STATE OF BOMBAY Vs. KATHI KALU OGHAD

JUDGEMENT

(1.) These appeals have been heard together only in so far as they involve substantial questions of law as to the interpretation of the Constitution, with particular reference to cl. (3) of Art. 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 Chandra, 1954 SCR 1077 : (AIR 1954 S C 300), 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, in so far as they had any bearing on the questions of law relating to the interpretation of cl. (3) of Art. 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 cl. (3) of Art. 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 S. 302, read with S. 34 of the I. P. C., as also under S. 19 (e) of the Indian Arms Act (XI) of 1878). The Trial Court found him guilty of those charges and sentenced him to imprisonment for life under S. 302, read with S. 34 of the I. P. C. and to a term of two years rigorous imprisonment 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 as raised as to the admissibility of the specimen writings contained in Exs. 27, 28, and 29, in view of the provisions of Art. 20(3) of the Constitution. It is an admitted fact that those specimen writings of the accused had been 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 cl. (3) of Art. 20. The plea of the accused that he was forced by the Deputy Superintendent of Police to give those writings has not been accepted by the learned trial Judge. But those documents have been excluded from consideration, as inadmissible evidence, on the ground that though there was no, threat or force used by the police in obtaining those writings 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 cl. (3) of Art. 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 Art. 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 Ss. 380 and 457 of the I. P. C., as also under s. 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 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 revisions in the High Court, both the revisional applications were dismissed. The convicted person prayed for and obtained the necessary certificate of fitness under Art. 134 (1) (e) of the Constitution from the High Court of Punjab. The points raised in this Court were; (1) that S. 27 of the Indian Evidence Act is violative of Art. 14 of the Constitution; and (2) the impressions, of the appellant'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 Art. 20 (3) of the Constitution. Though the provisions of Ss. 5 and 6 of the Identification of Prisoners Act (XXXIII of 1920) have not in terms been attacked as ultra vires Art. 20 (3) of the Constitution, the effect of the argument based on that article is to bring into controversy the constitutionality of Ss. 5 and 6 of the Act. As a mater of fact, one of the propositions of law to be urged in support of the appeals is stated in these terms; "that Ss. 5 and 6 of the Identification of Prisoners Act, 1920, read with Art. 20 (3) of the Constitution render the evidence of measurements to be inadmissible".