SELF INCRIMINATION CASES

1. Dipanwita Roy versus Ronobroto Roy

This case, Dipanwita Roy versus Ronobroto Roy, originated from a petition filed by the husband
seeking dissolution of marriage under Section 13 of the Hindu Marriage Act, 1955.

The core of the controversy stemmed from the husband's assertion that the wife had an adulterous
lifestyle.

Specific allegations made by the husband:

● Since September 22, 2007, the wife never lived with the husband and did not share a bed.
● She led an extravagant lifestyle and incurred heavy debts, using the husband's address for
banks and causing harassment by collection agents.
● She purchased a car with the husband's uncle as a guarantor but failed to pay installments.
● She had gone astray, leading a "fast life" and living in an extramarital relationship with a Mr.
Deven Shah.
● She had given birth to a child as a result of her cohabitation with Mr. Deven Shah.

The wife's response and denials:

● She admitted that their daughter "Biyas" was residing with the husband's mother, and she
would visit there, spending time and carrying on matrimonial obligations including co-
habitation with the husband.
● She categorically denied the husband's statements regarding her character (selfish, self-
willed, arrogant, short-tempered, quarrelsome, going out without informing) as absolutely
false, concocted, untrue, frivolous, and vexatious.
● She denied leading an extravagant lifestyle and incurring debts in that manner, stating she
used the matrimonial home address as her permanent address.
● She claimed she purchased things for the husband and spent money at clubs and
restaurants with him.
● She stated she purchased a car on credit at the husband's insistence for her office work, and
he promised to pay 50% of the EMI but failed to contribute.
● She admitted incurring some debts due to financial recession and losing her job, and that her
parents offered help, but the husband remained silent.
● She strongly denied leading a fast life in an extramarital relationship with Mr. Deven Shah.
● She strongly denied giving birth to a child as a result of cohabitation with Mr. Deven Shah.
● She stated she had a continuous matrimonial relationship and cohabitation with the
husband, and as a result, a male child was born.
● She argued that raising questions about the child's birth would adversely affect the family
and the child's mind, which goes against the concept of the child's welfare.

The request for a DNA test and lower court proceedings:

● To substantiate his claims of the wife's infidelity and that he was not the father of the child,
the husband moved an application for a DNA test of himself and the male child.
● The wife filed objections, asserting the husband's application was false, frivolous, vexatious,
motivated, and designed to cast a slur on her reputation. She reiterated her denial of the
relationship with Mr. Deven Shah and asserted continuous matrimonial relationship and
cohabitation with the husband. She sought the dismissal of the DNA test application.
● The Family Court dismissed the husband's prayer for the DNA test.
 ● The husband then approached the High Court, which allowed his petition and directed the
DNA test of the wife's son and the husband. The High Court ordered the husband to bear the
expenses and deposit Rs. 1 lakh, which would be forfeited to the wife if the paternity test
showed him to be the father, and refunded otherwise. The High Court refused the wife's
request to file an affidavit or stay the order.

Arguments discussed in the Supreme Court:

● Arguments by the wife (appellant): The wife's counsel primarily relied on Section 112 of the
Indian Evidence Act, 1872, which states that birth during a valid marriage is conclusive proof
of legitimacy unless non-access between the parties can be shown at the time the child
could have been begotten.

○ She cited Karapaya Servai v. Mayandi (Privy Council, approved by Supreme Court)
where "access" was held to mean the opportunity for marital intercourse, the
existence of which makes the child's legitimacy conclusive proof.
○ She cited Goutam Kundu vs. State of West Bengal, which held that Indian courts
cannot order blood tests routinely or for roving inquiries; there must be a strong
prima facie case of non-access to dispel the Section 112 presumption; courts must
consider the consequences (branding the child as a bastard and mother as
unchaste); and no one can be compelled to give a blood sample.
○ She cited Kamti Devi and another v. Poshi Ram, emphasizing that the only way to
escape Section 112's conclusiveness is by showing non-access when the child could
have been begotten. The burden is on the party asserting the negative (no access),
which is a high standard of proof. It was noted that Section 112 predates DNA tests,
and even if DNA shows the husband is not the father while they were living together,
the legal conclusiveness under Section 112 remains unrebuttable.
○ She cited Sham Lal @ Kuldeep vs. Sanjeev Kumar and others, stating that proof of a
valid marriage creates a strong presumption of legitimacy, rebuttable only by strong,
clear, satisfying, and conclusive evidence. Evidence of the wife's adultery is not
sufficient by itself to repel the presumption if the husband had access.
○ The wife contended that based on these principles, the High Court's order for a DNA
test should be set aside.
● Supreme Court's Analysis and Reasoning:

○ The Court noted that the primary question is the wife's alleged infidelity under
Section 13(1)(ii) of the Hindu Marriage Act, not strictly the legitimacy of the child,
although legitimacy is incidentally involved. Therefore, Section 112 of the Evidence
Act would not strictly apply to the determination of infidelity.
○ Referring to Bhabani Prasad Jena vs. Convenor Secretary, Orissa State Commission
for Women, the Court highlighted the delicate and sensitive nature of DNA tests
regarding paternity. Courts must balance the right to privacy against the duty to find
the truth. A DNA test should not be directed routinely; it must be "eminently needed"
for a just decision, considering the Section 112 presumption and other factors. A
strong prima facie case is required.
○ Referring to Nandlal Wasudeo Badwaik vs. Lata Nandlal Badwaik, the Court
acknowledged the scientific accuracy of DNA tests. While Section 112 provides a
rebuttable presumption based on non-access, the DNA test provides scientific proof.
The Court stated that when there is a conflict between a conclusive proof under law
(Section 112) and scientifically accepted proof (DNA), the latter must prevail. If a
DNA test proves the husband had no access (or is not the father), he cannot be
compelled to bear fatherhood; "Truth must triumph".
 ○ Based on Bhabani Prasad Jena and Nandlal Wasudeo Badwaik, the Court
concluded that it is permissible to direct a DNA test if "eminently needed" based on
case facts to determine the veracity of allegations that are grounds for the case, even
if legitimacy is incidentally involved. While avoiding the test is preferable to protect
the child's legitimacy, it may be necessary.
○ Applying this to the case, the Court found that the husband's clear allegations of
infidelity, naming the alleged father, were aimed at proving infidelity. The Court
agreed with the husband that a DNA test is likely the only way for him to substantiate
these specific allegations. DNA testing is deemed the most legitimate and
scientifically perfect means for the husband to prove infidelity and for the wife to
rebut it.
○ Therefore, the direction issued by the High Court was found to be fully justified.
● The Court's Caveat: The Supreme Court, while upholding the High Court's order, provided a
caveat giving the wife liberty to comply or disregard the direction for the DNA test.

○ If she complies, the test will conclusively determine the veracity of the accusation.
○ If she declines, the court will determine the allegation by drawing a presumption
against her under Section 114, Illustration (h) of the Indian Evidence Act. This
illustration suggests that if a person refuses to answer a question they are not
compelled by law to answer, it may be presumed the answer would be unfavorable to
them.
○ This course was adopted to preserve individual privacy as much as possible without
sacrificing justice. It allows the issue of infidelity to be determined without expressly
disturbing the Section 112 presumption, though legitimacy is still incidentally
involved.

Outcome: The appeal was disposed of in these terms, effectively upholding the High Court's order
for a DNA test but providing the wife with the stated liberty and consequences for her choice.

whether an individual can be compelled to undergo a medical test

Based on the provided source material, the judgment in Dipanwita Roy versus Ronobroto Roy does
not explicitly discuss the jurisprudence of "self-incrimination" in the traditional sense (e.g., related to
being compelled to give testimonial evidence). However, it grapples with a closely related principle:
whether an individual can be compelled to undergo a medical test (like a DNA test) that could
produce evidence potentially adverse to them, and how this relates to the right to privacy.

Here's how the judgment addresses these principles:

1. Background: The case involves a husband seeking divorce based on the wife's alleged
adulterous lifestyle and claiming he is not the father of a child born during the marriage. To
substantiate his claim of infidelity, the husband sought a DNA test of himself and the child.
The wife opposed this, denying the allegations and asserting continuous cohabitation and
matrimonial relationship.

2. Arguments against Compulsion (cited by the wife): The wife's counsel relied on previous
Supreme Court decisions emphasizing the reluctance of courts to order blood/DNA tests.

○ Goutam Kundu held that courts cannot order blood tests as a matter of course for
roving inquiries and importantly, that "No one can be compelled to give sample of
blood for analysis".
 ○ Bhabani Prasad Jena reiterated that DNA tests should not be directed "as a matter of
course or in a routine manner" and must be "eminently needed". It also highlighted
the delicate balance between the court's duty to find truth and the "invasion of right
to privacy of an individual" and the potential "devastating effect on the child".
3. Court's Balancing Act: The Supreme Court acknowledged the sensitive nature of DNA
tests and the need to balance the right to privacy against the duty to reach the truth. It noted
that previous judgments indicated that DNA tests are permissible if "eminently needed" for a
just decision, provided there is a strong prima facie case.

4. The Principle of Non-Compulsion and its Consequence: While finding that a DNA test
was justified in this case to determine the wife's alleged infidelity, the Court did not order that
the wife be compelled to undergo the test. Instead, it provided a crucial caveat:

○ The Court gave the appellant-wife the "liberty to comply with or disregard the
order passed by the High Court, requiring the holding of the DNA test".
○ This means she had a choice; she could not be forced to provide samples for the
test.
○ However, if she declined to comply, the court would then be entitled to draw a
"presumption" against her under Section 114 of the Indian Evidence Act,
specifically Illustration (h).
○ Illustration (h) states that the Court "may presume... That if a man refuses to
answer a question which he is not compelled to answer by law, the answer, if
given, would be unfavourable to him".
○ The Court explicitly stated that this approach was adopted "to preserve the right of
individual privacy to the extent possible" without sacrificing the cause of justice.

In essence, while not using the term "self-incrimination," the judgment reflects the principle that an
individual cannot be physically compelled to provide biological samples for a test that could provide
evidence against them. The court's solution respects this by offering a choice, with the consequence
of non-compliance being an adverse inference drawn against them, rather than forced participation.

2.Selvi v. State of Karnataka:

Based on the provided source excerpts from the judgment in Selvi v. State of Karnataka:

This case primarily concerned the legality and constitutionality of involuntarily

administering certain scientific techniques – specifically narcoanalysis, polygraph
examination, and the Brain Electrical Activation Profile (BEAP) test – for the purpose
of improving criminal investigation efforts. The court acknowledged that this issue involved a
tension between the desirability of efficient investigation and the preservation of
individual liberties. It raised pertinent questions about the meaning and scope of
fundamental rights, particularly those available to all citizens.

The main legal questions the court had to address were:

● Whether the involuntary administration of these techniques violates the ‘right

against self-incrimination’ enumerated in Article 20(3) of the Constitution.
○ This involved sub-questions about whether the investigative use creates a
likelihood of incrimination and whether the test results amount to ‘testimonial
compulsion’.
 ● Whether the involuntary administration of these techniques is a reasonable
restriction on ‘personal liberty’ as understood in the context of Article 21 of the
Constitution.

Arguments Discussed:

1. Arguments Against Involuntary Administration:

○ Several lawyers argued against the involuntary use of the impugned

techniques.
○ These arguments invoked the protection of Article 20(3), the ‘right against
self-incrimination’. A key question was whether this right extends to the
investigation stage and whether the test results are of a ‘testimonial’
character. Relying on test results or materials discovered through them might
create a likelihood of incrimination.
○ Arguments also invoked the guarantee of ‘substantive due process’, which
is considered part of ‘personal liberty’ under Article 21. This included
requirements such as proving guilt beyond reasonable doubt and the right of
the accused to present a defence.
○ It was contended that statements made under the influence of drugs or
hypnosis (like in narcoanalysis) could be involuntary and inadmissible. Some
precedents suggested that compelling someone to answer under such
conditions could be considered a form of "violence or intrusion of a moral or
mental nature," accessing the "utmost privacy, the privacy of his own mind".
○ Concerns were raised about the reliability of the results from these
techniques.
○ The involuntary administration was seen as potentially offending judicially-
recognised dimensions of personal liberty under Article 21, such as the right
to privacy and the right against cruel, inhuman or degrading treatment. The
'right to privacy' has been described as the 'right to be let alone' and could be
impacted by the collection and retention of biological samples or information.
○ The administration of these tests forces the subject to overcome their
autonomy and violates the expectation of privacy. Under a drug-induced
state, a subject cannot exercise an effective choice between remaining silent
and imparting personal knowledge.
2. Arguments Supporting Compulsory Administration:

○ The Solicitor General and Senior Advocates representing the Union of India
and CBI defended the compulsory administration of these techniques.
○ The primary justification was the desirability of efficient investigation
efforts in criminal cases.
○ It was argued that the results might be exculpatory or inculpatory, and their
nature isn't known at the time of the test, so they shouldn't automatically
attract the bar of Article 20(3). (The court later rejected this reasoning).
○ It was contended that the phrase "modern and scientific techniques including
DNA profiling and such other tests" in the amended Section 53 of the CrPC
could be liberally construed to include the impugned techniques.
 ○ It was suggested that the administration of these tests is intended to extract
information, not inflict pain or suffering, and does not involve a condemnable
degree of 'physical pain or suffering'.

Jurisprudence of Self-Incrimination (Article 20(3)) Discussed:

● The court delved into the historical origins and rationale of the ‘right against self-
incrimination’. It noted origins in medieval England as a response to the
"inquisitorial and manifestly unjust methods of interrogating accused
persons," particularly the use of the ex officio oath by bodies like the Star Chamber
and High Commissions. This oath compelled defendants to answer all questions,
with failure leading to punishment, often involving physical torture. Resistance to this
practice led to the demand for a ‘right to silence’. The abolition of the Star Chamber
and High Commission in 1641 is regarded as an important landmark.
● The court also noted the maxim ‘Nemo tenetur seipsum prodere’ (no one is bound
to accuse himself) as a doctrinal origin, linked to the evolution of ‘due process of
law’.
● The protection under Article 20(3) has been construed broadly by Indian courts. It
is not limited to the trial stage but extends to the investigation stage as well. The
phrase "to be a witness" in Article 20(3) is interpreted as "to furnish evidence," not
just appearing in court.
● The court discussed who can invoke this protection. While it traditionally requires
a formal accusation, the protection under Section 161(2) CrPC is wider, covering
"any person supposed to be acquainted with the facts and circumstances of the
case" who might be exposed to a criminal charge.
● What constitutes ‘incrimination’ is crucial. Answers that would, in themselves,
support a conviction are confessions, but incrimination also includes answers that
have a "reasonable tendency strongly to point out to the guilt of the accused"
or furnish a "real and clear link in the chain of evidence" to connect the accused
with the crime. However, the protection does not extend to merely relevant facts that
don't have a "sinister import".
● The court distinguished between ‘testimonial compulsion’ and the collection of
physical evidence. Testimonial acts are generally those where a person imparts
knowledge through oral or written statements or intelligible gestures. Physical
evidence includes things like fingerprints, blood samples, or standing in a line-up,
which are considered to have an existence independent of the will of the suspect.
The majority opinion in Kathi Kalu Oghad is the controlling precedent on this
distinction.
● The court concluded that the narcoanalysis test involves substantial reliance on
verbal statements from the subject and therefore its involuntary administration
offends the ‘right against self-incrimination’. It involves imparting personal
knowledge.
● Regarding polygraph and BEAP tests, the court noted that they measure
physiological responses, and while not oral/written statements, inferences are drawn
from these, suggesting they might also fall under 'testimonial compulsion'.
● The court affirmed that compelling individuals to undergo these tests against their
will violates Article 20(3). The rationale is to ensure the reliability and
voluntariness of statements admitted as evidence.
 ● While Section 27 of the Evidence Act allows for the admission of facts discovered in
consequence of information received from an accused in custody, this is only
permissible if the information was given without compulsion.
● The 'right to silence' at the trial stage is a principle of common law, meaning courts
generally should not conclude guilt merely because an accused refused to answer
police or court questions. Adverse inferences from silence are generally prohibited in
criminal trials in India.

Personal Liberty (Article 21) Discussed:

● The court considered whether the involuntary tests violated aspects of 'personal
liberty' under Article 21, including the right to privacy, the right against
cruel/inhuman/degrading treatment, and the right to fair trial.
● The right to privacy was recognized, although the Indian Constitution doesn't
explicitly contain it like the US Fourth Amendment. The court noted that privacy can
be curtailed, but only in light of competing interests and within legal frameworks.
While the collection of samples like blood for DNA was distinguished as physical
evidence and generally permissible if provided by law and procedure, the involuntary
administration of the impugned tests was viewed differently due to their reliance on
mental responses.
● The court also highlighted concerns about the reliability of the techniques.
Admitting unreliable evidence could prejudice the accused and affect the right to a
fair trial.
● Permitting involuntary administration would disrupt the balance between the
prosecution and defence.
● The court noted that forced access to a person's mind through these techniques
impacts their mental privacy.

Conclusion on the Impugned Techniques:

The court concluded that the compulsory administration of narcoanalysis, polygraph

examination, and BEAP tests violates the ‘right against self-incrimination’ (Article
20(3)). It also held that such involuntary administration is an unreasonable restriction on
'personal liberty' (Article 21) . However, these tests could be administered if the individual
consents. The court laid down a set of guidelines for recording such consent, emphasizing
that it must be voluntary, made in the presence of a lawyer, recorded before a Judicial
Magistrate, and the individual must be informed it is not a confessional statement to the
Magistrate.

the 'right to silence' is a fundamental protection rooted in the principle against self-
incrimination.

1. Core Meaning and Origin:

○ The 'right of refusal to answer questions that may incriminate a person' is

described as a procedural safeguard.
 ○ Its historical origins can be traced back to the maxim ‘Nemo tenetur
seipsum prodere’ (no one is bound to accuse himself).
○ It emerged as a protest against "inquisitorial and manifestly unjust methods of
interrogating accused persons," particularly the use of the ex officio oath
which compelled defendants to answer all questions, often under the threat of
physical torture. The abolition of the Star Chamber and High Commission in
1641 is considered an important landmark in its evolution.
○ While it was initially more of a rule of evidence in England, it became "clothed
in the impregnability of a constitutional enactment" in the United States.
○ In essence, it is "primarily concerned... with respecting the will of an accused
person to remain silent". It protects an individual's choice between
remaining silent and speaking.
2. Purpose and Rationale:

○ Its underlying rationale has two main objectives: ensuring the reliability of
statements made by an accused and ensuring that such statements are
made voluntarily. Involuntary statements are more likely to be false and
mislead the court.
○ It serves as a vital safeguard against coercion, threats, inducement,
deception, torture, and other ‘third-degree methods’ that could be used to
elicit information.
○ It is an essential safeguard in criminal procedure.
○ It helps maintain a fair state-individual balance by requiring the government
to gather evidence diligently rather than compelling it from the accused.
○ It reflects a preference for an accusatorial rather than an inquisitorial
system of criminal justice.
○ It supports the principle of presumption of innocence, ensuring the
prosecution bears the burden of proof rather than the accused being
compelled to prove innocence.
○ It respects the "inviolability of the human personality and of the right of each
individual to a private enclave".
○ The segregation between the testimonial function (accused) and defensive
function (lawyer) is now accepted as an essential feature of a fair trial to
ensure a level playing field.
3. Scope in Indian Law (Article 20(3) and CrPC):

○ The right against self-incrimination is constitutionally enumerated in Article

20(3), which states, "No person accused of any offence shall be compelled to
be a witness against himself".
○ The protection under Article 20(3) has been interpreted broadly by Indian
courts.
○ It extends to the investigation stage, not just the trial stage.
○ The phrase "to be a witness" is interpreted as "to furnish evidence," not just
appearing in court. Compelled testimony previously obtained is excluded.
○ The protection covers accused persons, suspects, and witnesses who are
examined during an investigation and apprehend that their answers could
expose them to criminal charges. Section 161(2) CrPC explicitly states that a
 person examined by a police officer is not bound to answer questions that
would expose them to a criminal charge, penalty, or forfeiture.
○ Indian law incorporates the ‘rule against adverse inferences from silence’
which is operative at the trial stage. Sections 313(3) and Proviso (b) to
Section 315(1) of the CrPC prohibit the court or any party from commenting
on the accused's failure to give evidence or drawing any presumption against
them. This rule was strengthened in the 1973 CrPC compared to the earlier
code. The Law Commission considered diluting this rule but concluded it
would be "ultra vires of Article 20(3) and Article 21 of the Constitution of
India".
○ The right against self-incrimination (Article 20(3)), along with personal liberty
(Article 21), has a non-derogable status and cannot be suspended even
during a proclamation of emergency.
○ It is considered a component of 'personal liberty' under Article 21.
○ Forcing a person to impart personal knowledge about relevant facts goes
against this right.
4. Distinction from Physical Evidence:

○ The privilege against self-incrimination is generally limited to testimonial

disclosures (imparting knowledge through oral/written statements or
intelligible gestures).
○ It does not typically extend to the collection of physical evidence that has an
existence independent of the will of the suspect, such as fingerprints, blood,
or urine samples. However, the involuntary administration of techniques like
narcoanalysis, which relies on verbal statements, is considered testimonial.
5. Connection to Voluntariness:

○ Compelling a person to make statements while in custody, even if those

statements lead to the discovery of facts (per Section 27 of the Evidence Act),
would be an infringement of Article 20(3) if compulsion is proven.
○ Unlike the US system with Miranda warnings, India does not have an
automatic presumption of compulsion in custodial statements, but if
compulsion is proved, the statements are inadmissible.

a medical examination can be compelled under certain circumstances in Indian law,

primarily governed by provisions in the Code of Criminal Procedure, 1973.

1. Statutory Basis (Sections 53 and 54 CrPC):

 ○ Before the Code of Criminal Procedure was overhauled in 1973, medical
examinations generally required the consent of the person being examined.
Courts had held that a forcible examination without statutory authority could
amount to an assault.
○ However, recommendations from the Law Commission led to the inclusion of
Sections 53 and 54 in the CrPC, 1973, which enabled medical examination
without the consent of an accused.
○ These sections contemplate the medical examination of a person who has
been arrested on a charge of committing an offence. The examination can
be requested by a police officer (not below the rank of sub-inspector) or the
arrested person themselves, or directed by a court.
○ Importantly, Section 53 explicitly states that it is lawful "to use such force as
is reasonably necessary for that purpose". This means that once a court
directs the medical examination, investigators and examiners are permitted to
use a reasonable degree of physical force to conduct it. This compelled
extraction is considered mandated by law and meets the threshold of
'procedure established by law'.
2. Scope of Compelled Medical Examination:

○ The Explanation to Sections 53, 53-A, and 54 was amended in 2005 to clarify
what constitutes "examination". It explicitly includes the examination of
specific bodily substances and techniques:
■ Blood, blood-stains
■ Semen, swabs (in case of sexual offences)
■ Sputum and sweat
■ Hair samples
■ Fingernail clippings
■ DNA profiling by modern and scientific techniques
■ "and such other tests which the registered medical practitioner thinks
necessary in a particular case".
○ Indian courts have upheld the compelled extraction of physical evidence like
blood and hair samples in the course of investigation. This is because the
privilege against self-incrimination (Article 20(3)) generally applies only to
testimonial disclosures (statements, conveying personal knowledge), not
the collection of physical evidence that exists independently of the suspect's
will.
3. What Cannot Be Compelled as Medical Examination:

○ The sources make it clear that the involuntary administration of

techniques like narcoanalysis, polygraph examination, and the Brain
Electrical Activation Profile (BEAP) test cannot be compelled under
these medical examination provisions.
○ The court reasoned that the general phrase "and such other tests" in the
Explanation should be read under the rule of 'ejusdem generis' to include
tests similar in genus to the specifically listed ones (which are examinations
of bodily substances).
○ Since the impugned techniques (narcoanalysis, polygraph, BEAP) primarily
involve testimonial responses or inferences drawn from physiological
 responses to derive personal knowledge, they are distinct from the
examination of physical substances. Forcing a person to undergo these tests
violates the right against self-incrimination (Article 20(3)) because it compels
them to convey personal knowledge irrespective of their volition.

In summary, under Indian law, a medical examination involving the collection and analysis
of physical substances like blood, semen, hair, DNA, etc., can be compelled from an
arrested person, with the use of reasonable force if necessary, based on Sections 53 and
54 of the CrPC, 1973. However, techniques like narcoanalysis, polygraph, and BEAP, which
elicit testimonial responses or inferences from them, cannot be compelled under these
provisions as they violate the right against self-incrimination and involve an intrusion into
mental privacy.

3. the case of State of Bombay v. Kathi Kalu Oghad

Based on the provided sources, the case of State of Bombay v. Kathi Kalu Oghad was a landmark
decision by the Supreme Court of India concerning the interpretation of the constitutional protection
against self-incrimination under Article 20(3) of the Constitution of India and its relationship with
certain provisions of the Indian Evidence Act, particularly Sections 27, 25, and 26.

The case involved several connected appeals that were heard together due to raising similar
questions regarding these legal provisions. The central issue before the Full Court (a large bench of
the Supreme Court) was whether compelling an accused person to give specimen handwriting,
signatures, or impressions of their fingers, palms, or feet for comparison purposes during a
police investigation or trial violates the fundamental right guaranteed by Article 20(3), which states
that "No person accused of any offence shall be compelled to be a witness against himself".
Related questions included the scope of the phrase "to be a witness" and the admissibility of
information given to police that leads to the discovery of a fact under Section 27 of the Evidence Act.

Arguments and Different Views Discussed:

The Court considered various interpretations of Article 20(3) that had emerged from previous cases,
including those of the Bombay High Court and the Calcutta High Court (Sharma's case and
Sailendra Nath Mitra's case). These interpretations fell broadly into different categories:

1. A Wide Interpretation: One view suggested that "to be a witness" meant being compelled to
produce any kind of evidence whatsoever that could incriminate the accused, including
documents or physical objects. This interpretation was considered potentially too broad,
possibly invalidating many common investigative procedures.
2. A Narrow Interpretation: Another view limited the protection strictly to testimonial
compulsion in court, meaning forcing the accused to make oral statements in the witness
box. This view was seen as too restrictive and inconsistent with the purpose of the
protection, which is also intended to safeguard individuals during police interrogation.
3. An Intermediate Interpretation (Ultimately Adopted): This view, which the Court
endorsed, required the presence of four essential conditions for Article 20(3) to apply:
○ The person must be accused of an offence.
○ They must be compelled (meaning not acting voluntarily).
○ They must be compelled "to be a witness".
 ○ They must be compelled "against himself" (meaning the evidence must have a
tendency to incriminate them).

The Court's Key Findings and Rationale:

The Court delved into the meaning of "to be a witness" in the context of Article 20(3). It concluded
that "to be a witness" means "to furnish evidence". However, the Court made a crucial distinction:

● The protection against compelled evidence under Article 20(3) is primarily against
testimonial compulsion. This refers to compelling an accused person to give oral or
written statements that convey their personal knowledge of facts relevant to the crime.
Such statements would be essentially "speaking or writing" out of their own knowledge.
● The protection does not extend to the compelled production of physical evidence that
exists independently of the will of the accused or requiring the accused to perform a
physical act for the purpose of identification or comparison.

Applying this distinction, the Court held the following:

● Compelling an accused to give specimen handwriting, signatures, finger impressions,

palm impressions, or foot impressions does NOT violate Article 20(3). The rationale is
that providing these specimens is considered a physical act, not a testimonial one. The
accused is not being compelled to disclose personal knowledge about the crime but merely
providing material derived from their body or characteristic for experts to compare with other
evidence. The Court likened this to submitting to identification parades, giving
measurements, or being searched, none of which are considered testimonial acts.
● The prohibition in Article 20(3) extends to the investigation stage, not just the trial.
However, for the protection to apply, compulsion must be proven.
● Regarding Section 27 of the Indian Evidence Act, which allows the admission of
information given by an accused in police custody if it leads directly to the discovery of a fact,
the Court held that if such information was given voluntarily, Article 20(3) is not infringed. If
compulsion is proven, the information would be inadmissible, but the mere fact of being in
police custody when giving the information does not automatically render it compelled.

In essence, the Kathi Kalu Oghad case clarified that while Article 20(3) provides robust protection
against forced self-incriminating statements that reveal personal knowledge, it does not prevent
investigators from compelling an accused to provide physical evidence or samples of their physical
characteristics that are independent of their cognitive faculties related to the crime itself. This
interpretation aimed to strike a balance between protecting individual rights and enabling effective
criminal investigation.

the jurisprudential aspect of self-incrimination discussed

in the case of State of Bombay v. Kathi Kalu Oghad revolves around the interpretation and scope
of Article 20(3) of the Constitution of India. This provision states: "No person accused of any
offence shall be compelled to be a witness against himself". The central question was whether
this fundamental right was infringed when an accused person was compelled to provide physical
evidence, specifically specimen handwriting, signatures, or impressions of their fingers,
palms, or feet, for comparison purposes under provisions like Section 73 of the Indian Evidence Act
or other laws.
Here are the key jurisprudential aspects discussed:

● Meaning of "To be a Witness": The Court extensively debated the meaning of the phrase
"to be a witness" in Article 20(3). Various interpretations were considered, ranging from a
very wide meaning encompassing any evidence whatsoever, to a narrow meaning restricted
solely to oral statements made in court.
● Distinction Between Testimonial and Physical Evidence: The landmark jurisprudential
contribution of this case was the clear distinction drawn by the Supreme Court between
"testimonial compulsion" and the compulsion to provide physical evidence or
specimens of identification.
● Protection Against Testimonial Compulsion: The Court held that the protection afforded
by Article 20(3) is primarily against compelling an accused person "to furnish evidence"
by making oral or written statements that convey their personal knowledge of facts
relevant to the crime. This is considered speaking or writing "out of his own knowledge".
Compelling such statements would be compelling the person to be a witness against
themselves.
● Exclusion of Physical Evidence/Acts from Protection: The Court concluded that
compelling an accused person to give specimen handwriting, signatures, or impressions
of fingers, palms, or feet does not amount to testimonial compulsion. This is because
these are considered physical acts or the provision of material evidence derived from the
body that exists independently of the accused's personal knowledge of the crime. Providing
these specimens is akin to allowing identification, giving measurements, or being searched.
It does not involve conveying personal knowledge.
● "Furnishing Evidence" Includes More Than Statements: The Court clarified that while "to
be a witness" means "to furnish evidence", this phrase, in the context of Article 20(3), should
not be interpreted in its widest sense (which could include producing documents or material
objects, which is sometimes compelled by law). Instead, the prohibition focuses specifically
on the nature of the evidence furnished - i.e., whether it is testimonial in nature, revealing
personal knowledge.
● Application to the Investigation Stage: The Court affirmed that the protection under Article
20(3) is available even at the investigation stage, not just during the trial in court. However,
for the protection to apply, there must be proven compulsion, meaning the act was not
voluntary.
● Interpretation of Section 27 of the Evidence Act: The case also touched upon the
relationship between Article 20(3) and Section 27 of the Evidence Act. Section 27 allows the
admission of information given by an accused in police custody if it leads to the discovery of
a fact. The Court held that if such information is given voluntarily, Article 20(3) is not
violated, and Section 27 operates. The mere fact of being in police custody does not
automatically imply compulsion. If compulsion is proven, the information would be
inadmissible.

In essence, the jurisprudential significance of Kathi Kalu Oghad lies in its precise demarcation of
the self-incrimination privilege under Article 20(3), restricting it primarily to statements that reveal
personal knowledge, while allowing the forced collection of physical evidence or characteristics
needed for identification or comparison, as these are not considered "being a witness against
himself" in the testimonial sense. This interpretation provided a balance between protecting
individual rights and facilitating criminal investigation through the collection of non-testimonial
physical evidence.

4. Ritesh Sinha v. State of Uttar Pradesh

What the Case was All About:

The case of Ritesh Sinha v. State of Uttar Pradesh was a criminal appeal before the Supreme
Court of India concerning the power of an investigating agency and a Magistrate to compel an
accused person to provide a voice sample for the purpose of criminal investigation.

The specific facts giving rise to the case involved an investigation by the police in Saharanpur, Uttar
Pradesh, into allegations of collecting money on the promise of jobs in the Police. Following an
arrest, a mobile phone was seized containing recorded conversations. The investigating authority
needed to verify if these conversations were between the arrested person and the appellant, Ritesh
Sinha. This necessitated obtaining a voice sample from Ritesh Sinha. The investigating agency filed
an application before the Chief Judicial Magistrate (CJM) for recording the appellant's voice sample.
The CJM ordered Ritesh Sinha to appear and give his voice sample. This order was challenged,
leading to the appeal before the Supreme Court.

The appeal reached the Supreme Court after a split verdict by a two-judge bench of the Court, which
required a reference to a larger bench.

Principal Questions Discussed:

The case primarily revolved around two main questions:

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 voice sample during the
course of investigation into an offence?.
2. Assuming that there is no violation of Article 20(3) of the Constitution, whether in the
absence of any specific provision in the Code of Criminal Procedure (Cr.P.C.), can a
Magistrate authorize the investigating agency to record the voice sample of the
person accused?.

Arguments and Discussions:

The discussions in the case covered several key areas:

1. Application of Article 20(3) to Voice Samples:

○ Both judges in the initial two-judge bench agreed that compelling a voice sample did
not violate Article 20(3). This conclusion was reached by following the legal principle
established in the earlier Supreme Court case, State of Bombay v. Kathi Kalu
Oghad.
○ The Court in Kathi Kalu Oghad held that the prohibition under Article 20(3) is
against "testimonial compulsion," meaning compelling an accused to furnish
evidence by making oral or written statements that convey their personal
knowledge of facts relevant to the crime. Such statements are considered "speaking
or writing out of his own knowledge".
○ Crucially, Kathi Kalu Oghad distinguished between testimonial evidence and
physical evidence or acts. It held that compelling an accused to give specimen
handwriting, signatures, or finger, palm, or foot impressions does not amount to
testimonial compulsion and therefore does not violate Article 20(3).
○ These physical samples are considered "wholly innocuous" by themselves and are
merely materials for comparison to verify inferences drawn from other evidence.
 They are not oral or documentary evidence but fall into a third category of material
evidence.
○ The Court in Ritesh Sinha, by referring to and applying the ratio of Kathi Kalu
Oghad, extended this principle to voice samples. Although not explicitly stated in the
provided excerpts, the reasoning implies that compelling a voice sample is
considered analogous to compelling handwriting or fingerprints – it is providing a
physical characteristic for comparison, not making a statement based on personal
knowledge about the crime itself. Giving a voice sample does not involve conveying
information based on personal knowledge.
2. Magistrate's Power in the Absence of Specific Statutory Provision:

○ This was the point of divergence between the two judges in the split verdict.
○ One view (Justice Desai) suggested that a Magistrate could have an implied power
under existing law, such as by interpreting Explanation (a) to Section 53 Cr.P.C.
(dealing with medical examination) using the doctrine of ejusdem generis to include
voice samples.
○ The opposing view (Justice Alam) argued that such a power to compel voice
samples must be expressly authorized by legislation and cannot be created solely
through judicial interpretation. This view was based on the fact that even recent
amendments to the Cr.P.C. (Act No. 25 of 2005, effective 2006), which added
provisions for medical examination (Section 53A) and empowered Magistrates to
order specimen signatures or handwriting (Section 311A), did not include a provision
for voice samples. This omission by the legislature was seen as potentially
deliberate.
○ The Court considered the 87th Report of the Law Commission of India from 1980,
which had recommended suitable legislation to empower a Judicial Magistrate to
compel voice samples. The report noted that there was no specific statutory
provision in India granting police or courts this power.
○ A significant discussion involved whether Courts can or should fill a "yawning gap"
in the statute through judicial interpretation, particularly when legislative action is
absent or slow. The principle that "procedure is the handmaid, not the mistress, of
justice" was invoked.
○ The Court cited previous judgments where judicial interpretation was used to
supplement statutory provisions to give effect to the legislative intent or address
unforeseen situations, referencing views like those of Lord Denning on "ironing out
the creases" in legislation, which had been approved by the Indian Supreme Court.
This contrasted with the view that judges should not usurp the legislative function.
3. Right to Privacy:

○ The question of whether a judicial order compelling a voice sample would violate the
fundamental right to privacy was raised but was noted as "not having been argued
before us".
○ The Court, therefore, refrained from a detailed discussion on this point. However, it
noted that in view of previous judgments (specifically citing Modern Dental College,
Gobind, and K.S. Puttaswamy), the fundamental right to privacy is not absolute
and must yield to compelling public interest.

The Court's Final Conclusion (on the Second Question):

Considering the necessity to make the statute effective and workable and to subserve societal
interests, and in light of the "yawning gap" in the law, the Supreme Court ultimately held that a
Judicial Magistrate must be conceded the power to order a person to give a sample of his
voice for the purpose of investigation of a crime. The Court determined that this power is
conferred through the process of judicial interpretation and in exercise of its jurisdiction under Article
142 of the Constitution of India.

In essence, the case clarified that compelling voice samples does not offend the right against self-
incrimination (following Kathi Kalu Oghad), and empowered Magistrates to issue such directions
even in the absence of a specific statutory provision, pending legislative action.