Research question

FACTS

A magistrate issues an order authorizing the investigation officer to take the specimen handwriting and fingerprints of Mr. “X”, an accused against his willingness. “X” challenges the order stating that it violates his Fundamental Rights under Article 20(3)[1]. Article 20(3) 0f the Indian Constitution is a protection for people who are accused of an offence and are compelled to be a witness against themselves. It states that “No person accused of any offence shall be compelled to be a witness against himself.” 

ISSUES

  1. Whether Article 20(3) of the Constitution of India, which protects a person accused of an offence from being compelled to be a witness against himself, extends to protecting such an accused from being compelled to give his fingerprints or handwriting samples during the course of investigation into an offence?
  2. Can a Magistrate authorize the investigating agency to collect fingerprints or handwriting samples of the person accused of an offence?

JURISDICTION

Mr. X can approach the High Court under Article 226[2] of the Constitution of India for violation of his Fundamental Right under Article 20(3). High Courts are empowered to take action to enforce the fundamental rights conferred by part III of the Constitution or for any other purpose. Article 226 empowers the high court to issue, to any person or authority, including the government, writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari.

WHAT STATUTES AND PROVISIONS CAN MR. X TAKE SHELTER OF?

Mr. X can take shelter under Article 20(3) of the Indian Constitution. Art. 20(3) which embody the privilege against self-incrimination read, “No person accused of any offence shall be compelled to be a witness against himself”. Further, under CrPC, the legislature has guarded a citizen’s right against self-incrimination. Section 161 (2)[3] of the Code of Criminal Procedure states that every person is bound to answer truthfully all questions, put to him by officer, other than questions the answers to which would have a tendency to expose that person to a criminal charge, penalty or forfeiture. The International Covenant on Civil and Political Rights, 1966 to which India is a party states in Art. 14(3)(g)[4] states that ‘No party can be compelled to be a witness against himself or to confess guilt[5].’

PRECEDENTS

The foundation of the protection against self-incrimination is put forward aptly by the Court in Saunders v. United Kingdom[6]. This case held that the right lies for the protection of the accused by the improper compulsion of the authorities, thereby contributing to the avoidance of the miscarriages of justice.

M. P. Sharma v. Satish Chandra[7] was a significant ruling on the Interpretation of Part III of the Constitution after independence. This judgement upheld the constitutionality of the issuance of search warrants and the seizure of private documents vis-à-vis Article 20(3). It excluded the right to privacy from the ambit of Article 20(3), stating that importing the right to privacy into a totally different fundamental right cannot be justified. 

The majority in State of Bombay v. Kathi Kalu Oghad[8] upheld the constitutionality of handwriting samples, fingerprints, thumbprints, palm prints, footprints or signatures obtained from the accused. It also held that the giving of a statement by an accused in police custody did not lead to an assumption that the same was a product of coercion. This case law redefined what constituted ‘being a witness against himself’ taking M.P. Sharma[9] as precedent. The two issues contended were that of the admissibility of handwriting specimens as evidence in the light of Article 20(3) and whether compulsion was imputed in the taking of such specimens in police custody. The Apex Court held that handwriting exemplars, fingerprints, thumbprints, palm prints, footprints or signatures were considered to be outside the scope of Article 20(3). It was also held that the giving of a statement by an accused in police custody gave the Court no reason to believe that coercion had been used in the procurement of the same. It was opined in this case that the phrase ‘to be a witness’ must be restricted to mean ‘imparting knowledge in respect of relevant facts by means of oral statements 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 on matters relevant to the subject under inquiry’. The judgment perceived a witness to be one who gave oral or written statements which by themselves had a tendency to incriminate the accused. All other kinds of physical, biometric, forensic and material evidence were not considered a ‘personal testimony’ and did not invoke the right against self-incrimination. Their purpose was seen as only to lend reliability to other evidence, and efforts to conceal their true nature would not change their ‘intrinsic character’. Consequently, handwriting samples, fingerprints, thumb-prints, palm prints, footprints or signatures, were declared as material evidence, not incriminating the accused and falling outside the scope of Article 20(3), thereby subjecting them to compulsion in the due process of law. After this landmark judgement, an accused can be compelled to produce or give his handwriting sample, under Section 73[10], Indian Evidence Act, 1872, without invoking Article 20(3). The following view of Justice K.C. Das Gupta’s concurring opinion in State of Bombay v. Kathi Kalu Oghad[11] further summarize this view.

                 “It has to be noticed that Article 20(3) of our Constitution does not say an accused person shall not be compelled to be a witness. It says that such a person shall not be compelled to be a witness against himself.

The question that arises therefore is: Is an accused person furnishing evidence against himself, when he gives his specimen handwriting, or impression of his fingers, palms or foot? The answer to this must, in our opinion, be in the negative.” 

CRITICAL ANALYSIS

The right against self-incrimination is based on the Latin maxim ‘Nemon tenetur seipsum accusare’ which means that ‘No man is obliged to accuse himself. Article 20(3) protects an accused from self-incriminating himself only if any statement of his might result in prosecution and gives an accused the right to remain silent over any issue which tends to incriminate him. The accused need not to make any statement against his will as it is for the prosecution to establish his guilt beyond all reasonable doubt and the accused is presumed to be innocent till proved guilty.

The provision of Article 20(3) contains the following ingredients: 

  • It is a right available to a person “accused of an offence”.
  • It is a protection against compulsion to be a witness.
  • It is a protection against such compulsion‖ resulting in his giving evidence against himself.

The right against self-incrimination is very important as when a person suspected or accused of a crime is compelled to testify on his/ her own behalf through methods involving coercion, threats or inducements during the investigative stage, there is a higher likelihood of such testimony being false or distorted out of sheer despair, anxiety and fear. 

The judgment of State of Bombay v. Kathi Kalu Oghad perceived a witness to be one who gave oral or written statements which by themselves had a tendency to incriminate the accused. All other kinds of physical, biometric, forensic and material evidence were not considered a ‘personal testimony’ and did not invoke the right against self-incrimination. 

The next question in consideration is whether a Magistrate is competent to authorize the investigating agency to collect fingerprints or handwriting samples of the person accused of an offence. Section 5[12] of the Identification of Prisoner’s Act, 1920 deals with the power of Magistrate to order a person to be measured or photographed wherein it states that a Magistrate can direct any person to allow his measurements or photograph to be taken. Measurement has been defined under Section 2(a)[13] to include finger impression and footprint impression. They do not include specimen signature or handwriting[14]. This act was enacted with the object to provide legal authority for the taking of measurement, finger-impressions, footnotes and photographs of persons, convicted of, or arrested in connection with certain offences. In State of Uttar Pradesh vs Ram Babu Misra[15] after holding that a Judicial Magistrate has no power to direct an accused to give his specimen writing for the purposes of investigation had suggested to Parliament that a suitable legislation be made on the analogy of Section 5 of the Identification of Prisoners Act, 1920 so as to invest a Magistrate with the power to issue directions to any person including an accused person to give specimen signatures and writings. The amendment came by way of insertion of Section 311 A[16] in the Cr.P.C by the Code of Criminal Procedure (Amendment) Act, 2005[17]. Under this Section, a Magistrate can direct any person, including an accused person, to give specimen signatures or handwriting for the purposes of any investigation or proceeding under this Code. Therefore a Magistrate while authorizing the investigating agency to collect fingerprints or handwriting samples of the person accused of an offence is under the provisions of law.

Therefore every citizen has the protection under Article 20 (3) which invokes protection against self-incrimination and gives an accused the right to remain silent over any issue which tends to incriminate him. Yet this right does not have under its purview being compelled to give fingerprints or handwriting samples during the course of investigation into an offence. It is so because even though it is cardinal to protect the accused person from the hazards of self-incrimination, it is equally significant to find a way of efficient and effective investigation of the crime and bringing the criminals to justice. 


[1] India Const. art 20(3).

[2] India Const. art 266.

[3] Code of Criminal Procedure, 1973, Act No. 2 OF 1974, §161 (2).

[4] International Covenant on Civil and Political Rights, 1966, art 14(3)(g)

[5] Id.

[6] Saunders v. United Kingdom (1997) 23 EHRR 313.

[7] M.P Sharma v. Satish Chandra AIR 1954 SC 300.

[8] State of Bombay v. Kathi Kalu Oghad AIR 1961 SC 1808

[9] M.P Sharma v. Satish Chandra AIR 1954 SC 300.

[10] Indian Evidence Act, 1872 §73.

[11] State of Bombay v. Kathi Kalu Oghad, AIR 1961 SC 1808

[12] Identification of Prisoner’s Act, 1920, Act No. 33 OF 1920, §5.

[13] Identification of Prisoner’s Act, 1920, Act No. 33 OF 1920, §2(a).

[14] Government of Manipur v. Thokchom Tomba Singh AIR 1969 Mani 22.

[15] State of Uttar Pradesh vs Ram Babu Misra AIR 1980 SC 791.

[16] Code of Criminal Procedure, 1973, Act No. 2 OF 1974, §311A.

[17] The Code of Criminal Procedure (Amendment) Act, 2005, No. 25 OF 2005.

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