TMI Blog1984 (3) TMI 420X X X X Extracts X X X X X X X X Extracts X X X X ..... cation 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 it 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 in the interest of justice, the Court should direct Pali Ram accused to give his specimen writings, and forward the same along with the original documents marked P. 21/F to the Government 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 application. Since the construction of that order has a bearing on the problem before us, it will be appropriate to extract its material portion, in extenso, as under:- It was argued on behalf of Pali Ram accused.............. that the power of the Court is lim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 73 of the Indian Evidence Act empowers a Court to direct an accused to write in words or figures by way of specimen writings for enabling the prosecution to send the specimen writing to a handwriting expert for purposes of comparison with the writing of a disputed document 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 second paragraph of the Section. There fore, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntents 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 such 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 of 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 Expert of Questioned Documents is supposed to be a high officer of integrity who is not under the influence of the investigating officer and he is expected to give his opinion truthfully about the identity or otherwise of the two sets of writings on objective, scientific data. The mere fact, therefore, that in the instant case, he has been summoned as a prosecution witness, will not prejudice the accused, particularly when the Court, in the circumstances of the case, thinks it necessary to take the assistance 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 ultimate purpose of directing the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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 enquiry or trial on being moved by the prosecution, is competent under Section 73, Evidence Act, to direct the accused person to give his specimen handwriting so that the same may be sent along with the disputed writing to the Government Expert of Questioned Documents for examination, with a view to have the necessary comparison ? There appears to be some divergence of judicial opinion on this point. In Hira Lal Agarwalla v. State (supra), a learned Single Judge 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 itself to a proper conclusion in the interest of justice. It is not open to the Magistrate to send the specimen writing obtained from the accused for examination to an expert who is a prosecution witness. It was, however, conceded that it is perfectly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atter of fact, in every case where the accused is arrested and required to give his specimen handwriting or signature, or thumb impression etc., he is arrested under a warrant which must be issued by a Magistrate, or when the police arrest without a warrant in a cognizable offence under Section 60 of the Code of Criminal Procedure, he must be produced before a Magistrate without unreasonable 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 support from the decision of this Court in State of Bombay v. Kathi Kalu Oghad Ors., (supra) wherein the police had 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., on 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 P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the judge to be genuine shall be permitted to be made by witnesses; and such writings, and the evidence of witnesses respecting 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 from this Section, it was well settled that the Court in the 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 person in question. The position, as it obtained after the passing of the Criminal Procedure Act 28 and 29 Vict. 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 witnesses acquainted with the handwriting, or by witnesses skilled in deciphering handwriting, or, without the intervention of any witnesses at all, by the jury 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ief which the witness entertains upon comparing the writing in question, with an exemplar formed in his mind from some previous knowledge or repetitive observance of the handwriting 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 concerned. 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 be 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was to be used for comparison 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 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 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 pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esulting 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 observation to the admitted or proved writings and 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. The comparison depends on an analysis of the characteristics in the admitted or proved writings and the finding of the same characteristics in a large measure in the disputed writing. In this way, the opinion of the deponent whether expert or other is subjected to scrutiny and although relevant to start with becomes probative. Where an expert's opinion is given, the Court must see for itself and with the assistance of the expert come to its own conclusion whether it can safely be held that the two writings are by the same person. This is not to say that the Court must play the role of an expert but to say that the Court may accept the fact proved only when it has satisfied itself on its own observation that it is safe to accept the opi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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