Order One K. C. George, the accuse person in Crime No. 135/CR/74 of C.B., C.I.D. (F.S.), Ernakulam, has filed this petition under sections 401 and 482 of the Criminal Procedure Code, for quashing an order purported to have been passed under section 73 of the Indian Evidence Act by the Chief Judicial Magistrate, Kottayam, directing him to report before the Divisional Inspector of Police, C.B., C.I.D. (F.S.), Ernakulam at 10 a.m. on 18th July, 1979 for enabling him to complete the investigation by taking a. sample signature and handwriting of the accused. 2. The case referred to in the petition was registered as early as in the year 1974 and the first information report was also filed: before the Chief Judicial Magistrate, Kottayam, immediately after the registration of the case. Thereafter the accused appeared before the Chief Judicial Magistrate, Kottayam and he was released on bail in 1974 itself. The accused had no information of the case thereafter. While so, on 18th June, 1979, the Divisional Inspector of Police, C.B., C.I.D. (F.S.), Edappally, the second respondent herein, filed an application before the Court below stating that a sample signature and handwriting of the accused is essential for completing the investigation of the case and therefore the accused may be directed to appear before him for the purpose of taking sample signature and handwriting of the accused person. The Court below issued notice on this to the petitioner and after a few postings a warrant was issued and when the accused appeared on 3rd July, 1979, he was granted bail and the case was posted to 23rd July, 1979. Thereafter on an application filed by the petitioner for recalling the warrant issued against him the impugned order was passed on 10th July, 1979, without even hearing him. 3. The petitioner who contends that he is innocent and has not committed any offence, strongly attacked the order of the Court below on various grounds. The learned Advocate appearing for him submitted that the Court below has no jurisdiction to issue an order of this nature compelling ah accused person to appear before the police during investigation to enable them to take a specimen signature and handwriting, that the object of the Police was only to harass the accused person and that this application filed five years after the registration of the case was completely devoid of bona fides. 4. 4. The point that arises for determination in this petition is whether a Magistrate has jurisdiction or is competent under section 73 of the Indian Evidence Act to direct an accused person to appear before a Police Officer for taking his specimen signature and handwriting for the purpose of investigation. 5. There is no provision under the Code of Criminal Procedure or under the Indian Evidence Act which enables a Magistrate to direct or compe1iant accused person to give his sample signature and handwriting to the Police for the purpose of investigation or pass any order compelling him to co-operate with the Police so as to enable them to complete investigation of the case. There is also no provision under the Identification of Prisoners Act (XXXIII of 1920), for taking specimen signature or handwriting of the accused persons. The only provision which enables a Court to direct an accused person present in Court to give his specimen signature and handwriting is section 73 of the Indian Evidence Act. It is clear from section 73 that the powers conferred under the second paragraph of that section on a Court to direct a person present in Court to give a sample handwriting or signature can be exercised only under specific circumstances and for the purposes mentioned therein. Under this latter part of section 73 of the Evidence Act, the Court may direct any person present in Court to write any words or figures for the purposes 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 is an enabling provision and the words used therein make it clear that this power can be exercised only for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have written by such person. This section helps a Court making an enquiry or trial in determining an issue to form its opinion by comparison of the words or figures as the case may be. A Court can take extraneous aid for its comparison. This power under section 73 can be exercised by the Court without being asked for by any party and can also be exercised either at the instance of the prosecution or the defence. A Court can take extraneous aid for its comparison. This power under section 73 can be exercised by the Court without being asked for by any party and can also be exercised either at the instance of the prosecution or the defence. The two parts of section 73 are complementary to each other and not mutually exclusive. But it is clear from the provisions in the section that this power should not be exercised for directing an accused person to appear before the Police during investigation to give specimen signature or handwriting for the purpose of investigation or completing investigation by the Police. 6. The sine qua non of applying the provision of section 73 of the Evidence Act is the enquiry by the Court. If there is no enquiry or trial, there is no scope for application of the provisions of the Indian Evidence Act. That under section 73 of the Evidence Act, Court can seek extraneous aid is clear from the indications in the section itself and also the observations made by the Privy Council in Kessarbai v.Jethabhai Jivan1 In this case the Privy Council while dealing with the scope of section 73 of the Evidence Act said that mere comparison of signatures without the aid in evidence of microscopic enlargements or any expert advice is dangerous. 7. To the same effect is the principle laid down in Fakhruddin v.State of Madhya Pradesh2that comparison of 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. 8. A Division Bench of this Court in John v.State of Kerala1 where a similar question arose, while considering the scope and ambit of section 73 of the Evidence Act, held that the Magistrate has no power's at the investigation stage by the Police to issue a direction to the accused to appear before the Court for the purpose of giving specimen signature and handwriting at the request of the police. This decision was followed by the Madras High Court In T. Subbiah v. Ramaswamy2 Under the relevant provisions of the Code of Criminal Procedure, police have been given wide powers of investigation, and it is, no doubt, open to the police to take specimen handwriting and signature of the accused persons during investigation. This decision was followed by the Madras High Court In T. Subbiah v. Ramaswamy2 Under the relevant provisions of the Code of Criminal Procedure, police have been given wide powers of investigation, and it is, no doubt, open to the police to take specimen handwriting and signature of the accused persons during investigation. But Court should not be a party to compel an accused person during the stage of investigation to give specimen handwriting or signature for enabling the police to complete their investigation. 9. In a recent case, State (Delhi Administration) v. Pali Ram3 the Supreme Court held that a sample handwriting taken by Court tinder the second part of section 73 is in substance and reality the same thing as admitted handwriting within the purview of the first part of section 73 also. It was also held that if section 73 is read as a whole with section 45 of the Evidence Act, 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 section 73 if in the interest of justice, it directs an accused person appearing before it, to give his sample handwriting 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 handwriting with the accused's admitted handwriting and to reach its own conclusion with the assistance of an expert. 10. In the case on hand admittedly it was during the stage of investigation that the Court below directed the accused person to appear before the police to give his specimen handwriting and signature. It may also be noted that the direction of that Court given to the accused was not to appear before that Court but to appear before the Police Station and it was for the purpose of completing the investigation. This direction is clearly illegal and has to be quashed. It may also be noted that the direction of that Court given to the accused was not to appear before that Court but to appear before the Police Station and it was for the purpose of completing the investigation. This direction is clearly illegal and has to be quashed. It is astounding to note that the investigating agency thought of taking a specimen signature and handwriting of the accused in this case only in 1979, five years after the commencement of the investigation against him, although they knew, as could be seen from the petition, that a specimen signature and handwriting of the accused is very essential for the investigation. In the result, the petition is allowed and the order impugned is hereby quashed. M.C.M. ----- Petition allowed.