This is a reference made by the Sessions Judge, Rajkot in Cri. Revn. Application No. 39/71 of his file wherein he has recommended that the order made by the Court of J.M.F.C., Rajkot, in Criminal Case No. 483/70 of his file compelling the accused-petitioner to get himself medically examined in order to determine the age of the defect in the vision of one of his eyes should be set aside. The learned Sessions Judge is of the opinion that the Criminal Procedure Code contains no provisions under which an accused person can be ordered to submit to medical examination which is likely to enable the prosecution to obtain incriminating evidence against him.

2. It is an admitted position that the petitioner No. 1 Najabhai Ranchhod, who is the accused No. 1 before the learned Magistrate, is prosecuted for the offence under Section 419 read with Section 34 I.P.C. on the allegation that with a view to obtain a driving licence from the Regional Transport Office, he requested the accused No. 2, Gandalal Vashram, to appear before the Regional Transport Officer under pretext that he was himself Najabhai Ranchhod. The allegation of the prosecution is that the petitioner did so as he apprehended that on account of his defective vision, the Regional Transport Officer would not issue a driving licence to him.

3. After almost the entire evidence of the prosecution was over, the Public Prosecutor gave an application that since one of the questions involved in the trial was whether petitioner Najabhi Ranchhod was defective in his vision on the day on which he obtained licence, it would be in interest of justice if he was ordered to submit himself to the medical examination with a view to determine the age of the defect in his vision. This application was given by the learned Prosecutor to the trial Court on 21-5-71. The petitioner resisted that application but the learned Magistrate, passed an order on 23rd June, 1971 requiring him to produce himself medical examination "to determine the age of the blindness of in one eye."

4. Against this order both the original accused preferred revision application in the Court of Sessions Judge, Rajkot, where the said application was registered as criminal revision application No. 39/71. As stated above, the learned Sessions Judge is of the opinion that the order of the learned Magistrate was not sustainable. He has, therefore, made this reference.

5. Shri Thakkar, who appeared on behalf of the State has conceded that the reference should be accepted. In my view the concession is rightly made by Shri Thakkar, because there is no provision in the Criminal Procedure Code under which a Court can compel an accused person to get himself medically examined. In M. P. Sharma v. Satish Chandra, AIR 1954 SC 300 the Supreme Court has considered the principle underlying Article 20(3) of the Constitution, which says that no person accused of any offence shall be compelled to be a witness against himself. This Article of the Constitution obviously contains a prohibition against what is known as testimonial compulsion. While considering the scope of this article, the Supreme Court has made certain observations which are very pertinent to the facts of this case. It was contended before the Supreme Court in the above referred case that guarantee in Article 20(3) of the Constitution against testimonial compulsion is confined only to oral evidence of a person standing his trial for an offence when he is called to the witness-stand. Rejecting this contention, the Supreme Court has said that there is no reason to confine the content of the constitutional guarantee to its barely literal import, and therefore, 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 decision. After saving this, the Supreme Court has made the following observations :

"To be a witness is nothing more than to furnish evidence, and such evidence can be furnished through