1. This is a reference made by the Second Additional Sessions Judge, Nagpur, recommending that the order of the Special Magistrate, Nagpur dated 18-4-1956, passed in Criminal Case No. 1 of 1949 should be set aside.
2. The circumstances under which that order came to be made may be briefly stated. The non-applicants and several other persons, 48 in number, were prosecuted on charges under sections 120B, 409, 468, 420, 193 and 109 Of the Indian Penal Code for offences alleged to have been committed by them in various places in India between the dates 1-1-45 and 1-4-56. The challan in this much protracted trial was put up before the trying Magistrate, as far back as 16-8-49. At the stage at which the question in dispute arose, the prosecution had examined 232 witnesses before the trying Magistrate who was specially appointed by the former State Government of Madhya Pradesh to try this case. The 222nd witness forthe prosecution was Mr. M.B. Dixit, the handwriting expert on behalf Of the then Government of Madhya Pradesh. After his examination was terminated, the prosecution put in an application on 14-4-1956, which is the genesis of this proceeding. It is necessary to reproduce the material part of this application because the subsequent order which came to be passed is materially explained thereby. After reciting that there were several documents in the case where there were signatures and writings of the different accused which needed proof the application stated :
'Witnesses have been examined in order to prove the signatures and also the hand-writing. Number of such witnesses have deliberately avoided to prove such handwriting and signatures. It has hence become very necessary to secure the attendance of all the accused in Court and then to direct them to write over their signatures as well as writings for the purpose of comparison. And after such signatures and writings are secured, the witness Shri M.B. Dixit may be asked to examine the writings and signatures and then depose about the result of such examination.
This court may be pleased to order the attendance of all accused and then order them to make signatures and also to write some portions of the writings in Issue.'
3. To this application the accused non-applicants took strong objection upon various grounds which they stated in their reply dated 18th April 1956. Apart from grounds of delay and alleged harassment of the accused, they stated that the application was not maintainable under law, was against principles of justice, and that the accused could not be called upon at that stage to sign or write anything in the presence of the Court. They also indicated that the application on behalf of the prosecution was very vague and did not specify whose signatures were required to be made. It seems that before passing an order upon this application the Magistrate must have orally directed the prosecution to state which of the accused were required to furnish their signatures or specimens of their handwriting because on 18th April 1956 a statement was filed on behalf of the prosecution as follows :
'As desired by the Court, the list of the accused whose admitted signatures and handwritings are required for comparison, is as follows.'
Then follow the names of the 55 non-applicants before me.
4. Now, the trying Magistrate allowed the application, holding that it was in the interests of justice to take the specimens of the handwriting of the accused in the Court for comparison and then to seek a further report of the handwriting expert on that point.
5. The learned Additional Sessions Judge has recommended that this order should be set aside for the reason that the power to take such evidence as conferred by Section 73 of the Indian Evidence Act is now controlled by Article 20(3) of the Constitution, and relying upon the case in Rajamuthukoil Pillai v. Periyassami Nadar 1955 2 MLJ 468: AIR 1956 Mad 632, and on the Supreme Court case in M.P. Sharma and Ors. v. Satish Chandra, District Magistrate, Delhi and Ors., : 1978(2)ELT287(SC) , he recommended that the order should be set aside. Before the learned Additional Sessions judge another point was also raised that Section 73 of the Indian Evidence Act cannot be used in the manner in which the trying Magistrate had used it and that the power could not be exercised by the Court itself and not at the Instance of the prosecution. The same point was also pressed before me.
6. The second clause of Section 73 of the Indian Evidence Act runs as follows :
'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.'
7. NOW, it appears to me that in terms this clause limits the power of the Court to directinga person present in Court to write any words orfigures 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 with any words or figures alleged to have been written by such person. The power does not extend to permitting one or the other party before the Court to ask the Court totake such writing for the purpose of its evidence or its own case. There does not appear to havebeen any previous decision directly upon the point, but the recent decision of a Single Judge of the Calcutta High Court in Hiralal Agarwalla v. The State 61 Cal WN 691, supports me in this conclusion. As regards the scope Of Section 73, Mr. Justice Mookerjee remarked in that case that-
'Section 73 of the Indian Evidence Act permits the court to direct the accused person to write words and figures for the purpose of comparison with any words or figures alleged to have been written by such person and such comparison is to be instituted with a view to enabling the court to form its own conclusion and in order that it can do complete justice between party and party.
Section 73 of the Indian Evidence Act 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.'
8. But it was urged on behalf of the State that this was an older which the trying Magistrate passed because he was himself satisfied as to the necessity of taking such evidence in order to enable him to do justice and therefore even upon the view I have taken the order was justified.
9. In my opinion, the circumstances in which that order came to be made strongly militate against any such argument. The trying magistrate has not given a single reason why be considered it necessary to take the specimens in order to enable him to do justice. It is not an irrelevant circumstance that he passed the order only after the application dated, 14-4-56 was made by the prosecution. In the order itself he commenced to consider the objections raised by the accused to that application and stated that he had heard the parties, obviously on the application and the objections raised in opposition to the application. The application in terms invited the court to pass an order directing the accused to write their signatures and specimens of their handwriting before the Court. If there was any doubt in this matter, it is removed by the second statement filed on behalf of the prosecution on the 18th April 1956 stating that as desired by the Court, the prosecution was giving a list of the accused whose admitted, signatures and handwritings were 'required for comparison'. Therefore it is patent that it was the prosecution that was requiring the signatures for comparison and not, the Court. What is more, in the application itself file prosecution stated that, those signatures would be submitted to the scrutiny of their ownhandwriting expert, the witness Dixit, who had already been examined and discharged and in its order the Court granted this request. These circumstances, in my opinion, do not indicate that the Court was independently asking for the handwritings to be taken in order to enable it to do justice but on the contrary they indicate that the order was passed in aid of the prosecution and on their application dated 14-4-1956. That, in my opinion, the trying Magistrate could not do having regard to the provisions of Section 73 of the Indian Evidence Act and the plain meaning of the second clause thereof to which I have already made reference above.
10. A number of cases were relied upon on behalf of the State to explain the scope and effect of Section 73. They are : Emperor v. Nga Tun Hiaing AIR 1924 Rang 115; Golam Rahman v. The King, : AIR1950Cal66 ; Public Prosecutor v. Konda Sami ILR 50 Mad 462: AIR 1927 Mad 696, and two cases of the Calcutta High Court in Emperor V. Kiran Bala Dasi : AIR1926Cal531 , and Kishori v. Emperor : AIR1935Cal308 . Most or these cases have been referred to in : AIR1950Cal66 . Their Lordships of the Calcutta High Court referred to Bazari Hajam v. King Emperor ILR 1 Pat 242: AIR 1922 Pat 13, and stated that that decision was dissented from by the same High Court in Basgit Singh v. Emperor : AIR1928Pat129 , and in Zahuri Sahu V. Emperor : AIR1928Pat103 . With all respect to their Lordships, I have considered both the subsequent Patna cases referred to by them and I am unable to see where AIR 1922 Pat 73, has been dissented from. No doubt, in both the cases Bazari's case (I), was not relied upon, but there is no note of dissent, nor is that decision overruled in any of the two subsequent cases. On the contrary, in : AIR1928Pat103 , Mr. Justice Mullick merely distinguished it. He observed as regards that 'the decision, however, did not turn upon that point, and the question whether it is proper or not to ask the accused to give his thumb impression was not clearly raised.' Therefore, the utmost that the learned Judge must be deemed to have held was that Bazari's case (I) was inapplicable or distinguishable, in : AIR1928Pat129 , the learned Judges referred to Bazari's case (I), and recited the facts therein, but so far as I can see, came to no definite conclusion as to whether it was properly decided or not. On the contrary Jwala Prasad J. preferred to found his decision on the provisions of section 5 of Identification of Prisoners Act (XXXIII of 1920). (See page 312 of 6 Patna) This was also the provision of law relied upon in Zahuri Pahu's case (K).
11. In my opinion, the observation of the Calcutta High Court in Golam Rshman v. The King (E), (cit sup) at page 71 of the report that Bazari v. King Emperor (I), has been dissented from in that court in the two cases cited by them was incorrect. That in itself, in my opinion, considerably shakes the authority of Golam Rahman v. The King (E).
12. Reference was then made to ILR 50 Mad 462: AIR 1927 Mad 696, but that case supports the view taken by me of Section 73. Schwabe C J., observed at page 434:
'It is enough for me to say that I see no objection in law at all to the taking of the accused's thumb-mark, 'if the Judge thinks it relevant at any time':' (underlining (here in ' ') is mine).
No doubt, certain remarks of Bucknill J. in Bazari Hajam's case (I), were dissented from by thelearned Chief Justice, but the dissent was more upon the question that the conviction of an accused cannot be founded upon a comparison of thumb-marks rather than on the question whether such thumb-marks could be taken at any time by the Court at the instance of the prosecution.
13. In : AIR1950Cal66 , reliance was also placed upon a judgment of this Court in Emperor v. Ram Rao ILR 56 Bom 304: AIR 1932 Bom 406. In that case the signatures which were in question were not signatures taken before the Court. They were taken from the accused outside Court by the Sub-Inspector and the Deputy Inspector of Police and therefore there was no doubt about the applicability of Section 73, Indian Evidence Act. All that was urged in that case was that those signatures were inadmissible under Section 73. The Court, however, held theevidence given admissible. The case is distinguishable on its facts. No doubt, at page 409 of the AIR report in the last paragraph of his order Mr. Justice Wadia observed.
'I should only like to add in conclusion that although there is nothing illegal in the accused having been made to write by the police officers of the rank I have referred to especially when the charge against the accused is one of forgery, as there is nothing either in the Criminal Procedure Code or in the City of Bombay Police Act which prohibits it, it would be generally desirable in the interests of the administration of justice in a criminal trial that for the purposes of comparison the accused should be made to write or give his finger impression in Court under the direction of a Magistrate or a Judge.'
The remark was, with respect, wholly obiter. Moreover, the learned Judge did not advert to the question whether the power given under Section73 can be availed of only by the Court for its own purposes or whether it can be availed of by the prosecution also. Emperor v. Ram Rao (L), is, in any Opinion, not an authority for the proposition for which it was relied upon in the Calcutta case, viz., as to the legality of taking specimen thumb impressions in Court.
14. For these reasons, it seems to me that the case in : AIR1950Cal66 , and the other cases relied upon on behalf of the State do not support the contention that Section 73 of the Indian Evidence Act justified a Court in ordering an accused in a criminal trial to furnish specimens of his signatures or of his handwriting because the prosecution requires the Court to do so. I am in 'respectful agreement with the view taken in 61 Cal WN 691, to which I have referred. The power, in my opinion, is limited to only one case, viz. where the Court requires such evidence in order to enable it to come to its own conclusion. I have already held that in the instant case the order cannot possibly be deemed to be passed by the Court for its own purposes but it was obviously passed at the invitation of the prosecution and upon its application. Therefore, it cannot be justified under Section 73 of the Indian Evidence Act.
15. Upon this view, it is unnecessary for me to consider the larger question canvassed before me, as it was also before the learned Additional Sessions Judge, whether in view of Article 20(3) of the Constitution which prohibits compelling a person accused of an offence from being a witness against himself, Section 73 of the Indian Evidence Act could be availed of in the present case.
16. Upon the view I have taken, the reference must be accepted and the order of the trying Magistrate dated 18-4-1956 must be set aside. In fairness to the non-applicants and at the request of their counsel I must state that the other grounds stated in the third paragraph of this order were also pressed before me. I need not, however, consider these grounds because I am satisfied that the order of the trying Magistrate was wrong upon the terms of Section 73 of the Evidence Act. The case will now go back to the Special Magistrate for further proceedings, and early disposal.
17. Reference accepted.