1. This is an appeal from the judgment and sentence passed by the District Magistrate of Pabna upon the appellant Suresh Chandra Sanyal under Section 124A of the Indian Penal Code.
2. He has been convicted of forwarding a certain seditious leaflet called 'Matripuja' to the Captain of the Rangpur School and sentenced to two years' rigorous imprisonment.
3. There is no doubt as to the highly seditious nature of the leaflet and it is fully admitted by the defence that no question arises on this point.
4. We also think on full consideration of the facts that the sending of this leaflbt by post addressed not to a private individual by name but to the representative of a large body of students amounts to publication and that the intention of the sender was undoubtedly to stir up disaffection to the Government among the students of the Rangpur Zillah School.
5. But the case entirely fails on the points of proof of handwriting and we may dispose of it quite shortly on that ground. Two Muhammadan boys, who appear to be on bad terms with the accused, give vague evidence as to their belief that the incriminating documents and others which are used for purposes of comparison are in the handwriting of the accused. Their knowledge of his handwriting is largely based on having seen him write on the black board at school and having overlooked his exercise books. As to this test, their evidence is discrepant and, in our opinion, worthless and as regards the writing in chalk on the black board, the expert witness, Mr. C. Hardless junior, himself says that such a comparison is in his opinion impossible, as it obviously is.
6. The expert was given certain writings found in accused's possession to compare and he has stated that in his opinion all these writings are by one hand. Now, although the writings appear to us to differ very considerably in character even on the points on which Mr. Hardless places most reliance, we are quite prepared to receive his evidence with every respect and might have acted upon it had any document that was either proved or admitted to be in the accused's handwriting been placed in his hands. But in this case, we are met with the curious anomaly that no such document has been used for purposes of comparison.
7. Now, it is settled law that the one thing that is required for the admission of evidence of an expert witness as to handwriting, is that the writing with which the comparison is made should be proved beyond question of doubt to be that of the person alleged.
8. The Statute 28 and 29 Vict., Clause 18, Section 8, lays down in express terms that the comparison by a witness of the disputed writing for the purpose of giving an expert opinion must be with any writing proved to the satisfaction of a Judge to be genuine; see Cresswell v. Jackson (1860) 2 F. & F. 24; Cobbett v. Kilminster (1865) 4 F. & F. 490; and though this condition is not expressly laid down in Section 45 of the Evidence Act, which is only a general section as to the ad missibility of expert evidence, yet, it is clearly indicated in the illustration (c) to the section where the comparison is assumed to be made in all cases with a document which is proved or admitted to have been written by the alleged writer of the document in question.
9. This rule was taken for granted in India in what appears to be the earliest reported case after the passing of the Evidence Act, Phoodee Bibi v. Gobind Chunder Roy 22 W.R, 272 where the Judges, Markby and Romesh Chunder Mitter, say that, under ordinary circumstances, they would assume that the comparison took place in open Court and that a comparison having been made without any objection by the party affected by it, the signature on the vakalatnamah which was used for comparison must have been in fact admitted.
10. But on a finding that this was not so the decision of the lower Appellate Court was reversed and the Judges said that they considered, according to their experience, that a comparison of signatures is a mode of ascertaining the truth, which ought to be used with very great care and caution.
11. It is evident that this is doubly so in a criminal case where a large quantity of apparently very different handwriting is under comparison.
12. The assumption here is that a note-book found in the accused's possession is entirely in his handwriting. Now there is internal evidence in the book itself that it is not and the expert was not even asked to say whether all the writing in this book was by the same hand.
13. Nor is he asked to make any comparison in open Court with proved or admitted handwriting which was then available.
14. It is claimed by learned Counsel for the Crown that the compatison made by the expert, months before when the documents were first discovered and when nobody knew whether they were in the same hand or not, is a strong proof of his impartiality and should give greater weight to his evidence,
15. But, unfortunately, when there is no comparison in open Court before the accused with documents proved or admitted to be in his handwriting, such evidence is iradmissible, and having rfgard to the (sic) and scientific investigations which are now in practice made by handwriting experts by means of photographic enlargements and detailed measurements made out of Court, we must emphasize the necessity for strictly complying with the law as to what has to be done in the Court itself.
16. These preliminary inquiries and scientific researches may be very necessary and very desirable but they cannot be allowed to supersede or in any way take the place of comparison in open Court with proved or admitted writings which alone renders the expert's testimony admissible.
17. To justify our finding on this point, which is, of course, based on wholly independent legal considerations, we may remark that in this case a very remarkable instance of the danger of relying on inspection made out of Court has come to our notice.
18. There is an address copied into the accused's note-book at page 73 in which the word 'Rungpur' twice occurs. This has been greatly relied upon by the expert for comparison with the same word occurring on the envelope Exhibit No. 2 in which the incriminating document was sent. Now, not only is this entry wholly unproved but it appears to us to be an interpolation in the note-book made in a different handwriting to the rest of the page and the last curve of the 'R' is of a wholly different character to that on the envelope, being curved in and rounded instead of outwards as we have written it above and as it appears on the envelope. On the other hand, the unusually elongated tail of the 'g' and the unusually short shaft of the 'p' seem to be labouriously imitated in the note-book from the writing on the envelope and it is obvious that it could be quite possible to put matters before the expert in a private examination which were not in the original document at all and so deceive him into giving evidence in all good faith upon writing which really had no connection with the case.
19. We do not say that this is so in this particular case, but the suspicion that an entry such as this in note-book prima facie arouses, illustrates the danger of substituting that which is not evidence, namely, the expert's private examination of the documents out of Court, for that which the law has, under the safeguards of extreme care and caution, made admissible as evidence on condition that the examination is made in open Court in the presence of the party affected.
20. It is clear that on this ground the finding that the accused either wrote or forwarded by post the incriminating document falls to the ground. That he was in possession of highly seditious literature and that he habitually sent for, purchased and read such literature is certain and may give rise to a strong suspicion that he was engaged in disseminating such pernicious writing among his friends and associates. But he is only one of a secret society in the village of Bera which has been deposed to by the District Superintendent of Police and the publication of this particular missive has not been brought home to him.
21. Whether he could have been arraigned under Section 108, Criminal Procedure Code or under Section 153A, Indian Penal Code, it is not for us to inquire. But we have to consider whether or not there should be a re-trial in this case and we think that having regard to the fact that the accused has been 81/2 months in jail as an under-trial prisoner and as a convict combined, that his conduct, even if it could be shown to be criminal, has been amply punished and that we may hope that he will realise the folly and wickedness of tampering with sedition and as he is young enough to reform and become an useful member of society, that this will be a sufficient warning to him for the future, there is no need for a re-trial.
22. We set aside the conviction and sentence and order the acquittal and release of the accused.