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HIGH COURT OF ALLAHBAD
D. S. MATHUR, J.
Balraj Bhalla
Versus
Ramesh Chandra Nigam
Civil Misc. Writ No. 169 of 1958
Decided On : 31-07-1959
CRIMINAL PROCEDURE - Identification of Prisoners Act, 1920 - Ss. 5, 6 - Evidence Act, 1872 - S. 73 - Constitution of India, 1950 - Art. 20(3) - Taking of thumb and toe impressions of accused - Whether amounts to compelling accused to be a witness against himself - Interpretation of Art. 20(3) - Scope and limitations.
Fact of the Case:
The petitioner, Balraj Bhalla, was accused of conspiracy to misappropriate leave wages by forging thumb impressions of workers. During the investigation, the Magistrate ordered the petitioner to give his thumb and toe impressions for comparison with the disputed impressions. The petitioner challenged the legality of the order, arguing that it violated his fundamental right under Art. 20(3) of the Constitution not to be compelled to be a witness against himself.
Finding of the Court:
The court held that the taking of thumb and toe impressions of the accused under S. 73 of the Evidence Act did not amount to compelling the accused to be a witness against himself and was not in violation of Art. 20(3) of the Constitution. The court reasoned that the accused was not compelled to give his impressions and that his refusal to do so could be used against him as a presumption of guilt.
Issues: 1. Whether the taking of thumb and toe impressions of the accused under S. 73 of the Evidence Act violates the accused's fundamental right under Art. 20(3) of the Constitution not to be compelled to be a witness against himself? 2. Whether the accused's refusal to give his impressions can be used against him as a presumption of guilt?
Ratio Decidendi: 1. The court interpreted Art. 20(3) of the Constitution narrowly, holding that it only protects the accused from being compelled to give evidence against himself, and not from being compelled to provide physical evidence such as thumb and toe impressions. 2. The court also held that the accused's refusal to give his impressions could be used against him as a presumption of guilt, but only as a corroborative circumstance and not as the sole basis for a conviction.
Final Decision: The court allowed the petition in part, directing the police to return the petitioner's thumb and toe impressions and prohibiting them from using them in evidence. However, the court also held that the petitioner's refusal to give his impressions could be used against him as a presumption of guilt.
There was a third request that a writ of mandamus be issued commanding the respondent No. 1 to refrain from admitting the evidence of impressions of thumb and toes of the petitioner in the aforementioned case.
2. None of the respondents filed a counter-affidavit, though they put in appearance through the Standing Counsel. In the circumstances, the facts as mentioned in the petition and the affidavit accompanying thereto can be regarded as correct.
3. The petitioners case is that he is an employee of Swadeshi Cotton Mills Company, Limited, Juhi, Kanpur, and during the year 1954 was working as a clerk in the Employees State Insurance and Provident Fund section of the said Mills. Leave wages to the extent of Rs. 30,000/- are said to have been misappropriated by certain employees in the leave-with wages section of the aforesaid Mills. The petitioner had no connection with this section having been employed in another section at the time of the alleged embezzlement. During the year 1954, five persons were arrested in respect of the said embezzlement, one of whom was Raj Kumar Nigam.
He turned an approver and in his statement implicated the petitioner and three other persons. According to the approver, the petitioner was a participant in the conspiracy to misappropriate the aforesaid amount by forging thumb impressions of workers of the Company to whom leave wages were due and thereby did misappropriate the amount. It was alleged that the petitioner had put his thumb impressions on certain vouchers. The petitioner surrendered himself in Court on 21-9-1956, when he was released on bail.
4. On 27-9-1956 the prosecution presented an application before the respondent No. 1 with the request that the impressions of thumb and toes of the petitioner be taken in order to facilitate the investigation of the case. On 25-10-1956 the petitioner filed an application taking exception to the obtaining of impressions of his thumb and toes. A true copy of the application so moved is Annexure A to the affidavit. Respondent No. 1 rejected the application of the petitioner under order, Annexure B. In compliance with the orders of the Court, the impressions of thumb and toes of the petitioner were taken by the prosecution in spite of his verbal protests.
5. On 16-11-1956, the petitioner, on the advice of the counsel, presented an application to respondent No. 1 requesting him to direct the prosecution to refrain from taking any further steps in the matter of thumb impressions. The application moved is Annexure C. No final orders were passed on the application. The petitioner moved another application on 1-12-1956 requesting respondent No. 1 to order that the investigation should not make use of the aforesaid impressions. This application has not yet been disposed of.
6. The petitioners case is that the order of respondent No. 1 and also the use which is being made of the impressions of his thumb and toes are in contravention of Art. 20(3) of the Constitution of India. The petitioner also challenged the legality of Ss. 5 and 6 of the Identification of Prisoners Act, (Act No. 33 of 1920), and of the second and third part of S. 73 of the Evidence Act.
7. For purposes of the present proceeding, it is no
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