1. This is revision application directed against an order of the Special Magistrate Srinagar (Mr. Ram Saroop) dated 25th March 1957. The learned Magistrate has pointed out that 'the protection given by Article 20(3) of the Constitution is available to an accused person who is asked by the police to give his thumb impression for the purpose of comparison during investigation by the police.' The Magistrate has further observed that 'it is therefore concluded in the present case that the accused is entitled to ask for protection'. But he has significantly added that' in this case the accused must show that he was compelled to give thumb impression by the police'. In the next sentence the Magistrate has again observed that
giving of the thumb impression to the police amounts to furnishing of evidence against himself within the meaning of 'to be a witness' : ... .Before holding in the present case whether the accused is entitled to protection under Article 20(3) of the Constitution it is essential to find out the element of compulsion, in other words whether the accused was compelled to give his impression.
The sentences from the learned magistrate's order given above seem to contradict each other, though ultimately the conclusion drawn by the Magistrate that it is for the accused before claiming protection of Article 20(3) to show that he was compelled to furnish evidence seem to be correct. Now Article 20(3) lays down, 'No person accused of an offence shall be compelled to be a witness against himself'. It has been held in the S. C. Ruling M. P. Sharma v. Satish Chandra : 1978(2)ELT287(SC) referred to by the trial Magistrate that to be a witness would mean furnishing of evidence against himself. Therefore a cursory study of Article 20(3) of the Constitution would show that before claiming protection of this Article, the person accused of any offence shall have been compelled to be a witness; that is to say compelled to furnish evidence against himself. If an accused person out of his own free will or without any compulsion furnishes evidence, even against himself, that would not seem to be hit by Article 20(3).
2. The learned Counsel appearing on behalf of the applicant has tried to enunciate a broad proposition and according to him of universal applicability which is to the effect that a presumption should be drawn that if the police has secured & thumb impression from an accused person during investigation, it was drawn by compulsion. In support of this proposition, he has argued in very eloquent terms that the police are armed with very vast powers which are not most often misused by them against a defenceless unfortunate human being in their custody, and as such the element of free will in an accused person must be presumed to be non-existence as long as he is attending police investigations. In this connection he has drawn my attention to a single Bench ruling of the Madras High Court reported as Rajamutukoil Pillai v. Periyasami Nadar AIR 1956 Mad 632 (B) in which it has been held by the learned Judge 'that a direction by the Court asking an accused to give his thumb impression amounts to asking him to furnish evidence which is prohibited by Article 20(3).
The accused, therefore, cannot be compelled to give his thumb impression as directed by the Magistrate'.
3. With all respect I do not find myself in agreement with this view of the learned Judge. Merely asking an accused person to give his thumb impression would not amount to compulsion. The accused may of his own accord in order to prove his innocence come forward to give his thumb impression. It would not make any difference if the Magistrate has asked him to give a thumb impression. What is prohibited would become clear from the proposition enunciated by the learned Judge himself which is to the following effect:
that the accused cannot be compelled to give his thumb impression as directed by the Magistrate.
This would abundantly show that the compulsion must be there. The same learned Judge has in In re Sheikh Muhammad Hussain : AIR1957Mad47 taken quite a contrary view to his previous view expressed in AIR 1956 Mad 632 (B). In para 4 of his judgment the learned Judge has observed that:
But so far as I am aware, their Lordships of the S. C. have not held that any statement taken by the police or anything done by the police in the course of an investigation which is subsequently produced before the Court as evidence is hit by Sub-clause (3) of Article 20 of the Constitution.
Then follows the significant sentence in the same para:
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.
A similar view has been taken in Sailendra Nath Sinha v. State : AIR1955Cal247 wherein it has been laid down;
The decision of the SC : 1978(2)ELT287(SC) is not in our opinion any authority for the proposition that the direction to take specimen writing of a person who is accused of an offence amounts to a direction compelling him to give evidence against himself.
With this view I find myself in respectful agreement. The whole matter would boil down to this : that a direction by a police officer asking the accused to furnish his thumb impression or a specimen writing would not amount to testimonial compulsion so as to bring it within the mischief of Article 20(3). But if the accused person has been compelled to give his thumb impression or specimen writing, it would certainly be hit by Article 20(3). But this fact of compulsion has to be proved like any other fact by evidence and not to be presumed. This has been held in Sunder Singh v. State : AIR1955All367 wherein it has been laid down that
No presumption of compulsion can be raised in every case where the admission of evidence has not been expressly concluded by statute, To assume compulsion in all cases where recovery of incriminating articles is made during the course of investigation would be to brush aside a very strong circumstantial evidence and this could not have been the intention of the framers of the constitution in framing Article 20 of the Constitution.
4. The net result would be that the thumb impression of an accused can be put to an expert for comparison with the thumb impression sought to be proved by the police as that of the accused. But when all this is said and done, the accused would be free to lead evidence to show that his thumb impression was taken from him by compulsion. If he succeeds in proving that he was compelled to be a witness against himself, he can well claim the benefit of Article 20(3). This Revision application is therefore rejected.