Allahabad High Court
Nawal Kishore Shukla And Ors. vs State Of U.P. And Anr. on 17 September, 1991
Equivalent citations: 1992CRILJ1554
ORDER V.N. Mehrotra, J.
1. This petition has been filed under Section 482, Cr.P.C. praying that the orders dated 29-6-1985 and 19-9-1985 passed by the Metropolitan Magistrate, Rampurwa district Kanpur Nagar, in case No. 695 of 1984 Smt. Madhuri Devi Shukla v. Nawal Kishore Shukla and Ors., which is the complaint in that case be quashed.
2. The facts of this case are that the present opposite party No. 2, Smt. Madhur Devi Shukla filed a complaint against nine accused persons alleging that they have committed offence punishable under Section 494, I.P.C. It was contended that the applicant was the wife of opposite party No. 2. Nawal Kishore Shukla but during the lifetime of the applicant he remarried opposite party No. 6. Smt. Rajendri Devi. It is asserted that the marriage took place with the connivance of the other co-accused persons. After the enquiry under Sections 200 and 202, Cr.P.C. the learned Magistrate summoned the accused persons. The hearing of this case started before the Magistrate. The complainant moved an application before the learned Magistrate asserting that though the accused persons had denied the marriage between Nawal Kishore Shukla and Smt. Rajendri Devi; the latter was living with Nawal Kishore Shukla and has also become pregnant. She prayed that for asserting this fact, Smt. Rajendri Devi be medically examined by the Chief Medical Officer, Rai Bareli. Later on, she filed an affidavit asserting that Smt. Rajendri Devi has actually given birth to a child at Rai Bareli where she was taken by Nawal Kishore Shukla. The learned Magistrate allowed the application for medical examination and directed Smt. Rajendri Devi to appear before the Chief Medical Officer, Rai Bareli for that purpose. As Smt. Rajendri Devi did not appear for medical examination, another application was moved on behalf of the complainant. On that application the learned Magistrate again directed Smt. Rajendri Devi to appear before the Chief Medical Officer on 14-10-1985. He also mentioned that in case she does not do so, the exemption from personal presence granted to her shall be cancelled. This order was passed by the learned Magistrate on 19-9-1985. On the same day the complainant moved an application for examining one witness, whose name was not mentioned in the list of witnesses. The learned Magistrate allowed that prayer and permitted the complainant to examine the witness.
3. The present petition has been filed against both these orders. It has been contended that the learned Magistrate should not have permitted the complainant to examine the witness not named in the list of witnesses, and even if such permission was to be granted, it should have been granted after all the witnesses mentioned in the list were examined.
4. The second contention is that the learned Magistrate could not have forced Smt. Rajendri Devi, who is an accused in this case to undergo medical examination and such an order will be hit under Article 20(3) of the Constitution of India.
5. I have heard the learned counsel for the parties and have perused the material on record. As regards the order permitting the complainant to examine a witness, not named in the list of witnesses, the learned Magistrate could have done so in the circumstances of the case. It was not necessary that all the witnesses named in the list of witnesses should have been examined before such a permission could have been granted. The witness was in attendance and the prosecution evidence was being recorded under Section 244, Cr.P.C. The order by the learned Magistrate permitting the complainant to examine the witness cannot be said to be illegal or unjust.
6. Now coming to the second contention, the learned counsel for the petitioner has argued that the order by the learned Magistrate will amount to compelling Smt. Rajendri Devi to be a witness against herself and the same is prohibited under Article 20(3) of the Constitution.
7. On behalf of the opposite parties, however, it has been argued that such an order was a legal order and was not in any way hit under Article 20(3) of the Constitution.
8. The learned counsel for the petitioner has referred to the decision in the case B. N. Misra v. State, 1965 All LJ 754, in support of his contention; that such an order was not legal. In that case a prisoner who was confined to jail had beard and hair on his head. He was to be put up for test identification. The Magistrate directed that his beard and hair be shaved against his wishes. This court observed that such an order was against the provisions of U. P. Jail Manual Para 421 and was illegal. Obviously this decision cannot apply to the facts of the present case. In a Full Bench decision of this court in the case Ranjit Ram v. State, AIR 1961 All 456 : (1961 (2) Cri LJ 306) it was held that an order directing an accused person to furnish his finger prints or specimen of his handwriting does not amount to 'testimonial compulsion' and does not contravene the provisions of Article 20(3) of the Constitution. It was in this case observed that the taking of thumb impression or handwriting of the accused or put him for identification, cannot amount to compelling the accused to be a witness against himself. It was further observed that taking of sample of blood stands on the same footing; the accused cannot be compelled to give the sample, but the investigating agency can make arrangement for the extraction of blood for the purposes of analysis and report. The same can be said of the medical examination or taking of photographs. These are all instances where the body of the accused is exhibited against his will, but the authority does not commit any illegality by adopting compulsory methods to seize or take such evidence. It was further observed that "they are all instances of compulsion on the part of public authorities but in none is the accused compelled to so act as to furnish evidence against himself. In reality, the evidence is extracted from him, may be, by exposure of body or by taking photograph or sample of blood."
9. A similar view was taken in the case of Pakhar Singh v. State, AIR 1958 Punjab 294: (1958 Cri LJ 1084). It was observed that in principle, resort to compulsion requiring the accused to exhibit his body for purposes of establishing identity is not objectionable because by doing so he is not being forced to give false testimony. In fact he does not testify at all and the physical facts which are noticed speak for themselves. Neither fear nor hope, neither coercion nor cajoling can make any difference to the finger prints or other physical peculiarities. They will reveal the true peculiarities unaffected by the manner in which the impressions have been taken, or scars or other marks have been revealed. In this case a reference was made to a decision in Novak v. District of Columbia 49 Atlantic Reporter (2d) 88. In that case the accused was prosecuted for driving an automobile under the influence of intoxicating liquor. It was held that his constitutional right was not infrined by offering in evidence the record of analysis of a specimen of urine taken from him immediately after his arrest. Similarly taking of blood specimen from a driver of an automobile for finding alcoholic contents was not considered violative of constitutional rights not to be compelled to give testimony against himself, vide People v. Tucker 198 Pacific Reporter (2d) 940.
10. In the case State of Bombay v. Kathi Kalu Oghad, AIR 1961 SC 1808: (1961 (2) Cri LJ 856) a constitutional Bench of the Supreme Court held that the words 'to be a witness' means imparting knowledge in respect of relevant facts, by means of oral statement or a statement in writing made or given in Court or otherwise. In that case it was held that an accused person cannot be said to have been compelled to be a witness against himself merely because the court has required him to give his thumb impression or specimen writing or showing parts of the body by way of identification.
11. Considering the above mentioned decisions it cannot be said that merely because the learned Magistrate has required accused Smt. Rajendri Devi to appear for medical examination, the same amounts to compelling her to be a witness against himself. This order is not hit by the provisions of Article 20(3) of the Constitution. However, the matter relates to the year 1985 and the accused was referred to the Chief Medical Officer for medical examination to ascertain whether Smt. Rajendri Devi was pregnant or had recently given birth to a child. The learned Magistrate shall re-examine this matter and direct the medical examination of Smt. Rajendri Devi only in case he finds that such a medical examination is necessary at this stage. He should also consider as to whether it will be proper to direct the accused to appear for medical examination before the Chief Medical Officer or before a competent lady doctor. With the above observation this petition is dismissed.