MITTER, J. -
(1.) THESE two Rules involve a point of some importance in the administration of criminal justice. The petitioners contend that the learned Magistrate's order requiring them to attend test identification parades violates their fundamental right under Article 20(3) of the Constitution which is in these terms:
'No person accused of any offence shall be compelled to be a witness against himself'.
(2.) I have had the advantage of reading the judgment which my learned brother is about to deliver. I should nevertheless like to express my own views on the subject.
In my view, the true scope of Clause (3) of Article 20 of the Constitution was laid down by the Supreme Court in the case of M.P. Sharma v. Satish Chandra, : 1978(2)ELT287(SC) . Jaganadhadas, J., delivering the judgment of the Court, observed:
'Indeed, every positive volitional act which furnishes evidence is testimony, and testimonial complusion 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'.
It is, in my view, the procuring by compulsion of the positive volitional evidentiary acts of an accused 'that is prohibited by Article 20(3) of the Constitution. It is true that an accused may be said to be compelled to attend a test identification parade, but this compulsion does not involve any positive volitional evidentiary act. His mere attendance or the exhibition of his body at a test identification parade even though compelled, does not result in any evidentiary act until he is identified by some other agency. The identification of him by a witness is not his act, even though his body is exhibited for the purpose. His compelled attendance at a test identification parade is comparatively remote to the final evidence and cannot be said by itself to furnish any positive volitional evidentiary act. I must, therefore, hold that the order of the learned Magistrate requiring the petitioners, or any of them, to attend a test identification parade does not violate the provisions of Article 20(3) of the Constitution.
(3.) A similar point was decided by a single learned Judge of the Madras High Court in the case of Subayya Goundar v. B. Subramaniam, : AIR1959Mad396 . There, the learned Judge referred, amongst others, to the case of Holt v. United States, (1910) 218 US 245. At page 522 of Willis' Constitutional Law, 1936 Edition, appears the following passage which is germane to the question before us:
'It is not a violation of the privilege against self -incrimination to require an accused to put on a hat or another garment, or to stand up, or to move his foot so that it can be seen, or to make a foot -print, because in all such cases he is not giving testimony but is exhibiting facts'.
True, we are to construe Article 20(3), but the language of Article20(3) is as to the material part tolidem verbis the 5th Amendment of the American Constitution. Dealing with the point, Holmes, J., in (1910) 218 US 245 (Supra) observed:
'A question arose as to whether a blouse belonged to the prisoner. A witness testified that the prisoner put it on and it fitted him. It is objected that he did this under the same duress that made his statements inadmissible, and that it should be excluded for the same reasons. 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'.
In the same strain are to be found comments in Wigmore on Evidence, Volume VIII (3rd Edition), Section 2263 at page 363. The emphasis is upon the testimonial status of the accused and not upon any compulsion which might be a step in obtaining the final evidence against the man. Dealing with, this topic, Wigmore observed:
'Such, finally, is the practical requirement that follows from the necessity of recognizing other unquestioned methods of procuring evidence: for if the privilege extended beyond these limits, and protected an accused otherwise than in his strictly testimonial status, if, in other words, it created inviolability not only for his physical control of his own vocal utterances, but also for his physical control in whatever form exercised then it would be possible for a guilty person to shut himself up in his house, with all the tools and indicia of his crime, and defy the authority of the law to employ in evidence anything that might be obtained by forcibly overthrowing his possession and compelling the surrender of the evidential articles, a clear 'reductio ad absurdum'.' ;