D.S. Mathur, J.
1. This is a petition under Article 226 of the Constitution of India by Balraj Bhalla for the issue of a writ in the nature of certiorari to quash the order dated 25-10-1956 of Sri Ramesh Chandra Nigam, Magistrate First Class, Kanpur, respondent No 1, in criminal case No. 7 of 1954 (State v. R. K. Nigam and Ors.), whereby he directed that the impressions of thumb and toes of the petitioner be taken for purposes of comparison and report by an expert. A request was also made for the issue of a writ in the nature of mandamus directing respondent No. 2, namely, the Senior Superintendent of Police, Kanpur, to forbear from taking any further steps in the matter of impressions of thumb and toes of the petitioner and to return the aforesaid impressions to the petitioner.
There was a third request that a writ of mandamus be issued commanding the respondent No. 1 to refrain from admitting the evidence of impressions of thumb and toes of the petitioner in the aforementioned case.
2. None of the respondents filed a counter-affidavit, though they put in appearance through the Standing Counsel. In the circumstances, the facts as mentioned in the petition and the affidavit accompanying thereto can be regarded as correct.
3. The petitioner's case is that he is an employee of Swadeshi Cotton Mills Company, Limited, Juhi, Kanpur, and during the year 1954 was work ing as a clerk in the Employees State Insurance and Provident Fund section of the said Mills. Leave wages to the extent of Rs. 30,000/- are said to have been misappropriated by certain employees in the leave-with-wages section of the aforesaid Mills, The petitioner had no connection with this section having been employed in another section at the time of the alleged embezzlement. During the year 1954, five persons were arrested in respect of the said embezzlement, one of whom was Raj Kumar Nigam.
He turned an approver and in his statement implicated the petitioner and three other persons. According to the approver, the petitioner was a participant in the conspiracy to misappropriate the aforesaid amount by forging thumb impressions ofworkers of the Company to whom leave wages weredue and thereby did misappropriate the amount. Itwas alleged that the petitioner had put his thumbimpressions on certain vouchers. The petitionersurrendered himself in Court on 21-9-1956, whenhe was released on bail.
4. On 27-9-1956 the prosecution presented an application before the respondent No. 1 with therequest that the impressions of thumb and toes of the petitioner be taken in order to facilitate the investigation of the case. On 25-10-1956 the petitioner filed an application taking exception to the obtaining of impressions of his thumb and toes. A true copy of the application so moved is Annexure A to the affidavit. Respondent No. 1 rejected the application of the petitioner under order, Annexure B. In compliance with the orders of the Court, the impressions of thumb and toes of the petitioner were taken by the prosecution in spite of his verbal protests.
5. On 16-11-1956, the petitioner, on the advice of the counsel, presented an application to respondent No. 1 requesting him to direct the prosecution to refrain from taking any further steps in the matter of thumb impressions. The application moved is Annexure C. No final orders were passed on the application. The petitioner moved another application on 1-12-1956 requesting respondent No. 1 to order that the investigation should not make use of the aforesaid impressions. This application has not yet been disposed of.
6. The petitioner's case is that the order of respondent No. 1 and also the use which is being made of the impressions of his thumb and toes are in contravention of Article 20(3) of the Constitution of India. The petitioner also challenged the legality of Sections 5 and 6 of the Identification of Prisoners Act, (Act No. 33 of 1920), and of the second and third part of Section 73 of the Evidence Act.
7. For purposes of the present proceeding, it is not necessary to express any opinion on the legality of Sections 5 and 6 of the Identification of Prisoners Act, No. 33 of 1920, for the simple reason that the impressions of thumb and toes in question were taken under orders of respondent No. 1 under the provisions of Section 73 of the Evidence Act, and not under Sections 5 and 6 of the Identification of Prisoners Act. In this connection it may, however, be observed that thumb-marks of persons are taken under Sections 5 and 6 not to use them in evidence, but to have a record of criminals undergoing trial or who had been convicted of a criminal offence. It cannot, therefore, be said that by taking the thumb-impressions the persons concerned are being compelled to be witnesses against themselves.
8. The contention of the learned counsel for the petitioner, in brief, is that a person accused of any offence has been given the fundamental right under Article 20(3) of the Constitution not to be compelled to be a witness against himself, that is, he cannot be compelled to give evidence against himself; and when he is being directed to give his impressions of thumb and toes for purposes of investigation of the crime, he is in substance being directed to give evidence which would be used against him during the trial.
Reliance was placed upon the Supreme Court case of M. P. Sharma v. Satish Chandra, AIR 1954 SC 300. The above question with reference to handwriting of an accused person was recently considered by a Division Bench of this Court in the case of Ram Swarup v. State, AIR 1958 All 119. Therein brothers Raghubar Dayal and James JJ. expressed an opinion which may be summarised as below :
'The order directing an accused to furnish his specimen writing under Section 73, Indian Evidence Act, is not hit by the provisions of Article 20, Clause (3) of the Constitution. The accused cannot, therefore, refuse to give the specimen writing when ordered by the Court to give it. If he does refuse and the Court can draw a presumption against him underany other provision of law, I do not think that that would be illegal. It will not amount to compelling the accused to be a witness against himself. The Court does not force the accused to refuse to give the specimen writing. That is the accused's own voluntary conduct. The Court, on the other hand, does want himself to furnish a specimen writing.'
With this view I am in full agreement, though I may add with due respect that certain observations made by brother Raghubar Dayal J. are obiter dicta, and, in my opinion, cannot be considered to be a correct exposition of the law; for example, the observation that the specimen writing cannot be treated as evidence in view of the definition of 'evidence' contained in Section 3 of the Indian Evidence Act. It is true that at the initial stage the specimen writing will not be inspected by the Court and will be used only for purposes of comparison with the disputed handwriting.
But if the Expert expresses an opinion that the two handwritings are of the same person, this part of the evidence would be tendered against the accused and at that stage the Court would, without fail, inspect not only the disputed handwriting but also the specimen handwriting. In other words, the specimen handwriting taken will be a document which would be produced for inspection of the Court and it will, as laid down in Section 3, be 'evidence'. In case the document amounts to an evidence against the accused, he cannot, of course, be compelled to give evidence against himself, that is, to be responsible for the preparation of that document.
9. If we consider thumb-impressions or impression of toes from a narrow outlook, they will be nothing but an expression of ridges etc. on the thumb or toes of the accused, but it cannot be lost sight of that these ridges would be compared with the ridges existing in disputed impressions and for purposes of such comparison the ridges become material documentary evidence which can be used against the accused. In these circumstances, when ridges are printed on paper, what is being done is that some evidence is being created which may later on be used to convict the accused, of course, after comparison with the disputed one. I am, therefore, of opinion that the observations of the Supreme Court should not be considered with a narrow outlook and they must be given that weight which they always deserve.
10. Brother Raghubar Dayal J. was also of opinion that the basic principle in favour of the doctrine of protection against testimonial compulsion was that whatever evidence was furnished by the accused under coercion, might not be true and, therefore, any reliance on such evidence would be dangerous. It was also indicated that there was a possibility of the accused creating false document under compulsion. The object of Article 20(3) of the Constitution cannot be narrowed down to this extent. At occasions the accused may be compelled to make a false statement or to create false documentary evidence; but the handicap to which the accused can be put if he can be compelled to be a witness against himself is that during his cross-examination he may collapse and in the end admit facts which are true and which would support the prosecution.
His conduct and also the circumstances in which the crime was committed may come out in such a light that such factors may be used against him and thereby not only corroborate but establishthe prosecution case. In other words, another basic principle in favour of the doctrine of protection in respect of testimonial compulsion is that the accused should not be so placed that he has to admit true acts against his will. In the circumstances, the obtaining of evidence of the nature of impressions of thumb and toes can amount to compelling the accused to be a witness against himself.
11. However, I am, as mentioned above, in full agreement with the final opinion expressed in the above case and which has been reproduced in full in the beginning of this judgment. When the Court directs the accused to give his impressions of thumb and toes, no compulsion is being put upon the accused to comply with the order. It is for the accused to decide whether he would comply with the order or decline to give his impressions. If he voluntarily gives his impressions of thumb and toes, it cannot be said that it was a case of testimonial act under compulsion.
The accused volunteers to give his impressions, of course, in compliance with the orders of the Court, and the act remains a voluntary one which would not be hit by Article 20(3). If the accused refuses to give the impressions he cannot be compelled to comply with the order, though, of course, Courts can draw a presumption against him to the extent it may be permissible under Section 114 of the Indian Evidence Act or under any other law.
12. This point about the drawing of presumption can be clarified still further. The drawing of a presumption will not mean that the Court shall presume from the conduct of the accused that he is guilty. Such a conduct can be used merely to corroborate evidence, oral, documentary or circumstantial which may have been adduced in the case, to put it differently, if prosecution adduces evidence which may be of a weak nature, it can be accepted by the Court, as one may say by drawing a presumption from the conduct of the accused, namely, that if that evidence was not true, he would have complied with the order of the Court and given his impressions of thumb and toes for comparison.
In other words, the conviction of the accused would not be based upon a presumption which can be drawn against him, and such a presumption shall be used merely as corroborative circumstance. I have intentionally made these observations so that the accused may not, merely for the sake of refusal, decline to give their specimen writings or impressions of thumb and toes. They should be aware of the difficulty in which they would be placed by their conduct on wrong advice being tendered to them.
13. Considering that I have expressed my opinion to an extent which can be said to be somewhat beyond the scope of the present petition, it will be desirable to refer to another argument which was put forward by the learned counsel for the petitioner. To meet the above point, it was said that when the accused had a constitutional right, i.e. a fundamental right given under the Constitution, not to be compelled to be a witness against himself, no presumption could be drawn against him. This contention is based upon a narrow interpretation of Article 20.
If this view is accepted, the Courts will not be in a position to use the conduct of the accused in not giving any explanation to the evidence adduced by the prosecution in the case and, in one way, the very object of Section 342 Cr. P. C. would be frustrated. Section 342 was incorporated to enable the accused to give his explanation on the evidence or circumstances which the prosecution desires to useagainst him. If he gives no explanation, the evidence as adduced by the prosecution can be accepted; but if any explanation is furnished, it shall have to be kept in mind as evidence for the accused.
This is actually what was in my mind when I made the above observations by way of warning to the accused who were trying to seek protection, for insufficient reasons, under Article 20(3). By refusing to give impression, the Court shall not draw any direct inference against them. They will merely use the conduct of the accused in the same manner as their inability to furnish any explanation at the stage of their examination under Section 342, Cr. P. C.
14. To sum up where the accused refuses to give the impressions of thumb and toes in compliance with the order of the Court, he cannot be compelled to do so, and the only remedy available to the prosecution is to later on urge before the Court that a presumption in accordance with the law be drawn against him (accused). In the present case, the petitioner has alleged that the impressions of his thumb and toes were taken by the prosecution in spite of his verbal protests. He did move an objection in writing on 16-11-1956 followed by another on 1-12-1956.
As these facts have not been controverted, the only inference which can be drawn is that the petitioner had refused to comply with the order of respondent No. 1 and his impressions were taken under compulsion. This was in contravention of Article 20(3) of the Constitution, and for this reason the impressions already taken cannot be used in evidence nor can the prosecution act upon such impressions. The petition is thus one which should be allowed, though in the interest of justice and also in the interest of the petitioner, it would be proper to observe that if the petitioner no longer refuses to give his impressions, he may make such a statement before respondent No. 1 so that later on he may not, in any way, be prejudiced or put to unnecessary expenses.
It is apparent that if the prosecution leads evidence during the trial, the petitioner would, if the disputed impressions are not his, move the Court that his impressions be taken afresh and sent to an expert for comparison with the disputed ones. The comparison of impressions of thumb and toes during the investigation is made at the State expense while at the stage of defence, at the instance of, and also at the expense of the accused.
15. The petition is hereby allowed in part andit is ordered that a writ of mandamus be issueddirecting respondent No. 2, the Senior Superintendent of Police, Kanpur, to forbear from taking anyfurther steps with regard to impressions of thumband toes of the petitioner already taken and to return them to the petitioner. In other words, theimpressions cannot be used for comparison with thedisputed ones and if any opinion has already beenobtained on the basis of these impressions, suchopinion would not be proper evidence admissibleagainst the petitioner. Costs on parties.