1961 Supreme(Cal) 14

HIGH COURT OF CALCUTTA
S. K. Sen, K. C. Sen
SEKENDER SHEIKH - Appellant
Versus
STATE - Respondent
Criminal Ref.  10  Of  1960
Decided On : JANUARY 25, 1961

The taking of specimen writing and thumb impression of an accused does not offend against the protection given to an accused by Article 20 (3) of the Constitution, provided that the accused is not compelled to do so.

Headnote:

CRIMINAL LAW - FORGERY - SECTION 467 OF THE INDIAN PENAL CODE - EVIDENCE - IDENTIFICATION OF SPECIMEN WRITING AND THUMB IMPRESSION OF THE ACCUSED - WHETHER TAKING OF SPECIMEN WRITING AND THUMB IMPRESSION OF THE ACCUSED OFFENDS AGAINST THE PROTECTION GIVEN TO AN ACCUSED BY ARTICLE 20 (3) OF THE CONSTITUTION - WHETHER THE EVIDENCE AS TO THE IDENTITY OF THE WRITING AND FINGER IMPRESSION CAN BE TAKEN INTO CONSIDERATION IN VIEW OF THE ACQUITTAL OF THE ACCUSED IN RESPECT OF CHARGES UNDER SECTIONS 82C AND 82D OF THE INDIAN REGISTRATION ACT.

Fact of the Case:

The accused, Sekender Sk. and Hasibuddin Sk., were charged with forgery under Section 467 of the Indian Penal Code for allegedly creating a forged document purporting to be a heba-bil-waz (deed of gift) executed by Kaimuddin Sk., the grandfather of Hasibuddin Sk. The prosecution alleged that Sekender Sk. impersonated Kaimuddin Sk. and put his thumb impressions on the document, while Hasibuddin Sk. identified him as Kaimuddin Sk. before the Sub-Registrar.

Finding of the Court:

The court found that the evidence of the finger print expert and the hand writing expert established that the thumb impressions and writings on the disputed document were identical to the specimen thumb impressions and writings of Sekender Sk. and Hasibuddin Sk., respectively. The court also found that the accused did not raise any objection when their specimen writing and thumb impressions were taken, and that there was no suggestion that they were compelled to do so.

Issues: 1. Whether the taking of specimen writing and thumb impression of the accused offended against the protection given to an accused by Article 20 (3) of the Constitution. 2. Whether the evidence as to the identity of the writing and finger impression could be taken into consideration in view of the acquittal of the accused in respect of charges under Sections 82c and 82d of the Indian Registration Act.

Ratio Decidendi: 1. The court held that the taking of specimen writing and thumb impression of the accused did not offend against the protection given to an accused by Article 20 (3) of the Constitution. The court distinguished between compelled testimony and volitional acts of an accused which are evidence, or facilitate collection of evidence against him, and held that the latter is not to be deemed "compelled" merely because the act is relied upon in the judicial proceeding against the person accused. The court also held that the accused cannot be compelled to give his specimen writing or signature, but there is no legal bar to the accused being merely asked to give his specimen writing and signature. 2. The court held that even though the learned Judge, in his opinion erroneously, came to a conclusion as to the legality of taking the finger prints and specimen writing of the accused, and the evidence as to the identity of the fingerprint and the writing, and signature, and no appeal was preferred by the State against that decision, the court was entitled to take the entire evidence which was recorded in the course of the same proceeding, and come to its own conclusion. When a reference is made under Section 307 of the Criminal Procedure Code, the whole matter is open before the High Court and the High Court cannot be prevented from considering all the items of evidence, even though on the basis of the same evidence the learned Sessions Judge has come to a different conclusion on a connected charge which was not before the Jury.

Final Decision: The court rejected the reference made by the Additional Sessions Judge and convicted Sekender Sk. under Section 467 of the Indian Penal Code and Hasibuddin Sk. under Section 467/109 of the Indian Penal Code, sentencing each of them to suffer rigorous imprisonment for two years.