MAHIPAL MADERNA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS a reference by Sessions Judge, Jaipur City, dated April 30, 1970, for quashing the order of Special Magistrate, Jaipur, dated April 6, 1970. In order to appreciate the controversy, it is necessary to state some of the facts bearing on it.

(2.) ONE Dilip Singh is alleged to have been beaten in room No. 42 of Vivekanand Hostel, in Jaipur, on February 3. 1970, at about 2. 30 p. m. The First Information Report of the incident was lodged the same day at Police Station Gandhinagar, and a case was registered for offences Under Sections 307 and 452 read with Section 149, and Section 148, IPC The room was inspected by the Investigating Officer on February 4, 1970, in the presence of "motbirs", and some hair were found on and under the bed of Dilip Singh and on the wall. They were taken in police custody under a memorandum (B/76) for purposes of comparison. Dilip Singh succumbed to his injuries on February 14, 1970. The investigation of the case was then made over to the Central Bureau of Investigation, Government of India, and the case was altered to one for offences Under Sections 148, 302, 307, 453 read with Section 149 and Section 120-B, IPC During the course of the investigation, the Deputy Superintendent of Police, Central Bureau of Investigation, made an application on March 12, 1970, to the Special Magistrate, stating that it was essential for purposes of investigation that the hair which had been recovered from the scene of occurrence should be examined by experts and compared with the hair of the "principal accused" like Vijay Punia and Mahipal Maderna "with a view to fix up the identity of the hair recovered by the police from the scene of occurrence". It was prayed that accused Vijay Punia and Mahipal Maderna may be called and directed to give a few specimen of their hair in the presence of the court for that purpose. The learned Magistrate allowed the application and recorded an order to that effect on April 6, 1970. Mahipal Maderna and "vijay Punia filed an application before the Sessions Judge for revision of that order, and this is how the present reference has been made by the Sessions Judge for quashing the order.

(3.) IT has been argued by Mr. Bhimraj, learned Counsel for accused Vijay Punia, that the reference should be accepted for the reason that the order of the learned Magistrate violates the fundamental right of the accused under Article 20 (3) of the Constitution inasmuch as it compels each one of them to be a witness against himself. Reliance for this submission has been placed on State of Bombay v. Kathi Kalu Oghad , Pritam Singh v. State of Punjab and Rochin v. People of California, (1952) 342 US 165. The learned Counsel has further argued that the Investigating Officer could make an order for the production of the hair only Under Section 94 (1), Criminal P. C. but that section does not apply to the accused as has been held in State of Gujarat v. Shyamlal Mohanlal Choksi A. I. R. 1965 SC 1251.