Lordship Mr. Justice SINHA C.J [for IMAM, GAJENDRAGADKAR, SUBBA RAO, WANCHOO, RAGHUBAR DAYAL, RAJAGOPALA AYYANGAR AND MUDHOLKAR JJ]
The question whether s. 27 of the Evidence Act was unconstitutional because it offended Art. 14 of the Constitution was considered by this court in the case of State of U. P. v. Deomen Upadhyoya [[ 1954] S.C.·R 1077]. It was held by this Court that s. 27 of the Evidence Act did not offend Art. 14 of the Constitution and was, therefore, intra-vires. But the question whether it was unconstitutional because it contravened the provisions of el. (3) of Art. 20 was not considered in that case. That question may, therefore, be treated as an open one. The question has been raised in one of the cases before us and has, therefore, to be decided. 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 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.
WHAT IS COMPULSION? The compulsion in this sense is a physical objective act and not tile state of mind of the person making the statement, except where the mind has been so conditioned by some extraneous process as to render the making of the statement involuntary and, therefore, extorted. Hence, the mere asking by a police officer investigating a crime against a certain individual to do a certain thing is not compulsion within the meaning of Art. 20 (3). 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.
In view of these considerations, we have come to the following conclusions :-
(I) An accused person cannot be said to have been compelled to be a witness against himself simply because he made a statement while in police custody, without anything more. In other words, the mere fact of being in police custody at the time when the statement in question was made would not, by itself, as a proposition of law, lend itself to the inference that the accused was compelled to make the statement, though that fact, in connection with other circumstances disclosed in evidence in a particular case, would ho a relevant consideration in an enquiry whether or not the accused person had been compelled to make the impugned statement.
(2) The mere questioning of an accused person by a police officer, resulting in a voluntary statement, which may ultimately turn out to be incriminatory, is not ‘compulsion’.
(3) ‘To be a witness’ is not equivalent to ‘furnishing evidence’ in its widest significance ; that is to say, as including not merely making of oral or written statement but also production of documents or giving materials which may be relevant at a trial to determine the guilt or innocence of the accused.
(4) Giving thumb impressions or impressions of foot or palm or fingers or specimen writings or showing parts of the body by way of identification are not included in the expression ‘to be a witness’.
(5) ‘To be a witness’ means imparting knowledge in respect of relevant facts by an oral statement or a statement in writing made or given in Court or otherwise.
(6) ‘To be a witness’ in its ordinary grammatical sense means giving oral testimony in Court. Case law has gone beyond this strict literal interpretation of the expression which may now bear a wider meaning, namely, bearing testimony in Court or out of Court by a person accused of an offence, orally or in writing.
(7) To bring the statement in question within the prohibition of Art. 20(3), the person accused must have stood in the character of an accused person at the time he made the statement. It is not enough that he should become an accused, any time after the statement has been made.
His Lordship Mr. Justice. DAS GUPTA J (FOR S. K. DAS AN SARKAR)
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 information it will he an infringement of A rt. 20(3); but there is no such infringement where he gives the information without any compulsion. Therefore, compulsion not being inherent or implicit in the fact of the information having been received from a person in custody, the contention that s. 27 necessarily infringes Art.20(3) cannot be accepted.
PARTY: THE STATE OF BOMBAY vs. KATHI KALU OGHAD AND OTHERS – (1962) 3 SCR 10 [11 JUDGE BENCH].
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