19&1 'I'll.1 .Marni,tment of !itar/11~ lloltl v. The 1 Vorkmrn Wancl100 J. • lo StPREME COl1 RT RRPORTS [1962] & Ors.

.It is not necessary to state in any detail the facts of each of the case~ now before us. We shall, pherefore, sfyl.te only so much of the facts as have occasioned calling in aid of the provisions of' cl. ( 3) of Art. 20 of the Con·stitution. first case, namely,, Criminal Appeal 146 of 1958, the State of Bombay The respondent was charged, along" ith another person, under s. 302, read with s. 34 of the I. P. C., as also under s. 19( e) of Indian Arms Act (XI of 1878). The Trial Court found him guilty of those charges and sentenced him to imprisonment for life under s. 302, read with s. 34 of the I.P .C. and to a term of-two years rigorous imprisonment z_ for the offence under the Arms Act. At the trial the 'identification of the respondent, as one of ihe two alleged culprits, was the most important quost{o:q to be doci<led by the Court. other evidence, .the prosecution adduced in evidence a chit-Ex. 5-a11eged to be in his handwriting and said to hM·e been given by him. In order to prove _. ·that Ex. q was the police had obtained frcm him, .respondtint, during the investigation, th1:cc specimen hand writings .of his on three separate sheets of paper which were marked as Exs. 27, 28 and 29. Th,. disputed document, namely, Ex. 5 was .compar€d with tlie admitted handwritings on Exs. 27, 28 and ..J 29 by the Haridwriting Expert whose evidence~l ''vas td the:. eff~ct that ~hey are all writ.in gs by the ' I ·s::tme'p~·rson. 'At the trial and i11.the. ]!igh. Qourt, tho handwriting of. • j Besides ~ 1961 · The Stal• of Bombay v. Kathi Kalu Oghad Sinha O. J. I .. - - .J. 3 S.C.R. SUPREME COURT REPORTS 19 the question was raised as to the admissibility of the specimen writings contained in Exs. 27, 28 and 29, in view of the provisions of Art. 20(3) of It is an admitted fact that the Constitution. those specimen writings of the 81cused had been taken by the police while he was in l'olice custody, but it was disputed whether the acer - d had been compelled to give those writings withh. the meaning of cl. (3) of Art. 20. The plea of the accused that he was forced by the Deputy Superintendent of Police to give those writings has not been accepted by the learned Trial Judge. But those documents have been excluded from consideration, as· inadmissible evidence, on the ground that though there was no threat or force used by the police in obtaining those writings fr·1m the accused person, yet in the view of the Court "the element of compulsion was implicit in his being at that time in police custody." In this conclusion both the Trial Judge and the High Court have agreed. The identification of the accused person was also sought to be proved by the evidence of witnesses, who identified him at an identification parade. But the holding of the identification parade ·has not been sought prohibition of cl. After eliminating the Exs. 27, 28 and 29 from their consicler'ltion, the High Court, on a consideration of the other evidence in the case, came to the conclu sion that the identity of the respondent had not been established beyond a reasonable doubt. Hence, giving him the benefit of doubt, they acquitted him. The State of Bombay moved this Court and obtained special leave to appeal from the Judgment and Order of acquittal, passed by the High Court. On these facts, the only questions of constitutional importance that this Bench has to determine are; (1) whether by the production of the specimen handwritings-Exs. 27, 28, and 29-the accused could be said to have been 'a witness against himself' within the meaning of Art. 20(3.) of the to be brought within (3) of Art. 20. 1911 n .. s1o1tof Bombay v. Kathi Kalu Ogl1ad Sinha C. J. 20 SUPRKUE OOUR'l' REPORTS [19()2] Constitution; and (2) whether the mere fact that when those specimen haudwriti11gH ha<! been giveu, the accused person was in police custody could, by itself, amow1t tu compulsion, apart from any other circumslanees 11·hi\·h coui<l be 11rg«1l as vitiatii1g the consent of th<· accm; rd in .,i,·in" those R™'Cinwn /": handwritings. Thi' Bench is not concerned with the further question whether in all the circumstances disclosed by the e\·idcnce in this case, the ar; cused could be said to have' been com1wllc<l, as a matter of fact, to giv<' those spe«inwns. 1·~ .:".) ,of facts In Criminal Appeals 110 and 111 of Hl58, which arose out of the sanie H<'t accused person has been convicted b~· th(' Courts below under ss. 380 and 45i of the I.P.C., as also under s. 19( f) of the Indian Arms Aet. The facts of the case necessary for bringing out the points in controversy ar~ that a 8hop in Hissar in Punjab was burgled. In th<· eournc of t.hc burglary four double-barrelled giurn, one single-barre lier! gun and a rifle were stolen. During his iutcrrogation by the police at the iiwestigation stagl', the appellant is alleged to have gi,·en the information that out of the arms stolen from the shop at Hissar he had buried one .22 bon' rifle, two .12 bore douhle barrelled guns arnl 011e .18 singlc·harr .. lled gun at a certain place. It is alleged that as a consec1iwnce of the infom1ation thus gi\·en b~· t.hc ae<,use<l and on his pointing out the exact loeat ion where these buriecl articles could be found, the rifk~ and guns were actually reciwered. During the inwstigation the police had t'lken possession of 1·<·rtain glass panes and phials from the hurgle<l shop which bore some palm and finger impressions ( Exs. PI 0 to In onler to compare the impressions on Pl.'.!). those glass panes anrl phials with tho,;e of the accused. the invPstigating police officPI' got imprPssions of the palms and fingers of the accused taken in the presence of a Magistrate. On the evidence adduced by the prosecution, including the - '. , 1961 T Ire State of Bombay v. Kathi Kalu Oghcvl SinhaO. J. - • • 3 s.c.:R. SUPREME COU:rtT REPORTS 21 fact of the recovery of the firearms and the evidence of the identity of the imprPssions of the accused taken as aforesaid, he was convicted and sentenced by the Courts below to certain terms of imprisonment and was also ordered to pay a fine of one thousand rupees. On appeal, the sentence of fine and imprisonment was modified by the Court of Appeal. In revision in the High Court, both the revisional applications were dismissed. The convicted person prayed for and obtained the necessary certificate of fitness under Art. 134( 1) ( c) of the Constitution from the High Court of Punjab . The points raised in this Court were; ( 1) that s. 27 of the Indian Evidence Act is violative of Art. 14 of the Constitution; and (2) the impressions of the appellant'e palms and fingers taken from him after arrest, which were compared with impressions on the glass panes and phials, were not admissible evidence in view of the provisions of Art. 20(3) of the Constitution. Though the provi sions of ss. 5 and 6 of the Identification of Prisoners Act, 1920, (XXXIII of 1920) have not in terms been attacked as ultra vi res Art. 20( 3) of the Constitution, the effect .of the argument based is to bring into controversy the on that article constitutionality of ss. 5 the Act. and 6 of As a matter of fact, one of the propositions of law to be urged in support of the appeals is stated in these terms; "that ss. 5 and 6 of the Identification of Prisoners Act, 1920, read with Art. 20(3) of the Constitution render the evidence of measurements to be inadmissible". In the last case, Criminal Appeal 174 of 1959, the State of West Bengal has preferred this appeal by special leave granted by this Court under Art. 136( 1) of the Constitution against the judgment and order of the High Court at Calcutta dated June 4, 1959, passed in its revisional jurisdiction, against an order of the Magistrate, First Class, Howrah, directing respondent to give his ·---,.-.··;,.',,.----:·:"': ... ...t. ' . ~- ~ '~- . \ ",. 22 SUPREME COURT REPORTS [l!lG::] 1961 The Sinl.a C. J ~. , contraband respondent, along with Th• State of·. B0":_•Y specimen writing '1nd signature, under s. 73 of the Indian Evidence Act. It is only necessary to state to bring out the the following facts in order KathiKalu Oghad questions of law bearing on the interpretation of -. c_ the Constitution. During the investigation of a criminal case relating to trafficking in contraband opium, the respondent's residence was searched and ·certain quantity - of was alleged to have been found in his posses sion. ai10ther person,' was produced before a Magistrate of the Ist Class at Howrah and was later released on bail. From tile materials and __ statements obtained during the investigation of the case by the· police, _it was - considered that there were ·_reasonable grounds to believe that the endorsement on the back of certain railway receipts for consignment of goods seized at Howrah Railway Station was in the handwriting of the respondent, and it was, therefore, necessary to take his specimen writing aud signature for the purpose of comparison and the accused were produced verification. before the i\Iagistrate, Investigating Officer made a prayer to the Magistrate for taking specimen writing and signature of the respondent. On an adjourned date when the accused persons, including the respondent, were present in the Court of the Magistrate, the respondent declined to give his specimen writing and signature, contending that Art. 20 (3) of the Constitution prohibited any such specimens being taken against the will of the accused. After hearing th'} parties, the learned. Magistrate overruled the objection on behalf of the accused and allowed the prayer by the prosecution for taking the specimen writing and signature of High Court at Calcutta under s. 43!J of the Cr. P.O. and Art. 227. of the Constitution. The case was heard by a Division Bench consisting of J.P. l\Iitter and Bhattacharyya, JJ, on July 2 and 3, 1958, but the judgment was not delivered until the respondent moved respondent. _ The \Vhcu o A 1961 The State of Bombay v. Kathi Kalu Oghad Sinha 0. J. - ' 3 S.C.R. SUPREME COURT REPORTS 23 ~ decision of 4th of June, 1959. The Court held that tho prohibition contained in Art. 20 (3) of the Constitution applied to the case of writing and signature to bo taken, as directed by tho learned Magistrate. The Court relied this Court in 111.P. i:Jharma's case.(') In coming to this conclusion, the Division Bench disagreed with tho previous • decision of another Division Bench of that Court the case of Sailendra Nath Sinha v. The State('), which had laid down that a mere direc tion under s.73 of the Evidence Act to a person accused of an offence to give his specimen writing did not come within the prohibition of Art. 20 (3) of tho Constitution. Tho earlier Bench further held that the decision of this Court in Sharma's case('), referred to above, did not govern the case of direction given by the Court m1der s. 73 of the Evidence Act for giving specimen writing. Instead of referring the question to a larger Brmch, the later Division Bench took upon itself to pronounce against tho considered view of that Court in the The State of West Bengal earlier decision. ,• naturally had to come up to this Court to get the constitutional issues determined because the issues raised were of far-reaching investigation and trial of criminal cases. The main question which a.rises for determination in appeal is whether a direction given by a Court to an accused person present in Court to give his specimen writing and signature for the purpose of comparison under the provisions of s. 73 of the Indian Evidence Act infringes the fundamental right enshrined in Art. 20 (3) of the Constitution. importance in • Tho arguments at tho Bar may be classified as taking three distinct lines. The first line, on the one extreme, may bo said to have been taken by l\Ir. Sikri, the Advocate General of Punjab, and which may be characterised as a narrow view, • ..: (I) [1954) S. C.R. 1077. (2) [l955J A. I. R. Cal. 247. 1961 The Stale of Bcmf.,ay ..... K 'l~h i K al u OglKJd Sinha C. J. 24 SUPREME COt:RT REPORTS [1962 confinf'rl to the Constitution runs ai; follows : Cl. (:!) aforcsai<l, in view of its scttiug, its hii; tory anrl the policy underlying, the privilege accorded by to an applied at ohould accused pnson, It the i;titge of inw~stigation of an offence. should be caoes of compulsory extraction of ineriminating st.'llf'ments or communi cations by an accused person in Court, the expression 'compelled to be ;t witnoss' being understood as meaning 'bci11g compt•llcd to gil'e oral testimony'. 1t docs not inelud<' th<• <'ompulsor:· production of dot:u nwnts. Rimilarly, it dor" uot prohibit the compulsory exhibit.ion or examination of th:• bodr of the ;wcus ecl, or any part <Jf it, or the taking of' specimen writ ing, thumb impression, impression of the palm or the foet or the fin!!crn of an arcusccJ. Wl1cthcr or not there has h<'.'<'I~ compulsion shoukl be judged by the nature t>f the action t11ken by tho authority, or the Court that determines the controvcrsv, and not tho Rtate of minrl of the accused. " • On the other cxtn'me is the argument by Mr. S.P. Varma, for the acl'usccl in the firnt cai;c, who cont<:nclcd that the clause afor,,said of the Constituti011 gi\·es ccompkte ym,\t·dion of th(• widest amplitudt• to an accused p(•rno11, irrcsp<'cti\·e of the time am! place and of the nature of tho tn·idcnce, whethC'r it is oral or documentary or material. Tho extr<'mc form, which his argument took can best be stated in hi;; own words as follows : "Anything caused, by any kiml of thrl'at or inducement, to be said or done, by a pcrnon, accuHcd or likely to be accused of any offence, by non-voluntary positi\'C act or speech of that person which furthers the ca,.se of ~my prost·cution against him or which results 01· is lik<'lv to result in the incrimination of that person qud any offence, is violative of the guarantc:rl under cl. (3) fundamc11t.al of Art. 20 of India". According to his argument, if an accused person makes any statement or any discovery, there the Co11stilution .. 1961 The State of Bombay v. Kat hi K alu Oghad Sinha 0. J. 3 S.C.R. SUPREME COURT REPORTS 25 is not only a rebuttable presumption tha,t he had been compelled to do so, but that it should bo inferential taken as a conclusive proof of that fact. Any kind of inducement, according to him, is also included in the expression 'compulsion' by the police or elsewhere. The test, according to him, is not the volition of the accused but the incriminatory nature of the statement or communi cation. Hence, any statement made to a police officer, while m police custody, brings the same within the prohibitory ambit of tho clause of the Constitution. On the face of them, the propositiorrn propounded by Mr. Varma are much too brondly and widely stated to be accepted. 'lppearing for 'l'h e third view, which may be characterised :ts an intermediate view, was advoca.ted by the learned Attorney General, the Union. According to him, a person seeking protPction under the clause must satisfy <tll the four consti tuent elements contained in cl. (3) of Art. 20, namely, (1) he must be an accused person ; (2) he must hn, ve been compelled; (3) the compulsion must be to be a witness; and (4) against himself. Compulsion, according to him, means coercion or constraint and does not include mere asking by the police to do a certain thing or the direction by a court tu give a thumb impression or specimen In other words, compulsion has to be writing. equated tu wh'lt has been sometimes chHacterised as "third degree" methods to extort confessional statements. "To be a witness" is an expression which must be understood m consonance with the existing law of evidence and criminal procedure, e.g. ss. 27 and 73 of, the Evidence Act and ss. 94 and 96 of the Code of Criminal Procedure, Though, according to English Law, the expression is con fined to oral testimony, he was prepared to go to the length of conceding that any statement, whether oral or in writing by an accused person, relevant transmitting his knowledge disclosing 1961 The Strik of Bombay v. Kathi Kalu Og/11Jd Si11lKJ C. J. 26 SlJPREllIE COURT REPORTS [1962] facts of which he was aware, woulcl amount to 'bri11g a witness' ag~inst himself. nut mere production of some material evidence, by itsPll; wouhl not come within the nm bit of the expression 'to be a witness'. The se\'cral questions for decision arisi11g out of this bakh of ease~ ha\'e to be answered with reference to the provisions of cl. (:!) of • .\rt. 20 of the Constitution which is in these terms : - "!\o person nccuscd of any off<,ncf' shall he compclletl to be a witness against himself." These proYisions came up for cousiclcration Ly the the ease of Jl. l'. Sh-:1rnw v. Sai-i8h Full Court Clumdra. (') Though the question clirnctly arising for clecision i11 that case was whether a search aml seizure of documents uwlcr the proYisio11s of ss. !.J4 and !l(i of the Colle of Criminal Procedure came within the ambit of the prohibition of cl. (3) of Art. :!O of the Constitution, this Court eoyered a much wider field, l~esides laying down that the 8carch autl seizure complained of in that case were not within tho prohibition, this Court exnminc<l the origin and scope of the doctrine of protection :>gainst self-incrimination with reference to English Law and the Constitution of the 'Cnitcd States of America, with particular reforcnce to the Fourth and Fifth Amendments. On an examination of the case law in England and America a.nd the standard text hooks on Evidence, liko Phipson and Wigmore, a.nd other authorities, this Court obser\'ed as follows:- stated "Broadly guarantee Art.20(3) is against "testimonial compulsion". It is suggested that this is confined to the ornl <'vitlence of a person standing his trial for an offence when called to tho witness· 'Vo can sec no reason to confine the stand, content of the constitutional guarantee to this barely literal import. So to limit it would < 1) Ll954J s.c.R. ion: .. .. 196'1 The State of Bombay v. J{athi J(alu .Oghcui Sinha C. J. -- - :~ l'.C.R. SUPREME COURT REPORTS 27 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 article 20(3) is "to be a wit1wss". A person can "be a witness" not merely by giving oral evidence but also by producing documents or making intelligible ges· tures as in the case of a dumb witness (see sec tion 119 of the Evidence Act) or the like. "To be a witness" is nothing more than "to fur nish evidence", and such evidence can be furnished through lips or by production of a thing or of a document or in other modes. So far as production of documents is concer ned, no doubt section 139 of the Evidence Act says that a person producing a document on summons is not a witness. But section is meant to regulate the right of cross examination. It is not a guide to the conno tation of the word "witness", which must be understood referring to a person who furnishes evidence. Indeed, every positive volitional act which furnishes evidence is testimony, and testi monial compulsio>1 connotes coercion which procures the positive volitional cvidentiary 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. Th~ phrase used in article 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 com pulsion in the court room but may well extend to compelled testimony previously It is available therefore obtained from him. to a person against whom a formal accusation its natural sense, i.e., 1961 The State of Bombay •. , Kathi Kalu. Oghad SinJW 0. J. sb:PREME cou'Rir REPo:R'i's [1962j. relating to the commission of an offence has been levelled which in.the normal course may result in prosecution. Whether it is ava.il able to other persons in other situations does not call for decision in this case." This Court did not accept the contention that the guarantee against testimonial compulsion is to be confined to oral testimony at the witness stand when standing trial for an offence. The guarantee was, thus, held to include not only oral testimony given in court or out of court, but also to statements in writing which incriminated the maker when figuring as an accused person. After having heard elaborate argument£ for and against the views thus expressed by this Court after full d!Jliberation, we do~ not find any good reasons for departing from those view&. But the Court went on to observe that "to be a witness" means "to furnish evidence" and!includes not only oral testi mony or statements in writing of .the accused but also production of a thing or of evidence by other modes. It may be that this Court did not intend to lay down-certainly it was not under discussion of the Court as a point directly arising for decision -that calling upon a person accused of an offence to give bis thumb impression, his impression of palm or fingers or of sa!'.Ilple handwriting or signa ture comes within the-ambit of "to be a witness" which has been equated to "to furnjsh evidence". Whether or not this Court intended to lay down .the rule of law in those wide .terms. has been the subject matter of decisions in the different High Courts- in this country. Those decisions are, by no means, uniform ; and~ conflicting views have been expressed even in the same High Court on different occasions. It will serve no i useful purpose examine those decisions in detail. It is enough to point out that the most recent .decision, to which .our attention was called, is of a FulrBench of the Kerala High Court in the case1 of State of Kerala • • 1961 TM Stale of Bombay v. K a<hi K alu Oghad Sinha a. J. - - --1 3 S.C.R. SUPREME COURT REPORTS 29 v. K.K. Sankaran Nair( 1). In that case, Ansari C. J., who delivered the opinion of the Court, has made reference to and examined in detail the pronounce ments of the different High Courts. Ultimately he came to the conclusion that the decision of this Court in Sharrna's case(') also covered the case of a specimen har.dwriting given by an accused person, under compulsion. "To be a witness" may be equivalent "furnishing evidence" in the sense of making oral or written statements, but not in the larger sense of the expression so as to include giving of thumb impression or impression of palm or foot or fingers or specimen writing or exposing a part of the body by an accused person for purpose of identification. "Furnishing evidence" in the latter sense could not have been within the contemplation of the Consti tution-makers for the simple reason that-though they may have intended to protect an accused person from the hazards of self-incrimination, in the light of the English Law on the subject-they could not have intended to put obstacles in the way of efficient and effective investigation into crime and taking of of bringing criminals to justice. The impressions or parts of the body of 'ln accused person very often becomes necessary to help the investigation of a crime. It is as much necessary to protect an accused person against being compel led to incriminate himself, as to arm the agents of law and the law courts with legitimafo powers to bring offenders to justice. Further more it must be assumed that the Constitution-makC'rs were aware of the existing law, Evidence Act or ss. 5 and 6 of the Identification of Prisoners Act (XXXIII of 1920). Section 5 authorises a Magistrate to direct any person to allow his measurements or photographs to be for example, s. 73 of (I) A. J. R. 1960 Kerala 392. (2) [1954] s.c.R,. ion. .'1961 '.Th.-S<ate of _Bom6ay v. Kaihi, l{alu·Oghnd .S1'n1ia 0. J. 30 SUPREME COURT REPORTS [1962] taken, if he is satisfied tha~ it is, expedient for the purposeR of any investigation or proceeding under the Code of Criminal Procedure to do so : 'Measure ments' , include finger impressions and foot-print impressions. If any such person who is directed by a Magistrate, under s. 5 of the Act, to allow his measurements or photographs to be taken resists or refuses to allow the taking of the measur ~ments or photographs, it has been declared lawful l;>y s. 6 to use all necessary means to secl, lre the taking of or photographs. Similarly, s.73 of the Evidence Act authorises the Court to pe~.'mit the taking of finger impression or a specimen handwriting or signature of a person present in Court, if necessary for the purpose of comparison. required mflasurements The matter may be looked at from another point of view, The giving of finger impression or of specimen signature or of handwriting, strictly speaking, is not "to be a witness". "To be a witness'' means imparting knowledge in respect of relevant fact, by means of oral statements or statements m writing, by a person who has personal knowledge of the facts to be comm1micat ed to a court or to a person holding an enquiry or investig;i,tion. A person is said-'to be a witness' to a certain state of facts which has to be determined by a court or authority authorised to come to a decision, by testifying to what he has seen, or something he has heard which is capable of being heard and is not hit by the rule excluding hearsay or giving his opinion, as· -an expert, in respect of matters in controversy. Evidence has been classi fied by text writers into three categories, namely, (1) oral testimony; (2) evidence furnished by docu ments; and (3) material evidence. We have already indicated that we are in agreement with the Full Court decision in Sharrna's case (1 ) that the prohibi tion in cI:(3) Of Art.20 covers not only oral testimony given by a person accused of an offence but also (II [1954] S. C.R. I 077. 1 I j I "- 3 S.C.R. SUPREME COURT REPORTS 31 . 19~1 The ·s10te tf Bonibay v. Kathi Kalu Oghad Scinha C. J. -" -- ' - his written statements which may have a bearing on the controversy with reference to the charge against him. The accµsed may have doei•mentary evidence in his possession which may throw some the controversy. If it is a document light on which is not his statement conveying his persopa] knowledge relating to the charge against him, he may be called upon by the Court to produce that document in aecordance with the provisions of s.139 of in terms, the Evidence Act, which, provides that a person may be summoned to produce a document in his possession n power and that he does not become a witness by the mere fact that he has produced it; a1;d therefore, he cann')t be cross-examined. Of course, he can be cross-examined if he is called as a witness who has made statements conveying his personal knowledge by reference to the contents of the document or if he has given his statements in Court otherwise than by reference to the contents of the documents. In our opinion, therefore, the observations of this Court of the Evidence Act has no bearing on the connotation of the word 'witness' is not entirely well-founded in is well-established that cl.(3) of Art.20 law. It self-incrimination by an accused person. Self-incrimination mUHt mean conveying information based upon the personal knowledge of the person giving the information and cannot include merely the mechanical process of producing documents in court which may throw a light on any of the points in controversy, but which do not contain any statement of the accused based on his personal kn ow ledge. For example, the accused person may be in possession of a document which is in his writing or which contains impression. The his signature or his production of such a document, with a view to the writing or the signature comparison of or the impression, (1) [1954] S.C.R. 1077. in Sharma's case(') directed against the statement that s.139 is not IJ11 ':..le State of Bombay v. Kathi Kalu Oghad Sinha C.J.

#32. SUPREME COURT REPORTS (1962] an accused person, which can be said to be of the nature of a personal testimony. When an accused person is called upon by the Court or any other authority holding an investigation to give his. finger impression or signature or a specimen ·of his handwriting, he is not giving any testimony of the nature of a 'personal testimony'. The giving of a 'personal testimony' must depend upon his volition: -He can make any kind of statement ' or may· refuse to make any statement. But his finger impressions or his handwriting, in spite of efforts at concealing the true nature of it by dissimulation intrinsic . character. Thus, the giving. offinger impressions . or of· specimen ·writing or of signatures by an accused person, though it may amount to furdsh ing evidence . in the larger sense, is not ir.clu<lc<l within the expression 'to be a witness'. change cannot In order that a testimony by an accused -person may be said to have been self-incriminatory, the compulsion of which comes within the . prohibi tion of the constitutional provision, it must be of _ such· a·· character that by itself it .should have the ·tendency of incrimfoatirig the accused, if not also Iu other words, it should be of actually doing so. a statement which niakes the case against . accused person atleast probable, considered by itself. A specimen handwriting or signature or _ finger impressions by themselves are no testimony at all, being wholly innocuous because they are unchangeable except in rare cases where the ridges -of the fingers or the style of writing have been tampered with. They are only materials for com parison in order to lend assurance to the Court that its inference based on other pieces of cvid<·nce · i~ reliable. They are neither oral nor documentar.}' evidence but belong to the third category of material evidence which is outside the limit of •testimony'. Similarlr, durin~ the investi~ation of a ~rime J r) ~ .1 I ., I • 1961 Thi State of BomblJ!! v .. Kathi Kalv Ogluld Sinha C. J. I l • 3 S.C.R. SUPREME COURT REPORTS 33 } • by the police, if an accused person were to point out the place where the corpus delicti was lying concealed and in pursuance of Sllch an information being given by an accused person, discovery is made within the meaning of s.27 of the Evidence Act, such information and the discovery made as a result of the information may be proved in evidence even though it may tend to incriminate the person giving the information, while in police custody. Unless it is held that the provisions of s. 27 of the Evidence Act, in so far as they make it tendency to admissible evidence which has the incriminate the giver of information, are unconstitutional as coming within the prohibition such information would of cl. (3) of Art. 20, amount to furnishing evidencJ. This Court Sharma's case (1 ) was pot concerned with pronounc ing upon the constitutionality of the provisions of s. 27 of the Evidence Act. It could not, therefore, be said to have laid it down that such evidence could not be adduced by the prosecution at the trial of the giver of the information for an alleged crime. The question whether s. 27 of the Evidence Act was unconstitutional because it offended Art. 14 of the Constitution was considered by this court in the case of State of U. P. v. Deomen Upadhyoya('). It was that s. 27 of the Evidence Act did not offend Art. 14 of the Constitution and was, therefore, intra vires. But the question wh Jther it was unconstitutional because it contravened the provisions of el. (3) of Art. 20 was not considered in that case. That question may, therefore, be treated as an open one. The question has been raised in one of the cases before us and has, therefore, to be decided. The information given by an accused person to a police officer leading to the discovery of a fact. ,l which may or may not prove incriminatory has been made admissible in evidence by that Section. If it is not incriminatory of the person giving the this Court (1) [ 1954] S.C.·R 1077. (2) [1961] I S. C.R. It. 1981 Tho Slat. of Bombay v. KaJhi Kalu Oghad Sinha C. J. • 34 SUPREME OOURT REPORTS [1962 information, tho question does not arise. It can arise only when it is of an incriminatory character so far as tho giver of the information is concerned. If the self-incriminatory information has b11en given by an accused person without any threat, that will be admissible in evidence and that will not be hit by the provisions of cl. ( 3) of Art. 20 of tho Constitution for the reason that there has been 110 corupulsion. It mnst, therefore, be held that the provisions of s. 27 of tho E,·idcnce Act are not within the prohibition aforesaid, unless compulsion has bP<'n used in obtaining the information. In this connection the question was raised before us that in order to bring the case within the prohibition of cl. (3) of Art. 20, it is not necessary that the statement ~hould have been made by the accuse<! person at ti time when he fulfilled that character ; it is enough that he should have been an accused person at the time when the statement was sought to ho proYed in Court, oYen though he may not ha-ve been an accused person at time he had made that statement. The correctness of the decision of the Constitution Bench of this Court in the case of Mohamed Dastagir Y. The State of Madras (1 ) \Vas questioned because it was said that it ran counter to the observations of the Full Court in Sharma's ca.~e. (1 ) In the Full Court decision of this Court this question did not directly arise ; nor was it decided. On the other hand, in Sharma's case('), held that the this Court, prokction under Art. 20 (3) of the Constitution is available to a person against whom a formal accusation had been levelled, inasmuch as a First Information Report had been lodged against him. Sharrna's case ('}, therefore, did not decide anything to the contrary of what this Court said in Mohame.d Dastagir v. The State of Madras('). (II (1960] ! S.C.R. 116. (Zl [1954] S.C.R. 1077. • , .. ---- J., 1961 Th. State Pf Bombay v. Kathi Kalu Oghad Sinha O. J. 3 S.C.R. SUPREME COURT REPORTS 35 The latter decision in our opinion lays down the law correctly. I. In order to bring the evidence within the inhibitions of cl. (3) of Art. 20 it must be shown not only that the person making the statement was an accused at the time he made it and that it had a material bearing on the criminality of the maker of the statement, but also that he was compelled to make that statement. 'Compulsion' in the context, must mean what in law is called 'duress'. In the Dictionary of English Law by Earl Jowitt, 'duress' is explained as follows : "Duress is where a man is compelled to do an act by injury, beating or unlawful imprisonment (sometimes called duress in strict sens'J) or by the threat of being killed, suffer ing some grievous bodily harm, or being unlawfully (sometimes called menace, or duress per minas). Duress also includes threatening, beating or imprison ment of the wife, parent or child of a person." imprisoned The complusion in this sense is a physical objective act and not tile state of mind of the person making the statement, except where the mind h11s been so conditioned by some extraneous process as to render the making of the statement involuntary and, therefore, extorted. Hence, the mere asking by a police officer investigating a crime against a individual to do a certain thing is not certain compulsion within the meaning of Art. 20 (3). Hence, the mere fact that the accused person, when he made the statement in question was in police custody would not, by itself, be the foundation for an inference of law that the accused was compelled to make the statement. Of course, it is open to an accused pexson to show that while he was in police custody at the relevant time, he was subjected to treat~ent which~ in the circumstances of the case, • > - 1961 Th~ Statt o,, Bo..OOy v. f\ at hi Kalu Ogharl Sinha C. J. - - 3G SUPRE~fE COURT REPORTS [1962] woul~ lend itself t? the inference that compulsion In other words it will be was, m fact, exerc1secl. a question of fact in each case to be determined by the Court on weighing the facts and circumstances clisclosPd in the evidence before it. In vi{'w of these considerations, we have come to the following conclusions :- (I) An accused person cannot be said to have heen compellec! to be a witneRs against himself simply because he made a statement while in In other police f'nstocly, without anything more. words, the mere fart of being in police custody at the time when thP statement in question was made would 11ot, hy itself, as a proposition of law, lend itself to the inference that the accused was com pelled to make the statement, though that fact, conj1mc:tion with oth•.,1· circumstances disclosed in evidence in a particular case, would ho a relevant consideration in an enquiry whcth{'r or not the accused person had b~en compelled to make the impugned statement. (2) The mere questioning of an accused person b,Y a police officer, resulting in a volw1tary statcmPnt, which may ultimately tum out to be incriminatory, is not 'compulsion'. (3) 'To be 11 witness' is not equivalent to 'furnishing evidence' in ilk widest significance ; that is to say, as inclncling not morely making of oral or written st.atementA but 11180 procluetion of docu ments or gi\'ing materials which may be relevant at a trial to determine thP guilt or innocence of the accused. (·I) Giving thumb impressions or impressions of foot or palm or fingers or specimen writings or showing parts of the body hy way of identification ~r\l not iAcluded in the expression 'to be a witnes~ ' 1961 The State of Bombay v. Kath · K alu Oghad s;nha c. J. Da8 G'up'a J. 3 S.C.R. SUPREME COl 1RT BEFOR'rs 37 ( 5) '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. ' - • > ' (6) 'To be a witness' in its ordinary grammati cal sense means giving oral testimony in Court. Case law has gone beyond this strict literal inter pretation of the expression which may now bear a wider meaning, namely, bearing testimony in Court or out of Court by a person a~cused of an offence, orally or in writing. (7) 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 tho statement. It is not enough that he should become an accused, any time after the statement has been made. The appeals will now be listed for hearing on merits in accordance with the above principles. The Judgment of S. K. Das, Sarkar and Das Gupta, JJ. was delivered by DAS GUPTA, J.-Is a person compelled "to be a witness" against himself within the meaning of Art.20(3) of the Constitution when he is compelled to give his specimen handwriting or signaturP, Or impressions of his fingers, palm or foot to the investigating officer? Is he compelled "to be a witness" against himself within the meaning of the same constitutional provisions when he is compelled to give his specimen handwriting and signature for the purpose of comparison under the provisions of s. 73 of the Indian Evidence Act? These are tbe main questions canvassed before us and they have both been answered in the negative in the judgment just pronounced by my Lord the Chi~f Justice. We agree with these answern; but as we have reached the same conclusion, · by a '1951 -Th< state of · B,mbay v. Kathi Kalu Og/iad Da• Guph J. 38 SUPREME COURT REPORTS [1962] somewhat different approach, -and for different reasons, these have to be briefly indicated. The question as regards the meaning to - be -- attached to the words "to be a witness" as used the Constitution came up for - in _ Art.20(3) of consideration iu 1li.P. Sharma's Case (1) It was heard by all the .eight Judges who constituted the Court at the time, and they came to a unanimous decision. The Court in that _case had to decide whether search and seizure of documents under ss.9! and 96 of the Code of Criminal Procedure is a compelled production -of_the_same so as to infringe the provisions of Art.20(3) of the Constitu tion. After pointing out that the guarantee in Art.20(3) was against "testimonial compulsion", Jagannadhadas J. speaking for the Court said:- "The phrase used ill 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 section 119 of the 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." He next observed that s.139 of the Evidence Act - which says that a person prorlucing a document on summons is not a witness, is really meant to regulate the 1ight of cross-examination and can not be "a guide to the connotation - of the word "witness" in Art.20(3), which must be understood in its natural sense, i.e., as rnferring to a person who furnishes evidence", and then proceeded : - . - "Indeed, every positive volitional act testimony evidence furnishes -co !1954J s.c.R. 1011. 1961 The State of Bombay v. Kathi Ka!u Oghad D<:J-a GuptaJ, - > + - • gS.C.R. SttPREME COURT REPORTS 39 and testimonial comptilsion connotes coercion which procures volitional evidentiary acts of the person, as opposed the negative attitude of silence or submission on his part". the positive lt was further stated that there was no reason to think that the protection in respect of the evidence so procured was confined to what transpired at the trial in the court room. If the learned Judges had hoped that by their exhaustive judgment they would end all d1sputes about the limits of t.he protection granted by Art. 20 (3), these hopes were soon ~hattered. long raised before the Questions were before different High Courts, as to whether on the interpretation of the words "to be a witness" given by this Court in Sharma's Case, compelling an accused person to give his finger prints or impressions of palm or foot or a specimen hand writiug in the course of investigation, amounted to .The conclusions reached by the different High. Courts, and in one case at least, by two Benches of the same High Court were different. That is why it has become necessary to examine the question again, and see how far, if at all, the interpretation given in Sharma's Case(') requires modification. infringement of Art. 20(3). The complaint against the interpretation given in Sharma's Case(') is that it does not solve the problem as to what the words "to be a witness" mean ; but merely postpones the difficulty, of solving it by substituting the words "to furnish evidence" for the words, "to be a witness". It throws no light, it is said, on what. is "furnishing evidence", and unless that is clear, little is gained by saying that "to be a witness" is to "furnish evidence". Rival iuterpretations were suggested before us which it was claimed on behalf of the protagonists will solve the problem once for all. (IJ [1954) S.C.R. !077. I , • SCTPREl\IE COURT REPORTS 40 [l!J62j Das Gupta • 1961 7·h• s1at• of Bombay One of the propo~itions put forward was that "to be a witness" as used in Art. 20(3) cannot refer to anything said or done at the stage of investigation Kathi u:1. Oghad of an offence. We agree with our learned brethren - - J. --- that this is an unduly narrow construction. As was pointed out in Sltarma's Case(•) thephraseused in Art. 20(3) is "to be a witness" and not "to appear as a witness". That by itself justifies the coriclusion "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 testi monial compulsion in the ·court room but may well extend to compelled testimony . previously obtained from him". If the protection was . intended to be confined to being a witn~ss in Court then really it would have been an idle protection . . It would be completely defeated by compelling a person to give all the evidence outside court and then, having what he was so compelled to do, proved through other witnesses. An interpretation which so completely defeats the constitutional guarantee cannot, of course, be correct. The · contention the protection afforded by Art. 20(3) is limited to the stage of trial must therefore. be rejected. in court + That brings us to the suggestion that the expression "to be a witness" must be limited to ~ statement whether oral or in writing by an accused person imparting knowledge of relevant facts; but that mere production of some material evidence, whether documentary or otherwiBe would not come within the ambit of this expression. This suggestion has found favour with the majority of the Bench; we think however that this is an unduly narrow interpretation. We have to remind ourselves that while on the one hand we should bear in mind that the Constitution-makers could not have intended to stifle legitimate modes of investigation we have to remember further that quite clearly they thought that certain things should not be · (1) [1954) S.C.R. 1077. .! 1M1 The Stale af Boinbay v., Kathi Kalu 6ghad Dae Gupta J, • ~ S.d.R. SUPREME COURT REPoRTS 41 result suggested would a:llowed to be done, during the investigation, or trial, however helpful they might scPm to be to the unfolding of truth and an unnecessary to the police system apprehension of disaster and the administration of justice, should not deter us from giving the words their proper meaning. It appears to us that to limit the meaning of the words "to be a witness" in Art. 20(3) in the in allowing manner compulsion to be used in procuri:og the production from the accused of a large number of documents, which are of evidentiary value, sometimes even more so ,.than any oral statement of a witness might be. Suppose, for example, an accused person .~has in his possession, a letter written to him by an alleged co-conspirator in reference to their common intention in connection with the conspiracy for nommitting a particular offence. Under s. 10 of the Evidence Act this document is :the relevant!fact as against the accused himself for the purpose of proving the existence . of the conspiracy and also for the purpose of showing that any such person was a party to it. By producing this, the accused will not be imparting any personal knowledge of facts ; yet it would certainly be giving evidence of a relevant fact. Again, the possession by an accused of the plan of a house where burglary has taken place would be a relevant fact-under s.8 of the Evidence Act as showing preparation for committing theft. By producing this plan is he not giving evidence against himself ? To a person not overburdened with technical learning, the giving of evidence, would appear to Indeed English be the real function of a witness. literature is replete with instances of the use of the word "wl'tness" as meaning "evidence." To give one example; Shakespeare's Horatio speaking to Hamlet says :- 1H1 Tho S1ai, oj Bombay v. Kail>i .Kalu Oghad Dai Gup1aJ. 42 . StJl'Rll:ME COURT REPORTS [1962] "Season your admiration for a while with ru1 attcnt ear, till I may cleliver, Upon t.hc witness of these gentlemen, This marvel to you" (Hamlet, Act I, Scene, II). , _ There can be no doubt that to the ordinary user of English words, the word "witness" is always associated with evidence, so that to . say that to be a witness is to furnish evidence is really to keep to the natural meaning of the words. Hut, what the purpose of evidence ? Section :~ of the Indian Evidence Act defines evidence thus :- • "Evidence means and includes (1) all Htal-0ments which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements arc called oral evidence; (2) all documents produced for tho inspection of the Court; such documents arc called documentary evidence." Section 5 states that evidence may be given in any suit or proceeding of the existence or non-existence of every fact in issue and of such other facts as are "hereinafter declared to bo relevant and of no others." Then follow several sections laying down what arc relevant facts. It is clear from tho scheme of the various prov1R10ns, dealing with the matt-0r that the governing idea is that to be evidence, tho oral st-0,temcnt or a statement contained in a document, shall have a tcndeney to prove a fact-whether it be a fact in issue or a relevant fact-which is sought to be proved. Though this definition of evidence . is in respect of proceedings in Court it will bo proper, once we have come to the conclusion, that the protection of Art. 20(3) is available even at the stage of investigation, to hold that at that A .1966 The Slate of Bombay v. Kathi Ka!u Oghad Das Gupta .r. - - • .IL 3 S.d.R. SUPREME dOURT REPORTS 43 stage also the purpose of having a witness is to obtain evidence and the purpose of evidence is to prove a fact. The illustrations we hA,ve given above show clearly that it is not only by imparting of his knowledge that an accused person assists proving of a fact; he can do so even by ot~er means, such as the production of documents which though not containing his own knowledge would have a tendency to make probable the existence of a fact in issue or a relevant fact. Much has been written and discussed England and America as regards the historical origin and development of the rules against "testimonial compulsion". These matters of history, however, interesting they be, need not detain us and we must also resist the temptation of referring numerous cases especially in America where the concept of "testimonial compulsion'' has been analysed. It is sufficient to rem em her that long before our Constitution came to be framed the wisdom of the policy underlying these rules had been well recognised. Not that there was no view to the contrary; but for long it has been generally agreed among those who have devoted serious thought to these~problems that few things could be more harmful to the detection of crime or convic tion of the real culprit, few things more likely to hamper the disclosure of truth than to allow investigators or prosecutors to slide down the easy path of producing by compulsion, evidence, whether oral or documentary, from an accused person. It has been felt that the .ixistcnce of such an easy way would tend to dissuade persons in charge of inv-istigation or prosecution from conducting diligent search for reliable independent evidence and from sifting of available materials with the care necessary for ascertainment of truth. If it is permissible in law to obtain evidence from the 1961 T/i, Sl<Jle of Bornl>a;y v. /\Othi Kalu 9ghad Da11 Gupta.J. - 44 [1962) accused person by compulsion, why tread the hard path of laborious and prolonged investigation examination of other men, materials ancl docu ment,,? It has been well said that an abolition of this privilege would be an incentive for those in charge of enforcement of law "to sit comfortably in the shade rubbing red pepper into a poor devil's eyes rather than to go about in the sun hunting up evidence". (Stephen, History of Criminal Law, p. 442). No less serious is the dangrr that some accused persons at least, may be induced to furnish evidence against thdmselves which is totally false out of sheer despair and an anxiety to avoid an unplearnnt present. Of all Constitution-makers were clearlv well aware to avoid them that i\rt. 20 (3) was and it was It is obvious however that these dangers remain tho same whether the evidence which the the form of statements, oml or fornish written uliout his own knowledge or in the shape of documents or things, which though not trans mitting knowledge of the accused person directly helps the Court to come to a conclnsion against him. If production of such doeument.s, or things is giving evidPnce, then the person producing it is being a witness, on what principle or reason can it be Raid that this docs not amount to "being a witness" within the meaning of Art. 20 (3) ? We find none. in the Constitution, these dangers is compelled accused We can therefore find no justification for thinking that "to be a witness" in Art. 20 (3) means tc> impart p<·rsonal knowledge and find no reason ior departing frr.m what this Court said iu Sharmn'.~ Case(') that "to bo a witness" is nothing more than "to fumish evidence", and such evidence can be furnished through lips or by production of tl1ing or of a document or in other modes. a. The question then is : Is an accused person furni8hing eVidcnce when he is giving his specimen (O [J954J s.c.R 1011. - - - > 1961 The State of Bombay v. Cathi Kali! Oghad Das Gupta J. 3S.C.R. SUPREME COURT REPDRTS 45 handwriting or impressions of his fingers, or palm or foot ? It appears to us that he is : For, these are relevent facts, within the meaning of s. 9 and s. 11 of the Evidence Act. Just as an accused person is furnishing evidence and by doing so, is being a witness, when he makes a statement that he did something, or saw something, so also he is giving evidence and so is being a "witness", when he produces a letter the contents of which are relevant under s.10, or is producLig the plan of a house where a burglary has been committed or is giving his specimen handwriting or impressions It has to be noticed of his finger, palm or foot. however that Art. 20 (3) does not say that an accused person shall not be compelled to be a witness. It says that such a person shall not b o compelled to be a witness against himself. The question that arises therefore is : Is an accused person furnishing evidence ag~.inst himself, when he gives his specimen handwriting, or impressions of his fingers, palm or foot ? The answer to this must, in our opinion, be in the negative. the evidence given The matter becomes clear, when we contrast the giving of such handwriting or impressions, with say, the production of a letter admissible in evidence under s: IO, or the production of the plan In either of these two latter . of a burgled house. tends by itself to cases, incriminate the accused person. But the evidence of specimen handwriting or the impressions of the accused person's foot, will incriminate him, only if on comparison of these with certain other handwritings or certain other identity between the two sets fa impressions, established. By themselves, these impressions or the handwritings do not incriminate thD accused person, or even tend to do so. That is why it must be held that by giving these impressions or specimen handwriting, thD accused person does not /30 when, a,,q fqrnisb evidence against himself. fingers, palm or ' , 46 SUPREilIE COURT REPORTS [1962) 1961 The. ~al• of· &m!xzy v Kuthi KaTu Oghad Da8 Gupta .T. accused person is compelled to give a specimen handwriting or imprcs8ions of his fingn, palm or foot, it m11y be said that he has been cempclled to hr a witnrss ; it cannot however be said that he has been compelled to be a witness again8t himself. . - This view, it mn,y be pointed out, docs not in any way militate ::.gainst the policy underlying rnle against "t~stimonial C"omp11lsion" wt• have already disc11,scu above. Thf·rc is littlt• risk, if at all, in the investigator 0r the prosecutor being irnluced to lethargy or inaction because he c:11n gd mch handwriting or impressions from an accusc·cl person. For, by themsclvPs they are of littk or of no assistanct• to bring honrn the ~uilt of a11 ar.cuscd. Nor is thPro anv cham·c of tlw the i1westig'.'ltor into wrong aceus .. rl to mislead d1anrn•ls by furnishing false cvidPnct'. For, it is beyond his pown to alt<ir the ridges or other <characteristics of his hand, palm or finger or to alter tho charactPristirs of his handwriting. Wt• a.grce the conclusion therefor<' with rcadwd by the majority of th<' Bench that thrn' is 110 infringement of Art.20(3) of the Constitution by compelling an accused perR011 to give )1iR specimen handwriting or signature; or imprc~sio11s (1f hiR fingt, rs, palm or foot to tlw investigating officer or under nr<lNs of 11 court for the purpost· ;if compari~on under the provisio11s of s.'i:~ of the Inclia11 Evidence Act; though we havP not been able to agree with the view of our learned brethren that "to be a witness". i11 Art.20(3) Mhould be ,,q11at{·1l with the imparting of pcrnonal knowledge or that. an accused does not become a witness when he produces some rlocmnent not in his own hand writing even tl1011gh it may tend to prov<' facts in issue or relevant facts against him. Jn Criminal Appeals Nos. 110 & ll l of 1958 ii- farther question as re~ards tho vali<lit~ of s.27 of • -· 1961 · Tho Stale of Bombay· v. Kathi Kalu Ogha<l Das Gwpta.J. - - - 3S.C.R. SUPREME COURT REPDRTS 47 information the Evidence Act was raised. It was said that the receipt of information from an accused person in the. custody of a police officer which can be proved under s.27 is an infringement of Art.20(3). Section 27 provides that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, custody of a police officer, so much of the information, whether it amounts to a confession or not, as relates distinctly to the fact thereby It cannot be disputed discovered, may be proved. the accused that by giving such furnishes evidence and therefore is a "witness" during the investigation. Unless however he is "compelled" to give the information he cannot be said to be "compelled'' to be a witness; and so Art. 20(3) is not infringed. Compulsion is not however inherent in the receipt of information from an accused person in the custody of a police officer. There may be cases wbere an accused in custody is compelled to give the later on sought to be proved under s.27. There will be other cases where the accused gives the information without any compulsion. Where the accused is compelled information it will he an infringement of A rt. 20(3); but there is no such information infringement where he gives without any compulsion. Therefore, compulsion not being inherent or implicit in the fact of the information having been received from a person in that s. 27 necessarily custody, infringes Art.20(3) cannot be accepted. the contention information to give A question was raised in the course of the discussion as to when a person can be said to have been "compelled" within the meaning of Art.20(3). One view is that there must be an element of constraint or coercion in the physical sense before it can be said that an accused person has been "compelled''. Th!:l other view is that in addition to cases where there has been such constraint or \loercion an accl. Jsed sqol.J~Cl be sajq vo 4av~ b111m 1961 Tli•lilW<of 3o"'6ay v. Katlai J(alu Oghad D•a Gtf<plu .!. -~ ' • • • 48 SUPREMR OOURT REPORTS [l9G2] fire.arms "compelled" to be a witness whenever thoro has been inducement or promise which persuttdod the accused to be a witness, even though there has been no such coercion or constr1Lint. In Criminal Appeals Kos. 110 and 111 the information proved under s.2i of the Evidence Act was that Pokhar Singh had buried certain in village Badesra under 'l'oori and thos<' were recovered when he poinkd these out to the investigating police officer. This information w1ts proved under s.27. Hut it does not appe1u to have br!en suggested that the accused was made to give thi~ information by inJ11ccrnc11t or threat or promise. On the facts therefore there is no question of tho information having been received by compulsion. The qtw.~tion whether any inducement or promiso which lca<ls an accus<'d person to gi\·e information amounts to compulsion or not, does not therefore fall to he decided. It ma~' be pointed out that i11 the other appeals, viz., Criminal Appoal No. 146 of 19.58 ancl Criminal Appeal No. li4 of 1959, also, this question does not arise for consideration in view of our conclusion that in 1tnv c11.sc the accused docs not become 11 "witness" aga'.inst himself by giving his specimen signattirP~ or impressions of his fingers or palms. It appears to us to be equally unneressar,v to decide another queRtion which was mooted in the course of the hearing, viz., whether prohihition of Art.20(3) operates 011ly after a person has been accused of a11 offonre or even before that stage. Admittedly, in all these cases the person on whose behalf the protection under Art. 20(3) ie clii.imed gave the specimen signatures or impres sions of fingers or palms after he had been actually accused of an offence. We think it right therefore not to expres~ any op.inion on any of these ~ue~tions,