M.V. Lilly vs Baby @, Vijayalaxmi and Another

S. Padmanabhan, J.—This is a petition filed under Sec. 482 of the Code of Criminal Procedure by the complainant in C. C. 308/83, on the file of the Judicial Magistrate of I Class, Hosdurg. Respondents 1 and 2 are the accused in that case. The offence alleged is one punishable under Sec. 420 of the Indian Penal Code. In order to establish the offence the petitioner wants to prove a receipt produced by her in court alleged to have been executed by the first respondent (1st accused) receiving Rs. 20.000/- from the petitioner, making her believe that N. O. C. will be provided for her. She anticipates that during the trial of the case there is the possibility of the genuineness of the receipt being, denied by the respondents. Therefore she wants to make her case sure. For that purpose, she moved the Magistrate by a petition requesting that the specimen signature and handwritings of the first respondent may be taken in open court for being sent to an expert for comparison along with the receipt produced in court. The petition filed for that purpose was dismissed by the Magistrate. That is how the present petition under Sec. 482 of the Code was filed with prayers for quashing the order and for a direction to the first respondent to give her handwriting and signature in open court for being sent to the expert for comparison along with the receipt produced. Article 20 (3) of the Constitution of India provides that no person accused of any offence shall be compelled to be a witness against himself. The first question is whether a direction to give the specimen handwriting or signature of the accused will amount to testimonial compulsion as envisaged by Art. 20 (3) of the Constitution. In The State of Bombay Vs. Kathi Kalu Oghad and Others, , it was held by the Supreme Court:

It has to be noticed however that Art. 20(3) does not say that an accused person shall not be compelled to be a witness. It says that such a person shall not be compelled to be a witness against himself. The question that arises therefore is. Is an accused person furnishing evidence against himself, when he gives his specimen handwriting, or impressions of his fingers, palm or foot 7. The answer to this must in our opinion be in the negative.

The same question came up for consideration in T. Subbiah Vs. S.K.D. Ramaswamy Nadar, and it was held;

In respect of point No. 2 that directing the petitioner to give his specimen signature and handwriting will amount to testimonial compulsion under Art. 20 (3) of the Constitution of India, the learned counsel was unable to press this point in view of the decision of the Supreme Court in AIR 1961 SC 1808).

That point itself came up for decision in Rami Reddy v. State of Andhra Pradesh (1971 M.L.J. (Crl) 481). The finding was:

Having regard to the above, it must be held that asking the accused to give thumb impression does not amount to testimonial compulsion which is violative of Article 20 (3) of the Constitution of India.

In Gulzar Khan and Others Vs. State, , the same point was considered and decided in this way:

A direction by a Magistrate to accused person to give signatures, specimen writings, thumb impressions, finger prints or foot prints to be used for comparison with some other signatures, handwritings, thumb impressions, finger prints or foot prints, which the police may require in the course of investigation will not amount to compelling the accused persons to be witnesses against themselves and is not hit by Art. 20 (3) of the Constitution.

In the light of the above decisions, it was not a controversy before me that a direction to give specimen handwriting and signature by the court will not amount to testimonial compulsion under Art. 20(3) of the Constitution. What the Constitution prohibits is only compelling an accused person to be a witness against himself and not to be a witness. Simply by giving the specimen signature or handwriting, no question of surrendering himself as a witness against himself will arise.

In Rami Reddy''s case (1971 M.L.J. (Crl) 481), it was further held:

In directing the person who has been arrested and produced in the Court for taking his finger impressions, the Court cannot be said to be exercising a jurisdiction in contravention of section 73 of the Indian Evidence Act. What is, however, contended is while the Court may have jurisdiction to direct even an accused person to give finger impressions when he was present in the Court, that can be done only for the purpose of enabling the Court to compare the disputed finger impression with the finger impression taken in the Court and not for the purpose of enabling the police to make an investigation. While this argument is attractive, to my mind, is devoid of force. Section 73, no doubt, lays down that it is for the purpose of enabling the Court to compare the two finger impression, the disputed and the admitted, but in directing the accused brought before it to give the finger impressions even a; the stage of investigation, it is only for the purpose of ultimately enabling the Court before which the accused may be brought, put for trial to compare the thumb impressions with the admitted thumb impressions and thus do justice. If, after making finger impressions even during the investigation, the police Officers are satisfied that the disputed impressions and the admitted impressions do not tally and do not implicate the accused the accused suffers no prejudice. But, if ultimately, these two impressions are brought before the Court, any opinion expressed by the investigating authorities is not conclusive. It is for the Court to decide whether the two impressions are of one and the same person. The impressions of the accused which were ordered to be taken by the Court earlier would enable it to compare the same with the impressions alleged to be that of the accused.

That view was on the basis that any opinion expressed by the investigating agencies will not be conclusive and it is for the court to decide whether the two impressions are of one and the same person or not. The view appears to be that the opinions do not operate as evidence since the final decision has to be taken by the Court. It is not necessary for me to express any opinion on that point because no such question arises in this case. Here, no investigation is pending. The specific prayer of the petitioner itself is to get the signature and handwritings of the first respondent during the trial of a private complaint for the purpose of being sent to the expert for getting his opinion, which has to be used as evidence in the case against the first respondent In other words what the petitioner wants is to collect evidence from the first respondent to be used against him in the trial.

In The State of Bombay Vs. Kathi Kalu Oghad and Others, , the Supreme Court found:

But the evidence of specimen handwriting or the impressions of the accused person''s fingers, palm or foot, will incriminate him, only if on comparison of these with certain other handwritings or certain other, impressions, identity between the two sets is established. By themselves, these impressions or the handwritings do not incriminate the accused person, or even tend to do so. That is why it must be held that by giving these impressions or specimen handwriting, the accused person does not furnish evidence against himself. So, when an accused person is compelled to give a specimen handwriting or impressions of his finger, palm or foot, it may be said that he has been compelled to be a witness; it cannot however be said that he has been compelled to be a witness against himself.

The, prayer in this case is to get the handwriting and signature for the purpose of expert opinion in order to establish the identity of the writings and signature. The question is whether the first respondent could be compelled or directed to do so. Even the counsel for the petitioner agreed at the time of arguments that only a direction could be given and there cannot be any compulsion, if the respondent refuses. What he wanted was only the advantage of an adverse presumption under Sec. 114 of the Evidence Act consequent on the refusal of the first respondent to give the handwritings or signature. But before coming to the question of presumption itself, what we are concerned with is whether such a direction could be given or not.

The court can form an opinion in respect to the handwriting when such an opinion is relevant in the following methods. (1) From the opinion of an expert under Sec. 45 of the Evidence Act. (2) On the opinion of a non-expert, who is acquainted with the handwriting or signature of any person under Sec. 47 of the Evidence Act and (3) By comparison by court itself under Sec. 73 of the Evidence Act. In this case we are concerned mainly with Sec. 73 of the Evidence Act alone and it reads thus:

Comparison of signature, writing or seal with others admitted or proved - In order to ascertain whether a signature, writing, or seal is that of the person by whom it purports to have been written or mode, any signature, writing or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing, or seal has not been produced or proved for any other purpose.

The court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person.

This section applies also, with any necessary modifications, to finger impressions.

The power of the Court under Sec. 73 is only to direct any person present in Court to write any words or figures for the purpose of enabling it to compare the words or figures with any words or figures alleged to have been written by such person. That is for the purpose of ascertaining whether a signature or writing, is that of the person by whom it purports to have been written or made. That is subject to the following conditions. (1) There must be a cause before the Court. (2) The person directed must be a party to the cause. (3) He should be present in Court and (4) Such comparison must be necessary to determine the issue raised in the ease. What is contemplated by Sec. 73 is only an enquiry by the Court itself and not a direction to give specimen signature or writing for the purpose of investigation or to be used by opposite party as evidence. What is contemplated is only a direction and not a compulsion. If a direction could be had within the limits allowed by law, it naturally follows that non-compliance will result in an adverse presumption as envisaged by Sec. 114 of the Evidence Act.

In State Vs. Poonamchand Gupta and Others, it was held:

In term the second clause limits the power of the Court to directing a person present in Court to write any words or figure only where the Court itself is of the view that it is necessary for its own purposes to take such writing in order to compare the words or figures so written with any words or figures alleged to have been written by such person. The power does not extent to permitting one or the other party before the Court to ask the Court to lake such writing for the purpose of its evidence or its own case.

In T. Subbiah Vs. S.K.D. Ramaswamy Nadar, , the observation was:

This section, therefore, makes it clear that when the Court considers necessary to ascertain whether the signature, writing or seal is that of the person, alleged to have been written or made, the Court can compare such signature, writing or seal with the admitted or proved signature, writing or seal of that person and that while doing so, the Court is empowered to direct any person present in Court to write any words or figures for the purpose of enabling the court to compare such words or figures with those alleged to have been written by that person. This is an enabling provision for the Court making an enquiry in determining in issue to form its opinion by comparison of the words or figures as the case may be in a given case.

It was also held in that case that the Magistrate has no power to direct the accused to give his specimen handwriting or signature in the course of investigation by police at their instance.

In R. B. Khajotia A.S.T. Zaidy (1973 Crl. L J. 1499) referring to another decision, it was held: It was held in that case that Sec. 73 of the Indian Evidence Act limits the power of the Court to direct a person present in Court to write any words or figures only where the Court itself is of the view that it is necessary for its own purposes to take such writing in order to compare the words or figures so written with any words or figures alleged to have been written by such person. The Court further held that the power does not extend to permitting one or the other party before the Court to ask the Court to take such writing for the purpose of its evidence or its own use. That was also a case where it was urged that all the accused persons should make signatures in the presence of the Court and also to write some portion of the writing in issue for the purpose of handing it over to the handwriting expert. I have also taken a similar view in an unreported decision.

What emerged from the above discussions is this. A direction to give the specimen handwriting or signature will not amount to testimonial compulsion as envisaged by Art. 20 (3) of the Constitution. The Court is entitled to give direction to the accused to give his specimen handwriting or signature for the purposes enumerated in Sec. 73 of the Evidence Act. In that respect also, there can only be a direction within the limits allowed by law and there cannot be a compulsion. If that direction, which is within the law is disobeyed, a presumption under Sec. 114 of the Evidence Act will be the legitimate consequence. A direction under Sec. 73 of the Evidence Act cannot be given for the purpose of enabling the opposite party to use the same as evidence against the person who has given the specimen handwriting or signature. In such a case, it is likely to incriminate him as held in State of Bombay v. Kathi Kalu (ATR 1961 SC 1808). The question whether a magistrate is competent to direct an accused to give his specimen handwriting or signature to the police during investigation does not arise in this case and hence such a question is not decided. In this case the direction sought for was definitely for the purpose of using the specimen hand writing and signature as evidence against the first respondent by getting the opinion of the expert by comparison with the writings and signature contained in the receipt produced before court. Such a direction is not permitted by the provisions of law and therefore the learned Magistrate was correct when he dismissed the petition filed by the petitioner for that purpose. Crl. M. C. is, therefore, dismissed.