TMI Blog1957 (8) TMI 37X X X X Extracts X X X X X X X X Extracts X X X X ..... Pokhar Singh and Mehtab Singh which is entered as Criminal Revision No. 946 of 1957. 3. Mehtab Singh was convicted by the Magistrate, Hissar, under Section 19 (f) of the Indian Arms Act and sentenced to two years' rigorous imprisonment. On appeal, the Sessions Judge upheld the conviction but reduced the sentence to nine months' rigorous imprisonment This sentence was ordered to run concurrently with the sentence awarded in the connected case under Section 411, Indian Penal Code. Criminal Revision No. 947 of 1957 has been filed by Mehtab Singh from his conviction and sentence under Section 19 (f) of the Indian Arms Act. 4. Pokhar Singh was convicted under Section 19 (f) of the Indian Arms Act and the Magistrate passed a sentence of two years' rigorous imprisonment further ordered him to pay a fine of Rs. l,000/- or in default to undergo further rigorous imprisonment for six months. On appeal, the Sessions Judge maintained the conviction but reduced the sentence to nine months' rigorous imprisonment and a fine of ₹ 200/- and in default Pokhar Singh was to undergo two months' further rigorous imprisonment. The sentence of imprisonment was ordered t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taken into possession by the police. On interrogation by Shri Ram Chander P. W. 24, Station House Officer, Hissar City, accused Mehtab Singh on 24-4-1956, made a statement, Exhibit P. K., in the presence of P. W. 5 Mogh Singh Lambardar and P. W, 6 Bawa Harparshad, to the effect that he had buried one gun in three pieces In a dilapldated place called Gujri Mahal In Hissar proper and offered to get it recovered. He then led the police party to the spot and after digging the earth, the gun was produced in three pieces wrapped In cloth, vide memo. Exhibit P. L. 7. An application, Exhibit P. A/A, was made to the Magistrate on 30-4-1956, for obtaining thumb, finger and palm impressions of the two accused for comparison with the impressions on the pieces of glass. On the same day. Magistrate's order was obtained and the impressions were taken in his presence. It does not appear from the record that the accused protested or expressed their unwillingness to the taking of the impressions of their thumbs, fingers and palms. 8. After completion of the Investigation, the accused were sent up to stand their trial under Sections 457/380 and 411, Indian Penal Code, and by a separate c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ory and has emerged in consequences of historical conflicts and convulsions dating from mediaeval times in English history. At common law, accused enjoyed no such immunity and he was required to answer upon oath as to charges made against him till the end of sixteenth century. The inquisitorial principle which then dominated and held sway in England has survived up till now on the continent of Europe where even today criminal trial still commences with a rigorous interrogation of the accused. 15. The long struggle of the civil Courts to resist the usurpation of the ecclesiastical Courts led to the assertion of the maximum nemo teneture seipsum accusare which was Put forward for the first time in 1590 in Cullier v. Cullier, (1582-1603) 78 ER 457 (C). The practice of questioning the prisoner died out after the Revolution of 1678 and the rule against self-incrimination was extended from criminal Courts to civil Courts and was made applicable to the parties as well as to witnesses. Under this privilege no witness or party is compellable to answer any question or to produce any document the tendency of which is to expose such a person to a criminal charge or penalty. In England, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Courts should unite to keep the privilege strictly within the limits dictated by historic fact, cool reasoning and sound policy. See Wigmore on Evidence, Vol. VIII Section 2251, pages 317-319. 21. The true scope of the constitutional inhibition seems to me to prohibit compulsion in the matter of testifying either by word of mouth or in writing. What is forbidden is the use of force in the process of disclosure by oral statements or by written words of testimonial character. The danger, prevention of which the Constitution visualises, is the interference with the volitional faculties of a person so that he may not be terrified into making depositions as a witness. The principle is confined to protecting disclosure as a witness. Truth runs the risk of being smothered if resort is had to compulsion in matter of testimonial utterances. This privilege is based on the policy of encouraging persons to come forward with evidence in Courts of justice by protecting them from injury or needless annoyance in consequence of so doing. But truth is not endangered where compulsion is used for exhibition of the body or of any identifying marks on it, for purposes of comparison with e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the presence of the Jury, so as to enable them to discover whether or not a certain mark could be seen imprinted thereon. Such an examination could not, in the very nature of things lead to a falsehood. In fact, its only object is to discover the truth; and it would be a sad commentary upon the wisdom of the framers of our Constitution to say that by the adoption of such a clause they have effectually closed the door of investigation tending to establish the truth. 23. Professor Wigmore says- Prom the general principle (ante, Section 2263) it results that an inspection of the bodily features by the tribunal or by witnesses cannot violate the privilege, because it does not call upon the accused as a witness; i. e., upon his testimonial responsibility. That he may in such cases be required sometimes to exercise muscular action -- as when he is required to take off his shoes or roll up his sleeve -- is immaterial; unless all bodily action were synonymous with the testimonial utterances; for, as already observed (ante, Section 2263), not compulsion alone is the component idea of the privilege, but the testimonial compulsion. What is obtained from the accused by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d's right to Immunity from self-incrimination is not violated when he is compelled to exhibit himself or a part of his body to the Court or to allow a record of his finger -prints to be taken; Vide People v. Sallow, 165 New York Supp 915 (N). 26. In People v. Totten, 38 North Eastern Rep 1 (O), in a larceny trial, it was held lawful to obtain from the wife of the defendant, without the latters' consent, his shoes for comparison, of heel markings with those found at the place of theft. 27. In Novak v. District of Columbia, 49 Atlantic Reporter (2d) 88 (F), the defendant was prosecuted for driving an automobile under the influence of Intoxicating liquor. It was held that his constitutional right was not infringed by offering in evidence the record of analysis of a specimen of urine taken from him immediately after his arrest. In similar circumstances, taking of blood specimen from a driver of an automobile for finding alcoholic contents was not considered violative of constitutional rights not to be compelled to give testimony against himself, vide People v. Tucker, 198 Pacific Reporter (2d) 940 (946-947) (Q); and State v. Cram, 164 Am LR 952 (R). 28. In Swingle v. U ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of India. I see no justification I in striking them down as violative of the constitutional guarantee against testimonial compulsion, as that will have the effect of effecting and hindering administration of criminal justice in a large number of cases and that would result In effectively preventing Courts from arriving at truth. Apart from exclusion of finger prints as proof of Identification in cases where consent of persons charged with crimes is not forthcoming, it will not be possible to detect or prevent crime by measuring or photographing the accused person, by removing or replacing of his garments or shoes for identification or even requiring him to move his body to enable this to be done. Medical examination without consent for ascertaining insanity, existence of contagious disease for purposes of segregation of the person, or disease in general, the making of a blood test to ascertain paternity or blood test or urine analysis for ascertaining alcoholic content, or finding of scar or other physical peculiarity for purposes of identity, or other scientific aids requiring cooperation of the accused for ascertaining his guilt or innocence, shall have to be placed und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the search of documents at different places. The District Magistrate ordered investigation of the offences and issued warrants for simultaneous searches at 34 places. Records were seized in consequence of the searches. The petitioners in that case presented a petition to the Supreme Court under Article 33 of the Constitution praying that the search warrants be quashed being illegal and unconstitutional, and asked for return or the documents seized. It was urged that a search to obtain documents for investigation into an offence amounted to a compulsory procuring of incriminatory evidence from the accused and was hit by Article 20(3) of the Constitution. Repelling the contention raised on behalf of the petitioners their Lordships of the Supreme Court held that there was no basis in the Indian Law for the assumption that a search or seizure of a thing or a document was in itself to be treated as compelled production of the same. Analysing the terms in which this right had been declared in our Constitution, it was said that it consisted of the following components- (1) It is a right pertaining to a person accused of an offence ; (2) It is a protection against compul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Cal WN 986: (AIR 1935 Cal 308) (Y), Jack J., said that he would be inclined to hold that Section 73 of the Indian Evidence Act included an accused person. 41. The High Court of Bombay in Emperor v. Ramrao Mangesh, ILR 56 Bom 304: (AIR 1932 Bom 406) (Z), also expressed the view that specimen signatures and writings made by an accused person during the course of investigation were admissible in evidence at the trial of the accused for the offence of forgery. 42. In a Full Bench decision of Rangoon High Court in Emperor v. Nga Tun Hlaing, AIR 1924 Rang 115 (118) (Z1), May Oung J., said- ........... ....there does not appear to me to be anything in common between this power to examine the accused (under Section 343, Criminal Procedure Code) and the power to take his finger impression under Section 73, Evidence Act, unless indeed it can be held that by directing the accused to make his finger impression the Court is, in effect, compelling him to provide evidence against himself. Such a contention is, however, in my view, inadmissible, since what really constitute the evidence, viz., the ridges on his thumb are not provided by him any more than the features of his counte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g of Somasundaram J. and Rama-swami Goundan J. held that though the accused cannot be compelled to produce any evidence against himself, such evidence can be taken or seized provided, of course, such taking or seizure is legally permissible. 49. In Brij Bhushan Raghunandan Prasad v. The State, AIR 1957 Madh. Pra. 106 (Z-9), a Division Bench held Section 5 of the Madhya Bharat Identification of Prisoners Act to be repugnant to Article 20(3) of the Constitution and remarked that the direction given by the Magistrate to take thumb impression and specimen handwriting of the accused was illegal. A view to similar effect was also expressed in, Nelvely Desom, Nattalam Pakuthy v. Sirkar Prosecutor, AIR 1950 Trav. Co. 5 (Z-10). For the reasons given in detail in the earlier part of my judgment, I do not and myself in agreement with the above view. 50. My conclusion is that the taking of thumb, finger and palm impressions of the accused in the Court of the Magistrate under his directions was not in contravention of Article 20(3) of our Constitution. 51. The prosecution has also based their case against Pokhar Singh on the recovery of fire-arms, Exhibits P.1 to P.5, at his Instance. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ered by the accused is inadmissible in evidence if the police already knew where they were hidden. I do not think how this authority can assist either of the two accused as it is not shown that the police were already aware of the hiding places of these articles. It is not a case of matter being already known to the police and the latter going through the formality of a re-discovery. As pointed out by then Lordships of the Privy Council in Pulukuri Kottaya v. Emperor, AIR 1947 PC 67 (Z-14) - The condition necessary to bring the section (Section 27) into operation is that discovery of a fact in consequence of information received from a person accused of any offence in the custody of a Police Officer must be deposed to and thereupon so much of the information as relates distinctly to the fact thereby discovered may be proved. The section seems to be based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true, and accordingly can be safely allowed to be given in evidence; ........... . 56. In Ramkishan Mithanlal Sharma v. State of Bombay, AIR 1955 SO 104, para 22 (Z-15), the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n property in terms of Section 411, Indian Penal Code. The facts of this case leave room for reasonable doubt as to the guilt of Mehtab Singh. On this evidence it will not be safe to uphold his conviction. Setting aside his conviction and sentence under Section 411, Indian Penal Code, I acquit Mehtab Singh. 63. Criminal Revision No. 946 of 1957 is accepted to the extent Indicated above. 64. In Criminal Revision No. 947 of 1957, Mehtab Singh, on the above facts, was found guilty of the offence under Section 19 (f) of the Indian Arms Act for being in possession of the gun which was recovered at his Instance from behind Gujri Mahal. It is not safe to hold that the gun which was concealed there, was in the possession of Mehtab Singh. I set aside his conviction and sentence under Section 19 (f) of the Indian Arms Act and acquit him. 65. In Criminal Revision No. 948 of 1957, Pokhar Singh, was found guilty under Section 19 (f) of the Indian Anns Act and was sentenced to undergo nine month's rigorous imprisonment and a fine of ₹ 200/- was also imposed upon him. This sentence was ordered to run concurrently with the sentence imposed upon him under sections 457/380, Ind ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
