Judgment The accused in C.C.No.471 of 1986 on the file of the Judicial II Class Magistrate, Sirkali, is the petitioner. This is a petition under Sec. 482, Criminal Procedure Code praying to call for the records in Crl.M.P.No.6774 of 1987 in C.C. No. 471 of 1986 on the file of the Judicial II Class Magistrate, Sirkali and quash the same. 2. The respondent herein has given a private Complaint against the petitioner for the offence under Sec. 417, Indian Penal Code, alleging that the petitioner has promised to marry her and on such representation she cohabitated with him and she got a female child born on 14th November, 1985 and regarding which she had given the Complaint. Before the Judicial II Class Magistrate, Sirkali, the respondent herein filed the petition Crl.M.P.No.6774 of 1987 praying for orders to test the blood group of the respondent as well as the petitioner herein and also the female child. The learned Judicial II Class Magistrate has ordered the said petition on 30.9.1987. Against the said order the present petition has been filed stating that the petitioner has nothing to do so with the respondent and he is innocent and he cannot be Compelled to undergo the blood test and the order passed by the trial Court is against Art. 20(3) of the Constitution of India, and as an accused he cannot be Compelled to undergo blood test and the order passed by the learned Magistrate is illegal and invalid. Hence he has prayed for quashing of the order passed by the learned Magistrate. 3. The point that arises for consideration in this petition is as to whether the order passed by the learned Judicial II Class Magistrate, Sirkali, directing the petitioner to submit to medical examination amounts to testimonial Compulsion as contemplated under Art. 20(3) of the Constitution of India and therefore the order is liable to be set aside. 4. There is no dispute with regard to the fact that the petitioner is the accused and he is facing trial in the case for the alleged offence under Sec. 417, I.P.C. 5. 4. There is no dispute with regard to the fact that the petitioner is the accused and he is facing trial in the case for the alleged offence under Sec. 417, I.P.C. 5. The respondent Mariyammal has filed the Complaint alleging that the petitioner herein promised to marry her and on that representation she cohabitated with him and she gave birth to a female child on 14th November, 1985 and for the purpose of determination of ihe paternity of the child she filed the petition CrLM.P.No. 6774 of 1987 in that case for directing the accused (the petitioner herein) to submit to blood group examination. It is to be pointed out that in the decision reported in Subbaya Gounder v. Bhoopal Subramaniam, 1957 M.L.J. (Crl.) 822, a case arising under Sec. 488, Crl.P.C. (V of 1898) relating to maintenance, the learned Judge pointed out that the maintenance proceedings under Sec. 488, Crl. P.C. are not criminal proceedings. A Compulsory direction by the Magistrate to a defendant In a quasi-civil matter as under Sec. 488, Cr.P.C. to give his blood for blood test being made cannot be Supported as it will offend Art. 20(3) of the Constitution. In quasi-civil matters where private parties, are arrayed against each other, the claim must succeed or fail in the measure in which the burden of proof, as set out in Part III, Chapter VII, S. 101 and following the Indian Evidence Act, is discharged. The learned Judge further points out that it would have been different if 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 the Court and by the Magistrate or Judge after the matter comes to the Court for purpose of Comparison, elimination and determination which alleged blood-stains for instance of the accused clothes, etc., found at the scene and said to contain his blood-stains. 6. The decision was rendered in a revision filed by the husband against the order passed by the Magistrate directing him to give his blood for being sent to the Chemical Examiner for blood grouping test to decide paternity. The learned Judge allowed the revision and the order passed by the Magistrate was set aside. 6. The decision was rendered in a revision filed by the husband against the order passed by the Magistrate directing him to give his blood for being sent to the Chemical Examiner for blood grouping test to decide paternity. The learned Judge allowed the revision and the order passed by the Magistrate was set aside. In the decision in Ulaganambi v. Loganayaki, 1986 L.W. (Crl.) 122, rendered by Sengottuvelan, J., which also related to maintenance proceedings under Sec. 125, Crl.P.C. (Crl.P.C. 1973) the learned Judge has taken the view that the proceedings under Sec. 125, Crl. P.C, is not of a civil nature, and with regard to the applicability of Art. 20(3) of the Constitution to all criminal proceedings the learned Judge held that the contention that the proceedings under Sec.125, Crl. P.C., are in the nature of civil proceedings to which Art. 20(3) is not applicable will have to be negatived for the following reasons: 1 The proceedings under Sec. 125, Crl. P.C., are governed by the provisions of the Crl.P.C. 2. Art. 20(3) of the Constitution is applicable to all proceedings conducted in accordance with the provisions of the Crl. P.C. In that case the husband accused the wife of adulterous way of life claimed and alleged that due to her waywardly life she got sexually transmitted disease which is otherwise known as vencreal disease and in such circumstances filed the petition seeking for a direction from the Court to make her submit to medical examination. It appears that the wife had filed counter in which she stated that she had no objection to submit herself to a medical examination, but subsequently she filed another petition stating that she came to know that it is not necessary to submit herself to a medical, examination and there is no provision in law for such examination and further such a course will give rise to a bad precedent affecting innumerable deserted women and hence she wanted to withdraw her statement in the counter about her willingness to submit herself to medical examination. The learned Judge pointing out that the husband cannot file such a petition seeking a direction for the wife to be medically examined in a petition under Sec. 482, Crl.P.C, for the first time in the High Court without filing any such petition in the trial Court has also held that the proceedings under Sec. 125, Crl.P.C, are governed by the provisions of the Code of Criminal Procedure and Art. 20(3) of the Constitution of India is not applicable to the proceedings conducted in accordance with the provisions of the Crimmal Procedure Code. The learned Judge after referring to the decision rendered by the Supreme Court in Popular Bank (in liquidation) v. Madhava Naick, 1965 K.L.T. 489: (1965) 1 Comp. L.J. 181: (1965) 1 S.C.J. 435: A.I.R. 1965 S.C. 654, and the decision of the Calcutta High Court in Pearelal v. State, A.I.R. 1961 Cal. 531, has extracted what has been observed by the Supreme Court in State of Bombay v. Kathikalu, A.I.R 1961 S.C 1808, wherein the Supreme Court held that mere production of documents or giving information by the accused is not ‘to be witness’ and giving thumb impression, etc., is not to be a witness’ and for the application of Art. 20(3) of the Constitution a person must have stood in the character of accused at the time of the statement. Taking into consideration the views expressed by the Supreme Court on the above question the learned Judge held that referring the respondent to medical examination will not amount to violation of Art. 20(3) of the Constitution of India. 7. In the decision reported in Ananthakumar Naick v. State of A.P, (1977) 2 An.W.R 437, rendered by a learned single Judge of the Andhra Pradesh High Court, it has been pointed out that under Code of Criminal Procedure, 1973 (Act 2 of 1974), Secs. 53 and 54 have been introduced regarding the examination of accused by medical practitioner and the learned Judge has taken into consideration whether any such examination under Sec. 53 testing the blood, sputum, semen, urine, etc., could be included and whether such direction will be hit by Art. 20(3) of the Constitution of India. The learned Judge after taking into consideration the judgments rendered in M.P. Sharma v. Satishchandra, (1954) 1 M.L.J. 580: 55 Crl.L.J. 965: 1954 S.CJ. The learned Judge after taking into consideration the judgments rendered in M.P. Sharma v. Satishchandra, (1954) 1 M.L.J. 580: 55 Crl.L.J. 965: 1954 S.CJ. 428: A.I.R. 1954 S.C. 300: 1954 S.C.R. 1077 and State of Bombay v. Kathikalu, A.I.R. 1961 S.C. 1808 and also the judgment of the Gujarat High Court reported in Naibhai v. State of Gujarat, 1972 Crl. L.J. 1605 and after discussing elaborately has concluded that examination of a person by medical practitioner must be logically take in examination by testing his blood, sputum, semen, urine, etc, and the examination of blood and semen is not outside the scope of Sec. 53 and if the accused is directed to undergo blood and seminal test for the purpose of investigation it would not amount to testimonial Compulsion coming within the prohibition laid down in Art 20(3) of the Constitution. The decision was rendered in a petition filed by one of the accused charged with an offence of abduction and rape, and the prosecution has alleged that the accused abducted the woman and took her into the house of one of Use accused and in that house A5, the petitioner, was alleged to have raped her. The victim’s skirt was bloodstained and there was semen on the bedsheet. The prosecution filed a petition for a direction that A1 and A5 should be produced before the Director of Forensic Medical Laboratory for taking samples of blood and semen. The petition was allowed. The learned Judge referring to the observation of the Supreme Court in M.P. Sharma v. Satishchandra, (1954) 1 M.L.J. 680: 55 Crl. L.J. 965: 1954 S.C.J. 428: A.I.R. 1954 S.C. 300: 1954 S.C.R. 1077, observed that Sec. 139 of the Evidence Act has no bearing on the connotation of the word ‘witness’ is not entirely well founded in law. The majority opinion of the Supreme Court further held that giving thumb impression or impressions of foot or palm or fingers or specimen writing or showing parts of the body by way of identification are not included in the expression ‘to be a witness’. The Supreme Court further held ‘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 Supreme Court further held ‘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. According to the learned single Judge of the Andhra Pradesh High Court, this majority view of the Supreme Court the bar against testimonial Compulsion is against imparting knowledge in respect of relevant facts by an oral statement or a statement in writing made or given in Court or otherwise. Giving specimen signature or handwriting or thumb impressions of fingers or palm or foot or showing parts of the body by way of identification are not included in the expression ‘to be a witness’. Then the learned Judge of the Andhra Pradesh High Court discusses Secs. 53 and 54, Crl.P.C., and held that a Magistrate could order an accused person to undergo the medical examination under Sec. 53 since it may form part of investigation. The learned Judge refers to the two other judgments of the Andhra Pradesh High Court reported in Rami Reddi v. State of Andhra Pradesh, (1971) 2 A.P.L.J. 174 and Narayanasami v. Gangeltare, (1974) 2 A.P.L.J. 178, and in those cases it has been held that taking the signature of an arrested person for Comparison and taking the thumb impression of an attested person were not precluded by Art. 20(3) of the Constitution of India. 8. In the decision reported in M.P. Sharma and others v. Satishchandra, A.I.R 1954 S.C. 300: 1954 S.C.R. 1077, the learned Judge of the Supreme Court have elaborately discussed the point of testimonial Compulsion within the meaning of Art. 20(3) of the Constitution with reference to the provision for the search warrant under Sec. 96(1), Crl. P.C. (Act V of 1898). It has been pointed out by the learned Judge with regard to search and seizure of a document under Secs. 94 and 96, Crl. P.C. (Act V of 1898), that a power of search and seizure is, in any system of jurisprudence, an overriding power of the State for the protection of social security and that power is necessarily regulated by law. 94 and 96, Crl. P.C. (Act V of 1898), that a power of search and seizure is, in any system of jurisprudence, an overriding power of the State for the protection of social security and that power is necessarily regulated by law. When the Constitution makers have thought fit not to subject such regulation to constitutional limitations by recognizing of the fundamental right to privacy, analogous to the American Fourth Amendment, there is no justification for importing into it, a totally different fundamental right by some process of strained construction. 9. In the decision reported in The State of Bombay v. Kathikalu Ogad, (1962) 3 S.C.R. 10 : A.I.R. 1961 S.C. 1808, the learned Judges of the Supreme Court (Constitution Bench) held that Sec. 73 of the Indian Evidence Act empowers the Court to obtain specimen writing or signature and finger impressions of an accused person for purposes of Comparison. Secs. 5 and 6 of the Identification of Prisoners Act empower a Magistrate to obtain the Photograph or measurements of an accused person. Sec. 27 of the Indian Evidence Act permits the reception in evidence of statements made by an accused person in police custody which lead to a discovery. In all these things, according to the Supreme Court, there could be no infringement of Art. 20(3) of the Constitution and it was held that Sec. 27 of the Indian Evidence Act did not offend Art. 20(3) of the Constitution. The learned Judges of the Supreme Court have taken note of the earlier decision rendered by the Supreme Court in M.P. Sharma v. Satischandra, A.I.R 1954 S.C. 300: 1954 S.C.R. 1077. In M.P. Sharma v. Satischandra, A.I.R. 1954 S.C. 300: 1954 S.C.R. 1077, it has been pointed out that even according to the minority view that when an accused person gives his specimen handwriting or signature, or impression of his thumb, fingers, palm or foot, but in doing so the accused does not furnish evidence against himself as by themselves those specimen or impressions do not incriminate or even tend to incriminate the accused and he cannot be said to be Compelled to be a witness against himself when he is Compelled to give the specimen or impressions. In that case, the Supreme Court has considered number of criminal appeals which related to specimen handwriting of the accused being taken during investigation obtaining finger prints of accused person under Sec 5 of the Identification Prisoners Act and obtaining specimen handwriting under Sec. 73 of the Evidence Act, and similar points. All the appeals were taken together since they involved the interpretation of the Constitution with reference to Art. 20(3). The decision was rendered by a larger Bench of the Supreme Court consisting of 11 Judges and they had, examined some of the propositions of Law laid down by the Supreme Court in M.P. Sharma v. Satishchandra, A.I.R. 1954 S.C. 300: 1954 S.C.R. 1077. The larger Bench of the Supreme Court have pointed out that the observations made in M.P. Sharma v. Satishchandra, A.I.R. 1954 S.C. 300: 1954 S.C.R. 1077, that Sec. 139 of the Evidence Act has no bearing on the connotation of the word ‘witness’ is not entirely well-founded in law. It has been further stated by the larger Bench of the Supreme Court at page 31 that it is well-established that Cl.(3) of Art. 20 is directed against a self-discrimination by an accused person. Self-discrimination 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. When an accused person is called upon by the Court or any other authority holding an investigation to give his finger impression or signature or a specimen of his handwriting, he is not giving any testimony of the nature of ‘personal testimony’. Giving of finger impressions or of specimen writing or of signatures by an accused person, though it may amount to furnishing evidence in the larger sense, is not included within the expression ‘to be a witness’. The learned Judges after due consideration had given their conclusions with regard to the meaning of the term ‘to be a witness’ and have also stated that giving thumb impression or impression of foot or palm or fingers or specimen writings or showing parts of the body by way of identification are not included in the expression ‘to be a witness’. 10. 10. Having regard to the judgments of the Supreme Court, it could be stated that the order passed by the learned Magistrate directing the petitioner-accused to undergo the examination of blood may not amount to testimonial Compulsion and therefore the contention put forward by the petitioner cannot be accepted. 11. But before concluding it has to be pointed out that whatever be the result of the blood examination, that may not be quite conclusive, and in case the blood characteristics of the petitioner accused do not agree with the blood characteristics of the child he may be Completely eliminated from being the putative father of the child and if the blood characteristics agree, (sic.) of that cannot conclusively establish that he is the putative father, it all depends upon the other evidence that may be let in by the parties and other facts and circumstances of the case. It is also to be pointed out that in directing such examination of blood it has to be made in a place where there is proper equipment and trained persons and the question of costs also has to be taken into consideration. All these factors are to be taken into consideration by the learned trial Magistrate. With these observations this petition is dismissed.