The Presentation depicts a case analysis of the Oghad's case. Article 20(3) of the Constitution of India talks about Right against self-incrimination and the Oghad's case is a landmark judgment enhancing the realm of Article 20(3). After the judgment of 9-Judges bench in M.P. Sharma v. Satish Chandra, AIR 1954 SC 1077, the Oghad's case is a 11-Judge judgment further enhancing the scope of word 'witness' under Article 20(3). The Oghad's case is important as it redefines the scope of evidence protected.

1. CONSTITUTIONALLAWOFINDIA CASE ANALYSIS
State of Bombay
v.
Kathi Kalu Oghad & Ors.
AIR 1961 SC 1808
PRESENTED BY:
ANADI TEWARI
3rd SEMESTER, LL.B. (HONS.), A-22
FACULTY OF LAW, UNIVERSITY OF LUCKNOW.

2. JUDGES CONCERNED WITH THE CASECONSTITUTIONALLAWOFINDIA
JUDGES IN MAJORITY:
The case comprised
of '11' judges bench.
Bench constitued to
be '11' so as to be
able tp expound the
position of law as
laid down in case of
MP Sharma v. Satish
Chandra with more
particularity.
STRUCTURE
BP Sinha (CJI), JR Mudholkar, KN Wanchoo, K Subba Rao,
N Rajagopala Ayyangar, PB Gajendragadkar, S Jaffer,
Raghubar Dayal.
JUDGES IN MINORITY:
KC Das Gupta, AK Sarkar, SK Das.

3. FACTS OF THE CASE
This case was a culmination of '3' appeals being heard together, insofar as
they involve subtantial question of law as to the interpretation of
Constitution, with particular reference to clause (3) of Article 20.
First Case
• Evidence adduced in handwriting
sample.
• PO obtained 3 specimen
handwriting samples.
• Accused says, he was forced by
DSP to give those writings and
not been accepted by the Trial
Judge or High Court.
• Question of admissibility was
raised in HC pursuant to
protection under Article 20(3).
Second Case
• Burgled shop and 4 guns were
stolen.
• Accused told PO information, and
in consequence of information
Police found the gun and wanted to
adduced the evidence under Sec 27
of Evidence Act.
• Constitutionality of both Sec 27 of
the Evidence Act and the taking of
fingerprints by the police has been
challenged.
Third Case
• Relating to trafficking in
contraband opium involved search
of accused residence.
• Railway receipts were found and
doubt was that handwriting is of
accused.
• As of now, HC disregarded such
evidence as being in contravention
to protection under Article 20(3).
• State of WB has appealed.
CONSTITUTIONALLAWOFINDIA

4. THE PILLARS OF ARTICLE 20(3)
• SAUNDERS v. UNITED KINGDOM
The Right lies for the protection of the accused by the improper
compulsion of the authorities, thereby contributing to the
miscarriages of justice.
• ETHIC
SAddresses the need to protect the accused from :
• brutalization
• torture by, investigation agencies.
20(3) safeguard against methods could be used to elicit
information.
• RELIABILIT
YAbsence of privilege against self-incrimination would result in
incentivize those in charge of enforcement of the law.
Privilege serves the goal of reliability.
• THE 5TH AMENDMENT OF US CONSTITUTION

5. ISSUES FOR DELIBERATION BEFORE THE COURT
• Whether methods of gathering evidence such as taking fingerprint samples, handwriting
samples, DNA collection are valid methods ?
• To solve the above question it is important to analyze the term "witness" in Article 20(3)
and find out the ambit of its inclusion.
• Whether being in police custody ipso facto means that the witness had been compelled or
not ?

6. CONSTITUTIONALLAWOFINDIA
CONTENTIONS (CULMINATION OF 3 CASES)
THE ARGUMENTS BEING RAISED ARE IN 3 DIFFERENT LINES, LIKEWISE:
• LEFT EXTREME: This restrict the applicability of the protection, conferred by Article 20(3) only to
statements being made by the witnesses in the courts and excluded the protection from extending
to the investigation stage. ‘Compelled to be a witness’ meant ‘Compelled to give oral testimony’ .
• RIGHT EXTREME: Includes the protection being proffered at all stages and includes any non-
voluntary positive act on the part of the accused. If an accused person makes any statement or any
discovery, there is not only a rebuttable presumption that he had been compelled to do so, but that
it should be taken as a conclusive proof of that inferential fact.
• INTERMEDIATE (ACCEPTED ONE): The adopted one which is of the Union wherein they analyse the
elements of the protection under Article 20(3) and put forth the argument that the compulsion
envisaged in Article 20(3) is equivalent to ‘third degree’ methods to extort confessional statements.

7. ANALYSIS BY THE COURT AND TOOLS OF INTERPRETATION
EMPLOYED
• The Judges in the presented case were unanmious in the conclusion that was
finally drawn.
• However, they differed in their reasoning used to reach the same conclusion.
NOTE: Due to different Legal Reasoning provided by the judges to reach the
same conclusion. I have provided the analysis of the Court in this case both by
MAJORITY and MINORITY.

8. CONSTITUTIONAL LAW OF INDIA
MAJORITY CONCLUSION
• "to be a witness" includes within it not merely oral evidence but also
production of documents, making intelligible gestures etc as to "be a
witness" is nothing more than to furnish evidence.
• "To be a witness" not includes giving of thumb/palm/foot/fingers
impression or specimen writing by an accused.
• Backdrop belief in Constitution drafters?
• Balance between literal interpretation of expressions in 20(3) and the
law enforcement mechanism.
STRENGTHENING 'LAW ENFORCEMENT AGENCIES'
"mere questioning" is not to be categorized as compulsion and
do not violate protection under 20(3).
GOLDEN RULE OF INTERPRETATION
Majority did not rely upon the mere meaning via literal interpretation of
the words "furnishing evidence"

9. • Minority judges aimed to answer was whether compelling an accused to
produce documents , amount to "being a witness against himself" in
such a way that it is inscriminatory in nature.
• Word "To be a witness" was considered with a very broad view.
• Judges opined that "while on the one hand we should bear in mind that
the Constitution makers could not have intended to stifle legitimate
modes of investigation we have to remember further that quite clearly
they thought that certain things should not be allowed to be done, during
the investigation/trial however helpful they might seem to be to the
unfolding of truth and an unnecessary apprehension of disaster to the
police system and the administration of justice, should not deter us from
giving the words their proper meaning."
• Limiting scope of "to be a witness" would result in compulsion being
used.
CONSTITUTIONALLAWOFINDIA
MINORITY CONCLUSION
LITERAL RULE OF INTERPRETATION: Furnishing evidence via fingerprint
is not equal to 'incriminating oneself'.

10. RULE OF INTERPRETATION BY THE JUDGES
MAJORITY
The rules of interpretation used by the majority tended to be a move away from the literal rule. Majority did
not relied upon mere meaning derived but has constructed the same to mean only those pieces of evidence,
which were presented in court & everything else, all other forms of expressions were held outside the ambit
of any protection, which was to be offered by 20(3), purportedly applying the 'Golden rule of Interpretation'.
MINORITY
Minority used the literal rule of interpretation for the meaning of 'furnishing of evidence' & therefore included
all forms of expression made within court room or outside. Everything was included in the ambit. They have
only gone ahead & restricted the ambit of protection as same may not be considered self-incriminatory and
hence cannot be gamered protection.
CONSTITUTIONAL LAW OF INDIA

11. CONSTITUTIONALLAWOFINDIA
AFTERMATH OF OGHAD: REDEFINING THE
SCOPE OF EVIDENCE PROTECTED
OGHAD BALANCING THE FRAME:
• Oghad's interpretation of Article 20(3) by redefining what constituted 'being
a witness against himself' taking M.P. Sharma as precedent.
• M.P. Sharma judgment failed to settle the scope of 20(3) and the propositions
laid down in this case were considered to be too widely stated. Oghad made
an attempt to re-interpret the same with more clarity.
• Oghad examining compatibility between 20(3), Sec 73 of Evidence Act and Sec
5 & 6 of the Identification of Prisoner's Act as the case law prevalent since MP
Sharma was seen to nullify the other statutes.
AFTER OGHAD:
Self-Incrimination was declared as the conveying of information that was
based upon the personal knowledge of a person giving that information. It
was ruled that 'personal testimony' was to depend upon volition.
By limiting the scope of evidence qualifying the definition of 'to be a witness',
Oghad brought much clarity on interpretation of Article 20(3).

12. MAJORITY:
The Analyst personally do not agree with the majority decision in this case. The majority has based its decision on
certain inherently faulty assumptions:
• Firstly, constitutional guarantee like FR (20(3)) is to be bound by the scope of traditional English common law.
• Secondly, and now this FR (20(3)) needs to be interpreted in the light of colonial era legislations such as Evidence
act & Identification of Prisoners Act and not the other way around.
The basic issue Analyst felt was that Court never analyzed the possibility of reading these repressive acts in light of
Constitution and hence according to him represent a purely crime control model without regard to social order.
• Torture as a mechanism was still open.
MINORITY:
• As per Analyst opinion, Minority even though reaching the same conclusion has used a better reasoning as it uses
the literal interpretation to interpret "furnishing evidence" & includes all forms of expression within its ambit.
• Minority also uses the text of the protection to exclude the use of fingerprints from the ambit of the protection and
has provided a legal basis for doing so.
CRITICAL ANALYSIS & CONCLUSION
Furthermore, Analyst believes, to give teeth to law enforcement agencies, the judges chose to narrowly interpret what
"furnishing of evidence" meant.

13. HEREIN, THE ANALYST SUBMITS!