Whether the provision of Section 27 of Evidence Act is constitutionally valid?
Ans: In the case of JETHIYA V/S. STATE – reported in AIR 1955 Raj 147, it has been held that this Section is not void under Art. 13(1) of the Constitution, as being repugnant to Art. 20(3) of the Constitution, under which \’no person accused of any offence shall be compelled to be a witness against himself.
No doubt, as pointed out by their Lordships of the Supreme Court in MP SHARMA V/s. SATISH CHANDRA- reported in AIR 1954 SC 300 ‘to be a witness’ is nothing more than ‘to furnish evidence’ and such evidence, can be furnished not only through the lips, but also by the production of thing, and the protection afforded by Art.20(3) is not confined to the oral evidence of a person standing his trial for an offence when called to the witness-stand, but extends to his testimony previously obtained from him, but the guarantee in the article is only against ‘testimonial compulsion’. The article protects a person being compelled to be a witness against himself, but the information admissible under the section cannot be presumed to be ‘compelled testimony’, so as to make the section repugnant to the article.
The scope of Art. 20(3) of the Constitution has been laid down by the Supreme Court in the STATE OF BOMBAY V/s. KATHI KALU- reported in AIR 1961 SC 1808. Approving its earlier decision in MOHAMED DASTAGIR V/S. STATE OF MADRAS- reported in AIR 1960 SC 756, the Court held:
“In order to bring the evidence within the inhibitions of cl (3) of art 20, it must be shown not only that the person making the statement was an accused at the time he made it and that it had material bearing on the criminality of the maker of the statement, but also that he was compelled to make that statement. ‘Compulsion’ in the context, must mean what in law is called ‘duress’. The compulsion in this sense is a physical objective act and not the 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.