Article 20(3) of the Constitution guarantees that “No person accused of any offence shall be compelled to be a witness against himself”.
The issue raised in your question has been settled by a 11-judge bench of the Supreme Court in the case of State of Bombay v. Kathi Kalu Oghad, AIR 1961 SC 1808 : (1962) 3 SCR 10 : (1961) 2 Cri LJ 856, which was decided by a majority of 8 judges. It is pertinent to point out that 11-judges bench decision of the Supreme Court is a rarity. In this case, the Supreme Court, by majority, held as under:
“It is well established that cl. (3) of Art. 20 is directed against self-incrimination by an accused person. 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.”
The majority decision in this case also observed as under:
- “To be a witness” means imparting knowledge in respect of relevant facts, 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.
- ‘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.
- The accused may have documentary evidence in his possession which may throw some light on the controversy. If it is a document which is not his statement conveying his personal knowledge relating to the charge against him, he may be called upon by the Court to produce that document in accordance with the provisions of S. 139 of the Evidence Act, which, in terms, provides that a person may be summoned to produce a document in his possession or power and that he does not become a witness by the mere fact that he has produced it; and therefore, he cannot be cross-examined. Of course, he can be cross-examined if he is called as a witness who has made statements conveying his personal knowledge by reference to the contents of the document or if he has given his statements in Court otherwise than by reference to the contents of the documents.
Thus, an analysis of the above judgment shows that if the content of the document does not disclose any information based on the personnel knowledge of the accused, it may be summoned. This is what appears to be the ratio of the above judgment.
Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.
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