CASES AND COMMENTS

Constitutional Law—Article 20(3) —Physical Examination of the

Accused and the privilege against Self-incrimination—State of
Bombay v. Kothi Kalu Oghad. *
The judgment of the Supreme Court in State of Bombay v. Kothi
Kalu Oghad deals with the ambit and scope of Art. 20(3) of the Consti-
tution which reads : " No person accused of any offence shall be
compelled to be a witness against himself." The case covers appeals
from three states, Bombay, Punjab and West Bengal. The matter that
called for the decision of the court was whether Art. 20(3) of the
Constitution was violated in the following cases :
(a) Compulsory obtaining of handwriting from the accused
by the police during investigation of the crime for the
purpose of comparison;
(b) Giving of a direction by a court to an accused person
present in the court to give his specimen writing and
signature for the purpose of comparison under the
provisions of section 73 of the Indian Evidence Act;
(c) Compulsory obtaining of the impressions of the palms
and fingers of the accused by the investigating police
officer in the presence of a magistrate.
The issues before the court led it to find out the meaning of the
words " compelled ", " to be a witness " and " accused " appearing
in the Article. The majority 1 arrived at 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 circum-

* A.I.R. 1961 S.C. 1808.

1. A Full Bench of eleven judges considered this case. Chief Justice Sinha
delivered the opinion of the majority. The concurring opinion of three judges was
delivered by Das Gupta, J.

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 CONSTITUTIONAL LAW—ARTICLE 20(3) 553

stances disclosed in evidence in a particular case, would be a relevant

consideration in an inquiry 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 c compulsion \
3. ' To be a witness ' is not equivalent to c 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 c 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. c 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
Art. 20(3), the person accused must have stood in the character of an
accused person at the time he made the statement. It is not enough
that he should become an accused, any time after the statement has
been made". 2
This comment is restricted to conclusions 3 to 5.
Instead of confining itself to the specific issues before it, the court
traversed much wider ground, and thus departed from the general
policy of the judiciary to restrict itself to the concrete issues
presented before it. 3 Even though the issues presented to the
court did not call upon it to decide the question whether the pri-
vilege against self-incrimination covered required production of

2. AJ.R. 1961 S.C. 1808, 1816-17.

3. See, for instance, the opinion of S. R, Das, C.J., in Basheshar Nath vf
T. Comm., A.I.R. 1959 S.C 149,

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554 CASES AND COMMENTS

documents in the possession of the accused, yet the court held that " if
it is a document which is not his statement conveying his personal
knowledge relating to the charge against him, he may be compelled
by the Court to produce that document in accordance with the pro-
visions of section 139 of the Evidence Act." 4 Since the issue of
documents was not before the court, no arguments for or against the
applicability of the privilege to documents were made. The concur-
ring judges reached a different conclusion on this matter. In both
England 5 and the United States 6 also, the privilege applies to docu-
ments in the possession of the accused, though in the United States, by
importing the concept of " public documents " 7 and " records required
by law to be k e p t " 8 the scope and ambit of the privilege in this area
has been curtailed to some extent. Further, the words " a document
which is not his statement conveying his personal knowledge" may
create difficulty in practice as to what such documents are. In view
of these factors the court may have refrained from stating any opinion
on the question of documents, particularly because even the obiter of
the court is entitled to great weight by the lower courts. 9
In explaining the meaning of " to be a witness " the court said :
" T o 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 com-
municated to a court or to a person holding an enquiry or
investigation Self-incrimination must mean conveying infor-
mation based upon the personal knowledge of the person giving
the information and cannot include merely the mechanical process
of producing documents in court which may throw a light on any
of the points in controversy, but which do not contain any state-
ment of the accused based on his personal knowledge When
an accused person is called upon by the court or any other authority holding
an investigation to give hisfingerimpression or signature or specimen of his
handwriting, he is not giving any testimony in the nature of a 'personal
testimony.' The giving of a 'personal testimony' must depend upon his
4. supra note 2 at 1814.
5. See Phipson, Evidence, (1952) 9th edn., p . 215.
6. The leading American case on the subject is Boyd v. U.S., 116U.S. 161 (1886).
7. Wilson v. U.S., 221 U.S. 361 (1910). Also see Madanlal v. State, A.I.R. 1958
Orissa 1.
8. Shapiro v. U.S., 335 U.S. 1 (1947).
9. See, for instance, Veerappa Chettiar v. / . T. Commissioner, A.I.R. 1959 Mad*
56, 61 ; K. P. Doctor v. State of Bombay, A.LR. 1955 Bom. 220, 224.

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 CONSTITUTIONAL LAW—ARTICLE 2 0 ( 3 ) 555

volition. He can make any kind of statement or may refuse to

make any statement. But his finger impression or his handwriting,
inspite of efforts at concealing the true nature of it by dissimula-
tion cannot change their intrinsic character. Thus, the giving of
finger impressions or of a 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'." 10
In this respect, reference may be made to the earlier Supreme
Court judgment in Satish v. Sharma u wherein it was stated by the
court: " 'To be a witness' is nothing more than to c 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 Indeed, every posi-
tive volitional act which furnishes evidences is testimony and testimonial compulsion
connotes coercion which procures the positive volitional evidentiary acts of the
person as opposed to negative attitude of silence or submission on his part99.12
Tfce words " every positive volitional act which furnishes evidence is
testimony " appearing in this observation are not different in sub-
stance from the words " the giving of personal testimony must depend
upon his volition 5> appearing in the majority judgment in the Oghad
case.13 The Sharma case was however differently interpreted by the
different High Courts. A number of High Courts did not give due
weight to the words " positive volitional act " (but relied on the words
" to be a witness' is nothing more than to furnish evidence"), 1 4
though a few did. 15 On the reliance placed on the particular words
10. A.I.R. 1961 S.C. 1814-15. Emphasis added.
11. A.I.R. 1954 S.C. 300.
12. Ibid, at 304. Emphasis added.
13. Volition may be denned as exercise of will and will as conscious process
in effecting a decision, Webster Dictionary, 2nd Ed., pp. 2856 and 2928. Now
giving of finger impressions does not require any conscious process of m i n d ; it is a
mechanical act. Finger impressions of a dead man are as accurate as that of
the living. But giving of information based on "personal knowledge" certainly
involves conscious operation of the mind and therefore volition.
14. See, for instance, Damodaran v. State, A.I.R. 1960 Ker. 29 ; Brij Bhushan v.
State, A.I.R. 1957 M.P. 106; Rajmuthukoil Pillai v. Periyaswami Nadar, A.I.R. 1956
Mad, 632; Bhaiuka Behara v. State, A.I.R. 1957 Orissa 172; Balaraj Bhatla v.
Romesh Chandra, A.I.R. 1960 Ail. 157. Also, see cases cited in State of Kerala v.
Sankaran, A.I.R. 1960 Ker. 392.
15. See, for instance, Pakhar Singh v. State, A.I.R. 1958 Punjab 294; State v.
Balwant Ganapati, (1961) Bom. L.R. 8 7 ; Mahal Chand v. State, A.I.R. 1961 Cal. 123,
Also see Farid Ahmed v. State A.I.R. 1960 Gal. 32 ; Badri Lai v. State, A I.R. 1960
Raj. 184.

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556 CASES AND COMMENTS

by a High Court depended whether Art. 20 (3) was violated, or

not, 1 6 by compulsory obtaining of fingerprints from the accused.17
With regard to handwriting, the case presented two situations :
(i) obtaining of handwriting of the accused by the police during in-
vestigation and (ii) obtaining of handwriting from him at the direction
of the court under section 73 of the Indian Evidence Act. There is
no provision either in the Criminal Procedure Code 18 or in the Identi-
fication of Prisoners Act which empowers the police to obtain the
handwriting from the accused by force during investigation. There-
fore, if the police at the investigation stage compelled the accused to
give his handwriting, it was illegal, being not authorised by
law 1 9 , and if the accused voluntarily gave his handwriting,
the constitutional question could not arise. Further, the direction
under sec. 73 of the Indian Evidence Act has been held to be merely
of permisive nature, that is, accused cannot be compelled to obey
the direction, by the various High Courts. 20 However, the Supreme
Court in the case under comment seems to have assumed otherwise?.21
It appears to be an omission in the judgment not to expressly state
that the word " direction " signified order of the court demanding
obedience or like, owing to conflict of judicial opinion on the
point.

16. Some of the cases which upheld compulsory taking of finger impressions of
the accused are : Pakhar Singh v. State, A.I.R. 1958 Punj. 294 ; Mahal Chand v. State,
A.I.R. 1961 Gal. 123. For contrary cases, see, Damodaran v. State, A.LR. 1960
Kerala 2 9 ; Brij Bhushan v. State, A.LR. 1957 M. P. 106; Rajamuthukoil Pillai v.
Periyasami Nadar, A.I.R. 1956 Mad. 632; Bhaluka Behara v. State, A.I.R. 1957
Orissa 172; Balraj v. Ramssh Chandra, A.I.R. 1960 All. 159. In some cases a
distinction was made between compelling the accused to give his finger impression
and taking it by force from him. The latter was held not to be violative of
the Article, even though the former was. See, In re Palani Goundan, A.I.R. 1957
Mad. 54:6 ; Nazir Singh v. State, A.I.R. 1959 M.P. 411 ; and In re Gouinda Reddy, A.I.R.
1958 Mys. 150.
17. See supra note 13.
18. Tarini Kumar v. State, A.I.R. 1960 Gal. 318.
19. CfBhondar v. Emperor, A.I.R. 1931 Gal. 601 ; Deoman v. State, A.I.R. 1959
Bom. 284.
20. Note the following cases: State v. Parameswaran, A.I.R. 1952 T.G. 482 ; and
Sailendra Nath v. State, A.I.R. 1955 Gal. 247. Also see badrilal v. State, A.I.R. 1960
Raj. 184; and Ram Sarup v. State, A.I.R. 1958 All. 119. C o n t r a : Brij Bhushan v.
State, A.I.R. 1957 M.P. 107 ; Rajamuthukoil Pillai v. Periyasami Nadar, A.I.R. 1956
Mad. 632.
21. The very fact that the learned judges considered the constitutionality of
section 73 of the Evidence Act suggests that they took the word "direct" in that
sectiga to mean "compel".

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 CONSTITUTIONAL LAW—ARTICLE 2 0 ( 3 ; 557

Coming to the specific question whether giving of handwriting

by the accused for purposes of comparison comes within the coverage
of the words " to be a witness ", the court's conclusion was that it did
not. It was because, in its view, when an accused person was called
upon to give his handwriting " he is not giving any testimony in the
nature of a 'personal testimony" which must depend upon his voli-
tion. It may be stated against this view that writing is not a purely
mechanical act; it requires application of intelligence and attention.
A person cannot write unless he has " personal knowledge " of the
language. It may be a mechanical act for a person who is well versed
in language but not for a person who is not and he must exercise
conscious process of the mind. Whereas finger impression can be
obtained without active co-operation of the accused, handwriting can
only be obtained when the accused actively co-operates. Depending
upon the desire of a person, he may write in different ways. Without
in any way commenting on the wisdom of the conclusion of the court
with regard to handwriting, it would have been better if the court had
given its verdict in the light of this distinction between handwriting
and finger impression, instead of mechanically grouping the two.^ It
may be noted that some of the High Courts which upheld compulsory
taking of finger impressions of the accused, had rejected forcing the
accused to write for the purpose of comparison. 23
If some of the conclusions of the court are detached from the
reasoning on which they are based, the results may not be happy.
For instance, in conclusion numer 5 stated above, the court states:
" ' 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

22. It may be stated in support of the court's conclusion that the purpose of
obtaining handwriting is not to determine the sense of the matter written but to
iecure a physical comparison between the written specimen and other writing. For
& fuller treatment of the subject, see the Indian Law Institute's study Self-incrimina-*
Hon : Physical and Medical Examination of the Accused (in the press).
23. See Farid Ahmed v. State, A.I.R. I960 Gal. 32 (handwriting violating the
privilege); Mahal Chand v. State, A.I.R. 1961 Gal. 123 (thumb impression not violat-
ng the privilege) ; Badrilal v. State, A.I.R. 1960 Raj. 184-. See also State v. Ram
Kumar, A.I.R. iy57 M.P. 73 and State v, Saakaran, A.I.R. 1960 Ker. 392, where
>btaining of handwriting from th^ accused was held to violate Art. 20 (3) of the
Constitution and the courts did not maintain any distinction between fingerprints (the
Kerala case on fingerprints to be noted is Damodaran v. State, A.I.R. 1960 Ker. 29)
wid handwriting.

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558 CASES AND COMMENTS

Court or otherwise." This raises the questions : What about a dumb

witness who cannot speak but explains certain things by indications of
his body ? What about lie-detector test 24 in which the accused does
not speak but the test records the physiological reactions of the accused
through the operation of his mental faculties ? In these examples, the
acts are certainly volitional and are based on the " personal testi-
mony " of the accused. They would certainly be covered by
Art. 20(3) on the basis of the reasoning of the court.
At some places it is difficult to understand the reasoning of the
court. For instance, it is stated at one place 25 : " 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.5'26 A specimen handwriting or
signature or finger impression from the accused certainly does have a
tendency to incriminate him and may in fact incriminate him in those
cases in which he is the real offender, though it is true that by itself
they will be of no use unless compared with the other specimens. How-
ever, this may apply to oral testimony also. An oral statement by the
accused may have a tendency to inculpate him though by itself considered
without other circumstantial evidence that oral statement may not be
sufficient to convict him. Consider the following example : Suppose a
person is found dead and 'A' is the accused. He is asked the follow-
ing questions : Were you at the spot where the dead body was found ?
Did you have a gun ? Did you shoot the victim ? The answer to the first
question may have a tendency to incriminate him, though by ' itself '
it may not be sufficient to give rise to any inference against him. It is
24. Assuming that it is adopted in India as a criminal investigation tool.
25. At another place the court in support of its view states : "Furthermore it
must be assumed that the Constitution makers were aware of the existing law, for
example, S. 73 of the Evidence Act or Ss. 5 and 6 of the Identification of Prisoners
Act (XXXIII of 1920)". A.I.R. 1961 S.C. 1814. Is this correct approach to the
interpretation of the Constitution ? May be the Constitution makers intended to
prohibit these kinds of taking evidence from the accused. Art. 13 (1) of the Constitu-
tion which states, "All laws in force in the territory of India immediately before the
commencement of this Constitution, in so far as they are inconsistent with the
provisions of this Part, shall, to the extent of such inconsistency, be void", clearly
assumes that there may be laws existing on the eve of the Constitution which arc
contrary to the Fundamental Rights.
26. A.I.R. 1961 S.C. 1815.

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 CONSTITUTIONAL LAW—ARTICLE 2 0 ( 3 ) 559

the consideration of this answer with other answers (namely, to ques-

tions 2 and 3) or other circumstantial evidence that may convict him.
In this respect, the concurring opinion suffers to a greater extent than
the majority opinion. 27
In conclusion, however, it may be stated that the court's judg-
ment that Art. 20(3) does not apply to compulsory obtaining of finger
impressions and handwriting from the accused is in the right direction,
for by permitting this there is no danger that the police would be
led to sit comfortably " in the shade rubbing red pepper into a poor
devil's eyes than to go about in the sun hunting up evidence "—one
of the main arguments in favour of the privilege against self-
incrimination. There is no danger that an innocent person will be
convicted, that the police will be led to use " third degree " methods,
and that the police will become inefficient.
S. Jf. Jain*

The State of Orissa v. Bhupendra Kumar Bose—Orissa Municipal

Election Validating Ordinance, 1959.
The recent judgment of the Supreme Court in State of Orissa
v. Bhupendra Kumar Bose J reversing a Bench decision of the Orissa
High Court 2 requires careful study as it raises an important question
as to how far the Legislature can directly annul the judgment of a
High Court granting relief to a citizen.
In the elections to Cuttack Municipality held early in 1958 the
Congress Party (which is the ruling party) came out successful with
narrow margins of votes and the chairman was elected from that
party. One of the defeated candidates (who belonged to a different
party) by an application under article 226 of the Constitution chal-
lenged the validity of the said election on the ground that the electoral

27. The main argument of the concurring judges in favour of non-applicability

of Art. 20 (3) to handwriting and finger impressions was that "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 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. T h a t is
why it must be held that by giving these impressions or specimen handwriting, the
accused person does not furnish evidence against himself". Ibid, at 1820.
* Senior Research Officer, Indian Law Institute, New Delhi.
1. A.LR. 1962 S.C. 945.
2. O.J.C. No. 12 of 1959 reported in I.L.R. 1959 Cuttack p. 203,

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