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17. This constitutional immunity is not without its well recognised limitations. The privilege is restricted not to any and every compulsion but to testimonial compulsion.

"The privilege protects a person from any disclosure sought by legal process against him as a witness." (Vide Wigmore on Evidence Vol. VIII, Section 2263, page 363.

18. It is to be noted that the prohibition is against compulsion. A man "is competent to prove his own crime, though not compellable" per Alderson, B., in Udal v. Walton, (1845) 153 ER 471 (D). He cannot be forced to testify hiS incrimination. But this privilege has to be claimed or otherwise a person will not be considered to be compelled, vide U. S. v. Monia, (1943) 317 US 424 (427) (E). Unless invoked, the benefit is deemed to have been waived, vide U. S. v. Murdock, (1931) 284 US 141 (148) (F); and State v. Duncan, (1906) 4 Lawyer's Reports Annotated 1144 (1151) (G).

20. The next question that requires examination is whether, the order of the taking of finger and palm impressions by the Magistrate could be deemed a violation of the constitutional immunity. In the words of Professor Wigmore-

"In preserving the privilege, however, we must resolve not to give it more than its due significance. We are to respect it rationally for its merits, not worship it blindly as a fetish.....
............... Courts should unite to keep the privilege strictly within the limits dictated by historic fact, cool reasoning and sound policy."

See Wigmore on Evidence, Vol. VIII Section 2251, pages 317-319.

21. The true scope of the constitutional inhibition seems to me to prohibit compulsion in the matter of testifying either by word of mouth or in writing. What is forbidden is the use of force in the process of disclosure by oral statements or by written words of testimonial character. The danger, prevention of which the Constitution visualises, is the interference with the volitional faculties of a person so that he may not be terrified into making depositions as a witness.

The argument of the learned counsel for the defence, if sound, will prevent a Court from getting the aid of a physician in order to find out whether the defendant is malingering when he claims to be unable to attend Court. The consequence of the extended interpretation of similar constitutional privilege in America, was expressed by Professor Wigmore in the following words:

"....... ...........for, if the privilege extended beyond these limits, and protected an accused otherwise than in his strictly testimonial status, -- if, in other words, it created inviolability not only for his physical control of his own vocal utterances but also for his physical control in whatever form exercised, then it would be possible for a guilty person to shut himself up in his house, with all the tools and indicia of his crime, and defy the authority of the law to employ in evidence anything that might be obtained by forcibly over-throwing his possession and compelling the surrender of the evidential articles, -- a clear 'reductio ad absurdum.' " (Vide Wigmore on Evidence, Vol. VIII, Section 2263, page 363).