An order compelling an accused person to furnish specimen writings and signatures violates the fundamental right against testimonial compulsion under Article 20(3) of the Constitution.

MITTER, J. :- This Rule was issued upon the District Magistrate of Howrah to show cause why an order of a learned Magistrate dated May, 1, 1958, allowing the investigating officer to take the specimen writings and signatures of the petitioner should not be set aside. The petitioner is an accused in a case under the Bengal Excise Act. The point involved is whether the impugned order infringes the petitioner's fundamental right guaranteed under Art. 20(3) of the Constitution.

2. Before we deal with the point, we must say that the order concerned could not have been made under Sec. 73 of the Indian Evidence Act, as the order was made in the course of an investigation. It is not disputed that there is no provision in the Code which allows a Magistrate to make such an order.

3. Art. 20(3) is in these terms :

"No person accused of any offence shall be compelled to be a witness against himself."

That the petitioner is a person accused of an offence admits of no doubt. There is also no doubt that the guarantee under Art. 20(3) is against "testimonial compulsion." Nevertheless, it is necessary to construe the meaning of the phrase "to be a witness against himself". For a little while, it was erroneously thought that the expression was confined to the oral evidence of an accused when he gave evidence. "To be a witness against himself" would, in our view, mean "to furnish evidence against himself." Such evidence can be furnished as much by word of mouth as by hand. We see nothing in the language of the Article to confine the guarantee to parol evidence. As their Lordships of the Supreme Court observed in M.P. Sharma v. Satish Chandra, AIR 1954 SC 300 :

"Broadly stated the guarantee in Art. 20(3) is against "testimonial compulsion". It is suggested that this is confined to the oral evidence of a person standing his trial for an offence when called to the witness-stand. We can see no reason to confine the content of the constitutional guarantee to this barely literal import. So to limit it would be to rob the guarantee of its substantial purpose and to miss the substance for the sound as stated in certain American decisions. The phrase used in Art. 20(3) is "to be a witness." not merely by giving oral evidence but also by producing documents or making intelligible gestures as in the case of a dumb witness (see S. 119, Evidence Act) or the like. '"To be a witness" is nothing more than ''to furnish evidence", and such evidence can be furnished through the lips or by production of a thing or of a document or in other modes."

4. The guarantee is against compelled testimony, both in and out of court. In our view, both the points are concluded by the decision of the Supreme Court. Accordingly, we would respectfully dissent from the Bench decision of this Court reported in. AIR 1955 Cal 247, Sailendra Nath Sinha v. The State.

5. In the result, we must allow this application, set aside the order of the learned Magistrate, dated May, 1, 1958, and make the Rule absolute.

6. Let the records be sent dawn at an early date.

7. BHATTACHARYA, J. :- The meaning and scope of the Art. 20(3) was elaborately reviewed by Jagannadhadas J. in AIR 1954 SC 300 : 1954 SCA 449. It may be summed up as follows : "Broadly stated the guarantee in Art. 20(3) is against 'testimonial compulsion. It is suggested that this is confined to the oral evidence of a person standing his trial for an offence when called to the witness-stand. There is no reason to confine the content o£ the constitutional guarantee to this barely literal import. So to limit it would be to rob the guarantee of its substantial purpose and to miss the substance for the sound as stated in certain American decisions. The phrase used in Art. 20(3) is 'to be a witness'. A person can 'be a witness' not merely by giving oral evidence but also by producing documents or making intelligible gestures as in the case of a dumb witness (see S. 119, Evidence Act) or the like. 'To be a witness' is nothing more than 'to