( 1 ) THIS Revision involves the extent and implications of the fundamental right against self-incrimination embodied in Clause (3) of Article 20 of our Constitution in the words : no person accused of any offence shall be compelled to be a witness against himself". Since I propose referring the case to a Division Bench I shall give but a brief account of the facts of the case and the state of the law applicable.

( 2 ) THE facts are these. The applicant, who is an official of the Post Office of Pilibhit, was sent up for trial for the offence of embezzlement under Section 409,. P. C. , and the authorship of certain writings was one of the facts at issue. A specimen of his writing or signature was taken by the Committing Magistrate, but for some undisclosed reason was not sent for expert examination. At the trial before the Sessions Judge the Government counsel applied for sending the specimen to an expert, to which the applicant strongly objected, After hearing the parties the learned sessions Judge passed an order which was in two parts : first, that the specimen previously taken before the Magistrate be sent for expert examination; and second, that, if the State counsel so liked a fresh specimen be taken from the applicant for purposes of comparison,

( 3 ) BOTH the Magistrate and the Sessions Judge acted manifestly under the provisions of Section 73 of the Indian Evidence Act, which provides :

in order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made, any signature, writing or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing or seal has not been produced or proved for any other purpose. The Court may direct any person present In Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person. This section applies also, with any necessary modifications, to finger-impressions. "

( 4 ) THE applicant has come up in revision to this Court and contends that both parts of the learned judges order contravene Article 20 (3) of the Constitution inasmuch as they amount to compelling him to be a witness against himself.

( 5 ) THE leading Indian case on the subject is that of M. P. Sharma v. Satish Chandra, AIR 1954 sc 300 (A ). Analysing the terms in which the fundamental right under Article 20 (3) has been granted their Lordships of the Supreme Court point out that it consists of three components : (1) it is a right pertaining to a person accused of an offence"; (2) it is a protection against

"compulsion to be a witness" and (3) it is a protection against such compulsion resulting in his giving evidence "against himself". But in view of the historical background of the right and its pros and cons they consider that "there is no inherent reason to construe the ambit of this fundamental right as comprising a very wide range". With regard to "compulsion" they state : "every positive volitional act which furnishes evidence is testimony, and testimonial compulsion connotes coercion which procures the positive volitional evidentiary acts of the person, as opposed to the negative attitude of silence or submission on his part. " They further rule that the protection afforded to an accused persons in so far as it is related to the phrase to be a witness" is not merely in respect of testimonial compulsion in the Court-room but may well extend to compelled testimony previously obtained from him. Finally they declare that the Constitutional guarantee extends both to oral and documentary evidence.

( 6 ) TO these principles laid down by the Supreme Court it may be added that since Article 20 (3) gives only a privilege to an accused person he can always waive it.

( 7 ) APPLYING these principles to the facts of the instant case,

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