Allahabad High Court
Neeraj Sharma (In Jail) vs State Of U.P. on 18 December, 1992
Equivalent citations: 1993CRILJ2266
Author: G.P. Mathur
Bench: G.P. Mathur
ORDER G.P. Mathur, J.
1. Two questions of law of some importance arise for determination in this revision. The first question is whether a Magistrate has power to direct that sample of hairs of an accused may be taken for the purpose of comparison against his wishes and the second question is whether such a course of action violates the fundamental right of the accused as guaranteed by Article 20(3) of the Constitution.
2. Before considering the rival contentions advanced at the Bar it will be useful to notice the facts of the case in brief.
Dr. P. S. Negi, Chief Medical Officer, Hardwar was murdered and when inquest was held on his body some hairs were found in his hands. The hairs were sealed in a packet by the Investigating Officer. During investigation it was revealed that at the time of incident a scuffle had ensued between the deceased and the assailant and in the course of said scuffle the deceased had caught the assailant by holding the hairs of his head and the same had come in his hand when the assailant got himself released from the grip of the deceased and ran away from the spot. The sealed packet containing the hairs was immediately kept in safe custody in the Malkhana. The prosecution moved an application before the C.J.M., Hardwar praying that samples of hairs of accused Neeraj Sharma and Rajeev alias Raju may be taken for getting the same compared with the hairs which were found in the hands of the deceased at the time of the inquest. This application was opposed by the accused on the ground that there is no provision of law which may empower the Magistrate to issue a direction for taking samples of the hairs of the accused against his wishes and further that the taking of hairs would violate Article 20(3) of the Constitution. Learned C.J.M., Hardwar has, by the impugned order dated 28-6-1991, allowed the application moved by the prosecution and has directed that samples of hairs of the accused may be taken. Aggrieved the accused has filed the present revision.
3. The second question may be considered first. Article 20(3) of the Constitution provides that no person accused of any offence shall be compelled to be a witness against himself. There is no dispute that a first information report was lodged soon after the commission of the murder and the applicant was arrested during the course of investigation. As held by Supreme Court in Ramanlal Bhogilal Shah v. D.K. Gupta, AIR 1973 SC 1196 : (1973 Cri LJ 921) and Ramesh Chandra Mehta v. State of West Bengal, AIR 1970 SC 940 : (1970 Cri LJ 863) with the lodging of a first information report a person is accused of an offence within the meaning of Article 20(3) of the Constitution. The question to be examined is whether by taking sample of hair from an accused for the purpose of comparison he comes within the meaning of the expression "to be a witness" and whether by such an act he is testifying "against himself". If by mere taking of sample of hairs he does not become a witness and he is not furnishing evidence against himself, the provisions of Article 20(3) will not apply. Expressions 'furnishing evidence' and 'to be a witness' have been explained by Supreme Court in State of Bombay v. Kathi Kalu, AIR 1961 SC 1808 : (1961 (2) Cri LJ 856) while considering the question of taking of handwriting of an accused for the purpose of comparison. The court observed as follows in para 11 of the report :
... The giving of finger impression or of specimen signature or of handwriting, strictly speaking, is not "to be a witness". "To be a witness" means imparting knowledge in respect of relevant facts, by means of oral statements, or statements in writing by a person who has personal knowledge of the facts to be communicated to a court or to a person holding an enquiry or investigation....
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 impression or his handwriting, in spite of efforts at concealing the true nature of it by dissimulation cannot change their intrinsic character.
4. The court took the view that "to be a witness" may be equivalent to "furnishing evidence" in the sense of making oral or written statement but not in the larger sense of the expression so as to include giving of thumb impression or specimen writing or exposing a part of the body by an accused person for purpose of identification. In view of law declared by the Supreme Court it cannot be held that an accused while giving sample of his hairs comes within the expression "to be a witness".
5. When an accused will be furnishing evidence "against himself" has been considered by the Supreme Court in para 12 of the report and it was held as follows :
In order that a testimony by an accused person may be said to have been self-incriminatory, the compulsion of which comes within the prohibition of the constitutional provision, it must be of such a character that by itself it should have the tendency of incriminating the accused, if not also of actually doing so. In other words, it should be a statement which makes the case against the accused persons at least probable, considered by itself. A specimen handwriting or signature or finger impression by themselves are not testimony at all, being wholly innocuous because they are unchangeable except in rare cases where the ridges of the fingers or the style of writing have been tampered with. They are only materials for comparison inorder to lend assurance to the Courts that its inference based on other pieces of evidence is reliable. They are neither oral or documentary evidence but belong to the third category of material evidence which is outside the limit of 'testimony'.
6. The evidence of specimen handwriting, finger prints, blood or hairs will incriminate an accused only if on comparison with certain other handwriting, finger prints, blood or sample of hairs, identity between the two sets is established. By themselves they do not incriminate an accused. Again by themselves they are of no assistance at all to establish the charge against an accused. It is almost impossible for an accused to change his blood or nature of hairs or ridges in his finger impression. Thus by giving sample of hairs an accused does not become a witness against himself. In this view of the matter the provision of Article 20(3) of the Constitution will not be violated, if an accused is directed to give sample of his hairs.
7. It may also be noticed here that a Division Bench of our court in Jamsedh v. State of U.P., 1976 Cri LJ 1680; a Division Bench of Bombay High Court in Anil A. Lokhandey v. State of Maharashtra, 1981 Cri LJ 125; A. P. High Court in Ananth Kumar v. State of A.P., 1977 Cri LJ 1797 and Rajasthan High Court in Swati Lodha v. State of Rajasthan, 1991 Cri LJ 939 - have held that taking a blood from veins of an accused does not amount to compelling an accused to be a witness against himself and there is no violation of Article 20(3) of the Constitution.
8. Sri G. S. Hajela, learned counsel for the applicant has next contended that there is no provision in Code of Criminal Procedure which may empower a Magistrate to direct taking of sample of hairs of an accused and thus the impugned order passed by the learned C.J.M. is wholly without jurisdiction. Sri P. S. Adhikari, learned Addl. Govt. Advocate and Sri R. Dobhal, learned counsel for the complainant have on the other hand contended that Identification of Prisoners Act as well as ancillary power possessed by a Magistrate apart from those specifically conferred by the Code of Criminal Procedure give ample authority to him to direct taking of sample of hairs of an accused. It is also submitted that if a Sub-Inspector of Police is authorised to get medical examination of an accused by a registered medical practitioner under Section 53 of the Code, there is no reason why such a power should not be deemed to be impliedly possessed by a Magistrate or a court of law. Reliance is also placed on Section 54A (as inserted by U.P. Act No. I of 1984) of the Code which provides that when a person is arrested on a charge of committing an offence and his test identification by any witness is considered necessary by any court having jurisdiction, it shall be lawful for an Executive Magistrate acting at the instance of such court to hold test identification of the person arrested.
9. Section 53 of the Code provides that when a person is arrested on charge of committing an offence of such a nature and alleged to have been committed under such circumstances that there are reasonable grounds for believing that an examination of his person shall afford evidence as to the commission of an office, it shall be lawful for a registered medical practitioner acting at the request of a police officer not below the rank of Sub-Inspector, to make such an examination of the person arrested as is reasonably necessary in order to ascertain the facts which may afford such evidence and to use such force as is reasonably necessary for that purpose. The word "examination" used in the section obviously means medical examination and therefore, it should be given the same meaning as is understood in medical world. In New Lexicon Webster's Dictionary 1987 Edition in Chapter MD-1 relating to Medical Dictionary the meaning of the word 'examination' is given as under:
The process of inspecting the body and its products as a means of diagnosing a disease or as to physical fitness.
In the same chapter the meaning of the word 'diagnosis' is given as under :
Recognition of diseases based on examination and microscopic and chemical results of laboratory findings.
A conjoint reading of the two words would, therefore, show that medical examination would mean the process of inspecting the body and its products as a means of recognition of diseases based on examination and microscopic and chemical results of laboratory findings. Medical science has made great strides in recent times and highly sophisticated scientific tools have been developed in order to diagnose ailments or disorders in human body. In my opinion, it will not be proper to give a restricted meaning to the word "examination" used in Section 53 of the Code. The examination of the accused should mean a complete examination which a medical practitioner may like to have by all modern and scientific tools available in order to give his opinion and it should not be confined to a superficial examination by merely having a look at the body of the accused. In fact a doctor who is trained and is used to employing modern day technic for diagnosis may refuse to give his opinion unless he performs the necessary scientific tests in this regard. The legislature was also conscious of this and has, therefore, made a specific provision permitting use of force while enacting Section 53 in the Code of 1974 which was previously not there in the 1898 Code. It is not necessary to give examples where the provisions of Section 54 may be of great use in bringing on record valuable evidence which may help the court in deciding the point in issue. In a case involving accident an immediate blood test of the accused may produce the evidence which may show whether he had consumed alcohol. Instances are known where smugglers have swallowed gold, pearls and diamonds and x-ray examination or use of permissible chemicals by which these objects are ejected outside the body would lead valuable evidence regarding the commission of crime. The result of medical examination may also give clinching evidence which may prove the innocence of the accused.
10. I also find force in the argument of the learned counsel for the State that if medical examination of an accused can be done at the instance of a Sub-Inspector of Police, then such a power should be deemed to be impliedly possessed by a Magistrate and also by a court trying the offence. There is no warrant for curtailing the scope of the section and holding that only a police officer not below the rank of Sub-Inspector can exercise such a power and not a Magistrate or a court of law. The primary duty of the Court is to ascertain the truth and its powers are not curtailed or unlimited save as provided by the Code. Section 311, Cr.P.C. also gives an indication to the same effect. Therefore, in my opinion a Magistrate has full power to direct that a medical examination of the accused be performed or samples of his hairs, nails etc., be taken where the offence alleged to have been committed is of such a nature and is alleged to have been committed under such circumstances that there are reasonable grounds for believing that such an examination will afford evidence as to the commission of an offence.
11. The question whether sample of blood of an accused can be taken has been considered in detail by a Division Bench of our Court in Jamshed v. State of U.P., 1976 Cri LJ 1680, where after noticing the provision of Section 53 of the Code, the Bench observed as follows in para 13 of the report :
... There seems to be no reason for holding that examination of a person should mean only the examination of the skin and what is visible on the body. If it is necessary to make an examination of any organ inside the body for the aforesaid purpose, we think that this is also permitted by Section 53(1) of the Code of Criminal Procedure 1973. As has been noted above if an accused has swallowed some stolen article, an x-ray examination may be necessary. Similarly in cases of gun shot wounds it may be necessary to find out whether there are any pellets or other marks inside the body. It should not, therefore, be confined to examination of the skin alone.
12. The court repelled the contention of the accused to the effect that in absence of a specific provision permitting taking of blood such a course should not be adopted with the following observations :
We are therefore, of the view that there is nothing repulsive or shocking to conscience in taking the blood of the appellant in the instant case in order to establish his guilt. So far as the question of causing hurt is concerned, even causing of some pain may technically amount to hurt as defined by Section 319 of the Indian Penal Code. But pain might be caused even if the accused is subjected to a forcible medical examination. For example, in eases of rape it may be necessary to examine the private parts of the culprit. If a culprit is suspected to have swallowed some stolen article, an emetic may be used and x-ray examination may also be necessary. For such purposes the law permits the use of necessary force. It cannot, therefore, be said that merely because some pain is caused, such a procedure should not be permitted.
13. In Anil A. Lokhande v. State of Maharashtra, 1981 Cri LJ 125, a Division Bench of Bombay High Court while considering the same question with reference to Section 53 of the Code observed as follows in para 17 of the report :
... We do not find any intrinsic evidence or compulsion in the section itself or otherwise to restrict the meaning of expression used in this section to the examination of the skin or what is visible on the body itself. Many times it become necessary to make examination of some organs inside the body for the purposes of collecting evidence as to the commission of the offence.
14. Same view was taken in Anant Kumar v. State of A.P., 1977 Cri LJ 1797, wherein it was held that examination of a person by a medical practitioner must logically take any examination by testing his blood, sputum, semen, urine etc., and the examination of blood and semen is not outside the scope of Section 53.
15. Sri Hajela has placed reliance on S. K. Agrawal v. B. P. Agarwal, 1980 All Cri C 232 : (1981 Cri LJ (NOC) 1 (All) in support of his submission that a Magistrate has no power to direct taking sample of hairs of an accused. In may opinion, the authority cited by the learned counsel has no application as what was considered there was whether a Magistrate could issue a direction to an accused under Section 73 of the Evidence Act during investigation of a case. For the same reason State of U.P. v. Ram Babu, 1980 SCC (Cri) 444 : (AIR 1980 SC 791) has no application to the facts of the case as it again turned upon interpretation of Section 73 of the Evidence Act. Learned counsel has also placed reliance on a decision by a learned single Judge of Bombay High Court in State of Maharashtra v. D. B. Dagade, 1979 Cri LJ 277. This authority has been considered by the Division Bench in Anil A. Lokhande v. State of Maharashtra (supra) and observations made therein were held to be obiter. Sri Hajela has also placed strong reliance on a decision by a learned single Judge in Swati Lodha v. State of Rajasthan, 1991 Cri LJ 939, wherein it was held that a blood test which involves insertion of a needle in the veins of a person is an assault an in absence of express statutory authority the court cannot order an accused to submit to blood test. I am bound by the view taken by the Division Bench of our own court in Jamshed v. State of U.P. That apart in my opinion the view taken in Jamshed's case appears to be the correct view and the same has also been followed by Bombay High Court in Anil A. Lokhande and is in consonance with the view expressed by A.P. High Court in Ananth Kumar's case. In Swati Lodha's case, learned Judge did not at all consider the provisions of Section 53 of the Code. The judgment is based upon several English decisions which all arose out of civil proceedings where the question of paternity of a child was involved. Some of the English cases referred to in the authority relate to the years 1914 and 1916. None of the English cases relied upon by the learned Judge related to criminal law nor the question as to whether sample of blood of an accused could be taken or not, was considered therein. It has been held in the said case that when a party refuses to submit to blood test, the court may draw inference against him.
16. Article 20(3) of the Constitution has been borrowed from United States of America. The Fifth Amendment of America constitution provides that no person shall be compelled in any criminal case to be a witness against himself. In Vol. 22 A Corpus Juris Secundum Para 649, the law on the subject has been stated as under :
Under the common law principle condemning compulsory self-incrimination and constitutional provisions declaratory thereof, incriminating evidence produced by the accused under compulsion is inconsistent; but the protection is generally confined to evidence produced by testimonial compulsion.
The more general view is that the constitutional guarantee renders incompetent only such evidence as is furnished or produced by accused under "testimonial compulsion" such as disclosures obtained by legal process against him as a witness. As otherwise stated, the rule against self incrimination extends only to communications, written or oral, on which reliance is to be placed as involving accused's consciousness of the facts and the operation of his mind in expressing it. The test of admissibility under the majority rule has been said to be whether the proposed evidence depends for its probative force on the testimonial responsibility of accused, or has such force in itself unaided by any statement of accused.
In para 651(a) of the same volume :
Generally, the constitutional guarantee against self-incrimination does not preclude the admission of real evidence produced by a reasonable examination of the body of accused; and the admission in evidence of the findings of experts of a physical or mental examination of the accused does not ordinarily violate his privilege, at least where the examination is without any compulsion.
In State v. Green, 86 SE 2nd 596 : 227 SC 1, it was held by Supreme Court that such evidence is admissible even where the examination is compulsory and imposed on accused against his Will, provided accused is not compelled to answer any question propounded to him by those making the examination.
And in para 651 (b) :
The admission in evidence of the results of a scientific examination of a substance taken from the body of the accused does not violate his privilege against self-incrimination where the substance was taken without his consent under circumstances not amounting to a physical invasion of his body in violation of due process.
Such rule applies with respect to the taking of a blood sample from accused, and the testing of accused's blood, breath, or urine for alcoholic content and consequent intoxication; and this is the rule even though accused was not warned at the time of giving a specimen that it might be used against him in a prosecution.
In Wigmore's Classic Commentary on Evidence (Vol. VIII - 1961 Ed) in para 2265 the law on 'Self-Incrimination Privilege' has been stated as follows :
The limit of the privilege should be plain. From the general principles it results that an inspection of the bodily features by the Tribunal or by witness does not violate the privilege because it does not call upon the accused as a witness i.e. upon his testimonial responsibility. That he may in such cases be required sometimes to exercise mascular --as when he is required to take off his shoes or roll up his sleeve is immaterial unless all bodily action were synonymous with testimonial utterance, for as already observed, not compulsion alone is the component idea of the privilege, but testimonial compulsion. What is obtained from the accused by such action is not testimony about his body, but his body itself. Unless some attempt is made to secure a communication -- written, oral or otherwise -- upon which reliance is to be placed as involving his consciousness of the facts and the operation of his mind in expressing it, the demand made upon him is not a testimonial one....
17. In the same paragraph the learned author has noticed large number of decisions given by Courts in America where examination of the body of the suspect for identifying characteristics or examination of the body of a suspect, including his private parts for evidence of disease, or crime or extraction of substance from inside the body of a suspect for purposes of analysis and use in evidence, has been ruled as not covered by the privilege. Reference to some of them is being given below.
(1) Murder -- Specimen of blood obtained from accused admitted.
Davis v. State, 189 Md 640, 57 A 2d 289 (1948); State v. Alexander, 7 NJ 585, 83 A 2d 441 (1951).
(2) Death by driving automobile while intoxicated, sample of blood taken from defendant who was unconscious -- result of test admitted.
Kallanbach v. People, 125 Colo 144, 242 P. LE 2d 222 (1952).
(3) Blood specimen obtained without defendants knowledge or consent -- doctors testimony about alcoholic content admitted.
People v. Tucker. 105 Cal App 2d 333, 193 P. 2d 941 (1948).
Schacht v. State, 154 Neb 858; 50, NW 2d 78 (1951).
(4) Homicide -- evidence as to defendants blood type, blood taken while he was in jail awaiting trial, without consent -- admitted.
State v. Alexander 7 NJ 585, 83A. 2d 441 (1951).
(5) Murder -- no denial of constitutional privilege to use scrapings from under fingernails taken again! the Will.
State v. Mc Laughlin, 138 La 958, 70 So 925 (1961).
18. It may be mentioned here that due to phenominal increase in crime and highly sophisticated methods adopted by the criminals, the State is confronted with overwhelming difficulties in detection and prosecution of crime. In the case of a large number of offences the proof is difficult, if not impossible, of ascertainment without the testimony of individuals accessory to the act. Eminent Jurists even in U.S.A. are divided in their opinion as to whether privilege against self-incrimination should be retained. Cardozo. J. in Palko v. Connecticut, 302 U.S. 319 (1937) said as follows :
Few would be so narrow or provincial as to maintain that a fair and enlightened system of justice would be impossible without ...the immunity from compulsory self-incrimination. This too might be lost, and justice still done. Indeed, today as in the past there are students of our penal system who look upon the immunity as a mischief rather than a benefit, and who would limit its scope, or destroy it altogether. No doubt there would remain the need to give protection against torture, physical or mental. Justice, however, would not perish if the accused were subject to a duty to respond to orderly inquiry.
19. Some Jurists have said that the privilege is a hiding place of crime and only the guilty have use for the privilege.
20. It may be mentioned here that crime scenario in the country has undergone a sea change in recent times. Criminals are using most sophisticated weapons and highly specialised means to achieve their objective. Highly sophisticated devices like blasting of land mines by remote control are being used to thwart the law enforcement machinery from doing its duty. The change in the pattern of crime and mode of its commission requires modern scientific methods of crime detection so that the criminals may not move about with impunity holding the entire community at ransom. In this view of the matter, in my opinion, it will not be proper to be guided by old English cases relating to civil suits or matrimonial disputes. Medical examination may not be complete without the necessary scientific tests like blood test, X-ray examination, or inserting some article in the body. In modern day living a blood test has become a routine matter to which lacs of people submit as a matter of course every day. therefore, 1 am unable to concur with the view expressed in Swati Lodha's case. That apart taking of sample of hairs is a wholly innocuous and painless process. It will not cause any hurt or injury to the accused. Most men do have a periodic hair cut and a shave every day. Thus it will be a travesty of justice to hold that in absence of a specific and direct provision in the Code, sample of hairs of the accused cannot be taken.
21. In view of the discussions made above, there is no merit in this revision petition. The revision petition is accordingly dismissed and the interim order is vacated.