M. C. DESAI, C. J.

( 1 ) I agree with my brother Uniyal, whose judgment I had the advantage to read, that the second question must be answered in the negative. Since the question is an important one, I would briefly state my reasons. The rule of exemption from compulsory self-incrimination in the english law is not regarded as a part of the law of the land of Magna Charta or the due process of law but is regarded as separate from, and independent of, due process and came into existence not as an essential part of due process but as "a wise and beneficent rule of evidence developed in the course of judicial decision". The wisdom of the exemption has never been universally assented to; many doubt it today, and it is best defended not as an unchangeable principle of universal justice, but as a law proved by experience to be expedient. It has no place in the jurisprudence of civilised and free countries outside of the domain of the common law and is nowhere observed in the search for truth outside the administration of the law. See Twining v. New Jersey, (1908) 211 U. S. 78 : 53 Law Ed 97. The Fifth Amendment of the American Constitution providing that nor shall any person be compelled, in any criminal case, to be a witness against himself which is based on the English common law, has been criticised, if not ridiculed.

"it is declared to have no logical relation to the abuses that are said to sustain it, and that the pretence for it, so far as based on hardship, is called an old womans reason (also a lawyers reason) and a double distilled and trebled refined sentimentality. "

So far as based on unfairness, it is called the fox hunters reason, its basis being that a criminal and a fox must have a chance to escape, the subsequent pursuit being made thereby more interesting", per Mckenna J. in Wilson v. U. S. (1910) 221 U. S. 361 (392) : 55 Law Ed 771 (784 ). In M. P. Sharma v. Satish Chandra, 1954 SCR 1077 : (AIR 1954 SC 300) referred to by my learned brother, Jagannath Das, J. stated that there was considerable debate as to the utility of the principle of protection against self incrimination and that it was seriously doubted in some quarters whether it did not have a tendency to defeat justice. At page 1086 (of SCR) : (at p 303 of AIR) he laid down that in view of this background there is no inherent reason to construe the ambit of this fundamental right as comprising a very wide range, though he did not consider it legitimate to confine it to the barely literal meaning of the words. The Supreme Court of America decided in Ullmann v. U. S. (1956) 350 U. S. 422 (427) : 100 Law ed 511 (519) that the privilege against self-incrimination which servos as a protection to the innocent as well as to the guilty should be given a liberal application and that"if it be thought that the privilege is outmoded in the conditions of this modern age, then the thing to do is to take it out of the Constitution, not to whittle it down by the subtle encroachments of judicial opinion".

( 2 ) THE fundamental right of a person accused of any offence that he shall not "be compelled to be a witness against himself", conferred by Article 20 (3) of our Constitution, is based on the english common law and the Fifth Amendment. It is not disputed that the immunity conferred by our Constitution is from compulsion to make an oral statement against oneself as well as from compulsion to produce documentary evidence against oneself. Neither oral nor documentary testimony can be compelled from an accused person; see State of Kerala v. Sankaran Nair, AIR 1960 Kerala 392 (FB) and the case of M. P. Sharma 1954 SCR 1077 : (AIR 1954 SC 300 ). The immunity is (1) from compulsion (2) of being a witness and (3) against oneself. Article 20 (3) is not infringed if an accused person is compelled to be a witness against someone else and not himself, or if he is compelled to do an act which does not amount to his being a witness, or if he becomes a witness against himself voluntar

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