P.N. Shinghal, J.
1. This a reference by Sessions Judge, Jaipur City, dated April 30, 1970, for quashing the order of Special Magistrate, Jaipur, dated April 6, 1970. In order to appreciate the controversy, it is necessary to state some of the facts bearing on it.
2. One Dilip Singh is alleged to have been beaten in room No. 42 of Vivekanand Hostel, in Jaipur, on February 3. 1970, at about 2.30 p.m. The First Information Report of the incident was lodged the same day at Police Station Gandhinagar, and a case was registered for offences Under Sections 307 and 452 read with Section 149, and Section 148, IPC The room was inspected by the Investigating Officer on February 4, 1970, in the presence of 'motbirs', and some hair were found on and under the bed of Dilip Singh and on the wall. They were taken in police custody under a memorandum (B/76) for purposes of comparison. Dilip Singh succumbed to his injuries on February 14, 1970. The investigation of the case was then made over to the Central Bureau of Investigation, Government of India, and the case was altered to one for offences Under Sections 148, 302, 307, 453 read with Section 149 and Section 120B, IPC During the course of the investigation, the Deputy Superintendent of Police, Central Bureau of Investigation, made an application on March 12, 1970, to the Special Magistrate, stating that it was essential for purposes of investigation that the hair which had been recovered from the scene of occurrence should be examined by experts and compared with the hair of the 'principal accused' like Vijay Punia and Mahipal Maderna 'with a view to fix up the identity of the hair recovered by the police from the scene of occurrence'. It was prayed that accused Vijay Punia and Mahipal Maderna may be called and directed to give a few specimen of their hair in the presence of the court for that purpose. The learned Magistrate allowed the application and recorded an order to that effect on April 6, 1970. Mahipal Maderna and 'Vijay Punia filed an application before the Sessions Judge for revision of that order, and this is how the present reference has been made by the Sessions Judge for quashing the order.
3. It has been argued by Mr. Bhimraj, learned Counsel for accused Vijay Punia, that the reference should be accepted for the reason that the order of the learned Magistrate violates the fundamental right of the accused under Article 20(3) of the Constitution inasmuch as it compels each one of them to be a witness against himself. Reliance for this submission has been placed on State of Bombay v. Kathi Kalu Oghad : 1961CriLJ856 , Pritam Singh v. State of Punjab : 1956CriLJ805 and Rochin v. People of California, (1952) 342 US 165. The learned Counsel has further argued that the Investigating Officer could make an order for the production of the hair only Under Section 94 (1), Criminal P.C. but that section does not apply to the accused as has been held in State of Gujarat v. Shyamlal Mohanlal Choksi A.I.R. 1965 SC 1251.
4. Now Clause (3) of Article 20 of the Constitution provides as follows:-
20 (3). No person accused of any offence shall be compelled to be a witness against himself.' In the United States of America also, the immunity against self-incrimination is constitutional, and the Fifth Amendment provides, inter alia, as follows,-No person ... shall be compelled in any criminal case, to be a witness against himself.
It will thus appear that the provision in our Constitution is similar to that in the Fifth Amendment of the American Constitution, so that it will be profitable to examine the argument of the learned Counsel in the light of the decisions in this country and the United States.
5. The nature and the meaning of the aforesaid privilege against self-incrimination have been considered at length in 8 Wigmore, Evidence Section 2263 - (McNaughton rev. 1961), and it has been stated as follows,-. it is not merely any and every compulsion that is the kernel of the privilege, in history and in the constitutional definitions, but testimonial compulsion. The later idea is as essential as the former .
It has then been further stated in Section 2264 (supra) that while it is universally conceded that the production of documents or chattels by a person in response to a subpoena, or to a motion to order production, or to other form of process relying on his moral responsibility for truthtelling, may be refused under the protection of the privilege, documents or chattels obtained from the person's control without the use against him of process relying on his truthtelling are not within the scope of the privilege. As Mr. Justice Holmes said in Johnson United States, (1913) 228 US 457 'a party is privileged from producing the evidence but not from its production'.
6. In our country, their Lordships of the Supreme Court have laid down in M. P. Sharma v. Satish Chandra : 1978(2)ELT287(SC) that, broadly stated, the guarantee in Article 20(3) is against 'testimonial compulsion', but there is nothing to confine the content of the guarantee to oral evidence in the court-room and that it may well extend to compelled testimony previously obtained against him, as also to any compulsory process for the production of evidentiary documents which are reasonably likely to support a prosecution against him. It has further been laid down that neither the search nor the seizure are acts of the occupier of the searched premises, for 'they are acts of another to which he is obliged to submit and are, therefore, not his testimonial acts in anv sense'.
7. The matter again came up for consideration in A.I.R. 1961 SC 1808 and, while considering the earlier judgment in M. P. Sharma's case : 1978(2)ELT287(SC) , their Lordships have held that the expression 'to be a witness' in its original grammatical sense means giving oral testimony in court, but that the 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. Their Lordships have taken note of the observation in M, P. Sharma's case : 1978(2)ELT287(SC) that 'to be a witness' means 'to furnish evidence' and includes not only oral testimony or statements in writing of the accused but also production of a thing or of evidence by other modes, and have observed that it may be that their court did not intend to lay down that 'calling upon a person accused of an offence to give his thumb impression, his impression of palm or fingers or of sample handwriting or signatures comes within the ambit of 'to be a witness' which has been equated to furnishing evidence.' In paragraph 1.0 they have laid down the law as follows,-
To be a witness' may be equivalent to 'furnishing evidence' in the sense of making oral or written statements, but not in the larger sense of the expression so as to include giving of thumb impression or impression of palm or foot or finger or specimen writing or exposing a part of the body by an accused person for purpose of identification. 'Furnishing evidence' in the later sense could not have been within the contemplation of the Constitution- makers for the simple reason that though they may have intended to protect an accused person from the hazards, of self-inerimination, in the light of the English Law on the subject - they could not have intended to put obstacles in the way of efficient and effective investigation into crime and of bringing criminals to justice. The taking of impressions of parts of the body of an accused person very often becomes necessary to help the investigation of a crime. It is as much necessary to protect an accused person against being compelled to incriminate himself, as to arm the agents of law and the law courts with legitimate powers to brine offenders to justice.
Their Lordships have also dealt with the character of the self-incriminating evidence and made the following observation,-
In order that a testimony by an accused person may be said to have been self-incriminatory, 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. A specimen handwriting or signature or finger impressions by themselves are no testimony at all, being wholly innocuous., because they are unchangeable except in rare cases where the ridges of the fingers or the style of writing have been tampered with. They are only materials for comparison in order to lend assurance to the court that its inference based on other pieces of evidence is reliable. They are neither oral nor documentary evidence but belong to the third category of material evidence which is outside the limit of 'testimony'.
The law has thus been well settled by the above pronouncements of their Lordships of the Supreme Court.
8. As in the present case I am concerned with the identification of a part of the body of the accused, namely their hair, exposing the hair or taking specimen thereof cannot be said to be 'furnishing evidence'.
9. It may be mentioned that while dealing 'with the bodily condition of the accused, his claim to the privilege of the Fifth Amendment (extracted above) has been answered as follows in a Wigmore. Evidence Section 2265 - (Me-Naughton rev. 1961) (p. 386).-
Section 2265. Bodily condition (clothes, features, fingerprints, medical examination, etc.). If an accused person? were to refuse to be removed from the jail to the court-room for trial, claiming that he was privileged not to expose his features to the witnesses for identification, it is not difficult to conceive the judicial reception which would be given to such a claim. And yet no less a claim is the logical consequence of the argument that has been frequently offered and occasionally sanctioned in applying the privilege to proof of the bodily features of the accused.
The limit of the privilege should be plain. From the general principle it results that an inspection of the bodily features by the tribunal or by witnesses does not violate the privilege because it does not call upon the accused as a witness - i. e., upon his testimonial responsibility. That he .may in such cases be required sometimes to exercise muscular action - as when he is required to take off his shoes or roll up his sleeve - is immaterial, unless all actions were synonymous with testimonial utterance; for, as already observed, not compulsion alone is the component idea of the privilege, but testimonial compulsion. What is obtained from the accused by such action is not testimony about his body, but his 'body itself. Unless some attempt is spade to secure a communication - written, oral or otherwise - upon which Teliance is to be placed as involving his consciousness of the facts and the operations of his mind in expressing it, the demand made upon him is not a testimonial one. Moreover, a practical consideration applies to this class of evidence. When the person's body, its marks and traits are in issue, there is -ordinarily no other or better evidence available for the prosecutor.
Hence, the public interest in obtaining the evidence is usually suffici-cient to outweigh by a clear margin the private interests sacrificed in the process.
Both principle and practical good sense forbid any larger interpretation of the privilege in this application.
10. 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-incrimitiation 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 of 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 purposes of its identification and there is no reason why the Investing 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.
11. 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 S. W. 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 scrapp-ings from under fingernails, taken against the will)(p. 392).Smith v. United States, 194 F. 2d 192 (D.C. Cir,. 1950) (homicide and rape; forcibly dyeing defendant's hair for purposes of identification upheld)', (page 397), and
People v. Strauss, (19401 174, Misc. 881, 22 N. Y. Section 2d 155 (motion by district attorney to require defendant to be shaven and have the hair on his scalp trimmed was granted; privilege held inapplicable):
The view taken in these decisions seems, with all respect, to be quite correct and forthright, and there is no reason why the application of the Investigating Officer should not have been allowed in the present case.
12. I have examined the cases cited by Mr. Bhimraj, but they seem to be of no avail to the accused. Thus in : 1956CriLJ805 the learned Judges have no doubt made an observation that the accused could have refused to accede to the suggestion of the trial Judge to put on the shoes which had been recovered from his house, but a reading of the entire judgment shows that they have taken that view because the learned trial Judge did so during the course of the examination of the accused Under Section 342, Criminal P.C. All the same, their Lordships have held further that the result of ocular demonstration and its result could 'certainly be taken into account' by the trial Judge and the assessors. The judgment is therefore of no help to the accused in the present case. the' discussion centres round the question whether Section 94 (1), Criminal P.C. is applicable in the case of an accused, and it does not appear to be of any help in the facts and circumstances of the present case. I have already made extensive use of : 1961CriLJ856 .4 and I am unable to think that it is of any use to the accused. 13. This leaves (1952) 342 US 165 for consideration. In that case the dell puy sheriffs suspected that accused w .Rochin was selling narcotics. They i went to his house, where he was living with his mother, common-law wife, brothers and sisters. Finding the outside door open, they entered and then forced open the door of Rochin's room on the second floor. Inside they found- him sitting partly dressed on the side of the bed, upon which his wife was lying. On the 'night stand' beside the bed they spied two capsules. Rochin seized the capsules and put them in his mouth. A struggle ensued, in the course of which the officers lumped upon him and attempted to extract the capsules. The force they applied proved unavailing against Rochin's resistance. He was handcuffed and taken to a hospital. At the direction of one of the officers, a doctor forced an emetic solution through a tube into Rochin's sto-w mach against his will. The stomach ; pumping produced vomitting, and the J; two capsules were found in the vomitted matter and were proved to contain morphine. Frankfurter, J., took the view that the conduct of the deputy ; sheriffs shocked the conscience. He held that illegally breaking into the privacy of Rochin. the struggle to open his mouth and remove what was there, and the forcible extraction of his stomach's contents were 'bound to offend even hardened sensibilities'. This is why it was held that the earlier decisions did not legalise 'force so brutal and so offensive to human dignity' in securing the evidence from a suspect. It will thus appear that Rochin's was an extreme case and can have no real bearing on the present controversy the more so when it is remembered that the right of privacy is a fundamental right according to the Fourth Amendment to the American Constitution.
14. There is thus no force in the argument of Mr. Bhimrai.
15. It has however been argued by Mr. Singhvi. learned Counsel for accused Mahipal Maderna, that in the absence of any direct provision in the law authorising the taking of the specimen of the hair of the accused, the impugned order of the Magistrate contravenes the fundamental right enshrined in Article 21 of the Constitution that.
No person shall be deprived of his life or personal liberty except according to procedure established by law.
The learned Counsel has argued that by 'liberty' something more is meant than mere freedom from physical restraint or bounds of a prison. He has supported his argument by a reference to Khara'k Singh v. State of U. P. : 1963CriLJ329 ; Bhondar v. Emperor A.I.R. 1931 Cal 601; Padarath Tewari v. Dulhin Tape-sha A.I.R. 1932 All 524; Deoman Shamjl Patil v. State : AIR1959Bom284 and State v. Sheshappa Dudhappa : AIR1964Bom253 . Mr. Bhimrai has cited Brei-thaupt v. Abram, Warden, (1957) 352 US 432.
16. Now the scope and contents of the aforesaid Article 21 of the Constitution have been considered by their Lordships of the Supreme Court in Kharak Singh's case : 1963CriLJ329 cited by Mr. Singhvi and they have observed as follows,-
The content of Article 21, next calls for examination. Explaining the scope of the words 'life' and 'liberty' which occur in the 5th and 14th Amendments to the U, S. Constitution reading 'No person ... shall be deprived of life, liberty or property without due process of law,' to quote the material words, on which Article 21 is largely modelled. Field, J., observed:By the term 'life' as here used something more is meant than mere animal existence. The inhibition against its deprivation extends to all those limits and faculties by which life is enjoyed. The provision equally prohibits the mutilation of the body or amputation of an arm or leg or the putting out of an eye or the destruction of any other organ of the body through which the soul communicates with the outer world...By the term liberty, as used in the provision something more is meant than mere freedom from physical restraint or the bounds of a prison'.
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.
17. It is not disputed that it is the duty of the Deputy Superintendent of Police (Central Bureau of Investigation), at whose instance the learned Magistrate has made the impugned order, to make an investigation into the case. Section 9 of the Evidence Act provides that facts which establish the identity of any person whose identity is relevant, are relevant. It was therefore the duty of the Investigating Officer, under the law, to collect that evidence, for Section 4 (1) (1), Criminal P.C. defines 'investigation' to include all the proceedings under the Code for the collection of evidence. It will follow that in the absence of any legal provision to the contrary, he should be allowed to use the reasonable means for obtaining a few specimen of the hair of the accused for the purpose of establishing the identity of those who took part in the crime. This may in fact operate as a strong protection for the innocent persons, and is quite unexceptionable. In this view of the matter, any argument based on the definition of 'assault' in Section 351, IPC, to which my attention has been invited by Mr. Singhvi, is quite fanciful for there can be no question of the use of 'criminal force' in such a case as this, within the meaning of Section 350, IPC The other cases cited by Mr. Singhvi, except : AIR1964Bom253 , were decided when the law on the point had not been laid down by their Lordships of the Supreme Court, and it will be sufficient to say that, for the reasons mentioned above, they are of no real help to the accused. As regards A.I.R. 1964 Bom 253 it may be pointed out that it was decided with reference to the validity of the provision in the Bombay law and is not directly in point.
18. I have gone through Breithaupt's case, (1957) 352 US 432. There the petitioner, while driving a truck on a State highway, was involved in a collision with a passenger car resulting in the death of three persons. He himself was seriously injured. A pint whisky bottle, almost empty, was found in the glove compartment of the truck. While the petitioner was lying unconscious, the attending physician, using a hypo-darmic needle withdrew a blood sample at the request of a State patrolman. On laboratory analysis, it was found to contain about .17 per cent, alcohol. The evidence of blood test was admitted at the trial over the petitioner's objection and he was convicted in the State court for involuntary manslaughter. It was held by the Supreme Court that he was not deprived of due process of law in violation of the Fourteenth Amendment, and that his case was not covered by the view taken in Rochin'ss case (1952) 342 US 165. Then it was further observed that as against the right of an individual that his person be held inviolable must be set the interests of society; and the judgment was concluded with the following significant observation,-
Furthermore, since our criminal law is to no small extent justified by the assumption of deterrence, the individual's right to immunity from such. invasion of the body as is involved in a properly safeguarded blood test is; far outweighed by the value of its deterrent effect; due to the public realization that the issue of driving while under the influence of alcohol can often by this method be taken out of confusion of conflicting contentions.
These observations, far from supporting the argument of the learned Counsel for H the accused, strengthen the view taken ' by the learned Magistrate.
19. Lastly, it has been argued that there is now no occasion for giving effect to the impugned order of the learned Magistrate as a challan has, been presented in the case and there is. therefore no question of any further investigation by the Deputy Superintendent of Police. I need not examine this argument in any detail for the learned Counsel for the accused have frankly admitted that this Court has taken the view in Narendra Singh v. The State. 1956 Raj LW 15 : (195V Cri LJ 243) that it is permissible to hold further investigation, with the approval of the court, even after the challan has-been presented in a case. It will be recalled that the Deputy Superintendent of Police made the application for .; taking some hair of the accused as samples as far back as March 12, 1970, and the learned Magistrate passed his order-on April 4, 1970. It is true that the challan has been presented on May 30, 1970, but Mr. Chatterjee has pointed out that this had to be done because an observation was made by a learned Judge- of this Court, while considering the applications for bail, that the submission of the challan should be expedited. At any rate, I see no reason why the Investigating Officer should not be allowed to complete the investigation with reference to his application dated February 14, 1970.
20. It will thus appear that, for the reasons mentioned above, the learned Counsel for the accused have, not been able to support the reference made by the learned Sessions Judge. They have not disputed the contention of Mr. Chatterjee that by microscopic examination of the hair it is possible to say whether they are of the same or of different colours or sizes, and that their examination may help in deciding where they come from, for it has been held by their Lordships of the Supreme Court in Kanbi Karsan Jadav v. State of Gujarat : 1966CriLJ605 that hair can be identified as belonging to particular persons. The contrary view expressed' by the learned Sessions Judge is quite-untenable. The learned Counsel for the- accused have also not found it possible to support the view of the learned Sessions Judge that it will be impossible to distinguish the hair of the accused from those found at the site of occurrence, or to keep them in airtight compartments, and I have no doubt that this view is also quite untenable.
21. For all these reasons, the reference made by the learned Sessions Judge fails and is rejected.