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2001 DIGILAW 1148 (ALL)

GURU PAL SINGH v. STATE OF UTTAR PRADESH

2001-12-07

R.K.DASH

body2001
R. K. DASH, J. ( 1 ) A short, but interesting question, that arises for consideration is whether the Court can compel an accused to give his specimen writings in order to facilitate the police to collect evidence in course of investigation by comparing the same with disputed writings. ( 2 ) THE petitioner has been arraigned as an accused in case crime No. 291 of 2000, under Secs. 364-A/392/411/368/120-B, I. P. C. , Police Station Banda, district Shahjahanpur The prosecution case in short is that on 19-12-2000 at about 7 a. m. Virendra Kumar, brother of the informant Ashok Kumar, accompanied by one Srikrishna left for the temple on a motorcycle to perform Puja. On the way, three persons kidnapped him in a Jeep and while going, they handed over a letter written in Gurmukhi language to Srikrishna in which a demand of rupees ten lac was made as ransom. According to the prosecution, the said letter was written by the present petitioner. In order to make use of the said letter as evidence against the petitioner, the police, making investigation into the said case moved the learned Additional Chief Judicial Magistrate, III, Shahjahanpur to summon the petitioner for obtaining his specimen writings for comparison with the said letter. This prayer was objected to by the petitioner. Learned Magistrate, by order dated 13-3-2001, copy whereof at Annexure 10 allowed the prayer and directed the petitioner to appear before him on a date to give his specimen writings as required by the police for comparison. Assailing the correctness of the said order, petitioner has approached this Court by filing the present petition. ( 3 ) DIFFERENT provisions are enumerated in the Code of Criminal Procedure with regard to the powers of the police to investigate into cognizable offences. During investigation the police in certain matters takes the help of the Magistrate to collect evidence in order to ascertain the involvement of accused with the crime, such as, holding of test identification parade, recording of the confessional statement of the accused and the statement of the witnesses under Section 164 of the Code of Criminal Procedure. ( 4 ) THERE is, however, no statutory provision enabling the police to move Magistrate for a direction to the accused to give his specimen writings for the purpose of comparison with the disputed writings when the case is at the stage of investigation. ( 4 ) THERE is, however, no statutory provision enabling the police to move Magistrate for a direction to the accused to give his specimen writings for the purpose of comparison with the disputed writings when the case is at the stage of investigation. Nowadays offences like cheating, forgery, abduction for ransom etc. are on the rise and in most of such cases, letter or document alleged to have been written by the accused is a material piece of evidence to bring home the charge against him. Unless the police gets such letter or document examined by the handwritings expert with the admitted writings, it may be difficult to file charge-sheet with scanty evidence. ( 5 ) THE only provision with the aid of which the Court can direct for examination of the disputed writings with the admitted writings is Section 73 of the Evidence Act. For better appreciation, the aforesaid provision is reproduced hereunder :"73. Comparison of signature, writing or seal with others admitted or proved - 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. " ( 6 ) THE expression "for the purpose of enabling the Court to compare" appearing in second paragraph of the aforesaid section indicates that the prerequisite for exercise of the power to direct a person to give his specimen writings is that there must be some proceeding pending in which the Court feels it necessary to compare the specimen writings with the disputed writings. In other words, Section 73 of the Evidence Act is an enabling provision which helps the Court to get the disputed writings examined by an expert with the admitted writings in order to ascertain whether the accused was the author of the disputed document. In other words, Section 73 of the Evidence Act is an enabling provision which helps the Court to get the disputed writings examined by an expert with the admitted writings in order to ascertain whether the accused was the author of the disputed document. Therefore, when a case is under investigation, the Court lacks jurisdiction to give direction to the accused in exercise of powers under Section 73 to give his specimen writings for comparison by the investigating officer. In absence of any legislative mandate the police cannot use the Court as a means to collect evidence to make use of the same in the course of trial. ( 7 ) SIMILAR question, as in the present case, arose for consideration in the case of State of U. P. v. Ram Babu Misra, 1980 (17) All Cric 174 : (1980 All LJ 350 ). In the said case, prayer was made by the investigating officer to direct the accused to give his specimen writings for the purpose of comparison with certain disputed writings. The learned Magistrate rejected the said prayer observing that he had no such power since the case is under investigation. The view taken by the Magistrate was upheld by this Court. Aggrieved thereby, the State preferred appeal to the Supreme Court. Interpreting Section 73 of the Evidence Act, the Court held that if a case is still under investigation there is no proceeding before the Court in which or as a consequence of which it might be necessary to compare the writings. The language used in the section does not permit a Court to give a direction to the accused to give specimen writings anticipating the necessity for comparison in a proceeding which may later be instituted in the Court. The Court made reference to Section 5 of Identification of Prisoners Act, 1920 which empowers the Magistrate to direct a person to allow his measurements or photogrpah to be taken for the purpose of investigation. Similar provision being not there for obtaining writings or signatures of an accused during investigation either in the Code of Criminal Procedure or in any other statute, the Court suggested for suitable legislation on the analogy of Section 5 of the aforesaid Act. The said suggestion, it is submitted has been kept in cold storage and no anxiety has been shown to bring out any legislation. The said suggestion, it is submitted has been kept in cold storage and no anxiety has been shown to bring out any legislation. ( 8 ) SIMILAR question also arose in later decision in the cases of Sukhvinder Singh v. State of Punjab (1994) 5 SCC 152 and Amarjit Singh v. State of U. P. (1998) 8 SCC 613 . ( 9 ) IN Sukhvinder Singh (supra) the Court held that Section 73 of the Evidence Act cannot be made use of for collecting specimen writings during investigation and recourse to it can be had only when the Court before which the enquiry or the trial of a proceedings is pending requires the writings for the purpose of enabling it for comparison. In other words, a Court which is not holding any enquiry under the Code of Criminal Procedure or conducting the trial is not permitted to issue any direction as contained in the second paragraph of Section 73. Having held thus, the Court observed that the writing obtained from the appellant could not be made use of during the trial and the report of the handwriting expert is rendered of no consequence at all and cannot be used against him to connect him with the crime. ( 10 ) ON the same line is the decision rendered in Amarjit Singh (supra ). ( 11 ) IN view of the settled position of law as laid down by the Supreme Court in the decision referred to above, I would hold that order dated 13-3-2000 passed by the learned Additional Chief Judicial Magistrate II, Shahjahanpur directing the petitioner to give his specimen signature is contrary to law and consequently the same is quashed. In the result criminal miscellaneous application is allowed. Application allowed. .