accusation has been made against the appellant when his statements in question were recorded by the RPF Officer."
What constitutes `incrimination' for the purpose of Article 20(3)?
114. We can now examine the various circumstances that could `expose a person to criminal charges'. The scenario under consideration is one where a person in custody is compelled to reveal information which aids the investigation efforts. The information so revealed can prove to be incriminatory in the following ways:
7 The statements made in custody could be directly relied upon by the prosecution to strengthen their case. However, if it is shown that such statements were made under circumstances of compulsion, they will be excluded from the evidence.
7 Another possibility is that of `derivative use', i.e. when information revealed during questioning leads to the discovery of independent materials, thereby furnishing a 125
link in the chain of evidence gathered by the investigators.
7 Yet another possibility is that of `transactional use', i.e. when the information revealed can prove to be helpful for the investigation and prosecution in cases other than the one being investigated.
7 A common practice is that of extracting materials or information, which are then compared with materials that are already in the possession of the investigators. For instance, handwriting samples and specimen signatures are routinely obtained for the purpose of identification or corroboration.
115. The decision in Nandini Satpathy's case (supra.) sheds light on what constitutes incrimination for the purpose of Article 20(3). Krishna Iyer, J. observed, at pp. 449-450: "In this sense, answers that would in themselves support a conviction are confessions but answers which have a reasonable tendency strongly to point out to the guilt of the accused are incriminatory. Relevant replies which furnish a real and clear link in the chain of evidence indeed to bind down the accused with the crime become 126
incriminatory and offend Article 20(3) if elicited by pressure from the mouth of the accused. ... An answer acquires confessional status only if, in terms or substantially, all the facts which constitute the offence are admitted by the offender. If his statement also contains self-exculpatory matter it ceases to be a confession. Article 20(3) strikes at confessions and self- incriminations but leaves untouched other relevant facts."
116. Reliance was also placed on the decision of the US Supreme Court in Samuel Hoffman v. United States, 341 US 479 (1951). The controversy therein was whether the privilege against self-incrimination was available to a person who was called on to testify as a witness in a grand-jury investigation. Clark, J. answered the question in the affirmative, at p. 486: "The privilege afforded not only extends to answers that would in themselves support a conviction under a federal criminal statute but likewise embraces those which would furnish a link in the chain of evidence needed to prosecute the claimant for a federal crime. [...] But this protection must be confined to instances where the witness has reasonable cause to apprehend danger from a direct answer. [...]"
(internal citations omitted)
"To sustain the privilege, it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an 127
explanation of why it cannot be answered might be dangerous because injurious disclosure may result." (at p. 487)
117. However, Krishna Iyer, J. also cautioned against including in the prohibition even those answers which might be used as a step towards obtaining evidence against the accused. It was stated, (1978) 2 SCC 424, at p. 451: "The policy behind the privilege, under our scheme, does not swing so wide as to sweep out of admissibility statements neither confessional per se nor guilty in tendency but merely relevant facts which, viewed in any setting, does not have a sinister import. To spread the net so wide is to make a mockery of the examination of the suspect, so necessitous in the search for truth. Overbreadth undermines, and we demur to such morbid exaggeration of a wholesome protection. ... In Kathi Kalu Oghad's case, this Court authoritatively observed, on the bounds between constitutional proscription and testimonial permission:
`In order that a testimony by an accused person may be said to have been self-incriminatory, the compulsion of which comes within the prohibition of the constitutional provisions, it must be of such a character that by itself it should have the tendency of incriminating the accused, if not also of actually doing so. In other words, it should be a statement which makes the case against the accused at least probable, considered by itself.'  3 SCR 10, 32 Again the Court indicated that Article 20(3) could be invoked only against statements which `had a material bearing on the criminality of the maker of the statement'. 128
`By itself' does not exclude the setting or other integral circumstances but means something in the fact disclosed a guilt element. Blood on clothes, gold bars with notorious marks and presence on the scene or possession of the lethal weapon or corrupt currency have a tale to tell, beyond red fluid, precious metal, gazing at the stars or testing sharpness or value of the rupee. The setting of the case is an implied component of the statement."
118. In light of these observations, we must examine the permissibility of extracting statements which may furnish a link in the chain of evidence and hence create a risk of exposure to criminal charges. The crucial question is whether such derivative use of information extracted in a custodial environment is compatible with Article 20(3). It is a settled principle that statements made in custody are considered to be unreliable unless they have been subjected to cross- examination or judicial scrutiny. The scheme created by the Code of Criminal Procedure and the Indian Evidence Act also mandates that confessions made before police officers are ordinarily not admissible as evidence and it is only the statements made in the presence of a judicial magistrate which can be given weightage. The doctrine of excluding the 129
`fruits of a poisonous tree' has been incorporated in Sections 24, 25 and 26 of the Indian Evidence Act, 1872 which read as follows:
24. Confession caused by inducement, threat or promise, when irrelevant in criminal proceeding. - A confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the Court to have been caused by any inducement, threat or promise, having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the Court, to give the accused person grounds, which would appear to him reasonable, for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him.
25. Confession to police officer not proved. - No confession made to a police officer shall be proved as against a person accused of any offence.
26. Confession by accused while in custody of police not to be proved against him. - No confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person.
119. We have already referred to the language of Section 161, CrPC which protects the accused as well as suspects and witnesses who are examined during the course of investigation in a criminal case. It would also be useful to refer to Sections 130
162, 163 and 164 of the CrPC which lay down procedural safeguards in respect of statements made by persons during the course of investigation. However, Section 27 of the Evidence Act incorporates the `theory of confirmation by subsequent facts' - i.e. statements made in custody are admissible to the extent that they can be proved by the subsequent discovery of facts. It is quite possible that the content of the custodial statements could directly lead to the subsequent discovery of relevant facts rather than their discovery through independent means. Hence such statements could also be described as those which `furnish a link in the chain of evidence' needed for a successful prosecution. This provision reads as follows:
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.
120. This provision permits the derivative use of custodial statements in the ordinary course of events. In Indian law, 131
there is no automatic presumption that the custodial statements have been extracted through compulsion. In short, there is no requirement of additional diligence akin to the administration of Miranda warnings. However, in circumstances where it is shown that a person was indeed compelled to make statements while in custody, relying on such testimony as well as its derivative use will offend Article 20(3). The relationship between Section 27 of the Evidence Act and Article 20(3) of the Constitution was clarified in Kathi Kalu Oghad (supra.). It was observed in the majority opinion by Jagannadhadas, J., at pp. 33-34:
"The information given by an accused person to a police officer leading to the discovery of a fact which may or may not prove incriminatory has been made admissible in evidence by that Section. If it is not incriminatory of the person giving the information, the question does not arise. It can arise only when it is of an incriminatory character so far as the giver of the information is concerned. If the self-incriminatory information has been given by an accused person without any threat, that will be admissible in evidence and that will not be hit by the provisions of cl. (3) of Art. 20 of the Constitution for the reason that there has been no compulsion. It must, therefore, be held that the provisions of s. 27 of the Evidence Act are not within the prohibition aforesaid, unless compulsion has been used in obtaining the information."
This position was made amply clear at pp. 35-36: "Hence, the mere fact that the accused person, when he made the statement in question was in police custody would not, by itself, be the foundation for an inference of law that the accused was compelled to make the statement. Of course, it is open to an accused person to show that while he was in police custody at the relevant time, he was subjected to treatment which, in the circumstances of the case, would lend itself to the inference that compulsion was, in fact, exercised. In other words, it will be a question of fact in each case to be determined by the Court on weighing the facts and circumstances disclosed in the evidence before it."
121. The minority opinion also agreed with the majority's conclusion on this point since Das Gupta, J., held at p. 47: "Section 27 provides 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 the information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. It cannot be disputed that by giving such information the accused furnishes evidence, and therefore is a `witness' during the investigation. Unless, however he is `compelled' to give the information he cannot be said to be `compelled' to be a witness; and so Article 20(3) is not infringed. Compulsion is not however inherent in the receipt of information from an accused person in the custody of a police officer. There may be cases where an accused in custody is compelled to give the information later on sought to be proved under s. 27. There will be other cases where the accused gives the information without any compulsion. Where the accused is compelled to give 133
information it will be an infringement of Art. 20(3); but there is no such infringement where he gives the information without any compulsion. ..."
122. We must also address another line of reasoning which was adopted in one of the impugned judgments. It was stated that the exclusionary rule in evidence law is applicable to statements that are inculpatory in nature. Based on this premise, it was observed that at the time of administering the impugned tests, it cannot be ascertained whether the resulting revelations or inferences will prove to be inculpatory or exculpatory in due course. Taking this reasoning forward, it was held that the compulsory administration of the impugned tests should be permissible since the same does not necessarily lead to the extraction of inculpatory evidence. We are unable to agree with this reasoning.
123. The distinction between inculpatory and exculpatory evidence gathered during investigation is relevant for deciding what will be admissible as evidence during the trial stage. The exclusionary rule in evidence law mandates that if inculpatory 134
evidence has been gathered through improper methods (involving coercion, threat or inducement among others) then the same should be excluded from the trial, while there is no such prohibition on the consideration of exculpatory evidence. However, this distinction between the treatment of inculpatory and exculpatory evidence is made retrospectively at the trial stage and it cannot be extended back to the stage of investigation. If we were to permit the admission of involuntary statement on the ground that at the time of asking a question it is not known whether the answer will be inculpatory or exculpatory, the `right against self-incrimination' will be rendered meaningless. The law confers on `any person' who is examined during an investigation, an effective choice between speaking and remaining silent. This implies that it is for the person being examined to decide whether the answer to a particular question will eventually prove to be inculpatory or exculpatory. Furthermore, it is also likely that the information or materials collected at an earlier stage of investigation can prove to be inculpatory in due course.
124. However, it is conceivable that in some circumstances the testimony extracted through compulsion may not actually lead to exposure to criminal charges or penalties. For example this is a possibility when the investigators make an offer of immunity against the direct use, derivative use or transactional use of the testimony. Immunity against direct use entails that a witness will not be prosecuted on the basis of the statements made to the investigators. A protection against derivative use implies that a person will not be prosecuted on the basis of the fruits of such testimony. Immunity against transactional use will shield a witness from criminal charges in cases other than the one being investigated. It is of course entirely up to the investigating agencies to decide whether to offer immunity and in what form. Even though this is distinctly possible, it is difficult to conceive of such a situation in the context of the present case. A person who is given an offer of immunity against prosecution is far more likely to voluntarily cooperate with the investigation efforts. This could be in the form of giving testimony or helping in the discovery of material evidence. If a 136
person is freely willing to cooperate with the investigation efforts, it would be redundant to compel such a person to undergo the impugned tests. If reliance on such tests is sought for refreshing a cooperating witness' memory, the person will in all probability give his/her consent to undergo these tests.
125. It could be argued that the compulsory administration of the impugned tests can prove to be useful in instances where the cooperating witness has difficulty in remembering the relevant facts or is wilfully concealing crucial details. Such situations could very well arise when a person who is a co- accused is offered immunity from prosecution in return for cooperating with the investigators. Even though the right against self-incrimination is not directly applicable in such situations, the relevant legal inquiry is whether the compulsory administration of the impugned tests meets the requisite standard of `substantive due process' for placing restraints on personal liberty.
126. At this juncture, it must be reiterated that Indian law incorporates the `rule against adverse inferences from silence' which is operative at the trial stage. As mentioned earlier, this position is embodied in a conjunctive reading of Article 20(3) of the Constitution and Sections 161(2), 313(3) and Proviso (b) of Section 315(1) of the CrPC. The gist of this position is that even though an accused is a competent witness in his/her own trial, he/she cannot be compelled to answer questions that could expose him/her to incrimination and the trial judge cannot draw adverse inferences from the refusal to do so. This position is cemented by prohibiting any of the parties from commenting on the failure of the accused to give evidence. This rule was lucidly explained in the English case of Woolmington v. DPP, (1935) AC 462, at p. 481: "The `right to silence' is a principle of common law and it means that normally courts or tribunals of fact should not be invited or encouraged to conclude, by parties or prosecutors, that a suspect or an accused is guilty merely because he has refused to respond to questions put to him by the police or by the Court."
127. The 180th Report of the Law Commission of India (May 2002) dealt with this very issue. It considered arguments for 138
diluting the `rule against adverse inferences from silence'. Apart from surveying several foreign statutes and decisions, the report took note of the fact that Section 342(2) of the erstwhile Code of Criminal Procedure, 1898 permitted the trial judge to draw an inference from the silence of the accused. However, this position was changed with the enactment of the new Code of Criminal Procedure in 1973, thereby prohibiting the making of comments as well as the drawing of inferences from the fact of an accused's silence. In light of this, the report concluded:
"... We have reviewed the law in other countries as well as in India for the purpose of examining whether any amendments are necessary in the Code of Criminal Procedure, 1973. On a review, we find that no changes in the law relating to silence of the accused are necessary and if made, they will be ultra vires of Article 20(3) and Article 21 of the Constitution of India. We recommend accordingly."
128. Some commentators have argued that the `rule against adverse inferences from silence' should be broadly construed in order to give protection against non-penal consequences. It is reasoned that the fact of a person's refusal to answer questions should not be held against him/her in a wide variety 139
of settings, including those outside the context of criminal trials. A hypothetical illustration of such a setting is a deportation hearing where an illegal immigrant could be deported following a refusal to answer questions or furnish materials required by the concerned authorities. This question is relevant for the present case because a person who refuses to undergo the impugned tests during the investigative stage could face non-penal consequences which lie outside the protective scope of Article 20(3). For example, a person who refuses to undergo these tests could face the risk of custodial violence, increased police surveillance or harassment thereafter. Even a person who is compelled to undergo these tests could face such adverse consequences on account of the contents of the test results if they heighten the investigators' suspicions. Each of these consequences, though condemnable, fall short of the requisite standard of `exposure to criminal charges and penalties' that has been enumerated in Section 161(2) of the CrPC. Even though Article 20(3) will not be applicable in such circumstances, reliance can be placed on Article 21 if such non-penal consequences amount to a 140
violation of `personal liberty' as contemplated under the Constitution. In the past, this Court has recognised the rights of prisoners (undertrials as well as convicts) as well as individuals in other custodial environments to receive `fair, just and equitable' treatment. For instance in Sunil Batra v. Delhi Administration, (1978) 4 SCC 494, it was decided that practices such as `solitary confinement' and the use of bar- fetters in jails were violative of Article 21. Hence, in circumstances where persons who refuse to answer questions during the investigative stage are exposed to adverse consequences of a non-penal nature, the inquiry should account for the expansive scope of Article 21 rather than the right contemplated by Article 20(3).
I-B. Whether the results derived from the impugned techniques amount to `testimonial compulsion' thereby attracting the bar of Article 20(3)?
129. The next issue is whether the results gathered from the impugned tests amount to `testimonial compulsion', thereby 141
attracting the prohibition of Article 20(3). For this purpose, it is necessary to survey the precedents which deal with what constitutes `testimonial compulsion' and how testimonial acts are distinguished from the collection of physical evidence. Apart from the apparent distinction between evidence of a testimonial and physical nature, some forms of testimonial acts lie outside the scope of Article 20(3). For instance, even though acts such as compulsorily obtaining specimen signatures and handwriting samples are testimonial in nature, they are not incriminating by themselves if they are used for the purpose of identification or corroboration with facts or materials that the investigators are already acquainted with. The relevant consideration for extending the protection of Article 20(3) is whether the materials are likely to lead to incrimination by themselves or `furnish a link in the chain of evidence' which could lead to the same result. Hence, reliance on the contents of compelled testimony comes within the prohibition of Article 20(3) but its use for the purpose of identification or corroboration with facts already known to the investigators is not barred.
130. It is quite evident that the narcoanalysis technique involves a testimonial act. A subject is encouraged to speak in a drug-induced state, and there is no reason why such an act should be treated any differently from verbal answers during an ordinary interrogation. In one of the impugned judgments, the compulsory administration of the narcoanalysis technique was defended on the ground that at the time of conducting the test, it is not known whether the results will eventually prove to be inculpatory or exculpatory. We have already rejected this reasoning. We see no other obstruction to the proposition that the compulsory administration of the narcoanalysis technique amounts to `testimonial compulsion' and thereby triggers the protection of Article 20(3).
131. However, an unresolved question is whether the results obtained through polygraph examination and the BEAP test are of a testimonial nature. In both these tests, inferences are drawn from the physiological responses of the subject and no direct reliance is placed on verbal responses. In some forms of 143
polygraph examination, the subject may be required to offer verbal answers such as `Yes' or `No', but the results are based on the measurement of changes in several physiological characteristics rather than these verbal responses. In the BEAP test, the subject is not required to give any verbal responses at all and inferences are drawn from the measurement of electrical activity in the brain. In the impugned judgments, it has been held that the results obtained from both the Polygraph examination and the BEAP test do not amount to `testimony' thereby lying outside the protective scope of Article 20(3). The same assertion has been reiterated before us by the counsel for the respondents. In order to evaluate this position, we must examine the contours of the expression `testimonial compulsion'.
132. The question of what constitutes `testimonial compulsion' for the purpose of Article 20(3) was addressed in M.P. Sharma's case (supra.). In that case, the Court considered whether the issuance of search warrants in the course of an investigation into the affairs of a company (following 144
allegations of misappropriation and embezzlement) amounted to an infringement of Article 20(3). The search warrants issued under Section 96 of the erstwhile Code of Criminal Procedure, 1898 authorised the investigating agencies to search the premises and seize the documents maintained by the said company. The relevant observations were made by Jagannadhadas, J., at pp. 1087-1088:
" ... The phrase used in Article 20(3) is `to be a witness'. A person can `be a witness' not merely by giving oral evidence but also by producing documents or making intelligible gestures as in the case of a dumb witness [see Section 119 of the Evidence Act or the like]. `To be a witness' is nothing more than `to furnish evidence', and such evidence can be furnished through the lips or by production of a thing or of a document or in other modes. ...
Indeed, 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. ..."
133. These observations suggest that the phrase `to be a witness' is not confined to oral testimony for the purpose of invoking Article 20(3) and that it includes certain non-verbal forms of conduct such as the production of documents and 145
the making of intelligible gestures. However, in Kathi Kalu Oghad (supra.), there was a disagreement between the majority and minority opinions on whether the expression `to be a witness' was the same as `to furnish evidence'. In that case, this Court had examined whether certain statutory provisions, namely - Section 73 of the Evidence Act, Sections 5 and 6 of the Identification of Prisoners Act, 1920 and Section 27 of the Evidence Act were compatible with Article 20(3). Section 73 of the Evidence Act empowered courts to obtain specimen handwriting or signatures and finger impressions of an accused person for purposes of comparison. Sections 5 and 6 of the Identification of Prisoners Act empowered a Magistrate to obtain the photograph or measurements of an accused person. In respect of Section 27 of the Evidence Act, there was an agreement between the majority and the minority opinions that the use of compulsion to extract custodial statements amounts to an exception to the `theory of confirmation by subsequent facts'. We have already referred to the relevant observations in an earlier part of this opinion. Both the majority and minority opinions ruled that the other statutory 146
provisions mentioned above were compatible with Article 20(3), but adopted different approaches to arrive at this conclusion. In the majority opinion it was held that the ambit of the expression `to be a witness' was narrower than that of `furnishing evidence'. B.P. Sinha, C.J. observed,  3 SCR 10, at pp. 29-32:
" `To be a witness' may be equivalent to `furnishing evidence' in the sense of making oral or written statements, but not in the larger sense of the expression so as to include giving of thumb impression or impression of palm or foot or fingers or specimen writing or exposing a part of the body by an accused person for purpose of identification. `Furnishing evidence' in the latter sense could not have been within the contemplation of the Constitution-makers for the simple reason that - though they may have intended to protect an accused person from the hazards of self- incrimination, in the light of the English Law on the subject - they could not have intended to put obstacles in the way of efficient and effective investigation into crime and of bringing criminals to justice. The taking of impressions or parts of the body of an accused person very often becomes necessary to help the investigation of a crime. It is as much necessary to protect an accused person against being compelled to incriminate himself, as to arm the agents of law and the law courts with legitimate powers to bring offenders to justice. Furthermore it must be assumed that the Constitution- makers were aware of the existing law, for example, Section 73 of the Evidence Act or Section 5 and 6 of the Identification of Prisoners Act (XXXIII of 1920). 147
... The giving of finger impression or of specimen signature or of handwriting, strictly speaking, is not `to be a witness'. `To be a witness' means imparting knowledge in respect of relevant fact, 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. A person is said `to be a witness' to a certain state of facts which has to be determined by a court or authority authorised to come to a decision, by testifying to what he has seen, or something he has heard which is capable of being heard and is not hit by the rule excluding hearsay or giving his opinion, as an expert, in respect of matters in controversy. Evidence has been classified by text writers into three categories, namely, (1) oral testimony; (2) evidence furnished by documents; and (3) material evidence. We have already indicated that we are in agreement with the Full Court decision in Sharma's case,  SCR 1077, that the prohibition in cl. (3) of Art. 20 covers not only oral testimony given by a person accused of an offence but also his written statements which may have a bearing on the controversy with reference to the charge against him. ...
... Self-incrimination must mean conveying information based upon the personal knowledge of the person giving the information and cannot include merely the mechanical process of producing documents in court which may throw a light on any of the points in controversy, but which do not contain any statement of the accused based on his personal knowledge. For example, the accused person may be in possession of a document which is in his writing or which contains his signature or his thumb impression. The production of such a document, with a view to comparison of the writing or the signature or the impression, is not the statement of an accused person, which can be said to be of the nature of a personal testimony. When an accused person is called upon by the Court or any other authority 148
holding an investigation to give his finger impression or signature or a specimen of his handwriting, he is not giving any testimony of the nature of a `personal testimony'. The giving of a `personal testimony' must depend on his volition. He can make any kind of statement or may refuse to make any statement. But his finger impressions or his handwriting, in spite of efforts at concealing the true nature of it by dissimulation cannot change their intrinsic character. Thus, the giving of finger impressions or of specimen writing or of signatures by an accused person, though it may amount to `furnishing evidence' in the larger sense, is not included within the expression `to be a witness'. In order that a testimony by an accused person may be said to have been self-incriminatory, the compulsion of which comes within the prohibition of the constitutional provision, it must be of such a character that by itself it should have the tendency of incriminating the accused, if not also of actually doing so. In other words, it should be a statement which makes the case against the accused person atleast probable, considered by itself. A specimen handwriting or signature or finger impressions by themselves are no testimony at all, being wholly innocuous because they are unchangeable except in rare cases where the ridges of the fingers or the style of writing have been tampered with. They are only materials for comparison in order to lend assurance to the Court that its inference based on other pieces of evidence is reliable. They are neither oral nor documentary evidence but belong to the third category of material evidence which is outside the limit of `testimony'."
134. Hence, B.P. Sinha, C.J. construed the expression `to be a witness' as one that was limited to oral or documentary evidence, while further confining the same to statements that 149
could lead to incrimination by themselves, as opposed to those used for the purpose of identification or comparison with facts already known to the investigators. The minority opinion authored by Das Gupta, J. (3 judges) took a different approach, which is evident from the following extracts, Id. at pp. 40-43:
"That brings us to the suggestion that the expression `to be a witness' must be limited to a statement whether oral or in writing by an accused person imparting knowledge of relevant facts; but that mere production of some material evidence, whether documentary or otherwise would not come within the ambit of this expression. This suggestion has found favour with the majority of the Bench, we think however that this is an unduly narrow interpretation. We have to remind ourselves that while on the one hand we should bear in mind that the Constitution-makers could not have intended to stifle legitimate modes of investigation we have to remember further that quite clearly they thought that certain things should not be allowed to be done, during the investigation, or trial, however helpful they might seem to be to the unfolding of truth and an unnecessary apprehension of disaster to the police system and the administration of justice, should not deter us from giving the words their proper meaning. It appears to us that to limit the meaning of the words `to be a witness' in Art. 20(3) in the manner suggested would result in allowing compulsion to be used in procuring the production from the accused of a large number of documents, which are of evidentiary value, sometimes even more so than any oral statement of a witness might be. ...
... There can be no doubt that to the ordinary user of English words, the word `witness' is always associated with evidence, so that to say that `to be a witness' is to `furnish evidence' is really to keep to the natural meaning of the words. ...
... It is clear from the scheme of the various provisions, dealing with the matter that the governing idea is that to be evidence, the oral statement or a statement contained in a document, shall have a tendency to prove a fact - whether it be a fact in issue or a relevant fact - which is sought to be proved. Though this definition of evidence is in respect of proceedings in Court it will be proper, once we have come to the conclusion, that the protection of Art. 20(3) is available even at the stage of investigation, to hold that at that stage also the purpose of having a witness is to obtain evidence and the purpose of evidence is to prove a fact.
The illustrations we have given above show clearly that it is not only by imparting of his knowledge that an accused person assists the proving of a fact; he can do so even by other means, such as the production of documents which though not containing his own knowledge would have a tendency to make probable the existence of a fact in issue or a relevant fact."
135. Even though Das Gupta, J. saw no difference between the scope of the expressions `to be a witness' and `to furnish evidence', the learned judge agreed with the majority's conclusion that for the purpose of invoking Article 20(3) the evidence must be incriminating by itself. This entailed that evidence could be relied upon if it is used only for the purpose 151
of identification or comparison with information and materials that are already in the possession of the investigators. The following observations were made at pp. 45-46: " ... But the evidence of specimen handwriting or the impressions of the accused person's fingers, palm or foot, will incriminate him, only if on comparison of these with certain other handwritings or certain other impressions, identity between the two sets is established. By themselves, these impressions or the handwritings do not incriminate the accused person, or even tend to do so. That is why it must be held that by giving these impressions or specimen handwriting, the accused person does not furnish evidence against himself. ... ... This view, it may be pointed out does not in any way militate against the policy underlying the rule against `testimonial compulsion' we have already discussed above. There is little risk, if at all, in the investigator or the prosecutor being induced to lethargy or inaction because he can get such handwriting or impressions from an accused person. For, by themselves they are of little or of no assistance to bring home the guilt of an accused. Nor is there any chance of the accused to mislead the investigator into wrong channels by furnishing false evidence. For, it is beyond his power to alter the ridges or other characteristics of his hand, palm or finger or to alter the characteristics of his handwriting. We agree therefore with the conclusion reached by the majority of the Bench that there is no infringement of Art. 20(3) of the Constitution by compelling an accused person to give his specimen handwriting or signature; or impressions of his fingers, palm or foot to the investigating officer or under orders of a court for the purpose of comparison under the provisions of s. 73 of the Indian Evidence Act; though we have not been able to 152
agree with the view of our learned brethren that `to be a witness' in Art. 20(3) should be equated with the imparting of personal knowledge or that an accused does not become a witness when he produces some document not in his own handwriting even though it may tend to prove facts in issue or relevant facts against him."
136. Since the majority decision in Kathi Kalu Oghad (supra.) is the controlling precedent, it will be useful to re- state the two main premises for understanding the scope of `testimonial compulsion'. The first is that ordinarily it is the oral or written statements which convey the personal knowledge of a person in respect of relevant facts that amount to `personal testimony' thereby coming within the prohibition contemplated by Article 20(3). In most cases, such `personal testimony' can be readily distinguished from material evidence such as bodily substances and other physical objects. The second premise is that in some cases, oral or written statements can be relied upon but only for the purpose of identification or comparison with facts and materials that are already in the possession of the investigators. The bar of Article 20(3) can be invoked when the statements are likely to lead to incrimination by themselves or `furnish a link in the 153
chain of evidence' needed to do so. We must emphasize that a situation where a testimonial response is used for comparison with facts already known to investigators is inherently different from a situation where a testimonial response helps the investigators to subsequently discover fresh facts or materials that could be relevant to the ongoing investigation.
137. The recognition of the distinction between testimonial acts and physical evidence for the purpose of invoking Article 20(3) of the Constitution finds a close parallel in some foreign decisions. In Armando Schmerber v. California, 384 US 757 (1966), the U.S. Supreme Court had to determine whether an involuntary blood test of a defendant had violated the Fifth Amendment. The defendant was undergoing treatment at a hospital following an automobile accident. A blood sample was taken against his will at the direction of a police officer. Analysis of the same revealed that Schmerber had been intoxicated and these results were admitted into evidence, thereby leading to his conviction for drunk driving. An objection was raised on the basis of the Fifth Amendment and 154
the majority opinion (Brennan, J.) relied on a distinction between evidence of a `testimonial' or `communicative' nature as opposed to evidence of a `physical' or `real nature', concluding that the privilege against self-incrimination applied to the former but not to the latter. In arriving at this decision, reference was made to several precedents with a prominent one being United States v. Holt, 218 US 245 (1910). In that case, a defendant was forced to try on an article of clothing during the course of investigation. It had been ruled that the privilege against self-incrimination prohibited the use of compulsion to `extort communications' from the defendant, but not the use of the defendant's body as evidence.
138. In addition to citing John Wigmore's position that `the privilege is limited to testimonial disclosures' the Court in Schmerber also took note of other examples where it had been held that the privilege did not apply to physical evidence, which included `compulsion to submit to fingerprinting, photographing, or measurements, to write or speak for identification, to appear in court, to stand, to assume a 155
stance, to walk, or to make a particular gesture.' However, it was cautioned that the privilege applied to testimonial communications, irrespective of what form they might take. Hence it was recognised that the privilege not only extended to verbal communications, but also to written words as well as gestures intended to communicate [for, e.g., pointing or nodding]. This line of thinking becomes clear because the majority opinion indicated that the distinction between testimonial and physical acts may not be readily applicable in the case of Lie-Detector tests. Brennan, J. had noted, 384 US 757 (1966), at p. 764:
"Although we agree that this distinction is a helpful framework for analysis, we are not to be understood to agree with past applications in all instances. There will be many cases in which such a distinction is not readily drawn. Some tests seemingly directed to obtain `physical evidence,' for example, lie detector tests measuring changes in body function during interrogation, may actually be directed to eliciting responses which are essentially testimonial. To compel a person to submit to testing in which an effort will be made to determine his guilt or innocence on the basis of physiological responses, whether willed or not, is to evoke the spirit and history of the Fifth Amendment. Such situations call to mind the principle that the protection of the privilege `is as broad as the mischief against which it seeks to guard.' [...]"
In a recently published paper, Michael S. Pardo (2008) has made the following observation in respect of this judgment [Cited from: Michael S. Pardo, `Self-Incrimination and the Epistemology of Testimony', 30 Cardozo Law Review 1023- 1046 (December 2008) at pp. 1027-1028]:
"the Court notes that even the physical-testimonial distinction may break down when physical evidence is meant to compel `responses which are essentially testimonial' such as a lie-detector test measuring physiological responses during interrogation."
139. Following the Schmerber decision (supra.), the distinction between physical and testimonial evidence has been applied in several cases. However, some complexities have also arisen in the application of the testimonial-physical distinction to various fact-situations. While we do not need to discuss these cases to decide the question before us, we must take note of the fact that the application of the testimonial- physical distinction can be highly ambiguous in relation to non-verbal forms of conduct which nevertheless convey relevant information. Among other jurisdictions, the European Court of Human Rights (ECtHR) has also taken note of the distinction between testimonial and physical acts for the 157
purpose of invoking the privilege against self-incrimination. In Saunders v. United Kingdom, (1997) 23 EHRR 313, it was explained:
"... The right not to incriminate oneself, in particular, presupposes that the prosecution in a criminal case seek to prove their case against the accused without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the accused. In this sense the right is closely linked to the presumption of innocence ... The right not to incriminate oneself is primarily concerned, however, with respecting the will of an accused person to remain silent. As commonly understood in the legal systems of the Contracting Parties to the Convention and elsewhere, it does not extend to the use in criminal proceedings of material which may be obtained from the accused through the use of compulsory powers but which has an existence independent of the will of the suspect such as, inter alia, documents acquired pursuant to a warrant, breath, blood and urine samples and bodily tissue for the purpose of DNA testing."
Evolution of the law on `medical examination'
140. With respect to the testimonial-physical distinction, an important statutory development in our legal system was the introduction of provisions for medical examination with the overhauling of the Code of Criminal Procedure in 1973. Sections 53 and 54 of the CrPC contemplate the medical examination of a person who has been arrested, either at the 158
instance of the investigating officer or even the arrested person himself. The same can also be done at the direction of the jurisdictional court.
141. However, there were no provisions for authorising such a medical examination in the erstwhile Code of Criminal Procedure, 1898. The absence of a statutory basis for the same had led courts to hold that a medical examination could not be conducted without the prior consent of the person who was to be subjected to the same. For example in Bhondar v. Emperor, AIR 1931 Cal 601, Lord Williams, J. held, at p. 602: "If it were permitted forcibly to take hold of a prisoner and examine his body medically for the purpose of qualifying some medical witness to give medical evidence in the case against the accused there is no knowing where such procedure would stop.
...Any such examination without the consent of the accused would amount to an assault and I am quite satisfied that the police are not entitled without statutory authority to commit assaults upon prisoners for the purpose of procuring evidence against them. If the legislature desires that evidence of this kind should be given, it will be quite simple to add a short section to the Code of Criminal Procedure expressly giving power to order such a medical examination."
S.K. Ghose, J. concurred, at p. 604:
"Nevertheless the examination of an arrested person in hospital by a doctor, not for the benefit of the prisoner's health, but simply by way of a second search, is not provided for by Code, and is such a case the doctor may not examine the prisoner without his consent. It would be a rule of caution to have such consent noted in the medical report, so that the doctor would be in a position to testify to such consent if called upon to do so." A similar conclusion was arrived at by Tarkunde, J. in Deomam Shamji Patel v. State of Maharashtra, AIR 1959 Bom 284, who held that a person suspected or accused of having committed an offence cannot be forcibly subjected to a medical examination. It was also held that if police officers use force for this purpose, then a person can lawfully exercise the right of private defence to offer resistance.
142. It was the 37th and 41st Reports of the Law Commission of India which recommended the insertion of a provision in the Code of Criminal Procedure to enable medical examination without the consent of an accused. These recommendations proved to be the precursor for the inclusion of Sections 53 and 54 in the Code of Criminal Procedure, 1973. It was observed in the 37th Report (December 1967), at pp. 205-206: " ... It will suffice to refer to the decision of the Supreme Court in Kathi Kalu, [AIR 1961 SC 1808] which has the 160
effect of confining the privilege under Article 20(3) to testimony - written or oral. [Fn ...] The Supreme Court's judgment in Kathi Kalu should be taken as overruling the view taken in some earlier decisions, [Fn 6, 7 ...] invalidating provisions similar to Section 5, Identification of Prisoners Act, 1920.
The position in the U.S.A. has been summarised [Fn 8 - Emerson G., `Due Process and the American Criminal Trial', 33 Australian Law Journal 223, 231 (1964)] `Less certain is the protection accorded to the defendant with regard to non-testimonial physical evidence other than personal papers. Can the accused be forced to supply a sample of his blood or urine if the resultant tests are likely to further the prosecution's case? Can he be forced to give his finger prints to wear a disguise or certain clothing, to supply a pair of shoes which might match footprints at the scene of the crime, to stand in a line-up, to submit to a hair cut or to having his hair dyed, or to have his stomach pumped or a
fluoroscopic examination of the contents of his intestines? The literature on this aspect of self- incrimination is voluminous. [Fn ...]
The short and reasonably accurate answer to the question posed is that almost all such physical acts can be required. [Fn ...] Influenced by the historical development of the doctrine, its purpose, and the need to balance the conflicting interests of the individual and society, the courts have generally restricted the protection of the Fifth Amendment to situations where the defendant would be required to convey ideas, or where the physical acts would offend the decencies of civilized conduct."
(some internal citations omitted)
Taking note of Kathi Kalu Oghad (supra.) and the distinction drawn between testimonial and physical acts in American cases, the Law Commission observed that a provision for examination of the body would reveal valuable evidence. This view was taken forward in the 41st Report which recommended the inclusion of a specific provision to enable medical examination during the course of investigation, irrespective of the subject's consent. [See: 41st Report of the Law Commission of India, Vol. I (September 1969), Para 5.1 at p. 37]
143. We were also alerted to some High Court decisions which have relied on Kathi Kalu Oghad (supra.) to approve the taking of physical evidence such as blood and hair samples in the course of investigation. Following the overhaul of the Code of Criminal Procedure in 1973, the position became amply clear. In recent years, the judicial power to order a medical examination, albeit in a different context, has been discussed by this Court in Sharda v. Dharampal, (2003) 4 SCC 493. In that case, the contention related to the validity of a civil court's direction for conducting a medical examination to 162
ascertain the mental state of a party in a divorce proceeding. Needless to say, the mental state of a party was a relevant issue before the trial court, since insanity is a statutory ground for obtaining divorce under the Hindu Marriage Act, 1955. S.B. Sinha, J. held that Article 20(3) was anyway not applicable in a civil proceeding and that the civil court could direct the medical examination in exercise of its inherent powers under Section 151 of the Code of Civil Procedure, since there was no ordinary statutory basis for the same. It was observed, Id. at p. 508:
"Yet again the primary duty of a court is to see that truth is arrived at. A party to a civil litigation, it is axiomatic, is not entitled to constitutional protections under Article 20 of the Constitution of India. Thus, the civil court although may not have any specific provisions in the Code of Civil Procedure and the Evidence Act, has an inherent power in terms of Section 151 of the Code of Civil Procedure to pass all orders for doing complete justice to the parties to the suit.
Discretionary power under Section 151 of the Code of Civil Procedure, it is trite, can be exercised also on an application filed by the party. In certain cases medical examination by the experts in the field may not only be found to be leading to the truth of the matter but may also lead to removal of misunderstanding between the parties. It may bring the parties to terms. Having regard to development in medicinal technology, it is possible to find out that what was presumed to be a mental disorder 163
of a spouse is not really so. In matrimonial disputes, the court also has a conciliatory role to play - even for the said purpose it may require expert advice.
Under Section 75(e) of the Code of Civil Procedure and Order 26, Rule 10-A the civil court has the requisite power to issue a direction to hold a scientific, technical or expert investigation."
144. The decision had also cited some foreign precedents dealing with the authority of investigators and courts to require the collection of DNA samples for the purpose of comparison. In that case the discussion centered on the `right to privacy'. So far, the authority of investigators and courts to compel the production of DNA samples has been approved by the Orissa High Court in Thogorani v. State of Orissa, 2004 Cri L J 4003 (Ori).
145. At this juncture, it should be noted that the Explanation to Sections 53, 53-A and 54 of the Code of Criminal Procedure, 1973 was amended in 2005 to clarify the scope of medical examination, especially with regard to the extraction of bodily substances. The amended provision reads:
53. Examination of accused by medical practitioner at the request of police officer. -
(1) When a person is arrested on a charge of committing an offence of such a nature and alleged to have been committed under such circumstances that there are reasonable grounds for believing that an examination of his person will afford evidence as to the commission of an offence, it shall be lawful for a registered medical practitioner, acting at the request of a police officer not below the rank of sub-inspector, and for any person acting in good faith in his aid and under his direction, to make such an examination of the person arrested as is reasonably necessary in order to ascertain the facts which may afford such evidence, and to use such force as is reasonably necessary for that purpose.
(2) Whenever the person of a female is to be examined under this section, the examination shall be made only by, or under the supervision of, a female registered medical practitioner.
Explanation. - In this section and in sections 53-A and 54, -
(a) `examination' shall include the examination of blood, blood-stains, semen, swabs in case of sexual offences, sputum and sweat, hair samples and finger nail clippings by the use of modern and scientific techniques including DNA profiling and such other tests which the registered medical practitioner thinks necessary in a particular case;
(b)`registered medical practitioner' means a medical practitioner who possesses any medical qualification as defined in clause (h) of Section 2 of the Indian Medical Council Act , 1956 (102 of 1956) and whose name has been entered in a State Medical Register. (emphasis supplied)
146. The respondents have urged that the impugned techniques should be read into the relevant provisions - i.e. Sections 53 and 54 of CrPC. As described earlier, a medical examination of an arrested person can be directed during the course of an investigation, either at the instance of the investigating officer or the arrested person. It has also been clarified that it is within the powers of a court to direct such a medical examination on its own. Such an examination can also be directed in respect of a person who has been released from custody on bail as well as a person who has been granted anticipatory bail. Furthermore, Section 53 contemplates the use of `force as is reasonably necessary' for conducting a medical examination. This means that once a court has directed the medical examination of a particular person, it is within the powers of the investigators and the examiners to resort to a reasonable degree of physical force for conducting the same.
147. The contentious provision is the Explanation to Sections 53, 53-A and 54 of the CrPC (amended in 2005) which has 166
been reproduced above. It has been contended that the phrase `modern and scientific techniques including DNA profiling and such other tests' should be liberally construed to include the impugned techniques. It was argued that even though the narcoanalysis technique, polygraph examination and the BEAP test have not been expressly enumerated, they could be read in by examining the legislative intent. Emphasis was placed on the phrase `and such other tests' to argue that the Parliament had chosen an approach where the list of `modern and scientific techniques' contemplated was illustrative and not exhaustive. It was also argued that in any case, statutory provisions can be liberally construed in light of scientific advancements. With the development of newer technologies, their use can be governed by older statutes which had been framed to regulate the older technologies used for similar purposes.
148. On the other hand, the counsel for the appellants have contended that the Parliament was well aware of the impugned techniques at the time of the 2005 amendment and 167
consciously chose not to include them in the amended Explanation to Sections 53, 53-A and 54 of the CrPC. It was reasoned that this choice recognised the distinction between testimonial acts and physical evidence. While bodily substances such as blood, semen, sputum, sweat, hair and fingernail clippings can be readily characterised as physical evidence, the same cannot be said for the techniques in question. This argument was supported by invoking the rule of `ejusdem generis' which is used in the interpretation of statutes. This rule entails that the meaning of general words which follow specific words in a statutory provision should be construed in light of the commonality between those specific words. In the present case, the substances enumerated are all examples of physical evidence. Hence the words `and such other tests' which appear in the Explanation to Sections 53, 53-A and 54 of the CrPC should be construed to include the examination of physical evidence but not that of testimonial acts.