GULAM NABI Vs. STATE

JUDGEMENT

(1.) THIS is revision application directed against an order of the Special Magistrate Srinagar (Mr. Ram Saroop) dated 25th March 1957. The learned Magistrate has pointed out that

(2.) THE learned Counsel appearing on behalf of the applicant has tried to enunciate a broad proposition and according to him of universal applicability which is to the effect that a presumption should be drawn that if the police has secured and thumb impression from an accused person during investigation, it was drawn by compulsion. In support of this proposition, he has argued in very eloquent terms that the police are armed with very vast powers which are not most often misused by them against a defenceless unfortunate human being in their custody, and as such the element of free will in an accused person must be presumed to be non-existence as long as he is attending police investigations. In this connection he has drawn my attention to a single Bench ruling of the Madras High Court reported as Rajamutukoil Pillai v. Periyasami Nadar AIR 1956 Mad 632 (B) in which it has been held by the learned Judge

(3.) WITH all respect I do not find myself in agreement with this view of the learned Judge. Merely asking an accused person to give his thumb impression would not amount to compulsion. The accused may of his own accord in order to prove his innocence come forward to give his thumb impression. It would not make any difference if the Magistrate has asked him to give a thumb impression. What is prohibited would become clear from the proposition enunciated by the learned Judge himself which is to the following effect: that the accused cannot be compelled to give his thumb impression as directed by the Magistrate. This would abundantly show that the compulsion must be there. The same learned Judge has in In re Sheikh Muhammad Hussain taken quite a contrary view to his previous view expressed in AIR 1956 Mad 632 (B ). In para 4 of his judgment the learned Judge has observed that: But so far as I am aware, their Lordships of the S. C. have not held that any statement taken by the police or anything done by the police in the course of an investigation which is subsequently produced before the Court as evidence is hit by Sub-clause (3) of Article 20 of the Constitution. Then follows the significant sentence in the same para: In my opinion the thumb impression taken by the police on a slip of paper which was later on produced in Court cannot amount to testimonial compulsion. A similar view has been taken in Sailendra Nath Sinha v. State wherein it has been laid down; The decision of the is not in our opinion any authority for the proposition that the direction to take specimen writing of a person who is accused of an offence amounts to a direction compelling him to give evidence against himself. With this view I find myself in respectful agreement. The whole matter would boil down to this : that a direction by a police officer asking the accused to furnish his thumb impression or a specimen writing would not amount to testimonial compulsion so as to bring it within the mischief of Article 20 (3 ). But if the accused person has been compelled to give his thumb impression or specimen writing, it would certainly be hit by Article 20 (3 ). But this fact of compulsion has to be proved like any other fact by evidence and not to be presumed. This has been held in Sunder Singh v. State wherein it has been laid down that No presumption of compulsion can be raised in every case where the admission of evidence has not been expressly concluded by statute, To assume compulsion in all cases where recovery of incriminating articles is made during the course of investigation would be to brush aside a very strong circumstantial evidence and this could not have been the intention of the framers of the constitution in framing Article 20 of the Constitution.