Kopal Mital here gives us a case note on State of Bombay v. Kathi Kalu Oghad is the landmark case which decided the scope of being a witness against oneself. The author also analysed the doctrine of forgone conclusion and its applicability in the Indian context.
Abstract
State of Bombay v. Kathi Kalu Oghad is the landmark case which decided the scope of being a witness against oneself. Being a witness against oneself‘ was limited to information given from personal knowledge. Provision of physical specimen like fingerprints was squarely excluded from the protection of Article 20(3) by the Supreme Court in Oghad. The right against self-incrimination is the most important right of an accused. Personal electronic devices today are used to store a lot of crucial information. With the advancement of technology, personal electronic devices can now be accessed through fingerprints and facial recognition. This presents new challenges in the context of criminal investigation and gathering of evidence from the device of an accused. This paper analyses whether Oghad holds up in the face of new technological challenges of accessing personal devices through physical attributes. To support its examination, it also looks at the recent case of Virendra Khanna v. State of Karnataka and Another.
This paper argues that both passwords and biometrics (like fingerprints and face recognition) are protected under Article 20(3) of the Indian Constitution. It shows that the requirements for invoking the protection of Article 20(3) are satisfied. It also highlights the dated nature of Oghad and advocates that the issues posed by Oghad can be solved by relying on Selvi v. State of Karnataka. It also draws attention to the minority judgement in Oghad and the purpose of Article 20(3) in a criminal investigation to further strengthen its argument. The paper also discussed the doctrine of forgone conclusion and its applicability in the Indian context.