State of Bombay

vs.

Kathi Kalu Oghad & Others.

Bench:  Total no.- 11

Majority: B.P. Sinha (CJI), J.R.Mudholkar, K.SubbaRao, K.N.Wanchoo, N.R.Ayyangar, RaghubarDayal, P.B.Gajendragadkar, Syed Jaffer Imam.

Minority: A K Sarkar, K C Dasgupta, S K Das.

BACKGROUND OF THE CASE- The precedent considered in this case was [M.P. Sharma v. Satish Chandra/(A.I.R. 1954/SC 300)] where it has been held by the court that the term, “to be a witness”mentioned in Art..20(3) of the Indian Constitution was equivalent to ‘furnish evidence’ and therefore compulsorily asking for fingerprints and handwriting samples come within the purview of that. This principle was challenged in the judgment of -KathiKaluOghad. State of Bombay versusKathiKaluOghadremains to be the pinnacle of three appeals which were heard together because they involved the question of law related to the clarification about Article-20 (3) of the Constitution. Article- 20(3) of the Constitution states that, “no person accused of any offence shall be compelled to be a witness against himself”.

Talking of the three cases that were involved are summarised as follows:

• The first case had the respondent being charged under the provision ‘Section -301’ (which is culpable homicide by causing death of person other than the person whose death was intended) r/w Sec.34 (acts done by several persons in furtherance of common intention) of the Indian Penal Code (IPC). At the trial stage itself among the other evidences one of the evidence that was adduced to support the prosecution of the respondent was his handwriting samples the admissibility of which was questioned considering the protection provided by Art.20 (3). The respondent had pleaded that the handwriting samples were obtained forcefully from him by the deputy superintendant of Police. However this pleading was neither accepted by the trial court nor by the high court. But the handwriting samples were excluded from the evidence on the ground that the respondent being taken in the police custody itself accounted for compulsion.
• The second case related to “Section/27” of the Indian Evidence Act, 1872(herein after mentioned as IEA, 1872); where the police in consequence of the information given by the accused of the gun that he had buried at a particular location, after tracing it wanted adduce as evidence, the hand and finger prints of the accused to be matched with those found on the guns at the crime scene. The constitutionality of the provision and the evidence was challenged.
• The third case involved the searching of respondent’s residence by the police in relation to find evidence supporting the illegal trafficking of smuggled opium. The police on searching the place found certain railway receipts at the back of which contained endorsements of opium consignments. The police assumed the handwriting of the endorsements as that of the accused. Therefore in order to compare with the main exhibit handwriting samples were taken following the provision of ‘Section-73’ of the IEA, 1872. High Court disregarded the same being in contravention of ‘Article- 20 (3)’under the Constitution of India.

ISSUES BEFORE COURT OF LAW:

• Main issue that was involved was whether gathering of finger prints or handwriting samples, DNA samples and other evidences like these constitute valid modes of collecting the evidences in regard of protection guaranteed under ‘Article- 20(3)’under the Constitution of India.
• What shall stand the meaning of the term, ‘witness’ within Article- 20 (3) and what shall be included within its ambit?
• Whether being in the police custody signifies compulsion used against the accused or not.
• Whether a direction by the court to anindividual,who has been allegedly accused of any offence, who being present in court of law to produce handwriting and signature samples to compare with the main exhibit as per Sec. 73 of the IEA, 1872 shall amount to contravention of the protection provided under Art. 20 (3).

FINDINGS OF THE COURT/GUIDELINES GIVEN BY THE COURT :

• Merely being in the police custody and making a statement does not amount to the fact that the accused has been compelled to be a witness against himself. There must exist something more to it i.e. additional circumstances to support it. However the necessary information disclosed in relation to the particular incident shall be considered relevant whether the accused was compelled or not compelled to render that disclosure.
• ‘Mere questioning’ by a police official,thatmight result into a voluntary remark/statement made by the accused person which might turn out as an allegation against him does not amount to ‘compulsion’. Likewise merely giving information voluntarily during investigation does not amount to “be a witness against himself”. The element of ‘Compulsion’ should exist.
• The verdict in ‘M.P.Sharma case’ indicated that the expression “to be a witness”meant providing with evidence which apart fromaccommodating oral statements also accommodated form of conducts that are non-verbal in nature, so as to include producing of documents, things and other modes. Thus “M.P.Sharma’s” case failed in determining the scope of ‘Article- 20 (3)’ in context of ‘non-verbal testimony’. The KathiKaluOghad case was an attempt to clarify the meaning of ‘to be a witness’ by stating that the gesture of providing testimonial evidence itself constitutes “to be a witness” and it is different from providing physical evidence.
• The Oghad’s case did not render protection to material evidence like thumb prints, foot prints, finger prints, handwriting samples, signatures, showing body parts etc. and considered keeping it outside the ambit of ‘Art. 20(3)’. Therefore these evidences do not invoke the “right against self-incrimination” and the accusedindividual shall be subjected to compulsion on the basis of these evidences following due process of law.
• The expression “To be a witness” simply means disclosing observation/knowledge or information relating to relevant facts. This knowledge can be communicated either in the cast of oral or written statements. It can be made either to the court or to any person or authority responsible for holding the enquiry or investigation on the matters subject to enquiry.
• Giving personal testimony depends upon ‘volition’. That is, it is the choice of the person accused to either communicate or refuse to render information.
• The ordinary grammatical sense of ‘to be witness’ constitutes giving oral testimony to the court.
• To attract the safeguardas guaranteed under ‘Article- 20(3)’, the person giving the testimony should stand within the character/frame of an ‘accused’, at the time of giving the statement and shall not be charged as an ‘accused’ at any momentlater after giving the statement.

• Thus unlike M.P Sharma, the KathiKaluOghad case has restrained the connotation of the phrase “to be a witness” as to furnishing or providing with evidence either in the cast of written or oral statements &to not to widely encompass thumb impressions, signatures, hand writing samples etc. Further only those pieces of evidences shall constitute the meaning of ‘furnishing evidence’ which are provided in the court and all the other evidences are to be kept outside the ambit of the safeguard guaranteed by ‘Article- 20 (3)’ of the Indian Constitution.