FARID AEMED Vs. STATE

JUDGEMENT

(1.) THIS Rule was issued upon the District Magistrate of Howrah to show cause why an order of a learned Magistrate dated May 1, 1958, allowing the investigating officer to take the specimen writings and signatures of the petitioner should not be set aside The petitioner is an accused in a case under the Bengal Excise Act. The point involved is whether the impugned order infringes the petitioner's fundamental right guaranteed under Art. 20 (3) of the Constitution. Before we deal with the point, we must say that the Order concerned could not have been made under sec. 73 of the Indian Evidence Act, as the Order was made in the course of an investigation. It is not disputed that there is no provision in the Code which allows a Magistrate to make such an order. Art. 20 (3) is in these terms: "no person accused of any offence shall be compelled to be a witness against himself. "

(2.) THAT the petitioner is a person accused of an offence admits of no doubt. There is also no doubt that the guarantee under Art. 20 (3) is against "testimonial compulsion". Nevertheless, it is necessary to construe the meaning of the phrase "to be a witness against himself". For a little while, it was an erroneous thought that the expression was confined to the oral evidence of an accused when he gave evidence. "to be a witness against himself" would, in our view, mean "to furnish evidence against himself". Such evidence can be furnished as much by word of mouth as by hand. We see nothing in the language of the Article to confine the guarantee to parole evidence. As their Lordships of the Supreme Court observed in Sharma v. Satischandra (1) (A. I. R. 1954 S. C. 300) :

(3.) THE guarantee is against compelled testimony, both in and out of court. In bur view, both the points are concluded by the decision of the Supreme Court. Accordingly, we would respectfully dissent from the Bench decision of this Court reported in (2) A. I. R. 1955 Cal. 247 (Sailendra Nath Sinha v. The State ). In the result, we must allow this application, set aside the Order of the learned Magistrate, dated May 1, 1958. and make the Rule absolute. Let the records be sent down at an early date.