State of Bombay v. Kathi Kalu Oghad
Supreme Court of India · 4 August 1961 · 11 judges · 1961 AIR 1808; 1962 SCR (3) 10
Taking specimen handwriting, signatures or finger, palm or foot impressions from an accused does not violate Article 20(3), and Section 27 of the Evidence Act is valid unless the information was obtained by compulsion.
Facts
Four appeals raised the scope of Article 20(3). In the Bombay case, specimen handwritings of the accused were taken by the police while he was in custody; the courts excluded them because compulsion was 'implicit' in custody, and he was acquitted. In the Punjab appeals, an accused's palm and finger impressions were taken before a Magistrate for comparison, and firearms were recovered on information he gave under Section 27 of the Evidence Act. In the West Bengal case, the Calcutta High Court held that a Magistrate's direction under Section 73 of the Evidence Act to give specimen writing and signature offended Article 20(3), relying on M.P. Sharma v. Satish Chandra. An eleven Judge Bench was constituted to reexamine propositions in M.P. Sharma that may have been too widely stated.
Questions before the Court
- Is an accused 'compelled to be a witness against himself' under Article 20(3) when made to give specimen handwriting, signature, or finger, palm or foot impressions, including under Section 73 of the Evidence Act?
- Does the mere fact that an accused was in police custody when he made a statement amount to compulsion?
- Is Section 27 of the Evidence Act hit by Article 20(3)?
- Must the person have been an accused at the time of making the statement?
What the Court held
- Giving thumb, foot, palm or finger impressions, specimen writing, or showing parts of the body for identification is not 'to be a witness'; such specimens are only materials for comparison. Article 20(3) is not infringed whether they are taken by the investigating officer or under a court's order under Section 73 of the Evidence Act.
- Being in police custody when a statement is made does not by itself, as a proposition of law, mean the accused was compelled; mere questioning resulting in a voluntary statement is not compulsion. Compulsion means duress, and whether it was used is a question of fact in each case.
- 'To be a witness' means imparting knowledge of relevant facts by an oral or written statement, in court or outside it. The protection covers such statements of an accused, but not the mechanical production of documents that contain no statement based on his personal knowledge.
- Section 27 of the Evidence Act is not within the prohibition of Article 20(3) unless compulsion was used in obtaining the information.
- Article 20(3) applies only if the person stood in the character of an accused when he made the statement; becoming an accused later is not enough. Mohamed Dastagir v. State of Madras lays down the law correctly. The appeals were sent for hearing on merits.
Why it matters
Sitting as an eleven Judge Bench to reconsider M.P. Sharma v. Satish Chandra, the Court restated the scope of the right against self-incrimination in Article 20(3). It confined 'to be a witness' to imparting personal knowledge, excluded specimen writings and bodily impressions from the protection, held that custody alone does not prove compulsion, and upheld Section 27 of the Evidence Act and Section 73 directions against challenge under Article 20(3).
In the Court's words
Copied from the official judgment; each passage links to its page.
“(1) An accused person cannot be said to have been compelled to be a witness against himself simply because he made a statement while in police custody, without anything more.' In other words, the mere fact of being in police custody at the time when the statement in question was 'made would not., by itself, as a proposition of law, lend itself to the inference that the accused was compelled to make the statement”
“When an accused person is called upon by the Court or any other authority holding an investigation to give his finger impression or signature or a specimen of his handwriting, he is not giving any testimony of the nature of a 'personal testimony'. The giving of a "personal testimony' must depend upon his volition. He can make any kind of statement or may refuse to make any statement. But his finger impressions or his handwriting, in spite of efforts at concealing the true nature of it by dissimulation cannot, change their intrinsic character.”
“If the self-incriminatory information has been given by an accused person without any threat, that will be admissible in evidence and that will not be hit by the provisions of el. (3) of Art. 20 of the Constitution for the reason that there has been no compulsion. It must, therefore, be held that the provisions of s. 27 of the Evidence Act are not within the prohibition aforesaid, unless compulsion has been used in obtaining the information.”
“We agree therefore with the conclusion reached by the majority of the Bench that there is no infringement of Art.20(3) of the Constitution by compelling an accused person to give his specimen handwriting or signature; or impressions of his fingers, palm or foot to the investigating officer or under orders of a court for the purpose of comparison under the provisions of s.73 of the Indian Evidence Act”
Provisions interpreted
- Article 20(3), Constitution
- Section 73, Indian Evidence Act, 1872Now: BSA 72 (NCRB correspondence table)
- Section 27, Indian Evidence Act, 1872Now: BSA 23 (NCRB correspondence table)
- Section 139, Indian Evidence Act, 1872Now: BSA 144 (NCRB correspondence table)
- Sections 5 and 6, Identification of Prisoners Act, 1920
Related judgments
- Explains M.P. Sharma v. Satish Chandra (1954)“It may be that this Court did not intend to lay down-certainly it was not under discussion of the Court as a point directly arising for decision -that calling upon a person accused of an offence to give his thumb impression” (page 11)
- Followed in Nandini Satpathy v. P.L. Dani (1978)
- Followed in Selvi v. State of Karnataka (2010)
- Followed in Ritesh Sinha v. State of Uttar Pradesh (2019)
Case and bench
- Parties
- The State of Bombay v. Kathi Kalu Oghad and Others
- Case
- Criminal Appeal No. 146 of 1958 (with Criminal Appeals Nos. 110 and 111 of 1958 and 174 of 1959)
- Decided
- 4 August 1961
- Bench
- Sinha, Bhuvneshwar P. (CJ), Imam, Syed Jaffer, Das, S.K., Gajendragadkar, P.B., Sarkar, A.K., Subbarao, K., Wanchoo, K.N., Gupta, K.C. Das, Dayal, Raghubar, Ayyangar, N. Rajagopala, Mudholkar, J.R.
- Opinions
- Unanimous in result. Majority opinion of eight Judges delivered by Sinha, CJ; a concurring opinion of S.K. Das, Sarkar and Das Gupta, JJ. delivered by Das Gupta, J., agreeing with the answers but differing on the meaning of 'to be a witness'.
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