JUDGMENT
S.K. Sen, J.
1. This Revisional application is directed against an order by the Additional Chief Presidency Magistrate, Calcutta, permitting the Investigating Officer to take finger impressions of the petitioner Mahal Chand Sethia for the purpose of investigation of a case under Ss. 120B/420/466 and 467 of the Indian Penal Code, pending before him. Mr. Sasthi Charan Roy for the petitioner has urged that such direction offends against the Constitutional provisions of Art. 20(3), which provides that no person accused of any offence shall be compelled to be a witness against himself. Mr. Roy has referred to a decision of the Supreme Court (M. P. Sharma v. Satish Chan-dra, ) where it was held that an accused could not be compelled to produce an incriminating document or a document which might prove incriminating, and that compulsory production of such document was included within the term “the accused being compelled to be a witness against himself”. In that case their Lordships of the Supreme Court did not have to consider the question of thumb impression. But Mr. Roy seeks to extend the same principle and urges that the direction on an accused to give his thumb impression is also to compel him to be a witness against himself and this thus offends against the provisions of Article 20(3) of the Constitution.
2. In support of his contention Mr. Roy has referred to a decision of a single Judge of the Madras High Court (Raja Mulhukoil Pillai v. Periyasami Nadar AIR 1956 Mad 632) where the learned Judge held that in view of Clause (3) of Article 20 of the Constitution, an accused could not be compelled to give his thumb impression for the purpose of comparison with a prosecution document; but the same learned Judge, Somasundaram J., appears to have changed his opinion and in Re Sheikh Muhammad Hussain, he held that there was nothing in the Article to prevent the prosecution from using as evidence a thumb impression which had been taken by the police in course of investigation. Mr. Harideb Chatterji, appearing for the State, has also referred to a subsequent decision of Ramswami, J. of the Madras High Court (Subayya Gounder v. Bhoopala Subramanian, ) who held after reviewing the cases of the different High Courts that there was nothing in Article 20(3) of the Constitution to prevent the prosecution from seeking to identify an accused by taking his finger-print or foot-print or other physical measurement which did not depend on the volition off the accused. Identification of the Prisoners Act, 1920 which extends to whole of India, provides that measurements include finger-impressions and foot-print impressions. Section 4 of the Act provides that any person who has been arrested in connection with an offence punishable with rigorous imprisonment for a term of one year or more, shall, if required by a police officer, allow his measurements to be taken in the prescribed manner. Section 5 provides that a Magistrate, if satisfied that for the purpose of investigation or a proceeding, it is expedient to direct any person to allow his measurements or photographs to be taken, he may make an order to that effect and in that case the person in question shall allow his measurements or photographs to be taken by a police officer. Mr. Roy has urged that Ss. 4 and 5 of the Identification of Prisoners Act have been held to be ultra vires by a Bench of the Madhya Pradesh High Court (Vide Brij Bhushan Raghunandan Pro-sad v. The State, ). In that case, however, their Lordships of the Madhya Pradesh High Court were not dealing with Identification of the Prisoners Act, 1920, which is a Central Act, but Madhya Bharat Identification of Prisoners Act of Sambat Year 2008 i.e. of 1951, which permitted a magistrate to give a direction of the taking of thumb impression and specimen handwrit-ing in the course of investigation by the police. This section was held to be ultra vires of Article 20(3) of the Constitution. In that connection their Lordships observed that giving of thumb impression and specimen handwriting were positive acts of the accused and, therefore, the accused could not be compelled to give such thumb impression, specimen writing or signature which might be used as evidence against him.
3. So far as giving of thumb impression, however, it has been held by the Madras High Court, as already stated, in its latest decision that giving of the thumb impression is not a positive volitional act of the accused, because the pattern of ridges on the thumb or finger is already there, and without any volition on his part, the impression of the pattern may be transferred on paper for the purpose of comparison. Therefore, in so far as evidence means volitional giving of evidence or volitional act, taking of thumb impression is not such an act.
4. This view has also been taken by the Calcutta High Court in the case of Peare Lal Shaw v. The State, Criminal Revn. No. 538 of 1960, decided on 11-5-1960 by Mitter and Bhattacharya JJ. The question directly before their Lordships in that case was whether an order of a Magistrate directing the accused to attend a T. I. parade, violated the fundamental right of the accused under Article 20(3) of the Constitution. Their Lordships held that it did not violate any such right. Incidentally, their Lordships dealt with the question of thumb impressions, also, and in course of the judgment, Bhattacharya, J. observed that in so far as thumb impressions were concerned, they stood on a different footing from specimen writings and signature; because when the accused was directed to give his specimen writings or signatures, he was being compelled to do some positive volitional act; but taking of thumb impressions did not involve any positive volitional act on the part of the accused. In that connection Bhattacharya J. referred to some American decisions e. g. Swingle v. United States, 151 Federal Reporter (2d S and T) –where it was observed:
“The prohibition against compelling an accused person to be a witness against himself is a prohibition of the use of physical or moral compulsion to extort communications from him and not an exclusion of his body as evidence when it may be material”.
In another American decision — People v. Swallow, 165 New York Supp. 915 (N), it was held that the rule against self-incrimination is not violated when the accused is compelled to exhibit himself or part of his body to the court or to allow a record of his finger prints to be taken.
5. With clue respect we agree with the observations of Milter and Bhattacharya, JJ. that the giving of evidence as referred to in Article 20(3) of the Constitution, refers to doing a positive volitional act on the part of the accused to reveal something or to produce something which may be used against him; but it does not relate to the accused being compelled to show his face to the witnesses for identification or to show any part of his body or to give his thumb impression or foot-print for the purpose of identification.
6. Apart from the above considerations, it is to be observed that in the present case, the learned lawyer for the petitioner stated before the learned Additional Chief Presidency Magistrate that there was no objection if the finger-prints of the accused-petitioner were taken for the purpose of the investigation. He only pressed his objection so far as taking of specimen writings was concerned; and in, the circumstances, the direction of the learned Addl. Chief Presidency Magistrate on the accused to give his fingerprint was not an order compelling him to do something against his will, but to do something to which he had agreed through his agent, namely, his pleader in court.
7. Apart from his consent, however, we hold that an order of the learned Magistrate compelling the accused to give his thumb impressions or finger-impressions for the purpose of investigation would not violate the Constitutional safeguard of Article 20(3) of the Constitution.
8. Accordingly, this Rule is discharged.
K.C. Sen, J.
9. I agree.
