Citation Codes

Equivalent Citations

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Case Number

Crl. Revision No. 623 of 1958

Advocates

Ramdas Mukherjee with Abdul Bari Bhuya
A.C. Roy
D.L.R.
J.M. Banerjee
S.S. Mukherjee
A.K. Dutt and N.C. Banerjee
as Amicus Curiae

Judges

Mitter
Bhattacharya, JJ.

Acts

Sec. 73 of the Indian Evidence Act,
Sec. 73 of the Evidence Act
S. 119, Evidence Act)
BENGAL EXCISE ACT

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Smart Summary

Structured Summary of the Opinion (Mitter, J.; Bhattacharya, J.)

Factual and Procedural Background

A Rule was issued upon the District Magistrate of Howrah directing him to show cause why the order of a learned Magistrate dated 1 May 1958 — which allowed the investigating officer to take the petitioner's specimen writings and signatures — should not be set aside. The petitioner is an accused in a matter under the Bengal Excise Act. The central point raised in the petition was whether the Magistrate's order infringed the petitioner's fundamental right under Article 20(3) of the Constitution. The Recorder notes that the impugned order was made in the course of investigation and observes that it could not have been made under Section 73 of the Indian Evidence Act because there is no provision in the Code authorising a Magistrate to make such an order during investigation. The Court ultimately allowed the petition, set aside the Magistrate's order dated 1 May 1958, made the Rule absolute, and directed that the records be sent down.

Legal Issues Presented

Whether the Magistrate's order permitting the taking of specimen writings and signatures of the accused infringes the petitioner's fundamental right under Article 20(3) of the Constitution (the protection against being compelled to be a witness against oneself).
Whether a Magistrate or a court may, by invoking Section 73 of the Indian Evidence Act or any provision of the Code, lawfully compel an accused, prior to trial, to furnish specimen writings and signatures.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
M.P. Sharma v. Satish Chandra (AIR 1954 S.C. 300)	The Supreme Court's articulation that Article 20(3) is a protection against "testimonial compulsion" not confined to oral testimony; "to be a witness" means "to furnish evidence" and includes producing documents or making intelligible gestures.	The Court relied on this holding to construe Article 20(3) as extending beyond oral evidence and to conclude that compelled production of specimen writings/signatures is testimonial compulsion. The decision provided the primary constitutional interpretive basis for setting aside the Magistrate's order.
Sailendra Nath Sinha v. The State (A.I.R. 1955 Cal. 247)	A Division Bench of the Calcutta High Court had held that a direction under Section 73 of the Evidence Act to take specimen writings of an accused does not amount to compelling him to give evidence and therefore does not offend Article 20(3).	The Court in this opinion expressly and respectfully dissented from that earlier Division Bench decision and rejected the view that Section 73 authorises compelling an accused to furnish specimen writings. The impugned Magistrate's order was set aside in consequence.
Re: Palani Goundan (A.I.R. 1957 Mad. 546)	The Madras Division Bench's exposition that incriminating articles may be seized under warrant or process of law from the accused (even against his will), but the accused cannot be compelled to produce them himself; examples given include seizure of stolen articles, extraction of swallowed property, seizure of bloodstained clothes, taking an accused to a doctor for examination, and identification parades.	The opinion cites this decision to distinguish seizure of physical evidence under lawful process from compelling the accused personally to produce testimonial material. The case helped frame the distinction between forcible seizure and compelled testimonial acts.
State v. Parameswaran Pillai (A.I.R. 1952 Travancore-Cochin 482, Full Bench)	The Full Bench held (or expressed the view) that taking a thumb-impression of the accused may be permissible without violating fundamental rights.	The Court referenced this authority to note that certain forms of physical evidence taken from the body (e.g., thumb impressions) may not fall within Article 20(3)'s protection, distinguishing them from positive volitional acts such as writing.
Holt v. United States (1910) 218 U.S. 245 (opinion of Justice Wendell Holmes)	The view that the prohibition on compelling a person to be a witness is a prohibition against extorting communications, not an exclusion of the body as evidence; a jury may compare a prisoner's features with a photograph; exhibition of a person, voluntarily or by order, may yield competent evidence.	The opinion quoted this American authority to support the proposition that the body may, in some contexts, be used as evidence without violating the principle against compelled testimonial communications and to underscore the distinction between compulsion to communicate and use of physical characteristics as evidence.
Hiralal Agarwalla v. The State (61 C.W.N. 691)	The observation that the scope of Section 73 of the Evidence Act may be limited to enabling the court to form its own conclusion, as distinct from authorising the court to assist a party by compelling production.	The Court cited this authority to support its view that Section 73 does not authorise compelling an accused person to furnish specimen writings and thus cannot justify the impugned order.

Court's Reasoning and Analysis

The opinion features two complementary judgments (Mitter, J. and Bhattacharya, J.) whose analyses converge on the conclusion that the impugned order violates Article 20(3).

Preliminary procedural observation (Mitter, J.): The order permitting the investigating officer to take specimen writings and signatures was made in the course of an investigation and therefore could not properly have been made under Section 73 of the Indian Evidence Act. The Court noted that no provision in the Code empowers a Magistrate to make such an order during investigation.

Interpretation of Article 20(3): Both Judges adopt and rely on the Supreme Court's exposition in M.P. Sharma v. Satish Chandra that Article 20(3) protects against "testimonial compulsion" and that the phrase "to be a witness against himself" means "to furnish evidence." That protection is not limited to oral testimony given at trial; it includes production of documents or acts that amount to furnishing evidence. The Court emphasises that the constitutional guarantee must be interpreted broadly so as not to defeat its substantial purpose.

Distinction between seizure and compulsion: The opinion reviews authorities (for example, the Madras decision in Re: Palani Goundan and the Full Bench in State v. Parameswaran Pillai) recognising that incriminating material may be seized under lawful process (such as under a search warrant) even though the accused cannot be compelled to produce it voluntarily. The Court draws a line between forcible seizure of physical objects and compelling the accused personally to perform positive volitional acts that furnish evidence (for example, writing or signing), the latter being testimonial compulsion.

Positive volitional act test: Bhattacharya, J. adopts the formulation from M.P. Sharma describing "testimonial compulsion" in terms of obtaining a "positive volitional act" from the accused — an act performed by the accused's will that furnishes evidence. The Judge recognises that application of this test may present difficult borderline cases (for example, when physical force or medical extraction is involved), but concludes that asking an accused to provide specimen writings and signatures plainly falls within the category of positive volitional evidentiary acts.

Application to specimen writings and signatures: Applying the positive-volition test, the Court holds that compelling the accused to write or to sign for the purpose of obtaining handwriting samples would be testimonial compulsion within Article 20(3). The Court reasons that a thumb-impression or other bodily evidence might raise different considerations (and that some authorities suggest thumb-impressions may be permissible), but no amount of force short of torture will suffice to compel a person to write according to dictation — and the act of writing itself is a volitional communicative act which, when compelled, violates Article 20(3).

On Section 73 of the Evidence Act: The Court analyses Section 73 and concludes that the relevant statutory language uses the word "direct" rather than "compel," and that Section 73 should not be read as conferring power to compel an accused to provide specimen writings prior to trial. The Court cites Hiralal Agarwalla v. The State to support a limited reading of Section 73 and rejects the interpretation in Sailendra Nath Sinha which treated Section 73 as authorising compulsion of the accused to furnish specimen writings.

Conclusion of reasoning: Because compelling the accused to furnish specimen writings and signatures would require a positive volitional act amounting to testimonial compulsion, the Court determined that the Magistrate's order infringed Article 20(3). Accordingly, the application was allowed and the Magistrate's order of 1 May 1958 was set aside.

Holding and Implications

Holding: The Rule is made absolute and the impugned order of the learned Magistrate dated 1 May 1958 is set aside.

Implications:

The direct effect is that the Magistrate's direction permitting the investigating officer to take the petitioner's specimen writings and signatures has been quashed and the petition allowed.
The Court adopts and applies the Supreme Court's broad construction of Article 20(3) to hold that compelled specimen writings and signatures constitute testimonial compulsion (a "positive volitional evidentiary act") and therefore violate the constitutional protection against being compelled to be a witness against oneself.
The opinion rejects the earlier Division Bench decision in Sailendra Nath Sinha v. The State to the extent that it treated Section 73 of the Evidence Act as authorising compulsion of an accused to furnish specimen writings; the present Bench respectfully dissents from that earlier view.
The Court notes (drawing on other authorities) that forcible seizure of physical objects under lawful process may be permissible while distinguishing such seizures from compelling an accused to perform volitional acts that furnish testimonial evidence; the opinion leaves open that some forms of bodily evidence (for example, thumb impressions) may raise different considerations, as recognised in prior decisions.

Source: Summary based exclusively on the text of the provided opinion (Mitter, J.; Bhattacharya, J.). No information has been added beyond what appears in that opinion.

Show full summary ...

Farid Ahmed v. The State Opposite Party.

Mitter, J.:— This Rule was issued upon the District Magistrate of Howrah to show cause why an order of a learned Magistrate dated May 1, 1958, allowing the investigating officer to take the specimen writings and signatures of the petitioner should not be set aside. The petitioner is an accused in a case under the Bengal Excise Act. The point involved is whether the impugned order infringes the petitioner's fundamental right guaranteed under Art. 20(3) of the Constitution.

2. Before we deal with the point, we must say that the Order concerned could not have been made under Sec. 73 of the Indian Evidence Act, as the Order was made in the course of an investigation. It is not disputed that there is no provision in the Code which allows a Magistrate to make such an order.

Art. 20(3) is in these terms:

“No person accused of any offence shall be compelled to be a witness against himself.”

3. That the petitioner is a person accused of an offence admits of no doubt. There is also no doubt that the guarantee under Art. 20(3) is against “testimonial compulsion”. Nevertheless, it is necessary to construe the meaning of the phrase “to be a witness against himself”. For a little while, it was an erroneous thought that the expression was confined to the oral evidence of an accused when he gave evidence. “To be a witness against himself” would, in our view, mean “to furnish evidence against himself”. Such evidence can be furnished as much by Word of mouth as by hand. We see nothing in the language of the Article to confine the guarantee to parol evidence. As their Lordships of the Supreme Court observed in Sharma v. Satischandra (1) (AIR. 1954 S.C 300):

“Broadly stated the guarantee in Art. 20(3) is against ‘testimonial compulsion’. It is suggested that this is confined to the oral evidence of a person standing his trial for an offence when called to the witness-stand. We can see no reason to confine the content of the constitutional guarantee to this barely literal import. So to limit it would be to rob the guarantee of its substantial purpose and to miss the substance for the sound as stated in certain American decisions. The phrase used in Art. 20(3) is to be a witness' not merely by giving oral evidence but also by producing documents or making intelligible gestures as in the case of a dumb witness (see S. 119, Evidence Act) or the like. ‘To be a witness’ is nothing more than ‘to furnish evidence’, and such evidence can be furnished through the lips or by production of a thing or of a document or in other modes.”

4. The guarantee is against compelled testimony, both in and out of court. In our view, both the points are concluded by the decision of the Supreme Court. Accordingly, we would respectfully dissent from the Bench decision of this Court reported in (2) A.I.R 1955 Cal. 247 (Sailendra Nath Sinha v. The State). In the result, we must allow this application, set aside the Order of the learned Magistrate, dated May 1, 1958, and make the Rule absolute.

5. Let the records be sent down at an early date.

Bhattacharya, J.:— The meaning and scope of the Art. 20 (3) was elaborately reviewed by Jagannadhadas, J., in M.P Sharma v. Satish Chandra (1) (A.I.R 1954 S.C 300 : 1954 S.C.A 449). It may be summed up as follows: Broadly stated, the guarantee in Art. 20 (3) is against ‘testimonial compulsion’. It is suggested that this is confined to the oral evidence of a person standing his trial for an offence when called to the witness-stand. There is no reason to confine the content of the constitutional guarantee to this barely literal import. So to limit it would be to rob the guarantee of its substantial purpose and to miss the substance for the sound as stated in certain American decisions. The phrase used in Art. 20(3) is ‘to be a witness’. A person can ‘be a witness’ not merely by giving oral evidence but also by producing documents or making intelligible gestures as in the case of a dumb witness (see S. 119, Evidence Act) or the like. ‘To be a witness’ is nothing more than ‘to furnish evidence’; and such evidence can be furnished through the lips or by production of a thing or of a document or in other modes. The word “witness” must be understood in its natural sense, i.e as referring to a person who furnishes evidence. Indeed, every positive volitional act which furnishes evidence is testimony, and testimonial compulsion connotes coercion which procures the positive volitional evidentiary acts of the person, as opposed to the negative attitude of silence or submission on his part: Nor is there any reason to think that the protection in respect of the evidence so procured is confined to what transpires at the trial in the Court room. The phrase used in Art. 20(3) is ‘to be a witness’ and not to “appear as a witness”. It follows that 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.

6. The Supreme Court pointed out, for reasons stated therein, that searches made in pursuance of warrants issued under) Sec. 96 of the Criminal Procedure Code could not be challenged as illegal on the ground of violation of fundamental rights under Art. 20(3) of the Constitution. In consonance with the principles discussed therein it was observed by a Division Bench of the Madras High Court in re. Palani Goundan (3) (A.I.R 1957 Mad. 546): “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 would follow from that rule that a stolen article can be seized from the person of the accused, though he may be unwilling to part with it; or, if he happens to swallow a stolen property, he can be taken to a doctor and made to undergo the necessary medical process or treatment with a view to have the article extracted from his body. Similarly, if a police officer finds an accused charged with murder wearing blood-stained clothes, such clothes may be seized from him, though he may not be willing to surrender them. But 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. *** Under a search warrant or other kindred process of law, documents or articles or any other incriminating evidence can be seized from the custody or the person of the accused by force and against his will, such as stolen articles, bloodstained clothes, etc., but he cannot be compelled to produce them himself. For the same reason, there can be no objection to an accused person being taken to a doctor for examination of injuries on his body so as to ascertain whether he could not have participated in an occurrence. He can also be taken to an identification parade to enable the prosecution witnesses to observe his physical features with a view to identify him.” It may perhaps be permissible to take the thumb-impression of the accused without violating any fundamental right. This was the view taken in State v. Parameswaran Pillai (4) (A.I.R 1952, Travancore-Cochin 482, Full Bench). It finds support in the judgment of Justice Wendell Holmes in Holt v. United States (5) (1910) 218 U.S 245. The following observations may be usefully quoted: “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.”

7. The criterion of “positive volitional act” as mentioned in (1) M.P Sharma v. Satish Chandra, furnishes a good working rule. It is realised, however, that the problem may not be an easy one in all cases. The unseemliness of the extent and nature of the force that may have to be applied, for example, in a hypothetical case of extraction of blood to test its alcoholic contents in connection with a motoring offence or one against Prohibition law may perhaps affect this broad generalisation not simply because of the question of infraction of human dignity involved therein but mainly because it will be difficult to draw the line between positive volitional act and compelled testimony as between passivity and compulsion.

8. The question before us is, can the accused be compelled to give specimen writings and signatures? Applying the test of “positive volitional evidentiary act” as laid down by the Supreme Court, we are bound to say that any such order would be violative of the fundamental right contained in Art. 20(3) of the Constitution, for it will be asking the accused to furnish incriminating evidence against himself positively and volitionally and not merely negatively or passively. The accused already objected before the Magistrate about the taking of sample writings, including signatures, and the only step that remains to be taken is compelling the accused to furnish this. We are not in a position to say what shape this “testimonial compulsion” will take. A thumb-impression, for example, may be taken by catching hold of the thumb of the accused forcibly, if necessary, but no amount of force barring torture will succeed in compelling a man to write according to dictation or otherwise.

9. Leaving aside the question whether Sec. 73 of the Evidence Act may or may not apply to accused persons, prior to trial, it will not afford any justification for compelling the accused to furnish this evidence.

10. The relevant word in Sec. 73 of the Evidence Act is “direct” and not “compel”. It cannot be said that the two words are interchangeable, for in the same Act the word “compel” appears in several sections, e.g 129, 130, 131 and 132. Moreover, as was pointed out in Hiralal Agarwalla v. The State (6) (61 C.W.N 691) the scope of Sec. 73 may be limited, as enabling only the court to form its own conclusion as distinct from entitling the court to assist a party to the proceedings. It is true in Sailendra Nath Sinha v. The State (2) (A.I.R 1955 Calcutta 247) a Division Bench of this Court held that the direction under Sec. 73 of the Evidence Act to take specimen writings of a person who is accused of an offence does not amount to a direction compelling him to give evidence against himself, and hence such direction does not offend Art. 20(3) of the Constitution. But that decision was based on interpretation of Sec. 73 of the Evidence Act, which, in our opinion, does in no way authorise a court to compel an accused person to furnish specimen writings. In our view Art. 20 (3) will be a guarantee of the fundamental rights of the accused.

11. In this view I agree that the relevant Rule should be made absolute and the impugned order of the learned Magistrate set aside.

S.K.B

Farid Ahmed v. The State Opposite Party.

Structured Summary of the Opinion (Mitter, J.; Bhattacharya, J.)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Farid Ahmed v. The State Opposite Party.

Comments