SUPREME COURT JUDGMENTS
SECTIONS 56 – 99 Evidence Act
1. State of UP v. Ram Babu Mishra [1980 SC]
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Case Law on section 73 Evidence Act
State of U.P v. Ram Babu Misra [1980 SC]
The Officer who was investigating into offences under Section 120-B, 420, 468 and 471 Indian Penal Code alleged against respondent Ram Babu Misra moved the Chief Judicial Magistrate to direct the accused to give his specimen writing for the purpose of comparison with certain disputed writings.
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 ?
We may also refer here to Section 5 of the Identification of Prisoners Act, 1920:
“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 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, 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.
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.