of his contention by pointing out firstly that the present petitioner was not an arrested person. This cannot be countenanced at all because he had been certainly arrested and taken into custody of the police; only he was released on bail by the Court. Granting bail does not take away from the reality of the situation that the petitioner had been arrested and is an accused person.
15. The next submission was that Sections 53 and 54 contemplate medical examination by a registered medical practitioner. The Director, to whom the petitioner was sought to be sent for examination, is not a medical practitioner. The learned Public Prosecutor states that the Director is a medical graduate and has many other qualifications, that he is a registered medical practitioner within the meaning of Section 2(h) of the Indian Medical Council Act, 1956 and that his name has been entered in the State Medical Register. I see no reason to doubt this statement made by the learned Public Prosecutor. Therefore, this objection also fails.
16. The further objection of Sri. 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 excluded 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.
17. In B. Rami Reddy v. State of A. P. 1971 (2) APLJ 174 : 1971 Cri LJ 1591 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.
18. Justice Ramachandra Raju likewise held in M. Narayanaswami v. Y. Yangaltanna : AIR1975AP88 that taking thumb impression of an arrested person is not precluded by Article 20(3).
19. 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.
20. 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 53 and 54, Cr. P. C.
21. The further submission was that the learned Metropolitan Sessions Judge had no power to issue such a direction. In this connection Section 437(3), Cr. P. C. has been relied on. It was argued that only the three conditions mentioned in that Sub-section can be imposed by the Court. Section 437 relates only to cases where bail may be taken in case of non-bailable offences. It has no application to the present case. In any case, under Clause (c) of Sub-section (3) a condition 'otherwise in the interests of justice' can be imposed. This direction is necessary for investigation.
22. Lastly it was argued that examination of the blood and semen of the petitioner does not serve any useful or practical purpose. It is a matter which should be decided by the prosecution and the Court. The charge against the petitioner is that he had raped a woman and that semen was found on the bed-sheet. Evidently the prosecution wanted to compare the semen found on the bed-sheet with the semen of the petitioner who is alleged to have committed the rape. It may or may not yield results but it is far fetched to say that such an examination has no meaning and has no practical use.
23. Thus, none of the objections taken to the impugned order of the learned Metropolitan Sessions Judge, appeals to me. I consequently dismiss this petition.