T. Ramabhadran, J.C.
1. The main point for determination in this reference is, whether an order directing an accused person to furnish his finger impressions for the purpose of comparison with certain disputed similar impressions under Section 73 of the Evidence Act or otherwise, would be contrary to the provisions of Article 20(3) of the Constitution. For reasons to be stated shortly, I have come to the conclusion that the provisions of Article 20(3) of the Constitution would not be infringed in such a case.
2. Under Article 20(3), no person, accused of any offence, shall be compelled to be a witness against himself. We have, therefore, to see whether by calling upon the petitioner Bhupendra Nath, to give his finger impressions, the trial Magistrate has compelled him i.e., the petitioner to be a witness against himself.
3. When arguments of the learned counsel for the parties were heard at Bilaspur on the 24th ultimo, learned counsel for the petitioner contended, vehemently, that the order of the Magistrate, directing the taking of the petitioner's finger impressions, was nothing short of compelling him to be a witness against himself. Reliance was placed upon the following authorities:--
(a) M. P. Sharma v. Satish Chandra, AIR 1954 SC 300, wherein their Lordships observed as follows:
'Article 20(3) embodies the principle of protection against compulsion of self-incrimination which is one of the fundamental canons of the British system of criminal jurisprudence and which has been adopted by the American system and incorporated as an article of its Constitution. It has also, to a substantial extent, been recognized in the Anglo-Indian Administration of criminal justice in this country by incorporation into various statutory provisions.'
'So far as the Indian law is concerned, it may be taken that the protection against self-incrimination continues more or less as in the English common law, so far as the accused and production of documents are concerned, but that it has been modified as regards oral testimony of witnesses, by introducing compulsion and providing immunity from prosecution on the basis of such compelled evidence.'
'Analysing the terms in which this fundamental right has been declared in our Constitution, it may be said to consist of the following components: (1) It is a right pertaining to a person 'accused of an offence'; (2) It is a protection against 'compulsion to be a witness'; and (3) It is a protection against such compulsion resulting in his giving evidence 'against himself'.'
'Broadly stated, the guarantee in Article 20(3) is against 'testimonial compulsion'. But there is no reason to confine it to the oral evidence of a person standing his trial for an offence when called to the witness stand. The protection afforded to an accused in so far as it is related to the phrase 'to be a witness' is not merely in respect of testimonial compulsion in the Court room but may well extend to compelled testimony previously obtained from him. It is available, therefore, to a person against whom a formal accusation relating to the commission of an offence has been levelled which, in the normal course, may result in prosecution.'
'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.'
(b) Rajamuthukoil Pillai v. Periyasami Nadar, AIR 1956 Mad 632. There, on the strength of the ruling, reported in AIR 1954 SC 300, a learned Judge of the Madras High Court held that:
'A direction by the Court asking the accused to give his thumb impression amounts 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.' (c) and (d) Bhaluka Behera v. The State, AIR 1957 Orissa 172 and Gulam Nabi v. State, (S) AIR 1957 J and K 44. In these, it was held by the Orissa and Jammu and Kashmir High Courts that an accused person cannot be compelled to give his thumb impression without violating the provisions of Article 20(3) of the Constitution,
(e) Krishnan Kesavan v. State of Kerala, AIR 1957 Kerala 78. There, a Division Bench of that High Court observed that:
'A Magistrate commits a grave violation of the right guaranteed by Article 20(3) of the Constitution in issuing notice to the accused to produce in Court the document impugned as forgery.' It is noteworthy that this was not a case where an accused was called upon to give finger impressions.
(f) The State v. Ramkumar Ramgopal, (S) AIR 1957 Madh-Pra 73. There, the facts were: 'In the course of the investigation of an offence alleged to have been committed by the accused under Section 29, Telegraph Act, the police took out an application alleged to have been written by the accused from the file of one of the cases pending before the Municipal Magistrate, and taking the accused to a second class Magistrate, made the accused copy out that application in the presence of the Magistrate. This writing was compared with the writing on the telegraph form by a Handwriting Expert. The expert was of opinion that the telegram was in the handwriting of the accused.' it was held by a Division Bench of the Madhya Pradesh High Court:
'What was sought by the prosecution was that by copying out the application and by having it compared later on, the accused should furnish evidence to the Court; thus the police adopted a wrong procedure and the evidence which the accused was made to furnish must be overlooked and cannot be received in the case.' (g) Hiralal Agarwalla v. The State, AIR 1958 Cal 123. There, a learned Judge of that High Court, while considering the scope of S. 73 of the Evidence Act, indicated that:
'Section 73 cannot be construed as an instrument or a device to be used for the advancement of any party, either the prosecution or the accused. It is one of those sections where large powers are given to the Court with the obvious object of enabling the Court to find out the truth and to do complete justice between party and party; any other use of it would be wholly unjustified.'
'In so far as the Magistrate wants to be satisfied as to the genuineness or otherwise of certain writings, it is quite open to him to ask the accused to write out certain words and figures in order that the comparison might be made between them and the disputed writings; but it is certainly not open to the Magistrate to hand the document over to the prosecution in order that they might make use of it as a piece of their own evidence, nor can he send the document to an expert who is a prosecution witness.'
(h) Collector of Customs v. Calcutta Motor and Cycle Co., AIR 1958 Cal 682. There, the facts were that notices under Section 171-A of the Sea Customs Act had been issued to certain persons to appear before some customs officials and to produce certain documents. It appeared that the persons to whom notices were issued were suspected of having committed criminal offences. Under those circumstances, it was held by a Division Bench of the Calcutta High Court:'The requirements of Article 20(3) were satisfied and the protection under the Article was available to the persons concerned.'
4. On the strength of these authorities, learned counsel for the petitioner submitted that the trial Magistrate has erred in directing his client to give his finger impressions for comparison with certain disputed similar impressions.
5. The learned Government Advocate for the respondent, on the other hand, contended that in directing the petitioner to give his finger impressions, the Magistrate could not be said to have 'compelled him to be a witness against himself'. I was referred to the following case law:
(1) State of Mysore v. C. V. Gopala Rao, AIR 1954 Mys 117. There, a Division Bench of the Mysore High Court held that:
'It is open for the Court to direct the accused to give his writing in Court for the purpose of comparison by the hand-writing expert and make such use of it as the Court is entitled to.' (2) In re Muhammad Hussain, AIR 1957 Mad 47, where a learned Judge of that High Court, in holding that the taking of thumb impressions of an accused person on a slip of paper by the police, which was later on produced in Court, would not amount to testimonial compulsion and, therefore, would not be hit by Article 20(3), observed that:
'The only point that is argued before me by the learned counsel for the accused is that the taking of the thumb impression of the accused by the Sub-Inspector of Police is hit by sub-clause (3) of Article 20 of the Constitution of India and that it amounts to testimonial compulsion and, therefore, the document ought not to have been taken into consideration. In this connection, reliance was placed upon the decision of the Supreme Court in AIR 1954 SC 300. That is a case where the Court issued summons to the accused and directed him to produce certain documents and that was held to be testimonial compulsion.'
'But so far as I am aware, their Lordships of the Supreme Court have not held that any statement taken by the police or anything done by the police in the course of investigation which is subsequently produced before the Court as evidence is hit by sub-clause (3) of Article 20 of the Constitution. In my opinion, the thumb impression taken by the police on a slip of paper which was later on produced in Court cannot amount to testimonial compulsion.'
(3) Mohammad Hussain v. Provident Fund Inspector, AIR 1957 Madh-B 68. There, a Division Bench of that High Court, in discussing the question of search warrants, issued by Magistrates, for production of documents in the possession of the accused remarked that:
'The constitutional protection under Article 20(3) Us not defeated by the statutory provisions for searches contained in Ss. 94 and 96, Criminal P. C. Searches are under the authority of a Magistrate (excepting in the limited class of cases falling under Section 165 of the Criminal Procedure Code). Therefore, issue of a search warrant is normally the judicial function of the Magistrate. When such judicial function is interposed between the individual and the officer's authority for search, no circumvention thereby of the fundamental right is to be assumed.'
'Thus, having regard to the historical background regarding the Indian Criminal Procedural law regarding searches, interposition of the judicial function while ordering searches and the person to whom the orders regarding searches are addressed, searches are not tantamount to testimonial compulsion to the accused persons and for that reason there is no invasion of any fundamental right guaranteed under Article 20(3).'
(4) In re, Govinda Reddy, AIR 1958 Mys 150. There, while considering the question as to whether the provisions of S. 342, Cr. P. C., are ultra vires of the Constitution, a Division Bench of that High Court indicated that:
'The provisions of S. 342 of the Code of Criminal Procedure are not ultra vires of the Constitution of India and do not in any way infringe the guarantee of Article 20(3) of the Constitution of India.'(5) Ram Swarup v. The State, AIR 1958 All 119. There, a Division Bench of that High Court, after considering AIR 1954 SC 300, AIR 1956 Mad 632, (S) AIR 1957 Madh-Pra 73 and other Indian and Foreign cases, held:
'An order directing an accused to furnish his specimen writing under Section 73, 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 the Court can legally draw a presumption against him under any other provision of law. It will not amount to compelling the accused to be a witness against himself.' In coming to that decision, the Division Bench referred to the Supreme Court decision, reported in AIR 1954 SC 300, and observed that:
'In arriving at the finding that the production of documents in compliance of search warrants is not compelled production of the documents by the accused himself and therefore does not amount to compelling the accused to be a witness against himself, their Lordships considered various matters. It is the observations in the course of such consideration which have been accepted as declared law and have been the basis of various decisions.'
'I venture to think that such observations in the process of reasoning do not amount to declaration of law as contemplated by Article 141 of the Constitution. It is well known that a case is an authority for the point it decides. The point decided in the aforesaid case is simply that search warrants are not illegal and the production of documents seized during the search does not amount to compelling the accused to be a witness against himself.'
'Even the observations do not, to my mind, go against the view I have expressed. There was no question in that case, nor is there any in the present case, that the person aggrieved was a person accused of an offence. It was not disputed in that case that the documents which were to Be seized were to be those which went to incriminate the accused. The evidence to be obtained by search was to be used against the accused. That cannot be mid in the present case.'
'I have already mentioned that the writing to be obtained from the accused is without any idea whether it would go to exonerate the accused of the offence or would go to establish it against him. The Court does not secure it for the purpose of obtaining some good material evidence by means of comparison with the disputed writing to determine the facts in dispute. The question argued before their Lordships was that compelled production of incriminating documents from the possession of an accused was compelling the accused to be a witness against himself'.
'I, therefore, do not find in this Supreme Court case anything which goes against the view expressed by me about the validity of the impugned provision of S. 73 of the Evidence Act, or the legality of the order of the learned Sessions Judge directing the accused, if he had really done so to furnish specimen-writing'.
The Division Bench also referred to the American case, Holt v. United States, (1909) 218 U. S. 245. There, the facts were: 'A question arose in that case whether a blouse belonged to the accused. A witness deposed that the accused put it on and it fitted him. It was objected on the basis of the 5th Amendment of the United States Constitution that the accused did this under duress and this evidence be excluded'. Mr. Justice Holmes, in over-ruling the objection, observed:
'But the prohibition of compelling a man in a criminal Court to be witness against himself is a prohibition of the use of physical or moral compulsion to extort communications from him, not an exclusion of his body as evidence when it may be material. The objection in principle would forbid a jury to look at a prisoner and compare his features with a photograph in proof. Moreover, we need not consider how far a Court would go in compelling a man to exhibit himself. For when he is exhibited, whether voluntarily or by order, and even if the order goes too far, the evidence, if material, is competent'.
6. Pakhar Singh v. The State, AIR 1958 Punjab 294. Therein, a learned Judge of that High Court, after considering AIR 1954 SC 300, AIR 1956 Mad 632 and other Indian and foreign decisions, including (1909) 218 U. S. 245, held that the taking of thumb, finger and palm impressions of an accused person in Court under its directions is not in contravention of Article 20(3) of the Constitution.
6a. Since the matter at issue in the present case has not been decided so far by the Supreme Court, I agree with the reasoning adopted & the conclusions drawn in the second set of rulings (i.e. those cited by the learned Government Advocate) to the effect that taking of finger impressions of an accused person in Court under its directions for the purpose of comparing them with disputed finger impressions would not amount to compelling the accused person to be a witness against himself, as contemplated by Article 20(3) of the Constitution.
7. Having come so far, I must point out however that the procedure adopted by the trial Magistrate in reviewing his earlier order was faulty. In his earlier order, the Magistrate held that the petitioner, Bhupendra Nath, could not be compelled to give his finger impressions in Court as in his opinion, it would amount to testimonial compulsion. On the following day, the Magistrate turned a somersault and passed another order based upon a diametrically opposite conclusion, i.e. that taking of finger impressions of an accused person in Court would not amount to such compulsion.
In case the Magistrate felt that he had passed a wrong order and wanted to be put right, the proper course for him was to submit the record to this Court through the learned Sessions Judge for necessary orders. Obviously, the Magistrate was not competent to review his earlier order. The recommendation of the Sessions Judge is that the subsequent order of the Magistrate may be set aside and orders passed on the Public Prosecutor's application under Section 73 of the Evidence Act. In my opinion, the purpose will be served if the earlier order of the Magistrate is set aside. In that case, the question of reviewing the earlier order would not arise. So much of the subsequent order of the Magistrate dated 19-11-1958, as directs the accused to give his finger impressions, in Court, for comparison with the disputed impressions, must, of course, stand.