Report No. 37
Section 4: Taking of measurements etc. of nonconvicted persons
Any person who has been arrested in connection with an offence punishable with rigorous imprisonment for a term of one year or upward shall, if so required by a police officer, allow his measurements including finger impressions and foot-print impressions to be taken in the prescribed manner.
Section 5: Powers of Magistrate to order a person to be measured or photographed
If a Magistrate is satisfied that, for the purpose, of any investigation or proceeding under the Code of Criminal Procedure, 1898, it is expedient to direct any person to allow his measurements (including finger impressions and foot-print impressions) or photograph to be taken, he may make an order to that effect, and in that case that person to whom the order relates shall be produced or shall attend at the time and place specified in the order and shall allow his measurements or photograph to be taken, as the case may be, by a police officer:
Provided further, that no order shall be made under this section unless the person has at some time been arrested in connection with such investigation or proceeding."
These sections do not extend to medical examination.
That under section 51, medical examination of the accused cannot be held without his consent, appears to be fairly clear from the discussion in the undermentioned case,1 though consent need not be necessarily recorded in writing.2
The matter has been elaborately discussed in a Bombay case.3
As to (b) above, it will suffice to refer to the decision of the Supreme Court in Kathi Kalu,4 which has the effect of confining the privilege under Article 20(3) to testimony-written or oral.5 The Supreme Court's judgment in Kathi Kalu should be taken as overruling the view taken in some earlier decisions,6-7 invalidating provisions similar to section 5, Identification of Prisoners Act, 1920.
1. Bhondar v. Emp., AIR 1931 Cal 601 (602).
2. Hanuman Sarma v. Emp., AIR 1932 Cal 723 (725).
3. Deoman v. State, AIR 1959 Bom 284 (285, 286) (Datar &. Tarkunde JJ.)
4. Kathi Kalu v. State, AIR 1961 SC 1808.
5. Some of the relevant decisions of the High Courts are-
(a) Pokhar Singh, AIR 1958 Punj 294 (299, 300, 301), paras. 32 to 50.
(b) Ram Swarup v. State, AIR 1959 All 119 (125, 126) (Reviews case-law).
(c) Moopan Palani (in re:), AIR 1955 Mad 495 (497), para. 7 (Blood-stained clothes).
(d) Subbava v. Bhopala, AIR 1959 Mad 396 (401), para. 10 (Taking of blood for test).
6. Brij Bhushan v. State, AIR 1957 MB 106.
7. N.D.N. Pakuthy, AIR 1950 TC 5.
The position in the U.S.A. has been thus summarised.1
"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 lineup, 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.2
The short and reasonably accurate answer to the questions posed is that almost all such physical acts can be required.3 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."4
A well-known writer on American Criminal Procedure makes these points.5
Non-testimonial evidence, other than private papers (and perhaps personal "effects"), is outside the privilege, subject to the qualifications-
(1) It may well be that compelling an accused person to do acts which result in the conveyance of his personal ideas is in violation of the privilege against self-incrimination.
(2) Where barbaric or indecent methods are used to obtain evidence, the Fifth Amendment, as well as the Fourth and Fourteenth, may be violated.
1. Emerson G. Spies Due process and the American Criminal Trial, (1964) 38 Australian Law Journal 223, 231.
2. Morgan Privilege Against Self-Incrimination, 34 Minn. L. Rev. 1 (1949); Inbau, Self-Incrimination (1950); Note, 5 N.C.L. Rev. 333 (1927); 97 U. Pa. L. Rev. 441 (1950); Ladd and Gibson, Legal-Medical Aspects of Blood Tests to Determine Intoxication, 29 Va. L. Rev. 749 (1943); A.L.I. Model Code of Evidence, Rule 205 (1942).
3. There is still some doubt, however, as to obtaining blood or urine specimens without consent. See also Rochin v. California, 342 US 165 (1952). In Rochin, the Court held that pumping accused stomach to recover narcotics violated the Fourteenth Amendment as offending the "decisions of civilized conduct."
4. See Morel and, op. cit., Griswold, the Fifth Amendment Today (1955). Sowle, cretal, "Privilege Against Self-Incrimination. An International Symposium", 51 J. Crim. L.C. & P.S. 129-180 (1960).
5. Moreland Modern Criminal Procedure, (1959), pp. 74, 78, 80.
In a recent decision the question of blood tests has been considered.1
A recent study has thus summarised the position in U.S.A.2:-
"Much energy has been expended by prosecutors in an effort to persuade the courts to limit the privilege of the accused to freedom from testimonial compulsion, thus leaving the prosecution free to compel the defendant's assistance in connection with the production of non-testimonial evidence. Under this dichotomy, the defendant could not, of course, be compelled to take the stand and testify (or to produce in court, under judicial order, private papers and perhaps other objects); however, the accused could be compelled to stand up in court in order to facilitate a witness's identification of him, to display a scar, to do certain appeal, to assume a certain position and, perhaps, even to provide a specimen of his handwriting or his voice.
If generalisation is possible in this uncertain borderland of the privilege, it is to the effect that the prosecutors have met with a fair degree of success. The efforts of defendants to block such courtroom demonstrations (and, in the same vein, to suppress the results of demonstrations and tests conducted outside the courtroom) frequently have been unavailing.3 However, the decisions are far from uniform. Professor McCormick, in an attempt to bring order out of apparent conflict, has suggested that some courts appear to draw a line between enforced passivity on the part of the accused and enforced activity on his part.
That, they have regarded as unprivileged those things involving passive submission, while recognising as privileged those activities requiring the active co-operation of the accused.4 Inasmuch as this shadowy corner of the privilege provides an ideal battleground for those who would limit the privilege and those who would expand its scope, we can safely assume that it will be productive of conflict for some time to come."
It is unnecessary to multiply further references to American and English law, as to which the under-mentioned sources may be seen.5-12
A provision permitting examination seems to have a fair chance of passing scrutiny by courts under Article 20(3).
As to (c) above, it would appear that such a provision is needed, as examination of the body would reveal valuable evidence.
Such examination may take various shapes, e.g.-
(i) examination of the body for ascertaining the accused's part in a sexual offence, or for finding out the injuries received by him;
(ii) examination for identification mark;
(iii) examination of internal parts, taking of fluids, (e.g., in intoxication case) and so on.
As to (d) above, the provision in the Queensland Code is useful,13 the provision is quoted below:-
1. Schmerbar v. California, (1966) 384 US 75.
2. Sowle The Privilege Against Self-Incrimination Principles and Trends, in Sowle (Editor), Police Power and Individual Freedom, (1963) pp. 215, 219.
3. The cases are collected in INBAU, Self-Incrimination, What can an accused person be compelled to do (1930). See also Maguire Evidence or Guilt, section 204 (1959).
4. See McCormick Evidence, section 126 (1954).
5. "Required information and privilege against Self-Incrimination", (1965 April) 65 Columbia Law Review 681.
6. Dalbey, Hotis and Mintz Search of the Person, (November 1966) 2 Criminal Law Bulletin, P. 13.
7. D.A. Thomas Arrest & Search, (September 1966) Criminal Law Review 481.
8. "Self-Incrimination and the States", (July 1964) 73 Yale LJ 1491.
9. G.D. Nokes Self-Incrimination by the accused in English law, (March 1966), Vol. 2, University of Briths Columbia Law Review 316.
10. "Blood Tests and the Bill of Rights,-Breithaupt revisited" (October 1965) 17 Hastings Law Journal 139.
11. "Books and records and the privilege against Self-Incrimination", (Fall 1966) 33 Broklyn Law Review 70.
12. A State Statute to prevent the operation of Motor Vehicles by Persons under the Influence of Alcohol (March 1967) 4 Harraro Journal on Legislature 280, 286, 287.
13. Section 259, Criminal Code of Queensland (Australia).
(Section 259, Criminal Code, Queensland, Australia)
"259. Examination of person of Accused person in custody.
When a person is in lawful custody upon a charge of committing any offence, it is lawful for a police officer to search his person, and to take from him anything found upon his person and to use such force as is reasonably necessary for that purpose.
When a person is in lawful custody upon a charge of committing any 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 the offence, it is lawful for a legally qualified medical practitioner acting at the request of a police officer, and for any person acting in good faith in his aid and under his direction, to make such an examination of the person so in custody as is reasonably necessary in order to ascertain in the facts which may afford such evidence, and to use such force as is reasonably necessary for that purpose."