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Cites 22 docs - [View All]
Section 73 in The Indian Evidence Act, 1872
The Indian Evidence Act, 1872
Section 5 in The Indian Evidence Act, 1872
The Identification of Prisoners Act, 1920
The State Of Bombay vs Kathi Kalu Oghad And Others on 4 August, 1961
Citedby 33 docs - [View All]
Sub-Inspector Of Police vs Devarajan on 19 July, 1999
Nannu Alias Nanwa Alias Nanu And ... vs State Of U.P. on 31 May, 1990
Identification of prisoners act,1920
S. Kumar And Ors. vs Collector Of Central Excise And ... on 1 July, 1983
Sapan Haldar & Anr. vs The State on 11 August, 2011

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Supreme Court of India
State Of U.P vs Ram Babu Misra on 19 February, 1980
Equivalent citations: 1980 AIR 791, 1980 SCR (2)1067
Author: O C Reddy
Bench: Reddy, O. Chinnappa (J)
           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
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 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:
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