By: Janvi Shukla[1]

In the Supreme Court of India

Name of the case	The State of Bombay vs Kathi Kalu Oghad and Others
Citation	1961 AIR 1808, 1962 SCR (3) 10
Date of judgement	8TH August, 1961
Appellant	The State of Bombay
Respondent	Kathi Kalu Oghad and Others
Bench/ Judges	B.P. Sinha (C.J), J.R. Mudholkar, K. Subba Rao, K.N. Wanchoo, N.R. Ayyangar, Raghubar Dayal, P.B. Gajendragadkar, Syed Jaffer Imam, A. K. Sarkar, K.C. Dasgupta, S.K. Das
Constitution/Statutes involved	The Constitution of India, 1849; The Indian Evidence Act, 1872;
Important Sections/Articles	The Constitution of India, 1949– article 20(3), Article 20 The Indian Evidence Act, 1872– Ss. 27, 73

Abstract

Based on handwriting samples collected three times while the suspect was in jail by the police, the trial court was able to identify the murder suspect and found him guilty. The defendant appealed to the high court, which ruled that the handwriting sample evidence was inadmissible since it amounted to coercion and was taken while the defendant was in police custody. The accused was found not guilty when the court determined that the identification of the respondent could not have been proven against other relevant evidence. The decision under review was ultimately reached because of the state of Bombay’s petition to the Supreme Court.

Introduction

The present case was the conclusion of three appeals heard concurrently insofar as they raise serious questions of law concerning the interpretation of the constitution, with specific regard to article 20 (3). According to Article 20(3) of the Constitution, “no individual accused of any wrongdoing will be compelled to be a witness against himself.” This bigger Bench was formed to reconsider some of the legal propositions established by this Court in the matter of M.P. Sharma v. Sathish Chandra in which the court held that the term “to be a witness” mentioned in Art..20(3) of the Indian Constitution was equivalent to “furnish evidence,” and thus compulsorily requesting fingerprints and handwriting samples falls within the purview of that. In the case of Kathi Kalu Oghad, this premise was disputed. 

Popat Ramji was murdered on the night of October 31, 1954, in Halaria village, Gohilwad District, in what was then the state of Bombay. When locals incriminated Champraj and Kathi Kalu Oghad, they became major suspects and were captured within a month. During the inquiry, oghad was taken in police custody and asked to rewrite the contents of a chit discovered at the crime site. He complied without a lawyer, alone with the Inspector and Deputy Superintendent of Police. Based on forensic examination, it was determined that Oghad had written the incriminating chit, and Champraj and Oghad were jointly prosecuted in Sessions Case No. 7 of 1955. They were convicted of murder and condemned to life imprisonment. However, the court excluded the handwriting exemplars from evidence. Oghad’s attorney was convinced that the police violated his constitutional right to remain silent under Article 20(3) by requesting him to provide anything while in custody. Though there was no obvious evidence of coercion, the Court remarked that the situation had an element of compulsion.  When the High Court heard Oghad’s prison appeal, it not only upheld the trial court’s observations omitting the exemplars, but it also considered the remaining evidence inadequate to sustain a conviction and acquitted him.

Facts of the case

In the first case, Criminal Appeal 146 of 1958, the appellant is the State of Bombay. The respondent and another person were charged under Section 302 read with Section 34 of the Penal Code, as well as Section 19(e) of the Indian Arms Act (XI of 1878). The Trial Court found him guilty of those counts and sentenced him to life imprisonment under Section 302 read with Section 34 of the I.P.C., as well as two years hard imprisonment under the Arms Act. The identification of the respondent as one of the two accused perpetrators was the most significant matter to be determined by the Court throughout the trial. The Court’s decision on respondent, as one of the two alleged perpetrators, was the most crucial. In addition to other evidence, the prosecution introduced a chit purportedly in his handwriting and handed by him. To substantiate that evidence was written by the respondent, the police got three specimen handwritings from him throughout the inquiry on three distinct sheets of paper labelled Exs. 27, 28, and 29.

The Handwriting Expert examined the contested document, Ex.5, with the acknowledged handwritings on Exs. 27, 28, and 29, concluding that they were all written by the same individual. The admissibility of the specimen writings included in Exs. 27, 28, and 29 was contested throughout the trial and in the High Court considering the stipulations of Art. 20(3) of the Constitution. The accused’s specimen writings were collected by the police while he was in police custody, however it was questioned whether the accused was compelled to produce those writings within the sense of cl. (3) of Art. 20. Based on their findings, the High Court concluded that the respondent’s identification had not been proven beyond a reasonable doubt. As a result, they acquitted him, giving him the benefit of the doubt. The State of Bombay petitioned this Court for special leave to appeal the High Court’s judgement and order of acquittal.

The accused individual was convicted by the Courts below under sections 380 and 457 of the I.P.C., as well as section 19(f) of the Indian Arms Act, in Criminal Appeals 110 and 111 of 1958, which arose from the same set of facts. The circumstances of the case required to bring forth the grounds in dispute are that a business in Hissar, Punjab, was burgled. Four double-barreled weapons, one single-barreled gun, and a rifle were stolen during the burglary.

During his interrogation by the police during the investigation stage, the appellant is accused of telling them that he buried one 22 bore rifle, two 12 bore double-barreled guns, and one 18 single-barreled guns from the stolen weaponry from the business in Hissar. It is claimed that the rifles and firearms were retrieved because of the accused’s knowledge and his pointing out the specific place where these buried goods might be found. During the inquiry, the police took control of certain glass panes and phials from the burgled business that bore palm and finger imprints.

The investigative police officer obtained imprints of the accused’s palms and fingers in the presence of a Magistrate to compare the impressions on those glass panes and phials with those of the accused. Based on the evidence presented by the prosecution, including the fact of the recovery of the guns and the proof of the identification of the accused’s impressions, he was convicted and sentenced to specified terms of imprisonment, as well as a fine of one thousand rupees, by the Courts below. The Court of Appeal amended the fine and jail term on appeal. Revisional applications were rejected by the High Court in revision.

The condemned individual applied to the High Court of Punjab for and received the requisite certificate of fitness under Article 134(1)(e) of the Constitution. The issues raised in this Court were that section 27 of the Indian Evidence Act violates Art. 14 of the Constitution and that the impressions of the appellant’s palms and fingers taken from him after his arrest and compared with the impressions on the glass panes and phials were not admissible evidence under Art. 20(3) of the Constitution.

In the last case, Criminal Appeal 174 of 1959, the State of West Bengal preferred this appeal by special leave granted by this Court under Art. 136(1) of the Constitution, against the judgement and order of the High Court at Calcutta, dated June 4, 1959, passed in its revisional jurisdiction, against an order of the Magistrate, First Class, Howrah, directing the respondent to give his specimen writing and signature, under Section 73 of the Indian Evidence Act. During an investigation into a criminal case involving the trafficking of illegal opium, the respondent’s house was searched, and a quantity of contraband opium was allegedly discovered in his possession. The respondent and another individual appeared before a Magistrate of the First Class in Howrah and were later freed on bail.

Based on the materials and statements obtained during the police investigation of the case, it was determined that there were reasonable grounds to believe that the endorsement on the back of certain railway receipts for consignment of goods seized at Howrah Railway Station was in the respondent’s handwriting, and it was thus necessary to take his specimen writing and signature for comparison. When the accused were brought before the Magistrate, the Investigating Officer requested that the samples writing, and signature of the responder be taken.

The respondent refused to offer his specimen writing and signature on an adjourned date when the accused people, including the respondent, were present in the Court of the Magistrate, claiming that Art. 20 (3) of the Constitution prevented any such specimens being obtained against the accused’s will. After hearing the parties, the learned Magistrate overturned the accused’s objection and granted the prosecution’s request to take the respondent’s specimen writing and signature. The respondent filed a petition with the High Court of Calcutta under Section 439 of the Cr. P.C. and Article 227 of the Constitution.[2]

Issue raised

• whether such specimens were taken in police custody under extreme pressure?
• whether Court’s request to an accused person present in Court to provide his specimen writing and signature for the purpose of comparison under the terms of Section 73 of the Indian Evidence Act violates the basic right contained in Article 20 (3) of the Constitution?

Arguments from the Appellant side

• the learned Attorney General, representing the Union According to him, a person seeking protection under the clause must satisfy percent II of the four constituent elements contained in Art. 20 cl. (3), namely, (1) he must be an accused person; (2) he must have been compelled; (3) the compulsion must be to be a witness; and (4) the compulsion must be against himself.
• According to him, compulsion entails coercion or restraint and does not include simply being asked by the police to do anything or being directed by a court to provide a thumb impression or samples writing. In other words, coercion must be associated with what has been described as “third degree” ways of extracting confessional declarations.

Arguments from the Respondent side

• Mr. S.P. Varma, for the accused in the first instance, maintained that the provision of the Constitution provides total protection to an accused person, regardless of time and location, and regardless of the type of the evidence, whether oral, documentary, or material.
• According to his theory, if an accused person makes any statement or discovery, there is not only a rebuttable presumption that he was coerced into doing so, but it should also be considered conclusive proof of that inferential fact.
• According to him, any type of incentive is also included in the term “compulsion” by the police or elsewhere. According to him, the incriminatory quality of the remark or communication, rather than the accused’s volition, is the litmus test. As a result, any remark made to a police officer while in police custody is prohibited by the provision of the Constitution.

Related Provisions

The Constitution of India, 1949

1. Article 20: Protection in respect of conviction for offences
2. No person shall be convicted of any offence except for violation of the law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.
3. No person shall be prosecuted and punished for the same offence more than once.
4. No person accused of any offence shall be compelled to be a witness against himself.[3]

• Article 20(3)

“No person accused of any offence shall be compelled to be a witness against himself.”[4]

The Indian Evidence Act, 1872

• Section 27: How much of information received from accused may be proved—

“Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.”[5]

• Section 73: Comparison of signature, writing or seal with others admitted or proved—

“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.” [6]

Judgement

“No one accused of any crime shall be compelled to testify against himself.” The Full Court considered these provisions in the case of M. P. Sharma v. Satish Chandra[7]. The Court rejected the idea that while undergoing trial for violation of Fence, the right against testimonial compulsion should be limited to oral testimony on the witness stand. The Court went on to say that “to be a witness” is “to supply evidence,” which includes not only the accused’s spoken testimony or written declarations, but also the production of an object or evidence by other methods.

While agreeing with M.P. Sharma, the Supreme Court said that to be witness did not entail summoning a person accused of an offence to produce his thumb impression, impression of palm or fingers, or sample handwriting or signature, even though all these falls within the scope of furnishing evidence. The court found that, while it was vital to preserve the rights of the accused, it was also necessary to provide law enforcement and courts with information that may assist them in apprehending lawbreakers. Overall, it was determined that evidence that was significant and delivered in personal capacity while employing the accused’s mental faculties might be deemed within the scope of the protection provided by Article20 (3). It was held that the delivery of a statement by an accused in police custody offered the court no basis to think that coercion was used in its acquisition.

In the case of K.K. Sankaran Nair v. State of Kerala[8] in that instance, Ansari C. J., who gave the Court’s ruling, referred to and thoroughly analysed the decisions of the several High Courts. Finally, he concluded that the decision of this Court in Sharma’s Instance likewise applied to the case of a specimen handwriting provided under duress by an accused individual.

It was also said that there was no reason to believe that the protection afforded to the evidence obtained was limited to what occurred during the trial in the courtroom. If the learned Judges had thought that their detailed ruling would put an end to all disagreements over the scope of the protection provided by Art. 20 (3), their aspirations were quickly dashed. Questions were soon raised before the various High Courts as to whether, based on the interpretation of the words to be a witness given by this Court in Sharma’s Case, compelling an accused person to give his fingerprints or impressions of palm or foot or a specimen handwriting during investigation constituted an infringement of Art.20 (3).

Conclusion

This present case was the landmark judgement of eleven judges, one of the biggest benches in Indian judiciary history. It made an important contribution to the evolution of case law on Article 20(3) by redefining what constituted ‘becoming a witness against himself, using M.P. Sharma as precedent. It concludes that it is time to reconsider such options, so recovering the basic right against self-incrimination as a bulwark against police coercion in I

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[1] Author is a 3^rd semester student at Amity Law School, Lucknow.

[2] Indian Kanoon, https://indiankanoon.org/doc/1626264/ (last visited Aug. 4, 2022).

[3]INDIA CONST. art. 20.

[4] INDIA CONST. art. 20, cl. 3.

[5] The Indian Evidence Act, 1872 §27.

[6]  The Indian Evidence Act, 1872 §73.

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

[8] K.K. Sankaran Nair v. State of kerela, AIR 1960 Ker 392.