State of U.P. vs Ram Babu Misra

Mahavir Singh, J.—This is a revision by the State of U.P. against the order of the Chief Judicial Magistrate Lucknow rejecting the application of the investigating agency for directing the accused opposite party to give specimen handwriting and signature for comparison with a disputed writing.

The relevant facts are that a case under Sections 420, 120B, 478 and 471 IPC was registered as Crime No. 2140 of 1974 P.S. Hazratganj, Lucknow and the CID Crime Branch was investigating into the said offence with which the accused opposite party was alleged to be involved in the said crime.

During the course of investigation the prosecution moved an application on 4-6-75 to the Judicial Magistrate Lucknow for directing the accused Opposite party to give specimen handwriting and signature for comparison with the handwriting and signature of a disputed document by a handwriting expert.

The accused filed an objection that before he was called upon to give any such signature, the prosecution must show the original document with reference to which the specimen is desired.

On 17-12-75 the prosecution moved another application for the same purpose.

The learned Chief Judicial Magistrate in an elaborate judgment after discussing various case law cited by both sides rejected this application holding that it was beyond the scope of the power of the court to direct the accused to do so during the course of investigation.

The State has now come up in revision and contends that the view taken by the Chief Judicial Magistrate was wrong and that both under the Identification of Prisoners Act, 1920, as well as u/s 73 of the Evidence Act, the court has ample power to do so.

So far as Section 5 of the Identification of Prisoners Act, 1920, is concerned, that is clearly not applicable. This Section confines itself only to the securing of measurement which includes the finger print and foot print of an accused person. They do not include specimen signature or handwriting as held in Government of Manipur v. Thokchom Tomba Singh AIR 1969 Mani 22 and T. Subbiah Vs. S.K.D. Ramaswamy Nadar, . The question only is whether the court has such power to do so u/s 73 of the Indian Evidence Act.

The learned lower court had referred to T. Subbiah Vs. S.K.D. Ramaswamy Nadar, , R.B. Khajotia Vs. A.S.T. Zaidy and Another, ., Dharamvir Singh Vs. State, , in support of the view of the opposite party that u/s 73 of the Evidence Act, a court has no power to direct an accused during the stage of investigation to give specimen handwriting or signature for comparison with the disputed writing by the Investigating agency. To this may be added the views of Orissa High Court in Srikant Rout v. State of Orissa 1972 (2) CWR 1332 and of Calcutta High Court in P.R. Ghose v. State 77 CWN 865.

On the other side there were the rulings of Manipur in Government of Manipur v. Thokchom Tomba Singh AIR 1969 Mani 22, Patna in Gulzar Khan v. State 1962 CriLJ 84 and of Andhra Pradesh in B. Rami Reddy and Others Vs. State of Andhra Pradesh, .

Learned Government Advocate initially contends that in view of the Supreme Court decision in The State of Bombay Vs. Kathi Kalu Oghad and Others, , this question is not open for discussion because in that case also the order of the Magistrate in directing the accused to give specimen handwriting for the purposes of comparison during the course of investigation at the instance of the investigating agency was upheld. I do not agree with this contention. As explained in T. Subhiah v. S.K.D. Ramaswamy Nadar (Supra) the Supreme Court in those cases was not concerned with the power of a court to direct an accused to give specimen handwriting or signature during the investigation. The only point urged before the court was whether taking such specimen signature or writing during the course of investigation would be hit by Article 20(3) of the Constitution of India and that objection was negatived. It may be that some of the facts of the case which were disposed off by this case, signatures were obtained only during the course of investigation but that was not a different thing.

The question, therefore, remains for consideration whether u/s 73 of the evidence Act a court has power to direct an accused to give the same at the instance of the investigating agency during the course of investigation. Section 73 of the Indian Evidence Act is as follows:

In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made, any signature, writing or seal admitted or proved to the satisfaction of the court to have been written OF 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.

The second part of the Section alone is relevant. In the cases referred to above, Madras, Bombay, Punjab and Haryana, Orissa and Calcutta High Courts (supra) it was observed that this Section can be utilised only for the purpose of enabling the court to compare the words and figures so written with the disputed writing. It is not for any other purpose i.e. it does not empower a court to get this done for the satisfaction of the investigating agency.

In Manipur and in Patna cases (supra) where it has been held that the court has such a power, there is no discussion as to how that power can be inferred from the phraseology of the second part of this section. They merely contain a bald observation. In Andhra Pradesh case alone it was observed that after all it was ultimately for the benefit of the court that such a comparison was sought to be made by the investigating agency. It was, therefore, in that context that the Andhra Pradesh High Court held that a court had power to do so under this section.

Some of the courts bad gone even to this extent that even during the course of enquiry or trial the court has no power to do so at the instance of a party. It could do so only when it requires it itself, However, the Supreme Court did not accept this view of the Delhi High Court. In State Delhi Administration v. Pali Ram Cr. A. No. 336 of 1976 decided on 26-9-78 the Supreme Court held that even though a direction (sic) be given by a court for taking signature for comparison at the instance of a (sic)it is ultimately for the benefit of the court itself and as such it was held that the court had power u/s 73 of the Evidence Act to direct an accused to give his specimen signature or writing for comparison through an expert at the instance of any party but there this question may be also left open because it did not arise there whether this power extended even during investigation also.

However, the principle laid down by their Lordships in this case can be helpful in arriving at a proper conclusion on this point. The principle laid down is that taking down of such a sample writing should be in the ultimate analysis, for the purpose of enabling the court to compare the same; such a direction may be covered by Section 73. As already observed the Andhra Pradesh High Court had taken that view that taking of such specimen writing or signature at the instance of investigating agency is in the ultimate analysis to enable the court itself to compare the disputed writing with the specimen writing. So if the taking of signature by the investigating agency is in the ultimate analysis for the purpose of enabling the court to satisfy itself about the genuineness of the alleged writing such a direction can be covered by Section 73. But this cannot be said to be the necessary inference in all such cases. During investigation the investigating agency collects a variety of evidence against a suspect and it is in its own discretion as to what particular piece of evidence it will like to utilise against any particular accused. It is, therefore, not necessary that this particular evidence may be brought before the court. It may also be that the investigation may result in submission of final report and the evidence may never be brought before the court for its perusal. So it cannot be said that in each case, investigation agency would rely upon this evidence during the trial so that it may be said that it would be then for enabling the court to compare the dispute relating with the specimen writing. Hence I agree with the contention of the Learned Counsel for the opposite party that it will not be within the scope of the powers of the court u/s 73 of the Evidence Act to direct the accused to give specimen signature or writing during the course of investigation. It can be done only during the stage of enquiry or trial.

The revision has, therefore, no force and is rejected.