Subayya Gounder vs Bhoopala Subramanian

Ramaswami, J.—This is a Criminal Revision filed against the order made by the learned Additional First Class Magistrate, Coimbatore in

M.C. No. 5 of 1957.

Minor Bhoopala Subramanian by his mother Mutharnmal filed a petition for maintenance u/s 488 Cr. P. C. The respondent Subbayya Gounder

was containing that he is not the father of the petitioner. In these circumstances the mother of the petitioner prayed for an order that the respondent

be directed to give his blood for being sent to the Chemical Examiner of Madras along with that of the petitioner for blood grouping test to decide

the paternity of the petitioner. The learned Magistrate passed an order that no objection was advanced by the other side and that hence the petition

was allowed.

The contention of Subbayya Gounder is that on the date when this order was made his lawyer was unavoidably absent from Court and that

therefore the order that there was no objection and hence the petition was allowed is incorrect. In addition it is contended that the learned

Magistrate ought to have upheld the contentions of this Subbayya Gounder that there is no provision under the Code of Criminal Procedure or

under the Indian Evidence Act which would permit the court to direct that the blood of this Suhbayya Gounder be taken for blood grouping.

The points for exposition in this Revision are five in number viz., (a) technique of blood test; (b) the value of blood test; (c) the law on this

subject in various countries; (d) how far such order could in criminal cases be held to be testimonial compulsion offending Article 20(3) of the

Constitution and (e) how far this compulsory blood test can be extended to proceedings u/s 488 Cr. P. C.

Point (a): The principle on which blood grouping is done is as follows: Human blood contains two distinct sets of characters; one set are called

A and O, the other M and N. The possible combinations of these make definite number of blood groups. The blood group of a person is

determined by the characters which it contains. It must contain at least one character of each set, and the characters are inherited according to

fixed rules. A child cannot have 3 character which he does not inherit from one or other of his parents.

The technic of this blood grouping which has been developing with the passage of years and a vast literature on this subject has now sprung up and

the gist of which can be studied in the authoritative treatises on Medical Jurisprudence and cannot be further dealt with here: See Glaister''s

Medical Jurisprudence and Toxicology, Ninth Edition (1953) page 342 and Following; Taylor''s Principles and Practice of Medical Jurisprudence,

Tenth Edition, page 417. Vol. I, for details of the test, and for references to Rhesus factor, see pages 419 and 423 of Vol. I., and the Addendum

to volume II; Gonzales, Vance. Helporn and Umberger on Legal Medicine, Pathology and Toxicology, Second Edition (U.S.A.) Chapter 27,

under the heading ""The Human Blood Groups"" at page 631 and following; Modi''s Medical Jurisprudence and Toxicology, 12th Edition, at page

300 and following; and Lyon''s Medical Jurisprudence for India by Greval, Tenth Edition, page 324 and following.

Point (b) : The value of the test is however limited. Glaister (Ibid) has the following to say:

Blood grouping may be of considerable value forensically in helping to establish the guilt or innocence of accused persons or in disproving

parenthood in certain cases of disputed paternity. The blood of all persons falls within one of four main groups classified as Group O, Group A,

Group B, and Group AB. It must be admitted that, from the medico-legal point of view, the grouping test has many limitations at the present time,

but the advances which are being made both rapidly and progressively by many research workers are steadily rendering it more valuable. One of

the most important of these limitations lies in the fact that approximately 89 per cent of all bloods belong to groups O and A, while only about 11

per cent belong to Groups B and AB. The variation of ""blood group"" with race shows 3 characteristic fall in the frequencies of groups O and A,

and a rise in group B, as progressive observations were taken south and cast across Europe. In view of the large percentage of bloods which

belong to the first and second groups. O and A, the tendency of the test may more frequently suggest innocence than guilt, since the blood

composing a stain found on a suspect''s clothing and the blood of the murderer may belong to the same group. The true value of the test becomes

apparent when the blood-stains on the clothing of the accused belong to the same group as the blood of the victim, but to a different group from

that of the blood of the accused, since the possible defence might be that the stains upon the clothing of the accused person were caused by his or

her own blood. The blood-grouping reaction, therefore, may narrow down the individuals from whom a given bloodstain may have been derived.

Its use for the determination of paternity is of value on account of the Mendelian inheritance of the individuality of the blood by the offspring of a

given mating. Although the true father can never be definitely identified by the test, it can frequently be asserted that a certain man could not be the

father of the child in question. A man who fails in repeated blood-grouping tests can definitely, and without doubt, be eliminated as the father. The

test is also of importance when a child is claimed by two sets of parents."" Gonzales etc. (Ibid) states at page 661 :

The tests, however, have their limitation; they may exclude a certain individual as the possible father of a child but they cannot possibly establish

paternity. They can only indicate its possibilities. Another man with the same group as the father could be responsible for the child in question.

Lyon''s (Ibid) had the following to say (p. 335):

The negative finding is definite while positive finding indicates a possibility only. It can be stated definitely that Master Tom is not the son of Mr.

Smith. It cannot be stated equally definitely that he is the son of Mr. Brown. That be can be the son of Mr. Brown is all that can be stated on the

positive side. The same remarks apply to Mrs. Smith and Mrs. Brown regarding motherhood."" Modi (Ibid) at page 103 states:

....... it cannot be said by the determination of blood groups of the parties concerned that a particular man is the father of a given child, but it may

be possible to affirm by a process of exclusion that he cannot be the father of the child. The importance of this means of establishing non-paternity

is obvious and has its application in suits of maintenance of illegitimate children and in suits of nullity, alleged adultery and black-mailing ......

Wigmore on Evidence (Third Edition) in Vol. I Section 165a (p. 610 and following) sums up blood-groups as evidencing paternity, as follows:

In one specific biological trait, viz blood- groups, scientific opinion is now in accord in accepting the fact that there is a causative relation between

the trait of the progenitor and the trait of the progeny. In other words, the blood-composition of a child may be some evidence as to the child''s

paternity. But thus far this trait (in the present state of scientific discovery as generally accepted) can be used only negatively, i.e., to evidence that a

particular man is not the father of a particular child C. The biological data that permit this inference are complex........

At this point it will suffice to illustrate the logic on which it is based by using the following analogy from ordinary commercial affairs;

''A customer of Belleville Bank comes to the bank president on Tuesday, with a $ 10 bill, handed to him on the Monday before by one of the

tellers; this bill has turned out to be a counterfeit. The president would like to know which one of the tellers gave this bill to the customer; but the

customer does not remember which teller he dealt with. The banker, referring to the records, finds that on Monday each teller was supposed to

receive for distribution packages of bills of $1, $5, $10, $ 20, and $ 50 denominations: but the records show that on this Monday Tellers Nos. 1,

2, 3 and 4, did receive the usual packages, but by inadvertence Teller No. 5 was given no $ 10 package, (a) It follows that Teller No. 5 is

exonerated from having been the one to pass out the counterfeit $ 10 bill, (b) It does not follow that the passing of that bill can be fixed upon either

Teller No. 1, or No. 2, or No. 3, or No. 4; it might have been any one of them, but no particular one can be fixed upon by that evidence, (c)

Supposing the bill is not returned until just three weeks later, and then the customer cannot recall the precise date of his former visit, and the banker

looks at the records and finds that on that Monday only was there this deviation from the routine supply of bills to the tellers, he will say to the

customer. There is only 1 chance in 20 of eliminating Teller No. 5, and unless you can determine from your own books that the day was Monday

three weeks ago, it is useless to expect any decisive proofs on that point''.

This example represents roughly the logic employed in the blood grouping tests; thus (a) In a special case it may be possible by the test to disprove

the alleged paternity of a particular person (b) In no case will it be possible to prove by the test the paternity of a particular person, ""(c) Whether

the special case of (a) will be available for such disproof depends on the probabilities of that case occurring; the chances of its occurring vary from

1 in 2 and 1 in 17.

The progress of science will no doubt make it possible from time to time to increase the range of the cases that afford decisive proof, both

negative and affirmative. Already, by judicial decision or by statute, the law has accepted the use of blood-group composition to evidence paternity

negatively. -- of course, only when testified to by a qualified expert"".

Point (c): The law on this subject in various countries can be studied from the valuable monograph published by Schatkin on ""Disputed Paternity

Proceedings"", Third Edition, Second Reprint 1956 (U.S''.A.) (Mathew Bender and Co., 443, Fourth Avenue, New York N.Y.) in Chapter VII

(p. 193 and following): In the United States of America, New York was the first State to authorise blood-test in disputed paternity cases (Laws of

1935, Chapters 196, 197, 198, in effect March 22, 1935; as amended by Laws of 1930 Ch. 439, Section 1, in effect May 4, 1936). Nine other

States have followed suit. All ten statutes are substantially the same. It runs as follows:

Whenever it shall be relevant to the prosecution or the defence in an illegitimacy action, the trial Court, by order, may direct that the complainant,

her child and the defendant submit to one or more blood tests to determine whether or not the defendant can be excluded as being the father of the

child. The result of the test shall be receivable in evidence ""but only in cases where definite exclusion is established. The test shall be made by a

duly qualified person, or persons, not to exceed three, to be appointed by the Court and to be paid by the Country. Such experts shall be subject

to cross-examination by both parties after the Court has caused them to disclose their findings to the Court or to the court and jury. Whenever the

court orders such blood tests to be taken and one of the parties shall refuse to submit to such test, such fact shall be disclosed upon the trial unless

good cause is shown to the contrary.

Brief as it is, the above statute covers the following important points:

(a) The result is admissible in evidence only when an exclusion is established.

(b) the expense of the test is made a country charge.

(c) The refusal of the mother (or defendant) to submit to the test may be drawn to the court''s attention.

(d) The test may be performed, not only by a physician, but also by any qualified pathologist.

In Denmark, since 1937 the test has been compulsory by Statute in affiliation cases, and it is today ordered as a routine matter in such cases. In

Germany prior to the Nazi regime, an average of 10 per cent of the children born each year were illegitimate, and, tinder the aegis of National

socialism this proportion no doubt increased. All children born out of wedlock are by operation of law automatically placed under State

Guardianship. Under German law the defendant in an affiliation suit is presumed to be the father of the child, if it is established that he cohabited

with the mother during the statutory period of conception. This statutory period of conception lies between the 181st and the 302nd day (both

inclusive) preceding the birth of the child. There are only two defences available to the accused: (1) that conception by him was ""obviously

impossible under the circumstances"" (for example, if he can show that he was sterile); and (2) he may raise the legal defence of exccptio plurium

that another man also cohabited with the mother during the legally critical period. In effect, therefore, the unwed mother in Germany is permitted to

name two men successively as the father. If the defence is exceptio plurium, and the blood test excludes the other man, the defendant originally

named will be adjudged the father. If the blood test excludes the defendant, suit may be brought against the other man. The Courts of Soviet

Russia have allowed blood tests since 1927, and today the positive result of the test there regarded as absolutely conclusive proof of non-

paternity. Incidentally, there is no longer any legal distinction drawn between legitimate and illegitimate children in Soviet Russia.

In Sweden blood tests are compulsory and ordered as a routine matter in all affiliation cases.

As early as 1926, the Supreme Court of Austria accepted an exclusion as decisive of the issue of paternity, and acquitted the defendant.

In Canada in Morris v. Gantous, (1941) 47 B. de Jur. 150 the Quebec Court held in an opinion written in French, that it lacked the power to

order the drawing of a blood specimen for the purpose of carrying out a blood test. (The Canadian Bar Review, May, 1948, page 538).

In England as pointed out in (1938) 185 L.T. 409 (A) in other countries the courts have power to order the tests to be done, but in this country

they have not. English Magistrates cannot take into account in any way an applicant''s refusal to undergo a test"". The test can only be done by

consent. On July 6, 1938, Lord Merthyr introduced his Bastardy (Blood Test) Bill in the British House of Lords, which, by its terms, was to have

taken effect on January 1, 1940. The Select Committee of that House reported favourably on the bill as follows:

The Committee are unanimously of the opinion that the qualities of blood underlying blood grouping and the laws of inheritance governing the

transmission of these qualities from parents to children are accepted by such a consensus of scientific opinion throughout the world as to render it

desirable in the interests of justice for this knowledge to be applicable to affiliation cases"".

Due to the War all private Member''s Bills were suspended and this Bill was not enacted into law; Wherever courts in England have ordered blood

tests it is only by consent.

In India there is no special statute and there is no provision either in the Criminal Procedure Code or in the Indian Evidence Act empowering

Courts to direct such a test to be made. Similarly, as pointed out by Raghava Rao, J. in Polavarapu Venkataswarlu Vs. Polavarapu Subbayya,

there is no procedure either in the CPC or the Evidence Act which provides for a blood test being made of a minor and his mother when the father

is disputing the legitimacy of the minor and held that if the parties are unwilling to submit to such a test the Court has no power to direct them to

submit themselves to such a test.

Points (d) and (e): Article 20(3) of the Constitution enacts that no person accused of any offence shall be compelled to be a witness against

himself. This Article does not enact any new principle which we had not already inherited from the English system of Criminal justice. It is a

fundamental principle of the English system of criminal Justice (which differs from the inquisitorial procedure obtaining in France and some other

Continental countries) that it is for the prosecution to prove the guilt and the accused need not make any statement against his will. The principle of

immunity from self-incriminating evidence is based on the maxim, nemo tenelur prodere accusare scipsum (no man is bound to accuse himself) and

thus founded on the presumption of innocence which characterises the English system of criminal trial. The principle is now embodied in Statute--

the Indian Criminal Procedure Code 1898, which says that though the accused is competent to be a witness on his own behalf, he cannot be

compelled to give evidence against himself. The Fifth Amendment to the Constitution of U.S.A. adopts the above principle by laying down ""No

person shall be compelled in any criminal case to be a witness against himself"": Hale v. Henkel, (1906) 50 Law Ed. 652. So, an accused is

permitted to give evidence on his own behalf if fie so elects. But if he elects not to give evidence that fact cannot be used to his prejudice. Nor can

a man be convicted on testimony obtained by compulsory discovery. Boyd v. United States (1886) 29 Law Ed. 746: Belts v. Brady, (1941) 316

U.S. 455. In the U.S.A., judicial interpretation has enlarged the scone of privileges. Thus, (i) the privilege has been held to include not only oral

evidence but also documentary evi- dence which is self-incriminating : (1886) 116 U.S. 616. But the privilege is confined to private papers and

does not extend to public papers in the custody of the accused: Wilson v. United States, (1893) 149 U. S. 60. (ii) Again, the privilege has been

used to protect a mere witness as fully as it does apply to protect a party defendant: Mcarthy v. Arndtstein (1917) 246 U. S. 34. (iii) Above all,

though the Fifth Amendment refers to a ''Criminal case'', it has been held to include both civil and criminal proceedings wherever the answer might

tend to subject to criminal responsibility him who gives it (Ibid). But the provision against self-incrimination has been held to be subject to the

following limitations: (a) It is open to the accused to waive the privilege. But if he waives the privilege and gives testimony on any point he must give

the whole of it: Brown v. Walker (1896) 161 U.S. 591 (b) Where an accused has been pardoned or otherwise given immunity from prosecution,

he may be compelled to give evidence. But before the accused may be so compelled, he must be given complete immunity (Ibid) (c) The immunity

is merely from giving evidence against the consent of the accused. The prosecution is not debarred from exhibiting the person of the accused to the

jury, com paring his finger-prints, photographs etc: Holt v. United States (1910) 218 U.S. 245. Nor does the immunity prevent production of

testimony that blood was discovered on the body of the accused after the alleged crime (Mcfarland v. United States (1946) 90 Law Ed. 478; or

marks and bruises were found upon accused''s body, on accused''s shirt being taken off his body: Leeper v. Texas (1890) 35 Law Ed. 225. The

permissibility of identification by finger, palm and footprints and the taking of accused''s pictures after arrest, blood and urine tests, use of emetic

stomach pump or similar device for extracting ornaments swallowed etc., requiring suspect or accused to wear or trying on particular, apparel or

requiring defendant in criminal case to exhibit himself or perform physical acts during trial and in presence of Jury are not hit by the immunity

conferred by Article 20(3) and do not offend the due process clause: (See Annotation 64 ALR 1089 and 31 ALR 204; Shaffer v. United States

(1904) 49 Law Ed. 631; Novak v. Dt. of Columbia 49 A. 2d 88; Reguzzard, 84 F. Supp. 294; (1910) 54 Law Ed. 1021; U.S. Mullanev 32 F.

270.

In short, while accused cannot bo compelled to produce any evidence against himself, such evidence can be taken or seized, provided of course

such taking or seizure is legally permissible. This aspect of Article 20(3) has been fully discussed in a Bench decision of this Court (Somasundaram

and Ramaswami Gounder, JJ) in In Re: Palani Goundan, wherein Ramaswami Gounder, J. who delivered the judgment of the Bench has referred

to M.P. Sharma and Others Vs. Satish Chandra, District Magistrate, Delhi and Others, In Re: Palani Moopan, , Sunder Singh Vs. The State, ;

Swarnalingam Chettiar v Asst. Labour Inspector Karaikudi, 1955 2 MLJ 267: AIR 1956 Mad 165; Emperor v. Nga Tun Hlaing AIR 1924 Rang.

115; Sailendra Nath Sinha and Another Vs. The State and Another, . In Elias v. Pasmore (1934) 2 K.B. 154, it has been held that upon arrest of

an accused person the police can search the premises where the prisoner is arrested and seize any material which is relevant for the prosecution of

any crime committed by any person even other than the prisoner himself.

(d) A Corporation being an artificial person, is not entitled to this immunity but it cannot be directed to produce its books causing suspension of its

business, unless there is good reason for the order: Hale v. Henkell (supra). The present Clause (3) of Article 20 follows the language of the Fifth

Amendment of the American Constitution, but the rule laid down in our Constitution is narrower than the American rule as expanded by

interpretation. Thus, it will be seen that three things are necessary to constitute the requirements of this clause viz. (i) an accused person; (ii) his

being compelled to be a witness and (iii) such compulsion being against himself. In other words, the prohibition operated only when an accused is

sought to be forced to depose against his innocence.

To sum up, in the language of Wigmore on Evidence, Third Edition, Volume VIII (Section 2263) at pages 362-363:

Looking back at the history of privilege....."" and the spirit of the struggle by which its establishment came about, the object of the protection seems

plain. It is the employment of legal process to extract from the person''s own lips an admission of his guilt, which will thus take the place of other

evidence. Such was the process of the ecclesiastical court, as opposed through two centuries, -- the inquisiterial method of putting the accused

upon his oath, in order to supply the lack of the required two witnesses. Such was the complaint of Liburn and his fellow-objectors, that he ought

to be convicted by other evidence and not by his own forced confession upon oath.

Such, too, is the inference from the policy of the privilege as a defensible institution ....that is to say, it exists mainly in order to stimulate the

prosecution to a full and fair search for evidence procurable by their own exertions, and to deter them from a lazy and pernicious reliance upon the

accused''s testimony extracted by force of law.

Such, finally, is the practical requirement that follows from the necessity of recognising other unquestioned methods of procuring evidence; for if the

privilege extended beyond these limits, and protected an accused otherwise than in his strictly testimonial status, -- if, in other words, it created

inviolability not only for his physical control of his own vocal utterances, but also for his physical control in whatever form exercised, then it would

be possible for a guilty person to shut himself up in his house, with all the tools and indicia of his crime, and the authority of the law to employ in

evidence anything that might be obtained by forcibly overthrowing his possession and compelling the surrender of the evidential articles, -- a clear

''re-ductio ad absurdum.''

In other words, it is not merely any and every compulsion ""that is the kernel of the privilege, in history and in the constitutional definitions, but

testimonial compulsion. The one idea is as essential as the other.

The general principle, therefore, in regard to the form of the protected disclosure, may be said to be this: The privilege protects a person from any

disclosure sought by legal process against him as a witness"".

Again, at pages 374-375:

If an accused person, were to refuse to be removed from the jail to the court-room for trial, claiming that he was privileged not to expose his

features to the witnesses for identification, it is not difficult to conceive the judicial reception which would be given to such a claim. And yet no less

a claim is the logical consequence of the argument that has been frequently offered and occasionally sanctioned in applying the privilege to proof of

the bodily features of the accused.

The limit of the privilege is a plain one. From the general principle .....it results that an inspection of the bodily features by the tribunal or by

witnesses cannot violate the privilege, because it does not call upon the accused as a witness, i.e., upon his testimonial responsibility. That he may

in such cases be required sometimes to exercise muscular action -- as when he is required to take off his shows or roll up his sleeve -- is

immaterial, --unless all bodily action were synonymous with testimonial utterance; for, as already observed .... not compulsion alone is the

component idea of the privilege, but testimonial compulsion. What is obtained from the accused by such action is not testimony about his body, but

his body, itself ........ .....Unless some attempt is made to secure a communication, written or oral, upon which reliance is to be placed as involving

his consciousness of the facts and the operations of his mind in expressing it, the demand made upon him is not a testimonial one. Moreover, the

main object of the privilege is to force prosecuting officers to go out and search and obtain all the extrinsic available evidence of an offence, without

relying upon the accused''s admissions. Now in the case of the person''s body, its marks and traits, itself is the main evidence; there is ordinarily no

other or better evidence available for the prosecutor. Hence, the main reason for the privilege loses its force.

Both principle and practical Rood sense forbid any larger interpretation of the privilege in this application.

Bearing these principles in mind if we examine the facts of this ease, we find that the compulsory direction by the Magistrate to the defendant to

give his blood for blood test being made cannot be supported. It would have been different f in a criminal case where the defendant is an accused if

blood is seized from him by authority of the person entitled to do so -- by the Police before the matter comes to court and by the Magistrate or

Judge after the matter conies to court for purposes of comparison, elimination and determination with alleged blood-stains for instance of the

accused or domes etc. found at the scene and said to contain his blood-stains. But in a quasi-civil matter as u/s 488 Cr. P.C. it would be quite

different. Sir James Fitz James S''tephen describes this chapter relating to maintenance as a mode of preventing vagrancy or at least of preventing

its consequences. Maintenance proceedings are not criminal proceedings. The object of maintenance proceedings is not to punish the husband or

parent. The Magistrate''s power to make an order is discretionary. On the other hand, the object of criminal procedure is always punishment the

convicted offender is made to undergo evil which is inflicted upon him not for the sake of redress but for the sake of example. The other distinctive

attribute of criminal procedure is that the sanctions, punishments of criminal procedure are remissable by the crown or State (Dr. Kemw''s Outlines

of Criminal Law, Fifteenth Edition, Chapter I ""The Nature of Crime"", Harris Criminal Law, 19th Edition, Chapter I, Ditto). In these quasi civil

matters where private parties are arrayed against each other, the claims must succeed or fail in the measure in which the burden of proof, as set out

in Part III, chapter VII, section 101 and following of the Indian Evidence Act is discharged. The ratio decidendi of Raghava Rao J. s decision

(supra) will therefore apply.

This Revision is allowed, though as acknowledged by Mr. Mohan Kumaramangalam it is but a pyrrhic victory. The only person who stood to

benefit by the blood test was Subbayya Gounder. If his blood characteristics did not agree with the blood characteristics of the petitioner, he will

be completely eliminated as his putative father; if the blood characteristics agreed, Subbayya Gounder will share that privilege with thousands of

other individuals having the same blood characteristics and any one of whom might equally be the putative father of the petitioner. The only

consequence of his refusal will be that it will be taken into consideration along with other circumstances in evaluating the evidence against him.