Ram Sunder vs State of U.P.

P.K. Jain, J.—None appears for the parties except learned A.G.A. for the State. Perused the material on record and heard the learned A.G.A.

It appears from the record that the revisionist applied for surrendering himself in a case under Sections 467/468/419 and 420, I.P.C. The police simultaneously submitted a report for taking thumb-impressions of the revisionist for comparison to help the investigation. His thumb-impressions taken earlier were sent to the expert for comparison but the expert reported that the thumb-impressions and finger prints were not for comparison. The investigating agency had, therefore, applied for taking fresh finger prints. The revisionist raised objections which were partly accepted by the learned Magistrate. However, in view of the provisions of Section 5 of the Identification of Prisoners Act, 1920, the learned Magistrate allowed the prayer of the investigating agency.

The impugned order is challenged on the grounds that the provisions of Section 73 of the Indian Evidence Act are not applicable to the present case and directing to give thumb-impressions or finger prints amounts to testimonial compulsion under Article 20, Sub-clause (3) of the Constitution of India and that the provisions of Section 5 of the Identification of Prisoners Act were not applicable to the present case. In State of U.P. v. Sri Ram Babu Mishra 1980 SC CriR 335, the Hon''ble Supreme Court held that Section 73 of the Indian Evidence Act does not permit a Court to give a direction to the accused to give specimen writings for anticipated necessity for comparison in a proceeding which may later be instituted in the Court. The direction u/s 73 to any person present in the Court to give specimen writings is to be given for the purpose of enabling the Court to compare and not for the purposes of enabling the investigating or other agency to compare. In this view of the matter, no such direction can be given u/s 73 of the Indian Evidence Act to enable the investigating agency to get the specimen writings or finger prints compared.

As regards the second ground of testimonial compulsion, the Hon''ble Supreme Court in The State of Bombay Vs. Kathi Kalu Oghad and Others, held that no testimonial compulsion under Article 20, Sub-clause (3) of the Constitution of India was involved in a direction to give specimen signatures and handwritings for the purpose of comparison.

As regards applicability of Section 5 of the Identification of Prisoners Act, 1920, proviso 2 specifically provides that no order shall be made under this section unless the person has at sometime been arrested in connection with such investigation or proceeding. Admittedly, the revisionist was arrested earlier and his thumb impressions were taken for comparison with the disputed finger prints. The expert could not make comparison since the finger prints were not proper. The contention of the revisionist that u/s 5 of the Identification of Prisoners Act, 1920 his thumb impressions cannot be taken is without force since in view of proviso 2 referred to above, the bar is applicable only when such person has never been arrested. If the person has been arrested sometime during the investigation, then his thumb-impressions or signatures or finger prints can be directed to be taken for comparison with the disputed finger prints, as the case may be. Therefore, there is no illegality in the impugned order. The revision is devoid of merit and is accordingly dismissed.