- (1.) 1. This is a petition by the accused to revise the order made by the Judicial First Class Magistrate, Gooty in Crl. M. P, No. 751/70 directing the accused to give specimen hanwriting to the Investigating officer in Crime No. 167 of 1970 of the Gooty Police Station, Mr. Sadasiva Reddy, learned, counsel for the petitioner contended that directing the accused to give his specimen signatures for the purpose of investigating an offence alleged to have been committed, amounts to testimonial compulsion offending Article 20 (3) of the Constitution of India. The Supreme Court in Mi P. Sharma v. Satish Chandra (Jagannadhadas J.)(1) observed that :- "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 recognised in the Anglo-Indian administration of Criminal justice in this country by incorporation into various statutory provisions xx xx 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.
(2.) 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 Art, 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 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 Art. 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."
(3.) Dealing with the specific question, where thumb impressions or impressions of foot or palm, fingers or specimen writings of the accused are taken, are not included in the expression "to be a wit- ness" their Lordships of the Supreme Court in Majority Judgment in State of Bombay Vs. Kathi Kalu(2) held: "To be a witness" is not equivalent to furnishing evidence in its widest significance that is to say, as including not merely making of oral or written statements but also production of documents or giving materials which may be relevant at a trial to determine the guilt or innocence of the accused. The observation of the Supreme Court in AIR 1954 SC. 300 that Sec. 139 of the Evidence, Act has no bearing on the connotation of the word "witness" is not entirely welt founded in law." It was further held ; "An accused person furnishes evidence when he is giving specimen handwriting, or impressions of his fingers or palms or foot but he does not furnish evidence against himself in so doing within the meaning of Art, 20 (3). "To be a witness' means imparting knowledge in respect of relevant facts by an oral statement or a Statement in writing, made or given in Court or otherwise." Their Lordships, however, observed that- "...... "to be a witness" "in its ordinary gramatical sense means giving oral testimony in Court. Case law has gone beyond this strict literal interpretation of the expression which may now bear a wider meaning, namely, bearing testimony in court or out of Court by a person accused of an offence, orally or in writing." Finally, their Lordships held : "To bring the statement in question within the prohibition of Art. 20 (3) the person accused must have stood in the character of an accused person at the time he made the statement. It is not enough that he should become an accused any time after the statement has been made. Having regard to the above, it must be held that asking the accused to give thumb impression does not amount to testimonial compulsion which is violative of Article 20 (3) of the Constitution of India. Mr Sadasiva Reddy, however, contended that section 73 of the Indian EVIDENCE ACT, 1872 gave power to the Court to direct any person present in court to write any words or figures for the purpose of enabling the court to compare the words or figures so written with any words or figures alleged to have been written by such person ; and that section also applied with necessary modification to finger impressions. According to the learned counsel, that section did not empower the court to direct a person present in court to give finger impressions for the purpose of enabling the Police Investigating the offence to gather evidence against the accused. Section 73 of the Indian EVIDENCE ACT, 1872 reads as follows : - "In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made, any signature, writing or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing or seal has not been produced or proved for any other purpose.";