SHIV DAYAL SHRIVASTAVA, J.

( 1 ) THE petitioner was convicted under Section 411 of the Indian Penal Code by the additional Magistrate First Class, Gwalior, and sentenced to three months R. I. The conviction and sentence have been upheld by the Additional Sessions Judge, gwalior.

( 2 ) THE case for the prosecution was that in the night between the 7th and the 8th may, 1956, a theft was committed in the house of Mohanlal Dabra Mandi. A report was lodged to the police at 6. 30 A. M. on the 8th May by Mohanlal and a list of property was also submitted by him (that is Ex. P2 ). In connection with that theft, nazir Singh petitioner was arrested on May 11, 1956 by Udaya Bhan Singh (P. W. 1) Station Officer Police, Dabra, The same day, he was transferred to Lashkar kotwali. There he gave an information (memo Ex, P8) on which, and at his instance, three articles were recovered from the possession of Saublwgmal (P. W. 2) as per memo. Ex. P6. The allegation was that the petitioner, under a fictitious name kartar Singh, sold those stolen ornaments to Saubhagmal for Rs. 175/- as per entry in his bahikhata (Ex. P5) on which according to the prosecution there was a thumb impression of the accused. These facts were believed by the courts below and hence the conviction under Section 411 I. P. C. was based on presumption under illustration (a) of Section 114 of the Evidence Act.

( 3 ) SHRI Dey learned counsel for the petitioner has placed as foremost among his arguments, a point of law. The thumb impression on Ex. P5 was compared by shvipal Rao (P. W. 9), an expert, with another thumb impression (Ex. P4) which was taken when the accused was in police custody. This has been challenged as unconstitutional and in violation of the fundamental right guaranteed under Article 20 (3) of the Constitution. The learned counsel has relied on two decisions of this court reported in Brij Bhushan Raghunandan Prasad v. The State, AIR 1957 Madli pra 106 and State v. Ram-kumar Ramgopal, AIR 1957 Madh Pra 73 In my opinion, the first case is clearly distinguishable because there it was under order of a magistrate that the accused was made to supply a piece, of evidence. In the second case also, it was assumed that because the specimen handwriting of the accused was obtained before, a Magistrate that amounted to testimonial compulsion. In the present case, the accused did not on any occasion, allege that he was compelled to give his specimen thumb impression. When the question whether the impressions of his thumb and fingers (Ex. P4) had been taken, and what he had to say about it, was put to the accused tinder Section 342, Cr. P. C. , his answer was "ex. P 4 ko dekhkar kaha yeh anguthe wa un-galion ke nishan mujhse Dabra police ne liye the. " Neither in this statement, nor in a subsequent statement on oath (under Section 342-A) did the accused state that the impressions were taken under compulsion or against his will. It is implicit in the provisions contained in Article 20 (3} of the Constitution that unless and until there is an element of compulsion there cannot be the infringement of that fundamental right.

( 4 ) IN the case of M. P. Sharma v. Satish Cbandra 1954 S. C. R. 1077: (AIR 1954 sc 300), their Lordships have laid down that two elements in the act complained of are essential in order to attack the constitutional prohibition: (1) It must be a positive volitional act as opposed to the negative attitude of silence or submission on the part of the accused; and (2) such an act must be procured by coercion. Applying these tests I am clearly of the opinion that taking finger prints of an accused, while he remains merely passive, is beyond the pale of the constitutional protection. But where the accused is made to give his finger prints un- der some form of duress, that would be hit by Article 20 (3 ). The distinction may appear to the thin but it is real.

( 5 ) IN Willis' Constitutional Law of the United Slates it is stated at page 522: "is the taking of fing

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