RANJIT RAM Vs. STATE

JUDGEMENT

(1.) I agree with my brother Uniyal, whose judgment I had the advantage to read, that the second question must be answered in the negative. Since the question is an important one, I would briefly state my reasons. The rule of exemption from compulsory self-incrimination in the English law is not regarded as a part of the law of the land of Magna Charta or the due process of law but is regarded as separate from, and independent of, due process and came into existence not as an essential part of due process but as "a wise and beneficent rule of evidence developed in the course of judicial decision". The wisdom of the exemption has never been universally assented to; many doubt it today, and it is best defended not as an unchangeable principle of universal justice, but as a law proved by experience to be expedient. It has no place in the jurisprudence of civilised and free countries outside of the domain of the common law and is nowhere observed in the search for truth outside the administration of the law. See Twining v. New Jersey, (1908) 211 U.S. 78 : 53 Law Ed 97. The Fifth Amendment of the American Constitution providing that ''Nor shall any person be compelled, in any criminal case, to be a witness against himself which is based on the English common law, has been criticised, if not ridiculed.

(2.) The fundamental right of a person accused of any offence that he shall not "be compelled to be a witness against himself", conferred by Article 20(3) of our Constitution, is based on the English common law and the Fifth Amendment. It is not disputed that the immunity conferred by our Constitution is from compulsion to make an oral statement against oneself as well as from compulsion to produce documentary evidence against oneself. Neither oral nor documentary testimony can be compelled from an accused person; see State of Kerala v. Sankaran Nair, AIR 1960 Kerala 392 (FB) and the case of M.P. Sharma 1954 SCR 1077 : (AIR 1954 SC 300). The immunity is (1) from compulsion (2) of being a witness and (3) against oneself. Article 20(3) is not infringed if an accused person is compelled to be a witness against someone else and not himself, or if he is compelled to do an act which does not amount to his being a witness, or if he becomes a witness against himself voluntarily and not on account of compulsion. In the present case I find that all the three elements which are required for infringement of the guarantee of Article 20(3) are lacking.

(3.) Coming first to the element of compulsion, I agree with my brother Uniyal that the appellant was not compelled to give a sample of his writing. All that happened is that learned Sessions Judge asked him to write out something and he readily wrote it out without any objection or protest. So long as he did not object or protest, there could not arise any question of his being compelled. Mere asking or directing a person to do an act does not amount to compelling him to do it; see Mohammad Dastagir v. State of Madras, AIR 1960 S.C. 756 and State v. Parameswaran Pillai, AIR 1952 Trav.-Co. 482 (FB). The learned Sessions Judge directed the appellant to write certain words in exercise of the power conferred upon him under Section 73 of the Evidence Act. In the case of Parameswaian Pillai, AIR 1952 Trav-Co 482 it was held by the Full Bench that a person who is directed to write something has an option, to refuse to write it and cannot be forced to write it. In the case of Mohd. Dastagir, AIR 1960 SC 756 he was asked to hand over a certain incriminating article which was in his pocket and he handed it over and Imam J. held that since it was within his power to refuse to hand it over, he could not be said to have been compelled to do so. There is this distinction between the two cases that in the former there was a sanction of a statutory provision behind the act whereas in the latter case there was no such sanction. In Ram Swarup v. State, AIR 1958 All 119 it was held by Raghubar Dayal and James JJ. that a person who is directed by a court to write any words cannot refuse to write them and that if he does refuse, the court will be entitled to draw an adverse presumption against him. Earlier Raghubar Dayal J., however, had observed that a person directed by a court under Section 73 to give a wilting may refuse to give it and that the refusal does not amount to an offence though it might amount to contempt of the court. I am of the view that the direction contemplated by Section 73 is not complusion, that Section 73 is only an enabling provision which confers power upon court to give a certain direction and does not impose an obligation upon the person to comply with it and that there is no other provisions obliging a person to write any words at the dictation of the court. If a person were to be under an obligation to carry out the direction, the obligation would have, been imposed upon him in express or implied terms; it cannot be implied merely from the conferment of a power upon a court to give the direction. What is meant by Section 73 is that a court may direct a person to write any words but it is open to the person to refuse to write them. There is nothing in the section in the nature of a threat and even if a direction coupled with a threat amounts to compulsion, there is no compulsion in this case. There must be something besides mere direction to convert direction into compulsion and there is no such thing in Section 73. Had the appellant protested against the direction and the court insisted upon his complying with it, it could be said that he was compelled, but nothing like this happened. I do not agree with the contention advanced on his behalf that compulsion is tantamount to absence of voluntary offer and that if he was not cognizant of his right to refuse to comply with the direction and thought that he had no option, the mere direction amounted to compelling him. The mere absence of a warning that he was free to refuse will not bring about compulsion. If an act does not involve coercion, violence or brutality to the person it is not compulsion; see Irvine v. California, (1954) 34V U.S. 128 at p. 133 : 98 Law Ed. 561 at p. 569. Black and Douglas JJ. said at page 141 that the Fifth Amendment forbids the use of physical torture, psychological pressure, threats of fines, imprisonment or prosecution or other governmental pressure to force a person to testify against himself. If physical force is used there would be compulsion as held in Rochin v. California, (1952) 342 U.S. 165: 96 Law Ed 183. Rochin was charged with possession of morphine on the basis of evidence that when confronted by a police officer with morphine lying near him he swallowed it, that the force used by the police to extract it from his mouth proved unsuccessful, that he was taken to a hospital where a doctor forced an emetic into his stomach against his will and that the stomach pumping produced vomiting containing morphine. On account of the force used against him he was held to be compelled. In Breithaupt v. Abram, 352 U.S. 432: 1 Law Ed. 2d, 448 the accused was charged with manslaughter arising from an automobile collision involving a truck driven by him while intoxicated. The evidence of intoxication was that on examination of a sample of blood extracted from his body while he was lying unconscious, it was found to contain alcohol. The Supreme Court distinguished the case of Rochin because there was nothing brutal or offensive in the taking of the sample of blood when the accused was unconscious and held that the absence of conscious consent without more did not constitute compulsion. It is not easy to reconcile the finding that Rochin was compelled with the finding that Breithaupt was not compelled, though the ultimate decisions in the two cases can be reconciled on the ground that in Rochin's case, (1952) 342 U.S. 165: 96 Law Ed 183 the compulsion was to produce an incriminating evidence whereas in Breithaupt's case, 352 U.S. 432: 1 Law Ed 2d 448 the compulsion was to produce an article (vis blood) which itself was not an incriminating evidence.