1.This is a revision by the accused against an order passed by the Additional First Class Magistrate, Tirunelveli, on a petition filed by the complainant in C. C, No. 25 of 1954, on. his file, asking the Court to issue a process to the accused to produce a certain document and also to direct him to give his thumb impression in court so that it may be compared with certain other documents on which the complainant relied.
So far as the issue of the process for the production of the document was concerned, the accused had no objection to it and it had been ordered. So far as the prayer for directing the accused to give his thumb impression was concerned, the accused objected to it, but the lower Court relied on Section 73 of the Evidence Act and directed him to give his thumb impression. It is this position of the lower Court's order that is being impugned by the accused in this petition.
2. The learned Counsel for the petitioner relied on the decision of the Supreme Court in - 'Sharma v. Satischandra' : 1978(2)ELT287(SC) , and another decision in - 'Swarnalingam Chettiar v. Asst. Labour Inspector, Karaikudi' (S) AIR 1956 Mad 165 (B), on the file of this Court in support of his contention. In the Supreme Court decision, in considering Article 20, Clause (3), their Lordships have held that to be a witness means to furnish evidence, and in this case what is sought by the complainants is that the accused, by affixing his thumb impression, should furnish evidence to the Court. This, as pointed out by the Supreme Court, is prohibited under Article 20 (3).
A Bench of our Court following this decision of the Supreme Court had held that asking the accused to produce certain documents falls within the scope of the decision of the Supreme Court and that such an order cannot be passed. As pointed out already, it seems to me that this direction asking the accused to give his thumb impression would amount to asking him to furnish evidence which is prohibited under Article 20 (3). The accused, therefore, cannot be compelled to give his thumb impression as directed by the Magistrate.
3. The petition is allowed and the direction of the lower Court asking the accused to give his thumb impression in court is set aside.