Abu Ismail Merchant v. The State

Shah, J.:— [His Lordship after stating the facts and dealing with points not material to this report, proceeded:] It was then urged by Mr. Kotval that there had been a serious irregularity in the trial. Mr. Kotval contended that the accused was by threats compelled to give his handwriting to the police officer and that this writing was utilised by Phansalkar, the handwriting expert, and that by the use of that writing the provisions of s. 162 of the Code of Criminal Procedure and art. 203 of the Constitution of India were, infringed. Mr. Kotval submitted that the prosecution had in using the writing given by the accused in substance compelled the accused to give evidence against himself. Mr. Kotval also submitted that the learned trial Judge had allowed evidence to go on the record without deciding the question as to the admissibility thereof and on that account also there was irregularity in the trial. It is true that, when the panch witness Gopal Ramprasad was examined on behalf of the prosecution, an objection was raised by counsel for the accused that the sheets of paper alleged to be in the handwriting of the accused could not be used as evidence, and admitting the documents on the record as evidence amounted to infringement of the provisions of art. 20(3) of the Constitution. The learned Judge held that the question whether art. 203 of the Constitution had any application must depend upon proof of certain facts: viz., whether any compulsion was used on the accused when he gave his handwriting; and on that point a suggestion was made by Mr. Neemuchwala for the accused that threats were held out to the accused before specimen handwritings were obtained, which suggestion was denied by the police officer. He observed that as the decision on what was essentially a question of fact depended upon proof or disproof of certain facts, it must of necessity be given after all the evidence was recorded and that he would tell the jury to consider the question in the course of his summing up. In our view, in so doing the learned Judge was not in error. Evidently the question whether the writings had been obtained by the police officer from the accused by compulsion was a question of fact which had to be decided by the jury and the jury could not be called upon to give an interlocutory verdict on that question. The learned Judge was, therefore, justified in admitting the evidence of the panch as well as the police officer and of the handwriting expert and then in asking the jury to consider the question whether the writings had been procured by compulsion or threats as alleged by the accused. The jury having come to the conclusion that the accused is guilty of the offence charged must be deemed to have held that this evidence relating to the handwriting on the papers relied upon by the prosecution was reliable and that the accused was not compelled by threats or coercion to give his handwriting. The learned Judge has told the jury in the course of his charge that if they came to the conclusion that the writings had been procured by threats or compulsion as alleged by the accused, they were entitled to reject the evidence of the handwriting expert. The learned Judge having given proper directions to the jury in this behalf, we cannot say that there was any misdirection by the Judge or any error of procedure in the trial in allowing the documents to go on the record, the admisibility whereof was in doubt till certain questions of fact were decided.

2. By art. 203 of the Constitution it is enacted that no person accused of any offence shall be compelled to be a witness against himself. It is now well settled that the expression “to be a witness” means “to furnish evidence”, and the constitutional guarantee is not restricted in its ambit to proceedings in the Court room: the protection afforded to an accused person 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, therefore, available 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. (M.P Sharma v. Satish Chandra, District Magistrate, Delhi . [1954] S.C.R 1077, at p. 1088.). The guarantee, however, protects a person accused from being compelled to furnish evidence against himself. Where the evidence is collected by a police officer under a judicial mandate as in the case where pursuant to a search warrant documents or things are seized and produced in Court, there is no circumvention of the constitutional guarantee; nor is every volitional act of a person accused which is evidence, or facilitates collection of evidence against him, to be deemed compelled merely because the act is relied upon in the judicial proceeding against the person accused.

3. A division bench of this Court in State v. Arabsha Ahmed Sayeed . 1958 Confirmation Case No. 4 of 1958, decided by Vyas and Kotval, JJ., on March 18, 1958 Unrep.., held that by using the finger-prints of an accused person taken during the course of investigation by a police officer, as evidence at the trial, the constitutional guarantee under art. 203 was not violated.

4. The Madras High Court in In re Palani Goundan3, also has expressed the same view. In that case it was observed (p. 547):

“The principle of protection against self-incrimination is not confined to the oral evidence of a person standing his trial for an offence when called to the witness-stand, and it refers to all kinds of evidence which the accused might be compelled to produce as a positive volitional evidentiary act. It follows that any attempt to compel the accused to produce evidence of any kind which is likely to support a prosecution against him would be struck down by Art. 20(3) of the Constitution. Any incriminating or relevant object or document or other form of evidence can be seized under process of law from the custody or person of the accused; but he cannot be compelled to produce it….it is important to bear in mind that while it may be open to a police officer to seize such incriminating articles of evidence from the person of the accused, he cannot himself be compelled to produce them…. The taking of thumb-impression or the signature of the accused does not stand on a different footing from the seizure of documents or articles or other facts of evidence from the person of the accused. Though he cannot be compelled to produce such evidence, it can be taken or seized from him. That is ‘an act of another to which he is obliged to submit’, and not ‘the positive volitional evidentiary act’ of the accused.”

5. It is evident, therefore, that the Constitution does not prohibit a person accused of an offence from furnishing evidence which may be used against him; it only affords a protection against compulsion in furnishing evidence.

6. In the case before us it appears that the jury regarded the evidence that the disputed handwriting on the endorsements on the draft, the application form, pay-in-slip and cheques were of the accused was reliable. The jury also appear to have been of the view that the writings with which these documents were compared were not procured by compulsion. There being no compulsion in procuring the handwriting of the accused in the course of investigation, there was, in our judgment, no infringement of art. 20(3).

7. The contention that asking a person accused to give his handwriting for the purpose of comparison with a disputed document amounts to taking a statement within the meaning of s. 162 of the Code of Criminal Procedure has, in our judgment, no substance.

8. Under the Code of Criminal Procedure the investigating officer is invested with wide powers. He is entitled to collect evidence and for that purpose to search for documents or things and seize incriminating articles or documents and compel the presence of persons believed by him to be conversant with matters relating to the case under investigation for examination, to make panchnamas, to hold identification parades and to send persons to a competent Magistrate for their statements to be recorded under s. 164. All these are steps in the investigation and are primarily acts done by the investigating officer; and because he is directly or indirectly concerned with them, the acts done by the person accused do not become his statements within the meaning of s. 162. When a person accused of an offence accompanies a police officer in the course of investigation or complies with a request to give his handwriting or thumb-impression for comparison, he does not, in our judgment, give a statement, proof whereof is prohibited by s. 162 of the Code of Criminal Procedure.

9. [The rest of the judgment is not material to this report.]

10. Appeal dismissed.