1953 SCR 730: AIR 1953 SC 325: 1953 Cri LJ 1432 in The Supreme Court of India

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1953 SCR 730 : AIR 1953 SC 325 : 1953 Cri LJ 1432
In the Supreme Court of India

(BEFORE PATANJALI SASTRI, C.J. AND B.K. MUKHERJEA, S.R. DAS, GHULAM
HASAN AND N.H. BHAGWATI, JJ.)
Criminal Appeal No. 81 of 1952

MAQBOOL HUSSAIN … Appellant;
Versus
STATE OF BOMBAY … Respondent.
Petition No. 170 of 1951
JAGJIT SINGH … Petitioner;
Versus
STATE OF PUNJAB … Respondent.
VIDYA RATTAN … Petitioner;
Versus
PARMA NAND … Petitioner;
Versus
(Petitions under Article 32 of the Constitution for writs in the
nature of Prohibition or certiorari.)
Criminal Appeal No. 81 of 1952 and Petition Nos. 170, 171 and 172
of 1951* , decided on April 17, 1953
Advocates who appeared in this case:
Ishwarlal C. Dalal, Advocate, instructed by P.K. Chatterjee, Agent,
for the Appellant (Maqbool Hussain);
M.C. Setalvad, Attorney General for India (Porus A. Mehta, Advocate,
with him), instructed by G.H. Rajadhyaksha, Agent, for the Respondent
(The State of Bombay);
Jagjit Singh Petitioner in Petition No. 170 of 1951 in person (Vidya
Rattan and Parmanand not present or represented);
S.M. Sikri, Advocate-General of Punjab (Jindra Lal, Advocate, with
him), instructed by G.H. Rajadhyaksha, Agent, for the Respondent (The
State of Punjab).
The Judgment of the Court was delivered by
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N.H. BHAGWATI, J.— This appeal by special leave from a jugment

and order of the High Court of Judicature at Bombay raises an
important question as to the construction of Article 20(2) of the
Constitution.
2. The appellant, a citizen of Bharat, arrived at the Santa Cruz
airport from Jeddah on 6th November, 1949. On landing he did not
declare that he had brought in gold with him but on search it was found
that he had brought 107.2 tolas of gold in contravention of the
notification of the Government of India dated 25th August, 1948. The
Customs authorities thereupon took action under Section 167 clause
(8) of the Sea Customs Act 8 of 1878, and confiscated the gold by an
order dated the 19th December, 1949. The owner of the gold was
however given the option to pay in lieu of such confiscation a fine of Rs
12,000, which option was to be exercised within four months of the
date of the order. A copy of the order was sent on 30th January, 1950,
to the appellant. Nobody came forward to redeem the gold. On 22nd
March, 1950, a complaint was filed in the Court of the Chief Presidency
Magistrate, Bombay, against the appellant charging him with having
committed an offence under Section 8 of the Foreign Exchange
Regulation Act 7 of 1947, read with the notification dated 25th August,
1948. The appellant thereupon on 12th June, 1950, filed a petition in
the High Court of Bombay under Article 228 of the Constitution
contending that his prosecution in the Court of the Chief Presidency
Magistrate was in violation of the fundamental right guaranteed to him
under Article 20(2) of the Constitution and praying that as the case
involved a substantial question of law as to the interpretation of the
Constitution, the determination of which was necessary for the disposal
of the case, the case may be withdrawn from the file of the Chief
Presidency Magistrate to the High Court and the High Court may either
dispose of the case themselves or determine the question of law and
return it to the Chief Presidency Magistrate's Court for disposal. A rule
was issued by the High Court on 26th June, 1950, which came on for
hearing on 9th August, 1950, before Bavdekar and Vyas, JJ. The rule
was made absolute and the High Court directed that the proceedings
pending against the appellant in the Court of the Chief Presidency
Magistrate be withdrawn and brought before the High Court under
Article 228 of the Constitution. The case was thereupon withdrawn and
brought before the High Court and was heard by the High Court on
17th October, 1950. The learned Judges of the High Court, Chagla, C.J.
and Gajendragadkar, J. were of the opinion that the appellant could
claim the benefit of Article 20(2) only if he was the owner of the gold
which was confiscated and that before they decided as to whether there
had been a prosecution and a punishment within the meaning of Article
20(2) it was necessary that the Chief Presidency Magistrate should
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determine the question of fact as to whether the appellant was the

owner of the gold which had been confiscated and in respect of which
an option was given to him as stated above. They, therefore, sent the
matter back to the Chief Presidency Magistrate directing him to find as
to whether the appellant was or was not the owner of the gold stating
that they would deal with the application after the finding was
returned. The Chief Presidency Magistrate recorded evidence and on
20th January, 1950, recorded the finding that the appellant was the
owner of the gold in question and returned the finding to the High
Court. Chagla, C.J. and Gajendragadkar J. heard the petition further on
12th February, 1951. They reversed the finding of the Chief Presidency
Magistrate, dismissed the application of the appellant and directed that
the case should go back to the Chief Presidency Magistrate for disposal
according to law. The appellant obtained on 1st November, 1951,
special leave to appeal against the judgment and order passed by the
High Court.
3. The question that arises for our determination in his appeal is
whether by reason of the proceedings taken by the Sea Customs
authorities the appellant could be said to have been prosecuted and
punished for the same offence with which he was charged in the Court
of the Chief Presidency Magistrate, Bombay. There is no doubt that the
act which constitutes an offence under the Sea Customs Act as also an
offence under the Foreign Exchange Regulation Act was one and the
same viz. importing the gold in contravention of the notification of the
Government of India dated 25th August, 1948. The appellant could be
proceeded against under Section 167(8) of the Sea Customs Act as also
under Section 23 of the Foreign Exchange Regulation Act in respect of
the said act. Proceedings were in fact taken under Section 167(8) of the
Sea Customs Act which resulted in the confiscation of the gold. Further
proceedings were taken under Section 23 of the Foreign Exchange
Regulation Act by way of filing the complaint aforesaid in the Court of
the Chief Presidency Magistrate, Bombay, and the plea which was taken
by the accused in bar of the prosecution in the Court of the Chief
Presidency Magistrate, was that he had already been prosecuted and
punished for the same offence and by virtue of the provisions of Article
20(2) of the Constitution he could not be prosecuted and punished
again.
4. The word offence has not been defined in the Constitution. But
Article 367 provides that the General Clauses Act, 1897 (Act 10 of
1897), shall apply for the interpretation of the Constitution. Section 3
(37) of the General Clauses Act defines an offence to mean any act or
omission made punishable by any law for the time being in force and
there is no doubt that both under the provisions of Section 167(8) of
the Sea Customs Act and Section 23 of the Foreign Exchange
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Regulation Act the act of the appellant was made punishable and
constituted an offence.
5. In order however to attract the operation of Article 20(2) the
appellant must have been prosecuted and punished for the same
offence when proceedings were taken by the Sea Customs authorities.
The High Court did not go into the question as to whether the appellant
was prosecuted when proceedings were taken before the Sea Customs
authorities. It considered the question of punishment in the first
instance and thought it necessary to arrive at a finding as to the
ownership of the confiscated gold before it could consider the
application of the appellant. In the opinion of the High Court the
appellant could be said to have been punished only if it were
established that he was the owner of the confiscated gold. If he was the
owner, the confiscation was a punishment, which would not be so if he
was not the owner of the gold.
6. This question of the ownership of the gold was not in our opinion
material. The gold was found in the possession of the appellant when
he landed at the Santa Cruz airport. The appellant was detained and
searched by the Customs authorities and the gold was seized from his
person. Proceedings under Section 167(8) were taken by the Customs
authorities and after examining witnesses an order was passed on 19th
December, 1949, confiscating the gold and giving an option to the
owner to pay a fine of Rs 12,000 in lieu of such confiscation under
Section 183 of the Sea Customs Act. Copy of this order was forwarded
to the appellant and for all practical purposes the appellant was treated
as the owner of the confiscated gold. As a matter of fact when evidence
was recorded before the Chief Presidency Magistrate on remand the
Assistant Collector of Customs gave evidence that no one else had
claimed the gold and had the appellant paid the penalty and obtained
Reserve Bank permit and produced the detention slip he would have
been given the gold. Once the appellant was found in possession of the
confiscated gold the burden of proving that he was not the owner would
fall upon whosoever affirmed that he was not the owner. The complaint
which was filed in the Court of the Chief Presidency Magistrate,
Bombay, also proceeded on the footing that the appellant committed an
offence insofar as he brought the gold without the permit from Reserve
Bank of India, that no permit was ever applied for or granted to the
appellant and that the appellant had been given an opportunity of
showing whether he had obtained such permit but that he failed to
produce the same. It appears therefore that the question of the
ownership could not assume as much importance as the High Court
attached to it. If the Court came to the conclusion that the appellant
was prosecuted when proceedings were taken by the Sea Customs
authorities there was not much scope left for the argument that he was
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not punished by the confiscation of the gold and the option given to
him to pay a fine of Rs 13,000 in lieu of such confiscation. To be
deprived of the right of possession of valuable goods may well be
regarded in certain circumstances as by itself a punishment. We have
therefore got to determine whether under the circumstances the
appellant can be said to have been prosecuted when proceedings were
taken by the Sea Customs authorities.
7. The fundamental right which is guaranteed in Article 20(2)
enunciates the principle of “autrefois convict” or “double jeopardy”. The
roots of that principle are to be found in the well established rule of the
common law of England “that where a person has been convicted of an
offence by a court of competent jurisdiction the conviction is a bar to all
further criminal proceedings for the same offence”. (Per Charles, J. in
Reg v. Miles1 ). To the same effect is the ancient maxim “Nimo Bis
Debet Puniri pro Uno Delicto”, that is to say that no one ought to be
twice punished for one offence or as it is sometimes written “Pro Eadem
Causa”, that is, for the same cause.
8. This is the principle on which the party pursued has available to
him the plea of “autrefois convict” or “autrefois acquit”. “The plea of
‘autrefois convict’ or ‘autrefois acquit’ avers that the defendant has
been previously convicted or acquitted on a charge for the same offence
as that in respect of which he is arraigned…. The question for the jury
on the issue is whether the defendant has previously been in jeopardy
in respect of the charge on which he is arraigned, for the rule of law is
that a person must not be put in peril twice for the same offence. The
test is whether the former offence and the offence now charged have
the same ingredients in the sense that the facts constituting the one
are sufficient to justify a conviction of the other, not that the facts
relied on by the Crown are the same in the two trials. A plea of
‘autrefois acquit’ is not proved unless it is shown that the verdict of
acquittal of the previous charge necessarily involves an acquittal of the
latter.” (Vide Halsbury's Laws of England, Hailsham Edition, Vol. 9, pp.
152 and 153, para 212).
9. This principle found recognition in Section 26 of the General
Clauses Act, 1897,—
“Where an act or omission constitutes an offence under two or
more enactments, then the offender shall be liable to be prosecuted
and punished under either or any of those enactments but shall not
be liable to be punished twice for the same offence,”
and also in Section 403(1) of the Criminal Procedure Code, 1898,—
“A person who has been tried by a court of competent jurisdiction
for an offence and convicted or acquitted of such offence shall, while
such conviction or acquittal remains in force, not be liable to be tried
again for the same offence, nor on the same facts for any other
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offence for which a different charge from the one made against him
might have been made under Section 236, or for which he might
have been convicted under Section 237.”
10. The Fifth Amendment of the American Constitution enunciated
this principle in the manner following:
“…nor shall any person be subject for the same offence to be twice
put in jeopardy of life or limb; nor shall be compelled, in any
criminal case, to be witness against himself….”
Willis in his Constitutional Law, at p. 528, observes that the phrase
“jeopardy of life or limb” indicates that the immunity is restricted to
crimes of the highest grade, and this is the way Blackstone states the
rule:“Yet, by a gradual process of liberal construction the courts have
extended the scope of the clause to make it applicable to all indictable
offences, including misdemeanours.”… “Under the United States rule, to
be put in jeopardy there must be a valid indictment or information duly
presented to a court of competent jurisdiction, there must be an
arraignment and plea, and a lawful jury must be impaneled and sworn.
It is not necessary to have a verdict. The protection is not against a
second punishment but against the peril in which he is placed by the
jeopardy mentioned.”
11. These were the materials which formed the background of the
guarantee of fundamental right given in Article 20(2). It incorporated
within its scope the plea of “autrefois convict” as known to the British
jurisprudence or the plea of double jeopardy as known to the American
Constitution but circumscribed it by providing that there should be not
only a prosecution but also a punishment in the first instance in order
to operate as a bar to a second prosecution and punishment for the
same offence.
12. The words “before a court of law or judicial tribunal” are not to
be found in Article 20(2). But if regard be had to the whole background
indicated above it is clear that in order that the protection of Article 20
(2) be invoked by a citizen there must have been a prosecution and
punishment in respect of the same offence before a court of law or a
tribunal, required by law to decide the matters in controversy judicially
on evidence on oath which it must be authorised by law to administer
and not before a tribunal which entertains a departmental or an
administrative enquiry even though set up by a statute but not
required to proceed on legal evidence given on oath. The very wording
of Article 20 and the words used therein:— “convicted”, “commission of
the act charged as an offence”, “be subjected to a penalty”,
“commission of the offence”, “prosecuted, and punished, accused of
any offence, would indicate that the proceedings therein contemplated
are of the nature of criminal proceedings before a court of law or a
judicial tribunal and the prosecution in this context would mean an
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initiation or starting of proceedings of a criminal nature before a court

of law or a judicial tribunal in accordance with the procedure prescribed
in the statute which creates the offence and regulates the procedure.
13. The tests of a judicial tribunal were laid down by this Court in
Bharat Bank Ltd., Delhi v. Employees of the Bharat Bank Ltd., Delhi2 in
the following passage quoted with approval by Mahajan and Mukherjea,
JJ. from Cooper v. Wilson3 ) at p. 340:
“A true judicial decision presupposes an existing dispute between
two or more parties and then involves four requisites : (1) The
presentation (not necessarily orally) of their case by the parties to
the dispute; (2) If the dispute between them is a question of fact,
the ascertainment of the fact by means of evidence adduced by the
parties to the dispute and often with the assistance of argument by
or on behalf of the parties on the evidence; (3) If the dispute
between them is a question of law, the submission of legal argument
by the parties; and (4) A decision which disposes of the whole
matter by a finding upon the facts in dispute and application of the
law of the land to the facts so found, including where required a
ruling upon any disputed question of law.”
14. The question whether the Sea Customs authorities when they
entertained proceedings for confiscation of the gold in question acted as
a judicial tribunal has got to be determined in accordance with the
above tests.
15. The Sea Customs Act, 1878, was enacted to consolidate and
amend the law relating to the levy of sea customs duties. The hierarchy
of the officials are the Customs Collector, who is the officer of Customs
for being in separate charge of a custom house, the Chief Customs
Officer who is the Chief Executive Officer of the Sea Customs for a port
and the Chief Customs Authority which is the Central Board of Revenue.
Sections 18 and 19 enact prohibitions and restrictions on importation
and exportation of goods and Section 19(a) provides for detention and
confiscation of goods whose importation is prohibited. After making
various provisions for the levy of sea customs duties, Chapter XVI
enacts offences and penalties and several offences mentioned in the
first column of the Schedule to Section 167 are made punishable with
penalties mentioned in the third column thereof. Item 8 relates to the
offence committed by the importation of goods contrary to the
prohibition or restriction imposed in that behalf under Sections 18 and
19 of the Act and penalty prescribed for such an offence is:
“Such goods shall be liable to confiscation; any person concerned
in any such offence shall be liable to a penalty not exceeding three
times the value of the goods, or not exceeding one thousand
rupees.”
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Chapter XVII prescribes the procedure relating to offences, appeals,

etc. Powers of search are given to the officers of customs but provision
is made that a person about to be searched can require the officer to
take him previous to search before the nearest Magistrate or Customs
Collector. Search warrant can only be issued by the Magistrate and can
be executed in the same way and has the same effect as a search
warrant issued under a law relating to criminal procedure. Powers are
also given to the officers of Customs to arrest persons reasonably
suspected of having committed an offence under the Act but the person
arrested is to be forthwith taken before the nearest Magistrate or
Customs Collector. The Magistrate is entitled either to commit such
person to jail or order him to be kept in custody of the police for such
time as is necessary to enable the Magistrate to communicate with the
proper officers of Customs. No such power is given to the Customs
Collector. Section l81(a) also provides for the detention of packages
containing certain publications imported into the States. Section 182
provides that except in the case of certain offences therein mentioned
which involve proceedings before a Magistrate confiscation, increased
rate of duty or penalty can be adjudged by the Customs authorities
therein mentioned and Section 183 provides for option to be given to
the owner of the goods confiscated to pay in lieu of confiscation such
fine as the officer thinks fit. Section 186 provides that the award of any
confiscation, penalty or increased rate of duty under the Act by an
officer of Customs is not to prevent the infliction of any punishment to
which the person affected thereby is liable under any other law. An
appeal is provided under Section 188 from a decision or order of the
officer of Customs to the Chief Customs Authority who is thereupon to
make such further enquiry and pass such order as he thinks fit
confirming, altering or annulling the decision or order appealed against.
Section 191 provides for a revision by the Central Government on the
application of a person aggrieved by any decision or order passed by an
officer of Customs or the Chief Customs Authority from which no appeal
lies. Section 193 provides for the enforcement of the payment of
penalty or increased rate of duty as adjudged against any person by an
officer of Customs. If such officer is not able to realise the unpaid
amount from other goods in charge he can notify in writing to any
Magistrate within the local limits of whose jurisdiction such person may
be, his name and residence and the amount of penalty or increased rate
of duty unrecovered and such Magistrate is thereupon to proceed to
enforce payment of the said amount in like manner as if such penalty or
increased rate had been a fine inflicted by himself.
16. It is clear on a perusal of the above provisions that the powers of
search, arrest and detention are given to the Customs authorities for
the levy of sea customs duties and provision is made at the same time
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for a reference to the Magistrate in all cases where search warrants are
needed and detention of the arrested person is required. Certain
offences of a serious nature are to be tried only by Magistrates who are
the only authorities who can inflict punishments by way of
imprisonment. Even though the customs officers are invested with the
power of adjudging confiscation, increased rates of duty or penalty the
highest penalty which can be inflicted is Rs 1000. Confiscation is no
doubt one of the penalties which the Customs authorities can impose
but that is more in the nature of proceedings in rem than proceedings
in personam, the object being to confiscate the offending goods which
have been dealt with contrary to the provisions of the law and in
respect of the confiscation also an option is given to the owner of the
goods to pay in lieu of confiscation such fine as the officer thinks fit. All
this is for the enforcement of the levy of and safeguarding the recovery
of the sea customs duties. There is no procedure prescribed to be
followed by the Customs Officer in the matter of such adjudication and
the proceedings before the Customs Officers are not assimilated in any
manner whatever to proceedings in courts of law according to the
provisions of the Civil or the Criminal Procedure Code. The Customs
Officers are not required to act judicially on legal evidence tendered on
oath and they are not authorised to administer oath to any witness. The
appeals if any, lie before the Chief Customs Authority which is the
Central Board of Revenue and the power of revision is given to the
Central Government which certainly is not a judicial authority. In the
matter of the enforcement of the payment of penalty or increased rate
of duty also the Customs Officer can only proceed against other goods
of the party in the possession of the Customs authorities. But if such
penalty or increased rate of duty cannot be realised therefrom the only
thing which he can do is to notify the matter to the appropriate
Magistrate who is the only person empowered to enforce payment as if
such penalty or increased rate of duty had been a fine inflicted by as
himself. The process of recovery can be issued only by the Magistrate
and not by the Customs Authority. All these provisions go to show that
far from being authorities bound by any rules of evidence or procedure
established by law and invested with power to enforce their own
judgments or orders the Sea Customs authorities are merely
constituted administrative machinery for the purpose of adjudging
confiscation, increased rates of duty and penalty prescribed in the Act.
The same view of the functions and powers of Sea Customs Officers was
expressed in a decision of the Bombay High Court to which our
attention was called. (See Mahadev Ganesh Jamsandekar v. Secretary
of State for India in Council, Indian Law Reports XLVI Bombay LR 732).
17. We are of the opinion that the Sea Customs authorities are not a
judicial tribunal and the adjudging of confiscation, increased rate of
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duty or penalty under the provisions of the Sea Customs Act do not
constitute a judgment or order of a court or judicial tribunal necessary
for the purpose of supporting a plea of double jeopardy.
18. It therefore follows that when the Customs authorities
confiscated the gold in question neither the proceedings taken before
the Sea Customs authorities constituted a prosecution of the appellant
nor did the order of confiscation constitute a punishment inflicted by a
court or judicial tribunal on the appellant. The appellant could not be
said by reason of these proceedings before the Sea Customs authorities
to have been “prosecuted and punished” for the same offence with
which he was charged before the Chief Presidency Magistrate, Bombay,
in the complaint which was filed against him under Section 23 of the
Foreign Exchange Regulation Act.
19. The result therefore is that the appeal fails and must be
dismissed.
20. By an order of this Court dated 26th November 1952, these
petitions were ordered to be heard by the Constitution Bench along
with Criminal Appeal No. 81 of 1952, as the same point as regards
“autrefois convict” or “double jeopardy” was also involved therein. Jagjit
Singh, Vidya Rattan and Parma Nand, the three petitioners in the
respective petitions were detenus under the Preventive Detention Act,
1950, detained in the Central Jail, Ferozepur, and governed by the
Punjab Communist Detenus Rules, 1950, framed by the Government of
Punjab under Section 4(a) of the Act. On 6th February, 1950, it is
alleged, a general assault on jail officials was made by the detenus
including Jagjit Singh. An alarm was rung and the warder guard after
some time overpowered the detenus who were responsible for the
assault. Thirteen jail officials and twelve detenus sustained injuries and
the detenus were all removed to cells. On 7th February, 1950, the three
detenu petitioners resorted to a hunger strike which continued upto
10th April, 1950. They were separately confined from and after 6th
February, 1950. Their letters and interviews were stopped for two
months with effect from 7th February, 1950, and papers and books
were stopped with effect from 8th February, 1950, for the duration of
the hunger strike. The hunger strike continued and they continued to
be separately confined till 10th April, 1950. It appears that more than
7½ months after the hunger strike the Jail Superintendent, Shri K.K.
Mattu, filed a complaint against Jagjit Singh in the Court of Shri P.L.
Sondhi, M.I.C., Ferozepur, under Rule 41(2) of the Punjab Communist
Detenus Rules charging him with having committed a jail offence in
resorting to hunger strike. He also filed a complaint before the same
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Magistrate against Jagjit Singh for having committed offence under

Sections 332 and 353 and Sections 147 and 149 of the Indian Penal
Code. He further filed against Vidya Rattan and Parma Nand complaints
under Rule 41(2) of the Punjab Communist Detenus Rules for having
committed a jail offence in resorting to hunger strike. On 16th
February, 1951, the three detenu petitioners. filed before this Court
petitions under Article 32 of the Constitution asking for the issue of a
writ of prohibition not to proceed with the prosecutions of the
petitioners in the said cases on the ground that they had been
prosecuted and punished for the same offence already by the Jail
Superintendent and therefore they could not be prosecuted and
punished for the same offence once again and that the prosecutions
which were launched against them in the Court of Shri P.L. Sondhi,
M.I.C., Ferozepur, could not lie as being in contravention of the
fundamental right guaranteed under Article 20(2) of the Constitution.
Jagjit Singh argued his own petition in person. Vidya Rattan had
intimated to this Court that he would be satisfied with the decision on
Jagjit Singh's petition and wanted his absence to be excused. Parma
Nand did not appear at the hearing even though notice of the hearing
was served upon him.
21. It was urged by Jagjit Singh that the proceedings which were
adopted by the Jail Superintendent against the petitioners amounted to
their prosecution and punishment for the same offence and that
therefore the prosecution which was now launched against them was
not competent as it exposed them to double jeopardy and violated the
fundamental right guaranteed to them under Article 20(2). It was on
the other hand urged by the Advocate-General of Punjab that the Jail
Superintendent merely took disciplinary action against the petitioners
and the punishment if any which was meted out to them was for
breaches of discipline within the meaning of Section 4(a) of the Act and
the Punjab Communist Detenus Rules, 1950, framed thereunder, that
there was no prosecution and punishment of the petitioners within the
meaning of Article 20(2) and that therefore the petitions were liable to
be dismissed.
22. Section 4 of the Preventive Detention Act, 1950 (Act 4 of 1950),
provides for power to regulate place and conditions of detention.
“Every person in respect of whom a detention order has been
made shall be liable
(a) to be detained in such place and under such conditions,
including conditions as to maintenance, discipline and punishment
for breaches of discipline, as the appropriate Government may, by
general or special order, specify….”
The Punjab Communist Detenus Rules, 1950, were framed by the
Government of Punjab in exercise of the powers conferred by Section 4
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(a) of the Act. Rules 39, 40 and 41 provide for offences and
punishments. Rule 39 lays down certain rules of discipline and Rule 40
provides that any detenu who contravenes any of the provisions of Rule
39 or refuses to obey any order issued thereunder, or does any of the
acts mentioned in the following portion of the Rule 40 viz:
“(i) assaults, insults, threatens or obstructs any fellow prisoner,
any officer of the jail or any other government servant, or any person
employed in or visiting the jail, or….
(xii-a) goes on hunger-strike (other than a token strike), or …
shall be deemed to have committed a jail offence.
Rule 41 is important and bears particularly on the question which we
have to decide. It provides:—
“(1) Whereupon such enquiry as he thinks fit to make, the
Superintendent is satisfied that a detenu is guilty of a jail offence, he
may award the detenu one or more of the following punishments:
(a) confinement in cells for a period not exceeding 14 days….
(d) cancellation or reduction, for a period not exceeding two
months of the privilege of writing and receiving letters or of
receiving newspapers and books,
(e) cancellation or reduction, for a period not exceeding two
months of the privilege of having interviews….
(2) If any detenu is guilty of a jail offence which by reason of his
having frequently committed such offences or otherwise is in the
opinion of the Superintendent not adequately punishable by him
under the provisions of sub-rule (1), he may forward such detenu to
the Court of a Magistrate of the first class, having jurisdiction, and
such Magistrate shall thereupon inquire into and try the change so
brought against the detenu and upon conviction shall sentence him
to imprisonment for a term not exceeding one year : Provided that
where the act constituting the offence constitutes an offence
punishable under the Indian Penal Code with imprisonment for a
term exceeding one year, nothing in this rule shall preclude the
detenu from being tried and sentenced for such offence in
accordance with the provisions of the Indian Penal Code.”
It is clear from the above rules that the Jail Superintendent is
constituted the authority for determining whether a detenu is guilty of
a jail offence and for the award to such a detenu of one or more of the
punishments prescribed in Rule 41. If this punishment is considered to
be adequate the Jail Superintendent is to award him the appropriate
punishment. No procedure is prescribed by the rules and the
Superintendent is not required to act only on evidence given on oath.
He can punish after such enquiry as he thinks fit to make. Thus he may
not take any evidence or make any judicial enquiry at all but may yet
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punish. If however the detenu cannot in the opinion of the Jail

Superintendent not be adequately punished by him by reason of his
having frequently committed such offence or otherwise the Jail
Superintendent is empowered to forward such a detenu to the Court of
a Magistrate of the First Class having jurisdiction and the jail offence in
that case can be enquired into by the Magistrate who would try the
charge brought against the detenu, convict him and sentence him to
imprisonment for a term not exceeding one year. The proviso covers the
cases where the offence is punishable with imprisonment for a term
exceeding one year under the Indian Penal Code and nothing in Rule 41
is to preclude the detenu from being tried and sentenced for such
offence in accordance with the provisions of the Indian Penal Code. The
whole scheme of Rule 41 is to constitute the Jail Superintendent only
an administrative authority to maintain jail discipline and inflict
summary punishment on the detenus for breach of that discipline by
committing a jail offence. It is only when the Jail Superintendent
considers that the offence is not adequately punishable by him that he
can send the case to the Magistrate. If he actually himself punishes he
cannot, under this rule, refer the case again to the Magistrate. A
reference by him after punishment will be wholly unauthorised and
without jurisdiction and the prosecution before the Magistrate would be
illegal and not in accordance with procedure established by law.
23. It was contended that under Sections 45, 46 and 52 of the
Prisons Act (9 of 1894) the Jail Superintendent was constituted an
authority bound to act judicially for the purposes of enquiry into and
trial of the prisoners for similar offences and the detenus under the
Punjab Communist Detenus Rules, 1950, being put in the same
category as civil prisoners the proceedings before the Jail
Superintendent for having committed the jail offences under Rules 40
and 41 above amounted to a prosecution of the petitioners before him
as a judicial tribunal. It was on the other hand contended by the
Advocate General of Punjab that the Punjab Communist Detenus Rules,
1950, constituted a self-contained code regulating the place and
conditions of detention of these detenus, that the aforesaid sections of
the Prisons Act, 1894, had no application to their case and the
proceedings which took place before the Jail Superintendent in the
present case were therefore not judicial proceedings and there was no
prosecution and punishment of the petitioners within the meaning of
Article 20(2). We accept the contention of the Advocate-General of
Punjab. The petitioners were communist detenus and were governed by
the Punjab Communist Detenus Rules, 1950, which were framed by the
Government of Punjab under Section 4(a) of the Preventive Detention
Act set out above and which constituted the body of rules prescribing
the conditions of their maintenance, discipline, etc. Their confinement
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in the prisons was for the sake of administrative convenience and was
also prescribed by the rules themselves and the provisions of the
Prisons Act did not apply to them. It could not therefore be validly
contended that the proceedings taken against the petitioners by the Jail
Superintendent constituted a prosecution and punishment of the
petitioners before a judicial tribunal.
24. So far as the jail offence alleged to have been committed by
reason of the petitioners having resorted to hunger strike was
concerned, the Jail Superintendent obviously considered that he could
adequately punish the petitioners for that jail offence and he did not
think it necessary to have resort to the provisions of Rule 41(2) and
forward the petitioners to the Court of the Magistrate without having
himself dealt with them. It is common ground that the Jail
Superintendent acted under Rule 41(1), and having satisfied himself
that the petitioners were guilty of that jail offence awarded them one or
more of the punishments therein prescribed viz. stopping the letters
and interviews for two months with effect from 7th February, 1950, and
stopping the papers and books for the duration of the hunger strike. In
our opinion this was tantamount to inflicting punishment on all the
three petitioners for this jail offence and that having been done it was
not competent to the Jail Superintendent after 7½ months of the
hunger strike to forward the petitioners to the Court of the Magistrate
as he purported to do, and such reference was wholly unauthorised by
the rule and without jurisdiction and the prosecution before the
Magistrate is obviously not in accordance with procedure established by
law and the petitioners may well complain of a breach or a threatened
breach of the fundamental right guaranteed to them by Article 21 of
the Constitution in that the prosecution of the petitioners before the
Magistrate for the jail offence of having resorted to the hunger strike
was not competent according to the procedure established by law. The
Petitions Nos. 171 of 1951 and 172 of 1951 filed by Vidya Rattan and
Parma Nand must therefore be accepted and their prosecution in the
Court of Shri P.L. Sondhi, M.I.C., Ferozepur, under Rule 41(2) of the
Punjab Communist Detenus Rules, 1950, for having committed a jail
offence in resorting to hunger strike must be quashed.
25. The same order will also be passed in the petition of Jagjit
Singh, being Petition No. 170 of 1951, in regard to the jail offence
committed by him by having resorted to the hunger strike. Jagjit Singh
however is being prosecuted in the Court of the Magistrate for having
committed offences under Sections 332 and 353 as also Sections 147
and 149 of the Indian Penal Code. It was contended by the Advocate-
General of Punjab that there was no prosecution and no punishment
awarded to Jagjit Singh in regard to these offences and he relied upon
the entries in the punishment register under the date 6th February,
-----------------------------------------------------------------------------------------------------------------------------------------------------------
1950, with reference to these offences. These entries in the punishment

register show that Jagjit Singh was not punished for any of these
offences but he was to be sent up for trial and in the meantime he was
to be separately confined.
26. Jagjit Singh on the other hand relied in particular on the
evidence of Sher Singh who was the Assistant Superintendent of the
Central Jail, Ferozepur, at all material times and his evidence would
have helped Jagjit Singh considerably had it not been for the fact that
the entries in the punishment register completely belie his version and
he further states that Jagjit Singh was punished not only for the offence
of assault but also rioting which could in no event have been done by
the Jail Superintendent under the rules.
27. So far as the prosecution under Sections 147 and 149 of the
Indian Penal Code is concerned that is an offence which is not
comprised in the jail offences enumerated in Rule 40 nor could it have
been dealt with by the Jail Superintendent under Rule 41(1). That
offence was moreover covered by the proviso to Rule 41(2) and was
exclusively triable by the Magistrate. The prosecution of Jagjit Singh
therefore before the Magistrate for the offences under Sections 332 and
353 and Sections 147 and 149 of the Indian Penal Code is not in
violation of Article 20(2) or Article 21 of the Constitution and must
therefore proceed.
28. The result therefore is that the Petition No. 170 of 1951 filed by
Jagjit Singh will be allowed only to the extent that the appropriate writ
of prohibition shall issue against the respondent in regard to his
prosecution for having committed a jail offence in resorting to hunger
strike, but his prosecution under Sections 332 and 353 and Sections
147 and 149 of the Indian Penal Code will not be affected by this order.
The Petitions Nos. 171 of 1951 and 172 of 1951 filed by Vidya Rattan
and Parma Nand respectively will be accepted and the appropriate writs
of prohibition shall issue against the respondent as prayed for therein.
———
* On Appeal by Special Leave granted by the Supreme Court on 1st November, 1951, from
the Judgment and Order dated 12th February, 1951 of the High Court of Judicature at
Bombay in Criminal Application No. 644 of 1950
1 24 QBD 423
2 1950 SCC 470 : 1950 SCR 459
3 (1937) 2 KB 309
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1959 Supp (1) SCR 274 : AIR 1959 SC 375 : 1959 Cri LJ 392

Criminal Appellate Jurisdiction
(BEFORE S.R. DAS, C.J. AND N.H. BHAGWATI, B.P. SINHA, K. SUBBA RAO AND
K.N. WANCHOO, JJ.)

(Under Article 32 of the Constitution of India for enforcement of
Fundamental Rights.)
THOMAS DANA … Petitioner
Versus
And
LEO ROY FREY … Appellant
Versus
Petition No. 65 of 1958 and Criminal Appeal No. 112 of 1958* ,
decided on November 4, 1958
N.C. Chatterjee, Senior Advocate, Nanak Chand, Advocate, with him,
for the Petitioner and the Appellant;
H.N. Sanyal, Additional Solicitor-General of India, H.J. Umrigar, R.H.
Dhebar and T.M. Sen, Advocates, with him, for Respondent in both the
matters.
B.P. SINHA, J.— Petition Nos. 65 of 1958, under Article 32 of the
Constitution, on behalf of one Thomas Dana, and Criminal Appeal No.
112 of 1958, by special leave to appeal granted to one Leo Roy Frey
(appellant), raise substantially the same question of some
constitutional importance, and have, therefore, been heard together,
and will be covered by this judgment. The main question for
determination in these two cases, is whether there has been an
infringement of the constitutional protection granted under Article 20
(2) of the Constitution. For the sake of brevity and convenience, we
shall refer to Thomas Dana as the first petitioner, and Leo Roy Frey, as
the second petitioner, in the course of this Judgment.
2. The relevant facts are these : The first petitioner is a Cuban
national. He came to India on a special Cuban Passport No. 11822,
-----------------------------------------------------------------------------------------------------------------------------------------------------------
dated 16-11-1954, issued by the Government of the Republic of Cuba.

The second petitioner is a citizen of the United States of America, and
holds a U.S.A. Passport No. 45252, dated 1-7-1955. In May 1957, both
the petitioners were in Paris. There, the second petitioner purchased a
motor car from an officer of the American Embassy. He is said to have
sold that car to the first petitioner on 14-5-1957, and the same month,
it was registered in the first petitioner's name. The two petitioners
sailed by the same steamer at the end of May. The car was also shipped
by the same steamer. They reached Karachi on 11-6-1957, and from
there, flew to Bombay. From June 11 to 19, 1957, they stayed together
in Hotel Ambassador in Bombay. The car was delivered to the first
petitioner in Bombay on June 13, and on June 19, both of them flew
from Bombay to Delhi. In Delhi also, they stayed together at Hotel
Janpath. The first petitioner received the car at Delhi by rail on June 22,
and the same night, the two petitioners left by the said car for
Amritsar, where they reached after midnight, and stayed in Mrs
Bhandari's lodge. On the morning of June 23, they reached Attari Road
Land Customs Station by the same car (No. CD 75 TT 6587). On arrival
at Attari, the petitioners presented themselves for completing customs
formalities for crossing over to Pakistan. The Customs Officers at Attari
Road Land Customs Station, handed over to them the Baggage
Declaration forms, to declare the articles that they had in their
possession, including any goods which were subject to the Export Trade
Control and/or Foreign Exchange Restrictions, and/or were dutiable.
Both the petitioners completed the forms aforesaid, and handed those
completed statements over to the Customs officers. The first petitioner
declared the undernoted articles:
Indian currency Rs 900
Pakistan currency Rs 250
U.S. Dollars $ 1.00
Hong Kong Dollars $1.00
Thailand currency 78.00
Pocket radio 1.00
Time-piece 1.00
On suspicion, the Customs Officers searched his baggage which was
being carried in the car aforesaid. His person was also searched, and as
a result of the search, the undernoted articles which had not been
declared by him, were recovered:—
Pakistan currency Rs 250
U.S. Dollars $ 1.00
Hong Kong Dollars $ 1.00
Thailand currency 78.00
-----------------------------------------------------------------------------------------------------------------------------------------------------------
Pocket radio 1.00

Time-piece 1.00
The second petitioner, in his statement, had declared the following
articles:—
U.S. Dollars $ 500.00
U.S. Coins $ 1.23
Belgian coins BF 26.00
French coins BF 205.00
Italian coins L. 400.00
Wrist watch 1
Personal effects Rs 1,00,000
On suspicion, the Customs staff searched the person of the second
petitioner also. They recovered from him one pistol of .22 bore with 48
live cartridges of the same bore. As he could not produce a valid licence
under the Indian law, the pistol and the cartridges were handed over to
the police, for taking appropriate action under the Indian Arms Act. The
car was thoroughly searched, and as a result of the intensive search
and minute examination on 30-6-1957, a secret chamber above the
petrol tank, behind the hind seat of the car, was discovered. The
chamber was opened, and the following things which had not been
declared by the petitioners, were recovered from inside the secret
chamber:
Indian currency Rs 3,50,000
U.S. Dollars $ 10,000.00
Empty tin containers 10 (The containers bore marks to
(rectangular) indicate that they were used
for carrying gold bars
Mirror 1,
besides other insignificant things. Under the Indian law, Indian
currency over Rs 50, Pakistan currency over Rs 100 and any foreign
currency, could not be exported out of India, without the permission of
the Reserve Bank of India. The export of a pocket radio also required a
valid licence under the Imports and Exports (Control) Act, 1947. The
petitioners could not produce, on demand, the requisite permission
from the Reserve Bank of India, or the licence for the export of the
pocket radio, or a permit for exporting a time-piece, as required by the
Land Customs Act, 1924. The car also was handed over to the police for
necessary action. The offending articles, namely,
Indian currency Rs 3,50,000
U.S. Dollars $ 10,000.00
Empty tin containers 10 (The containers bore marks to
(rectangular) indicate that they were used
-----------------------------------------------------------------------------------------------------------------------------------------------------------
for carrying gold bars

Mirror 1,
pocket radio, and the time-piece etc. were seized under Section 178 of
the Sea Customs Act, 1878. Both the petitioners were taken into
custody for infringement of the law. On July 7, both the petitioners
were called upon to show cause before the Collector of Central Excise
and Land Customs, New Delhi, why a penalty should not be imposed
upon them under Section 167(8) of the Sea Customs Act, 1878, and
why the seized articles aforesaid, should not be confiscated under
Section 167(8) and Section 168 of the Act. Both the petitioners
objected to making any statements in answer to the show-cause notice,
on the ground that the matter was sub-judice and any statement made
by them, might prejudice them in their defence. But at the same time,
the second petitioner disclaimed any connection with the car in which
the two petitioners were travelling, and which had been seized. After
some adjournments granted to the petitioners to avail themselves of
the opportunity of showing cause, the Collector of Central Excise and
Land Customs, New Delhi, passed orders on 24-7-1957. He came to the
conclusion that the petitioners had planned to smuggle Indian and
foreign currency out of India, in contravention of the law. They had
been acting in concert with each other, and had, throughout the
different stages of their journey from France to India, been acting
together, and while leaving India for Pakistan, were travelling together
by the same car, until they reached the Attari Road Land Customs
Station, on their way to Pakistan. He directed that the different kinds of
currency which had been seized, as aforesaid, from the possession of
the petitioners, be “absolutely confiscated” for contravention of Section
8(2) of the Foreign Exchange Regulation Act, 1947, read with Sections
23-A and 23-B of the Act. He also directed the confiscation of the car
aforesaid, which could be redeemed on payment of a “redemption fine”
of Rs 50,000. He also ordered the confiscation of the pocket radio and
the time-piece and other articles seized, as aforesaid, under Section
167(8) of the Sea Customs Act, read with Section 5 of the Imports and
Exports (Control) Act, 1947, and Section 7 of the Land Customs Act,
1924. He further imposed a personal penalty of Rs 25,00,000 on each
of the petitioners, under Section 167(8) of the Sea Customs Act.
3. After making further inquiry, on 12-8-1957, the Assistant
Collector of Customs and Central Excise, Amritsar, under authority from
the Chief Customs Officer, Delhi, filed a complaint against the
petitioners and a third person, named Moshe Baruk of Bombay (since
acquitted), under Section 23 read with Section 8 of the Foreign
Exchange Regulation Act, 1947, and Section 167(81) of the Sea
Customs Act, 1878. The petition of complaint, after stating the facts
stated above, charged the accused persons with offences of attempting
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to take out of India Indian and foreign currency, in contravention of the

provisions of the Acts referred to above.
4. After recording considerable oral and documentary evidence, the
learned Additional District Magistrate, Amritsar, by his judgment dated
13-11-1957, convicted the petitioners, and sentenced them each to two
years' rigorous imprisonment under Section 23 read with Section 23-B
of the Foreign Exchange Regulation Act, six months' rigorous
imprisonment under Section 120-B(2) of the Indian Penal Code, the
sentences to run concurrently. It is not necessary to set out the
convictions and sentences in respect of the third accused Moshe, who
was subsequently acquitted by the High Court of Punjab, in exercise of
its revisional jurisdiction. The learned Magistrate also, perhaps, out of
abundant caution, directed that “The entire amount of currency and
foreign exchange and the car in which the currency had been smuggled
as well as the sleeveless shirt Ex. P-39 and belt Ex. P-40 shall be
confiscated to Government”. This order of confiscation was passed by
the criminal court, notwithstanding the fact, as already stated, that the
Collector of Central Excise and Land Customs, New Delhi, had ordered
the confiscation of the offending articles under Section 167(8) of the
Sea Customs Act and the other related Acts referred to above.
5. On appeal by the convicted persons, the learned Additional
Sessions Judge, Amritsar, by his judgment and order dated 13-12-
1957, dismissed the appeal after a very elaborate examination of the
facts and circumstances brought out in the large volume of evidence
adduced on behalf of the prosecution. It is not necessary, for the
purposes of these cases, to set out in detail the findings arrived at by
the appellate court, or the evidence on which those conclusions were
based. It is enough to state that both the courts of fact agreed in
coming to the conclusion that the accused persons had entered into a
conspiracy to smuggle contraband property out of this country.
6. The petitioners moved the High Court of Judicature for the State
of Punjab, separately, against their convictions and sentences passed
by the courts below, as aforesaid. Both the revisional applications were
dismissed summarily by the learned Chief Justice. By his order dated
28-2-1958, the learned Chief Justice refused to certify that the case
was a fit one for appeal to this Court.
7. The petitioners then moved this Court for, and obtained, special
leave to appeal from the judgment and orders of the courts below,
convicting and sentencing them, as stated above. They also moved this
Court for writs of habeas corpus. The petition of the first petitioner for a
writ of habeas corpus was admitted, and was numbered as petition No.
65 of 1958, and a rule issued. The writ petition on behalf of the second
petitioner was dismissed in limine. All these orders were passed on 28-
4-1958. Subsequently, the first petitioner moved this Court for
-----------------------------------------------------------------------------------------------------------------------------------------------------------
revocation of the special leave granted to him, and for an early hearing
of his writ Petition No. 65 of 1958, as the points for consideration were
common to both the cases. This Court granted the prayers by its order
dated 13-5-1958.
8. Before dealing with the arguments advanced on behalf of the
petitioners, in order to complete the narrative of events leading up to
the filing of the cases in this Court, it is necessary to state that the
petitioners had moved this Court separately under Article 32 of the
Constitution, against their prosecution in the Magistrate's Court, after
the aforesaid orders of confiscation and penalty, passed by the Collector
of Customs They prayed for a writ of certiorari and/or prohibition, and
for quashing the proceedings. There was also a prayer for a writ in the
nature of habeas corpus. On that occasion also, the protection afforded
by Article 20(2) of the Constitution, was pressed in aid of the
petitioners' writ applications. This Court, after hearing the parties,
dismissed those writ petitions, holding that the charge against the
petitioners included an offence under Section 120-B of the Indian Penal
Code, which certainly was not one of the heads of charge against them
before the Collector of Customs. This Court, therefore, without deciding
the applicability of the provisions of Article 20(2) of the Constitution, to
the facts and circumstances of the present case, refused to quash the
prosecution. The question whether Article 20(2) of the Constitution,
barred the prosecution of the petitioners under the provisions of the
Sea Customs Act and the Foreign Exchange Regulation Act, was
apparently left open for future determination, if and when the occasion
arose. In view of the events that have happened since after the passing
of the order of this Court, dated 31-10-1957, (reported in AIR 1958 SC
119), has now become necessary to determine that controversy.
9. It was vehemently argued on behalf of the petitioners that the
prosecution of the petitioners under the provisions of the Acts
aforesaid, and their convictions and imposition of sentences by the
courts below, infringe the protection against double jeopardy enshrined
in Article 20(2) of the Constitution, which is in these terms:
“No person shall be prosecuted and punished for the same offence
more than once.”
It is manifest that in order to bring the petitioners' case within the
prohibition of Article 20(2), it must be shown that they had been
“prosecuted” before the Collector of Customs, and “punished” by him
for the “same offence” for which they have been convicted and
punished as a result of the judgment and orders of the courts below,
now impugned. If any one of these three essential conditions, is not
fulfilled, that is to say, if it is not shown that the petitioners had been
“prosecuted” before the Collector of Customs, or that they had been
“punished” by him in the proceedings before him, resulting in the
-----------------------------------------------------------------------------------------------------------------------------------------------------------
confiscation of the properties aforesaid, and the imposition of a heavy

penalty of Rs 25,00,000, each, or that they had been convicted and
“sentenced” for the “same offence”, the petitioners will have failed to
bring their case within the prohibition of Article 20(2). It has been
argued, in the first instance, on behalf of the petitioners that they had
been “prosecuted” within the meaning of the article. On the other hand,
the learned Additional Solicitor-General has countered that argument
by the contention that the previous adjudication by the Collector of
Customs, was by an administrative body which has to act judicially, as
held by this Court in F.N. Roy v. Collector of Customs1 and reiterated in
Leo Roy Frey v. Superintendent, District Jail Amritsar2 but the Collector
was not a criminal court which could, in law, be said to have tried the
petitioner for an offence under the Indian Penal Code, or under the
penal provisions of the other Acts mentioned above.
10. It is, therefore, necessary first to consider whether the
petitioners had really been prosecuted before the Collector of Customs,
within the meaning of Article 20(2). To “prosecute”, in the special
sense of law, means, according to Webster's Dictionary, “(a) to seek to
obtain, enforce, or the like, by legal process; as, to prosecute a right or
a claim in a court of law. (b) to pursue (a person) by legal proceedings
for redress or punishment; to proceed against judicially; esp., to accuse
of some crime or breach of law, or to pursue for redress or punishment
of a crime or violation of law, in due legal form before a legal tribunal;
as, to prosecute a man for trespass, or for a riot”. According to
Wharton's Law Lexicon, 14th edn., p. 810, “prosecution” means “a
proceeding either by way of indictment or information, in the criminal
courts, in order to put an offender upon his trial. In all criminal
prosecutions the King is nominally the prosecutor”. This very question
was discussed by this Court in the case of Maqbool Hussain v. State of
Bombay3 with reference to the context in which the word “prosecution”
occurred in Article 20. In the course of the judgment, the following
observations, which apply with full force to the present case, were
made:
“…and the prosecution in this context would mean an initiation or
starting of proceedings of a criminal nature before a court of law or a
judicial tribunal in accordance with the procedure prescribed in the
statute which creates the offence and regulates the procedure”.
In that case, this Court discussed in detail the provisions of the Sea
Customs Act, with particular reference to Chapter XVI, headed
“Offences and Penalties”. After examining those provisions, this Court
came to the following conclusion:
“We are of the opinion that the Sea Customs Authorities are not a
judicial tribunal and the adjudging of confiscation, increased rate of
duty or penalty under the provisions of the Sea Customs Act do not
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constitute a judgment or order of a court or judicial tribunal

necessary for the purpose of supporting a plea of double jeopardy.”
11. The learned counsel for the petitioners, did not categorically
attack the correctness of that decision, but suggested that that case
could be distinguished on the ground that in the present case, unlike
the case then before this Court, a heavy penalty of Rs 25,00,000 on
each of the petitioners, was imposed by the Collector of Central Excise
and Land Customs, besides ordering confiscation of properties and
currency worth over 8½ lakhs. But that circumstance alone cannot be
sufficient in law to distinguish the previous decision of this Court, which
is otherwise directly in point. Simply because the Revenue Authorities
took a very serious view of the smuggling activities of the petitioners,
and imposed very heavy penalties under Item 8 of the Schedule to
Section 167 of the Sea Customs Act, would not convert the Revenue
Authorities into a court of law, if the Act did not contemplate their
functioning as such. That the Sea Customs Act did not envisage the
Chief Customs Officer or the other officers under him in the hierarchy of
the Revenue Authorities under the Act, to function as a court, is made
absolutely clear by certain provisions of that Act. The most important of
those is the new Section 187-A, which was inserted by the Sea
Customs (Amendment) Act, (21 of 1955). That Section is in these
terms:
“187-A. No court shall take cognizance of any offence relating to
smuggling of goods punishable under Item 81 of the schedule to
Section 167, except upon complaint in writing, made by the Chief
Customs officer or any other Officer of Customs not lower in rank
than an Assistant Collector of Customs authorized in this behalf by
the Chief Customs officer.”
This Section makes it clear that the Chief Customs Officer or any other
officer lower in rank than him, in the Customs department, is not a
“court”, and that the offence punishable under item 81 of the Schedule
to Section 167, cannot be taken cognizance of by any court, except
upon a complaint in writing, made, as prescribed in that section. This
section, in our opinion, sets at rest the controversy, which has been
raised in the past upon certain expressions, like “offences” and
“penalties”, used in Chapter XVI. These words have been used in that
chapter in their generic sense and not in their specific sense under the
penal law. When a proceeding by the Revenue Officers is meant, as is
the case in most of the items in the schedule to Section 167, those
officers have been empowered to deal with the offending articles by
way of confiscation, or with the person infringing those rules, by way of
imposition of penalties in contradistinction to a sentence of
imprisonment or fine or both. When a criminal prosecution and
punishment of the criminal, in the sense of the penal law, is intended,
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the Section makes a specific reference to a trial by a Magistrate, a

conviction by such Magistrate, and on such conviction, to imprisonment
or to fine or both. In this connection, reference may be made to the
penalties mentioned in the third column against items 72, 74, 75, 76,
76-A, 76-B, 77, 78 and 81, which illustrate the latter class of the
penalty in column 3. The penalties mentioned in the third column of
most of the items of the Schedule to Section 167 of the Act, do not
make any reference to a conviction by a Magistrate and punishment by
him in terms of imprisonment or of fine or of both. For example, item
76-C, which was inserted by the Sea Customs Amendment Act 10 of
1957, in the third column meant for penalties, has only this “such
vessel shall be liable to confiscation and the master of such vessel shall
be liable to a penalty not exceeding one thousand rupees”. Item 76-A,
on the other hand, specifically mentioning conviction, imprisonment
and fine, was inserted by Sea Customs Act 21 of 1955. Both the
amending Acts, by which the aforesaid additional offences were
created, and penalties prescribed, were enacted after the coming into
force of the Constitution. The legislature was, therefore, aware of the
distinction made throughout the Schedule to Section 167, between a
proceeding before Revenue authorities by way of enforcing the
preventive and penal provisions of the Schedule and a criminal trial
before a Magistrate, with a view to punishing Offenders under the
provisions of the same section. It is, therefore, in the teeth of these
provisions to contend that the imposition of a penalty by the Revenue
officers in the hierarchy created by the Act, is the same thing as a
punishment imposed by a criminal court by way of punishment for a
criminal offence.
12. This distinction has been very clearly brought out in the recent
judgment of this Court in the case of Sewpujanrai Indrasanrai Ltd. v.
Collector of Customs4 . In that case, though the question of double
jeopardy under Article 20(2) of the Constitution, had not been raised,
this Court has pointed out the difference in the nature of proceedings
against offending articles and offending persons. A proceeding under
the Sea Customs Act and the corresponding provisions of the Foreign
Exchange Regulation Act, in respect of goods which have been the
subject-matter of the proceeding, has been held to be of the nature of a
proceeding in rem whereas, a proceeding against a person concerned in
smuggling goods within the purview of those Acts, is a proceeding in
personam, resulting in the imposition of a punishment by way of
imprisonment or fine on him, where the offender is known. In the
former case, the offender may not have been known, but still the
offending goods seized may be confiscated as a result of the
proceedings in rem. That case was not concerned with the further
question whether, besides the liability to the penalty as contemplated
-----------------------------------------------------------------------------------------------------------------------------------------------------------
by Section 23(1)(a), namely, a penalty not exceeding three times the

value of the foreign exchange in respect of which the contravention had
taken place, the person contravening the provisions of the Foreign
Exchange Regulation Act, 1947, upon conviction by a court, is also
punishable with imprisonment which Section 23(1)(b) prescribes,
namely, imprisonment for a term which may extend to 2 years, or with
fine, or with both. The decision of this Court (supra) is also an authority
for the proposition that in imposing confiscation and penalty under the
Sea Customs Act, the Collector acts judicially. But that is not the same
thing as holding that the Authority under Section 167 of the Act,
functions as a judicial tribunal or as a court. An Administrative Tribunal,
like the Collector and other officers in the hierarchy, may have to act
judicially in the sense of having to consider evidence and bear
arguments in an informal way, but the Act does not contemplate that in
so doing, it is functioning as a court. As already pointed out, Section
187A, which was inserted by the amending Act of 1955 (21 of 1955),
brings out, in bold relief, the legal position that the Chief Customs
Officer or any other officer of Customs, does not function as a court or
as a judicial tribunal. All criminal offences are offences, but all offences
in the sense of infringement of a law, are not criminal offences.
Likewise, the other expressions have been used in their generic sense
and not as they are understood in the Indian Penal Code or other laws
relating to criminal offences. Section 167 speaks of offences mentioned
in the first column in the Schedule, and the third column in that
Schedule lays down the penalties in respect of each of the
contraventions of the rules or of the sections in the Act. There are as
many as 81 entries in the Schedule to Section 167, besides those
added later, but each one of those 81 and more entries, though an
offence, being an act infringing certain provisions of the sections and
rules under the Act, is not a criminal offence. Out of the more than 81
entries in the Schedule to Section 167, it is only about a dozen entries,
which contemplate prosecution in the criminal sense, the remaining
entries contemplate penalties other than punishments for a criminal
offence. The provisions of Chapter XVII of the Act, headed “Procedure
relating to offences, appeals, etc.”, also make it clear that the hierarchy
of the Customs Officers under the Act have not been empowered to try
criminal offences. They have been only given limited powers of search.
Similarly, they have been given limited powers to summon persons to
give evidence or to produce documents. It is true that the Customs
Authorities have been empowered to start proceedings in respect of
suspected infringements of the provisions of the Act, and to impose
penalties upon persons concerned with those infringements, or to order
confiscation of goods or property which are found to have been the
subject-matter of the infringements, but when a trial on a charge of a
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criminal offence is intended under any one of the entries of the

Schedule aforesaid, it is only the Magistrate having jurisdiction, who is
empowered to impose a sentence of imprisonment or fine or both.
13. It was also suggested in the course of the argument that the use
of a particular phraseology in the Act, should not stand in the way of
looking at the substance of the matter. It may be that the Act has
drawn a distinction between confiscation of property and goods, and
imposition of penalties on persons concerned with the infringement, on
the one hand, and the imposition of a sentence of imprisonment or fine
or both by a Magistrate, on the other hand; but, it is further contended,
the Customs Authorities, who impose a penalty or who order
confiscation of goods of very large value, are in substance imposing
punishments within the meaning of the criminal law. In this
connection, our particular attention was drawn to para 24 of the order
dated 24-7-1957, passed by the Collector of Central Excise and Land
Customs, New Delhi, which is in these terms:
“24. Having regard to all the circumstances of the case, I find that
both Sarvshri Thomas Dana and Leo Roy Frey are equally guilty of
the offence. They attempted to smuggle Indian and foreign currency
out of India. I hold both of them as the persons concerned in the
offence committed under Section 167(8) of the Sea Customs Act,
1878. The foregoing facts prove beyond doubt that the offence was
the result of the most deliberate and calculated conspiracy to
smuggle this huge amount of currency out of the country. The
offenders, therefore, deserve deterrent punishment. I, therefore,
impose a personal penalty of Rs 25,00,000 (Rupees twenty-five
lakhs only) each on Shri Thomas Dana and Shri Leo Roy Frey which
should be paid within two months from the date of this order or such
extended period as the adjudicating officer may allow.”
The expressions “equally guilty of the offence”, “the offence was the
result of the most deliberate and calculated conspiracy to smuggle”,
and “deserve deterrent punishment”, have been greatly emphasized in
aid of the argument that the Collector had really intended to punish the
petitioners in respect of the “offence”, and found them “guilty”. It is
true that these expressions are commonly used in judgments given in
criminal trials, but the same argument can be used against the
petitioners by saying that mere nomenclature does not matter. What
really matters is whether there has been a “prosecution”.
14. It is true that the petitioners were dealt with by the Collector of
Central Excise and Land Customs, for the “offence” of smuggling; were
found “guilty”, and a deterrent “punishment” was imposed upon them,
but as he had not been vested with the powers of a Magistrate or a
criminal court, his proceedings against the petitioners were in the
nature of Revenue proceedings, with a view to detecting the
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infringement of the provisions of the Sea Customs Act, and imposing

penalties when it was found that they had been guilty of those
infringements. Those penalties, the Collector had been empowered to
impose in order not only to prevent a recurrence of such infringements,
but also to recoup the loss of revenue resulting from such
infringements. A person may be guilty of certain acts which expose him
to a criminal prosecution for a criminal offence, to a penalty under the
law intended to collect the maximum revenue under the taxing law,
and/or, at the same time, make him liable to damages in torts. For
example, an assessee under the Income Tax law, may have submitted
a false return with a view to defrauding the Revenue. His fraud being
detected, the Taxing Officer may realise from him an amount which
may be some multiple of the amount of tax sought to be evaded. But
the fact that he has been subjected to such a penalty by the Taxing
Authorities, may not avail him against a criminal prosecution for the
offence of having submitted a return containing false statements to his
knowledge. Similarly, a person may use defamatory language against
another person who may recover damages in tort against the maker of
such a defamatory statement. But the fact that a decree for damages
has been passed against him by the civil court, would not stand in the
way of his being prosecuted for defamation. In such cases, the law does
not allow him the plea of double jeopardy.
15. That this is the law in America also, is borne out by the following
quotation from the Constitution of the United States of America —
revised and annotated in 1952 by Edward S. Corwin — at p. 840:
“A plea of former jeopardy must be upon a prosecution for the
same identical offense. The test of identity of offenses is whether the
same evidence is required to sustain them; if not, the fact that both
charges relate to one transaction does not make a single offense
where two are defined by the statutes. Where a person is convicted
of a crime which includes several incidents, a second trial for one of
those incidents puts him twice in jeopardy. Congress may impose
both criminal and civil sanctions with respect to the same act or
omission, and may separate a conspiracy to commit a substantive
offense from the commission of the offense and affix to each a
different penalty. A conviction for the conspiracy may be had though
the subsequent offense was notcompleted. Separate convictions
under different counts charging a monopolization and a conspiracy to
monopolize trade, in an indictment under the Sherman Antitrust Act,
do not amount to double jeopardy….”
“…A forfeiture proceeding for defrauding the Government of a tax
on alcohol diverted to beverage uses is a proceeding in rem, father
than a punishment for a criminal offense, and may be prosecuted
after a conviction of conspiracy to violate the statute imposing the
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tax.”
16. To the same effect is the following placitum under Article 240 in
Vol. 22 of Corpus Juris Secundum, headed “Offences and Proceedings in
Which Former Jeopardy Is a Defense”:
“The doctrine applies to criminal prosecution only and generally to
misdemeanours as well as felonies. A former conviction or acquittal
does not ordinarily preclude subsequent in rem proceedings, civil
actions to recover statutory penalties or exemplary damages, or
proceedings to abate a nuisance.”
17. On behalf of the petitioners, their learned counsel placed reliance
upon the two American decisions in Morgan5 , and United States of
America v. Anthony La Franca6 . The former decision is really against the
contention of double jeopardy, raised in this case. That case lays down
that persons who steal postage stamps and postal funds from a post
office of the United States, after having committed burglary, and thus,
having effected their entry into the premises, committed two distinct
offences which may be separately charged and punished under the
United States' Penal Code. Two separate convictions and sentences as
for two distinct offences in those circumstances were not held to be
within double jeopardy within the meaning of the United States'
Constitutional 5th Amendment. The reason given for the decision
against the contention of double jeopardy was that though the offences
had been committed in the same transaction, they had been
constituted separate and distinct offences by the United States' Penal
Code —Articles 190 and 192. In the latter case, the plea of double
jeopardy was given effect to because the special statutes,
infringements of which formed the subject-matter of the controversy,
namely, for unlawfully selling intoxicating liquor, had made a specific
provision that if any act is a violation of earlier laws in regard to the
manufacture and taxation of and traffic in intoxicating liquor, and also
of the National Prohibition Act, a conviction for such act or offence
under one statute, shall be a bar to prosecution therefor under the
other. It is clear, therefore, that where there is a specific statutory
provision creating a bar to a second prosecution, the court is bound to
give effect to the plea of double jeopardy. It is not necessary to refer to
certain decisions of the English courts, relied upon by the learned
counsel for the petitioners, because those cases had reference to the
question whether certain orders passed by certain courts were or were
not made in a criminal case or matter within the meaning of the
statutes then under consideration before the court. Those are
observations made with reference to the terms of those statutes, and
are of no assistance in the present controversy. The learned counsel for
the petitioners was not able to produce before us any authority in
support of the proposition that once a person has been dealt with by
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the Revenue Authorities for an infringement of the law against

smuggling, he cannot also be prosecuted in a criminal court for a
criminal offence.
18. In view of these considerations, and particularly in view of the
decision of this Court in the case of Maqbool Hussain v. State of
Bombay3 there is no escape from the conclusion that the proceedings
before the Sea Customs Authorities under Section 167(8) were not
“prosecution” within the meaning of Article 20(2) of the Constitution.
In that view of the matter, it is not necessary to pronounce upon the
other points which were argued at the Bar, namely, whether there was
a “punishment” and whether “the same offence” was involved in the
proceedings before the Revenue Authorities and the criminal court.
Unless all the three essential conditions laid down in clause (2) of
Article 20, are fulfilled, the protection does not become effective. The
prohibition against double jeopardy would not become operative if any
one of those elements is wanting.
19. It remains to consider a short point raised particularly on behalf
of the second petitioner (Leo Roy Frey). It was argued that the letter
Ex. P-DD/2, admittedly written by him to his father in German, had not
been specifically put to him with a view to eliciting his explanation as to
the circumstances and the sense in which it had been written. The
learned Magistrate in the trial court put the following question (No. 20)
to him:
“It is in evidence that Ex. P-FF/1 is the translation of the letter Ex.
P-DD/2. What have you to say about it?”
The answer given by the accused to this question was “The translation
of Ex. P-FF/1 is mostly correct except for few variations which could
have been due to misinterpretation of handwriting”. It is clear from the
question and answer quoted above, that the learned Magistrate did
afford an opportunity to this petitioner to explain the circumstances
appearing in the evidence against him with particular reference to the
letter. If the court had persisted in putting more questions with
reference to that letter, perhaps, it may have been argued that the
examination under Section 342 of the Code of Criminal Procedure, was
in the nature of a cross-examination of the accused person, which is not
permitted. In our opinion, there is no substance in the contention that
the petitioner had not been properly examined under Section 342 of the
Criminal Procedure Code, to explain the circumstances appearing in the
evidence against him.
20. It follows from what has been said above, that there is no merit
either in the appeal or in the petition. They are, accordingly dismissed.
K. SUBBA RAO, J.— I have had the advantage of reading the
judgment prepared by Sinha, J., but I cannot persuade myself to agree
with my learned Brother.
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22. The facts are fully stated in the judgment of my learned Brother
and therefore it would suffice if I restate briefly the facts strictly
relevant to the question raised. On 11-6-1957, the petitioner arrived at
Bombay, later came to Delhi and from there he travelled to Amritsar by
car in Company with Mr Leo Roy Frey. On 23-6-1957, he reached Attari
Road Land Customs Station and was arrested under Section 173 of the
Sea Customs Act, 1878 (Act VIII of 1878) on suspicion of having
committed an offence thereunder. He was served with a notice by the
Collector of Central Excise and Land Customs; New Delhi, on 7-7-1957,
to show cause why penalty should not be imposed on him under
Section 167(8) of the Sea Customs Act (hereinafter called “the Act”)
and Section 7(2) of the Land Customs Act, 1924, and why the goods
should not be confiscated. By order dated 24-7-1957, the petitioner
was adjudged guilty under Section 167(8) of the Act and currency of
the value of over 9 lakhs, car worth Rs 50,000, and other things were
confiscated, and he was punished with personal penalty of Rs
25,00,000. The petitioner was again prosecuted on the same facts
before the Additional District Magistrate, Amritsar, on charges under
Section 167(81) of the Act and Sections 23 and 23-B of the Foreign
Exchange Regulation Act. He was convicted on charges under Section
23 read with Section 23-B of the Foreign Exchange Regulation Act,
Section 167(81) of the Act and Section 120-B of the Indian Penal Code
and sentenced to imprisonments of 2 years 6 months and 6 months
respectively by the Additional District Magistrate, Amritsar. The
conviction and sentences were confirmed on appeal by the Additional
Sessions Judge, and the revision filed in the High Court was dismissed.
23. The learned counsel for the petitioner contends that the courts in
punishing him violated the fundamental right conferred oh him under
Article 20(2) of the Constitution as he has been prosecuted and
punished for the same offence by the collector of Customs. The learned
Additional Solicitor-General counters this argument by stating that the
petitioner was not prosecuted earlier before a judicial tribunal and
punished by such tribunal, and, in any view, the prosecution was not
for the same offence with which he was charged before the Magistrate,
and therefore this case does not fall within the constitutional protection
given under Article 20(2).
24. Before addressing myself to the arguments advanced it would be
convenient at this stage to steer clear of two decisions of this Court.
The first is Maqb Hussain v. State of Bombay7 . There proceedings had
been taken by the Sea Customs Authorities under Section 167(8) of the
Act and an order for confiscation of goods had been passed. The person
concerned was subsequently prosecuted before the Presidency
Magistrate for an offence under Section 23 of the foreign Exchange
Regulation Act in respect of the same Act. This Court held that the
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proceeding before the Sea Customs Authorities was not a prosecution

and the order for confiscation was not a punishment inflicted by a court
or a judicial tribunal within the meaning of Article 20(2) of the
Constitution and the prosecution was not barred. The important factor
to be noticed in that case is that the Sea Customs Authorities did not
proceed against the person concerned but only confiscated the goods
found in his possession. At page 742, Bhagwati J. says “Confiscation is
no doubt one of the penalties which the Customs Authorities can
impose. But that is more in the nature of proceedings in rem than
proceedings in personam, the object being to confiscate the offending
goods which have been dealt with contrary to the provisions of the
law…” Though the observations in the judgment cover a wider field — I
shall deal with them at a later stage — the decision could be sustained
on the simple ground that the previous proceedings were not against
the person concerned and therefore he was not prosecuted and
punished for the same offence for which he was subsequently
proceeded against in the Criminal Court. The second decision is
Sewpujanrai Indrasanrai Ltd. v. The Collector of Customs8 . There also
the Customs Authorities confiscated the goods found in the possession
of the appellant. Under Section 8(3) of the Foreign Exchange Act, a
restriction imposed by notification made under that Section is deemed
to have been imposed under Section 19 of the Sea Customs Act, and all
the provisions of the Sea Customs Act shall have effect accordingly. But
the said deeming provision is subject to an important qualification
contained in the words “without prejudice to the provisions of Section
23 of the former Act”. It was argued that by reason of the provisions of
Section 8(3) of the Foreign Exchange Regulations Act, the appellant
should have been proceeded against under Section 23 of that Act and it
was not open to the Customs Authorities to take action against the
offender under Section 167(8) of the Sea Customs Act. This Court
negatived that contention accepting the principle that confiscation of
the goods under Section 167(8) of the Sea Customs Act was an action
in rem and not a proceeding in personam. Das, J., who delivered the
judgment of the Court made the following observations in repelling the
said argument:
“The penalty provided is that the goods shall be liable to
confiscation. There is a further provision in the penalty column that
any person concerned in any such offence shall be liable to a penalty
not exceeding three times the value of the goods etc. The point to
note is that so far as the confiscation of the goods is concerned, it is
a proceeding in rem and the penalty is enforced against the goods
whether the offender is known or not known; the order of
confiscation under Section 182, Sea Customs Act, of the operates
directly upon the status of the property, and under Section 184
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transfers an absolute title to Government. Therefore, in a case where

the Customs Authorities can proceed only against the goods, there
can be no question of applying Section 23 of the Foreign Exchange
Act and even on the construction put forward on behalf of the
appellant Company as respects Section 8(3), the remedy under the
Sea Customs Act against the smuggled goods cannot be barred.”
This decision also indicates that the confiscation of the goods is an
action in rem and is not a proceeding in personam. A combined effect
of the aforesaid two decisions may be stated thus:
25. Section 167(8) of the Act provides for the following two kinds of
penalties when contraband goods are imported into or exported from
India : (1) such goods shall be liable to confiscation; (2) any person
concerned in any such offence shall be liable to a penalty. If the
authority concerned makes an order of confiscation it is only a
proceeding in rem and the penalty is enforced against the goods. On
the other hand, if it imposes a penalty against the person concerned, it
is a proceeding against the person and he is punished for committing
the offence. It follows that in the case of confiscation there is no
prosecution against the person or imposition of a penalty on him. If the
premises be correct, the subsequent prosecution of the person
concerned cannot be affected by the principle of double jeopardy, as he
was not prosecuted or punished in the earlier proceedings. But the
question that arises in this case is whether, when there was a
proceeding in personam and a penalty was imposed upon the person
concerned under Section 167(8) of the Act, he could be prosecuted and
punished in regard to the same act before another tribunal.
26. On the facts of this case it is manifest that the petitioner was
prosecuted before the Magistrate for the same act in respect of which a
penalty of Rs 25,00,000 had been imposed on him by the Collector of
Customs under Section 167(8) of the Act. The question is whether the
prosecution and punishment of the petitioner infringed his fundamental
right under Article 20(2) of the Constitution. It reads:
more than once.”
The words of this article are clear and unambiguous and their plain
meaning is that there cannot be a second prosecution where the
accused has been prosecuted and punished for the same offence
previously. The clause uses the three words of well-known connotation :
(1) prosecution; (2) punishment; and (3) offence. The word “offence” is
defined in Section 3(38) of the General Clauses Act, 1897, to mean any
act or omission made punishable by any law for the time being in force.
Under Section 4 of the Code of Criminal Procedure, it means any act or
omission made punishable by any law for the time being in force. An
offence is therefore an act committed against law or omitted where the
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law requires it.

27. Punishment is the penalty for the transgression of law. The
terms “punishment” and “penalty” are frequently used as synonyms of
each other; and, indeed under clause (1) of Article 20 of the
Constitution, the word “penalty” is used in the sense of “punishment”.
The punishments to which offenders are liable under the provisions of
the Indian Penal Code are : (1) death; (2) imprisonment for life (3)
imprisonment, which is of two descriptions viz. (i) rigorous i.e. with
hard labour; and (ii) simple; (4) forfeiture of property; and (5) fine.
28. The word “prosecuted” is comprehensive enough to take in a
prosecution before an authority other than a magisterial or a criminal
Court. Having regard to the historical background, a restricted meaning
has been placed upon it by this Court in Maqbool Hussain v. State of
Bombay7 . Bhagwati, J., in delivering the judgment of the Court
observed at page 742 thus:
“Even though the Customs Officers are invested with the power of
adjudging confiscation, increased rates of duty or penalty, the
highest penalty which can be inflicted is Rs 1000. Confiscation is no
doubt one of the penalties which the Customs Authorities can
impose, but that is more in the nature of proceedings in rem than
proceedings in personam, the object being to confiscate the
offending goods which have been dealt with contrary to the
provisions of the law and in respect of the confiscation also an option
is given to the owner of the goods to pay in lien of confiscation such
fine as the officer thinks fit. All this is for the enforcement of the levy
of and safeguarding the recovery of the sea customs duties. There is
no procedure prescribed to be followed by the Customs Officer in the
matter of such adjudication and the proceedings before the Customs
Officers are not assimilated in any manner to the provisions of the
Civil or the Criminal Procedure Code. The Customs Officers are not
required to act judicially on legal evidence tendered on oath and
they are not authorised to administer oath to any witness. The
appeals, if any, lie before the Chief Customs Authority which is the
Central Board of Revenue and the power of revision is given to the
Central Government which certainly is not a judicial authority. In the
matter of the enforcement of the payment of penalty or increased
rate of duty also the Customs Officer can only proceed against other
goods of the party in the possession of the Customs Authorities. But
if such penalty or increased rate of duty cannot be realised therefrom
the only thing which he can do is to notify the matter to the
appropriate Magistrate who is the only person empowered to enforce
payment as if such penalty or increased rate of duty had been a fine
inflicted by himself. The process of recovery can be issued only by
the Magistrate and not by the Customs Authority. All these
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provisions go to show that far from being authorities bound by any

rules of evidence or procedure established by law and invested with
power to enforce their own judgments or orders the Sea Customs
Authorities are merely constituted administrative machinery for the
purpose of adjudging confiscation, increased rates of duty and
penalty prescribed in the Act.”
This Court therefore accepted the view that the earlier prosecution
should have been before a court of law or a judicial tribunal, and that
the Sea Customs Authorities when they entertained proceedings for the
confiscation of gold did not act as a judicial tribunal. In my view the
said decision unduly restricted the scope of the comprehensive terms in
which the fundamental right is couched. If res integra, I would be
inclined to hold that the prosecution before the Customs Authority for
an offence created by the Act is prosecution within the meaning of
Article 20, even though the Customs Authority is not a judicial tribunal.
But I am bound by the decision of this Court insofar as it held that the
earlier prosecution should have been held before a court of law or a
judicial tribunal, and that the Customs Authority adjudging confiscation
was not such a tribunal. But the said observations must be confined to
the adjudication of confiscation by the Customs Authority.
29. The outstanding question therefore is whether a Collector of
Customs in adjudging on the question whether any person concerned in
the importation or exportation of the prohibited goods committed an
offence, and in imposing and penalty on him, acts as a judicial tribunal.
There is a current of judicial opinion in support of the contention that
under a particular Act an authority may act as a judicial Tribunal in
discharge of certain duties and as an executive or administrative
authority in discharge of other duties. The question whether a particular
authority in discharging specified duties is a judicial tribunal or not falls
to be decided on the facts of each case, having regard to the well
settled characteristics of a judicial tribunal.
30. In “Words and Phrases”, permanent Edn, Vol. 23, “Judicial
Tribunal” has been defined thus:“It is a body who has the power and
whose duty it is to ascertain and determine the rights and enforce the
relative duties of contending parties”. In The Encyclopedia of Words
and Phrases — Legal Maxims, by Sanagan and Drynan, much to the
same effect it is stated thus:
“A ‘judicial tribunal’ is one that dispenses justice, is concerned
with legal rights and liabilities, which means rights and liabilities
conferred or imposed by ‘law’. These legal rights and liabilities are
treated by a judicial tribunal as pre-existing; such a tribunal
professes merely to ascertain and give effect to them; it investigates
the facts by hearing the ‘evidence’ (as tested by long-settled rules),
and it investigates the law by consulting precedents. A judicial
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tribunal looks for some law to guide it. An administrative tribunal,

within its province, is a law unto itself.”
In Cooper v. Wilson9 the characteristics of a judicial decision are given
as follows, at page 340:
“A true judicial decision presupposes an existing dispute between
two or more parties, and then involves four requisites : (1) The
presentation (not necessarily orally) of their case by the parties to
the dispute; (2) If the dispute between them is a question of fact,
the ascertainment of the fact by means of evidence adduced by the
parties to the dispute and often with the assistance of argument by
or on behalf of the parties on the evidence; (3) If the dispute
between them is a question of law, the submission of legal argument
by the parties; and (4) A decision which disposes of the whole
matter by a finding upon the facts in dispute and application of the
law of the land to the facts so found, including where required a
ruling upon any disputed question of law.”
This passage has been approved by this Court in Maqbool Hussain
Case1 .
31. In Venkataraman v. Union of India10 this Court considered the
question whether Article 20 protects an officer against whom an
enquiry was held under Public Servants Enquiries Act, 1850 (Act 37 of
1850) from being prosecuted again on the same facts before a criminal
court. This Court held on a consideration of the provisions of that Act
that the appellant was neither prosecuted nor punished for the same
offence before a judicial tribunal. But in coming to that conclusion the
following criteria were applied to ascertain the character of the
proceedings : (i) duty to investigate an offence and impose a
punishment; (ii) prosecution must be in reference to the law which
creates the offence and punishment must also be in accordance with
what the law prescribes; (iii) there must be the trappings of a judicial
tribunal and (iv) the decision must have both finality and
authoritativeness, which are the essential tests of a judicial
pronouncement. Having regard to the aforesaid tests, I shall now
proceed to consider the applicability of Article 20 to the present
prosecution.
32. A fundamental right is transcendental in nature and it controls
both the legislative and the executive acts. Article 13 explicitly
prohibits the State from making any law which takes away or abridges
any fundamental right and declares the law to the extent of the
contravention as void. The law therefore must be carefully scrutinized
to ascertain whether a fundamental right is infringed. It is not the form
but the substance that matters. If the legislature in effect constitutes a
judicial tribunal, but calls it an authority, the tribunal does not become
any the less a judicial tribunal. Therefore the correct approach is first to
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ascertain with exactitude the content and scope of the fundamental

right and then to scrutinize the provisions of the Act to decide whether
in effect and substance, though not in form, the said right is violated or
curtailed. Otherwise the fundamental right will be lost or unduly
restricted in our adherence to the form to the exclusion of the content.
33. The question therefore is whether the petitioner was in effect
and in substance prosecuted and punished by a judicial tribunal for the
same offence for which he is now prosecuted. Section 167 of the Act
opens with the following words:
“The offences mentioned in the first column of the following
schedule shall be punishable to the extent mentioned in the third
column of the same with reference to such offences respectively.”
Chapter XVI of the Act deals with “Offences and Penalties”. Section 167
provides for offences and penalties in a tabular form. The first column
gives the particulars of the offences; the second column gives the
sections of the Act to which the offence has reference, and the third
column gives the penalties in respect of the relevant offences. Apart
from the fact that the statute itself, in clear terms, describes the acts
detailed in the first column of Section 167 as offences against particular
laws, the acts described therein clearly fall within the definition of
“offences” in the General Clauses Act and the Indian Penal Code. There
cannot therefore be the slightest doubt in this case that the
contravention of any of the provisions of the Act mentioned in Section
167 is an offence.
34. The next question is whether the penalties prescribed for the
various offences in the third column of Section 167 are punishments
within the meaning of Article 20 of the Constitution. A glance at the
third column shows that the penalties mentioned therein include
direction of payment of money, confiscation of goods and the
receptacles wherein they are found, and imprisonment. The penalties
may be imposed by the Customs Officers or Magistrates as the case
may be. Where a person is convicted by a Magistrate and sentenced to
imprisonment or payment of fine or where a penalty is imposed by a
Customs Officer, in either case, the punishment is described as penalty
in the third column of Section 167. Section 167 clearly indicates that
penalty is punishment inflicted by law for its violation — for doing or
failing to do something that is the duty of the party to do. Section 167
therefore defines a criminal act and fixes a penalty or punishment for
that act. The two words “penalty” and “punishment” are
interchangeable and they convey the same idea.
35. The more difficult question is whether a Customs Authority,
when it functions under Section 167 of the Act, is a judicial tribunal. It
is not, and cannot be, disputed that a Magistrate, who convicts and
punishes a person for the infringement of some of the provisions of
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Section 167 of the Act, is a judicial tribunal. Is it reasonable to assume

that when another authority adjudges on similar offences under the
same section, it is functioning in a different capacity? Section 182
defines the jurisdiction of the Customs Authority in respect of the
offences mentioned in Section 167 of the Act. It says:
“In every case, except the cases mentioned in Section 167, Nos.
26, 72, and 74 to 76, both inclusive, in which under this Act,
anything is liable to confiscation or to increased rates of duty; or any
person is liable to a penalty, such confiscation, increased rate of duty
or penalty may be adjudged—
(a) without limit, by a Deputy Commissioner or Deputy
Collector of Customs, or a Customs-collector;
(b) up to confiscation of goods not exceeding two hundred and
fifty rupees in value, and imposition of penalty or increased duty,
not exceeding one hundred rupees, by an Assistant Commissioner
or Assistant Collector of Customs;
(c) up to confiscation of goods not exceeding-fifty rupees in
value, and imposition of penalty or increased duty not exceeding
ten rupees, by such other subordinate officers of Customs as the
Chief Customs-authority may, from time to time, empower in that
behalf in virtue of their office:”
“187.— All offences against this Act, other than those cognizable
under Section 183 by Officers of Customs, may be tried summarily
by a Magistrate.”
It is therefore clear that some offences under Section 167 are
cognizable by the Customs Authorities and some offences by
Magistrates. Section 171A, inserted by the Sea Customs (Amendment)
Act, 1955 (Act 21 of 1955), confers power on Officers of Customs to
summon any person to give evidence and produce documents; it reads:
“171-A (1) Any officer of Customs duly employed in the
prevention of smuggling shall have power to summon any person
whose attendance he considers necessary either to give evidence or
to produce a document or any other thing in any inquiry which such
officer is making in connection with the smuggling of any goods.
(2) A summon to produce documents or other things may be for
the production of certain specified documents or things or for the
production of all documents or things of a certain description in the
possession or under the control of the person summoned.
(3) All persons so summoned shall be bound to attend either in
person or by an authorised agent, as such officer may direct; and all
persons so summoned shall be bound to state the truth upon any
subject respecting which they are examined or make statements and
to produce such documents and other things as may be required:
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Provided that the exemption under Section 132 of the Code of

Civil Procedure, 1908 shall be applicable to any requisition for
attendance-under this section.
(4) Every such inquiry as aforesaid shall be deemed to be a
judicial proceeding within the meaning of Section 193 and Section
228 of the Indian Penal Code.”
Under this section, the Customs Authority, who makes an inquiry, is
empowered in connection with that inquiry, to summon persons to give
evidence and produce documents and the witnesses summoned are
under a statutory duty to speak the truth. The circumstance that under
clause (4) of the said section, an inquiry is deemed to be a judicial
proceeding within the meaning of Section 193 and Section 228 of the
Indian Penal Code viz. for the purpose of punishment for giving false
evidence and for contempt of court, does not detract from the judicial
characteristics conferred upon the authority by the other clauses of the
section. Clause (4) must have been enacted only by way of abundant
caution to guard, against the contention that the authority is not a
court; and to bring in the inquiry made by the Customs Officer in
regard to administrative matters other than those conferred upon him
under Section 167, within the fold of Section 193 and Section 228 of
the Indian Penal Code. Sections 188, 189, 190-A and 191 provide a
hierarchy of tribunals for deciding appeals and revision. The Chief
Customs authority may, suo motu or otherwise exercise revisional
powers in regard to the orders of the subordinate officers. Power is also
conferred on Government to interfere in matters in regard whereof no
appeal is provided for. It is true that no rules have been framed
providing the manner in which the Customs collector should proceed
with the inquiry in regard to offences committed under the Act of which
he is authorized to take cognizance. But the record discloses that a
procedure analogous to that obtaining in criminal courts is followed in
regard to the said offences. Charges are framed, evidence is taken,
advocates are heard, decision is given on the question whether an
offence is committed or not; and, if the offence is held to have been
committed, the person concerned is convicted and a penalty is
imposed. When the statute empowers the officer to take cognizance of
an offence, to adjudge upon the question whether the offence is
committed or not and to impose a penalty for the offence, it is implied
in the statute that the judicial procedure is to be followed. The entire
scheme of the Act as disclosed in the Sea Customs Act leaves no doubt
in my mind that so far as offences mentioned in Section 167 are
concerned, the Customs Authority has to function as a Judicial Tribunal.
I have therefore no hesitation to hold that the Customs Officers insofar
as they are adjudicating upon the offences mentioned under Section
167 of the Act are functioning as judicial tribunals. If the other view
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viz. that an authority is not a judicial tribunal, be accepted, it will lead

to an anomalous position, which could not have been contemplated by
the legislature. To illustrate, a Customs Collector may impose a penalty
of Rs 25,00,000 as in this case on his finding that a person has
committed an offence under Section 167(8) of the Act, and the accused
can be prosecuted again for the same offence before a Magistrate. On
the other hand, if the prosecution is first laid before a Magistrate for an
offence under Section 167(81) and he is convicted and sentenced to a
fine of a few rupees, he cannot be prosecuted and punished again
before a Magistrate. Unless the provisions of the Constitution are clear,
a construction which will lead to such an anomalous position should not
be accepted, for, by accepting such a construction, the right itself is
defeated.
36. It is then contended that the offence for which the petitioner
was prosecuted by the Magistrate is different from that in regard
whereof he was sentenced by the Customs Officer. The petitioner was
convicted under Section 167(8) of the Act, whereas he was
subsequently prosecuted and punished under Section 167(81) of the
Act. Section 167(81) of the Act reads as follows:
“If any person knowingly, and with intent to defraud the
Government of any duty payable thereon, or to evade any prohibition
or restriction for the time being in force under or by virtue of this Act
with respect thereto acquires possession of, or is in any way
concerned in carrying, removing, depositing, harbouring, keeping or
concealing or in any manner dealing with any goods which have
been unlawfully removed from a warehouse or which are chargeable
with a duty which has not been paid or with respect to the
importation or exportation of which any prohibition or restriction is
for the time being in force as aforesaid; or
if any person is in relation to any goods in any way knowingly
concerned in any fraudulent evasion or attempt at evasion of any
duty chargeable thereon or of any such prohibition or restriction as
aforesaid or of any provision of this Act applicable to those goods,
such person shall on conviction before a Magistrate be liable to
imprisonment for any term not exceeding two years, or to fine, or to
both.”
It is contended that under Section 167(81) knowledge or intention to
defraud is an ingredient of the offence, whereas under Section 167(8)
they are not part of the offence, that offences under Sections 167(8)
and 167(81) are different, and that therefore the prosecution and
punishment for an offence under the former sub-section would not be a
bar for prosecution and punishment under the latter sub-section. It is
not necessary to consider the decisions cited in support of the
contention that for the application of the principle of double jeopardy
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the offence for which a person is prosecuted and punished in a second

proceeding should be the same in respect of which he has been
prosecuted and punished at an earlier stage. That fact is self-evident
from Article 20(2) of the Constitution itself. If so, the only question is
whether the petitioner was prosecuted before the Magistrate for the
same offence in regard to which he was prosecuted before the Collector
of customs It is true that the phraseology in Section 167(8) is more
comprehensive than that in sub-Section (81) in that the offences under
the former sub-section take in acts committed without knowledge or
intent to defraud. But it does not exclude from its scope acts
committed with knowledge or with intent to defraud. For, a person who
imports or exports prohibited goods with intent to defraud is also
concerned in the offence of such importation or exportation. The
question of identity of offence is one to be determined on the facts and
circumstances of a particular case. One of the tests is whether an
offence for which a person was earlier prosecuted takes in all the
ingredients of the offence, the subject-matter of the second
prosecution. The fact that he might have been prosecuted for lesser
offence is not a material circumstance. The question therefore is not
whether under Section 167(8) a person can be found guilty of an
offence even if there is no fraudulent intent or knowledge, but the
question is whether the petitioner was prosecuted and punished on the
same facts in regard to which he was subsequently prosecuted and
punished before the Magistrate. The record discloses that the petitioner
was prosecuted before the Customs Authority as well as the Magistrate
on the same facts viz. that he, along with others, attempted to take out
of India, Indian currency (as detailed in paragraphs 14 and 17 of the
complaint of the Assistant Collector of Customs and Central Excise,
Amritsar), in contravention of the law prohibiting such export. It is not
the case that the knowledge on the part of the petitioner of his illegal
act is excluded from the first prosecution and included in the
subsequent one. In the circumstances, I cannot hold that the offence
for which he was prosecuted by the Magistrate is different from that in
regard to which he was prosecuted and punished by the Customs
Authority. In this view, the prosecution and punishment by the
Magistrate directly infringes the fundamental right under Article 20(2)
of the Constitution.
37. No attempt has been made by the learned Solicitor General to
contend that the offence under Sections 23 and 23B of the Foreign
Exchange Regulations Act for which the petitioner is convicted is an
offence different from that for which he was prosecuted earlier under
Section 167(8) of the Act.
38. It is conceded that the decision in the writ petition covers the
decision in the connected appeal also. In the result, the writ petition
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and the appeal are allowed.

ORDER
39. In view of the opinion of the majority, the petition and the
appeal are dismissed.
———
* Appeal by Special Leave from the Judgment and Order dated the 28th February 1958 of the
Punjab High Court in Criminal Revision No. 145 of 1958.
1 AIR 1957 SC 648
2 AIR 1958 SC 119
3 (1953) SCR 730, 738, 739, 743
4
(1958) SCA 916
5 59 L Ed 1153 : 237 US 632
6 75 L Ed 551 : 282 US 568
7 (1953) SCR 730
8 (1958) SCA 916, 930
9 (1937) 2 KB 309, 340, 341.
10 (1954) SCR 1150.
TruePrint™ source: Supreme Court Cases, © 2023 Eastern Book Company. The text of this version of
this judgment is protected by the law declared by the Supreme Court in Eastern Book Company v. D.B.
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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(1961) 3 SCR 107 : AIR 1961 SC 578 : (1961) 1 Cri LJ 725

(BEFORE B.P. SINHA, C.J. AND S.K. DAS, A.K. SARKAR, N. RAJAGOPALA
AYYANGAR AND J.R. MUDHOLKAR, JJ.)
STATE OF BOMBAY … Appellant;

Versus
S.L. APTE AND ANOTHER … Respondents.
Criminal Appeal No. 63 of 1957* , decided on December 9, 1960
H.R. Khanna and R.H. Dhebar, Advocates, for the Appellant;
N.S. Bindra, Senior Advocate, amicus curiae, for the Respondents.
N. RAJAGOPALA AYYANGAR, J.— This appeal on a certificate under
Article 134(1) of the Constitution granted by the High Court of Bombay,
principally raises for consideration the application and scope of Article
20(2) of the Constitution and Section 26 of the General Clauses Act.
2. The facts necessary for the appreciation of the points involved in
this appeal are few and may be briefly stated. The two respondents —
S.L. Apte and Miss Dwarkabai Bhat — were respectively the Managing
Director, and the Managing Director of the Women's department, of an
insurance company by name “The Long Life Insurance Company” which
had its headquarters at Poona. A power of attorney had been executed
by the company in favour of the first respondent in June 1942, under
which he was vested with the power, control and possession inter alia
of the moneys belonging to the company with a view to have them
invested in proper securities. The second respondent as Managing
Director also acted under another power of attorney executed by the
company in her favour in or about June 1942, and by virtue thereof she
was assisting the first respondent in maintaining the accounts of the
company. While the respondents were thus functioning, an audit
conducted in 1952 disclosed that considerable sums of money
amounting to over Rs 55,000 were shown as cash balances with the
first respondent. Further enquiries made by the Directors showed that
moneys aggregating to over Rs 95,000 had from time to time been
withdrawn from the company by the first respondent with the
assistance and sanction of the second respondent, professedly for the
expenses of the company. Among the papers of the company was a
voucher dated August 9, 1952, evidencing the withdrawal of this
amount by the first respondent and signed by him and this also bore
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the signature of the second respondent in token of her sanction. The

respondents, however, could furnish no proper account of the legitimate
expenses of the company for which the amount was purported to be
taken.
3. Both the respondents were thereupon prosecuted for an offence
under Section 409 of the Indian Penal Code and also for an offence
under Section 105 of the Indian Insurance Act in Criminal Case 82 of
1953. The learned Magistrate convicted and sentenced both the
respondents for both the offences with which they were charged. The
respondents thereupon filed appeals to the Court of the Sessions Judge,
Poona and the learned Sessions Judge, by his order dated May 3, 1954,
while confirming the conviction and sentence on the respondents under
Section 409 of the Indian Penal Code set aside their conviction under
Section 105 of the Indian Insurance Act. The reason for the latter order
was the finding of the learned Sessions Judge that the sanction
required by Section 107 of the Indian Insurance Act which was a
prerequisite for the initiation of the prosecution under Section 105 had
not been obtained before the complaint in respect thereof had been
filed. The conviction and sentence under Section 409 of the Indian
Penal Code which had been affirmed by the Sessions Judge in both the
cases have now become final.
4. Subsequently the Insurance Company obtained the sanction of
the Advocate-General of Bombay under Section 107 of the Indian
Insurance Act and filed a complaint in the Court of the Judicial
Magistrate, Poona, on January 18, 1955, against the two respondents
charging each of them with an offence under Section 105 of the Indian
Insurance Act. The Magistrate took the case on file and directed the
issue of process. Thereupon the two respondents made an application
before the Magistrate on March 22, 1955, praying that the complaint
against them may be dismissed as being barred by Section 403(1) of
the Criminal Procedure Code, by reason of their previous conviction by
the Magistrate for the same offence under the Insurance Act and their
acquittal in respect thereof by the Sessions Judge, pleading in addition
that when the conviction by the Magistrate stood, they had even
undergone a portion of the sentence imposed. The learned Magistrate
overruled this plea on the ground that the acquittal of the respondents
was not on the merits of the case, but for lack of sanction under Section
107 of the Indian Insurance Act which rendered the Magistrate without
jurisdiction to entertain the complaint. The trial was then proceeded
with and evidence was led. But finally the Magistrate acquitted the
respondents on the ground that Article 20(2) of the Constitution and
Section 26 of the General Clauses Act were a bar to their conviction and
punishment. The State of Bombay thereupon filed an appeal to the
High Court under Section 417 of the Criminal Procedure Code. The
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appeal was dismissed by the learned Judges who however granted a

certificate on the strength of which this appeal has been preferred.
5. As the prosecution against the respondents under Section 105 of
the Insurance Act has been held to be barred by reason of the
provisions contained in Article 20(2) of the Constitution and Section 26
of the General Clauses Act, it would be convenient to set out these
provisions before entering on a discussion of their content and scope.
6. Article 20(2) of the Constitution runs:
more than once.”
7. Section 26 of the General Clauses Act enacts:
“Where an act or omission constitutes an offence under two or
more enactments, then the offender shall be liable to be prosecuted
and punished under either or any of those enactments, but shall not
be liable to be punished twice for the same offence.”
As the application of these two provisions is conditioned by the identity
of the two offences which form the subject of the prosecution or
prosecutions, we might as well reproduce the relevant provisions
constituting the two offences viz. Section 409 of the Indian Penal Code
and Section 105 of the Indian Insurance Act:
“409. Whoever, being in any manner entrusted with property, or
with any dominion over property in his capacity of a public servant or
in the way of his business as a banker, merchant, factor, broker,
attorney or agent, commits criminal breach of trust in respect of that
property, shall be punished with imprisonment for life, or with
imprisonment of either description for a term which may extend to
ten years, and shall also be liable to fine.”
Criminal breach of trust referred to in the section is defined in Section
405 of the Indian Penal Code in these terms:
“405. Whoever, being in any manner entrusted with property, or
with any dominion over property, dishonestly misappropriates or
converts to his own use that property, or dishonestly uses or
disposes of that property in violation of any direction of law
prescribing the mode in which such trust is to be discharged, or of
any legal contract, express or implied, which he has made touching
the discharge of such trust, or wilfully suffers any other person so to
do, commits ‘criminal breach of trust’.”
8. The offence created by the Indian Insurance Act is as follows:
“105.(1) Any director, managing agent, manager or other officer
or employee of an insurer who wrongfully obtains possession of any
property of the insurer or having any such property in his possession
wrongfully withholds it or wilfully applies it to purposes other than
those expressed or authorised by this Act shall on the complaint of
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the Controller made after giving the insurer not less than fifteen
days' notice of his intention, or, on the complaint of the insurer or
any member or any policy holder thereof, be punishable with fine
which may extend to one thousand rupees and may be ordered by
the Court trying the offence to deliver up or refund within a time to
be fixed by the Court any such property improperly obtained or
wrong fully withheld or wilfully misapplied and in default to suffer
imprisonment for a period not exceeding two years.
(2) This section shall apply in respect of a provident society as
defined in Part III as it applied in respect of an insurer.”
9. Before addressing ourselves to the arguments urged before as by
the learned counsel for the appellant State it is necessary to set out one
matter merely to put it aside. The entire argument on behalf of the
State before the High Court proceeded on denying that the order of a
criminal court passed under Section 105 of the Indian Insurance Act
directing the accused to “deliver up or refund … any such property
improperly withheld or wilfully misapplied” was a “punishment” within
either Article 20(2) of the Constitution or Section 26 of the General
Clauses Act. The learned Judges of the High Court rejected this
contention. Though learned counsel for the appellant originally
submitted that he was contesting this conclusion of the High Court, he
did not address us any argument under that head and we do not
therefore find it necessary to dwell on this point any further, but shall
proceed on the basis that a direction by the Magistrate to replace the
moneys of the insurer with a penalty of imprisonment in default of
compliance therewith was a “punishment” within Article 20(2) of the
Constitution and Section 26 of the General Clauses Act.
10. Turning to the main points urged before us, we may premise the
discussion by stating that it was not disputed before us by learned
Counsel for the State, as it was not disputed before the learned Judges
of the High Court, that the allegations to be found in the original
complaint in Criminal Case 82 of 1953 on which the conviction under
Section 409 of the Indian Penal Code was obtained were similar to the
allegations to be found in the complaint under Section 105 of the
Indian Insurance Act. It should, however, be mentioned that there was
not any complete identity in the statement of facts which set out the
acts and omissions on the part of the respondents which were alleged
to constitute the two offences — Section 409 of the Indian Penal Code
and Section 105 of the Insurance Act. For instance, in the complaint
which has given rise to this appeal, the crucial paragraphs detailing the
allegations are 12 and 13 of the complaint which run:
“12. The company submits that the accused has thus wrongfully
obtained possession of Rs 95,000 or having that property in his
possession wrongfully withheld it or wilfully applied it to purposes
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other than those expressed or authorised by the Insurance Act,

1938, and committed an offence on the 9th August, 1952, under
Section 105 of the Insurance Act, 1938”.
13. The company through their Solicitors called upon the accused
to explain his conduct within 7 days from the receipt of the letter.
The accused has failed and neglected to reply to the said letters.”
11. It is obvious that on these allegations alone the offence of
criminal breach of trust could not be established as they lack any
reference to any entrustment or to the dishonest intent which are the
main ingredients of the offence of criminal breach of trust. But to this
point about the difference in the ingredients of the two offences we
shall revert a little later.
12. Even assuming that the allegations to be found in the two
complaints were identical, the question, however, remains whether to
attract the ban imposed by either Article 20(2) of the Constitution or
Section 26 of the General Clauses Act on a second punishment, it is
sufficient that the allegations in the two complaints are substantially
the same or whether it is necessary further that the ingredients which
constitute the two offences should be identical.
13. We shall first take up for consideration Article 20(2) of the
Constitution whose terms we shall repeat:
“20.(2) No person shall be prosecuted and punished for the same
offence more than once.”
14. To operate as a bar the second prosecution and the
consequential punishment thereunder, must be for “the same offence”.
The crucial requirement therefore for attracting the Article is that the
offences are the same i.e. they should be identical. If, however, the two
offences are distinct, then notwithstanding that the allegations of facts
in the two complaints might be substantially similar, the benefit of the
ban cannot be invoked. It is, therefore, necessary to analyse and
compare not the allegations in the two complaints but the ingredients
of the two offences and see whether their identity is made out. It would
be seen from a comparison of Section 105 of the Insurance Act and
Section 405 of Indian Penal Code (Section 409 of the Indian Penal Code
being only an aggravated form of the same offence) that though some
of the necessary ingredients are common they differ in the following:
(1) Whereas under Section 405 of the Indian Penal Code the
accused must be “entrusted” with property or with “dominion over
that property”, under Section 105 of the Insurance Act the
entrustment or dominion over property is unnecessary; it is
sufficient if the manager, director, etc. “obtains possession” of the
property.
(2) The offence of criminal breach of trust (Section 405 of the
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Indian Penal Code) is not committed unless the act of

misappropriation or conversion or “the disposition in violation of the
law or contract”, is done with a dishonest intention, but Section 105
of the Insurance Act postulates no intention and punishes as an
offence the mere withholding of the property — whatever be the
intent with which the same is done, and the act of application of the
property of an insurer to purposes other than those authorised by
the Act is similarly without reference to any intent with which such
application or misapplication is made. In these circumstances it does
not seem possible to say that the offence of criminal breach of trust
under the Indian Penal Code is the “same offence” for which the
respondents were prosecuted on the complaint of the company
charging them with an offence under Section 105 of the Insurance
Act.
15. This aspect of the matter based on the two offences being
distinct in their ingredients, content and scope was not presented to
the learned Judges of the High Court, possibly because the decisions of
this Court construing and explaining the scope of Article 20(2) were
rendered later. In Om Prakash Gupta v. State of U.P.1 the accused, a
clerk of a municipality had been convicted of an offence under Section
409 of the Indian Penal Code for having misappropriated sums of
money received by him in his capacity as a servant of the local
authority and the conviction had been affirmed on appeal, by the
Sessions Judge and in revision by the High Court. The plea raised by
the accused before this Court, in which the matter was brought by an
appeal with special leave, was that Section 409 of the Indian Penal
Code had been repealed by implication by the enactment of sub-
sections (1)(c) and (2) of Section 5 of the Prevention of Corruption Act
because the latter dealt with an offence of substantially the same type.
This Court repelled that contention. It analysed the ingredients of the
two offences and after pointing out the difference in the crucial
elements which constituted the offences under the two provisions, held
that there was no repeal of Section 409 of the Indian Penal Code
implied by the constitution of a new offence under the terms of the
Prevention of Corruption Act. It was the application of this decision and
the ratio underlying it in the context of Article 20(2) of the Constitution
that is of relevance to the present appeal. The occasion for this arose in
State of Madhya Pradesh v. Veereshwar Rao Agnihotry2 . The respondent
was a tax-collector under a municipality and was prosecuted for
offences among others under Section 409 of the Indian Penal Code and
Section 5(2) of the Prevention of Corruption Act for misappropriation of
sums entrusted to him as such tax-collector. By virtue of the provision
contained in Section 7 of the Criminal Law Amendment Act, 46 of 1952,
the case was transferred to a Special Judge who was appointed by the
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State Government after the prosecution was commenced before a

Magistrate. The Special Judge found the accused guilty of the offence
under Section 409 of the Indian Penal Code and convicted him to three
years' rigorous imprisonment but as regards the charge under Section 5
(2) of the Prevention of Corruption Act, he acquitted the accused on the
ground of certain procedural non-compliance with the rules as to
investigation prescribed by the latter enactment. The respondent
appealed to the High Court against this conviction and sentence under
Section 409 of the Indian Penal Code and there urged that by reason of
his acquittal in respect of the offence under Section 5(2) of the
Prevention of Corruption Act, his conviction under Section 409 of the
Indian Penal Code could not also be maintained, the same being barred
by Article 20(2) of the Constitution. The High Court of Madhya Bharat
accepted this argument and allowed the appeal and the State
challenged the correctness of this decision by an appeal to this Court.
Allowing the appeal of the State, Govinda Menon, J., delivering the
judgment of the Court observed:
“This Court has recently held in Om Prakash Gupta v. State of U.P.
that the offence of criminal misconduct punishable under Section 5
(2) of the Prevention of Corruption Act, 11 of 1947, is not identical in
essence, import and content with an offence under Section 409 of
the Indian Penal Code. In view of the above pronouncement, the
view taken by the learned Judge of the High Court that the two
offences are one and the same, is wrong, and if that is so, there can
be no objection to a trial and conviction under Section 409 of the
Indian Penal Code, even if the respondent has been acquitted of an
offence under Section 5(2) of the Prevention of Corruption Act, 2 of
1947… The High Court also relied on Article 20 of the Constitution for
the order of acquittal but that Article cannot apply because the
respondent was not prosecuted after he had already been tried and
acquitted for the same offence in an earlier trial and, therefore, the
well-known maxim ‘Nemo debet bis vexari, si constat curiae quod sit
pro una et eadem causa’ (No man shall be twice punished, if it
appears to the court that it is for one and the same cause) embodied
in Article 20 cannot apply.”
Before leaving this part of the case we might also point out that a
similar view of the scope of the rule as to double-jeopardy has always
been taken by the courts in America. The words of the Vth Amendment
where this rule is to be found in the American Constitution are:
“Nor shall any person be subject, for the same offence, to be twice
put in jeopardy of life or limb.”
and it will be noticed that there as well, the ban is confined to a second
prosecution and punishment for the same offence. Willoughby after
referring to the words quoted in the Fifth Amendment says:“Cases may
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occur in which the same act may render the actor guilty of two distinct
offences;… In such cases the accused cannot plead the trial and
acquittal, or the conviction and punishment for one offence in bar to a
conviction for the other”3 . In Albrecht v. United States4 Brandeis, J.,
speaking for a unanimous court said:
“There is a claim of violation of the Vth Amendment by the
imposition of double punishment. This contention rests upon the
following facts. Of the nine counts in the information four charged
illegal possession of liquor, four illegal sale and one maintaining a
common nuisance. The contention is that there was double
punishment because the liquor which the defendants were convicted
for having sold is the same that they were convicted for having
possessed. But possessing and selling are distinct offences. One may
obviously possess without selling; and one may sell and cause to be
delivered a thing of which he has never had possession; or one may
have possession and later sell, as appears to have been done in this
case. The fact that the person sells the liquor which he possessed
does not render the possession and the sale necessarily a single
offence. There is nothing in the Constitution which prevents
Congress from punishing separately each step leading to the
consummation of a transaction which it has power to prohibit and
punishing also the completed transaction.”
16. If, therefore, the offences were distinct there is no question of
the rule as to double jeopardy as embodied in Article 20(2) of the
Constitution being applicable.
17. The next point to be considered is as regards the scope of
Section 26 of the General Clauses Act. Though Section 26 in its opening
words refers to “the act or omission constituting an offence under two
or more enactments”, the emphasis is not on the facts alleged in the
two complaints but rather on the ingredients which constitute the two
offences with which a person is charged. This is made clear by the
concluding portion of the section which refers to “shall not be liable to
be punished twice for the same offence”. If the offences are not the
same but are distinct, the ban imposed by this provision also cannot be
invoked. It therefore follows that in the present case as the
respondents are not being sought to be punished for “the same
offence” twice but for two distinct offences constituted or made up of
different ingredients the bar of the provision is inapplicable.
18. In passing, it may be pointed out that the construction we have
placed on Article 20(2) of the Constitution and Section 26 of the
General Clauses Act is precisely in line with the terms of Section 403(2)
of the Criminal Procedure Code which runs:
“403. (2) A person acquitted or convicted of any offence may be
afterwards tried for any distinct offence for which a separate charge
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might have been made against him on the former trial under Section
235, sub-section (1).”
19. It would be noticed that it is because of this provision that the
respondents before us were originally charged before the Magistrate in
Criminal Case 82 of 1953 with offences under Section 409 of the Indian
Penal Code as well as Section 105 of the Indian Insurance Act.
20. The respondents in this case did not appear in this Court and as
the appeal had to be heard ex parte Mr N.S. Bindra was requested to
appear as amicus curiae to assist the Court at the hearing of the
appeal. We express our thanks to him for the assistance he rendered.
21. The appeal is accordingly allowed and the judgment and the
order of the High Court is set aside and the case will go back to the
Judicial Magistrate, Fourth Court, Poona, for being proceeded with
according to law.
———
*
Appeal from the Judgment and Order dated 2nd March, 1956, of the Bombay High Court in
Criminal Appeal No. 1258 of 1955.
1
(1957) SCR 423
2 (1957) SCR 868
3 Constitution of the United States, Vol II p. 1158
4 273 US I : 71 Law Ed 505
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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(1962) 3 SCR 10 : AIR 1961 SC 1808 : (1961) 2 Cri LJ 856

(BEFORE B.P. SINHA, C.J. AND S.J. IMAM, S.K. DAS, P.B. GAJENDRAGADKAR,
A.K. SARKAR, K. SUBBA RAO, K.N. WANCHOO, K.C. DAS GUPTA, RAGHUBAR
DAYAL, N. RAJAGOPALA AYYANGAR AND J.R. MUDHOLKAR, JJ.)

STATE OF BOMBAY … Appellant;
Versus
KATHI KALU OGHAD … Respondent.
1. ATTORNEY-GENERAL
2. BHUPENDRA NATH AND
3. ASWINI KUMAR HALDAR … Interveners.
And
Criminal Appeals Nos. 110 and 111 of 1958
POKHAR SINGH (IN BOTH THE APPEALS) …
Appellant;
Versus
STATE OF PUNJAB (IN BOTH THE APPEALS) …
Respondent.
With
STATE OF WEST BENGAL … Appellant;
Versus
SHRI FARID ABMED … Respondent.
Criminal Appeal Nos. 110, 111 and 146 of 1958 and 174 of
1959****** , decided on August 4, 1961
In Criminal Appeal No. 146 of 1958
H.R. Khanna and T.M. Sen, Advocates, for the Appellant;
S.P. Varma, Advocate (at State expense), for the Respondent;
M.C. Setalvad, Attorney-General for India and B. Sen, Senior
Advocate, (T.M. Sen, Advocate, with them), for Intervener 1;
H.P. Wanchoo, Advocate, for Intervener 2;
K.C. Dutta, Advocate, for Intervener 3;
In Criminal Appeals Nos. 110 and 111 of 1958
P.S. Safeer and R.S. Gheba, Advocates, for the Appellant;
S.M. Sikri, Advocate-General for the State of Punjab and N.S. Bindra,
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Senior Advocate, (D. Gupta, Advocate, with them), for the Respondent;
In Criminal Appeal No. 174 of 1959
Sir S.M. Bose, Advocate-General for the State of West Bengal and B.
Sen, Senior Advocate, (P.K. Bose, Advocate, with them), for the
Appellant.
B.P. SINHA, C.J.— These appeals have been heard together only
insofar as they involve substantial questions of law as to the
interpretation of the Constitution, with particular reference to clause (3)
of Article 20. This larger Bench was constituted in order to re-examine
some of the propositions of law laid down by this Court in the case of
M.P. Sharma v. Satish Chandra1 because when one of these cases was
heard by five of us, we felt that some of the propositions therein laid
down may have been too widely stated, and, therefore, required to be
restated with more particularity. We have not heard counsel for the
parties on the merits of the orders passed by the courts below, but
have confined the discussions at the Bar, insofar as they had any
bearing on the questions of law relating to the interpretation of clause
(3) of Article 20 of the Constitution.
2. It is not necessary to state in any detail the facts of each of the
cases now before us. We shall, therefore, state only so much of the
facts as have occasioned calling in aid of the provisions of clause (3) of
Article 20 of the Constitution. In the first case, namely, Criminal Appeal
146 of 1958, the State of Bombay is the appellant. The respondent was
charged, along with another person, under Section 302, read with
Section 34 of the IPC, as also under Section 19(e) of the Indian Arms
Act (11 of 1878). The trial court found him guilty of those charges and
sentenced him to imprisonment for life under Section 302, read with
Section 34 of the IPC and to a term of two years rigorous imprisonment
for the offence under the Arms Act. At the trial the identification of the
respondent, as one of the two alleged culprits, was the most important
question to be decided by the court. Besides other evidence, the
prosecution adduced in evidence a chit — Ex. 5 — alleged to be in his
handwriting and said to have been given by him. In order to prove that
Ex. 5 was in the handwriting of the respondent, the police had obtained
from him, during the investigation, three specimen handwritings of his
on three separate sheets of paper which were marked as Exs. 27, 28
and 29. The disputed document, namely, Ex. 5 was compared with the
admitted handwritings on Exs. 27, 28 and 29 by the handwriting expert
whose evidence was to the effect that they are all writings by the same
person. At the trial and in the High Court, 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 Article 20(3) of the Constitution. It is an
admitted fact that those specimen writings of the accused had been
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taken by the police while he was in police custody, but it was disputed
whether the accused had been compelled to give those writings within
the meaning of clause (3) of Article 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 from 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 to be brought
within the prohibition of clause (3) of Article 20. After eliminating the
Exs. 27, 28 and 29 from their consideration, the High Court, on a
consideration of the other evidence in the case, came to the conclusion
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 Article 20(3) of the Constitution; and
(2) whether the mere fact that when those specimen handwritings had
been given, the accused person was in police custody could, by itself,
amount to compulsion, apart from any other circumstances which could
be urged as vitiating the consent of the accused in giving those
specimen handwritings. This Bench is not concerned with the further
question whether in all the circumstances disclosed by the evidence in
this case, the accused could be said to have been compelled, as a
matter of fact, to give those specimens.
3. In Criminal Appeals 110 and 111 of 1958, which arose out of the
same set of facts, the accused person has been convicted by the courts
below under Sections 380 and 457 of the IPC, as also under Section 19
(f) of the Indian Arms Act. The facts of the case necessary for bringing
out the points in controversy are that a shop in Hissar in Punjab was
burgled. In the course of the burglary four double-barrelled guns, one
single-barrelled gun and a rifle were stolen. During his interrogation by
the police at the investigation stage, the appellant is alleged to have
given the information that out of the arms stolen from the shop at
Hissar he had buried one 22 bore rifle, two 12 bore double-barrelled
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guns and one 18 single-barrelled gun at a certain place. It is alleged

that as a consequence of the information thus given by the accused and
on his pointing out the exact location where these buried articles could
be found, the rifles and guns were actually recovered. During the
investigation the police had taken possession of certain glass panes and
phials from the burgled shop which bore some palm and finger
impressions (Exs. P-10 to P-12). In order to compare the impressions
on those glass panes and phials with those of the accused, the
investigating police officer got the impressions of the palms and fingers
of the accused taken in the presence of a Magistrate. On the evidence
adduced by the prosecution, including the fact of the recovery of the
firearms and the evidence of the identity of the impressions 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 Article 134(1)(e) of the Constitution from the High Court
of Punjab. The points raised in this Court were; (1) that Section 27 of
the Indian Evidence Act is violative of Article 14 of the Constitution;
and (2) the impressions of the appellant's palms and fingers taken from
him after his arrest, which were compared with the impressions on the
glass panes and phials, were not admissible evidence in view of the
provisions of Article 20(3) of the Constitution. Though the provisions of
Sections 5 and 6 of the Identification of Prisoners Act (33 of 1920) have
not in terms been attacked as ultra vires Article 20(3) of the
Constitution, the effect of the argument based on that article is to bring
into controversy the constitutionality of Sections 5 and 6 of the Act. 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 Sections 5 and 6 of the
Identification of Prisoners Act, 1920, read with Article 20(3) of the
Constitution render the evidence of measurements to be inadmissible.”
4. 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 Article 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 the respondent to give his specimen writing and
signature, under Section 73 of the Indian Evidence Act. It is only
necessary to state the following facts in order to bring out the questions
of law bearing on the interpretation of 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
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contraband opium was alleged to have been found in his possession.

The respondent, along with another person, was produced before a
Magistrate of the 1st Class at Howrah and was later released on bail.
From the 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 and signature for the purpose of
comparison and verification. When the accused were produced before
the Magistrate, the 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 Article 20(3)
of the Constitution prohibited any such specimens being taken against
the will of the accused. After hearing the 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 the
respondent. The respondent moved the High Court at Calcutta under
Section 439 of the CrPC and Article 227 of the Constitution. The case
was heard by a Division Bench consisting of J.P. Mitter and
Bhattacharyya, JJ., on July 2 and 3, 1958, but the judgment was not
delivered until the 4th of June, 1959. The Court held that the
prohibition contained in Article 20(3) of the Constitution applied to the
case of writing and signature to be taken, as directed by the learned
Magistrate. The Court relied upon the decision of this Court in M.P.
Sharma case1 . In coming to this conclusion, the Division Bench
disagreed with the previous decision of another Division Bench of that
Court in the case of Sailendra Nath Sinha v. State2 which had laid down
that a mere direction under Section 73 of the Evidence Act to a person
accused of an offence to give his specimen writing did not come within
the prohibition of Article 20(3) of the Constitution. The earlier Bench
further held that the decision of this Court in Sharma case1 referred to
above, did not govern the case of direction given by the Court under
Section 73 of the Evidence Act for giving specimen writing. Instead of
referring the question to a larger Bench, the later Division Bench took
upon itself to pronounce against the considered view of that Court in
the earlier decision. The State of West Bengal naturally had to come up
to this Court to get the constitutional issues determined because the
issues raised were of far-reaching importance in the investigation and
trial of criminal cases. The main question which arises for determination
in this appeal is whether a direction given by a court to an accused
person present in court to give his specimen writing and signature for
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the purpose of comparison under the provisions of Section 73 of the

Indian Evidence Act infringes the fundamental right enshrined in Article
20(3) of the Constitution.
5. The arguments at the Bar may be classified as taking three
distinct lines. The first line, on the one extreme, may be said to have
been taken by Mr Sikri, the Advocate-General of Punjab, and which may
be characterised as a narrow view, runs as follows : clause (3)
aforesaid, in view of its setting, its history and the policy underlying,
the privilege accorded by the Constitution to an accused person, should
not be applied at the stage of investigation of an offence. It should be
confined to cases of compulsory extraction of incriminating statements
or communications by an accused person in court, the expression
“compelled to be a witness” being understood as meaning “being
compelled to give oral testimony”. It does not include the compulsory
production of documents. Similarly, it does not prohibit the compulsory
exhibition or examination of the body of the accused, or any part of it,
or the taking of specimen writing, thumb impression, impression of the
palm or the feet or the fingers of an accused. Whether or not there has
been compulsion should be judged by the nature of the action taken by
the authority, or the court that determines the controversy, and not the
state of mind of the accused.
6. On the other extreme is the argument by S.P. Varma, for the
accused in the first case, who contended that the clause aforesaid of
the Constitution gives complete protection of the widest amplitude to
an accused person, irrespective of the time and place and of the nature
of the evidence, whether it is oral or documentary or material. The
extreme form, which his argument took can best be stated in his own
words as follows:“Anything caused, by any kind of threat or
inducement, to be said or done, by a person, accused or likely to be
accused of any offence, by non-voluntary positive act or speech of that
person which furthers the cause of any prosecution against him or
which results or is likely to result in the incrimination of that person
qua any offence, is violative of the fundamental right guaranteed under
clause 3 of Article 20 of the Constitution of India”. According to his
argument, if an accused person makes any statement or any discovery,
there is not only a rebuttable presumption that he had been compelled
to do so, but that it should be taken as a conclusive proof of that
inferential 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 communication. Hence, any
statement made to a police officer, while in police custody, brings the
same within the prohibitory ambit of the clause of the Constitution. On
the face of them, the propositions propounded by Mr Varma are much
-----------------------------------------------------------------------------------------------------------------------------------------------------------
too broadly and widely stated to be accepted.

7. The third view, which may be characterised as an intermediate
view, was advocated by the learned Attorney-General, appearing for the
Union. According to him, a person seeking protection under the clause
must satisfy all the four constituent elements contained in clause (3) of
Article 20, namely, (1) he must be an accused person; (2) he must
have 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 to give a thumb impression or
specimen writing. In other words, compulsion has to be equated to
what has been sometimes characterised as “third degree” methods to
extort confessional statements. “To be a witness” is an expression
which must be understood in consonance with the existing law of
evidence and criminal procedure e.g. Sections 27 and 73 of the
Evidence Act and Sections 94 and 96 of the Code of Criminal Procedure.
Though, according to English law, the expression is confined 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,
transmitting his knowledge disclosing relevant facts of which he was
aware, would amount to “being a witness” against himself. But mere
production of some material evidence, by itself, would not come within
the ambit of the expression “to be a witness”.
8. The several questions for decision arising out of this batch of
cases have to be answered with reference to the provisions of clause
(3) of Article 20 of the Constitution which is in these terms:
“No person accused of any offence shall be compelled to be a
witness against himself.”
These provisions came up for consideration by the Full Court in the case
of M.P. Sharma v. Satish Chandra1 . Though the question directly arising
for decision in that case was whether a search and seizure of
documents under the provisions of Sections 94 and 96 of the Code of
Criminal Procedure came within the ambit of the prohibition of clause
(3) of Article 20 of the Constitution, this Court covered a much wider
field. Besides laying down that the search and seizure complained of in
that case were not within the prohibition, this Court examined the
origin and scope of the doctrine of protection against self-incrimination
with reference to English law and the Constitution of the United States
of America, with particular reference to the Fourth and Fifth
Amendments. On an examination of the Case law in England and
America and the standard text books on Evidence, like Phipson and
Wigmore, and other authorities, this Court observed as follows:
“Broadly stated the guarantee in Article 20(3) is against
“testimonial compulsion”. It is suggested that this is confined to the
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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 Article 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. So far as production of
documents is concerned, no doubt Section 139 of the Evidence Act
says that a person producing a document on summons is not a
witness. But that section is meant to regulate the right of cross-
examination. It is not a guide to the connotation of the word
‘witness’, which 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
Article 20(3) is ‘to be a witness’ and not ‘to appear as a witness’. It
follows that the protection afforded to an accused insofar 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. Whether it is available to other
persons in other situations does not call for decision in this case.”
9. 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
arguments for and against the views thus expressed by this Court after
full deliberation, we do not find any good reasons for departing from
those views. But the Court went on to observe that “to be a witness”
means “to furnish evidence” and includes not only oral testimony or
statements in writing of the accused but also production of a thing or of
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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 his thumb impression, his impression of palm or fingers
or of sample handwriting or signature comes within the ambit of “to be
a witness”, which has been equated to “to furnish 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 useful purpose to 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 Full Bench of the
Kerala High Court in the case of State of Kerala v. K.K. Sankaran Nair3 .
In that case, Ansari, C.J., who delivered the opinion of the Court, has
made reference to and examined in detail the pronouncements of the
different High Courts. Ultimately he came to the conclusion that the
decision of this Court in Sharma case1 also covered the case of a
specimen handwriting given by an accused person, under compulsion.
10. “To be a witness” may be equivalent to “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 Constitution 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 of bringing criminals
to justice. The taking of impressions of parts of the body of an 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 compelled to incriminate himself, as to arm the agents of law and
the law courts with legitimate powers to bring offenders to justice.
Furthermore it must be assumed that the Constitution-makers were
aware of the existing law, for example, Section 73 of the Evidence Act
or Sections 5 and 6 of the Identification of Prisoners Act (33 of 1920).
Section 5 authorises a Magistrate to direct any person to allow his
measurements or photographs to be taken, if he is satisfied that it is
expedient for the purposes of any investigation or proceeding under the
Code of Criminal Procedure to do so:“Measurements” include finger
impressions and foot-print impressions. If any such person who is
directed by a Magistrate, under Section 5 of the Act, to allow his
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measurements or photographs to be taken resists or refuses to allow

the taking of the measurements or photographs, it has been declared
lawful by Section 6 to use all necessary means to secure the taking of
the required measurements or photographs. Similarly, Section 73 of the
Evidence Act authorises the court to permit the taking of finger
impression or a specimen handwriting or signature of a person present
in court, if necessary for the purpose of comparison.
11. 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 facts, by means of oral
statements or statements in writing, by a person who has personal
knowledge of the facts to be communicated to a court or to a person
holding an enquiry or investigation. 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
classified by text writers into three categories, namely, (1) oral
testimony; (2) evidence furnished by documents; and (3) material
evidence. We have already indicated that we are in agreement with the
Full Court decision in Sharma case1 that the prohibition in clause (3) of
Article 20 covers not only oral testimony given by a person accused of
an offence but also his written statements which may have a bearing on
the controversy with reference to the charge against him. The accused
may have documentary evidence in his possession which may throw
some light on the controversy. If it is a document which is not his
statement conveying his personal knowledge relating to the charge
against him, he may be called upon by the court to produce that
document in accordance with the provisions of Section 139 of the
Evidence Act, which, in terms, provides that a person may be
summoned to produce a document in his possession or power and that
he does not become a witness by the mere fact that he has produced
it; and therefore, he cannot 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 in Sharma case1 that Section 139 of the
Evidence Act has no bearing on the connotation of the word “witness” is
not entirely well-founded in law. It is well established that clause (3) of
Article 20 is directed against self-incrimination by an accused person.
Self-incrimination must mean conveying information based upon the
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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
knowledge. For example, the accused person may be in possession of a
document which is in his writing or which contains his signature or his
thumb impression. The production of such a document, with a view to
comparison of the writing or the signature or the impression, is not the
statement of 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 cannot change their
intrinsic character. Thus, the giving of finger impressions or of
specimen writing or of signatures by an accused person, though it may
amount to furnishing evidence in the larger sense, is not included
within the expression “to be a witness”.
12. In order that a testimony by an accused person may be said to
have been self-incriminatory, the compulsion of which comes within the
prohibition of the constitutional provision, it must be of such a
character that by itself it should have the tendency of incriminating the
accused, if not also of actually doing so. In other words, it should be a
statement which makes the case against the accused person at least
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 comparison in order to lend assurance
to the Court that its inference based an other pieces of evidence is
reliable. They are neither oral nor documentary evidence but belong to
the third category of material evidence which is outside the limit of
“testimony”.
13. Similarly, during the investigation of a crime by the police, if an
accused person were to point out the place where the corpus delicti was
lying concealed and in pursuance of such an information being given by
an accused person, discovery is made within the meaning of Section 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 Section 27 of the
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Evidence Act, insofar as they make it admissible evidence which has

the tendency to incriminate the giver of the information, are
unconstitutional as coming within the prohibition of clause (3) of Article
20, such information would amount to furnishing evidence. This Court
in Sharma case1 was not concerned with pronouncing upon the
constitutionality of the provisions of Section 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 Section 27 of
the Evidence Act was unconstitutional because it offended Article 14 of
the Constitution was considered by this Court in the case of State of
Uttar Pradesh v. Deomen Upadhyaya4 . It was held by this Court that
Section 27 of the Evidence Act did not offend Article 14 of the
Constitution and was, therefore, intra vires. But the question whether it
was unconstitutional because it contravened the provisions of clause
(3) of Article 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 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 information, the question does not arise. It can
arise only when it is of an incriminatory character so far as the giver of
the information is concerned. If the self-incriminatory information has
been given by an accused person without any threat, that will be
admissible in evidence and that will not be hit by the provisions of
clause (3) of Article 20 of the Constitution for the reason that there has
been no compulsion. It must, therefore, be held that the provisions of
Section 27 of the Evidence Act are not within the prohibition aforesaid,
unless compulsion had been used in obtaining the information.
14. In this connection the question was raised before us that in
order to bring the case within the prohibition of clause (3) of Article 20,
it is not necessary that the statement should have been made by the
accused person at a 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 be proved in court, even though he may not
have been an accused person at the time he had made that statement.
The correctness of the decision of the Constitution Bench of this Court
in the case of Mohamed Dastagir v. State of Madras5 was questioned
because it was said that it ran counter to the observations of the Full
Court in Sharma case1 . In the Full Court decision of this Court this
question did not directly arise; nor was it decided. On the other hand,
this Court, in Sharma case1 held that the protection under Article 20(3)
of the Constitution is available to a person against whom a formal
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accusation had been levelled, inasmuch as a First Information Report

had been lodged against him. Sharma case1 therefore, did not decide
anything to the contrary of what this Court said in Mohamed Dastagir v.
State of Madras5 . The latter decision in our opinion lays down the law
correctly.
15. In order to bring the evidence within the inhibitions of clause (3)
of Article 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
sense) or by the threat of being killed, suffering some grievous
bodily harm, or being unlawfully imprisoned (sometimes called
menace, or duress per mines). Duress also includes threatening,
beating or imprisonment of the wife, parent or child of a person.”
The compulsion in this sense is a physical objective act and not the
state of mind of the person making the statement, except where the
mind has 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 certain individual to do a certain thing is not compulsion within the
meaning of Article 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 person to show that while he was in police custody at the
relevant time, he was subjected to treatment which, in the
circumstances of the case, would lend itself to the inference that
compulsion was in fact exercised. In other words, it will be a question
of fact in each case to be determined by the court on weighing the facts
and circumstances disclosed in the evidence before it.
16. In view of these considerations, we have come to the following
conclusions:
(1) An accused person cannot be said to have been compelled to
be a witness against himself simply because he made a statement
while in police custody, without anything more. In other words, the
mere fact of being in police custody at the time when the statement
in question was made would not, by itself, as a proposition of law,
lend itself to the inference that the accused was compelled to make
the statement, though that fact, in conjunction with other
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circumstances disclosed in evidence in a particular case, would be a

relevant consideration in an enquiry whether or not the accused
person had been compelled to make the impugned statement.
(2) The mere questioning of an accused person by a police officer,
resulting in a voluntary statement, which may ultimately turn out to
be incriminatory, is not “compulsion”.
(3) “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.
(4) Giving thumb impressions or impressions of foot or palm or
fingers or specimen writings or showing parts of the body by way of
identification are not included in the expression “to be a witness”.
(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 grammatical 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.
(7) To bring the statement in question within the prohibition of
Article 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.
17. The appeals will now be listed for hearing on merits in
accordance with the above principles.
K.C. DAS GUPTA, J.— Is a person compelled “to be a witness”
against himself within the meaning of Article 20(3) of the Constitution
when he is compelled to give his specimen handwriting or signature, 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 Section 73 of the Indian Evidence Act? These
are the main questions canvassed before us and they have both been
answered in the negative in the judgment just pronounced by my Lord
the Chief Justice. We agree with these answers; but as we have
reached the same conclusion, by a somewhat different approach, and
for different reasons, these have to be briefly indicated.
19. The question as regard the meaning to be attached to the words
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“to be a witness” as used in Article 20(3) of the Constitution came up

for consideration in M.P. Sharma case1 . 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 Sections 94 and 96 of the Code
of Criminal Procedure is a compelled production of the same so as to
infringe the provisions of Article 20(3) of the Constitution. After
pointing out that the guarantee in Article 20(3) was against
“testimonial compulsion”, Jagannadhadas, J., speaking for the Court
said:
“The phrase used in Article 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 Section 139 of the Evidence Act which says that
a person producing a document on summons is not a witness, is really
meant to regulate the right of cross-examination and cannot be “a
guide to the connotation of the word ‘witness’ in Article 20(3), which
must be understood in its natural sense i.e. as referring to a person
who furnishes evidence”, and then proceeded:
“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.”
It 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 disputes about the limits of the
protection granted by Article 20(3), these hopes were soon
shattered. Questions were before long raised before the different
High Courts, as to whether on the interpretation of the words “to be
a witness” given by this Court in Sharma case1 , compelling an
accused person to give his finger prints or impressions of palm or
foot or a specimen handwriting in the course of investigation,
amounted to an infringement of Article 20(3). 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 case1 requires
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modification.
20. The complaint against the interpretation given in Sharma case1
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 interpretations were suggested before us
which it was claimed on behalf of the protagonists will solve the
problem once for all. One of the propositions put forward was that “to
be a witness” as used in Article 20(3) cannot refer to anything said or
done at the stage of investigation of an offence; We agree with our
learned Brethren that this is an unduly narrow construction. As was
pointed out in Sharma case1 the phrase used in Article 20(3) is “to be a
witness” and not “to appear as a witness”. That by itself justifies the
conclusion “that the protection afforded to an accused insofar 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”. If the protection
was intended to be confined to being a witness 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 in court through other
witnesses. An interpretation which so completely defeats the
constitutional guarantee cannot, of course, be correct. The contention
that the protection afforded by Article 20(3) is limited to the stage of
trial must therefore be rejected.
21. That brings us to the suggestion that the expression “to be a
witness” must be limited to a 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
otherwise 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 allowed to
be done, during the investigation, or trial, however helpful they might
seem to be to the unfolding of truth and an unnecessary apprehension
of disaster to the police system 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 Article 20(3) in the manner suggested would result in allowing
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compulsion to be used in procuring 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 acused 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 committing a
particular offence. Under Section 10 of the Evidence Act this document
it is a 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 Section 8 of the Evidence
Act as showing preparation for committing theft. By producing this plan
is he not giving evidence against himself?
22. To a person not overburdened with technical learning, the giving
of evidence, would appear to be the real function of a witness. Indeed
English literature is replete with instances of the use of the word
“witness” as meaning “evidence”. To give one example; Shakespeare's
Horatio speaking to Hamlet says:
“Season your admiration for a while
With an attent ear, till I may deliver,
Upon the witness of these gentlemen,
This marvel to you (Hamlet, Act I, Scene, II).
23. 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.
24. But, what is the purpose of evidence? Section 3 of the Indian
Evidence Act defines evidence thus:
“Evidence means and includes (1) all statements which the court
permits or requires to be made before it by witnesses, in relation to
matters of fact under enquiry; such statements are called oral
evidence; (2) all documents produced for the inspection of the court;
such documents are called documentary evidence.”
25. 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 be relevant and of no
others”. Then follow several sections laying down what are relevant
facts.
26. It is clear from the scheme of the various provisions, dealing
with the matter that the governing idea is that to be evidence, the oral
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statement or a statement contained in a document, shall have a

tendency 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 be proper, once we have
come to the conclusion, that the protection of Article 20(3) is available
even at the stage of investigation, to hold that at that stage also the
purpose of having a witness is to obtain evidence and the purpose of
evidence is to prove a fact.
27. The illustrations we have given above show clearly that it is not
only by imparting of his knowledge that an accused person assists the
proving of a fact; he can do so even by other 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.
28. Much has been written and discussed in 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 to the numerous cases especially in America where the
concept of “testimonial compulsion” has been analysed. It is sufficient
to remember 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 conviction 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 existence of such an easy way would tend to dissuade
persons in charge of investigation 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 accused person by
compulsion, why tread the hard path of laborious investigation and
prolonged examination of other men, materials and documents? 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 go about
in the sun hunting up evidence”. (Stephen, History of Criminal Law, p.
442). No less serious is the danger that some accused persons at least,
may be induced to furnish evidence against themselves which is totally
false — out of sheer despair and an anxiety to avoid an unpleasant
present. Of all these dangers the Constitution-makers were clearly well
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aware and it was to avoid them that Article 20(3) was put in the
Constitution. It is obvious however that these dangers remain the same
whether the evidence which the accused is compelled to furnish is in
the form of statements oral or written about his own knowledge or in
the shape of documents or things, which though not transmitting
knowledge of the accused person directly helps the court to come to a
conclusion against him. If production of such documents, or things is
giving evidence, then the person's producing it is being a witness. On
what principle or reason can it be said that this does not amount to
“being a witness” within the meaning of Article 20(3)? We find none.
29. We can therefore find no justification for thinking that “to be a
witness” in Article 20(3) means to impart personal knowledge and find
no reason for departing from what this Court said in Sharma case1 that
“to be a witness” is nothing more than “to furnish evidence”, and such
evidence can be furnished through lips or by production of a thing or of
a document or in other modes.
30. The question then is : Is an accused person furnishing evidence
when he is giving his specimen handwriting or impressions of his
fingers, or palm or foot? It appears to us that he is : For these are
relevant facts, within the meaning of Section 9 and Section 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 Section 10, or is producing the plan of a house where a
burglary has been committed, or is giving his specimen handwriting or
impressions of his finger, palm or foot. It has to be noticed however
that Article 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 be
compelled to be a witness against himself. The question that arises
therefore is : Is an accused person furnishing evidence against 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.
31. 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 Section 10, or the production of the plan
of a burgled house. In either of these two latter cases, the evidence
given tends by itself to incriminate the accused person. But the
evidence of specimen handwriting or the impressions of the accused
person's fingers, palm or foot, will incriminate him, only if on
comparison of these with certain other handwritings or certain other
impressions, identity between the two sets is established. By
themselves, these impressions or the handwritings do not incriminate
the accused person, or even tend to do so. That is why it must be held
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that by giving these impressions or specimen handwriting, the accused

person does not furnish evidence against himself. So, when an accused
person is compelled to give a specimen handwriting or impressions of
his finger, palm or foot, it may be said that he has been compelled to
be a witness; it cannot however be said that he has been compelled to
be a witness against himself.
32. This view, it may be pointed out, does not in any way militate
against the policy underlying the rule against “testimonial compulsion”
we have already discussed above. There is little risk, if at all, in the
investigator or the prosecutor being induced to lethargy or inaction
because he can get such handwriting or impressions from an accused
person. For, by themselves they are of little or of no assistance to bring
home the guilt of an accused. Nor is there any chance of the accused to
mislead the investigator into wrong channels by furnishing false
evidence. For, it is beyond his power to alter the ridges or other
characteristics of his hand palm or finger or to alter the characteristics
of his handwriting.
33. We agree therefore with the conclusion reached by the majority
of the Bench that there is no infringement of Article 20(3) of the
Constitution by compelling an accused person to give his specimen
handwriting or signature; or impressions of his fingers, palm or foot to
the investigating officer or under orders of a court for the purpose of
comparison under the provisions of Section 73 of the Indian Evidence
Act; though we have not been able to agree with the view of our
learned Brethren that “to be a witness” in Article 20(3) should be
equated with the imparting of personal knowledge or that an accused
does not become a witness when he produces some document not in
his own handwriting even though it may tend to prove facts in issue or
relevant facts against him.
34. In Criminal Appeals Nos. 110 & 111 of 1958 a further question
as regards the validity of Section 27 of 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 Section 27 is an
infringement of Article 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, in the 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 discovered, may be proved. It
cannot be disputed that by giving such information the accused
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 Article 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.
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There may be cases where an accused in custody is compelled to give

the information later on sought to be proved under Section 27. There
will be other cases where the accused gives the information without any
compulsion. Where the accused is compelled to give information it will
be an infringement of Article 20(3); but there is no such infringement
where he gives the information without any compulsion. Therefore
compulsion not being inherent or implicit in the fact of the information
having been received from a person in custody, the contention that
Section 27 necessarily infringes Article 20(3) cannot be accepted.
35. 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
Article 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”. The other view is that in addition to
cases where there has been such constraint or coercion an accused
should be held to have been “compelled” to be a witness whenever
there has been inducement or promise which persuaded the accused to
be a witness, even though there has been no such coercion or
constraint. In Criminal Appeals Nos. 110 and 111 the information
proved under Section 27 of the Evidence Act was that Pokhar Singh had
buried certain firearms in Village Badesra under toori and these were
recovered when he pointed these out to the investigating police officer.
This information was proved under Section 27. But it does not appear
to have been suggested that the accused was made to give this
information by inducement or threat or promise. On the facts therefore
there is no question of the information having been received by
compulsion. The question whether any inducement or promise which
leads an accused person to give information amounts to compulsion or
not does not therefore fall to be decided.
36. It may be pointed out that in the other appeals viz. Criminal
Appeal No. 146 of 1958 and Criminal Appeal No. 174 of 1959, also, this
question does not arise for consideration in view of our conclusion that
in any case the accused does not become a “witness” against himself
by giving his specimen signatures or impressions of his fingers or
palms.
37. It appears to us to be equally unnecessary to decide another
question which was mooted in the course of the hearing viz. whether
the prohibition of Article 20(3) operates only after a person has been
accused of an offence or even before that stage. Admittedly, in all these
cases the person on whose behalf the protection under Article 20(3) is
claimed gave the specimen signatures or impressions of fingers or
palms after he had been actually accused of an offence.
38. We think it right therefore not to express any opinion on any of
these questions.
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———
*
Appeal by Special Leave from the Judgment and Order dated 4th April, 1957, of the Bombay
High Court at Rajkot in Criminal (Jail) Appeal No. 73 of 1956.
** Appeals from the Judgment and Order dated 10th March, 1958, of the Punjab High Court in
Cirimmal Revisions Nos. 946 and 948 of 1957.
*** Appeal by Special Leave from the Judgment and Order dated 4th June, 1959, of the
Calcutta High Court in Criminal Revision No. 623 of 1958.
1
(1954) SCR 1077
2 (1955) AIR Cal 247
3 AIR 1960 Kerala 392
4
AIR (1960) Supreme Court 1125
5 (1960) 3 SCR 116
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Page 1 Sunday, February 26, 2023
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2023 SCC OnLine Bom 72
In the High Court of Bombay

(BEFORE REVATI MOHITE DERE AND PRITHVIRAJ K. CHAVAN, JJ.)
Criminal Writ Petition (Stamp) No. 22494 of 2022

With
Interim Application (Stamp) No. 54 of 2023
Chanda Deepak Kochhar … Petitioner;
Versus
Central Bureau of Investigation … Respondents.
With
Criminal Writ Petition (Stamp) No. 22495 of 2022
With
Interim Application (Stamp) No. 57 of 2023
Deepak Virendra Kochhar … Petitioner;
Versus
Central Bureau of Investigation … Respondents.
Criminal Writ Petition (Stamp) No. 22494 of 2022, Interim
Application (Stamp) No. 54 of 2023, Criminal Writ Petition (Stamp)
No. 22495 of 2022 and Interim Application (Stamp) No. 57 of 2023
Decided on January 9, 2023, [Reserved On : 06.01.2023]
Advocates who appeared in this case :
Mr. Amit Desai, Sr. Advocate a/w Mr. Gopalkrishna Shenoy, Mr.
Kushal Mor, Mr. Rohan Dakshini, Ms. Pooja Kothari, Ms. Deepa Shetty,
Mr. Kyrus Modi, Mr. Pranav Narsaria and Mr. Tejas Popat i/b Rashmikant
and Partners for the Petitioners in WP/ST/22494/2022
Mr. Vikram Choudhary, Sr. Advocate a/w Mr. Kushal Mor, Mr. Rohan
Dakshini, Ms. Pooja Kothari, Ms. Deepa Shetty, Mr. Kyrus Modi, Mr.
Pranav Narsaria and Mr. Tejas Popat i/b Rashmikant and Partners for
the Petitioners in WP/ST/22495/2022
Mr. Raja Thakare, Spl. P.P. a/w Mr. Kuldeep S. Patil, Ms. Saili Dhuru,
Mr. Akash Kavade, Mr. Siddharth Jagushte for the Respondent No. 1-
CBI
Mr. J.P. Yagnik, A.P.P. for the Respondent No. 2-State
The Order of the Court was delivered by
REVATI MOHITE DERE, J.:— By these petitions, preferred under
Article 226 of the Constitution of India and under Section 482 of the
Code of Criminal Procedure (‘Cr.P.C’), the petitioners, who are husband
and wife, seek;
-----------------------------------------------------------------------------------------------------------------------------------------------------------
(i) quashing of the FIR, being No. RCBDI/2019/E/0001 dated

22.01.2019, registered under Sections 120B and 420 of the Penal
Code, 1860 (‘IPC’) and Sections 7, 13(2) r/w 13(1)(d) of the
Prevention of Corruption Act (‘PC Act’);
(ii) quashing of their illegal arrest being violative of Sections 41 and
41-A of Cr. P.C.; and
(iii) quashing of the remand orders dated 24.12.2022 and
26.12.2022 passed by the learned Special CBI Judge, Mumbai.
2. By way of interim relief, the petitioners seek their release from
custody pending the hearing and final disposal of the petitions.
3. The petitions, as agreed between the parties, are heard only for
the limited purpose for considering whether the arrest of the petitioners
was illegal i.e. contrary to the constitutional mandate and statutory
provisions and consequently, whether the petitioners are entitled to be
released on interim bail.
CRIMINAL WRIT PETITION/STAMP/22494/2022
4. Mr. Amit Desai, learned senior counsel appearing for the petitioner
-Chanda Kochhar submits;
(i) that the respondent No. 1-CBI has, with blatant disregard to the
rule of law, illegally and arbitrarily arrested the petitioner in clear
contravention of the constitutional mandate and the provisions of
Cr. P.C., pertaining to arrest;
(ii) that there was no occasion whatsoever to arrest the petitioner,
inasmuch as, the petitioner had cooperated with the CBI
throughout, right from the time the Preliminary Enquiry (‘PE’) was
registered by the CBI till she was arrested. Learned senior counsel
pointed to the number of times, the petitioner appeared before
the CBI, and the documents submitted by her to the CBI;
(iii) that the petitioner had appeared before the Directorate of
Enforcement (‘ED’), after the ED registered offences under
Sections 3 and 4 of the Prevention of Money-Laundering Act
(‘PMLA Act’) on 31.01.2019 against her and others and that the
petitioner had co-operated with the investigation conducted by
the ED;
(iv) that even in the adjudicating proceeding before the PMLA
Authority, the petitioner had appeared and participated. He
submitted that the Adjudicating Authority had after hearing the
parties lifted the provisional attachment order passed by ED, vide
order dated 06.11.2020;
(v) that throughout, i.e. right from the registration of the PE by
respondent No. 1, registration of FIR by ED, till date, it is the
petitioner's case, that she had no knowledge regarding her
husband Deepak Kochhar's transactions;
-----------------------------------------------------------------------------------------------------------------------------------------------------------
(vi) that the respondent No. 1-CBI by arresting the petitioner, had
contravened the constitutional mandate and statutory rights
granted to the petitioner. Learned senior counsel submits that
there has been a clear breach of the mandate of Sections 41 and
41-A Cr. P.C., inasmuch as, the reasons for arrest have not been
spelt out in the arrest memo and that arrest cannot be at the ipse
dixit or at the whims and fancies of an officer, as done in the
present case;
(vii) that the provisions of the Cr. P.C. have not been complied with,
asmuch as, there was no lady officer, as mandated, at the time of
her arrest, as is evident from the arrest memo. Learned senior
counsel submits that although a lady officer was present at the
time of personal search of the petitioner, there is no endorsement
that a lady officer was present at the time of petitioner's arrest;
(viii) that there is no previous approval as required under the PC
Act;
(ix) that the remanding court had failed in its duty to consider that
there was non-compliance of Sections 41 and 41-A Cr. P.C. and
the ratio of the judgments of the Apex Court on this aspect, in
particular, the judgment in Arnesh Kumar v. State of Bihar1 and
Satender Kumar Antil v. CBI2 .
5. Learned senior counsel, in support of his submissions, relied on
the several judgments, in particular, the following judgments:
(1) Satender Kumar Antil v. CBI (Supra)
(2) Santosh v. State of Maharashtra3
(3) Lalita Kumari v. Govt. of Uttar Pradesh4
(4) D.K. Basu v. State of West Bengal5
(5) Joginder Kumar v. State of Uttar Pradesh6
(6) Mohd. Zubair v. State (NCT of Delhi)7
(7) Arnesh Kumar v. State of Bihar (Supra)
(8) Arnab Manoranjan Goswami v. State of Maharashtra8
CRIMINAL WRIT PETITION/STAMP/22495/2022
6. Mr. Choudhary, learned senior counsel appearing for the petitioner
-Deepak Kochhar adopted the submissions so canvassed by Mr. Desai.
He submitted that even in the petitioner's case, there is non-
compliance of the mandate of Sections 41 and 41-A of Cr. P.C. He too
submitted that there was absolutely no justification for the respondent
No. 1-CBI to arrest the petitioner, as he too had cooperated with the
investigation and had attended the CBI Office, whenever summoned,
and that all documents as sought, were submitted by him. Learned
senior counsel also relied on the judgments cited by Mr. Desai.
Mr. Thakare, learned Spl. PP for the Respondent No. 1-CBI:
7. Mr. Thakare, learned Special PP submitted that there was no
-----------------------------------------------------------------------------------------------------------------------------------------------------------
infringement/infraction of either the constitutional mandate or the

statutory requirement vis-a-vis the petitioners' arrests. He submits that
the reasons for arrest have been spelt out in the arrest memo i.e. ‘the
petitioners were not cooperating and not disclosing true and full facts of
the case’. Learner Special PP submits that hence, for proper
investigation, the petitioners' custody was necessary, so that, the
accused could be confronted with each other. He further submitted that
since the petitioners are now in judicial custody, it is always open for
them to file a regular bail application under Section 439 Cr. P.C.
8. A few admitted facts as are necessary to decide the petitions are
reproduced hereinunder:
08.12.2017 A PE bearing No.
PE.BD1/2017/E/0001 was
registered by the CBI.
06.09.2018 The petitioner-Deepak
Kochhar received summons
from the CBI to remain
present at the CBI Office on
11.09.2018, for enquiry in
the PE.
11.09.2018 The Petitioner-Deepak
Kochhar attended the CBI
Office, where he was
interrogated. He had also
attended the CBI office on
two consecutive days in
September 2018, when
again he was questioned.
22.09.2018 and 23.09.2018 Petitioner-Chanda Kochhar
attended the office of CBI at
New Delhi, where she was
interrogated.
22.01.2019 The CBI registered a FIR
bearing No.
RCBD12019E0001-CBI/BS
& FC/Delhi, inter alia
against Chanda Kochhar
and Deepak Kochhar under
Sections 120-B and 420 of
the IPC and Sections 7, 13
(2) r/w 13(1)(d) of the PC
Act for the alleged offences
during the period 2009-
-----------------------------------------------------------------------------------------------------------------------------------------------------------
2012.
31.01.2019 The ED registered
ECIR/02/HIU/2019 under
Sections 3 and 4 of the
PMLA Act, alleging that the
proceeds of crime were Rs.
1794 Crores.
In 2019 Petitioner-Deepak Kochhar
attended CBI Office on 15
dates and on 08.05.2019,
14.06.2019, 20.06.2019,
05.07.2019 and
19.08.2019 submitted
documents sought for by
the respondent No. 1-CBI
(more than 2300 pages).
The CBI seized documents
submitted by the petitioner-
Deepak Kochhar on
08.05.2019, vide two
seizure memos; on
20.06.2019, vide two
seizure memos; and on
19.08.2021 vide a seizure
memo.
01.11.2019 The Petitioner-Chanda
Kochhar, suo moto
addressed an e-mail dated
01.11.2019 to respondent
No. 1-CBI requesting for a
meeting on a date and time
convenient to them, to
present true, correct and
full facts of the matter, in
their right perspective.
However, there was no
response from respondent
No. 1 to this email.
2019, 2020 and 2021 Petitioners were not
summoned by the CBI
during the said period.
During the period 2019-202020 Petitioner-Chanda Kochhar
was, however, summoned
by ED, pursuant to which,
-----------------------------------------------------------------------------------------------------------------------------------------------------------
she remained present in the

ED Office on the following
dates:
01.03.2019, 02.03.2019,
03.03.2019, 04.03.2019,
13.05.2019, 14.05.2019,
15.05.2019, 16.05.2019,
17.05.2019, 28.06.2019,
15.07.2019, 16.07.2019,
17.07.2019, 14.10.2020,
19.10.2020 and
22.10.2020.
In addition to appearing on
the said dates, petitioner-
Chanda Kochhar also
provided documents to ED
on 16.03.2019 (206 pages),
12.04.2019, 14.05.2019
(446 pages), 08.06.2019
(11 pages), 13.06.2019,
22.06.2019, 03.09.2019,
14.10.2019, 14.10.2020
(78 pages) and 22.10.2020
(78 pages).
Petitioner-Deepak Kochhar
attended ED office on
01.03.2019, 02.03.2019,
13.05.2019; 14.05.2019,
15.05.2019, 16.05.2019,
17.05.2019, 28.06.2019,
18.07.2019, 19.07.2019,
07.09.2020, 09.09.2020,
10.09.2020, 14.10.2020,
15.10.2020 and
16.10.2020.
In addition to appearing on
the said dates, petitioner-
Deepak Kochhar also
provided documents to ED
on 14.03.2019 (1307
pages), 23.04.2019,
13.05.2019 (877 pages),
29.05.2019 (1668 pages),
08.06.2019 (9128 pages),
-----------------------------------------------------------------------------------------------------------------------------------------------------------
10.10.2019, 14.10.2019
(1041 pages), 14.01.2020,
18.01.2020, 28.01.2020,
29.01.2020, 06.02.2020,
17.07.2020 (220 pages),
19.07.2020, 07.09.2020,
23.06.2021, 06.07.2021,
13.09.2021 and
25.11.2021.
07.09.2020 Petitioner - Deepak Kochhar
was arrested by ED.
Petitioner - Chanda Kochhar
was not arrested by ED
during their investigation.
20.11.2020 Petitioner-Chanda Kochhar
approached the Apex Court,
after the arrest of her
husband. The learned
Solicitor General of India
made a statement before
the Supreme Court in a writ
petition filed by petitioner-
Chanda Kochhar, that no
coercive steps would be
taken against her.
12.02.2021 The Sessions Court granted
bail to the petitioner-
Chanda Kochhar under
Section 88 Cr. P.C. in the
PMLA case, referring to the
statement of the learned
Solicitor General of India.
25.03.2021 Petitioner-Deepak Kochhar
was enlarged on bail by this
Court (Coram : Prakash D.
Naik, J.).
10.01.2022 The Apex Court dismissed
the ED's SLP and as such
confirmed the order of bail.
27.06.2022 The Petitioner-Chanda
Kochhar received a S. 41-A
notice dated 27.06.2022
from the CBI, directing her
to appear before them on
-----------------------------------------------------------------------------------------------------------------------------------------------------------
04.07.2022. However, as
the petitioner had a court
case before the Hon'ble
Bombay High Court on
04.07.2022, she addressed
an email to CBI on
01.07.2022 requesting that
her appearance be
postponed to 08.07.2022.
The request of the
petitioner was acceded to
by CBI vide email dated
04.07.2022.
06.07.2022 Petitioner-Deepak Kochhar
received a S. 41-A notice
dated 06.07.2022 from the
CBI, directing him to
appear before it on
07.07.2022. It appears that
the petitioner requested the
Investigating Officer, if he
could remain present on
08.07.2022.
08.07.2022 Both the petitioners
attended the office of the
CBI on 08.07.2022. They
were interrogated briefly
and allowed to leave.
15.12.2022/22.12.2022/23.12.2022 The next S. 41-A notice that
the petitioner-Chanda
Kochhar received was dated
15.12.2022, whereby she
was directed to appear
before the CBI on
19.12.2022. Since the
petitioner's husband-
Deepak Kochhar had also
been summoned, and on
the same date a part-heard
matter was being heard by
the Division Bench of the
Bombay High Court, the
petitioner-Deepak Kochhar
requested accomodation.
-----------------------------------------------------------------------------------------------------------------------------------------------------------
This request made by the

petitioner-Deepak Kochhar
was acceded to by CBI and
he was further informed
that his wife (Chanda
Kochhar) could travel with
him and appear before CBI
on 22.12.2022/23.12.2022.
However, as the petitioner's
husband's matter was still
continuing and a hearing
was also kept for
22.12.2022, a request was
made to the officer of CBI
that the petitioners be
permitted to appear before
CBI on 23.12.2022 and the
same was acceded to.
Accordingly, the petitioners
remained present before the
CBI on 23.12.2022 at 12
noon at New Delhi where
they were made to wait,
and thereafter, both were
arrested.
9. After the petitioners' arrest, they were remanded to CBI custody
by the learned Special Judge vide orders dated 24.12.2022 and
26.12.2022. Presently, both the petitioners are in judicial custody.
10. Apart from the aforesaid, it is also a matter of record and which
facts are admitted, that pursuant to the registration of the offence by
the ED, the ED provisionally attached various properties of NuPower
Renewables Pvt. Ltd. (‘NRPL’) and also the residential flat owned by the
petitioner-Deepak Kochhar. On 03.02.2020, the ED filed an original
complaint before the Adjudicating Authority, PMLA, seeking
confirmation of the provisional attachment order. It appears that both
the petitioners, who were respondents in the complaint, filed their
responses before the Adjudicating Authority, PMLA, on 10.09.2020. The
Adjudicating Authority, PMLA, vide order dated 06.11.2020 rejected the
ED's complaint and released the properties from attachment inter alia
holding that the properties in question were not proceeds of crime and
were not involved in money laundering. It is also a matter of record
that ED has challenged the said order before the Appellate Authority
and the said appeal is pending.
REASONS:
-----------------------------------------------------------------------------------------------------------------------------------------------------------
11. As noted earlier and as agreed between the learned senior

counsel for the parties, the aforesaid petitions were heard only with
respect to the interim relief sought i.e. for interim bail, on the premise
that the petitioners' arrest was illegal, being in contravention of the
statutory provisions and the constitutional mandate.
12. Before we proceed to decide whether the petitioners' arrest can
be said to be illegal, it would be apposite to reproduce the relevant
provisions and the relevant judgments on this aspect.
41. When police may arrest without warrant - (1) Any police
officer may without an order from a Magistrate and without a
warrant, arrest any person-
(a) who commits, in the presence of a police officer, a cognizable
offence;
(b) against whom a reasonable complaint has been made, or
credible information has been received, or a reasonable
suspicion exists that he has committed a cognizable offence
punishable with imprisonment for a term which may be less
than seven years or which may extend to seven years whether
with or without fine, if the following conditions are satisfied,
namely:
(i) the police officer has reason to believe on the basis of such
complaint, information, or suspicion that such person has
committed the said offence;
(ii) the police officer is satisfied that such arrest is necessary-
(a) to prevent such person from committing any further
offence; or
(b) for proper investigation of the offence; or
(c) to prevent such person from causing the evidence of the
offence to disappear or tampering with such evidence in
any manner; or
(d) to prevent such person from making any inducement,
threat or promise to any person acquainted with the facts
of the case so as to dissuade him from disclosing such
facts to the Court or to the police officer; or
(e) as unless such person is arrested, his presence in the
Court whenever required cannot be ensured; and the
police officer shall record while making such arrest, his
reasons in writing:
Provided that a police officer shall, in all cases where
the arrest of a person is not required under the provisions
of this sub-section, record the reasons in writing for not
making the arrest.
(ba) against whom credible information has been received
-----------------------------------------------------------------------------------------------------------------------------------------------------------
that he has committed a cognizable offence punishable

with imprisonment for a term which may extend to more
than seven years whether with or without fine or with
death sentence and the police officer has reason to
believe on the basis of that information that such person
has committed the said offence;
(c) who has been proclaimed as an offender either under
this Code or by order of the State Government; or
(d) in whose possession anything is found which may
reasonably be suspected to be stolen property and who
may reasonably be suspected of having committed an
offence with reference to such thing; or
(e) who obstructs a police officer while in the execution of
his duty, or who has escaped, or attempts to escape, from
lawful custody; or
(f) who is reasonably suspected of being a deserter from any
of the Armed Forces of the Union; or
(g) who has been concerned in, or against whom a
reasonable complaint has been made, or credible
information has been received, or a reasonable suspicion
exists, of his having been concerned in, any act
committed at any place out of India which, if committed
in India, would have been punishable as an offence, and
for which he is, under any law relating to extradition, or
otherwise, liable to be apprehended or detained in
custody in India; or
(h) who, being a released convict, commits a breach of any
rule made under sub-section (5) of section 356; or
(i) for whose arrest any requisition, whether written or oral,
has been received from another police officer, provided
that the requisition specifies the person to be arrested
and the offence or other cause for which the arrest is to
be made and it appears therefrom that the person might
lawfully be arrested without a warrant by the officer who
issued the requisition.
(2) Subject to the provisions of section 42, no person concerned
in a non-cognizable offence or against whom a complaint has been
made or credible information has been received or reasonable
suspicion exists of his having so concerned, shall be arrested except
under a warrant or order of a Magistrate.”
41-A. Notice of appearance before police officer.- (1) The
police officer shall, in all cases where the arrest of a person is not
required under the provisions of sub-section (1) of section 41, issue
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a notice directing the person against whom a reasonable complaint

has been made, or credible information has been received, or a
reasonable suspicion exists that he has committed a cognizable
offence, to appear before him or at such other place as may be
specified in the notice.
(2) Where such a notice is issued to any person, it shall be the
duty of that person to comply with the terms of the notice.
(3) Where such person complies and continues to comply with the
notice, he shall not be arrested in respect of the offence referred to
in the notice unless, for reasons to be recorded, the police officer is
of the opinion that he ought to be arrested.
(4) Where such person, at any time, fails to comply with the
terms of the notice or is unwilling to identify himself, the police
officer may, subject to such orders as may have been passed by a
competent Court in this behalf, arrest him for the offence mentioned
in the notice.
“46. Arrest how made.- (1) In making an arrest the police
officer or other person making the same shall actually touch or
confine the body of the person to be arrested, unless there be a
submission to the custody by word or action.
Provided that where a woman is to be arrested, unless the
circumstances indicate to the contrary, her submission to custody on
an oral intimation of arrest shall be presumed and, unless the
circumstances otherwise require or unless the police officer is a
female, the police officer shall not touch the person of the woman for
making her arrest.
(2) If such person forcibly resists the endeavour to arrest him, or
attempts to evade the arrest, such police officer or other person may
use all means necessary to effect the arrest.
(3) Nothing in this section gives a right to cause the death of a
person who is not accused of an offence punishable with death or
with imprisonment for life.
(4) Save in exceptional circumstances, no woman shall be
arrested after sunset and before sunrise, and where such exceptional
circumstances exist, the woman police officer shall, by making a
written report, obtain the prior permission of the Judicial Magistrate
of the first class within whose local jurisdiction the offence is
committed or the arrest is to be made.
“60-A. Arrests to be made strictly according to the Code. No
arrest shall be made except in accordance with the provisions of this
Code or any other law for the time being in force providing for
arrest.”
13. The Apex Court in the case of Satender Kumar Antil (Supra), has
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issued certain directions to investigating agencies and the courts; has

discussed arrest in cognizable offences, the mandate of Section 41,
effect of its non-compliance while considering the bail application; has
issued directions to ensure that police officers do not arrest the accused
unnecessarily and magistrates do not authorise detention casually and
mechanically; has held that Sections 41 and 41-A are facets of Article
21 of the Constitution; and has issued certain guidelines for avoiding
unwarranted arrest, amongst other directions/observations.
14. The relevant paras of Satender Kumar Antil (Supra), with which
we are concerned, are reproduced hereinunder:
“24. This provision mandates the police officer to record his
reasons in writing while making the arrest. Thus, a police officer
is duty-bound to record the reasons for arrest in writing. Similarly,
the police officer shall record reasons when he/she chooses not to
arrest. There is no requirement of the aforesaid procedure when the
offence alleged is more than seven years, among other reasons.
25. The consequence of non-compliance with Section 41
shall certainly enure to the benefit of the person suspected of
the offence. Resultantly, while considering the application for
enlargement on bail, courts will have to satisfy themselves on
the due compliance of this provision. Any non-compliance
would entitle the accused to a grant of bail.
26. Section 41A deals with the procedure for appearance before
the police officer who is required to issue a notice to the person
against whom a reasonable complaint has been made, or credible
information has been received or a reasonable suspicion exists that
he has committed a cognizable offence, and arrest is not required
under Section 41(1). Section 41B deals with the procedure of arrest
along with mandatory duty on the part of the officer.
27. On the scope and objective of Section 41 and 41A, it is
obvious that they are facets of Article 21 of the Constitution. We
need not elaborate any further, in light of the judgment of this Court
in Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273:
“7.1. From a plain reading of the aforesaid provision, it is
evident that a person accused of an offence punishable with
imprisonment for a term which may be less than seven
years or which may extend to seven years with or without
fine, cannot be arrested by the police officer only on his
satisfaction that such person had committed the offence
punishable as aforesaid. A police officer before arrest, in
such cases has to be further satisfied that such arrest is
necessary to prevent such person from committing any
further offence; or for proper investigation of the case; or to
prevent the accused from causing the evidence of the
-----------------------------------------------------------------------------------------------------------------------------------------------------------
offence to disappear; or tampering with such evidence in

any manner; or to prevent such person from making any
inducement, threat or promise to a witness so as to
dissuade him from disclosing such facts to the court or the
police officer; or unless such accused person is arrested, his
presence in the court whenever required cannot be ensured.
These are the conclusions, which one may reach based on
facts.
7.2. The law mandates the police officer to state the facts and
record the reasons in writing which led him to come to a
conclusion covered by any of the provisions aforesaid, while
making such arrest. The law further requires the police officers to
record the reasons in writing for not making the arrest.
7.3. In pith and core, the police officer before arrest must put a
question to himself, why arrest? Is it really required? What
purpose it will serve? What object it will achieve? It is only after
these questions are addressed and one or the other conditions as
enumerated above is satisfied, the power of arrest needs to be
exercised. In fine, before arrest first the police officers should
have reason to believe on the basis of information and material
that the accused has committed the offence. Apart from this, the
police officer has to be satisfied further that the arrest is
necessary for one or the more purposes envisaged by sub-clauses
(a) to (e) of clause (1) of Section 41 CrPC.
8. An accused arrested without warrant by the police has the
constitutional right under Article 22(2) of the Constitution of India
and Section 57 CrPC to be produced before the Magistrate without
unnecessary delay and in no circumstances beyond 24 hours
excluding the time necessary for the journey:
8.1. ………………………
8.2. Before a Magistrate authorises detention under
Section 167 CrPC, he has to be first satisfied that the arrest
made is legal and in accordance with law and all the
constitutional rights of the person arrested are satisfied. If
the arrest effected by the police officer does not satisfy the
requirements of Section 41 of the Code, Magistrate is duty-
bound not to authorise his further detention and release the
accused. In other words, when an accused is produced
before the Magistrate, the police officer effecting the arrest
is required to furnish to the Magistrate, the facts, reasons
and its conclusions for arrest and the Magistrate in turn is
to be satisfied that the condition precedent for arrest under
Section 41 CrPC has been satisfied and it is only thereafter
that he will authorise the detention of an accused.
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8.3. The Magistrate before authorising detention will

record his own satisfaction, may be in brief but the said
satisfaction must reflect from his order. It shall never be
based upon the ipse dixit of the police officer, for example,
in case the police officer considers the arrest necessary to
prevent such person from committing any further offence or
for proper investigation of the case or for preventing an
accused from tampering with evidence or making
inducement, etc. the police officer shall furnish to the
Magistrate the facts, the reasons and materials on the basis
of which the police officer had reached its conclusion.
Those shall be perused by the Magistrate while authorising
the detention and only after recording his satisfaction in
writing that the Magistrate will authorise the detention of
the accused.
9. …The aforesaid provision makes it clear that in all cases
where the arrest of a person is not required under Section 41(1)
CrPC, the police officer is required to issue notice directing the
accused to appear before him at a specified place and time. Law
obliges such an accused to appear before the police officer and it
further mandates that if such an accused complies with the terms
of notice he shall not be arrested, unless for reasons to be
recorded, the police officer is of the opinion that the arrest is
necessary. At this stage also, the condition precedent for arrest as
envisaged under Section 41 CrPC has to be complied and shall be
subject to the same scrutiny by the Magistrate as aforesaid.
10. …………………
11. Our endeavour in this judgment is to ensure that
police officers do not arrest the accused unnecessarily and
Magistrate do not authorise detention casually and
mechanically. In order to ensure what we have observed
above, we give the following directions:
11.1. All the State Governments to instruct its police officers
not to automatically arrest when a case under Section 498-A IPC
is registered but to satisfy themselves about the necessity for
arrest under the parameters laid down above flowing from Section
41 CrPC;
11.2. All police officers be provided with a check list
containing specified sub-clauses under Section 41(1)(b)(ii);
11.3. The police officer shall forward the check list duly
filled and furnish the reasons and materials which
necessitated the arrest, while forwarding/producing the
accused before the Magistrate for further detention;
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11.4. The Magistrate while authorising detention of the

accused shall peruse the report furnished by the police
officer in terms aforesaid and only after recording its
satisfaction, the Magistrate will authorise detention;
11.5. The decision not to arrest an accused, be forwarded to
the Magistrate within two weeks from the date of the institution of
the case with a copy to the Magistrate which may be extended by
the Superintendent of Police of the district for the reasons to be
recorded in writing;
11.6. Notice of appearance in terms of Section 41-A CrPC be
served on the accused within two weeks from the date of
institution of the case, which may be extended by the
Superintendent of Police of the district for the reasons to be
recorded in writing;
11.7. Failure to comply with the directions aforesaid shall
apart from rendering the police officers concerned liable for
departmental action, they shall also be liable to be
punished for contempt of court to be instituted before the
High Court having territorial jurisdiction.
11.8. Authorising detention without recording reasons as
aforesaid by the Judicial Magistrate concerned shall be liable for
departmental action by the appropriate High Court.
12. We hasten to add that the directions aforesaid shall not
only apply to the cases under Section 498-A IPC or Section 4 of
the Dowry Prohibition Act, the case in hand, but also such cases
where offence is punishable with imprisonment for a term which
may be less than seven years or which may extend to seven
years, whether with or without fine.”
28. We only reiterate that the directions aforesaid ought to
be complied with in letter and spirit by the investigating and
prosecuting agencies, while the view expressed by us on the
non-compliance of Section 41 and the consequences that flow
from it has to be kept in mind by the Court, which is expected
to be reflected in the orders.
29. Despite the dictum of this Court in Arnesh Kumar
(supra), no concrete step has been taken to comply with the
mandate of Section 41A of the Code. This Court has clearly
interpreted Section 41(1)(b)(i) and (ii) inter alia holding that
notwithstanding the existence of a reason to believe qua a
police officer, the satisfaction for the need to arrest shall also
be present. Thus, sub-clause (1)(b)(i) of Section 41 has to be
read along with sub-clause (ii) and therefore both the
elements of ‘reason to believe’ and ‘satisfaction qua an arrest’
are mandated and accordingly are to be recorded by the police
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officer.
30. ……
31. …….
32. We also expect the courts to come down heavily on the
officers effecting arrest without due compliance of Section 41
and Section 41A. We express our hope that the Investigating
Agencies would keep in mind the law laid down in Arnesh
Kumar (Supra), the discretion to be exercised on the
touchstone of presumption of innocence, and the safeguards
provided under Section 41, since an arrest is not mandatory. If
discretion is exercised to effect such an arrest, there shall be
procedural compliance. Our view is also reflected by the
interpretation of the specific provision under Section 60A of
the Code which warrants the officer concerned to make the
arrest strictly in accordance with the Code.
…………………
100. In conclusion, we would like to issue certain directions.
These directions are meant for the investigating agencies and also
for the courts. Accordingly, we deem it appropriate to issue the
following directions, which may be subject to State amendments.:
100.1. ………………….
100.2. The investigating agencies and their officers are
duty-bound to comply with the mandate of Section 41 and
41A of the Code and the directions issued by this Court in
Arnesh Kumar (supra). Any dereliction on their part has to be
brought to the notice of the higher authorities by the court
followed by appropriate action.
100.3. The courts will have to satisfy themselves on the
compliance of Section 41 and 41A of the Code. Any non-
compliance would entitle the accused for grant of bail.”
(emphasis supplied)
15. In Arnab Manoranjan Goswami v. State of Maharashtra9 , the
Apex Court in para 67 has held as under:
“67. Human liberty is a precious constitutional value, which is
undoubtedly subject to regulation by validly enacted legislation. As
such, the citizen is subject to the edicts of criminal law and
procedure. Section 482 recognizes the inherent power of the High
Court to make such orders as are necessary to give effect to the
provisions of the CrPC or prevent abuse of the process of any Court
or otherwise to secure the ends of justice. Decisions of this court
require the High Courts, in exercising the jurisdiction entrusted to
them under Section 482, to act with circumspection. In emphasising
that the High Court must exercise this power with a sense of
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restraint, the decisions of this Court are founded on the basic

principle that the due enforcement of criminal law should not be
obstructed by the accused taking recourse to artifices and strategies.
The public interest in ensuring the due investigation of crime is
protected by ensuring that the inherent power of the High Court is
exercised with caution. That indeed is one - and a significant - end of
the spectrum. The other end of the spectrum is equally important :
the recognition by Section 482 of the power inhering in the High
Court to prevent the abuse of process or to secure the ends of justice
is a valuable safeguard for protecting liberty. The Code of Criminal
Procedure of 1898 was enacted by a legislature which was not
subject to constitutional rights and limitations; yet it recognized the
inherent power in Section 561A. Post Independence, the recognition
by Parliament37 of the inherent power of the High Court must be
construed as an aid to preserve the constitutional value of liberty.
The writ of liberty runs through the fabric of the Constitution. The
need to ensure the fair investigation of crime is undoubtedly
important in itself, because it protects at one level the rights of the
victim and, at a more fundamental level, the societal interest in
ensuring that crime is investigated and dealt with in accordance with
law. On the other hand, the misuse of the criminal law is a matter of
which the High Court and the lower Courts in this country must be
alive. In the present case, the High Court could not but have been
cognizant of the specific ground which was raised before it by the
appellant that he was being made a target as a part of a series of
occurrences which have been taking place since April 2020. The
specific case of the appellant is that he has been targeted because
his opinions on his television channel are unpalatable to authority.
Whether the appellant has established a case for quashing the FIR is
something on which the High Court will take a final view when the
proceedings are listed before it but we are clearly of the view that in
failing to make even a prima facie evaluation of the FIR, the High
Court abdicated its constitutional duty and function as a protector of
liberty. Courts must be alive to the need to safeguard the public
interest in ensuring that the due enforcement of criminal law is not
obstructed. The fair investigation of crime is an aid to it. Equally it is
the duty of courts across the spectrum - the district judiciary, the
High Courts and the Supreme Court - to ensure that the criminal law
does not become a weapon for the selective harassment of citizens.
Courts should be alive to both ends of the spectrum - the need to
ensure the proper enforcement of criminal law on the one hand and
the need, on the other, of ensuring that the law does not become a
ruse for targeted harassment. Liberty across human eras is as
tenuous as tenuous can be. Liberty survives by the vigilance of her
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citizens, on the cacophony of the media and in the dusty corridors of

courts alive to the rule of (and not by) law. Yet, much too often,
liberty is a casualty when one of these components is found
wanting.”
16. In Santosh v. State of Maharashtra10 , the Apex Court in para 6
has observed as under:
“6. It appears, the IO was of the view that the custody of the
Appellant is required for recording his confessional statement in
terms of what the co-accused had already stated in the Statement
Under Section 161 of the Criminal Procedure Code, 1973. The IO was
of the opinion that the Appellant was not cooperating because he
kept reiterating that he had not purchased the food-grains. The
purpose of custodial interrogation is not just for the purpose of
confession. The right against self-incrimination is provided for in
Article 20(3) of the Constitution. It is a well settled position in view
of the Constitution Bench decision in Selvi v. State of Karnataka -
(2010) 7 SCC 263, that Article 20(3) enjoys an “exalted status”. This
provision is an essential safeguard in criminal procedure and is also
meant to be a vital safeguard against torture and other coercive
methods used by investigating authorities. Therefore, merely
because the Appellant did not confess, it cannot be said that the
Appellant was not cooperating with the investigation. However, in
case, there is no cooperation on the part of the Appellant for the
completion of the investigation, it will certainly be open to the
Respondent to seek for cancellation of bail.”
17. In Joginder Kumar v. State of U.P.11 , it is observed in Para 20 by
the Apex Court as under:
“20. In India, Third Report of the National Police Commission at
page 32 also suggested:
“An arrest during the investigation of a cognizable case may be
considered justified in one or other of the following
circumstances:
(i) The case involves a grave offence like murder; dacoity,
robbery, rape, etc., and it is necessary to arrest the accused
and bring his movements under restraint to infuse confidence
among the terror stricken victims.
(ii) The accused is likely to abscond and evade the processes of
law.
(iii) The accused is given to violent behaviour and is likely to
commit further offences unless his movements are brought
under restraint.
(iv) The accused is a habitual offender and unless kept in custody
he is likely to commit similar offences again.
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It would be desirable to insist through departmental instructions

that a police officer making an arrest should also record in the case
diary the reasons for making the arrest, thereby clarifying his
conformity to the specified guidelines….”
The above guidelines are merely incidents of personal
liberty guaranteed under the Constitution of India. No arrest
can be made because it is lawful for the Police Officer to do
so. The existence of the power to arrest is one thing. The
justification for the exercise of it is quite another. The Police
Officer must be able to justify the arrest apart from his power
to do so. Arrest and detention in police lock-up of a person
can cause incalculable harm to the reputation and self esteem
of a person. No arrest can be made in a routine manner on a
mere allegation of commission of an offence made against a
person. It would be prudent for a Police Officer in the interest
of protection of the constitutional rights of a citizen” and
perhaps in his own interest that no arrest should be made
without a reasonable satisfaction reached after some
investigation as to the genuineness and bonafides of a
complaint and a reasonable belief both as to the person's
complicity and even so as to the need to effect arrest. Denying
a person of his liberty is a serious matter. The
recommendations of the Police Commission merely reflect the
constitutional concomitants of the fundamental right to
personal liberty and freedom. A person is not liable to arrest
merely on the suspicion of complicity in an offence. There
must be some reasonable justification in the opinion of the
Officer effecting the arrest that such arrest is necessary and
justified. Except in heinous offences, an arrest must be
avoided if a Police Officer issues notice to person to attend the
Station House and not to leave Station without permission
would do”.
(emphasis supplied)
18. In Mohd. Zubair v. State (NCT of Delhi)12 , the Apex Court in
paras 28, 29, 30 has held as under:
“28. Police officers are vested with the power to arrest individuals
at various stages of the criminal justice process, including during the
course of investigation. However, this power is not unbridled. In
terms of Section 41(1)(b)(ii) of the CrPC, the police officer in
question must be satisfied that such arrest is necessary to
prevent the person sought to be arrested from committing any
further offence, for proper investigation of the offence, to
prevent the arrestee from tampering with or destroying
evidence, to prevent them from influencing or intimidating
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potential witnesses, or when it is not possible to ensure their

presence in court without arresting them.
29. Police officers have a duty to apply their mind to the
case before them and ensure that the condition(s) in Section
41 are met before they conduct an arrest. This Court has time
and again, reiterated the importance of doing so, including in
Arnesh Kumar v. State of Bihar9 where the Court observed:
“6. […] The existence of the power to arrest is one thing, the
justification for the exercise of it is quite another. Apart from
power to arrest, the police officers must be able to justify the
reasons thereof. No arrest can be made in a routine manner on a
mere allegation of commission of an offence made against a
person…”
30. We once again have occasion to reiterate that the
guidelines laid down in Arnesh Kumar (supra) must be
followed, without exception. The raison d'être of the powers of
arrest in relation to cognizable offences is laid down in Section 41.
Arrest is not meant to be and must not be used as a punitive tool
because it results in one of the gravest possible consequences
emanating from criminal law : the loss of personal liberty.
Individuals must not be punished solely on the basis of allegations,
and without a fair trial. When the power to arrest is exercised
without application of mind and without due regard to the law, it
amounts to an abuse of power. The criminal law and its processes
ought not to be instrumentalized as a tool of harassment. Section 41
of the CrPC as well as the safeguards in criminal law exist in
recognition of the reality that any criminal proceeding almost
inevitably involves the might of the state, with unlimited resources
at its disposal, against a lone individual.”
(emphasis supplied)
19. From the aforesaid judgments, it is evident that arrest is not
mandatory; that the notice issued under Section 41-A is to ensure that
the persons upon whom notice is served, is required to attend for
‘answering certain queries’ relating to the case; that if an officer is
satisfied that a person has committed a cognizable offence punishable
with imprisonment for a term, which may be less than 7 years or which
may extend to the said period, with or without fine, an arrest can follow
only when there is a reason to believe or suspect that the said person
has committed an offence, and there is a necessity for an arrest.
20. The conditions or necessity to arrest is stipulated in Section 41
(1)(b)(ii) from (a) to (e). The same are reproduced hereunder:
“(a) to prevent such person from committing any further offence; or
(b) for proper investigation of the offence; or
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(c) to prevent such person from causing the evidence of the offence
to disappear or tampering with such evidence in any manner; or
(d) to prevent such person from making any inducement, threat or
promise to any person acquainted with the facts of the case so as
to dissuade him from disclosing such facts to the Court or to the
police officer; or
(e) as unless such person is arrested, his presence in the Court
whenever required cannot be ensured, and the police officer shall
record while making such arrest, his reasons in writing.”
21. It is incumbent upon the police not only to record reasons for
arrest in writing, but, even in cases, where the police choose not to
arrest. It is also incumbent on courts to satisfy themselves that there is
due compliance of Section 41 and 41-A, failing which, the same will
enure to the benefit of the person suspected of the offence, entitling
the person to be released on bail.
22. Having regard to the legal position as stated aforesaid, the short
question that arises for consideration before us is, whether the
petitioners' arrest being contrary to the mandate of law i.e. whether the
arrests are in violation of Sections 41, 41-A and 60-A Cr. P.C., the
petitioners are entitled to be released on bail.
23. In order to consider the same, we deem it appropriate to
reproduce the arrest memo of petitioner-Chanda Kochhar. The same
reads thus:
1. Case No. RCBD1/2019/E/0001
dated 22.01.2019
(Videocon Case)
2. Section of Law 120-B r/w 420 IPC &
Section 7 r/w section
13(2) r/w 13(1)(d) of
the PC Act, 1988
3. Name of the CBI, BSFB, New Delhi
SPE/Branch
4. Date, time & Place of 23.12.2022, 16.30
arrest hrs. O/o Head of
Branch & DIG of
Police, Central Bureau
of Investigation,
Banking Securities
Fraud Branch, A
Wing, 5th Floor, CBI
Head Quarters, Lodhi
Road, New Delhi-
110003
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5. Name, age, Ms. Chanda Kochhar,

Parentage and W/o Shri Deepak
address of the Kochhar, 45 CCI
arrestee Chambers, Church
Road, Mumbai.
(D.O.B. -
17.11.1961)
6. Name & Designation Nitesh Kumar, Dy.
of officer effecting Supdt. of Police,
arrestee Central Bureau of
Investigation,
Banking Securities
Fraud Branch, New
Delhi.
7. Ground of Arrest The accused is an
FIR named.
She has been not
cooperating and
disclosing true and
full facts of the
Case.
8. Name & address of 1. Shri Pankaj
witness Chauhan, Assistant
Manager, Bank of
Baroda, Cannaught
Palace, New Delhi
(Emp. Code no.
177857)
2. Shri Adiya Tomar,
Officer, Punjab
National Bank, Sector
-63, Noida (Emp. No.
5195198)
9. Whether the grounds Yes.
of arrest have been
explained (in
vernacular if
possible) to accused
10. Name and particulars Shri Aditya Kaji, Son-
of the persons in-Law of Shri Deepak
notified about the Kochhar (Mobile no.
arrest of the accused 9987200003)
and their relations
with accused
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11. Whether any visible No

signs of
trauma/injury
present on the body
of the arrestee
12. Any identification Mole on nose.
mark of accused
(include peculiar
physiognomic
features also, if
present)
13. Whether personal Yes.
search of the accused
carried out.
14. Any other remarks
(Nitesh Kumar)
Dy. SP/CBI, BS&FC, New Delhi
Received copy
(Signature/thumb impression of Arrestee)”
24. The arrest memo of the petitioner-Deepak Kochhar is identical.
The ground of arrest reason given by the respondent No. 1-CBI even in
petitioner-Deepak Kochhar's arrest memo is identical. The same reads
thus:
Ground of Arrest The accused is an FIR named.
He has been not cooperating
and disclosing true and full
facts of the Case.
25. Does the aforesaid reason/ground of arrest, satisfy the mandate
of Sections 41 and 41-A of Cr. P.C. and the directions given and the
observations made by the Apex Court in the judgments reproduced
hereinabove? We are afraid, it does not. Arrest may be authorised only
if the concerned officer has ‘reason to believe’ and there is ‘satisfaction
qua an arrest’ that the person has committed an offence. The
term/expression, ‘reason to believe’ finds place in a number of penal
statutes. It postulates belief and the existence of reasons for that
belief. Belief must be in good faith and not casual or as an ipse dixit or
a pretence or on mere suspicion. It is always open for a court to
examine whether the reasons for the formation of the belief have a
rational connection with the formation of the belief. There must be a
direct nexus or live link between the material before the officer and the
formation of his belief. Thus, there must be a rational connection
between the two. We may note, that ‘reason to belief’ must be based
on credible material and no decision to arrest can be recorded on fancy
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or whimsical grounds.
26. Section 41 Cr. P.C. mandates the concerned officer to record his
reasons in writing while making the arrest. Thus, a statutory duty is
cast on the officer not only to record the reasons for arrest in writing,
but also, if the officer chooses not to arrest. The Apex Court in its
judgments in Arnesh Kumar (Supra) and Satender Kumar Antil
(Supra), has clearly interpreted Sections 41(1)(b)(i) and (ii) Cr. P.C. It
is evident from the said judgments that both the elements, “reason to
believe” and “satisfaction for an arrest” as mandated in Section 41(1)
(b)(i) and Section 41(1)(b)(ii) have to be read together and as such
recorded by the concerned officer whilst arresting an accused. The
object being to ensure that officers do not arrest the accused
unnecessarily and the Magistrates do not authorise detention casually
and mechanically. The Apex Court has issued directions in the said
judgments to the investigating agencies to check arbitrary arrests of
persons. The direction further stipulates that failure to comply with the
directions would render the officer liable for departmental action, apart
from contempt of court. As per the direction, even the Magistrate
concerned, shall be liable for departmental action by the appropriate
High Court, for authorising detention without recording reasons. In
Satender Kumar Antil (Supra), the Apex Court in para 32 has observed
as under:
“32. We also expect the courts to come down heavily on the
officers effecting arrest without due compliance of Section 41 and
Section 41A. We express our hope that the Investigating Agencies
would keep in mind the law laid down in Arnesh Kumar (Supra), the
discretion to be exercised on the touchstone of presumption of
innocence, and the safeguards provided under Section 41, since an
arrest is not mandatory. If discretion is exercised to effect such an
arrest, there shall be procedural compliance. Our view is also
reflected by the interpretation of the specific provision under Section
60A of the Code which warrants the officer concerned to make the
arrest strictly in accordance with the Code.
27. In conclusion, in Satender Kumar Antil (Supra), the Apex Court
has, in para 100.3, observed that ‘the courts will have to satisfy
themselves on the compliance of Section 41 and 41-A of the Code. Any
non-compliance would entitle the accused for grant of bail.
28. Thus, it is clearly evident from the mandate of Section 41 Cr.
P.C., that for a cognizable offence, an arrest is not mandatory and the
onus lies with the officer who seeks to arrest. For effecting arrest, the
officer must be satisfied that a person has committed a cognizable
offence, punishable with imprisonment for a term which may be less
than seven years or which may extend to the said period with or
without fine, and that there is a necessity for an arrest. The necessity to
-----------------------------------------------------------------------------------------------------------------------------------------------------------
arrest is spelt out in Section 41(1)(b)(ii) from (a) to (e) i.e. (a) to
prevent such person from committing any further offence; or (b) for
proper investigation of the offence; or (c) to prevent such person from
causing the evidence of the offence to disappear or tampering with
such evidence in any manner; or (d) to prevent such person from
making any inducement, threat or promise to any person acquainted
with the facts of the case so as to dissuade him from disclosing such
facts to the Court or to the police officer; or (e) unless such a person is
arrested, his presence in the Court whenever required cannot be
ensured.
29. In the facts, it is evident that the officer, in the arrest memo, in
the column, ‘Grounds of arrest’ has merely stated that ‘The accused is
an FIR named. She has been not cooperating and disclosing true
and full facts of the Case.’, which prima-facie appears to be contrary
to the facts on record. Nothing specific has been noted/set-out therein,
as mandated by Section 41(1)(b)(ii)(a) to (e). The only reason
mentioned is that the petitioners have not co-operated and not given
true and correct disclosure. The same cannot be a ground for arrest.
30. The ground for arresting the petitioners as stated in the arrest
memos, is unacceptable and is contrary to the reason(s)/ground(s) on
which a person can be arrested i.e. contrary to the mandate of Section
41(1)(b)(ii)(a) to (e). ‘Not disclosing true and correct facts’ cannot be a
reason, inasmuch as, the right against self incrimination is provided for
in Article 20(3) of the Constitution. It is is a well settled position in
view of the Constitution Bench decision in Selvi v. State of Karnataka13 .
Article 20(3) is an essential safeguard in criminal cases and is meant to
be a vital safeguard against torture and other coercive methods used by
investigating agencies. Hence, merely because an accused does not
confess, it cannot be said that the accused have not co-operated with
the investigation. The Apex Court in Santosh v. State of Maharashtra
(Supra), has clearly held that in view of the Constitutional Bench
judgment in Selvi's case (Supra), Article 20(3) of the Constitution
enjoys an “exalted status” and serves as an essential safeguard against
torture and coercive measures used by investigating officers.
31. Courts have time and again re-iterated the role of courts in
protecting personal liberty and ensuring that investigations are not
used as a tool of harassment.
32. The facts reveal that the petitioners after registration of PE in
December 2017 had reported to the CBI, pursuant to the summons
issued; that they not only appeared but also submitted documents,
details of which are mentioned in the seizure memos, as set-out in the
facts stated aforesaid. Admittedly, during the period, 2019 till June
2022, for around four years, neither any summons were issued to the
petitioners nor any communication was established by the respondent
-----------------------------------------------------------------------------------------------------------------------------------------------------------
No. 1-CBI with the petitioners. On 08.07.2022, the petitioners reported

to the CBI Office, New Delhi, pursuant to the notice issued under
Section 41-A. Thereafter, again Section 41-A notice was issued by the
CBI in December 2022, pursuant to which, the petitioners appeared
before the CBI on 23.12.2022, when they came to be arrested. What
was the reason to arrest the petitioners after four years is not spelt out
in the arrest memos, as mandated by Section 41(1)(b)(ii) Cr. P.C. The
reason given in the arrest memos to arrest the petitioners, having
regard to the facts as stated aforesaid, appears to us, to be casual,
mechanical and perfunctory, clearly without application of mind. The
ground for arrest of the petitioners mentioned in the arrest memos is in
clear breach of the mandatory provisions of Sections 41 and 41-A and
60-A of Cr. P.C.
33. As a Constitutional Court, we cannot be oblivious to the
contravention of the mandatory provisions of law and the judgments of
the Apex Court, in particular, the directions given in Arnesh Kumar
(Supra) and Satender Kumar Antil (Supra). It is expected that the
directions and provisions be complied with by the concerned
officers/courts, in letter and spirit. Needless to state, that personal
liberty of an individual is an important aspect of our constitutional
mandate. Merely because an arrest can be made because it is lawful,
does not mandate that arrest must be made. As emphasized by the
Apex Court, a distinction must be made between the existence of the
power to arrest and the justification for exercise of it. It is further
observed that if arrests are made in a routine manner, it could cause
incalculable harm to the reputation and self-esteem of a person and
that presumption of innocence is a facet of Article 21, which would
enure to the benefit of an accused.
34. In the present case, the reasons recorded by the Officer in the
ground of arrest, does not satisfy the tests laid down in Section 41(1)
(b)(ii)(a) to (e) of Cr. P.C., for the reasons set-out hereinabove. It does
not disclose as to whether the arrest was necessary for one or more
purpose(s) as envisaged in the said provision. The same is also in
contravention of the directions given by the Apex Court in Arnesh
Kumar (Supra), in particular, the direction stipulated in para 11.2 and
11.3 which reads thus:
“11.2. All police officers be provided with a check list
containing specified sub-clauses under Section 41(1)(b)(ii);
11.3. The police officer shall forward the check list duly
filled and furnish the reasons and materials which
necessitated the arrest, while forwarding/producing the
accused before the Magistrate for further detention.”
35. Accordingly, in the facts, we hold that the petitioners' arrest is
not in accordance with law. Thus, non-compliance of the mandate of
-----------------------------------------------------------------------------------------------------------------------------------------------------------
Section 41(1)(b)(ii), Section 41-A and Section 60-A of Cr. P.C. will
enure to the benefit of the petitioners, warranting their release on bail.
We may also note that even the learned Special Judge has overlooked
the mandate of law as well as the dicta laid down by the Supreme
Court in Arnesh Kumar (Supra) and Satender Kumar Antil (Supra). It is
incumbent on the judicial officer authorising detention under Section
167 Cr. P.C., to be first satisfied that the arrest made is legal and in
accordance with law and that all the constitutional rights of the person
arrested, are satisfied. The same is not an empty formality. If the arrest
effected, does not satisfy the requirements of Section 41 of Cr. P.C., the
concerned court is duty bound not to authorise further detention of the
accused and release the accused forthwith. Infact, when an accused is
arrested and produced before the concerned court, it is the duty of the
said Judge to consider whether specific reasons have been recorded for
arrest, and if so, prima facie, whether those reasons are relevant and
whether a reasonable conclusion could at all, be reached by the officer
that one or the other conditions in Section 41(1)(b)(ii)(a) to (e) are
attracted. As observed in Arnesh Kumar (Supra), to this limited extent,
the concerned court will make judicial scrutiny. A perusal of the remand
order passed by the learned Special Judge, Mumbai, does not record
the satisfaction as required to be given for authorising the detention of
the petitioners with the respondent No. 1-CBI. The onus of recording
satisfaction lies not only on the officer but even on the Judge.
36. The concerned Judge authorising detention, ought to have
recorded his own satisfaction, may be, in brief, but the said satisfaction
must reflect from his order. A perusal of the order does not conform to
the said requirements/directions given by the Apex Court.
37. We may note, that we have not gone into the other submissions
advanced by Mr. Desai, learned senior counsel appearing for the
petitioner-Chanda Kochhar, in particular, the submission, that as per
the mandate, a lady officer was not present at the time of the petitioner
-Chanda Kochhar's arrest, in view of the finding recorded by us
hereinabove.
38. For the reasons set-out hereinabove, the petitioners are entitled
to be released on bail, pending the hearing and final disposal of the
aforesaid petitions, on the following terms and conditions:
ORDER
(i) The petitioners-Chanda Kochhar and Deepak Kochhar be released
on cash bail in the sum of Rs. 1,00,000/- each, for a period of two
weeks;
(ii) The petitioners shall within the said period of two weeks, furnish
P.R. Bond in the sum of Rs. 1,00,000/- each, with one or more
sureties in the like amount, to the satisfaction of the Special
-----------------------------------------------------------------------------------------------------------------------------------------------------------
Judge, CBI;
(iii) The petitioners shall co-operate in the investigation conducted
by the Respondent No. 1-CBI and shall attend the Office of the
Respondent No. 1-CBI, as and when summoned;
(iv) The petitioners shall not tamper with the evidence or attempt to
influence or contact the complainant, witnesses or any person
concerned with the case.
39. Writ petitions and interim applications be listed on 06.02.2023.
40. All concerned to act on the authenticated copy of this order.
———
1
(2014) 8 SCC 273
2 (2022) 10 SCC 51
3
(2017) 9 SCC 714
4
(2014) 2 SCC 1
5 (1997) 1 SCC 416
6 (1994) 4 SCC 260
7
2022 SCC OnLine SC 897
8 (2021) 2 SCC 427
9 (2021) 2 SCC 427
10
(2017) 9 SCC 714 (2021) 2 SCC 427
11 (1994) 4 SCC 260
12 2022 SCC OnLine SC 897
13
(2010) 7 SCC 263
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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No. 4D18-1811
DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT
G.A.Q.L. v. State
257 So. 3d 1058 (Fla. Dist. Ct. App. 2018)
Decided Oct 24, 2018
No. 4D18-1811 because the state did not show, with any
particularity, knowledge of the evidence within the
10-24-2018
phone, the trial court could not find that the
G.A.Q.L., a minor, Petitioner, v. STATE of contents of the phone were already known to the
Florida, Respondent. state and thus within the "foregone conclusion"
exception. We grant the minor's petition for writ of
Eric T. Schwartzreich of Schwartzreich &
certiorari and quash the trial court's order
Associates, P.A., Fort Lauderdale, and Jason Alan
compelling the disclosure of the two passcodes.
Kaufman of Kaufman Legal Group, P.A., Fort
Lauderdale, for petitioner. Pamela Jo Bondi, The minor was speeding when he crashed. One of
Attorney General, Tallahassee, and Anesha the passengers in his car died in the crash. At the
Worthy, Assistant Attorney General, West Palm hospital, the police had a blood test performed,
Beach, for respondent. 1060 showing *1060 that the minor had a .086 blood-
alcohol content.
Levine, J.
After obtaining a search warrant for the vehicle,
Eric T. Schwartzreich of Schwartzreich & the police located two iPhones. One iPhone
Associates, P.A., Fort Lauderdale, and Jason Alan belonged to a surviving passenger. The surviving
Kaufman of Kaufman Legal Group, P.A., Fort passenger told police that the group had been
Lauderdale, for petitioner. drinking vodka earlier in the day and that she had
been communicating with the minor on her
Pamela Jo Bondi, Attorney General, Tallahassee,
iPhone.
and Anesha Worthy, Assistant Attorney General,
West Palm Beach, for respondent. The second phone, an iPhone 7, was alleged to
have belonged to the minor. The police obtained a
Levine, J.
warrant to search the phone for data, photographs,
Two passcodes stand in the way of the state assigned numbers, content, applications, text
accessing the contents of a phone alleged to messages, and other information. After obtaining a
belong to a minor. The state sought, and the trial warrant to search this iPhone, the police sought an
court agreed, to compel the minor to provide two order compelling the minor to provide the
passcodes, finding that "the act of producing the passcode for the iPhone and the password for an
passcodes is not testimonial because the existence, iTunes account associated with it.
custody, and authenticity of the passcodes are a
In its first motion, the state identified the iPhone
foregone conclusion." We disagree. The minor is
and "request[ed] the court compel production of
being compelled to "disclose the contents of his
the passcode for the minor's cellular phone." In its
own mind" by producing a passcode for a phone
second motion, the state sought to compel the
and a password for an iTunes account. Further,
1
G.A.Q.L. v. State 257 So. 3d 1058 (Fla. Dist. Ct. App. 2018)
minor to produce an iTunes password. This was cf. Boyle v. Buck , 858 So.2d 391, 392 (Fla. 4th
necessary, the state argued, because the phone DCA 2003). Our standard of review when
could not be searched before receiving a software considering whether to issue such a writ is
update from Apple's iTunes service. Thus, the "whether the trial court ... departed from the
state needed both the passcode to access the phone essential requirements of law." Anderson v. E.T. ,
and the iTunes password to update it. 862 So.2d 839, 840 (Fla. 4th DCA 2003) (citation
omitted). To warrant a writ of certiorari, "there
At a hearing on the motions, the state noted that
must exist (1) a departure from the essential
the surviving passenger from the car crash had
requirements of the law, (2) resulting in material
provided a sworn statement that on the day of the
injury for the remainder of the case (3) that cannot
crash and in the days following the crash, she had
be corrected on postjudgment appeal." Reeves v.
communicated with the minor via text and
Fleetwood Homes of Fla., Inc. , 889 So.2d 812,
Snapchat. The passenger had also told police that
1061 822 (Fla. 2004)*1061 (citation and internal
she and the minor had been consuming alcoholic
quotation marks omitted).
beverages the day of the crash. As such, the state
needed the phone passcode and iTunes password Compelled Production of the
to obtain any possible communications between Passcodes
the defendant and the surviving passenger.
This case is governed by the Fifth Amendment to
The minor argued that compelling disclosure of the United States Constitution, which states: "No
the iPhone passcode and iTunes password violated person ... shall be compelled in any criminal case
his rights under the Fifth Amendment to the to be a witness against himself ...." U.S. Const.
United States Constitution. The trial court amend. V ; see also Fla. Const. art. I, § 9. The
disagreed and concluded in its order that the Fifth Amendment proscribes the compelled
minor's "passcodes are not testimonial in and of production of an incriminating testimonial
themselves. See State v. Stahl , 206 So.3d 124, 134 communication. Fisher v. United States , 425 U.S.
(Fla. 2d DCA 2016). The passcodes merely allow 391, 408, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976).
the State to access the phone, which the State has
"[I]n order to be testimonial, an accused's
a warrant to search. See id. " According to the trial
communication must itself, explicitly or implicitly,
court, the state had established the "existence,
relate a factual assertion or disclose information.
possession, and authenticity of the documents" it
Only then is a person compelled to be a ‘witness’
sought. Thus, the "existences of the passcodes in
against himself." Doe v. United States , 487 U.S.
the instant case is a foregone conclusion." Finally,
201, 210, 108 S.Ct. 2341, 101 L.Ed.2d 184 (1988)
the trial court determined that the act of producing
(footnote omitted). As such, acts like furnishing a
the passcode and password was not testimonial.
blood sample, providing a voice exemplar,
As a result, the trial court granted the state's
wearing an item of clothing, or standing in a line-
motions to compel.
up are not covered by this particular Fifth
The minor petitioned for writ of certiorari to quash Amendment protection, for they do not require the
the circuit court's order. This court has jurisdiction suspect to "disclose any knowledge he might
to issue a writ of certiorari under article V, section have" or "speak his guilt." Id. at 211, 108 S.Ct.
4(b)(3) of the Florida Constitution. See also Appel 2341 (citation omitted). In other words, the Fifth
v. Bard , 154 So.3d 1227, 1228 (Fla. 4th DCA Amendment is triggered when the act compelled
2015) (granting certiorari to review order would require the suspect "to disclose the contents
compelling answers to deposition questions and of his own mind" to explicitly or implicitly
overruling Fifth Amendment privilege objections);
2
communicate some statement of fact. Curcio v. 823 F.Supp.2d at 669. The very act of revealing a
United States , 354 U.S. 118, 128, 77 S.Ct. 1145, 1 password asserts a fact: that the defendant knows
L.Ed.2d 1225 (1957). the password. See Hubbell , 530 U.S. at 43, 120
S.Ct. 2037 (stating that the Fifth Amendment
In his famous dissent in Doe , Justice Stevens
applies "to the testimonial aspect of a response to
utilized an analogy to describe the scope of the
a subpoena seeking discovery" of sources of
Fifth Amendment protection against self-
potentially incriminating information). Thus,
incrimination: "[A defendant] may in some cases
being forced to produce a password is testimonial
be forced to surrender a key to a strongbox
1062 and can violate the Fifth *1062 Amendment
containing incriminating documents, but I do not
privilege against compelled self-incrimination. See
believe he can be compelled to reveal the
id. at 38, 120 S.Ct. 2037 ("Compelled testimony
combination to his wall safe—by word or deed."
that communicates information that may ‘lead to
Doe , 487 U.S. at 219, 108 S.Ct. 2341 (Stevens, J.,
incriminating evidence’ is privileged even if the
dissenting). Applying this analogy to the act of
information itself is not inculpatory.") (quoting
producing documents responsible to a subpoena,
Doe , 487 U.S. at 208 n.6, 108 S.Ct. 2341 ).
the Supreme Court once observed, "[t]he assembly
of those documents was like telling an inquisitor In accepting this interpretation of Fifth
the combination to a wall safe, not like being Amendment doctrine, we disagree with the
forced to surrender the key to a strongbox." United Second District's Stahl opinion. In Stahl , officers
States v. Hubbell , 530 U.S. 27, 43, 120 S.Ct. sought to search a defendant's locked phone, but
2037, 147 L.Ed.2d 24 (2000). Thus, when the the defendant refused to give them his passcode.
compelled act is one of testimony rather than 206 So.3d at 128. The Second District concluded
simple surrender, the Fifth Amendment applies. that making the defendant reveal his passcode was
See Fisher , 425 U.S. at 411, 96 S.Ct. 1569. not testimonial, as the passcode was "sought only
for its content and the content has no other value
This analogy has been invoked with some
or significance," making communication of the
frequency as courts have grappled with whether
passcode non-testimonial. Id. at 134. The court
being forced to produce a phone password is more
explicitly rejected the notion of passcode-as-
akin to surrendering a key or revealing a
combination under the Doe analogy and
combination. See, e.g., State v. Stahl , 206 So.3d
determined that, although it did require the use of
124 (Fla. 2d DCA 2016) ; In re Grand Jury
the defendant's mind, compelled unlocking of the
Subpoena Duces Tecum Dated March 25, 2011 ,
phone via passcode was not a protected
670 F.3d 1335 (11th Cir. 2012) ; United States v.
testimonial communication under the Fifth
Kirschner , 823 F.Supp.2d 665 (E.D. Mich. 2010)
Amendment. Id. We disagree.
; Seo v. State , No. 29A05-1710-CR-2466, 109
N.E.3d 418, 2018 WL 4040295 (Ind. Ct. App. We find the Eleventh Circuit's decision in In re
Aug. 21, 2018). Grand Jury Subpoena to be instructive. In that
case, John Doe was served a subpoena requiring
All of these password cases, with the exception of
him to decrypt several hard drives in his
Stahl , have determined that the compelled
possession.1 670 F.3d at 1337. There, the court
production of a passcode is more akin to revealing
determined that compelled decryption of hard
a combination than producing a key. This is so
drives was testimonial in nature. Id. at 1346. In
because revealing one's password requires more
reaching this conclusion, the court noted that
than just a physical act; instead, it probes into the
"decryption and production would be tantamount
contents of an individual's mind and therefore
to testimony by Doe of his knowledge of the
implicates the Fifth Amendment. See Kirschner ,
existence and location of potentially incriminating
3
files; of his possession, control, and access to the Amendment applies. Decryption and
encrypted portions of the drives; and of his passcode production are thus governed by
capability to decrypt the files." Id. Specifically the same Fifth Amendment analysis.
addressing the "key" and "combination" analogy,

Thus, this case is analogous to In re Grand Jury
the court likened the forced decryption to
Subpoena . Here, the state seeks the phone
production of a combination because it is
passcode not because it wants the passcode itself,
"accompanied by ... implied factual statements"
but because it wants to know what
and utilized the contents of the mind with the final
communications lie beyond the passcode wall. If
objective not of obtaining the decryption for its
the minor were to reveal this passcode, he would
own sake, but for the purpose of obtaining the
be engaging in a testimonial act utilizing the
files protected by the encryption. Id.
"contents of his mind" and demonstrating as a
1 That this case involves the production of a factual matter that he knows how to access the
passcode and password rather than phone. See id. As such, the compelled production
decryption is of no consequence. With of the phone passcode or the iTunes password here
iPhones and many other smartphones, 1063 would *1063 be testimonial and covered by the
inputting a passcode chosen by the user is Fifth Amendment. Id.
simply an abbreviated means of decrypting
the phone's contents, which are The Foregone Conclusion Exception
automatically encrypted by the phone
Having determined that the production of the
whenever it is locked:
passcode and password are covered by the Fifth
An encryption key is basically a Amendment, we now address whether the
very long string of numbers that "foregone conclusion" exception would
is stored in the encryption nevertheless allow the state to compel the minor to
software's memory. The software reveal the passcode and password. We discuss this
users do not have to remember issue since the trial court applied the foregone
this long number; instead [they] conclusion exception below when it concluded
can enter a more easily
that "the act of producing the passcodes is not
remembered password or
testimonial because the existence, custody, and
passphrase, which in turn
authenticity of the passcodes are a foregone
activates the encryption key.
conclusion." Although the foregone conclusion
When the government seeks to
exception might apply in some circumstances, it
compel an ordinary citizen to turn
over the means by which he can
does not apply here. The trial court therefore erred
decrypt the data, the disclosure in relying on the foregone conclusion exception as
order will typically compel him to a basis for allowing the production of the
turn over his password rather than passcodes.
the encryption key.
In general, if the state can meet the requirements
of the foregone conclusion exception, it may
Seo , 109 N.E.3d at 423, 2018 WL compel otherwise ostensibly self-incriminating
4040295 at *4 (quoting Michael Wachtel, testimonial production of information. Fisher ,
Give Me Your Password Because Congress 425 U.S. at 411, 96 S.Ct. 1569 ; In re Grand Jury
Can Say So , 14 U. Pitt. J. Tech. L. & Pol'y Subpoena , 670 F.3d at 1345-46. Under this
44, 48 (2013) ). In other words, the exception, an act of production is not a violation
particular type of technology used to of the Fifth Amendment—even if it conveys a fact
protect the information sought is not
—if the state can show with reasonable
dispositive of whether the Fifth
4
particularity that, at the time it sought to compel On this subject, we again disagree with the Second
the act of production, it already knew of the District. In Stahl , the court focused on the
materials sought, thereby making any testimonial "reasonable particularity that the passcode exists,"
aspect a foregone conclusion. Id. at 1346. As it a fact that the state had established. 206 So.3d at
pertains to electronic files, this doctrine requires 136 (emphasis in original). However, this is not
that the state demonstrate with reasonable the proper focus of the inquiry—it is not enough
particularity "that (1) the file exists in some to know that a passcode wall exists, but rather, the
specified location, (2) the file is possessed by the 1064 state must demonstrate *1064 with reasonable
target of the subpoena, and (3) the file is particularity that what it is looking for is in fact
authentic." Id. at 1349 n.28. located behind that wall. See In Re Grand Jury
Subpoena , 670 F.3d at 1348-49. Contrary to the
It is critical to note here that when it comes to data
Stahl court's conclusion, which the trial court
locked behind a passcode wall, the object of the
adopted,2 the "evidence sought" in a password
foregone conclusion exception is not the password
production case such as this is not the password
itself, but the data the state seeks behind the
itself; rather, it is the actual files or evidence on
passcode wall. See id. at 1349 (holding that
the locked phone. Compare Stahl , 206 So.3d at
foregone conclusion exception did not apply to
135, with In Re Grand Jury Subpoena , 670 F.3d
compelled production of encrypted files because
at 1347. Without reasonable particularity as to the
government could not show with "reasonable
documents sought behind the passcode wall, the
particularity" that files existed on the drive to
facts of this case "plainly fall outside" of the
which the individual who was subpoenaed had
foregone conclusion exception and amount to a
access). To find otherwise would expand the
mere fishing expedition. Hubbell , 530 U.S. at 44,
contours of the foregone conclusion exception so
120 S.Ct. 2037.
as to swallow the protections of the Fifth
Amendment. For example, every password- 2 The trial court was obligated to follow
protected phone would be subject to compelled Stahl below. See Pardo v. State , 596 So.2d
unlocking since it would be a foregone conclusion 665, 666 (Fla. 1992) ("[I]n the absence of
that any password-protected phone would have a interdistrict conflict, district court decisions
passcode. That interpretation is wrong and bind all Florida trial courts.").
contravenes the protections of the Fifth --------
Amendment.
The concurrence, meanwhile, argues that the
Below and on appeal, the state's argument has foregone conclusion exception could never be
incorrectly focused on the passcode as the target applied to compelled "oral testimony" in any case.
of the foregone conclusion exception rather than Like Stahl , this view seems to misconstrue the
the data shielded by the passcode, arguing that object of the foregone conclusion exception. It is
"because the State has established the existence of not the verbal recitation of a passcode, but rather
the passcode and iTunes password, evidence on the documents, electronic or otherwise, hidden by
the Petitioner's cell phone, and that he can access an electronic wall that are the focus of this
the content of his phone," the compelled search exception. Further, it would seem unreasonable
was acceptable. Similarly, the trial court not to subject documents protected by a passcode
specifically held that the "existence, custody, and to the foregone conclusion exception where the
authenticity of the passcodes are a foregone state compels the subject to orally recite a
conclusion" in the order appealed. This holding, passcode, but allow the foregone conclusion
which focuses on the passcodes rather than the exception to apply to protected documents where
data behind the wall, misses the mark. the state compels the subject, for example, to
5
physically write down a password, effectively as was the case in In re Grand Jury Subpoena , the
creating the document. In both scenarios the 1065 foregone *1065 conclusion exception is
subject is compelled to disclose the "contents of inapplicable. See 670 F.3d at 1349.
his mind" by different modalities—written in one
We also find Seo persuasive. Like in this case,
scenario and oral in the other—to the same
there the state sought to compel a defendant to
inculpatory effect. See Couch v. United States ,
unlock her iPhone in order to search it. 109
409 U.S. 322, 328, 93 S.Ct. 611, 34 L.Ed.2d 548
N.E.3d at 421, 2018 WL 4040295 at *2. After
(1973) ("It is extortion of information from the
holding that doing so would implicate the Fifth
accused himself that offends our sense of justice.")
Amendment, the Court of Appeals of Indiana
(emphasis added). However, in any event, since
concluded that the foregone conclusion exception
the state did not know with "reasonable certainty"
did not apply. Id. at 431–33 at *11-12. It noted that
the electronic documents behind the wall, this is
the government seeking to compel the production
not dispositive to the resolution of this case.
of a passcode must "be able to describe with
Here, the state's subpoena fails to identify any reasonable particularity the documents or evidence
specific file locations or even name particular files it seeks to compel." Id. at 432 at *12. Importantly,
that it seeks from the encrypted, passcode- the court observed that "[w]hat is being compelled
protected phone. Instead, it generally seeks here is not merely the passcode," but the contents
essentially all communications, data, and images of the phone that are instantly decrypted in their
on the locked iPhone. The only possible indication entirety upon inputting the passcode. Id. at 434 at
that the state might be seeking anything more *13. Because the state could not meet its burden of
specific was the prosecutor's statement at the identifying the contents—that is, the actual phone
hearing that the surviving passenger had been data—sought with reasonable particularity, the
communicating with the minor via Snapchat and foregone conclusion exception did not apply. Id.
text message on the day of the accident and after
The state here seeks to force the minor to produce
the accident, a fact that the trial court briefly
the passcode and iTunes password for an iPhone.
mentioned in its order but did not appear to rely
To do so would be to compel testimonial
on in reaching its conclusion.
communications in violation of the minor's
However, this stand-alone statement is not enough invocation of his Fifth Amendment rights. See In
to meet the "reasonable particularity" requirement re Grand Jury Subpoena , 670 F.3d at 1346.
of the foregone conclusion exception. Even if the Additionally, the trial court erred in relying on the
state had argued that the evidence on the phone foregone conclusion exception, as the
was a foregone conclusion—which it did not— requirements of that exception were not met. See
this record does not indicate that the state can say id. at 1349. As such, we grant the minor's petition
with reasonable particularity that the Snapchat and for writ of certiorari and quash the order of the
text files are located on the phone. It is not enough trial court.
for the state to infer that evidence exists—it must
Petition granted; order quashed .
identify what evidence lies beyond the passcode
wall with reasonable particularity. Stahl , 206 Ciklin, J., concurs.
So.3d at 135-36 ; see also In re Grand Jury
Kuntz, J., concurs in result only with opinion.
Subpoena , 670 F.3d at 1347 ("[C]ategorical
requests for documents the government anticipates I agree with the Court that the circuit court's order
are likely to exist simply will not suffice."). Thus, must be quashed, but I would do so on different
grounds. The majority concludes that compelling
the minor to reveal the passcode to his iPhone and
6
the password to an unidentified iTunes account fall outside of it."). The Supreme Court has
would require the minor to use the contents of his applied the foregone conclusion exception only
mind in violation of the Fifth Amendment. I agree when the compelled testimony has consisted of
with that conclusion. But the majority also holds existing evidence such as documents.
that the State may overcome this violation of the
But, here, the State sought to compel the oral
minor's Fifth Amendment rights if the foregone
production of the requested information. The
conclusion exception applies. Op. 1062 (citing
foregone conclusion exception has not been
Fisher v. United States , 425 U.S. 391, 411, 96
applied to oral testimony, and for good reason. In
S.Ct. 1569, 48 L.Ed.2d 39 (1976) ; In re Grand
Fisher , the court explained that compelling a
Jury Subpoena Duces Tecum Dated March 25,
taxpayer to produce documents "involves
2011 , 670 F.3d 1335, 1345-46 (11th Cir. 2012) ).
substantial compulsion. But it does not compel
"[A] person may be required to produce specific oral testimony; nor would it ordinarily compel the
documents even though they contain incriminating taxpayer to restate, repeat, or affirm the truth of
assertions of fact or belief because the creation of the contents of the documents sought." 425 U.S. at
those documents was not ‘compelled’ within the 409, 96 S.Ct. 1569. Based on what the production
meaning of the [Fifth Amendment] privilege." in Fisher would not do, the Supreme Court
United States v. Hubbell , 530 U.S. 27, 35-36, 120 allowed the government to compel the production
S.Ct. 2037, 147 L.Ed.2d 24 (2000). But that same of documents. Id. Requiring the accused to orally
person cannot be compelled to offer oral communicate to the government information
incriminating testimony. See, e.g. , United States v. maintained only in his mind would certainly
Spencer , 17-CR-00259-CRB-1, 2018 WL compel oral testimony. So, in my view, the basis
1964588, at *2 (N.D. Cal. Apr. 26, 2018) for granting the petition is not that the State failed
(footnote omitted) ("[T]he government could not to satisfy the requirements of the foregone
compel Spencer to state the password itself, conclusion exception. Rather, the petition should
whether orally or in writing."); Virginia v. Baust , be granted because the foregone conclusion
No. CR14-1439, 2014 WL 10355635, at *4 (Va. exception is inapplicable to the compelled oral
Cir. Ct. Oct. 28, 2014) ("[T]he Defendant cannot testimony sought in this case.
be compelled to produce his passcode to access his
In response, the majority states that "it would
smartphone but he can be compelled to produce
seem unreasonable not to subject documents
his fingerprint to do the same."); United States v.
protected by a passcode to the foregone
Kirschner , 823 F.Supp.2d 665, 669 (E.D. Mich.
conclusion exception where the state compels the
2010) ("[T]he government is not seeking
subject to orally recite a passcode, but allow the
documents or objects—it is seeking testimony
foregone conclusion exception to apply ... where
from the Defendant, requiring him to divulge
the state compels the subject ... to physically write
1066 through his mental processes *1066 his password—
down a password ...." Op. 1064. I agree it would
that will be used to incriminate him.").
be unreasonable to treat the two situations
The foregone conclusion exception is a judicially differently, as "the protection of the privilege
created exception. See Hubbell , 530 U.S. at 44, reaches an accused's communications, whatever
120 S.Ct. 2037 ; Fisher , 425 U.S. at 411, 96 S.Ct. form they might take." Schmerber v. California ,
1569. It is not found within the Fifth Amendment. 384 U.S. 757, 763–64, 86 S.Ct. 1826, 16 L.Ed.2d
It is also a doctrine of limited application. See 908 (1966) ; see also Spencer , 2018 WL
Hubbell , 530 U.S. at 44, 120 S.Ct. 2037 1964588, at *2. I would therefore treat both
("Whatever the scope of this ‘foregone situations identically and conclude the foregone
conclusion’ rationale, the facts of this case plainly conclusion exception is inapplicable to both.
7
Finally, because I would conclude that the Amendment. See Op. 1062 n.1. That question
foregone conclusion doctrine cannot apply to should be left for another case, one where the
compelled oral testimony, I would go no further. State has sought the forced decryption of a device
We need not address whether the forced as a remedy.
decryption of a device would also violate the Fifth
8
FILED
Jun 23 2020, 11:15 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
IN THE
Indiana Supreme Court

Supreme Court Case No. 18S-CR-595
Katelin Eunjoo Seo,

Appellant (Defendant)
–v–
State of Indiana,
Appellee (Plaintiff)
Argued: April 18, 2019 | Decided: June 23, 2020
Appeal from the Hamilton Superior Court

No. 29D01-1708-MC-5640
The Honorable Steven R. Nation, Judge
On Petition to Transfer from the Indiana Court of Appeals

No. 29A05-1710-CR-2466
Opinion by Chief Justice Rush

Justices David and Goff concur.
Justice Massa dissents with separate opinion in which Justice Slaughter joins in
part.
Justice Slaughter dissents with separate opinion.
Rush, Chief Justice.
When Katelin Seo was placed under arrest, law enforcement took her
iPhone believing it contained incriminating evidence. A detective got a
warrant to search the smartphone, but he couldn’t get into the locked
device without Seo’s assistance. So the detective got a second warrant that
ordered Seo to unlock her iPhone. She refused, and the trial court held her
in contempt.
We reverse the contempt order. Forcing Seo to unlock her iPhone

would violate her Fifth Amendment right against self-incrimination. By
unlocking her smartphone, Seo would provide law enforcement with
information it does not already know, which the State could then use in its
prosecution against her. The Fifth Amendment’s protection from
compelled self-incrimination prohibits this result. We thus reverse and
remand.
Facts and Procedural History

Katelin Seo contacted her local sheriff’s department claiming D.S. had
raped her. Detective Bill Inglis met with Seo, and she told him that her
smartphone—an iPhone 7 Plus—contained relevant communications with
the accused. With Seo’s consent, officers completed a forensic download
of the device and returned it.
Based on the evidence recovered from the iPhone and the detective’s
conversations with Seo, no charges were filed against D.S. Instead, law
enforcement’s focus switched to Seo. D.S. told Detective Inglis that Seo
stalked and harassed him, and the detective’s ensuing investigation
confirmed those claims.
Detective Inglis learned that Seo first contacted D.S. from the phone
number associated with her iPhone. But D.S. then began receiving up to
thirty calls or text messages daily from dozens of different, unassigned
numbers. Yet, because the substance of the contact was consistent, the
detective believed that Seo placed the calls and texts using an app or
internet program to disguise her phone number. As a result of this
Indiana Supreme Court | Case No. 18S-CR-595 | June 23, 2020 Page 2 of 18
investigation, the State charged Seo with several offenses and issued an
arrest warrant.
When Detective Inglis arrested Seo, he took possession of her locked

iPhone. Officers asked Seo for the device’s password, but she refused to
provide it. To clear this hurdle, Detective Inglis obtained two search
warrants. The first authorized a forensic download of Seo’s iPhone so that
law enforcement could search the device for “incriminating evidence.”
And the second “compelled” Seo to unlock the device and stated that she
would be subject “to the contempt powers of the court” if she failed to do
so. After Seo again refused to unlock her iPhone, the State moved to hold
her in contempt.
At the ensuing hearing, Seo argued that forcing her to unlock the
iPhone would violate her Fifth Amendment right against self-
incrimination. The trial court disagreed and held Seo in contempt,
concluding that “[t]he act of unlocking the phone does not rise to the level
of testimonial self-incrimination.” Seo appealed, and the trial court stayed
its contempt order.
While her appeal was pending, Seo entered into a plea agreement with
the State. She pleaded guilty to one count of stalking, and the State
dismissed eighteen other charged offenses without prejudice. But because
the contempt citation remained in place, Seo still faced the threat of
further sanction for disobeying that order. A divided panel of our Court of
Appeals reversed the court’s pending contempt order. Seo v. State, 109
N.E.3d 418, 440–41 (Ind. Ct. App. 2018).
We granted transfer, vacating the Court of Appeals decision. Ind.

Appellate Rule 58(A). 1
1Our dissenting colleagues are incorrect in finding this case moot, as there has not yet been “a
settlement of all differences between the parties,” Gompers v. Buck’s Stove & Range Co., 221 U.S.
418, 451 (1911). Justice Massa asks, “What could the State now gain from Seo unlocking her
device?” Post, at 3. But the State has already answered that question—to complete its
investigation of Seo and potentially file additional charges. After pleading guilty, Seo filed a
motion requesting that law enforcement return her iPhone—which has remained in police
Standard of Review
Seo’s challenge to the trial court’s contempt order alleges a
constitutional violation, and thus our review is de novo. See Myers v. State,
27 N.E.3d 1069, 1074 (Ind. 2015).
Discussion and Decision

The Fifth Amendment’s Self-Incrimination Clause protects a person
from being “compelled in any criminal case to be a witness against
himself.” U.S. Const. amend. V. Embedded within this constitutional
principle is the requirement that the State produce evidence against an
individual through “the independent labor of its officers, not by the
simple, cruel expedient of forcing it from his own lips.” Estelle v. Smith,
451 U.S. 454, 462 (1981) (cleaned up). The privilege thus protects an
accused from being forced to provide the State with even a link in the
chain of evidence needed for prosecution. See Hoffman v. United States, 341
U.S. 479, 486 (1951). Yet, not all compelled, incriminating evidence falls
under this constitutional protection: the evidence must also be testimonial.
Hiibel v. Sixth Judicial Dist. Court of Nev., Humboldt Cty., 542 U.S. 177, 189
(2004).
custody since it was seized—because she had “no pending criminal cases.” The State objected,
and during a hearing on the motion, the State clarified that its interest in accessing Seo’s
iPhone is “not limited” to just the charges covered by the plea agreement. The prosecutor
explained that the State could not “do a full investigation” or “be in a position to either not
bring or choose to bring new cases” until it had evidence from the device. Then at oral
argument, the State not only reiterated its continued interest in searching Seo’s iPhone but
also argued that the case was not moot because the “threat of a sanction still hangs over
[Seo’s] head.” So, contrary to the dissenting view, the State has not settled all claims with Seo;
and the stayed contempt order has not automatically terminated. See Pac. Bell Tel. Co. v.
Linkline Commc’ns, Inc., 555 U.S. 438, 446–47 (2009) (recognizing that a case is not moot when
there “remains a live dispute”); United States v. Harris, 582 F.3d 512, 516 (3d Cir. 2009) (finding
that the termination of underlying criminal proceedings did not render a coercive civil
contempt order moot when the purpose and intent of the order “remain alive and well”). In
short, this case presents a live dispute and thus our decision renders effective relief. But
irrespective of mootness, this case presents a novel, important issue of great public
importance that will surely recur.
To be testimonial, “an accused’s communication must itself, explicitly
or implicitly, relate a factual assertion or disclose information.” Doe v.
United States, 487 U.S. 201, 210 (1988). The most common form of
testimony is verbal or written communications—the vast amount of which
will fall within the privilege. Id. at 213–14. But physical acts can also have
a testimonial aspect. See Fisher v. United States, 425 U.S. 391, 410 (1976).
When the State compels a suspect to produce physical evidence, that

act is testimonial if it implicitly conveys information. See United States v.
Hubbell, 530 U.S. 27, 36 (2000); Pennsylvania v. Muniz, 496 U.S. 582, 595 n.9
(1990). In certain contexts, however, the communicative aspects of the act
may be rendered nontestimonial if the State can show that it already
knows the information conveyed, making it a “foregone conclusion.”
Fisher, 425 U.S. at 411. In other words, the inquiry is whether the
testimonial communications implicit in producing the evidence provide
the State with something it does not already know.
Here, Seo argues that the State, by forcing her to unlock her iPhone for
law enforcement, is requiring her to “assist in the prosecution of her own
criminal case” and thus violating her right against self-incrimination. The
State disagrees, claiming it already knows the implicit factual information
Seo would convey by unlocking her iPhone—namely, that she “knows the
password and thus has control and use of the phone.”
We agree with Seo. The compelled production of an unlocked

smartphone is testimonial and entitled to Fifth Amendment protection—
unless the State demonstrates the foregone conclusion exception applies.
Here, the State has failed to make that showing; and this case also
highlights concerns with extending the limited exception to this context.
I. The act of producing an unlocked smartphone

communicates a breadth of factual information.
Giving law enforcement an unlocked smartphone communicates to the
State, at a minimum, that (1) the suspect knows the password; (2) the files
on the device exist; and (3) the suspect possesses those files. This broad
spectrum of communication is entitled to Fifth Amendment protection
unless the State can show that it already knows this information, making
it a foregone conclusion. We make these determinations after carefully
reviewing the U.S. Supreme Court precedent that has created and
evaluated both the act of production doctrine and its accompanying
foregone conclusion exception.
Our starting point is Fisher v. United States, 425 U.S. 391 (1976). There,
the IRS subpoenaed several taxpayers’ documents that accountants
prepared and the taxpayers’ attorneys possessed. Id. at 394–96. The
attorneys responded that complying with the subpoenas would violate
their clients’ rights against self-incrimination. Id. at 395–96. 2 The Court
disagreed. Id. at 414.
In reaching that conclusion, Fisher considered what, if any,

incriminating testimony would be compelled by responding to a
documentary summons. Id. at 409. It was here that the Court created the
act of production doctrine: producing documents in response to a
subpoena can be testimonial if the act concedes the existence, possession,
or authenticity of the documents ultimately produced. Id. at 410. But when
the government can show that it already knows this information, then the
testimonial aspects of the act are a “foregone conclusion,” id. at 411, and
complying with the subpoena becomes a question “not of testimony but of
surrender,” id. (quoting In re Harris, 221 U.S. 274, 279 (1911)). This was the
situation in Fisher—the Government knew who possessed the tax
documents, and it could independently confirm the documents’ existence
and authenticity through the accountants who prepared them. Id. at 412–
13. So, the Court narrowly held that “compliance with a summons
directing the taxpayer to produce the accountant’s documents involved in
2 Fisher recognized that compelling the attorneys to hand over the documents did not
“implicate whatever Fifth Amendment privilege the taxpayer might have enjoyed from being
compelled to produce them himself.” 425 U.S. at 402. But because the taxpayers had
transferred the documents for legal advice protected by the attorney–client privilege, id. at
403–04, the Court addressed whether the Government could have compelled the taxpayers
themselves to produce the documents, id. at 405.
these cases” did not implicate incriminating testimony within the Fifth
Amendment’s protection. Id. at 414.
Fisher was the first, and only, Supreme Court decision to find that the
testimony implicit in an act of production was a foregone conclusion. In
contrast, the government failed to make that showing in the other two
relevant decisions: United States v. Doe, 465 U.S. 605 (1984) (Doe I) and
United States v. Hubbell, 530 U.S. 27 (2000).
In Doe I, the Government served five subpoenas commanding a

business owner to produce certain documents. 465 U.S. at 606–07. He
refused, arguing that complying with the subpoenas would violate his
right against self-incrimination. Id. at 607–08. The District Court agreed,
finding that compliance would compel the business owner “to admit that
the records exist, that they are in his possession, and that they are
authentic.” Id. at 613 & n.11.
The Doe I Court affirmed the District Court’s finding “that the act of
producing documents would involve testimonial self-incrimination.” Id. at
613–14. The Court then explained that the Government was not foreclosed
from producing “evidence that possession, existence, and authentication
were a ‘foregone conclusion,’” but that it had “failed to make such a
showing.” Id. at 614 n.13 (quoting Fisher, 425 U.S. at 411).
Similarly, the Court in Hubbell found that the foregone conclusion

exception did not apply. 530 U.S. at 44. There, the Government served a
subpoena requesting a vast array of documents. Id. at 31. In response,
Hubbell produced 13,120 pages; and he was later indicted based on
information gleaned from their contents. Id. In finding that Hubbell’s
compliance with the subpoena violated his right against self-
incrimination, the Court rejected two of the Government’s arguments.
Hubbell first refused to equate the physical act of handing over the
documents with the testimony implicit in the act. Id. at 40–41. The Court
agreed that the testimonial aspect of responding to a documentary
summons “does nothing more than establish the existence, authenticity,
and custody of items that are produced.” Id. But it rebuffed the
Government’s “anemic view” of the act of production as a “simple
physical act.” Id. at 43. The Court explained that a physical act,
nontestimonial in character, cannot be “entirely divorced from its
‘implicit’ testimonial aspect.” Id.
Hubbell also rejected the Government’s argument that, under Fisher,

“the existence and possession of such records by any businessman is a
‘foregone conclusion.’” Id. at 44. The Court referred to Fisher’s unique
context and explained, “Whatever the scope of this ‘foregone conclusion’
rationale, the facts of this case plainly fall outside of it.” Id. Unlike in
Fisher, the Hubbell Court reasoned that, because the Government failed to
show “it had any prior knowledge of either the existence or the
whereabouts of the . . . documents ultimately produced,” the foregone
conclusion exception did not apply. Id. at 45.
Fisher, Doe I, and Hubbell establish that the act of producing documents
implicitly communicates that the documents can be physically produced,
exist, are in the suspect’s possession, and are authentic. And this trilogy of
Supreme Court precedent further confirms that the foregone conclusion
exception must consider these broad communicative aspects. See
Commonwealth v. Davis, 220 A.3d 534, 547 (Pa. 2019) (recognizing that “the
Supreme Court has made, and continues to make, a distinction between
physical production and testimonial production”), petition for cert. filed
(U.S. Apr. 20, 2020) (No. 19-1254).
In this way, the act of production doctrine links the physical act to the
documents ultimately produced. See Laurent Sacharoff, What Am I Really
Saying When I Open My Smartphone? A Response to Orin S. Kerr, 97 Tex. L.
Rev. Online 63, 68 (2019). And the foregone conclusion exception relies on
this link by asking whether the government can show it already knows
the documents exist, are in the suspect’s possession, and are authentic. Id.
True, the documents’ contents are not protected by the Fifth Amendment
because the government did not compel their creation. See Doe I, 465 U.S.
at 611–12; Fisher, 425 U.S. at 409–10. But the specific documents
“ultimately produced” implicitly communicate factual assertions solely
through their production. See Hubbell, 530 U.S. at 36 & n.19, 45.
When extending these observations to the act of producing an unlocked

smartphone, we draw two analogies. First, entering the password to
unlock the device is analogous to the physical act of handing over
documents. Sacharoff, supra, at 68. And second, the files on the
smartphone are analogous to the documents ultimately produced. Id.
Thus, a suspect surrendering an unlocked smartphone implicitly

communicates, at a minimum, three things: (1) the suspect knows the
password; (2) the files on the device exist; and (3) the suspect possessed
those files. 3 And, unless the State can show it already knows this
information, the communicative aspects of the production fall within the
Fifth Amendment’s protection. Otherwise, the suspect’s compelled act
will communicate to the State information it did not previously know—
precisely what the privilege against self-incrimination is designed to
prevent. See Couch v. United States, 409 U.S. 322, 328 (1973).
This leads us to the following inquiry: has the State shown that (1) Seo
knows the password for her iPhone; (2) the files on the device exist; and
(3) she possessed those files?
II. The foregone conclusion exception does not apply.

As discussed above, compelling Seo to unlock her iPhone would
implicitly communicate certain facts to the State. And for those
communicative aspects to be rendered nontestimonial, the State must
establish that it already knows those facts.
Even if we assume the State has shown that Seo knows the password
to her smartphone, the State has failed to demonstrate that any particular
3 The majority of courts to address the scope of testimony implicated when a suspect is
compelled to produce an unlocked smartphone have reached a similar conclusion. See State v.
Trant, No. 15-2389, 2015 WL 7575496, at *2–3 (D. Me. Oct. 27, 2015); Sec. & Exch. Comm’n v.
Huang, No. 15-269, 2015 WL 5611644, at *2–4 (E.D. Penn. Sept. 23, 2015); Pollard v. State, 287 So.
3d 649, 656–57 (Fla. Dist. Ct. App. 2019), reh’g denied; G.A.Q.L. v. State, 257 So. 3d 1058, 1061–65
(Fla. Dist. Ct. App. 2018); People v. Spicer, 125 N.E.3d 1286, 1290–92 (Ill. App. Ct. 2019); In re
Grand Jury Investigation, 88 N.E.3d 1178, 1180–82 (Mass. App. Ct. 2017); cf. United States v.
Wright, 431 F. Supp. 3d 1175, 1186–88 (D. Nev. 2020); In re Search Warrant Application for
Cellular Tel. v. Barrera, 415 F. Supp. 3d 832, 838 n.2 (N.D. Ill. 2019); In re Residence in Oakland,
Cal., 354 F. Supp. 3d 1010, 1016 (N.D. Cal. 2019); In re Application for a Search Warrant, 236 F.
Supp. 3d 1066, 1073 (N.D. Ill. 2017); State v. Diamond, 905 N.W.2d 870, 875 (Minn. 2018).
files on the device exist or that she possessed those files. Detective Inglis
simply confirmed that he would be fishing for “incriminating evidence”
from the device. He believed Seo—to carry out the alleged crimes—was
using an application or internet program to disguise her phone number.
Yet, the detective’s own testimony confirms that he didn’t know which
applications or files he was searching for:
There are numerous, and there’s probably some that I’m not
even aware of, numerous entities out there like Google Voice
and Pinger and Text Now and Text Me, and I don’t know, I
don’t have an all-encompassing list of them, however if I had
the phone I could see which ones she had accessed through
Google.
In sum, law enforcement sought to compel Seo to unlock her iPhone

so that it could then scour the device for incriminating information. And
Seo’s act of producing her unlocked smartphone would provide the State
with information that it does not already know. But, as we’ve explained
above, the Fifth Amendment’s privilege against compulsory self-
incrimination prohibits such a result. Indeed, to hold otherwise would
sound “the death knell for a constitutional protection against compelled
self-incrimination in the digital age.” Commonwealth v. Jones, 117 N.E.3d
702, 724 (Mass. 2019) (Lenk, J., concurring); see also Davis, 220 A.3d at 549
(“[T]o apply the foregone conclusion rationale in these circumstances
would allow the exception to swallow the constitutional privilege.”).
Though the foregone conclusion exception does not apply to these

facts, this case underscores several reasons why the narrow exception may
be generally unsuitable to the compelled production of any unlocked
smartphone. We discuss three concerns below.
III. This case highlights concerns with extending the
limited foregone conclusion exception to the
compelled production of an unlocked smartphone.
Extending the foregone conclusion exception to the compelled
production of an unlocked smartphone is concerning for three reasons:
such an expansion (1) fails to account for the unique ubiquity and capacity
of smartphones; (2) may prove unworkable; and (3) runs counter to U.S.
Supreme Court precedent. We address each in turn.
A. The compelled production of an unlocked smartphone

is unlike the compelled production of specific business
documents.
Smartphones are everywhere and contain everything. They have
become such “a pervasive and insistent part of daily life that the
proverbial visitor from Mars might conclude they were an important
feature of human anatomy.” Riley v. California, 573 U.S. 373, 385 (2014); see
also City of Ontario v. Quon, 560 U.S. 746, 760 (2010). Indeed, a 2019 report
from the Pew Research Center revealed that 81% of Americans own a
smartphone, up from 35% in 2011. 4 The Supreme Court in Fisher (1976),
Doe I (1984), or Hubbell (2000) surely could not have anticipated that such
devices would become so common or imagined the breadth and depth of
information they could contain.
Notably, in each of those cases, a subpoena confined the information

implicated by the compelled production. See Hubbell, 530 U.S. at 45–46;
Doe I, 465 U.S. at 606–07, 607 nn.1–2; Fisher, 425 U.S. at 394–95, 394 nn.2–3.
Fisher acknowledged this limited scope, stating that the subpoenas there
sought “documents of unquestionable relevance to the tax investigation,”
but that “[s]pecial problems of privacy . . . might be presented by
subpoena of a personal diary.” 425 U.S. at 401 n.7; see also Barrett v.
4 Pew Research Ctr., Mobile Fact Sheet (June 12, 2019), https://www.pewresearch.org/internet
/fact-sheet/mobile/ [https://perma.cc/8ZUY-EJDG].
Acevedo, 169 F.3d 1155, 1167–68 (8th Cir. 1999) (en banc) (discussing the
circuit split as to whether personal diaries can be subpoenaed); Samuel A.
Alito, Jr., Documents and the Privilege Against Self-Incrimination, 48 U. Pitt.
L. Rev. 27, 81 (1986) (opining that “certain types of highly private
documents probably should not be obtainable by subpoena, regardless of
whether they are self-incriminating”). And the Doe I Court remarked that
the compelled documents, which “pertained to respondent’s businesses,”
were less personal than those sought in Fisher, which “related to the
taxpayers’ individual tax returns.” Doe I, 465 U.S. at 610 n.7. An unlocked
smartphone, however, contains far more private information than a
personal diary or an individual tax return ever could. Yet, when suspects
are compelled to surrender their unlocked smartphones, there is no limiter
like a documentary subpoena for specific files. See, e.g., United States v.
Bishop, 910 F.3d 335, 336 (7th Cir. 2018), cert. denied, 139 S. Ct. 1590 (2019).
Hubbell further illustrates the considerable difference between

complying with a court order to produce an unlocked smartphone and
complying with a documentary summons. Recall that, in Hubbell, the
Government had not shown that it had any prior knowledge of either the
existence or location of 13,120 pages of documents. 530 U.S. at 45. Though
not an insignificant amount of information, it pales in comparison to what
can be stored on today’s smartphones. Indeed, the cheapest model of last
year’s top-selling smartphone, with a capacity of 64 gigabytes of data, can
hold over 4,000,000 pages of documents—more than 300 times the number
of pages produced in Hubbell. 5 It is no exaggeration to describe a
smartphone’s passcode as “the proverbial ‘key to a man’s kingdom.’”
United States v. Djibo, 151 F. Supp. 3d 297, 310 (E.D.N.Y. 2015).
5See Steve McCaskill, iPhone XR Was Best-Selling Smartphone of 2019, TechRadar (Feb. 26,
2020), https://www.techradar.com/news/iphone-xr-was-best-selling-smartphone-of-2019
[https://perma.cc/6PAC-WZT9]; Apple iPhone XR Tech Specs, https://www.apple.com/iphone
-xr/specs/ [https://perma.cc/X9MU-Q9W4]; How Many Pages in a Gigabyte?, Lexis Nexis
Discovery Series Fact Sheet, https://www.lexisnexis.com/applieddiscovery/lawlibrary
/whitePapers/ADI_ FS_PagesInAGigabyte.pdf [https://perma.cc/JJP7-JQK5].
This brings us to a second concern with extending the foregone
conclusion exception—it may prove unworkable in this context.
B. Extending the foregone conclusion exception to the

compelled production of a smartphone may prove
unworkable.
Today’s smartphones “could just as easily be called cameras, video
players, rolodexes, calendars, tape recorders, libraries, diaries, albums,
televisions, maps, or newspapers.” Riley, 573 U.S. at 393. And they can
contain, in digital form, the “combined footprint of what has been
occurring socially, economically, personally, psychologically, spiritually
and sometimes even sexually, in the owner’s life.” Djibo, 151 F. Supp. 3d at
310.
Recognizing these realities, several courts have determined that the

government—prior to compelling a suspect to unlock their smartphone—
must specifically identify the files it seeks with reasonable particularity. 6
But even then, the government should have access to only those files. Yet,
compelling the production of an unlocked smartphone gives the
government access to everything on the device, not just those files it can
identify with “reasonable particularity.” For example, here, even if the
State could show that it knew of and could identify specific files on Seo’s
iPhone, there is nothing to restrict law enforcement’s access to only that
6See In re Application for a Search Warrant, 236 F. Supp. 3d at 1068, 1072–74; Trant, 2015 WL
7575496, at *2–3; Huang, 2015 WL 5611644, at *2–4; Pollard, 287 So. 3d at 657; G.A.Q.L., 257 So.
3d at 1063–65; Spicer, 125 N.E.3d at 1290–92; In re Grand Jury Investigation, 88 N.E.3d at 1181–
82. And several courts evaluating this issue in the context of other electronic devices, such as
computers or hard drives, have similarly required the government to identify the information
sought with reasonable particularity. See In re Grand Jury Subpoena Duces Tecum Dated Mar. 25,
2011, 670 F.3d 1335, 1345–47 (11th Cir. 2012); In re Decryption of a Seized Data Storage Sys., No.
13-M-449, 2013 WL 12327372, at *4 (E.D. Wis. Apr. 19, 2013); United States v. Hatfield, No. 06-
CR-0550 (JS), 2010 WL 1423103, at *1–2 (E.D.N.Y. Apr. 7, 2010); In re Boucher, No. 2:06-mj-91,
2009 WL 424718, at *3–4 (D. Vt. Feb. 19, 2009); cf. United States v. Apple MacPro Comput., 851
F.3d 238, 247–48 (3d Cir. 2017); In re Search of a Residence, No. 17-mj-70656-JSC-1, 2018 WL
1400401, at *8–12 (N.D. Cal. Mar. 20, 2018).
information. After all, the warrant authorized a search of Seo’s device
without limitation.
Such unbridled access to potential evidence on her iPhone—or any

smartphone—raises several complex questions. For example, if officers
searching a suspect’s smartphone encounter an application or website
protected by another password, will they need a separate motion to
compel the suspect to unlock that application or website? And would the
foregone conclusion exception apply to that act of production as well?
Suppose law enforcement opens an application or website and the
password populates automatically. Can officers legally access that
information? Or what if a suspect has a cloud-storage service—like iCloud
or Dropbox—installed on the device, which could contain hundreds of
thousands of files. Can law enforcement look at those documents, even
though this windfall would be equivalent to identifying the location of a
locked storage facility that officers did not already know existed? Such
complexity is neither necessary nor surprising: the foregone conclusion
exception is, in this context, a low-tech peg in a cutting-edge hole.
This leads to a third concern with extending the foregone conclusion

exception—it seems imprudent in light of recent Supreme Court
precedent concerning smartphones and the limited, questionable
application of the exception.
C. U.S. Supreme Court precedent and the foregone

conclusion exception’s limited application counsel
against extending it further.
The Supreme Court has hesitated to apply even entrenched doctrines to
novel dilemmas, wholly unforeseen when those doctrines were created.
Indeed, the Court recently observed that, when “confronting new
concerns wrought by digital technology,” it “has been careful not to
uncritically extend existing precedents.” Carpenter v. United States, 138 S.
Ct. 2206, 2222 (2018). To that point, four years earlier, in Riley, the Court
held that the search-incident-to-arrest exception to the warrant
requirement does not extend to a cell phone found on an arrestee. 573 U.S.
at 401–02. And in Carpenter, the Court held that the third-party doctrine
does not extend to cellular site location information, at least when seven
days’ worth of data is obtained. 138 S. Ct. at 2217 & n.3. The Supreme
Court’s refusal to extend these two established doctrines—each far more
deeply rooted than the foregone conclusion exception—is instructive.
Though Riley and Carpenter were decided under the Fourth

Amendment, the Court’s concern in each case was with the “privacy
interests” implicated by smartphones. Riley, 573 U.S. at 397; Carpenter, 138
S. Ct. at 2214–15. And that privacy concern likewise applies to the Fifth
Amendment’s privilege against self-incrimination. Even though this
privilege is not “a general protector of privacy,” Fisher recognized that it
“truly serves privacy interests” by protecting suspects from being
compelled to provide private, self-incriminating testimony. 425 U.S. at
399, 401; see also id. at 416–17 (Brennan, J., concurring in the judgment)
(“Expressions are legion in opinions of this Court that the protection of
personal privacy is a central purpose of the privilege against compelled
self-incrimination.”); Murphy v. Waterfront Comm’n of N.Y. Harbor, 378 U.S.
52, 55 (1964); In re Grand Jury Proceedings, 632 F.2d 1033, 1042–44 (3d Cir.
1980).
The limited, and questionable, application of the foregone conclusion

exception also cautions against extending it further. Indeed, Fisher was
decided over forty-four years ago, and it remains the lone U.S. Supreme
Court decision to find that the exception applied. In the intervening years,
the Court has discussed it twice and in only one context: in grand jury
proceedings when a subpoena compelled the production of business and
financial records. During this same time period, legal scholars—including
three current members of the Supreme Court—have wondered whether
Fisher interpreted the Fifth Amendment too narrowly, calling into
question the viability of the foregone conclusion exception itself. See
Hubbell, 530 U.S. at 49–56 (Thomas, J., concurring); Carpenter, 138 S. Ct. at
2271 (Gorsuch, J., dissenting); Alito, Jr., supra, at 45–51; see also, e.g., Bryan
H. Choi, The Privilege Against Cellphone Incrimination, 97 Tex. L. Rev.
Online 73, 74 n.6 (2019); Richard A. Nagareda, Compulsion “To Be a
Witness” and the Resurrection of Boyd, 74 N.Y.U. L. Rev. 1575, 1606 &
nn.124–25 (1999); Robert Heidt, The Fifth Amendment Privilege and
Documents—Cutting Fisher’s Tangled Line, 49 Mo. L. Rev. 439, 443 (1984).
Regardless of the foregone conclusion exception’s viability, it seems
imprudent to extend it beyond its one-time application. Cf. Silverman v.
United States, 365 U.S. 505, 510, 512 (1961) (deciding not to extend the
rationale of a factually distinct case “by even a fraction of an inch”).
It is not surprising that courts to recently address this issue—how the

Fifth Amendment applies to the compelled production of unlocked
electronic devices—have either declined to extend the foregone conclusion
exception or have not mentioned it at all. 7 Not only was the exception
crafted for a vastly different context, but extending it further would mean
expanding a decades-old and narrowly defined legal exception to
dynamically developing technology that was in its infancy just a decade
ago. And it would also result in narrowing a constitutional right. Yet,
while we have identified three concerns with extending the foregone
conclusion exception to this context, we do not need to make a general
pronouncement on its validity because it simply does not apply here.
At the same time, we emphasize that there are several ways law
enforcement can procure evidence from smartphones without infringing
on an individual’s Fifth Amendment rights. For example, officers could
try to obtain information from third parties under the Stored
Communications Act. See 18 U.S.C. 121 §§ 2701–2713 (2018). Alternatively,
two companies—Cellebrite and Grayshift—offer law enforcement
agencies affordable products that provide access to a locked smartphone.
See generally, e.g., United States v. Chavez-Lopez, 767 F. App’x 431, 433–34
(4th Cir. 2019). Or officers could seek an order compelling the
smartphone’s manufacturer to help bypass the lock screen. See In re XXX,
Inc., No. 14 Mag. 2258, 2014 WL 5510865 (S.D.N.Y. Oct. 31, 2014). And if
law enforcement wants to get into a smartphone for reasons other than
prosecution, they can offer immunity to the device’s owner. See Doe I, 465
U.S. at 614–15. But the State cannot fish for incriminating evidence by
forcing Seo to give unfettered access to her iPhone when it has failed to
7See United States v. Jimenez, 419 F. Supp. 3d 232, 233 (D. Mass. 2020); Wright, 431 F. Supp. 3d
at 1186–88; In re Residence in Oakland, 354 F. Supp. 3d at 1016–18; Davis, 220 A.3d at 550.
show that any files on Seo’s smartphone exist or that she possessed those
files.
Nearly a century ago, U.S. Supreme Court Justice Louis Brandeis

cautioned, “Ways may some day be developed by which the government,
without removing papers from secret drawers, can reproduce them in
court, and by which it will be enabled to expose to a jury the most
intimate occurrences of the home.” Olmstead v. United States, 277 U.S. 438,
474 (1928) (Brandeis, J., dissenting). That day has come. And to allow the
State, on these facts, to force Seo to unlock her iPhone for law enforcement
would tip the scales too far in the State’s favor, resulting in a seismic
erosion of the Fifth Amendment’s privilege against self-incrimination.
This we will not do.
Conclusion
Forcing Seo to unlock her iPhone for law enforcement would violate
her Fifth Amendment right against self-incrimination. We thus reverse the
trial court’s order finding Seo in contempt and instruct the court to
dismiss the citation.
David and Goff, JJ., concur.

Massa, J., dissents with separate opinion in which Slaughter, J., joins
in part.
Slaughter, J., dissents with separate opinion.
ATTORNEYS FOR APPELLANT
William J. Webster
Carla V. Garino
Webster & Garino LLC
Westfield, Indiana
ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.
Attorney General of Indiana
Stephen R. Creason
Chief Counsel
Ellen H. Meilaender
Deputy Attorney General
Indianapolis, Indiana
ATTORNEYS FOR AMICI CURIAE ELECTRONIC FRONTIER

FOUNDATION, AMERICAN CIVIL LIBERTIES UNION, AND
AMERICAN CIVIL LIBERTIES UNION OF INDIANA
Kenneth J. Falk
ACLU of Indiana
Indianapolis, Indiana
Andrew Crocker
Electronic Frontier Foundation
San Francisco, California
ATTORNEY FOR AMICI CURIAE STATES OF UTAH, GEORGIA,

IDAHO, LOUISIANA, MONTANA, NEBRASKA, OKLAHOMA, AND
PENNSYLVANIA
Kevin S. Smith
Special Assistant Utah Attorney General
Church Church Hittle & Antrim
Fishers, Indiana
Massa, J., dissenting.
I respectfully dissent from the Court’s opinion deciding the merits of

this case because it was mooted when the underlying criminal case was
dismissed. And this now-moot case shouldn’t be resolved under our
“great public interest” exception because doing so could—in violation of
the core principles of federalism—leave our Court as the final arbiter of
our nation’s fundamental law.
The gist of Seo’s purported behavior over the summer and fall of 2017
is this: starting in June, Seo unrelentingly implored a man to either marry
or impregnate her. In July, Seo started following and sending troubling
messages to a woman who reported her to a supervisor for showing a
horror film to the woman’s preschool children at the daycare where Seo
worked. Seo was charged with various crimes in numerous cases for these
interactions, and, on August 8, the trial court ordered Seo to unlock her
iPhone to obtain evidence for a case involving the man, warning that her
refusal could subject her to being held in contempt. On September 22,
after she persistently refused to unlock the device, the trial court held Seo
in contempt and ordered her incarcerated if she didn’t comply by the end
of the day. Three days later, however, the court stayed the order after Seo
indicated she would appeal it.
The next July, Seo and the prosecution reached a global agreement: the
State dismissed all other charges against Seo when she pleaded guilty to a
single stalking charge involving the woman. All the charges in the cases
involving the man—including those in the case where Seo was held in
contempt for refusing to unlock her device—were dismissed. The next
month, our Court of Appeals reversed the contempt order. Later yet, the
State successfully opposed Seo’s request for the return of her device
pending our resolution of the case.
At the outset, we shouldn’t reach Seo’s constitutional claim because she

is impermissibly waging a collateral attack on the trial court’s August 8
order (compelling her to unlock her phone) through this appeal of the trial
court’s September 22 order (holding her in contempt). “Collateral attack of
a previous order is allowed in a contempt proceeding only if the trial court
lacked subject matter or personal jurisdiction to enter the order.” State v.
Combs, 921 N.E.2d 846, 851 (Ind. Ct. App. 2010) (quotation omitted).
Because no one doubts the jurisdiction of the trial court here, and
“[c]ontempt proceedings are not actions designed to correct errors
previously made by trial courts,” id. (quotation omitted), the Court
shouldn’t permit Seo to challenge the constitutional validity of the trial
court’s August 8 order through this appeal, see Clark v. Atkins, 489 N.E.2d
90, 96 (Ind. Ct. App. 1986) (explaining that even when “the questions
raised concerning [an underlying] order are constitutional in nature,”
contempt proceedings cannot be used for a collateral attack) (citation
omitted). Although her Fifth Amendment right could potentially be
“irretrievably lost” if she were to unlock her device now, Van
Cauwenberghe v. Biard, 486 U.S. 517, 524 (1988) (citation omitted), we
shouldn’t flout well-settled procedure to resolve Seo’s claim when she had
forty-five days to file an interlocutory appeal of the August 8 order before
being held in contempt. See Ind. Appellate Rule 14(B)(1)(c)(i) (permitting
interlocutory appeal if a party believes she “will suffer substantial
expense, damage[,] or injury if the order is erroneous and the
determination of the error is withheld until after judgment.”).
Nevertheless, this case is also moot. The Court, however, suggests it

remains live because, as the State avows, “the ‘threat of a sanction still
hangs over [Seo’s] head.’” Ante, at 4 n.1. But the order finding Seo in
contempt was mooted—and this case was mooted—when Seo reached the
agreement that, among other things, resolved the case underlying the
order. “Contempts of court are classified as civil and criminal.” Perry v.
Pernet, 165 Ind. 67, 70, 74 N.E. 609, 610 (1905). Criminal contempt cases
survive even after an underlying cause is mooted because this contempt is
“an act directed against the dignity and authority of the court which
obstructs the administration of justice and which tends to bring the court
into disrepute or disrespect.” State v. Heltzel, 552 N.E.2d 31, 34 (Ind. 1990).
These contempt orders subsist, then, until a defendant “has served his
contempt sentence and has been released.” Bell v. State, 1 N.E.3d 190, 192
(Ind. Ct. App. 2013).
But Seo’s contempt was civil: she refused “to do something which [s]he
[wa]s ordered to do for the benefit or advantage of the opposite party.”
Perry, 165 Ind. at 70, 74 N.E. at 610 (quotation omitted). Since the opposing
party “alone has an interest in the enforcement of” a civil contempt order,
any associated punishment “terminates” the moment this party’s interest
ceases. Id. at 71, 610. So when an underlying cause concludes by
“settlement of all differences between the parties,” any attendant civil
contempt proceeding “necessarily” ends. Gompers v. Buck's Stove & Range
Co., 221 U.S. 418, 451–452 (1911).1 Here, the State reached a global
settlement with Seo resolving the claims it had against her. Once these
charges were settled, the civil contempt order automatically terminated.
What could the State now gain from Seo unlocking her device?
The Court contends “that the State could not ‘do a full investigation’ or
‘be in a position to either not bring or choose to bring new cases’ until it
had evidence from the device.” Ante, at 4 n.1. But a year before opposing
the return of Seo’s device, the State returned the search warrant,
acknowledging that “this matter is now closed.” Return on Search
Warrant, In Re: Search Warrant, No. 29D01-1708-MC-5624 (Hamilton Sup.
Ct.); see Ind. Code § 35-33-5-4 (directing that, ordinarily, after a search
warrant is executed, the executing officer must ensure a “return” of the
warrant, stating the date and time of the search and what items were
seized).2 Instead of retaining the search warrant for further investigation,
the State returned it after having settled all claims with Seo. Despite its
later assertion “that its interest in accessing Seo’s iPhone [wa]s ‘not
1See also State ex rel. Corn v. Russo, 740 N.E.2d 265, 269 (Ohio 2001) (“It is well established that
where the parties settle the underlying case that gave rise to the civil contempt sanction, the
contempt proceeding is moot, since the case has come to an end.”); Christensen v. Sullivan, 768
N.W.2d 798, 815 (Wis. 2009) (“[T]he most obvious case of a contempt of court that has been
terminated and is no longer continuing occurs when the underlying dispute between the
parties has been settled.”); 17 Am. Jur. 2d Contempt § 147 (“When the parties settle the
underlying case that gave rise to a civil contempt sanction, the contempt proceeding is moot
since the case has come to an end.”).
2To be sure, the trial court granted, nearly simultaneously, two “search warrants” involving
Seo’s cases, and this filing only “returned” the first. But in the request for the second, the State
acknowledged that the trial court had already “issued a search warrant (cause number 29D01-
1708-MC-5624)” for Seo’s phone and merely additionally requested “that the court compel
Katelin Eunjoo Seo to unlock the cell phone at issue,” and that Seo “be subject to the contempt
powers of the Court” if she failed to comply. Affidavit for Probable Cause, In Re: Search
Warrant, No. 29D01-1708-MC-5640 (Hamilton Sup. Ct.).
limited’ to just the charges covered by the plea agreement,” ante, at 4 n.1,
the State should have, if it sought to trawl for further charges, awaited
resolution of this appeal before settling the cases. But it didn’t, so this case
can’t provide any relief “‘to the parties before the court.’” T.W. v. St.
Vincent Hosp. & Health Care Ctr., Inc., 121 N.E.3d 1039, 1042 (Ind. 2019)
(quoting Matter of Lawrance, 579 N.E.2d 32, 37 (Ind. 1991)). When “[n]one
of the parties seem to have any interest left in the case,” this court of last
resort should dismiss because it “ought not to be engaged in passing
on moot-court questions.” State ex rel. Taylor v. Mount, 151 Ind. 679, 694, 52
N.E. 407, 407 (1898).
But this Court has, for better or worse, decided moot cases “‘when the
issue involves a question of great public importance which is likely to
recur.’” T.W., 121 N.E.3d at 1042 (quoting Matter of Tina T., 579 N.E.2d 48,
54 (Ind. 1991)). Indeed, the Court acknowledges it believes that,
“irrespective of mootness, this case presents a novel, important issue of
great public importance that will surely recur.” Ante, at 4 n.1. Because,
however, constitutional questions should be avoided unless answering
them is “absolutely necessary to a disposition of the cause on its merits,”
State v. Darlington, 153 Ind. 1, 4, 53 N.E. 925, 926 (1899), this Court
should—in cases resolving federal questions—employ the Article-III-
mirroring mootness test recently used by Senior Judge Shepard: whether
“‘the issue concerns a question of great public importance which is likely
to recur in a context which will continue to evade review,’” Liddle v. Clark,
107 N.E.3d 478, 482 (Ind. Ct. App. 2018) (quoting DeSalle v. Gentry, 818
N.E.2d 40, 49 (Ind. Ct. App. 2004)) (emphasis added), trans. denied. To be
sure, then-Chief Justice Shepard noted that this heightened standard “is a
federal mootness doctrine, stricter than our own, rooted in the
requirement that Article III courts decide only live cases and
controversies.” Lawrance, 579 N.E.2d at 37 n.2. But Lawrance applied our
relaxed standard when answering questions of Indiana law, not a federal
question that could be unreviewable, depending wholly on the prevailing
party,3 by the U.S. Supreme Court.
Although the issue in this case is clearly one of great public importance
and will surely recur with other defendants, it will not evade review. Seo
entered into a global agreement resolving the case tied to her contempt
order before our Court of Appeals issued its opinion reversing the order
holding her in contempt. But her resolution of the case before appellate
review is the outlier, not the norm. Cf. Hartman v. State, 988 N.E.2d 785
(Ind. 2013) (reversing under the Fifth Amendment—and in an
interlocutory appeal—a trial court’s denial of a defendant’s motion to
suppress). Perhaps we still exercise our lesser standard in cases like
Lawrance involving only questions of Indiana law. Perhaps not. See Wallace
v. City of Indianapolis, 40 Ind. 287, 289 (1872) (“It is not our duty to decide
mere legal questions, when neither party can derive any legal benefit from
such decision, and we have too many real questions before us, requiring
our time and labor, to allow us to write mere speculative opinions to
gratify ourselves or others, and in which no one has any legal right or
interest depending.”). But that is a question for another day.
Instead, we must ask whether this Court should use a federally moot
case to decide an important question of federal constitutional law. The
answer must be no. To be sure, “the constraints of Article III do not apply
to state courts, and accordingly the state courts are not bound by the
3 If state courts find in favor of, but not against, asserted federal rights for non-Article III
litigants, opposing parties may seek Supreme Court review because they, in some way, “are
faced with ‘actual or threatened injury’ that is sufficiently ‘distinct and palpable’ to support”
justiciability. ASARCO Inc. v. Kadish, 490 U.S. 605, 618 (1989) (quoting Warth v. Seldin, 422 U.S.
490, 500 (1975). But this asymmetrical grant of appeal crumbles under scrutiny. Suppose this
Court held, correctly in my view, that Seo’s Fifth Amendment rights were not violated. Under
ASARCO, that holding—declining to clairvoyantly extend a criminal defendant’s federal
rights—evades U.S. Supreme Court review. That peculiarity alone should counsel this Court
against deciding federal questions “in the rarified atmosphere of a debating society,” id. at 636
(Rehnquist, C.J., concurring in part and dissenting in part), especially considering the
Judiciary Act of 1789 authorized Supreme Court review of state court decisions only when the
state court decided a federal question adversely to the claimed federal right, Judiciary Act of
1789, ch. 20, § 25, 1 Stat. 73, 85–87 (1789).
limitations of a case or controversy or other federal rules of justiciability
even when they address issues of federal law, as when they are called
upon to interpret the Constitution.” ASARCO Inc. v. Kadish, 490 U.S. 605,
617 (1989). But whether state courts entertain federal-law challenges
absent Article III requirements “is entirely a matter of state law.” Virginia
v. Hicks, 539 U.S. 113 (2003). Our courts should not.
Both the “the national and State [judicial] systems are to be regarded as
ONE WHOLE,” with appeals from state courts interpreting federal laws
naturally flowing “to that tribunal which is destined to unite and
assimilate the principles of national justice and the rules of national
decisions.” Federalist No. 82 (Alexander Hamilton). To Hamilton, all cases
determining federal law “shall, for weighty public reasons, receive their
original or final determination in the courts of the Union.” Id. And the
nascent Supreme Court agreed, noting that a chief purpose of its review
over state court opinions deciding questions of federal constitutional law
is the importance, and even necessity of uniformity of

decisions throughout the whole United States, upon all subjects
within the purview of the constitution. Judges of equal learning
and integrity, in different states, might differently interpret a
statute, or a treaty of the United States, or even the constitution
itself: If there were no revising authority to control these jarring
and discordant judgments, and harmonize them into
uniformity, the laws, the treaties, and the constitution of the
United States would be different in different states, and might,
perhaps, never have precisely the same construction,
obligation, or efficacy, in any two states. The public mischiefs
that would attend such a state of things would be truly
deplorable; and it cannot be believed that they could have
escaped the enlightened convention which formed the
constitution.
Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304, 347–48 (1816). To protect

the “vital interest to the nation” it was—and is—“essential” that the U.S.
Supreme Court exercise “appellate power over those judgments of the
State tribunals which may contravene the constitution or laws of the
United States.” Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 414–15 (1821).
“The judicial power of the United States is extended to all cases arising
under the constitution.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 178
(1803) (emphasis added). Irrefutably, the Supreme Court of the United
States—not this state supreme court or any other—“is the final arbiter of
federal law.” Danforth v. Minnesota, 552 U.S. 264, 291–92 (2008) (Roberts,
C.J., dissenting). Rejecting the finality of that Court betrays a core first
principle of this nation: when we decide issues of federal law by
exercising a flexible exception that could divest a federal court of
jurisdiction under its more-rigid Article III constraints, we usurp our role
in this federal system, defenestrating the U.S. Supreme Court in the
process. See Cohens, 19 U.S. (6 Wheat.) at 371 (“[T]he judicial control of the
Union over State encroachments and usurpations, was indispensable to
the sovereignty of the constitution—to its integrity—to its very existence.
Take it away, and the Union becomes again a loose and feeble
confederacy—a government of false and foolish confidence—a delusion
and a mockery!”).
Although “State courts are coequal parts of our national judicial system
and give serious attention to their responsibilities for enforcing the
commands of the Constitution,” Sawyer v. Smith, 497 U.S. 227, 241 (1990),
this Court has long known “that the judicial power of the United States is
extended, by the constitution, to all cases arising under the constitution,
laws, and treaties of the United States,” Moyer v. McCullough, 1 Ind. 339,
343 (1849). Indeed, Justice Blackford noted, while state courts may enjoy
primary jurisdiction over federal questions, the “constitution requires the
jurisdiction in such cases to be extended to the federal Courts.” Id. And
this view isn’t constrained to the era immediately preceding the
ratification of our 1851 constitution. Recently, for example—in a case
unhampered by federal justiciability concerns—we chose to “await
guidance from the Supreme Court and decline to find or assume [an issue
of constitutional law] until the Supreme Court decides the issue
authoritatively.” State v. Timbs, 84 N.E.3d 1179, 1183 (Ind. 2017), vacated
and remanded. Noting that “Indiana is a sovereign state within our federal
system,”4 this Court unanimously avoided prematurely deciding an
important question of federal law by declining to impose “federal
obligations on the State that the federal government itself has not
mandated.” Id. at 1183–84; see also Sparks v. State, 499 N.E.2d 738, 741 (Ind.
1986) (declining to divine “[w]hether a federal Fifth Amendment right to
due process attaches to a state grand jury proceeding”). This bedrock
principle does not change—it has never been, and never will be, our role
to predict decisions by the U.S. Supreme Court.
As Justice Jackson so famously proclaimed about the U.S. Supreme

Court, “[w]e are not final because we are infallible, but we are infallible
only because we are final.” Brown v. Allen, 344 U.S. 443, 540 (1953)
(Jackson, J., concurring) (emphasis added). “What, indeed, might then
have been only prophecy”—that our Court now firmly establishes that it
will reject that finality by deciding cases that can bypass the revising
authority of the U.S. Supreme Court on important questions of federal
constitutional law—“has now become fact.” Martin, 14 U.S. (1 Wheat.) at
348. By deciding this case, the Court’s message is crystal clear: it will
anoint itself, at times, as the final adjudicator of federal law. To this, I
cannot assent.
And as for the adjudication of that federal law, this Fifth Amendment
question is the closest of close calls. Courts around the country split,
falling into two camps. See generally Orin S. Kerr, Compelled Decryption and
the Privilege Against Self-Incrimination, 97 Tex. L. Rev. 767 (2019); Laurent
Sacharoff, What Am I Really Saying When I Open My Smartphone? A
Response to Orin S. Kerr, 97 Tex. L. Rev. Online 63 (2019). Reasonable
4Indeed, “Indiana has its own system of legal, including constitutional, protections” subject to
our ultimate review. State v. Timbs, 84 N.E.3d 1179, 1184 (Ind. 2017), vacated and remanded.
Although Seo mentioned Article 1, Section 14 in her briefing at the Court of Appeals (she filed
nothing with this Court), she made no separate self-incrimination argument under the
Indiana Constitution. See Ind. Const. art. 1, § 14 (“No person, in any criminal prosecution,
shall be compelled to testify against himself.”). Because she failed to offer a “separate analysis
based on the state constitution,” this “state constitutional claim is waived.” Dye v. State, 717
N.E.2d 5, 11 n.2 (Ind. 1999). If she had separately and independently analyzed Article 1,
Section 14, we could have considered Seo’s case under our Indiana Constitution without
needing to grapple with these heady Article III justiciability concerns.
minds can disagree; indeed, many have. Our Court’s decision on the
merits today is thus not unreasonable, though I would come out the other
way for the reasons further explained by Professor Kerr.5
Slaughter, J., joins in part.
5 A few months before our nation’s bicentennial anniversary, the Supreme Court all but rang
the death knell of longstanding precedent that barred the government from forcing a
defendant “to give evidence that tends to criminate him,” Boyd v. United States, 116 U.S. 616,
638 (1886), holding that the Fifth Amendment is not violated merely because the State
compels a defendant to turn over incriminating evidence, Fisher v. United States, 425 U.S. 391,
409 (1976). But the endurance of that view remains to be seen. Indeed, at least three sitting
Justices of the U.S. Supreme Court have questioned this understanding. See Carpenter v. United
States, 138 S. Ct. 2206, 2271 (2018) (Gorsuch, J., dissenting) (“[T]here is substantial evidence
that the privilege against self-incrimination was also originally understood to protect a person
from being forced to turn over potentially incriminating evidence.”); United States v. Hubbell,
530 U.S. 27, 49 (2000) (Thomas, J., concurring) (“A substantial body of evidence suggests that
the Fifth Amendment privilege protects against the compelled production not just of
incriminating testimony, but of any incriminating evidence.”); Samuel A. Alito, Jr., Documents
and the Privilege Against Self-Incrimination, 48 U. Pitt. L. Rev. 27, 78 (1986) (“The individuals
who framed, adopted, and ratified the fifth amendment left no clear evidence that they ever
considered the application of the privilege to subpoenas for documents.”). Even then-Justices
Brennan and Stevens—no originalists!—agreed that the new framework unnecessarily and
detrimentally departed from Boyd. See Fisher, 425 U.S. at 414 (Brennan, J., concurring in the
judgment) (Because it represented “a serious crippling of the protection secured by the
privilege against compelled production of one’s private books and papers,” Fisher was “but
another step in the denigration of privacy principles settled nearly 100 years ago” in Boyd.);
Doe v. United States, 487 U.S. 201, 221 n.2 (1988) (Stevens, J., dissenting) (“The Fifth
Amendment provides that no person ‘shall be compelled in any criminal case to be
a witness against himself.’ A witness is one who ‘gives evidence in a cause.’ T. Cunningham,
2 New and Complete Law Dictionary (2d ed. 1771).”). A return to Boyd would end the
constitutional hair-splitting that results when applying old precedents to new technology in
this digital age. But this Court, especially in a moot case, should not prognosticate Boyd’s
resurrection. Cf. Timbs, 84 N.E.3d at 1183 (choosing “to await guidance from the Supreme
Court and decline to find or assume incorporation until the Supreme Court decides the issue
authoritatively”). The Supreme Court must, at some point, decide how to apply its modern
Fifth Amendment jurisprudence to the compelled unlocking of a smartphone or, perhaps,
return to Boyd. In the meantime, that uncertainty further counsels that we dismiss this appeal
as moot.
Slaughter, J., dissenting.
I respectfully dissent. Although I agree with Justice Massa that this

case is moot, I write separately because I disagree that a mootness
exception justifies our reaching the merits of Seo’s constitutional claim. In
my view, our prevailing mootness standard does not conform to our
constitution’s mandate of separate governmental powers. In lieu of our
prevailing standard, I would adopt the federal standard because,
consistent with Article 3, Section 1 of our state constitution, it requires that
courts decide only actual disputes. Applying this standard here, I would
find Seo’s appeal moot and not reach the merits of her Fifth Amendment
claim.
As Justice Massa recites correctly, appellate case law in Indiana holds

that our courts may decide otherwise moot cases if the legal question is
sufficiently important and will likely recur. The Court says that Seo’s
appeal is such a case, thus justifying our reaching the merits even if her
case were moot. Although case authority generally supports such a broad
mootness exception, the cases are not uniform.
Some cases appear to have applied the stricter federal exception, in

which a court will not decide a moot issue unless it is capable of
repetition, yet evading review. But courts that have applied the federal
exception confuse the issue by also invoking our laxer state mootness
standard. See, e.g., Horseman v. Keller, 841 N.E.2d 164, 170 (Ind. 2006)
(invoking state standard first: “Where there is a matter of great public
importance, however, and the possibility of repetition, Indiana courts may
choose to adjudicate a claim.”; but concluding with federal standard:
“Because the question before us is capable of repetition, yet evading
review, we now address the constitutionality of [the disputed statute].”)
(cleaned up); Gaither v. Indiana Dep’t of Correction, 971 N.E.2d 690, 693-94
(Ind. Ct. App. 2012) (same).
I would clarify any ambiguity in our appellate precedent and hold that
any mootness doctrine consistent with our state constitution’s mandate of
separate governmental powers requires an actual dispute.
B
Our constitution divides the powers of government among “three

separate departments; the Legislative, the Executive including the
Administrative, and the Judicial”. Ind. Const. art. 3, § 1. It also mandates
that “except as in this Constitution expressly provided”, “no person,
charged with official duties under one of these departments, shall exercise
any of the functions of another”. Id. After discussing the powers and
functions of the other departments, our constitution charges courts with
exercising the “judicial power”. Id. art 7, § 1. This delegation of power to
the judiciary has two aspects: courts may exercise only the judicial power;
and only courts may exercise this power. Id.
What, precisely, is the judicial power? It is the power to resolve actual

disputes between adverse parties by issuing binding decrees that
pronounce the parties’ rights and responsibilities and afford meaningful
relief to the prevailing party. Although our constitution does not contain
an express “case or controversy” requirement like Article III of the federal
constitution, “our explicit separation of powers clause fulfills a similar
function.” Pence v. State, 652 N.E.2d 486, 488 (Ind. 1995). Relevant here,
that function limits courts to deciding justiciable controversies.
Justiciability concerns the power and propriety of a court to hear a case

and award relief. As I wrote in Horner v. Curry, standing is an essential
aspect of justiciability because it ensures that a judicial decree redresses an
actual injury attributable to the defendant’s wrong. 125 N.E.3d 584, 612,
615 (Ind. 2019) (Slaughter, J., concurring in the judgment). Also essential
are the related doctrines of ripeness and mootness. Standing asks who
may bring suit. Ripeness and mootness ask when suit may be brought.
With ripeness, the issue is whether the claim has sufficiently developed—
matured—into an actual controversy so that courts are resolving real
disputes, not anticipated cases based on hypothetical facts. With
mootness, the issue is whether a once-mature claim has “over-ripened” to
the point that a court’s judgment can no longer afford the claimant
effective relief.
These justiciability doctrines respect and implement separation of

powers. They ensure that the judiciary retains its proper role within our
constitutional order and leaves the political branches undisturbed, absent
a legal wrong. And even then, courts will not exercise their power unless a
claimant has standing and the case is ripe. In other words, courts will hear
a case only when a claim is sufficiently mature such that the claimant has
sustained an actual injury; the claimant can obtain meaningful relief from
a judgment against the defendant; and the claimant continues to have a
personal stake in the outcome throughout the lawsuit. What follows from
these doctrines is that the only mootness standard consistent with our
constitution’s requirement of distributed governmental powers is one
requiring an actual, ongoing controversy between adverse parties. The
federal mootness standard fills that bill.
To be justiciable, the federal standard requires that an otherwise moot

case be capable of repetition, yet evading review. See Honig v. Doe, 484
U.S. 305, 318–20 (1988). In other words, it requires a case to present a
question likely to recur between the same parties in circumstances that
will likely skirt judicial review. See id. Although the evade-review
requirement is a prudential consideration, the capable-of-repetition
requirement is constitutionally required, demanding a “demonstrated
probability” that the same issue will arise between the same parties.
Murphy v. Hunt, 455 U.S. 478, 482 (1982). “Where the conduct has ceased
for the time being but there is a demonstrated probability that it will
recur, a real-life controversy between parties with a personal stake in the
outcome continues to exist[.]” Honig, 484 U.S. at 341 (Scalia, J., dissenting)
(emphasis in original). Thus, this so-called “exception” to the mootness
doctrine is really no exception at all but a test for determining whether an
actual dispute remains.
In contrast, Indiana’s prevailing mootness doctrine rejects the narrow

federal doctrine, see Matter of Lawrance, 579 N.E.2d 32, 37 (Ind. 1991), and
recognizes an open-ended exception for moot cases involving “questions
of great public interest”. Id. (cleaned up). Although these cases “typically
contain issues likely to recur”, id., we assess whether the issues are likely
to recur not with reference to a case’s specific parties but to any
conceivable party. See id. Thus, a court may decide an otherwise moot
case if someone—anyone—may face the same issue in the future. But this
lone requirement—an issue of great public importance likely to recur—
does not make a case suitable for adjudication under our constitution. The
case must have a demonstrated probability that it will recur between the
same parties; otherwise, there is no actual dispute, and any adjudication
exceeds the judicial power.
Not only does our mootness doctrine lack any tie to our essential,
though limited, constitutional role, but how we apply our justiciability
principles has proved unpredictable in practice. Just last month, we held
unanimously that the governor could not intervene in a pending
disciplinary action involving the attorney general. Matter of Hill, 144
N.E.3d 200 (Ind. 2020). The governor asked us to answer the timely,
pressing question whether our thirty-day suspension of the attorney
general’s law license created a vacancy in the office that triggered the
governor’s legal duty to fill it. No one disputed that the governor’s motion
raised an issue of “great public importance”. Yet we denied intervention
—correctly, in my view—because, among other reasons, we do not issue
advisory opinions and the governor had no legally cognizable interest in
the underlying case. In other words, the proposed intervention lacked the
criteria for justiciability, despite the importance of the issue raised.
Even if I agreed that Seo has raised a “novel, important issue of great
public importance that will surely recur”, that standard cannot be
reconciled with the actual-injury requirement implicit in our constitution’s
separation-of-powers command. Instead, I would adopt “capable of
repetition, yet evading review” as our mootness standard. Applying it
here, I would hold that Seo’s Fifth Amendment claim is moot and not
reach the merits.
STATE OF MINNESOTA
IN SUPREME COURT
A15-2075
Court of Appeals Chutich, J.
State of Minnesota,
Respondent,
vs. Filed: January 17, 2018

Office of Appellate Courts
Matthew Vaughn Diamond,
Appellant.
________________________
Lori Swanson, Attorney General, Saint Paul, Minnesota; and
Mark Metz, Carver County Attorney, Peter A.C. Ivy, Chief Deputy County Attorney,
Chaska, Minnesota, for respondent.
Cathryn Middlebrook, Chief Appellate Public Defender, Steven P. Russett, Assistant State
Public Defender, Office of the Appellate Public Defender, Saint Paul, Minnesota, for
appellant.
Cort C. Holten, Jeffrey D. Bores, Gary K. Luloff, Chestnut Cambronne PA, Minneapolis,
Minnesota, for amicus curiae Minnesota Police and Peace Officers Association Legal
Defense Fund.
________________________
1
SYLLABUS
Ordering appellant to provide a fingerprint to unlock a seized cellphone did not
violate his Fifth Amendment privilege against self-incrimination because the compelled
act was not a testimonial communication.
Affirmed.
OPINION
CHUTICH, Justice.
This case presents an issue of first impression: whether the Fifth Amendment
privilege against self-incrimination protects a person from being ordered to provide a
fingerprint to unlock a seized cellphone. Neither the Supreme Court of the United States
nor any state supreme court has addressed this issue.
The police lawfully seized a cellphone from appellant Matthew Diamond, a burglary
suspect, and attempted to execute a valid warrant to search the cellphone. The cellphone’s
fingerprint-scanner security lock, however, prevented the search, and Diamond refused to
unlock the cellphone with his fingerprint, asserting his Fifth Amendment privilege against
self-incrimination. The district court found no Fifth Amendment violation and ordered
Diamond to provide his fingerprint to unlock the cellphone so that the police could search
its contents. After the court of appeals affirmed, we granted Diamond’s petition for review.
Because the compelled act here—providing a fingerprint—elicited only physical evidence
from Diamond’s body and did not reveal the contents of his mind, no violation of the Fifth
Amendment privilege occurred. Accordingly, we affirm.
2
FACTS
A homeowner in Chaska returned home to find that someone had kicked open her
attached garage’s side-entry door, entered her home, and taken jewelry, electronics, and a
safe. When police officers arrived to investigate the burglary, they discovered two key
pieces of evidence: shoe tread prints on the side-entry door, and, on the driveway, an
envelope with the name “S.W.” written on it. A Chaska investigator determined that S.W.
had sold jewelry to a pawnshop on the same day as the burglary, and the investigator
obtained the license plate number of a car registered in S.W.’s name. Officers then located
and stopped S.W.’s car; Diamond was driving the car, and S.W. was a passenger. Police
officers arrested Diamond on outstanding warrants and took him to jail, where jail
personnel collected and stored his shoes and a Samsung Galaxy 5 cellphone that he was
carrying when arrested.
Police officers obtained and executed warrants to seize Diamond’s shoes and
cellphone. In addition, they obtained a warrant to search the contents of the cellphone. But
they could not search its contents because the cellphone required a fingerprint to unlock
it.1 The State then moved to compel Diamond to unlock the seized cellphone with his
fingerprint. Diamond objected, asserting his Fifth Amendment privilege against self-
incrimination.
1
The cellphone contained an electronic lock that could be opened using only
fingerprint recognition, rather than a password or pin number. To use the fingerprint-
recognition feature, a cellphone user can train a cellphone to recognize a specific
fingerprint’s physical patterns by placing a finger on the phone enough times to “build” the
phone’s memory of the fingerprint. Once the cellphone recognizes the fingerprint, the user
can unlock the cellphone by placing the specific finger on the phone itself.
3
The district court concluded that compelling Diamond’s fingerprint would not
violate his Fifth Amendment privilege because “[c]ompelling the production of
[Diamond’s] fingerprint or thumbprint would not call upon the use of [his] mind. It is more
akin to providing a key to a lockbox.” Accordingly, it ordered Diamond to “provide a
fingerprint or thumbprint as deemed necessary by the Chaska Police Department to unlock
his seized cell phone.”
Diamond continued to object to providing the necessary fingerprint for unlocking
the phone. Nevertheless, he finally unlocked the cellphone with his fingerprint in court
after being held in civil contempt and warned of the possibility and consequences of
criminal contempt. Police officers used forensic analysis software to search and to extract
the cellphone’s data, including call records and messages sent and received from the
cellphone. The data showed frequent communication between S.W. and Diamond on the
day of the burglary.
During the jury trial, the district court admitted the messages and call logs from the
search of the cellphone, but to avoid Fifth Amendment concerns, it prohibited the parties
from introducing evidence that Diamond had unlocked the phone with his fingerprint. The
court also admitted inculpatory evidence unrelated to the contents of the cellphone, which
showed that Diamond had committed the burglary. This evidence included an analysis of
Diamond’s shoes, which matched the shoeprints found at the scene of the crime; cellphone
tower records that placed him in the area of the burglary at the relevant time; pawnshop
records; and testimony from S.W. The jury found Diamond guilty of second-degree
burglary, Minn. Stat. § 609.582, subd. 2(a)(1) (2016), and other offenses.
4
The court of appeals affirmed, concluding that providing a fingerprint was not
privileged under the Fifth Amendment because it was “no more testimonial than furnishing
a blood sample, providing handwriting or voice exemplars, standing in a lineup, or wearing
particular clothing.” State v. Diamond, 890 N.W.2d 143, 151 (Minn. App. 2017).
We granted Diamond’s petition for review.
ANALYSIS
The question this case poses arises under the Fifth Amendment to the United States
Constitution. We review this constitutional question de novo.2 See State v. Borg, 806
N.W.2d 535, 541 (Minn. 2011) (reviewing de novo whether the Fifth Amendment privilege
prohibits eliciting certain testimony during the State’s case in chief).
The Fifth Amendment, applicable to the states through the Fourteenth Amendment,
Malloy v. Hogan, 378 U.S. 1, 8 (1964), provides that “no person . . . shall be compelled in
any criminal case to be a witness against himself,” U.S. Const. amend. V; see also Minn.
2
In United States v. Doe (Doe I), the Supreme Court used a different, deferential,
standard of review in addressing a question under the Fifth Amendment, but that standard
does not apply here. 465 U.S. 605, 613–14 (1984) (holding that it would “not overturn”
the district court’s explicit finding that an act of producing documents “would involve
testimonial self-incrimination” “unless it ha[d] no support in the record”). Critically, Doe
I focused on whether the act of producing documents was actually testimonial in that
particular case, which depended on “the facts and circumstances,” not whether the act may
be testimonial in general. Id. at 613 (quoting Fisher v. United States, 425 U.S. 391, 410
(1976)); see also id. at 613 nn.11–12 (describing the factual findings of the district court
and the court of appeals’ review of the findings). In contrast to the factual question
presented in Doe I, the question here—whether the act of producing a fingerprint to unlock
a cellphone is testimonial or nontestimonial—is a question of law, which we review de
novo.
5
Const. art. I, § 7.3 The “constitutional foundation underlying the privilege is the respect a
government—state or federal—must accord to the dignity and integrity of its citizens.”
Schmerber v. California, 384 U.S. 757, 762 (1966). To maintain a “fair state-individual
balance,” the privilege ensures that the government “shoulder[s] the entire load” in building
a criminal case. Miranda v. Arizona, 384 U.S. 436, 460 (1966). “[O]ur accusatory system
of criminal justice demands that the government seeking to punish an individual produce
the evidence against him by its own independent labors, rather than by the cruel, simple
expedient of compelling it from [the defendant’s] own mouth.” Id.
The privilege against self-incrimination bars the state from (1) compelling a
defendant (2) to make a testimonial communication to the state (3) that is incriminating.
See Fisher v. United States, 425 U.S. 391, 408 (1976). Because we conclude that the act
of providing a fingerprint to the police to unlock a cellphone is not a testimonial
communication, we need not consider the other two requirements.
The Fifth Amendment bars a state from compelling oral and physical testimonial
communications from a defendant. Schmerber, 384 U.S. at 763–64 (“It is clear that the
protection of the privilege reaches an accused’s communications, whatever form they
might take, and the compulsion of responses which are also communications, for example,
compliance with a subpoena to produce one’s papers.”). A physical act is testimonial when
the act is a communication that “itself, explicitly or implicitly, relate[s] a factual assertion
or disclose[s] information.” Doe v. United States (Doe II), 487 U.S. 201, 209–10 (1988).
3
Diamond’s claim is brought under the U.S. Constitution, not the Minnesota
Constitution.
6
For example, complying with a subpoena to produce documents “may implicitly
communicate ‘statements of fact’ ” because complying with a court order may
communicate the existence of evidence, the possession or control of evidence, or
authenticate evidence.4 United States v. Hubbell, 530 U.S. 27, 36 (2000) (subpoena for
documents); Doe II, 487 U.S. at 203–04 (order compelling a signature to access bank
record); State v. Alexander, 281 N.W.2d 349, 352 (Minn. 1979) (order to produce films).
But an act is not testimonial when the act provides “real or physical evidence” that
is “used solely to measure . . . physical properties,” United States v. Dionisio, 410 U.S. 1,
7 (1973), or to “exhibit . . . physical characteristics,” United States v. Wade, 388 U.S. 218,
222 (1967). The government can compel a defendant to act when the act presents the “body
as evidence when it may be material.” Schmerber, 384 U.S. at 763 (quoting Holt v. United
States, 218 U.S. 245, 252–53 (1910)). In other words, the government may compel a
defendant to “exhibit himself” and present his “features” so that the police or a jury may
“compare his features” with other evidence of the defendant’s guilt. Holt, 218 U.S. at 253;
State v. Williams, 239 N.W.2d 222, 225–26 (Minn. 1976) (holding that an order to “put on
a hat found at the scene of the crime” was not testimonial because the police compelled the
physical act for “the sole purpose of attempting to prove [the defendant’s] ownership of
[an] incriminating article”).
4
In Fisher, the Supreme Court noted that the “prevailing justification for the Fifth
Amendment’s application to documentary subpoenas” is the “implicit authentication”
rationale. 425 U.S. at 412 n.12. In other words, a subpoena demanding that an accused
present his own records is the same as requiring the accused to take the stand and admit
the documents’ authenticity and the same as acknowledging that the documents produced
are in fact the documents described in the subpoena. Id.
7
The Supreme Court of the United States has therefore drawn a distinction between
the testimonial act of producing documents as evidence and the nontestimonial act of
producing the body as evidence. The Court first held that the compelled exhibition of the
body’s characteristics was not testimonial under the Fifth Amendment in Holt, 218 U.S. at
252. The Court explained that it would be an “extravagant extension of the 5th
Amendment” to prevent a jury from hearing a witness testify that a prisoner, who was
compelled to put on clothes, did so and that the clothes fit him. Id. It reasoned that barring
the testimony would, in essence, “forbid a jury” from looking “at a prisoner and
compar[ing] his features with a photograph in proof.” Id. at 253; see also State ex rel. Ford
v. Tahash, 154 N.W.2d 689, 691 (Minn. 1967) (“[T]here is a distinction between bodily
view and requiring the accused to testify against himself.”); State v. Garrity, 151 N.W.2d
773, 776 (Minn. 1967) (“The Constitution confers no right on an accused to be immune
from the eyes of his accusers. The privilege is against testimonial compulsion, whereas
exposure to view, like fingerprinting and photographing, is not proscribed.”).
In Schmerber, the Supreme Court relied on Holt to hold that providing a blood
sample to the police for an alcohol-content analysis was a nontestimonial act. 384 U.S. at
765. The Court reasoned that neither the extraction of the blood sample nor the later
chemical analysis of the blood sample showed “even a shadow of testimonial compulsion”
or “communication by the accused.” Id. It emphasized that the defendant’s “testimonial
capacities” were not involved and “his participation, except as a donor, was irrelevant to
the results of the test, which depend[ed] on [the] chemical analysis and on that alone.” Id.
Accordingly, the Court adopted the reasoning of the federal and state courts that
8
distinguished between compelled acts that make a “suspect or an accused the source of real
or physical evidence” and compelled acts that elicit testimonial responses. Id. at 764
(internal quotation marks omitted). Courts applying this distinction, it noted, had held that
the Fifth Amendment “offers no protection against compulsion to submit to fingerprinting,
photographing, or measurements, to write or speak for identification, to appear in court, to
stand, to assume a stance, to walk, or to make a particular gesture.” Id. at 764.
Although the Supreme Court’s distinction between the testimonial act of producing
documents as evidence and the nontestimonial act of producing the body as evidence is
helpful to our analysis, the act here—providing the police a fingerprint to unlock a
cellphone—does not fit neatly into either category. Unlike the acts of standing in a lineup
or providing a blood, voice, or handwriting sample, providing a fingerprint to unlock a
cellphone both exhibits the body (the fingerprint) and produces documents (the contents of
the cellphone). Providing a fingerprint gives the government access to the phone’s
contents that it did not already have, and the act of unlocking the cellphone communicates
some degree of possession, control, and authentication of the cellphone’s contents. See
Hubbell, 530 U.S. at 36. But producing a fingerprint to unlock a phone, unlike the act of
producing documents, is a display of the physical characteristics of the body, not of the
mind, to the police. See Schmerber, 384 U.S. at 763.
Because we conclude that producing a fingerprint is more like exhibiting the body
than producing documents, we hold that providing a fingerprint to unlock a cellphone is
not a testimonial communication under the Fifth Amendment. The police compelled
Diamond’s fingerprint for the fingerprint’s physical characteristics and not for any implicit
9
testimony from the act of providing the fingerprint. See Dionisio, 410 U.S. at 7. Moreover,
the fingerprint was physical evidence from Diamond’s body, not evidence of his mind’s
thought processes. See Hubbell, 530 U.S. at 43. We reach this conclusion for two reasons.
First, the State compelled Diamond to provide his fingerprint only for the physical,
identifying characteristics of Diamond’s fingerprint, not any communicative testimony
inherent in providing the fingerprint. The State’s use of Diamond’s fingerprint was
therefore like a “test” to gather physical characteristics, akin to a blood sample, a voice
exemplar, trying on clothing, or standing in a lineup, in an effort to unlock the cellphone.
See Wade, 388 U.S. at 222–23 (testing whether participation in a lineup would lead to a
witness identifying the suspect); Schmerber, 384 U.S. at 765 (testing whether a blood
sample contained alcohol and in what amount); Holt, 218 U.S. at 252 (testing whether a
piece of clothing fit a suspect).
The characterization of the act throughout this case’s proceedings supports this
conclusion. The district court’s order compelled Diamond to “provide a fingerprint or
thumbprint as deemed necessary by the Chaska Police Department”—a part of his body—
to the police so that the police could unlock the cellphone. At the contempt hearing, the
district court instructed the State to “take whatever samples it needed” to unlock the
cellphone. Moreover, the State did not present evidence at trial that Diamond unlocked the
cellphone with his fingerprint.
Second, Diamond’s act of providing a fingerprint to the police was not testimonial
because the act did not reveal the contents of Diamond’s mind. See 3 Wayne R. LaFave et
al., Criminal Procedure § 8.12(d) (4th ed. 2016) (“Schmerber limited any ‘private inner
10
sanctum’ protected by the privilege to that of the contents of the mind, which a compelled
communication forces the individual to reveal.”); see also Hubbell, 530 U.S. at 42–43
(citing Curcio v. United States, 354 U.S. 118, 128 (1957)) (holding that the act of
producing documents in response to a subpoena was testimonial because the act required
the accused to take “the mental and physical steps necessary to provide the prosecutor with
an accurate inventory of the many sources of potentially incriminating evidence sought by
the subpoena”); Doe II, 487 U.S. at 213 (stating that the Fifth Amendment is intended “to
spare the accused from having to reveal, directly or indirectly, his knowledge of facts
relating him to the offense or from having to share his thoughts and beliefs with the
Government”).
Although the Supreme Court has not considered whether compelling a defendant to
provide a fingerprint—or a password5—to unlock a cellphone elicits a testimonial
communication, other courts considering the question have focused on whether the act
revealed the contents of the mind.6 See Sec. & Exch. Comm’n v. Huang, No. 15-269, 2015
5
We do not decide whether providing a password is a testimonial communication.
6
These cases often cite authorities analyzing whether a court may compel a defendant
to decrypt a computer to unlock it for the government. See In re Grand Jury Subpoena
Duces Tecum Dated March 25, 2011, 670 F.3d 1335, 1346 (11th Cir. 2012) (holding that
compelled decryption of a computer hard drive’s contents was testimonial because using a
decryption password demands “the use of the contents of the mind”); United States v.
Kirschner, 823 F. Supp. 2d 665, 668–69 (E.D. Mich. 2010) (holding that compelling the
suspect to provide passwords associated with the suspect’s computer was testimonial
because the act revealed the contents of the suspect’s mind); Commonwealth v. Gelfgatt,
11 N.E.3d 605, 615–16 (Mass. 2014) (concluding that the act of computer decryption was
testimonial because a defendant cannot be compelled to reveal the contents of his mind,
but holding that the testimony was not protected because the testimony was a “foregone
conclusion”).
11
WL 5611644, at *2 (E.D. Penn. Sept. 23, 2015) (concluding that the privilege protected
the production of a password because the government sought the “Defendants’ personal
thought processes” and intruded “into the knowledge” of the defendants); Commonwealth
v. Baust, 89 Va. Cir. 267, 2014 WL 10355635, at *4 (Va. Cir. Ct. Oct. 28, 2014) (holding
that providing a passcode was testimonial, but providing a fingerprint was not, because
“[u]nlike the production of physical characteristic evidence, such as a fingerprint, the
production of a password force[d] the Defendant to disclose the contents of his own mind”
(internal quotation marks omitted)). But see In re Application for a Search Warrant, 236
F. Supp. 3d 1066, 1073–74 (N.D. Ill. 2017) (concluding that the privilege barred the
compelled production of a fingerprint to unlock a phone because the act produced the
contents of the phone).
Here, Diamond merely provided his fingerprint so that the police could use the
physical characteristics of the fingerprint to unlock the cellphone. The compelled act did
not require Diamond to “submit to testing in which an effort [was] made to determine his
guilt or innocence on the basis of physiological responses, whether willed or not.”7 See
7
In Doe II, the Court clarified that in Schmerber it had “distinguished between the
suspect’s being compelled himself to serve as evidence and the suspect’s being compelled
to disclose or communicate information or facts that might serve as or lead to incriminating
evidence.” 487 U.S. at 211 n.10 (emphasis added). In Schmerber, the Court explained that
when the government compels a defendant to act in a manner in which the defendant’s
physiological responses reveal the contents of the defendant’s mind, then the act is
testimonial even though the government is only looking at physical characteristics. See
384 U.S. at 764 (“[Compelling a] person to submit to testing in which an effort will be
made to determine his guilt or innocence on the basis of physiological responses, whether
willed or not, is to evoke the spirit and history of the Fifth Amendment.”). Relying on the
example of the lie detector test, the Schmerber Court explained that “lie detector tests
12
Schmerber, 384 U.S. at 764. To the extent that providing a fingerprint to unlock a
cellphone might require a mental process to unlock the phone,8 the police did not need to
rely on that mental process here. See Hubbell, 530 U.S. at 43. Diamond did not need to
self-select the finger that unlocked the phone. He did not even need to be conscious.
Diamond could have provided all of his fingerprints to the police by making his hands
available to them, and the police could have used each finger to try to unlock the cellphone.
Like in Schmerber, Diamond’s participation in providing his fingerprint to the
government “was irrelevant” to whether Diamond’s fingerprint actually unlocked the
cellphone. See 384 U.S. at 765 (concluding that the results of the blood sample depended
on the chemical analysis of the blood, not the act of providing the blood sample). Whether
Diamond’s fingerprint actually unlocked the phone depended on whether the cellphone’s
fingerprint-scanner analyzed the physical characteristics of Diamond’s fingerprint and
matched the characteristics of the fingerprint programmed to unlock the cellphone.
measuring changes in body function during interrogation[] may actually be directed to

eliciting responses which are essentially testimonial.” Id. The Schmerber Court, therefore,
distinguished between a lie detector test, which could reveal the contents of a suspect’s
mind, and the exhibition of the defendant’s bodily blood sample. See id.
8
Even if providing a fingerprint did reveal the contents of the mind, because the act
of providing evidence of physical characteristics has no testimonial significance, as
discussed above, Diamond’s act would still be nontestimonial. The Doe II Court clarified
that the focus of the inquiry is not only whether the content comes from the mind, but also
whether the content from the mind has “testimonial significance.” 487 U.S. at 211 n.10
(stating that “it is not enough that the compelled communication is sought for its content.
The content itself must have testimonial significance” (citing Fisher, 425 U.S. at
408; Gilbert v. California, 388 U.S. 263, 267 (1967); Wade, 388 U.S. at 222)).
13
Because the compelled act merely demonstrated Diamond’s physical characteristics
and did not communicate assertions of fact from Diamond’s mind, we hold that Diamond’s
act of providing a fingerprint to the police to unlock a cellphone was not a testimonial
communication protected by the Fifth Amendment.
CONCLUSION
For the foregoing reasons, we affirm the decision of the court of appeals.
Affirmed.
14

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Page 1 Wednesday, March 29, 2023

1953 SCR 730 : AIR 1953 SC 325 : 1953 Cri LJ 1432

In the Supreme Court of India

Criminal Appeal No. 81 of 1952

N.H. BHAGWATI, J.— This appeal by special leave from a jugment

determine the question of fact as to whether the appellant was the

initiation or starting of proceedings of a criminal nature before a court

Chapter XVII prescribes the procedure relating to offences, appeals,

Magistrate against Jagjit Singh for having committed offence under

punish. If however the detenu cannot in the opinion of the Jail

1950, with reference to these offences. These entries in the punishment

2 1950 SCC 470 : 1950 SCR 459

In the Supreme Court of India

Petition No. 65 of 1958

dated 16-11-1954, issued by the Government of the Republic of Cuba.

Pocket radio 1.00

for carrying gold bars

to take out of India Indian and foreign currency, in contravention of the

confiscation of the properties aforesaid, and the imposition of a heavy

constitute a judgment or order of a court or judicial tribunal

the Section makes a specific reference to a trial by a Magistrate, a

by Section 23(1)(a), namely, a penalty not exceeding three times the

criminal offence is intended under any one of the entries of the

infringement of the provisions of the Sea Customs Act, and imposing

the Revenue Authorities for an infringement of the law against

proceeding before the Sea Customs Authorities was not a prosecution

transfers an absolute title to Government. Therefore, in a case where

law requires it.

provisions go to show that far from being authorities bound by any

tribunal looks for some law to guide it. An administrative tribunal,

ascertain with exactitude the content and scope of the fundamental

Section 167 of the Act, is a judicial tribunal. Is it reasonable to assume

Provided that the exemption under Section 132 of the Code of

viz. that an authority is not a judicial tribunal, be accepted, it will lead

the offence for which a person is prosecuted and punished in a second

and the appeal are allowed.

1 AIR 1957 SC 648

2 AIR 1958 SC 119

3 (1953) SCR 730, 738, 739, 743

5 59 L Ed 1153 : 237 US 632

6 75 L Ed 551 : 282 US 568

7 (1953) SCR 730

8 (1958) SCA 916, 930

9 (1937) 2 KB 309, 340, 341.

10 (1954) SCR 1150.

(1961) 3 SCR 107 : AIR 1961 SC 578 : (1961) 1 Cri LJ 725

In the Supreme Court of India

STATE OF BOMBAY … Appellant;

the signature of the second respondent in token of her sanction. The

appeal was dismissed by the learned Judges who however granted a

other than those expressed or authorised by the Insurance Act,

Indian Penal Code) is not committed unless the act of

State Government after the prosecution was commenced before a

2 (1957) SCR 868

3 Constitution of the United States, Vol II p. 1158

4 273 US I : 71 Law Ed 505

(1962) 3 SCR 10 : AIR 1961 SC 1808 : (1961) 2 Cri LJ 856