# STATE (DELHI ADMINISTRATION) v. PALI RAM

- **Citation:** [1979] 1 S.C.R. 931
- **Court:** Supreme Court of India
- **Decided:** 1978-09-26
- **Case number:** Criminal Appeal No. 336 of 1976
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-delhi-administration-v-pali-ram-7549
- **Pages:** 16

## Headnote

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•
931
STATE (DELHI ADMINISTRATION)
v.
PALI RAM
September 26, 1978
£R. S. SARKARIA AND 0. CJIINNAPPA REDDY, JJ.J
Indian Evidence Act, 1872-Section 73-Scope of.
Section 73 of the Indian ENidence Act provides that in order to asceftair.
whether a writing is that of the person by whom it purports to have been
written any writing admitted or proved to the satisfaction of the court to have
A
B
been written by that person may be compared with the one which is to be
proved, although that signature, writing has not been produced or proved for
C
any other purpose. Para 2 of the section provides that the court may direct
any person pre.sent in court to v.·rite in words or figures for the purpose of
·enabling the court to compare words or figures alleged to have been written
by such person.
In the course of criminal proceedings before a piagistrate the prosecution
alleged that one of the basic documents which was of vital
importance
to
D
establish the case against the accused was in the handwriting Of the accused
but it could not be compared by the handwriting expert with any specimen
writing of the accused because the latter avoided to· give any specimen writing ·and 'that in the interest of justice the court should direct him to give his
specimen writing. Exercising the court's power under s. 73 of the Evidence
Act the Magistrate directed the accused to give his specimen handwriting to
have it examined by a handwriting expert.
E
Revision preferred by the accused was dismissed by the Sessions Judge.
The l'.ligh Court, in the revision petition filed by the accused.~ held that . the
only purpose for which a court may direct any person present in the court
(including the accused person) to write words is to enable the court to compare the words and figures with any iwords and figures alleged to have been
written by such person but where the purpose is to enable any of the parties
to have the words so written compared from a handwriting expert
of that
party, the second paragraph of s. 73 would have no application. The High
Court therefore held that the order of the Magistrate was beyond the scope of
s. 73.
AJlowing the appeal,
HELD : The Magistrate did not act beyond the scope of s. 73 of
the
Evidence Act or in a manner which is not legal.
I. The two paragraphs of s. 73 are not mutually exclusive, but complementary to each other.
The sample writing taken by the Court under the
second paragraph of s. 73 is in substance and reality,
the same
thing as
"'admitted writing" within the purview of the first paragraph of s. 73.
The
first paragraph does not specifically say by whom such comparison may be
made but such comparison may be made by 11 handwriting expert (s. 45), or
by one familiar with the handwriting of the person concerned (s. 47) or by
the court, The section should be read as " whole in the light of s. 45. Thus
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932
SUPREME COURT REPORTS
[1979] 1 s.c.R.
read it is clear that a court holding an enquiry under the Code of Criminal
Procedure in respect of. en offence triable by itself or by the Court of Session,
does not exceed its powers under s. 73 if in the interests of justice it directs
an accused person to give his sample writing to enable the same to be com·
pared by a handwriting expert chosen or approved by the court, it is imnlater,ial whether the expert's name was suggested by the prosecution or the defence
because even in adopting this course the purpose is to enab1e the court to compare
the disputed writing with his admitted writing and to reach its own conclusion'
with the assistance of an expert. [942G-H)
In the instant case the circumstances which weighed with the Magistrate
in making the order, included the contumacious conduct of the accused and
the resiling of the material witness. lt was apparent from the record that the
accused was playing the game of hide and seek with the process of law. The
C
Magistrate therefore had good reason to hold that the assistance of the Government Expert was essential in the inte

## Text

_Characters 0–37,751 of 41,154. This is a partial read: ask again with offset=37751 for what follows._

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•
931
STATE (DELHI ADMINISTRATION)
v.
PALI RAM
September 26, 1978
£R. S. SARKARIA AND 0. CJIINNAPPA REDDY, JJ.J
Indian Evidence Act, 1872-Section 73-Scope of.
Section 73 of the Indian ENidence Act provides that in order to asceftair.
whether a writing is that of the person by whom it purports to have been
written any writing admitted or proved to the satisfaction of the court to have
A
B
been written by that person may be compared with the one which is to be
proved, although that signature, writing has not been produced or proved for
C
any other purpose. Para 2 of the section provides that the court may direct
any person pre.sent in court to v.·rite in words or figures for the purpose of
·enabling the court to compare words or figures alleged to have been written
by such person.
In the course of criminal proceedings before a piagistrate the prosecution
alleged that one of the basic documents which was of vital
importance
to
D
establish the case against the accused was in the handwriting Of the accused
but it could not be compared by the handwriting expert with any specimen
writing of the accused because the latter avoided to· give any specimen writing ·and 'that in the interest of justice the court should direct him to give his
specimen writing. Exercising the court's power under s. 73 of the Evidence
Act the Magistrate directed the accused to give his specimen handwriting to
have it examined by a handwriting expert.
E
Revision preferred by the accused was dismissed by the Sessions Judge.
The l'.ligh Court, in the revision petition filed by the accused.~ held that . the
only purpose for which a court may direct any person present in the court
(including the accused person) to write words is to enable the court to compare the words and figures with any iwords and figures alleged to have been
written by such person but where the purpose is to enable any of the parties
to have the words so written compared from a handwriting expert
of that
party, the second paragraph of s. 73 would have no application. The High
Court therefore held that the order of the Magistrate was beyond the scope of
s. 73.
AJlowing the appeal,
HELD : The Magistrate did not act beyond the scope of s. 73 of
the
Evidence Act or in a manner which is not legal.
I. The two paragraphs of s. 73 are not mutually exclusive, but complementary to each other.
The sample writing taken by the Court under the
second paragraph of s. 73 is in substance and reality,
the same
thing as
"'admitted writing" within the purview of the first paragraph of s. 73.
The
first paragraph does not specifically say by whom such comparison may be
made but such comparison may be made by 11 handwriting expert (s. 45), or
by one familiar with the handwriting of the person concerned (s. 47) or by
the court, The section should be read as " whole in the light of s. 45. Thus
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SUPREME COURT REPORTS
[1979] 1 s.c.R.
read it is clear that a court holding an enquiry under the Code of Criminal
Procedure in respect of. en offence triable by itself or by the Court of Session,
does not exceed its powers under s. 73 if in the interests of justice it directs
an accused person to give his sample writing to enable the same to be com·
pared by a handwriting expert chosen or approved by the court, it is imnlater,ial whether the expert's name was suggested by the prosecution or the defence
because even in adopting this course the purpose is to enab1e the court to compare
the disputed writing with his admitted writing and to reach its own conclusion'
with the assistance of an expert. [942G-H)
In the instant case the circumstances which weighed with the Magistrate
in making the order, included the contumacious conduct of the accused and
the resiling of the material witness. lt was apparent from the record that the
accused was playing the game of hide and seek with the process of law. The
C
Magistrate therefore had good reason to hold that the assistance of the Government Expert was essential in the interests of justice to enable the Magis~
trate to compare the sample with 'ilie questioned writing with expert assistance.
Although the specimen handwriting was sought to be used for comparison by
the expert the ultimate purpose was to .enable the court to compare that
specimen writing with the disputed one. [943E-FJ
D
2. Tue fact that the Magistrate's order ·might result in filling up of loop··
holes in the prosecution case, as a1leged by the accused, is a purely subsidiary
factor which must give way to the paramount consideration of doing justice.
[9441!]
3. Moreover, s. 165 of the Evidence Act and s. 540 of
Cr.P.C.
1898
invest the court with a wide discretion to call and examine anyone as a witness if the court is bona -fide of opinion that his examination is necessary for
E
a just decision of the case. In passing the order the Magistrate was "'cll with:1n
the bounds of this principle.
[944D]
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4. In the matter of comparing the handwriting the judge should not tae<e
upon himself the Wik of comparing the admitted writing
with the disput"1
one to find out v,rhethe1 the one agrees, with other.
A prudent course is to
obtaiu the opinion and assistance of an expert. [944F]
5. So far as the handwriting expert is concerned his real function is to put
before the court all the materials together with the reasons which induce him
to come to a conclusion. It is for the Court and the jury to form a. judgrr1ent
by their own observation of the materials. On receiving expert evidence the
court should compare the handwriting with its own eyes for a proper ass·~~
ment of the value of the total evidence. It is, therefore, not wrong to say that·
when a court seised of a case directs the acCused person to give his specifnen
writing such direction is for the purpose of enabling the court to compare the
writing so written with the writing alleged to have been written
by :mch
person within the contemplation of s. 73. [944G-H]
Fakltruddin v. State of Madhya Pradesh, AIR 1967 5C 1326 referrec!l to.
6. Even where no expert is cited or examined by ·either party, the court
may i~ the interests of justice call an expert witness, allow him to cou1pare
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 ~
clusion. [946A-1!]
STATE v. PALI RAM (Sarkaria, l.)
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 336
of 1976.
Appeal by Special Leave from the Judgment and Order dated
18-2-1975 of the Delhi High Court in Cr!.
Revision No. 46 of
1973.
H. S. Marwah and R. N. Sachthey for the Appellants.
D. B. Vohra for the Respondent.
Th·~ Judgment of the Court was delivered by
SARKARIA, J .-This appeal by special leave, directed
against
a
judgment dated February 18, 1975, of the High Court of Delhi, involves a question with regard to the scope of the powers of Court under
Section 73, Evidence Act to direct an accused person to give his
specimen writings. It arises out of these circumstances :
Pali Ram, respondent along with Har Narain and 8 others was
challaned by the police in respect of offences under Section 120B/
420/477A/467/471, Penal Code, before the Additional Chief
Judicial Magistrate, Delhi.
The case being exclusively triable by the
Court of ~ssiro, the Magistrate started inquiry proceedings under
Section 207 A, Chapter XVIII of the Code of Criminal Procedure,
1898.
After most of the prosecution evidence had been recorded,
an application dated December 11, 1970, was submitted on behalf
of the prosecution. It was stated in the application that one of the
basic documents (Ex. PW. 21/F) tendered in evidence was, according to the prosecution, in the handwriting of Pali Ram :
but 1t
could 'not be got compared by a handwriting expert with any specimen writing of Pali Ram because the latter was absconding and had
avoided to give any specimen writing.
It was further stated that
this document is a very vital link to establish the case against the
accused and IT! the interest of justice, the Court should direct Pali
Ram accused to give his specimen writings, and forward
the same
along with the origiual documents marked P. 21/F to the Governmeut Expert of Questioned Documents "with a view to have
the
necessary comparison".
This application was strenuously opposed
on behalf of the accused.
After hearing arguments, the Magistrate
on May 20, 1972, allowed that applicatiro.
Since the construction
of that order ha~ a bearing on the problem before us, it will be
appropriate to extract its material portion, in extenso, as under :-
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"It was argued on behalf of Pali Ram accused. . . . . .
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that the power of the Court is limited to the extent only
where the Court itself is of the view that it is necessary
7-699SCI/78
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SUPREME COURT REPORTS
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for its own purpose to take such writing in order to compare the words or figures so written wi'h any
word
or
figure alleged to hav•o been written by such person and that
this power does not extend to permitting one or the other
parcy before the Court to take such writing for the purpose
of its evid•;once or its ow·n use.
A.LR.
1957
Born. 207
was c.ited in this connection.
It was further
argued that
Section 73 Indian Evidence Act did not e·;ititle the Court
to assist a party to the proceedings. lt entitled the Court
only to assist itself for a proper conclusion in the intere~t
of justice.
I have applied this test to the
present
case
before me.
It is true that here it is the prosecution which
has made this request.
But the observation contained in
this ruling ca::mot be stretched to the extent, the defence
wants me to do it.
Ex. PW. 21/F was stated by Tekchand to be in Paliram's
handwriting
when
he
made
statemen: before the Police.
In his statement during committal proceedings he resilcd from it.
This document
is
undoubtedly a vita; link.
It has an important bearing on
the case as Pali Ram himself happe·ns to be an accused.
In this peculiar situation it becomes
necessary
to
take
recourse to the Court's power under Section 73
in
the
interest of justice and to ask Pali Ram to give specimen
handwriting (to have it exami11ed by handwriting expert)
and then to decide about it.
Under these circumstances,
I think it fit to allow the request of the prosecu:im in this
regard."
(emphasis supplied)
F
Feeling aggrkved by this Order, Pali Ram preferred a revision to
the Court of Session.
The revision was dismissed by the
learned
Additional Sessions Judge on December 7,
1972.
Against
this
dismissal, Pali Ram preferred a revision petition (C.R. No. 46 oE
1973) in the High Court.
The revision petition first came up for
hearing before R. N. Agarwal J, who felt that the case involved an
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important questio·a of law which was not free from difficulty.
H.,
therefore referred it to a larger Bench, although he did not formula!•'
any specific question.
•
The matter then camo up for consideration before a
Division
Bench consisting of Jagjit Singh and R. N. Agarwal, JJ.
The Divin
sion Bench gathered from the referring order "that the matter requiring consideratio·a is, whether the second paragraph of Section 73 of
the Indian Evidence Act empowers a Court to direct an accused to
...
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f; <• >J>i+'·-'---~~'i
., ........ ~.,,;. ..
STATE v. PALI RAM (Sarkaria, l.)
935
wri!te in words or figures by way of specimen writings for enabling
the prosecution to send th·~ specimen writing to a handwriting expert
•
for purposes of comparison with the writing of a disputed docume:it
1 Alleged to be in the handwriting of that accused person."
After referring to certain decisions, Jagjit Singh J., who delivered
; :the judgment of the Bench, answered the question posed, thus :
"There is no ambiguity or confusion in the phraseology used in the seco:id paragraph of the Section.
Therefore, the only purpose for which a Court may direct any
person present in the Court (including an accused person)
to write words or figures is to enable the Court to compare
the words and figures so written with any words or figures
alleged to have been written by .such person.
Where
the
purpose of directing a person present in Court to write any
words or figures is not to enable the Court to compare the
words or figures with any words or figures alleged to have
been written by such person but is to enable any of the parties
to have the words or figures so written compared from
a
hand-writing expert of that party, the second paragraph of
Section 73 would have no application."
In the resnlt, the High Court held that "the order of the learned
Additional Chief Judicial Magistrate dated May 20, !972, insofar
as it related to disposal of the application filed o:i
December 11,
1978, was not legal and was beyond the scope of Section 73 of the
Evidence Act.
To that extent, the said order and the order of the
Additional Sessions Judge dated December 7, 1972, by which the
• revision was dismissed, are set aside and the revision filed by Pali
. Ram is accepted".
'""'
Hence, this appeal by the State (Delhi Administration).
We have heard Shri Marwah, appearing for the appellant-State.
> None has appeared on behalf of the respondent, despite notice.
In the course of his elaborate arguments,
Shri
Marwah
has
• tried to make out these points : (i) The expression
"any person"
in Section 73 includes a person accused of an offeno~.
(ii) The
word "court" in Section 73 includes the Court of the Magistrate
-I.
competent to try the offence or hold an enquiry in respect thereof
against such accused person under the Code of Criminal Procedure.
(iii) Section 73 does not offend Article 20(3) of the Constitutiou,
because by giving a direction to an accused person
to
give
his
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936
SUPREME COURT REPORTS
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specime·n handwriting the Court does not compel that
accused "to
be a witness against himself''.
State of Bombay v.
Kathi Kalu · ~
Oghad(I) has been relied upon.
(iv) There -is nothing in Section 73
which prohibits the Court from sending the specimen writing obtain· ~
ed by it from the accused to a handwriting expert for opinion after
comparison of the same by him with the disputed writing, even if
that expert happens to be the Government Expert of
Question:d .-
Documents.
.A court is fully competent under Section 73, to make
an order directing the accused to write down words or figures if the
ultimate purpose of obtaining such specimen writing is to enable the: --...
Court trying the case, or inqniring into it, to compare that specimen
writing with the disputed one to reach its own conclusion, notwith· Y
standing the fact that, in the first instance, the Court
thinks
it
necessary in the interest of justice to send that specimen writing
•
together with the disputed one, to an . expert to have the
advantage
of his opinion and assistance.
(v) The specimen writings taken :from
an accused person by the Court under the second paragraph of Section 73 are, to all intents and purposes, "admitted writings" within
the purview of the first paragraph of the Section which read with
illustration (c) of Section 45, Evidence Act, clearly indicates that
isuch specimen writings can legally be used for comparison with the
disputed writing by a handwriting expert also, irrespective of whether
such expert is examined as a witness by any Df the parties, or as
a Court witness by the Court acting suo motu or on being moved
by the prosecution or the defence.
(vi) The Government Expen of
Questioned Documents is supposed to be a high officer of integri'y
who is not under the influence of the investigating officer and he is
expected to give his opinion truthfully about the identity or other·
wise of the two sets of writings on objective, scientific data.
The
mere fact, therefore, that in the instant case, he has beon summoned )-
as a prosecution witness, will not prejudice the accused, particularly : .
when the Court, in the circumstances of the case, thinks it nec<:ssary .r
to take the a8"istance of the expert for reaching its own conclusion
on this point.
(vii) The order of the Magistrate, construed as a
whole shows that, in substance, the ultimab~ purpose of directitcg the
':
accused to give his specimen writbgs is that the Magistrate himself
wants to compare the specimen thus obtained, with the
di!,puted
writing, to form a just opinion about its identity, after availing him-
•
self of the advantage of the expert's opinion.
(viii) This coune was
adopted by the Magistrate in the interests of justice
taking
into
account the conduct of the accused who had been abscmding for a
~
Jong time and was declared a proclaimed offender, and thus avoided
(1) £19621 3 s.c.R. 10.
..
STATE v. PALI RAM (Sarkaria, !.)
937
to give his admitted or specimen writings at the investigation stage,
and later (it is contended) tampered with the prosecution
witness
'
(Tek Chand) who was expected to prove the disputed writing, and
who in consequence of the tampering by the accnsed, resilea from
his police statement duri'ng the proceedings in Court.
In such a
• situation, even on the principle und·~rlying Section 540 Cr.P.C.
of
1898, which governs these proceedings, and is analogous
to the
principle underlying Section 73, Para (2), the Magistrate was compe-
/
tent
to
use
the
specimen
writing thus obtai'ned, for securing
'y the opinion and evidence of the Government Expert, with a view to
. assist hlmself (Magistrate) in forming his own opinion with regard
to the identity of the disputed writing, Ex. PW. 21 /F.
(ix) The
action of the Magistrate inasmuch as it sought the specimen writing
of the accused to be sent, in the first instance, to the Government
Exp~rt for his opinion and evidence, far from being prohibited, was
consistent with the principle enunciated by the Bombay High Court in
Rundragonda Venkangonda v. Basangonda, (') which
received the
imprimatur of this Court in Fakhruddin v. State of Madhya
Pra-
~
•
•
desh( 2). This principle is to the effect, that
comparison
of the
handwriting by the Court with the other documents not challenged
as fabricated, upon irn own initiative and without the guidance of an
expert is hazardous and inconclusive.
Points (i) and (iii) are well-settled and beyond controversy.
For points (iv) to (ix}, Shri Marwah relies on Guizar Khan v.
State( 3 ) and B. Rami Reddy v. State of Andhra Pradesh('). Shri
Marwah further maintains that the view taken by a learned Judge of
the Calcutta High Court in Hira Lal Agarwalla's case(') followed
in the impugned judgment by the Delhi High Court, and also by the
Bombay High Court in State v. Poonam Chand Gupta(') inasmuch as
it is held therein, that the second clause of Section 73 limits the
power of the Court to obtain the specimen writing of the
accused,
exclusively for its own purpose viz., for comparison with the disputed
writing by the court itself, is too narrow and incorrect.
The question that falls to be determined in this case is :
"Whether a Magistrate in the course of an eaquiry or
trial on being moved by the prosecution, is competent under
(!) A. I. R. 1938 Bom. 257.
(2) A. I. R. 1967 S. C. 136.
(3) A. I. R. 1962 Patna 255 F. B.
(4) I, L. R. 1957 (2) Cal. 920.
(5) J. L. R. 1958 Born. 299.
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SUPREME COURT REPORTS
[1979] 1 s.c.R.
Section 73, Evidence Act, to direct the accused person tc
give his specimen handwriting so that the same may be sent
aloog with the disputed writing to tlie Government Expert
of Questioned Documents for examination, "with a view to
have the necessary comparison" ?
(
There appears to be some div'ergence of judicial opinion on this ~
point.
In Hira Lal Agarwal/av. State (supra), a learned Single Ju:dge
of Calcutta High Court took the view that Section 73 does not entitle
the Court to assist a party to the proceedings.
~It entitles the court ""
to assist itseli to a proper conclusion in the interest of justice.
ft is'-/
not open to the Magistrate to send the specimen writing obtained from T
the accused for examination to an expert who is a prosecution witm:ss." ·
It was, however, conceded that "it is perfectly open to the court to call
its own photographer, take the enlargements under its own supervision,
study them, and if necessary call its own expert as a court witneos in
order that it might be assisted to a proper conclusion".
The dictum in Hiralal Agarwa/a's case (supra) was followed by
a learned Single Judge of the Bombay High Court in State v. Poonam
Chand Gupta, (supra)
w~;erein it was held that the sec071d clause
of Section 73 limits the power of the court to direct a person present
in court to write any words or figures 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 figurns so written by such
person.
The power does not extend' to permitting one or the other
party before the Court to ask the court to take such writing for the purpose of its evidence on its own case.
In T. Subbiah v. S. K. D. Ramaswamy Nadar,( 1) Krishnaswami
Reddy, J. of Madras High Court adopted a similar
approach
in y
coming to the conc1usion that Section 73, Evidence Act gives
no '
power to a Magistrate at the pre-cognizance stage or in the course
of police investigation, to direct a:;i accused person to give his Epecimen handwriting. K. Reddy, J. was careful enough to add that "tile
~
court
for the purpose of comparison can take extraneous aid by
using magnifying glass, by obtaining enlargement of photographs or
by even calling an expert-all these to eaable the Court to d•otermine
•
by comparison.
There is no basis for the view that the court cannot seek extraneous aid for its comparison : but on thoo other l!and,
.._
there is indication in Section 73 of the Evidence Act itself that such
aid might be necessary".
(emphasis added).
(!) A. I. R. 1970 Mad. 85.
'(
l
STATE v. PALI RAM (Sarkaria, J.)
939
l\s against the above vk~w, a Full Bench of Pataa High Court in
Guizar Khan v. Stale,(snpra) held that a Magistrate has the power
under Section 73, Evidence Act to direct, even before he has taken
cognizance of the offence, an accused person to
give
signatures,
specimen writing, finger prints or foot-prints to be used for comparison with some other signatures, handwritings, finger prints or
foot prints which the police may require in the course of investigation.
It was remarked that.in Section 73, the word 'Court' must be equated
with the court of the Magistrate in a case triable by him or before
it is committed to Sessions in a case triable by the Court of Session.
As a matter of fact, in every case where the accused is arrested and
required to give bis specimen handwriting or signature, or
thumbimpression etc., he is arrested under a warrant which must be issued
by a Magistrate, or whe;i the police arrest without a warrant" in a
cognizable offence under Section 60 of the Code of Criminal Procedure, be must be produced before a Magistrate without unreasonab:e
delay and the procedure under Sections 60 to 63 of the Code as also
under Article 22 of the Constitution has to
be followed and
that
attracts the provisions of Section 73 of the Evidence Act.
In taking this view, the Patna High Court sought s11pport from
the decision of this Court in State of Bombay v. Kathi Kalu Oghad
& Ors., (supra) wherein the police bad obtained from the accused
three specimen handwritings to show whether a chit, Exhibit 5, was
in the handwriting of the accused, in the course of police investigation of the case,. and it was held to be inadmissible by the Bombay
High Court, for a different reason viz., O'a the ground that it was
hit by Article 20(3) of the Constitution.
This Court had held that
those specimen writings were admissible.
In B. Rami Reddy v. State of Andhra Pradesh, (snpra) the High
Court of Andhra Pradesh took a similar view.
Following the ratio
of Guizar Khan v. State of Bihar (supra), it was held
that the
Court do~s not exceed its powers under the Section in directing an
accused to give bis thumb-impression to enable the police to make
investigation of an offence as even rn such a case the purpose is to
enable the Court before which he is ultimately put up for trial to
compare the alleged impressions of the accused with the admitted
tbum b-impression.
At the outset, we may make it clear that the instant case is not
one where the Magistrate had made the impugned order in the course
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of police investigation.
Here, the Magistrate had taken cognizance
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·of these two companion cases.
The evidence of moot of the prosecution witnesses has beea recorded.
The problem before us
is.
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SUPREME COURT REPORTS
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therefore, narrower than the one which was before the Patna
and
Andhra Pradesh High Courts in the aforesaid cases.
All that we
have to consider is, whether the High Court was right in holding that
the order dated May 20, 1972, of the Magistrate calling upon the
accused before it, to give his specimen handwriting, was "beyond the
scope of Section 73, Evide·::ice Act".
Before considering the scope of Section 73, it will be appropria~o
to have a look at the legislative background of this provision.
Section 73 like many other provisions of the Indian Evidence Act, is
modelled after the English law of evidence as it existed immediately
before the enactment of the Indian Evidence Act i;:i 1972.
The English Law on the subject, as amended by the English Acts
of the years 1854 and 1865, was substantially the same as incorporated in Section 73 of Indian Evidence Act.
Section 48 of the English
Act II on 8 5 5 was as follows :
"On an inquiry whether a signature, wntmg or seal is
ge·nuine, any undisputed signature, writing or seal of
the
party whose signature, writing or real is under dispute may
be compared with the disputed one, though such signature,
writing or seal be on an instrument which is not evidence in
the cause."
Section 48 was repealed and the Criminal Procedure Act, 1865 was
passed by British Parliament.
Section 8 of that Act, which still
holds the field, provides :
"Comparison of disputed writing with writing prover.I
to be genuine : Comparison of a disputed writing with any
writing proved to the satisfaction of the judge to be genuine
shall be permitted to be made by witnesses; and such writings,
and the evidence of witnesses respectrng the same,
may be submitted to the court and jury as evidence of the
genuineness or otherwise of the writing in dispute."
This Section applies in both Civil and Criminal Courts by virtue of
Section 1 of the Act.
Apart frnm this Section, it was well settled that the Court in the
H
case of a disputed writing, was competent to obtain an exemplar or
specimen writing. In any case, the Court was competent to compare
the disputed writing with the standard or admitted writing of the
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STATE v. PALI RAM (Sarkaria, J.)
941
person in question. The position, as it obtained after the
passing
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,of the Criminal Procedure Act 28 and 29 Viet. C. 18,
has
been
summed up by Taylor as follows :-
"Under the Statutory Law, it seems clear. . . . . . that
the comparison may be
made
either by the
witnes9~S
acquainted with the handwriting, or by witnesses skilled in
deciphering handwriting, or, without the intervention of any
witnesses at all, by the ,iury themselves (Cobbett v. Kilminister), or in the event of there being no jury, by the
Court.. . . . . .
It further appears that any person whose
handwriting is in dispute, and who is present in Court, may
be required by the Judge to write in his presence, and that
such writing may be compared with the document in question.
Doed Devine v. Wilson, (1855) 10 Moore P. C.
502, 530; 110 R.R. 83; Cobbett
v.
Ki/minister (1865)
4 F & F 490-(See Taylor on Evidence by Johnson
&
Bridgma'n, Vol. 2, paragraphs 1870 and 1871, page 1155).
Let us now compare it with Section 73 of the Indian Evidence
. Act, which runs as under :
"In order to ascertain whether a singature, writing or
sea: is that of the person by whom it purports to have b'en
writte'n 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 pr~ent 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 oc figures alleged to have been written by such per-
~n .. ,,
It will be seen that the first paragraph of
Section 73
is,
in
substance, a combined version of Section 48 of the English Act II
of 1855 and Section 8 of the English Criminal Procedure Act, 1865.
The second paragraph of Section 73 is substantially the same as the
English Law condensed by Taylor in the above-quoted portion of
paragraph 1871.
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Just as in English Law, the Indian Evidence Act recognises two
direct methods of proving the handwriting of a person :
( 1) By ail admission of the person who wrote it.
(2) By the evidence of some
witness
who
saw
it
written.
These are the best methods of proof.
These apart, there are three
other modes of proof by opinion.
They are :
(i) By the evidence of a handwriting expert.
(Section 45)
(ii) By the evidence of a witness acquainted with th•2
handwriting of the person who is said to have written
the writing in question.
(Section 47).
(iii) Opinion formed by the Court on comparison made
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by itself.
(Section 73)
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All these three cognate modes of proof involve a process of comparison.
In mode ( i), the comparison is made by the expert of the
disputed writing with the admitted or proved writing of the person
who is said to have written the questioned document.
In (ii), the
comparison takes the form of a belief which the witness entertains
upon comparing the writing in question, with an exemplar formed in
his mind from som;o previous knowledge or repetitive observance of
the ha'ndwriting of the person concerned.
In the case of (iii), the
comparison is made by the Court with the sample writing or exemplar obtained by it from the person cono;orned.
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" withi'n ·the purview of the first paragraph of S.2ction 73,
also.
The first paragraph of the Section, as already seen, provide&
for comparison of signature, writing, etc. purporting to have been
written by a person with othern 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 subj•xt, which is
the legislative source of this provision, it is clear that such comparison may be made by a handwriting expert (Section 45)
or by
one famr:iar with the handwriting of the person conc•;orned
(Section 47) or by the Court.
The two paragraphs of the Section are
not mutually exclusive.
They are complementary to each other.
•
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STATE v. PALI RAM (Sarkaria, !.)
943
Section 73 is t!J."efore to be read as a whole, ih 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 appearihg 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 conclusioh
with the ar,sistance of the expert.
In the instant case, the Magistrate, as the
extract
from
his
Order dated May 20, 1972, shows after considering the
peculiar
circumstances of the case, and recalling
the observation
9f
the
Calcutta High Court in Hira Lal Agarwal/a v. State (ibid) to the
effect that Section 73 entitled "the court to assist itself for a proper
conclusion in the interest of justice'', expressly
"applied this test
to the present case".
The peculiar circumstances
which
wei:o;hed
with the Magistrate in directing the
accused to execute sample
writing to be compared, in the first instance,
by the Government Expert of Questioned Documents,
included the
contumacious conduct of the accused and the resiling of
the
material
witne6S, Tek Chand, which,
accorcti·ng
to
Mr.
Marwah,
was
possibly due to his having been suborned or won over by the accused.
It was apparent from the record that the accused was playing hide
and seek with the process of law and was avoiding to appear and
give his sample writing to the police.
The Magistrate therefore, had
good reason to hold that the assistance of the Government Expert
of Questioned Documents was essentia\ in the interest of
justice
to enable the Magistrate to compare the sample and the question
writings with the expert assistance so obtained and then to
reach
a just and correct conclusion about their identity.
Although the
order of the Magistrate is somewhat inartistically worded, its substance was clear that although initially, the specimen writing sought
from the accused was to be used for compariso'n by the Government
Expert, the ultimate purpose was to enable the Court to
compare
that specimen writing with the disputed one, Ex. PW. 21F, to reach
a just decision.
In the Revision ·Peiition 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
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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 essentia; 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 predicted 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.
In addition to Section 73, there are two other provisions resting
on the same principle, namely, Section 165, Evidence Act a·nd Section
540 Cr. P.C., 1898, which between them invest the Court with a
vid~ discretion to call and examine any one as a witness, if it is bona
fide of the opinion that his examinatio·n 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.
Th•" matter can be viewed from 'another angle, also.
Although
there is no ';egal bar to the Judge using his own eyes to compare the
disputed writing with the admitted writing, eve'n 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
accus·~d of an offence solely on
comparison made by himself. It is, therefore, not advisable tl!at a
Judge should take upon himself tl!e task of comparing the admitted
writing with the disputed one to find out who"ther the two agree witl!
each other; and the prudent course is to obtain the opinion and
assistance of an expert.
It is 'not tl!e province of the expert to act as Judge or Jury. As
rightly pointed out in Titli v. Jones(') the real function
of the
expert is to put before the Court all tl!e 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 rn:· fact, because, strictly speaking, sqch 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
(I) I.L.R. 56 All. 428.~A. I. R. 934 All. 273
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STATE v. PALI RAM (Sarkaria, J.)
945
with the proved or admitted writing' with regard to the points of simiA
larity 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.
In this connection, the observations made by Hidayatullah, J. (as he
then was) in Fakhruddin
v.
State of Madhya Pradesh (ibid) are
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apposite and may be extracted :
"Both under Sections 45 and 47 the evidence is an
opinion, in the former by a scientific comparison and in the
latter on the basis of familiarity resulting from frequent
observations and experience. In either case, the Court must
satisfy itself by such means as are open that the opinion
may be acted upon.
One such means open to the Court
is to apply its own obs•3rvation to· the admitted or proved
writings a'nd to compare them with the disputed. one, not to
become a handwriting expert but to verify the premises of
the expert in one case and to appraise the value of the opinion in the other case.