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PETITIONER: STATE OF U.P.

       Vs.

RESPONDENT: RAM BABU MISRA

DATE OF JUDGMENT19/02/1980

BENCH: REDDY, O. CHINNAPPA (J) BENCH: REDDY, O. CHINNAPPA (J) SARKARIA, RANJIT SINGH

CITATION:  1980 AIR  791            1980 SCR  (2)1067  1980 SCC  (2) 343

ACT:      Evidence Act,  1872, Section  73-Scope of-Comparison of signature, writing  or seal  with others admitted or proved- Competency of  the Magistrates  to  give  direction  to  the accused to  give specimen  signature when  the case is still under investigation.

HEADNOTE:      Dismissing the appeal by special leave, the Court: ^      HELD: Though  a direction  by  the  Magistrate  to  the accused to  give his specimen writing when the case is still under investigation  would surely be in the interests of the administration of  justice, Section  73 of  the Evidence Act does not enable the Magistrate to give such a direction when the case is still under investigation. [1068G-H]      The second paragraph of Section 73 enables the Court to direct any person present in Court to give specimen writings "for the  purpose of  enabling the  Court to  compare"  such writings with  writings alleged to have been written by such person. The  clear implication of the words "for the purpose of enabling  the Court  to compare"  is that  there is  some proceeding before  the Court in which or as a consequence of which it  might be  necessary for  the Court to compare such writings. The  direction is  to be  given for the purpose of ’enabling the  Court to  compare’ and not for the purpose of enabling the  investigating or other agency ’to compare’. If the case  is still  under investigation  there is no present proceeding before  the Court in which or as a consequence of which it  might be  necessary to  compare the  writings. The language of  Section 73  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. [1069D-F]      (ii)  Section   73  of   the  Evidence   Act  makes  no distinction between  a Civil  Court and a Criminal Court. It would not  be open to a person to seek the assistance of the Civil Court  for a  direction to  some other  person to give sample writing  under section  73 of the Evidence Act on the plea that it would help him to decide whether to institute a civil suit  in which  the question  would be whether certain alleged writings  are those of the other person or not. That

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being the position, it should not make any difference if the investigating agency seeks the assistance of the court under section 73 of the Evidence Act on the plea that a case might be instituted  before the  Court where it would be necessary to compare the writings. [1069G-H]      State (Delhi  Admn.) v.  Pali Ram, [1979] 1 SCR 931 and State of  Bombay v.  Kathi Kalu  Oghad, AIR  1961  SC  1808; distinguished.      State of  Bombay v. Kathi Kalu Oghad, AIR 1961 SC 1808; T. Subbaiah  v. S.  K. D. Ramaswamy Nadar, AIR 1970 Mad. 85; Farid Ahmed  v. The  State, AIR  1960 Cal.  32; Priti Ranjan Ghosh and others v. The State, 77 C.W.N. 1068 865; Dharamvir  Singh v.  State, 1975  Crl. L.J.  884 (Pb. & Haryana); Brij  Bhushan Raghunandan  Pd. v.  The State,  AIR 1957 M.P. 106; and Srikant Rout v. State of Orissa, 1972 (2) Cuttack Weekly Reporter 1332; approved.      Gulzar Khan  and Ors.  v. State, AIR 1962 Patna 255 and B. Rami Reddy and Ors. v. State of A.P., 1971 Crl. L.J. 1591 (AP); over-ruled.      [The Court  suggested that  suitable legislation may be made on  the analogy  of  s.  5  of  the  Identification  of Prisoners Act, to provide for the investiture of Magistrates with the  power to issue directions to any person, including an  accused   person,  to   give  specimen   signatures  and writings.]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil  Appeal No. 811 of 1979.      Appeal by  special leave  from the  Judgment and  Order dated  18-12-1970  of  the  Allahabad  High  Court  in  Crl. Revision No. 170 of 1975.      O. P. Rana and M. Ramachandran for the Appellant.      Nemo for the Respondent.      The Judgment of the Court was delivered by      CHINNAPPA REDDY,  J.-The Officer  who was investigating into offences  under Section  120-B, 420, 468 and 471 Indian Penal Code  alleged against  the respondent, Ram Babu Misra, moved the  Chief Judicial Magistrate, Lucknow, to direct the accused to  give his  specimen writing  for the  purpose  of comparison  with  certain  disputed  writings.  The  learned Magistrate held  that he had no power to do so when the case was still  under investigation.  His view has been upheld by the High  Court. The  State has  preferred  this  appeal  by Special Leave of this Court.      Shri O.  P. Rana,  learned Counsel  for the  appellant, contended that  Section 73  of the  Evidence  Act  conferred ample power  on the Magistrate to direct the accused to give his   specimen   writing   even   during   the   course   of investigation. He  also urged  that it would be generally in the interests  of the  administration  of  justice  for  the Magistrate to  direct  the  accused  to  give  his  specimen writing when  the case  was still under investigation, since that would  enable the investigating agency not to place the accused before  the Magistrate  for trial or enquiry, if the disputed  writing,  as  a  result  of  comparison  with  the specimen writing,  was found  not to  have been  made by the accused. While  we agree  with Mr.  Rana that a direction by the Magistrate  to the  accused to give his specimen writing when the  case is  still under investigation would surely be in the  interests of  the administration of justice, we find ourselves unable  to agree with his submission that s. 73 of

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the Evidence  Act enables  the Magistrate  to  give  such  a direction even when the case is still under investigation. 1069      Section 73 of the Evidence Act is as follows:           "73. 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 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 second paragraph of section 73 enables the Court to direct any person present in Court to give specimen writings "for the  purpose of  enabling the  Court to  compare"  such writings with  writings alleged to have been written by such person. The  clear implication of the words "for the purpose of enabling  the Court  to compare"  is that  there is  some proceeding before  the Court in which or as a consequence of which it  might be  necessary for  the Court to compare such writings. The  direction is  to be  given for the purpose of ’enabling the  Court to  compare’ and not for the purpose of enabling the  investigating or other agency ’to compare’. If the case  is still  under investigation  there is no present proceeding before  the Court in which or as a consequence of which it  might be  necessary to  compare the  writings. The language of  section 73  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. Further section 73 of the Evidence  Act makes no distinction between a Civil Court and a  Criminal Court.  Would it be open to a person to seek the assistance  of the  Civil Court  for a direction to some other person  to give sample writing under section 73 of the Evidence Act  on the  plea that  it would help him to decide whether to  institute a  civil suit  in which  the  question would be  whether certain  alleged writings are those of the other person  or not  ? Obviously not. If not, why should it make any  difference if  the investigating  agency seeks the assistance of  the Court  under s. 73 of the Evidence Act on the plea  that a  case might  be instituted before the Court where it would be necessary to compare the writings ? 1070      We  may   also  refer   here  to   Section  5   of  the Identification of Prisoners Act, 1920, which provides:           "5. If  a Magistrate  is satisfied  that, for  the      purposes of  any investigation  or proceeding under the      Code of  Criminal Procedure,  1898, it  is expedient to      direct  any   person  to   allow  his  measurements  or      photograph to  be taken,  he may  make an order to that      effect, and  in that  case the person to whom the order      relates shall  be produced  or shall attend at the time      and place  specified in  the order  and shall allow his      measurements or photograph to be taken, as the case may      be, by a police officer:           Provided that no order shall be made directing any      person to be photographed except by a Magistrate of the      first class:

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         Provided further,  that no  order  shall  be  made      under this  section unless  the person has at some time      been arrested  in connection with such investigation or      proceeding". Section 2(a)  of the Act defines "measurements" as including "finger impressions and foot print impressions".      There  are  two  things  to  be  noticed  here.  First, signature and writing are excluded from the range of s. 5 of the Identification  of Prisoners  Act and,  second,  ’finger impression’ are  included in  both s. 73 of the Evidence Act and s.  5 of the Identification of Prisoners Act. A possible view is  that it  was thought that s. 73 of the Evidence Act would not  take in the stage of investigation and so s. 5 of the Identification  of Prisoners  Act made special provision for  that  stage  and  even  while  making  such  provision, signature and  writings were  deliberately excluded.  As  we said, this is a possible view but not one on which we desire to rest our conclusion. Our conclusion rests on the language of s. 73 of the Evidence Act.      Section 73  of the Evidence Act was considered by us in State (Delhi  Administration) v.  Pali Ram(1), where we held that a Court holding an enquiry under the Criminal Procedure Code was  entitled under s. 73 of the Evidence Act to direct an accused  person appearing  before it to give his specimen handwriting to  enable the Court by which he may be tried to compare it  with disputed  writings.  The  present  question whether such  a direction,  under s. 73 of the Evidence Act, can be  given when  the matter  is still under investigation and there  is no  proceeding before  the Court was expressly left open.  The question was also not considered in State of Bombay v. Kathi Kalu Oghad,(2) 1071 where the  question which  was actually  decided was that no testimonial compulsion  under Art. 20(3) of the Constitution was involved  in a  direction to give specimen signature and hand-writing for the purpose of comparison.      The view  expressed by us in the earlier paragraphs, on the construction  of s.  73, Evidence Act was the view taken by the Madras High Court in T. Subbiah v. S. K. D. Ramaswamy Nadar(1), the  Calcutta High  Court in  Farid Ahmed  v.  the State(2) (Mitter  J., at  page 32). and Priti Ranjan Ghosh & Ors. v.  The State(3),  the High Court of Punjab and Haryana in Dharamvir  Singh v.  State(4), the  High Court  of Madhya Pradesh in  Brij Bhushan Raghunandan Prasad v. The State(5), the Orissa  High Court in Srikant Rout v. State of Orissa(6) and the Allahabad High Court in the judgment under appeal. A contrary view  was taken  by the  Patna High Court in Gulzar Khan & Ors. v. State(7) and the High Court of Andhra Pradesh in B. Rami Reddy & Ors. v. State of Andhra Pradesh.(8) We do not agree  with the  latter view. We accordingly dismiss the appeal and  while doing  so we  would suggest  the  suitable legislation may  be made  on the  analogy of  s.  5  of  the Identification  of   Prisoners  Act,   to  provide  for  the investiture  of   Magistrates  with   the  power   to  issue directions to  any person,  including an  accused person, to give specimen signatures and writings. S. R.                                      Appeal dismissed. 1072