MAHAL CHAND SETHIA Vs. STATE

JUDGEMENT

(1.) This Revisional application is directed against an order by the Additional Chief Presidency Magistrate, Calcutta, permitting the Investigating Officer to take finger impressions of the petitioner Mahal Chand Sethia for the purpose of investigation of a case under Ss. 120B/420/466 and 467 of the Indian Penal Code, pending before him. Mr. Sasthi Charan Roy for the petitioner has urged that such direction offends against the Constitutional provisions of Art. 20(3), which provides that no person accused of any offence shall be compelled to be a witness against himself. Mr. Roy has referred to a decision of the Supreme Court (M. P. Sharma v. Satish Chan-dra, where it was held that an accused could not be compelled to produce an incriminating document or a document which might prove incriminating, and that compulsory production of such document was included within the term "the accused being compelled to be a witness against himself". In that case their Lordships of the Supreme Court did not have to consider the question of thumb impression. But Mr. Roy seeks to extend the same principle and urges that the direction on an accused to give his thumb impression is also to compel him to be a witness against himself and this thus offends against the provisions of Article 20(3) of the Constitution.

(2.) In support of his contention Mr. Roy has referred to a decision of a single Judge of the Madras High Court (Raja Mulhukoil Pillai v. Periyasami Nadar AIR 1956 Mad 632) where the learned Judge held that in view of Clause (3) of Article 20 of the Constitution, an accused could not be compelled to give his thumb impression for the purpose of comparison with a prosecution document; but the same learned Judge, Somasundaram J., appears to have changed his opinion and in Re Sheikh Muhammad Hussain, he held that there was nothing in the Article to prevent the prosecution from using as evidence a thumb impression which had been taken by the police in course of investigation. Mr. Harideb Chatterji, appearing for the State, has also referred to a subsequent decision of Ramswami, J. of the Madras High Court (Subayya Gounder v. Bhoopala Subramanian, who held after reviewing the cases of the different High Courts that there was nothing in Article 20(3) of the Constitution to prevent the prosecution from seeking to identify an accused by taking his finger-print or foot-print or other physical measurement which did not depend on the volition off the accused. Identification of the Prisoners Act, 1920 which extends to whole of India, provides that measurements include finger-impressions and foot-print impressions. Section 4 of the Act provides that any person who has been arrested in connection with an offence punishable with rigorous imprisonment for a term of one year or more, shall, if required by a police officer, allow his measurements to be taken in the prescribed manner. Section 5 provides that a Magistrate, if satisfied that for the purpose of investigation or a proceeding, it is expedient to direct any person to allow his measurements or photographs to be taken, he may make an order to that effect and in that case the person in question shall allow his measurements or photographs to be taken by a police officer. Mr. Roy has urged that Ss. 4 and 5 of the Identification of Prisoners Act have been held to be ultra vires by a Bench of the Madhya Pradesh High Court (Vide Brij Bhushan Raghunandan Pro-sad v. The State. In that case, however, their Lordships of the Madhya Pradesh High Court were not dealing with Identification of the Prisoners Act, 1920, which is a Central Act, but Madhya Bharat Identification of Prisoners Act of Sambat Year 2008 i.e. of 1951, which permitted a magistrate to give a direction of the taking of thumb impression and specimen handwrit-ing in the course of investigation by the police. This section was held to be ultra vires of Article 20(3) of the Constitution. In that connection their Lordships observed that giving of thumb impression and specimen handwriting were positive acts of the accused and, therefore, the accused could not be compelled to give such thumb impression, specimen writing or signature which might be used as evidence against him.

(3.) So far as giving of thumb impression, however, it has been held by the Madras High Court, as already stated, in its latest decision that giving of the thumb impression is not a positive volitional act of the accused, because the pattern of ridges on the thumb or finger is already there, and without any volition on his part, the impression of the pattern may be transferred on paper for the purpose of comparison. Therefore, in so far as evidence means volitional giving of evidence or volitional act, taking of thumb impression is not such an act.