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Andhra High Court · body

2002 DIGILAW 1328 (AP)

Bojja Krishna Reddy v. State Of A. P.

2002-11-13

S.R.K.PRASAD

body2002
S. R. K. PRASAD, J. ( 1 ) DURING the course of investigation in Crime No. 21 of 2001 of amangal Police Station, the Circle Inspector of Police, Amangal, filed a memo before the Judicial First Class Magistrate, kalwakurthi, asking for permission to take specimen signature and handwriting of the accused, being petitioner herein. The same has been opposed by the accused on the ground that the police has no right to insist for taking specimen signature in the presence of the Magistrate and sought for dismissal of the petition. Thereafter, the learned magistrate directed the accused to furnish handwriting and specimen signature for comparison before the Court for the purpose of investigation. Aggrieved by the same, the accused has preferred this petition. ( 2 ) IT is mainly contended by the learned Counsel for the petitioner that the court is not seized of the matter and it has no jurisdiction to compel the accused to furnish specimen signature before the court. It is also contended that the order passed by the Magistrate has to be quashed and placed reliance on the following decisions, namely. State of Uttar Pradesh v. Ram Babu Misra, AIR 1980 SC 791 , State (Delhi Administration) v. Pali Ram, AIR 1979 SC 14 and State of Bombay v. Kathi kalu Oghad, AIR 1961 SC 1808 . ( 3 ) THE learned Public Prosecutor draws my attention to the Identification of prisoners Act 1920 and contends that the investigating officer can take finger impressions and foot impressions under section 4 of the said Act. It is also contended that it is not a fit case where the proceedings can be quashed, since the investigating officer has right to take specimen signatures and thumb impressions etc. ( 4 ) ADVERTING to the said contentions, the short point that falls for consideration is whether the police can invoke the jurisdiction of the Magistrate during investigation for taking specimen signatures and handwritings. Section 2 (a) of the Identification of Prisoners act of 1920 defines measurements which include finger impressions and foot impressions. Section 4 of the said Act deals with taking of measurements etc. , of non-convicted persons. Section 2 (a) of the Identification of Prisoners act of 1920 defines measurements which include finger impressions and foot impressions. Section 4 of the said Act deals with taking of measurements etc. , of non-convicted persons. It reads as follows: (4) "any person who has been arrested in connection with an offence punishable with rigorous imprisonment for a term of one year or upwards shall, if so required by a police Officer, allow his measurements to be taken in the prescribed manner. " ( 5 ) IT is clear that the police are entitled to take measurements, which include finger impressions and foot impressions before the magistrate during investigation. It means the investigating officer, as a matter of right, invokes the provisions, which vests jurisdiction in the Magistrate of First Class and obtain measurements including photographs as can be seen from Sections 4 and 5 of the said Act. ( 6 ) THE Supreme Court in State (Delhi Administration) v. Pali Ram (supra), has observed at paras 24 and 25 as follows:"24. A sample writing taken by the Court under the second 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 he 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. 25. Section 73 is therefore to be read as a whole, in the light of Section 45. The two paragraphs of the Section are not mutually exclusive. They are complementary to each other. 25. 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. "the relevant portions at paras 27, 28, 29, 30 and 32 read as follows:"27. 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 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 predicated 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. 28. In addition to Section 73, there are two other provisions resting on the same principle, namely, Section 165, Evidence Act and section 540, Cr. The argument raised before the High Court was thus purely speculative. 28. 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 wide 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. 29. 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. 30. It is not the province of the expert to act as Judge or Jury. As rightly pointed out in titli v. Jones, ILR 56 All 428 = AIR 1934 all 272, 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 with the proved or admitted writing with regard to the points of similarity and dissimilarity in the two sets of writings. The Handwriting expert s function is to opine after a scientific comparison of the disputed writing 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. 32. 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 seized 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 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. " ( 7 ) IT is clear from the principles laid down in the aforesaid decision the Court has got ample power to direct the accused to be present in Court before sample writing to enable the same to be compared by handwriting Expert. " ( 7 ) IT is clear from the principles laid down in the aforesaid decision the Court has got ample power to direct the accused to be present in Court before sample writing to enable the same to be compared by handwriting Expert. ( 8 ) IT is also clearly stated in State of Uttar Pradesh v. Rambabu (supra) that the court cannot take specimen writings at the stage of investigation as can be seen from the following paras 2 and 4, which read as follows:"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 Section 73 of the Evidence act enables the Magistrate to give such a direction even when the case is still under investigation. 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 . 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 p oceeding 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 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?" ( 9 ) IN State of Bombay v. Kathi Kalu Oghad (supra) the Supreme Court had an occasion to deal with the alleged compulsion at the time giving information by the accused. The relevant portion at paras 9, 10 and 11 reads as follows:" (9) This Court did not accept the contention at the guarantee against testimonial compulsion to be confined to oral testimony at the witness stand when standing trial for an offence. The guarantee was, thus, held to include not only oral testimony given in court or out of Court, but also to statements in writing which incriminated the maker when figuring as an accused person. After having heard elaborate arguments for and against the views thus expressed by this Court after full deliberation, we do not find any good reasons for departing from those views. After having heard elaborate arguments for and against the views thus expressed by this Court after full deliberation, we do not find any good reasons for departing from those views. But the Court went on to observe that to be a witness means to furnish evidence and includes not only oral testimony or statements in writing of the accused but also production of a thing or of evidence by other modes. It may be that this Court did not intend to lay down certainly it was not under discussion of the Court as a point directly arising for decision that calling upon a person accused of an offence to give his thumb impression, his impression of palm or fingers or of sample handwriting or signature comes within the ambit of, to be a witness which has been equated to to furnish evidence . Whether or not this Court intended to lay down the rule of law in those wide terms has been the subject matter of decisions, in the different high Courts in this country. Those decisions are, by no means, uniform, and conflicting views have been expressed even in the same high Court on different occasions. It will serve no useful purpose to examine those decisions in detail. It is enough to point out that the most recent decision, to which our attention was called, is of a Full Bench of the Kerala High Court in the case of State of kerala v. K. K. Sankaran Nair, (AIR 1960 kerala 392 (FB ). In that case, Ansari C. J. , who delivered the opinion of the Court, has made reference to and examined in detail the pronouncements of the different High Courts. Ultimately he came to the conclusion that the decision of this Court in Sharma s case ( AIR 1954 SC 300 ) also covered the case of a specimen handwriting given by an accused person, under compulsion. (10) To be a witness may be equivalent to furnishing evidence in the sense of making oral or written statements, but not in the larger sense of the expression so as to include giving of thumb impression or impression of palm or foot or fingers or specimen writing or exposing a part of the body by an accused person for purpose of identification. furnishing evidence in the latter sense could not have been within the contemplation of the Constitution-makers for the simple reason that though they may have intended to protect an accused person from the hazards of self-incrimination, in the light of the English Law on the subject they could not have intended to put obstacles in the way of efficient and effective investigation into crime and of bringing criminals to justice. The taking of impressions or parts of the body of an accused person very often becomes necessary to help the investigation of a crime, it is as much necessary to protect an accused person against being compelled to incriminate himself, as to arm the agents of law and the law Courts with legitimate powers to bring offenders to justice. Furthermore it must be assumed that the constitution-makers were aware of the existing law, for example, Section 3 of the evidence Act or Sections 5 and 6 of the identification of Prisoners Act (XXXIII of 1920 ). Section 5 authorises a Magistrate to direct any person to allow his measurements or photographs to be taken, if he is satisfied that it is expedient for the purposes of any investigation or proceeding under the code of Criminal Procedure to do so. measurements include finger impressions and foot-print impressions. If any such person who is directed by a Magistrate, under section 5 of the Act, to allow his measurements or photographs to be taken resists or refuses to allow the taking of the measurements or photographs, it has been declared lawful by Section 6 to use all necessary means to secure the taking of the required measurements or photographs. Similarly, Section 73 of the Evidence Act authorises the Court to permit the taking of finger impression or a specimen handwriting or signature of a person present in Court, if necessary for the purpose of comparison. (11) The matter may be looked at from another point of view. The giving of finger impression or of specimen signature or of handwriting, strictly speaking, is not "to be a witness". to be a witness means imparting knowledge in respect of relevant fact, by means of oral statements or statements in writing, by a person who has personal knowledge of the facts to be communicated to a Court or to a person holding an enquiry or investigation. to be a witness means imparting knowledge in respect of relevant fact, by means of oral statements or statements in writing, by a person who has personal knowledge of the facts to be communicated to a Court or to a person holding an enquiry or investigation. A person is said to be a witness, to a certain state of facts which has to be determined by a Court or authority authorised to come to a decision, by testifying to what he has seen, or something he has heard which is capable of being heard and is not hit by the rule excluding hearsay or giving his opinion, as an expert, in respect of matters in controversy. Evidence has been classified by text writers into three categories, namely, (1) oral testimony; (2) evidence furnished by documents; and (3) material evidence. We have already indicated that we are in agreement with the Full Court decision in Sharma s case ( AIR 1954 SC 300 ) that the prohibition in clause (3) of article 20 covers not only oral testimony given by a person accused of an offence but also his written statements which may have a bearing on the controversy with reference to the charge against him. The accused may have documentary evidence In his possession, which may throw some light on the controversy. If it is a document, which is not his statement conveying his personal knowledge relating to the charge against him, he may be called upon by the Court to produce that document in accordance with the provisions of Section 139 of the Evidence act, which, in terms, provides that a person may be summoned to produce a document in his possession or power and that he does not become a witness by the mere fact that he has produced it and therefore, he cannot be cross-examined. Of course, he can be cross-examined if he is called as a witness who has made statements conveying his personal knowledge by reference to the contents of the document or if he has given his statements in Court otherwise than by reference to the contents of the documents. In our opinion, therefore, the observations of this Court in Sharma s case (supra) that section 139 of the Evidence Act has no bearing on the connotation of the word witness is not entirely well-founded in law. In our opinion, therefore, the observations of this Court in Sharma s case (supra) that section 139 of the Evidence Act has no bearing on the connotation of the word witness is not entirely well-founded in law. It is well-established that clause (3) of article 20 is directed against self-incrimination by an accused person. Self-incrimination must mean conveying information based upon the personal knowledge of the person giving the information and cannot include merely the mechanical process of producing documents in Court which may throw a light on any of the points in controversy, but which do not contain any statement of the accused based on his personal knowledge. For example, the accused person may be in possession of a document which is in his writing or which contains his signature or his thumb impression. The production of such a document, with a view to comparison of the writing or the signature or the impression, is not the statement of an accused person, which can be said to be of the nature of a personal testimony. When an accused person is called upon by the Court or any other authority holding an investigation to give his finger impression or signature or a specimen of his nandwriting, he is not giving any testimony of the nature of a personal testimony . The giving of a personal testimony must depend upon his volition. He can make any kind of statement or may reiu to make any statement. But his finger imnpressions or his handwriting, in spite of efforts at concealing the true nature of it by dissimulation cannot, change their intrinsic character. Thus, the giving of finger impressions or of specimen writing or of signatures by an accused person, though it may amount to furnishing evidence in the larger sense, is not included within the expression to be a witness . " ( 10 ) THE following principles emerge en examination of the aforesaid decisions. Firstly, the Magistrate cannot direct an accused person to provide specimen signature or handwriting during investigation. Secondly, the Magistrate has got jurisdiction to direct the accused to furnish the specimen signature or handwriting for the purpose of comparison after the Court seized of the matter. " ( 10 ) THE following principles emerge en examination of the aforesaid decisions. Firstly, the Magistrate cannot direct an accused person to provide specimen signature or handwriting during investigation. Secondly, the Magistrate has got jurisdiction to direct the accused to furnish the specimen signature or handwriting for the purpose of comparison after the Court seized of the matter. Thirdly, the investigating officer has every right to invoke the jurisdiction of the magistrate to compel a person to give measurements, namely thumb impressions, foot impressions and photographs by virtue of powers vested under Section 4 of the identification of Prisoners Act of 1920. ( 11 ) COMING to the facts of this case, the police cannot direct the accused to provide handwriting for the purpose of comparison. It can invoke the jurisdiction of the Magistrate for providing finger impressions and foot impressions. In fact, the Magistrate has directed in this case to provide specimen signature, which is beyond the jurisdiction. The Supreme Court has noticed the lacunae and observed that the statute requires amendments. In spite of that, the Government has not moved its little finger to aid the investigating officer. The observations are made as long back as in 1980. We are now in 2002. Still, there is no movement in the investigating officers to seek for necessary amendments to the statute or the Legislature has not made an attempt to follow the instructions of the Supreme court. I once again reiterate that it is high time that the Government has to pass necessary amendments or bring suitable legislation on analogy of Section 5 of the identification of Prisoners Act, 1920 to provide for the investigating officer the power to issue directions for a person to give specimen signatures and handwriting. I hope and trust that after long lapse of so many years and after seeing the reminder by this Court, the Government will take initiative in bringing about necessary amendments, which will strengthen and aid the investigating officer during investigation. I also state that taking photographs, thumb impressions, or foot impressions are made valid, whereas only-handwriting and specimen signature are not permitted to be taken. The restriction has no legal basis for the fact that the entire photographs are taken; thumb impression is taken and why specimen signatures cannot be taken. I also state that taking photographs, thumb impressions, or foot impressions are made valid, whereas only-handwriting and specimen signature are not permitted to be taken. The restriction has no legal basis for the fact that the entire photographs are taken; thumb impression is taken and why specimen signatures cannot be taken. In that view of the matter, it is left for making suitable legislation by the Legislature or parliament. Hence, I once again reiterate the suggestion made by the Supreme Court in state of Uttar Pradesh v. Ram Babu Misra (supra) for making necessary suitable legislation. I also state that there is no bar for investigating officer obtaining handwriting of the accused and also taking specimen signature and sending the same to the expert for the purpose of investigation. Hence, i agree with the contention of the learned counsel for the petitioner that the order passed by the Magistrate is liable to be quashed, as it is not in accordance with the principles laid down by the Supreme court as well as interpretation put on to section 73 and Section 45 of the Evidence act. Accordingly, I quash the proceedings. At this stage, the learned Public Prosecutor makes a request that he may be given option to renew his request for taking thumb impressions once again during the trial. The investigating officer is always at liberty to make a request as per law at any time during trial provided it does not amount to making further investigation. The Petition is, accordingly allowed.