A Magistrate has the power to direct that sample of hairs of an accused may be taken for the purpose of comparison against his wishes and that such a course of action does not violate the fundamental right of the accused as guaranteed by Art. 20 (3) of the Constitution.

( 1 ) TWO questions of law of some importance arise for determination in this revision. The first question is whether a Magistrate has power to direct that sample of hairs of an accused may be taken for the purpose of comparison against his wishes and the second question is whether such a course of action violates the fundamental right of the accused as guaranteed by Art. 20 (3) of the Constitution.

( 2 ) BEFORE considering the rival contentions advanced at the Bar it will be useful to notice the facts of the case in brief. Dr. P. S. Negi, Chief Medical Officer, Hardwar was murdered and when inquest was held on his body some hairs were found in his hands. The hairs were sealed in a packet by the Investigating Officer. During investigation it was revealed that at the time of incident a scuffle had ensued between the deceased and the assailant and in the course of said scuffle the deceased had caught the assailant by holding the hairs of his head and the same had come in his hand when the assailant got himself released from the grip of the deceased and ran away from the spot. The sealed packet containing the hairs was immediately kept in safe custody in the Malkhana. The prosecution moved an application before the C. J. M. , Hardwar praying that samples of hairs of accused Neeraj Sharma and Rajeev alias Raju may be taken for getting the same compared with the hairs which were found in the hands of the deceased at the time of the inquest. This application was opposed by the accused on the ground that there is no provision of law which may empower the Magistrate to issue a direction for taking samples of the hairs of the accused against his wishes and further that the taking of hairs would violate Art. 20 (3) of the Constitution. Learned C. J. M. , Hardwar has, by the impugned order dated 28-6-1991, allowed the application moved by the prosecution and has directed that samples of hairs of the accused may be taken. Aggrieved the accused has filed the present revision.

( 3 ) THE second question may be considered first. Article 20 (3) of the Constitution provides that no person accused of any offence shall be compelled to be a witness against himself. There is no dispute that a first information report was lodged soon after the commission of the murder and the applicant was arrested during the course of investigation. As held by Supreme Court in Ramanlal Bhogilal Shah v. D. K. Gupta, air 1973 SC 1196 : (1973 Cri LJ 921) and Ramesh Chandra Mehta v. State of West Bengal, AIR 1970 SC 940 : (1970 Cri LJ 863) with the lodging of a first information report a person is accused of an offence within the meaning of Art. 20 (3) of the Constitution. The question to be examined is whether by taking sample of hair from an accused for the purpose of comparison he comes within the meaning of the expression "to be a witness" and whether by such an act he is testifying "against himself. If by mere taking of sample of hairs he does not become a witness and he is not furnishing evidence against himself, the provisions of Art. 20 (3) will not apply. Expressions furnishing evidence and to be a witness have been explained by Supreme Court in State of Bombay v. Kathi Kalu, AIR 1961 SC 1808 : (1961 (2) Cri LJ 856) while considering the question of taking of handwriting of an accused for the purpose of comparison. The court observed as follows in para 11 of the report :". . . . . . . . . . The giving of finger impression or of specimen signature or of handwriting, strictly speaking, is not "to be a witness". "to be a witness" means imparting knowledge in respect of relevant facts, by means of oralstatements, or statements in writing by a person who has personal knowledge of the facts to be communicated to a court or to a person holding an enquiry or investigation. . . . . . . . When an accused person is called upon by the court or any other authority holding an investigation to give his finger impression or signature or a specimen of his handw