Full Judgment Text
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PETITIONER:
STATE (DELHI ADMINISTRATION)
Vs.
RESPONDENT:
PALI RAM
DATE OF JUDGMENT26/09/1978
BENCH:
SARKARIA, RANJIT SINGH
BENCH:
SARKARIA, RANJIT SINGH
REDDY, O. CHINNAPPA (J)
CITATION:
1979 AIR 14 1979 SCR (1) 931
1979 SCC (2) 158
CITATOR INFO :
D 1980 SC 791 (7)
ACT:
Indian Evidence Act, 1872-Section 73-Scope of.
HEADNOTE:
Section 73 of the Indian Evidence Act provides that in
order to ascertain. whether a writing is that of the person
by whom it purports to have been written any writing
admitted or proved to the satisfaction of the court to have
been written by that person may be compared with the one
which is to be proved, although that signature, writing has
not been produced or proved for any other purpose. Para 2 of
the section provides that the court may direct any person
present in court to write in words or figures for the
purpose of enabling the court to compare words or figures
alleged to have been written by such person.
In the course of criminal proceedings before a
magistrate the prosecution alleged that one of the basic
documents which was of vital importance to establish the
case against the accused was in the handwriting of the
accused but it could not be compared by the handwriting
expert with any specimen writing of the accused because the
latter avoided to give any specimen writing and that in the
interest of justice the court should direct him to give his
specimen writing. Exercising the court’s power under s. 73
of the Evidence Act the Magistrate directed the accused to
give his specimen handwriting to have it examined by a
handwriting expert.
Revision preferred by the accused was dismissed by the
Sessions Judge. The High Court, in the revision petition
filed by the accused, held that the only purpose for which a
court may direct any person present in the court including
the accused person) to write words is to enable the court to
compare the words and figures with any words and figures
alleged to have been written by such person but where the
purpose is to enable any of the parties to have the words so
written compared from a handwriting expert of that party,
the second paragraph of s. 73 would have no application. The
High Court therefore held that the order of the Magistrate
was beyond the scope of s. 73.
Allowing the appeal,
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^
HELD: The Magistrate did not act beyond the scope of s.
73 of the Evidence Act or in a manner which is not legal.
1. The two paragraphs of s.73 are not mutually
exclusive, but complementary to each other. The sample
writing taken by the Court under the second paragraph of s.
73 is in substance and reality, the same thing as "admitted
writing" within the purview of the first paragraph of s. 73.
The first paragraph does not specifically say by whom such
comparison may be made but such comparison may be made by a
handwriting expert (s. 45), or by one familiar with the
handwriting of the person concerned (s. 47) or by the court.
The section should be read as a whole in the light of s. 45.
Thus
932
read it is clear that a court holding an enquiry under the
Code of Criminal Procedure in respect of an offence triable
by itself or by the Court of Session, does not exceed its
powers under s.73 if in the interests of justice it directs
an accused person to give his simple writing to enable the
same to be compared by a handwriting expert chosen or
approved by the court, it is immatrial whether the expert’s
name was suggested by the prosecution or the defence because
even in adopting this course the purpose is to enable the
court to compare the disputed writing with his admitted
writing and to reach its own conclusion with the assistance
of an expert. [942G-H]
In the instant case the circumstances which weighed
with the Magistrate in making the order, included the
contumacious conduct of the accused and the resiling of the
material witness. It was apparent from the record that the
accused was playing the game of hide and seek with the
process of law. The Magistrate therefore had good reason to
hold that the assistance of the Government Expert was
essential in the interests of justice to enable the
Magistrate to compare the sample with the questioned writing
with expert assistance. Although the specimen handwriting
was sought to be used for comparison by the expert the
ultimate purpose was to enable the court to compare that
specimen writing with the disputed one. [943E-F]
2. The fact that the Magistrate’s order might result in
filling up of loop holes in the prosecution case, as alleged
by the accused, is a purely subsidiary factor which must
give way to the paramount consideration of doing justice.
[944B]
3. Moreover, s. 165 of the Evidence Act and s. 540 of
Cr.P.C. 1898 invest the court with a wide discretion to call
and examine anyone as a witness if the court is bona fide of
opinion that his examination is necessary for is a just
decision of the case. In passing the order the Magistrate
was well within the bounds of this principle. [944D]
4. In the matter of comparing the handwriting the judge
should not take upon himself the task of comparing the
admitted writing with the disputed one to find out whether
the one agrees, with other. A prudent course is to obtain
the opinion and assistance of an expert. [944F]
5. So far as the handwriting expert is concerned his real
function is to put before the court all the materials
together with the reasons which induce him to come to a
conclusion. It is for the Court and the jury to form a
judgment by their own observation of the materials. On
receiving expert evidence the court should compare the
handwriting with its own eyes for a proper assessment of the
value of the total evidence. It is, therefore, not wrong to
say that when a court seized of a case directs the accused
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person to give his specimen writing such direction is for
the purpose of enabling the court to compare the writing so
written with the writing alleged to have been written by
such person within the contemplation of s. 73. [944G-H]
Fakhruddin v. State of Madhya Pradesh, AIR 1967 SC 1326
referred to.
6. Even where no expert is cited or examined by either
party, the court may in the interests of justice call an
expert witness, allow him to compare the sample writing with
the alleged writing and thus give his expert assistance to
enable the court to compare the two writings and arrive at a
proper conclusion [946A-B]
933
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
336 of 1976.
Appeal by Special Leave from the Judgment and Order
dated 18-2-1975 of the Delhi High Court in Crl. Revision No.
46 of 1973.
H. S. Marwah and R. N. Sachthey for the Appellants.
D. B. Vohra for the Respondent.
The Judgment of the Court was delivered by
SARKARIA, J.-This appeal by special leave, directed
against a judgment dated February 18, 1975, of the High
Court of Delhi, involves a question with regard to the scope
of the powers of Court under Section 73, Evidence Act to
direct an accused person to give his specimen writings. It
arises out of these circumstances:
Pali Ram, respondent along with Har Narain and 8 others
was challenged by the police in respect of offences under
Section 120B/ 420/477A/467/471, Penal Code, before the
Additional Chief Judicial Magistrate, Delhi. The case being
exclusively triable by the Court of Session, the Magistrate
started inquiry proceedings under Section 207A, Chapter
XVIII of the Code of Criminal Procedure, 1898. After most of
the prosecution evidence had been recorded, an application
dated December 11, 1970, was submitted on behalf of the
prosecution. It was stated in the application that one of
the basic documents (Ex. PW. 21/F) tendered in evidence was,
according to the prosecution, in the handwriting of Pali
Ram: but it could not be got compared by a handwriting
expert with any specimen writing of Pali Ram because the
latter was absconding and had avoided to give any specimen
writing. It was further stated that this document is a very
vital link to establish the case against the accused and in
the interest of justice, the Court should direct Pali Ram
accused to give his specimen writings, and forward the same
along with the original documents marked P. 21/F to the
Government Expert of Questioned Documents "with a view to
have the necessary comparison". This application was
strenuously opposed on behalf of the accused. After hearing
arguments, the Magistrate on May 20, 1972, allowed that
application. Since the construction of that order has a
bearing on the problem before us, it will be appropriate to
extract its material portion, in extenso, as under:-
"It was argued on behalf of Pali Ram
accused.............. that the power of the Court is
limited to the extent only where the Court itself is of
the view that it is necessary
934
for its own purpose to take such writing in order to
compare the words or figures so written with any word
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or figure alleged to have been written by such person
and that this power does not extend to permitting one
or the other party before the Court to take such
writing for the purpose of its evidence or its own use.
A.I.R. 1957 Bom. 207 was cited in this connection. It
was further argued that Section 73 Indian Evidence Act
did not entitle the Court to assist a party to the
proceedings. It entitled the Court only to assist
itself for a proper conclusion in the interest of
justice. I have applied this test to the present case
before me. It is true that here it is the prosecution
which has made this request. But the observation
contained in this ruling cannot be stretched to the
extent, the defence wants me to do it. Ex. PW. 21/F was
stated by Tekchand to be in Paliram’s handwriting when
he made statement before the Police. In his statement
during committal proceedings he resiled from it. This
document is undoubtedly a vital link. It has an
important bearing on the case as Pali Ram himself
happens to be an accused. In this peculiar situation it
becomes necessary to take recourse to the Court’s power
under Section 73 in the interest of justice and to ask
Pali Ram to give specimen handwriting (to have it
examined by handwriting expert) and then to decide
about it. Under these circumstances, I think it fit to
allow the request of the prosecution in this regard."
(emphasis supplied)
Feeling aggrieved by this Order, Pali Ram preferred a
revision to the Court of Session. The revision was dismissed
by the learned Additional Sessions Judge on December 7,
1972. Against this dismissal, Pali Ram preferred a revision
petition (C.R. No. 46 of 1973) in the High Court. The
revision petition first came up for hearing before R. N.
Agarwal J, who felt that the case involved an important
question of law which was not free from difficulty. He
therefore referred it to a larger Bench, although he did not
formulate any specific question.
The matter then came up for consideration before a
Division Bench consisting of Jagjit Singh and R. N. Agarwal.
JJ. The Division Bench gathered from the referring order
"that the matter requiring consideration is, whether the
second paragraph of Section 73 of the Indian Evidence Act
empowers a Court to direct an accused to
935
write in words or figures by way of specimen writings for
enabling the prosecution to send the specimen writing to a
handwriting expert for purposes of comparison with the
writing of a disputed document alleged to be in the
handwriting of that accused person."
After referring to certain decisions, Jagjit Singh J.,
who delivered the judgment of the Bench, answered the
question posed, thus:
"There is no ambiguity or confusion in the
phraseology used in the second paragraph of the
Section. There fore, the only purpose for which a Court
may direct any person present in the Court (including
an accused person) to write words or figures is to
enable the Court to compare the words and figures so
written with any words or figures alleged to have been
written by such person. Where the purpose of directing
a person present in Court to write any words or figures
is not to enable the Court to compare the words or
figures with any words or figures alleged to have been
written by such person but is to enable any of the
parties to have the words or figures so written
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compared from a hand-writing expert of that party, the
second paragraph of Section 73 would have no
application."
In the result, the High Court held that "the order of the
learned Additional Chief Judicial Magistrate dated May 20,
1972, insofar as it related to disposal of the application
filed on December 11, 1978, was not legal and was beyond the
scope of Section 73 of the Evidence Act. To that extent, the
said order and the order of the Additional Session Judge
dated December 7, 1972, by which the revision was dismissed,
are set aside and the revision filed by Pali Ram is
accepted".
Hence, this appeal by the State (Delhi Administration).
We have heard Shri Marwah appearing for the appellant-
State. None has appeared on behalf of the respondent,
despite notice.
In the course of his elaborate arguments, Shri Marwah
has tried to make out these points: (i) The expression "any
person" in Section 73 includes a person accused of an
offence. (ii) The word "court" in Section 73 includes the
Court of the Magistrate competent to try the offence or hold
an enquiry in respect thereof against such accused person
under the Code of Criminal Procedure. (iii) Section 73 does
not offend Article 20(3) of the Constitution, because by
giving a direction to an accused person to give his
936
specimen handwriting the Court does not compel that accused
"to be a witness against himself". State of Bombay. v. Kathi
Kalu Oghad(1) has been relied upon. (iv) There is nothing in
Section 73 which prohibits the Court from sending the
specimen writing obtained by it from the accused to a
handwriting expert for opinion after comparison of the same
by him with the disputed writing, even if that expert
happens to be the Government Expert of Questioned Documents.
A court is fully competent under Section 73, to make an
order directing the accused to write down words or figures
if the ultimate purpose of obtaining such specimen writing
is to enable the Court trying the case, or inquiring into
it, to compare that specimen writing with the disputed one
to reach its own conclusion, notwithstanding the fact that,
in the first instance, the Court thinks it necessary in the
interest of justice to send that specimen writing together
with the disputed one, to an expert to have the advantage of
his opinion and assistance. (v) The specimen writings taken
from an accused person by the Court under the second
paragraph of Section 73 are, to all intents and purposes,
"admitted writings" within the purview of the first
paragraph of the Section which read with illustration (c) of
Section 45, Evidence Act, clearly indicates that such
specimen writings can legally be used for comparison with
the disputed writing by a handwriting expert also,
irrespective of whether such expert is examined as a witness
by any of the parties, or as a Court witness by the Court
acting suo motu or on being moved by the prosecution or the
defence. (vi) The Government Expert of Questioned Documents
is supposed to be a high officer of integrity who is not
under the influence of the investigating officer and he is
expected to give his opinion truthfully about the identity
or otherwise of the two sets of writings on objective,
scientific data. The mere fact, therefore, that in the
instant case, he has been summoned as a prosecution witness,
will not prejudice the accused, particularly when the Court,
in the circumstances of the case, thinks it necessary to
take the assistance of the expert for reaching its own
conclusion on this point. (vii) The order of the Magistrate,
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construed as a whole shows that, in substance, the ultimate
purpose of directing the accused to give his specimen
writings is that the Magistrate himself wants to compare the
specimen thus obtained, with the disputed writing, to form a
just opinion about its identity, after availing himself of
the advantage of the expert’s opinion. (viii) This course
was adopted by the Magistrate in the interests of justice
taking into account the conduct of the accused who had been
absconding for a long time and was declared a proclaimed
offender, and thus avoided
937
to give his admitted or specimen writings at the
investigation stage, and later (it is contended) tampered
with the prosecution witness (Tek Chand) who was expected to
prove the disputed writing, and who in consequence of the
tampering by the accused, resiled from his police statement
during the proceedings in Court. In such a situation, even
on the principle underlying Section 540 Cr.P.C. of 1898,
which governs these proceedings, and is analogous to the
principle underlying Section 73, Para (2), the Magistrate
was competent to use the specimen writing thus obtained, for
securing the opinion and evidence of the Government Expert,
with a view to assist himself (Magistrate) in forming his
own opinion with regard to the identity of the disputed
writing, Ex. PW. 21/F. (ix) the action of the Magistrate
inasmuch as it sought the specimen writing of the accused to
be sent, in the first instance, to the Government Expert for
his opinion and evidence, far from being prohibited, was
consistent with the principle enunciated by the Bombay High
Court in Rundragonda Venkangonda v. Basangonda,(1) which
received the imprimatur of this Court in Fakhruddin v. State
of Madhya Pradesh(2). This principle is to the effect, that
comparison of the handwriting by the Court with the other
documents not challenged as fabricated, upon its own
initiative and without the guidance of an expert is
hazardous and inconclusive.
Points (i) and (iii) are well-settled and beyond
controversy.
For points (iv) to (ix), Shri Marwah relies on Gulzar
Khan v. State(3) and B. Rami Reddy v. State of Andhra
Pradesh(4). Shri Marwah further maintains that the view
taken by a learned Judge of the Calcutta High Court in Hira
Lal Agarwall’s case(4) followed in the impugned judgment by
the Delhi High Court, and also by the Bombay High Court in
State v. Poonam Chand Gupta(5) inasmuch as it is held
therein, that the second clause of Section 73 limits the
power of the Court to obtain the specimen writing of the
accused, exclusively for its own purpose viz., for
comparison with the disputed writing by the court itself, is
too narrow and incorrect.
The question that falls to be determined in this case
is:
"Whether a Magistrate in the course of an enquiry
or trial on being moved by the prosecution, is
competent under
938
Section 73, Evidence Act, to direct the accused person
to give his specimen handwriting so that the same may
be sent along with the disputed writing to the
Government Expert of Questioned Documents for
examination, "with a view to have the necessary
comparison" ?
There appears to be some divergence of judicial opinion
on this point. In Hira Lal Agarwalla v. State (supra), a
learned Single Judge of Calcutta High Court took the view
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that Section 73 does not entitle the Court to assist a party
to the proceedings. "It entitles the court to assist itself
to a proper conclusion in the interest of justice. It is not
open to the Magistrate to send the specimen writing obtained
from the accused for examination to an expert who is a
prosecution witness." It was, however, conceded that "it is
perfectly open to the court to call its own photographer,
take the enlargements under its own supervision. study them,
and if necessary call its own expert as a court witness in
order that it might be assisted to a proper conclusion".
The dictum in Hiralal Agarwala’s case (supra) was
followed by a learned Single Judge of the Bombay High Court
in State v. Poonam Chand Gupta, (supra) wherein it was held
that the second clause of Section 73 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 by such
person. 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 on its own case.
In T. Subbiah v. S. K. D. Ramaswamy Nadar,(1)
Krishnaswam Reddy, J. of Madras High Court adopted a similar
approach in coming to the conclusion that section 73,
Evidence Act gives no power to a Magistrate at the pre-
cognizance stage or in the course of police investigation,
to direct an accused person to give his specimen
handwriting. K. Reddy, J. was careful enough to add that the
court for the purpose of comparison can take extraneous aid
by using magnifying glass, by obtaining enlargement of
photographs or by even calling an expert-all these to enable
the Court to determine by comparison. There is no basis for
the view that the court cannot seek extraneous aid for its
comparison: but on the other hand, there is indication in
Section 73 of the Evidence Act itself that such aid might be
necessary". (emphasis added).
939
As against the above view, a Full Bench of Patna High
Court in Gulzar Khan v. State,(supra) held that a Magistrate
has the power under Section 73, Evidence Act to direct, even
before he has taken cognizance of the offence, an accused
person to give signatures, specimen writing, finger prints
or foot-prints to be used for comparison with some other
signatures, handwritings, finger prints or foot prints which
the police may require in the course of investigation. It
was remarked that in Section 73, the word ’Court’ must be
equated with the court of the Magistrate in a case triable
by him or before it is committed to Sessions in a case
triable by the Court of Session. As a matter of fact, in
every case where the accused is arrested and required to
give his specimen handwriting or signature, or thumb
impression etc., he is arrested under a warrant which must
be issued by a Magistrate, or when the police arrest without
a warrant in a cognizable offence under Section 60 of the
Code of Criminal Procedure, he must be produced before a
Magistrate without unreasonable delay and the procedure
under Sections 60 to 63 of the Code as also under Article 22
of the Constitution has to be followed and that attracts the
provisions of Section 73 of the Evidence Act.
In taking this view, the Patna High Court sought
support from the decision of this Court in State of Bombay
v. Kathi Kalu Oghad & Ors., (supra) wherein the police had
obtained from the accused three specimen handwritings to
show whether a chit, Exhibit 5, was in the handwriting of
the accused, in the course of police investigation of the
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case, and it was held to be inadmissible by the Bombay High
Court, for a different reason viz., on the ground that it
was hit by Article 20(3) of the Constitution. This Court had
held that those specimen writings were admissible.
In B. Rami Reddy v. State of Andhra Pradesh, (supra)
the High Court of Andhra Pradesh took a similar view.
Following the ratio of Gulzar Khan v. State of Bihar
(supra), it was held that the Court does not exceed its
powers under the Section in directing an accused to give his
thumb-impression to enable the police to make investigation
of an offence as even in such a case the purpose is to
enable the Court before which he is ultimately put up for
trial to compare the alleged impressions of the accused with
the admitted thumb-impression.
At the outset, we may make it clear that the instant
case is not one where the Magistrate had made the impugned
order in the course of police investigation. Here, the
Magistrate had taken cognizance of these two companion
cases. The evidence of most of the prosecution witnesses has
been recorded. The problem before us is,
940
therefore, narrower than the one which was before the Patna,
and Andhra Pradesh High Courts in the aforesaid cases. All
that we have to consider is, whether the High Court was
right in holding that the order dated May 20, 1972, of the
Magistrate calling upon the accused before it, to give his
specimen handwriting, was "beyond the scope of Section 73,
Evidence Act".
Before considering the scope of Section 73, it will be
appropriate to have a look at the legislative background of
this provision. Section 73 like many other provisions of the
Indian Evidence Act, is modelled after the English law of
evidence as it existed immediately before the enactment of
the Indian Evidence Act in 1972.
The English Law on the subject, as amended by the
English Acts of the years 1854 and 1865, was substantially
the same as incorporated in Section 73 of Indian Evidence
Act. Section 48 of the English Act II of 1855 was as
follows:
"On an inquiry whether a signature, writing or
seal is genuine, any undisputed signature, writing or
seal of the party whose signature, writing or seal is
under dispute may be compared with the disputed one,
though such signature, writing or seal be on an
instrument which is not evidence in the cause."
Section 48 was repealed and the Criminal Procedure Act, 1865
was passed by British Parliament. Section 8 of that Act,
which still holds the field, provides:
"Comparison of disputed writing with writing
proved to be genuine: Comparison of a disputed writing
with any writing proved to the satisfaction of the
judge to be genuine shall be permitted to be made by
witnesses; and such writings, and the evidence of
witnesses respecting the same, may be submitted to the
court and jury as evidence of the genuineness or
otherwise of the writing in dispute."
This Section applies in both Civil and Criminal Courts by
virtue of Section 1 of the Act.
Apart from this Section, it was well settled that the
Court in the case of a disputed writing, was competent to
obtain an exemplar or specimen writing. In any case, the
Court was competent to compare the disputed writing with the
standard or admitted writing of the
941
person in question. The position, as it obtained after the
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passing of the Criminal Procedure Act 28 and 29 Vict. C. 18,
has been summed up by Taylor as follows:-
"Under the Statutory Law, it seems clear......that
the comparison may be made either by the witnesses
acquainted with the handwriting, or by witnesses
skilled in deciphering handwriting, or, without the
intervention of any witnesses at all, by the jury
themselves (Cobbett v. Kilminister), or in the event of
there being no jury, by the Court.... It further
appears that any person whose handwriting is in
dispute, and who is present in Court, may be required
by the Judge to write in his presence, and that such
writing may be compared with the document in question.
Doed Devine v. Wilson, (1855) 10 Moore P. C. 502, 530;
110 R.R. 83; Cobbett v. Kilminister (1865) 4 F & F 490-
(See Taylor on Evidence by Johnson & Bridgman, Vol. 2,
paragraphs 1870 and 1871, page 1155).
Let us now compare it with Section 73 of the Indian
Evidence Act, which runs as under:
"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.. "
It will be seen that the first paragraph of Section 73
is, in substance, a combined version of Section 48 of the
English Act II of 1855 and Section 8 of the English Criminal
Procedure Act, 1865. The second paragraph of Section 73 is
substantially the same as the English Law condensed by
Taylor in the above-quoted portion of paragraph 1871.
942
Just as in English Law, the Indian Evidence Act
recognises two direct methods of proving the handwriting of
a person:
(1) By an admission of the person who wrote it.
(2) By the evidence of some witness who saw it written.
These are the best methods of proof. These apart, there are
three other modes of proof by opinion. They are:
(i) By the evidence of a handwriting expert.
(Section 45 )
(ii) By the evidence of a witness acquainted with the
handwriting of the person who is said to have
written the writing in question. (Section 47).
(iii) Opinion formed by the Court on comparison made by
itself. (Section 73)
All these three cognate modes of proof involve a process of
comparison. In mode (i), the comparison is made by the
expert of the disputed writing with the admitted or proved
writing of the person who is said to have written the
questioned document. In (ii), the comparison takes the form
of a belief which the witness entertains upon comparing the
writing in question, with an exemplar formed in his mind
from some previous knowledge or repetitive observance of the
handwriting of the person concerned. In the case of (iii),
the comparison is made by the Court with the sample writing
or exemplar obtained by it from the person concerned.
A sample writing taken by the Court under the second
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paragraph of Section 73, is, in substance and reality, the
same thing as "admitted writing" within the purview of the
first paragraph of Section 73, also. The first paragraph of
the Section, as already seen, provides for comparison of
signature, writing, etc. purporting to have been written by
a person with others admitted or proved to the satisfaction
of the Court to have been written by the same person. But it
does not specifically say by whom such comparison may be
made. Construed in the light of the English Law on the
Subject, which is the legislative source of this provision,
it is clear that such comparison may be made by a
handwriting expert (Section 45) or by one familiar with the
handwriting of the person concerned (Section 47) or by the
Court. The two paragraphs of the Section are not mutually
exclusive. They are complementary to each other.
943
Section 73 is therefore to be read as a whole, in the
light of Section 45. Thus read, it is clear that a Court
holding an inquiry under the Code of Criminal Procedure in
respect of an offence triable by itself or by the Court of
Session, does not exceed its powers under Section 73 if, in
the interests of justice, it directs an accused person
appearing before it, to give his sample writing to enabling
the same to be compared by a handwriting expert chosen or
approved by the Court, irrespective of whether his name was
suggested by the prosecution or the defence, because even in
adopting this course, the purpose is to enable the Court
before which he is ultimately put up for trial, to compare
the disputed writing with his (accused’s) admitted writing,
and to reach its own conclusion with the assistance of the
expert.
In the instant case, the Magistrate, as the extract
from his Order dated May 20, 1972, shows after considering
the peculiar circumstances of the case, and recalling the
observation of the Calcutta High Court in Hira Lal Agarwalla
v. State (ibid) to the effect that Section 73 entitled "the
court to assist itself for a proper conclusion in the
interest of justice", expressly "applied this test to the
present case". The peculiar circumstances which weighed with
the Magistrate in directing the accused to execute sample
writing to be compared, in the first instance, by the
Government Expert of Questioned Documents, included the
contumacious conduct of the accused and the resiling of the
material witness, Tek Chand, which, according to Mr. Marwah,
was possibly due to his having been suborned or won over by
the accused. It was apparent from the record that the
accused was playing hide and seek with the process of law
and was avoiding to appear and give his sample writing to
the police. The Magistrate therefore, had good reason to
hold that the assistance of the Government Expert of
Questioned Documents was essential in the interest of
justice to enable the Magistrate to compare the sample and
the question writings with the expert assistance so obtained
and then to reach a just and correct conclusion about their
identity. Although the order of the Magistrate is somewhat
inartistically worded, its substance was clear that although
initially, the specimen writing sought from the accused was
to be used for comparison by the Government Expert, the
ultimate purpose was to enable the Court to compare that
specimen writing with the disputed one, Ex. PW. 21F, to
reach a just decision.
In the Revision Petition filed by the accused before
the High Court a grievance is sought to be made out that the
Magistrate’s order will work prejudice to the defence and
enable the prosecution
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to fill gaps and loopholes in its case. This contention was
devoid of force. Once a Magistrate in seisin of a case, duly
forms an opinion that the assistance of an expert is
essential to enable the Court to arrive at a just
determination of the issue of the identity of the disputed
writing, the fact that this may result in the filling of
loopholes" in the prosecution case is purely a subsidiary
factor which must give way to the paramount consideration of
doing justice. Moreover, it could not be predicted at this
stage whether the opinion of the Government Expert of
Questioned Documents would go in favour of the prosecution
or the defence. The argument raised before the High Court
was thus purely speculative.
In addition to Section 73, there are two other
provisions resting on the same principle, namely, Section
165, Evidence Act and Section 540 Cr. P.C., 1898, which
between them invest the Court with a vide discretion to call
and examine any one as a witness, if it is bona fide of the
opinion that his examination is necessary for a just
decision of the case. In passing the order which he did, the
Magistrate was acting well within the bounds of this
principle.
The matter can be viewed from another angle, also.
Although there is no legal bar to the Judge using his own
eyes to compare the disputed writing with the admitted
writing, even without the aid of the evidence of any
handwriting expert, the Judge should, as a matter of
prudence and caution, hesitate to base his finding with
regard to the identity of a handwriting which forms the
sheet-anchor of the prosecution case against a person
accused of an offence solely on comparison made by himself.
It is, therefore, not advisable that a Judge should take
upon himself the task of comparing the admitted writing with
the disputed one to find out whether the two agree with each
other; and the prudent course is to obtain the opinion and
assistance of an expert.
It is not the province of the expert to act as Judge or
Jury. As rightly pointed out in Titli v. Jones(1) the real
function of the expert is to put before the Court all the
materials, together with reasons which induce him to come to
the conclusion, so that the Court, although not an expert
may form its own judgment by its own observation of those
materials. Ordinarily, it is not proper for the Court to ask
the expert to give his finding upon any of the issues,
whether of law or fact, because, strictly speaking, such
issues are for the Court or jury to determine. The
handwriting expert’s function is to opine after a scientific
comparison of the disputed writing
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with the proved or admitted writing with regard to the
points of similarity and dissimilarity in the two sets of
writings. The Court should then compare the handwritings
with its own eyes for a proper assessment of the value of
the total evidence.
In this connection, the observations made by
Hidayatullah, J. (as he then was) in Fakhruddin v. State of
Madhya Pradesh (ibid) are apposite and may be extracted :
"Both under Sections 45 and 47 the evidence is an
opinion, in the former by a scientific comparison and
in the latter on the basis of familiarity resulting
from frequent observations and experience. In either
case, the Court must satisfy itself by such means as
are open that the opinion may be acted upon. One such
means open to the Court is to apply its own observation
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to the admitted or proved writings and to compare them
with the disputed one, not to become a handwriting
expert but to verify the premises of the expert in one
case and to appraise the value of the opinion in the
other case. The comparison depends on an analysis of
the characteristics in the admitted or proved writings
and the finding of the same characteristics in a large
measure in the disputed writing. In this way, the
opinion of the deponent whether expert or other is
subjected to scrutiny and although relevant to start
with becomes probative. Where an expert’s opinion is
given, the Court must see for itself and with the
assistance of the expert come to its own conclusion
whether it can safely be held that the two writings are
by the same person. This is not to say that the Court
must play the role of an expert but to say that the
Court may accept the fact proved only when it has
satisfied itself on its own observation that it is safe
to accept the opinion whether of the expert or other
witness."
Since even where proof of handwriting which is in
nature comparison, exists, a duty is cast on the Court to
use its own eyes and mind to compare, the admitted writing
with the disputed one to verify and reach its own
conclusion, it will not be wrong to say that when a Court
seised of a case, directs an accused person present before
it to write down a sample writing, such direction in the
ultimate analysis, "is for the purpose of enabling the Court
to compare" the writing so written with the writing alleged
to have been written by such person, within the
contemplation of Section 73. That is to say, the words ’for
the purpose of enabling the Court to compare’ do not exclude
the use of such "admitted" or sample writing for comparison
with
946
the alleged writing of the accused, by a handwriting expert
cited as a witness by any of the parties. Even where no such
expert witness is cited or examined by either party, the
Court may, if it thinks necessary for the ends of justice,
on its own motion, call an expert witness, allow him to
compare the sample writing with the alleged writing and thus
give his expert assistance to enable the Court to compare
the two writings and arrive at a proper conclusion.
For all the foregoing reasons, we are of opinion that
in passing the orders dated May 20, 1972 relating to the
disposal of the applications dated December 11, 1970, the
learned Additional District Magistrate did not exceed his
powers under Section 73, Evidence Act. The learned Judges of
the High Court were not right in holding that in directing
the accused by his said Order dated May 20, 1972, the
Magistrate acted beyond the scope of Section 73 or in a
manner which was not legal.
Accordingly, we allow this appeal, set aside the
judgment of the High Court, and restore the order dated May
20, 1972, of the Magistrate who may now repeat his direction
to the accused to write down the sample writing. If the
accused refuses to comply with the direction, it will be
open to the Court concerned to draw under Section 114,
Evidence Act, such adverse presumption as may be appropriate
in the circumstances. If the accused complies with the
direction, the Court will in accordance with its order dated
May 20, 1972, send the writing so obtained, to a senior
Government Expert of Questioned Documents, named by it, for
comparison with the disputed writing and then examine him as
a Court witness.
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Since the case is very old, further proceedings in the
case shall be taken with utmost expedition.
P.B.R. Appeal allowed.
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