1. This revision petition has been filed by the accused in Crime No. 4 of 1968. District Crime Branch, Ramanathapuram at Madurai, against the order of the Sub-Divisional Magistrate, Sriviliputur, directing him to appear on 27-11-1968 for taking his specimen signature and handwriting for the purpose of investigation.

2. The relevant facts necessary for the appreciation of the contentions raised by the petitioner are briefly as follows;

3. The petitioner was arrested by the Rajapalavam Police in connection with certain offences of cheating, forgery etc., alleged to have been committed by him. He was subsequently released on bail. While the investigation was pending, the Inspector of Police. District Crime Branch, Ramanathapuram filed a memo on 21-9-1968 before the Sub-Divisional Magistrate, Srivilliputtur, requesting him to direct the petitioner to give his specimen handwriting and affix his specimen signature both in ink and pencil for the purpose of further investigation in the matter. On that memo, the learned Sub-Divisional Magistrate issued notice to the petitioner asking him to appear on 5-10-1968 and give his specimen handwriting and signature for the purpose of further investigation. On 5-10-1968 the petitioner appeared through his counsel and filed an objection petition alleging that he was not bound in law to furnish specimen handwriting or signature as that would amount to testimonial compulsion to offer evidence against himself, offending Art. 20(3) of the Constitution of India. After hearing both sides, the learned Sub-Divisional Magistrate following the decision of the Supreme Court in State Of Bombay . v. Kathi Kalu Oghad , AIR 1961 SC 1808 overruled the objections raised by the petitioner and directed him to appear on 27-11-1968 for the purpose of giving his specimen signature and handwriting.

4. Against the above order, this revision has been filed. In this revision petition, the petitioner raised the following points; (1) that the Sub-Divisional Magistrate has no jurisdiction to issue any summons to the petitioner under Section 94 of the Cr PC for the purpose of producing any documents and consequently for complying with the directions issued by the Court; (2) that the direction given by the Court insisting upon the petitioner to give his specimen signature and handwriting would amount to testimonial compulsion offending Art. 20(3) of the Constitution of India. This point has been raised in the lower Court and negatived; (3) that the Sub-Divisional Magistrate had no jurisdiction under Section 73 of the Evidence Act to direct the petitioner to give his specimen handwriting or signature when the charge-sheet had not been filed, in other words, the Sub-Divisional Magistrate had no jurisdiction to exercise this power under Section 73 of the Evidence Act during the pendency of the investigation while he has not taken cognizance of the case.

5. In respect of the first point that the Sub-Divisional Magistrate has no jurisdiction under Section 94 of the Cr PC to issue summons to the petitioner for the purpose of taking his specimen signature or handwriting from him. I am of the view that there is nothing to indicate, that the learned Sub-Divisional Magistrate has issued summons to the petitioner under Section 94 of the Cr PC Section 94 of the Cr PC, will apply only to cases where the Court requires the production of any document or other thing necessary or desirable for the purpose of any investigation, inquiry, trial or other proceeding under the Code of Criminal Procedure. In this case, the summons was not issued to the petitioner for the production of any document or any other thing. The word “thing” referred to in Section 94 of the Cr PC is a physical object or material and does not refer to an abstract thing. It cannot be said that issuing of summons to a person for the purpose of taking his specimen signature or handwriting is for the production of any document or a thing contemplated under Section 94 of the Cr PC It is not the case of the prosecution that the learned Magistrate exercised his power under Section 94 of the Cr PC, in issuing summons to the petitioner. The learned Counsel for the petitioner is unable to substantiate this point and ultimately did not press it.

6. In respect of point No. 2 that directing the petitioner to give his specimen signature and handwriting will amount to testimonial compulsion under Art. 20(3) of the Constitution of India, the learned counsel was unable to press this point in view of the decision of the Supreme Court in AIR 1961 SC 1808.

7. In respect of point No. 3 the main question that arises is, as already pointed out, whether the Court has got power to direct the accused to give his specimen handwriting, signature or to write words or figures in the course of the investigation by the police, under Section 73 of the Indian Evidence Act. It, therefore, becomes necessary to consider the scope of Section 73 of the Evidence Act which runs thus;

“In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written 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 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.

This section applies also, with any necessary modifications, to finger impressions.”

This section, therefore, makes it clear that when the Court considers necessary to ascertain whether the signature, writing or seal is that of the person, alleged to have been written or made, the Court can compare such signature, writing or seal with the admitted or proved signature, writing or seal of that person and that while doing so, the Court is empowered to direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare such words or figures with those alleged to have been written by that person. This is an enabling provision for the Court making an enquiry in determining an issue to form its opinion by comparison of the words or figures as the case may be in a given case. In respect of the proof of handwriting or signature, we have two other modes provided under the Evidence Act Under Section 45, the opinions of experts specially skilled in such signs will be relevant for forming an opinion by the Court on such points. Under Section 47, the opinion of any person acquainted with the handwriting of the person by whom it is supposed to be written or signed, will be relevant for the purpose of the Court forming an opinion whether a particular document was written or signed by him. Section 73 of the Evidence Act provides the third method. Thus the Court can form opinion in respect of handwriting either (a) on the opinion of an expert or (b) on the opinion of a person acquainted with the handwriting or (c) by comparison by the Court itself. Under Sections 45 and 47 of the Evidence Act, the Court has to form an opinion on the opinion of others, whereas under Section 73 of the Evidence Act the Court by its own comparison of writings has to form its opinion. In spite of the opinions of expert or a person acquainted with the handwriting, the Court could still, if it desires to use its skill in comparing the handwriting or signatures, do so under Section 73, to which no party to the cause will have a right to question or object to. This power under Section 73 can be exercised by the Court without being asked for by any party. While exercising such power, the Court for the purpose of comparison, can take the extraneous and by using magnifying glass, by obtaining enlargement of photographs or by even calling an export—all these to enable the Court to determine by comparison. There is no basis for the view that the Court cannot seek extraneous and for its comparison; but on the other hand, there is indication in Section 73 of the Evidence Act itself that such extraneous and might be necessary. Section 73 enables the Court to compare the finger impressions also. The finger impressions cannot be normally compared by naked eye without a special skill required for the purpose. In comparing finger impressions, the Court may have to take necessarily the help of a skilled person.

8. In Kessarbai v. Jethabhai Jivan, AIR 1928 PC 277, the Privy Council while dealing with the scope of Section 73 of the Evidence Act, observed that mere comparison of signatures without the and in evidence of microscopic enlargements or any expert advice is dangerous.

9. For the purpose of comparison under Section 73 by the Court, an additional power is conferred on it to direct any person present in Court to write any words or figures enabling the Court to compare them with any words or figures alleged to have been written by such person. Though the words “any person” are so wide as to include all persons, the words “person present in Court” would limit only those persons who are before the Court to whom the Court may give a direction, to write any words or figures. Again here, in my view, the words “any person present in Court” may not include an onlooker or a spectator who has come to Court for the purpose of sight seeing or for even witnessing the proceedings in Court. The words “any person present in Court” will refer to persons who are parties to a ‘cause’ pending before the Court. It may include even the witnesses of the contesting parties in the said cause. It is clear to my mind that, to direct a person to write words or figures for the purpose of comparison, there must be a cause before the Court, that the person so directed must be a party to the cause, that he should be present in Court in respect of the said cause and that such comparison is necessary to determine the issue raised in the said cause. If there is no cause pending before the Court for its determination, the question to ascertain the signature or handwriting of a person will not arise at all and, therefore, the provisions of Section 73 of the Evidence Act will apply only when a matter is pending before the Court and not otherwise. The provisions of the Evidence Act will apply only in relation to matters of fact under enquiry before a Court. If there is no enquiry by a Court, there is no scope of applying any of the provisions of the Evidence Act. The sine qua non of applying the provisions of the Evidence Act is the enquiry by a Court.

10. The enquiry or trial in criminal cases commences only after the court takes cognizance of the matter provided under Section 190 of the Cr PC The cognizance for the Court is taken either on a private complaint or on a report by the police or on any other information received from any person or upon his own knowledge or suspicion that an offence has been committed.

11. The final report under Section 173 of the Cr PC, is submitted by the ponce as a result of investigation under Chapter XIV of the Code of Criminal Procedure. The Magistrates cannot take part in the investigation by the police or and the police in any manner except in cases where such assistance is specifically provided in the Code of Criminal Procedure or under any other statute, such as recording of statements from witnesses and recording of confession from the accused under Section 164 of the Cr PC, in the course of the investigation by the police.

12. Under Section 5 of the Identification of Prisoners Act, 1920 it is specifically provided that if a Magistrate is satisfied that, for the purposes of any investigation or proceeding under the Code of Criminal Procedure, it is expedient to direct any person to allow his measurements or photograph to be taken, he may make an order to that effect it also provides that 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. The word “measurements” mentioned in the said provision will include finger prints and foot prints but not the handwriting or the signature. It is very significant to note that taking of handwriting or signature from a person by a Magistrate in the course of investigation by the police is specifically excluded. When the Parliament made this enactment, it must have had in its mind not only that Section 73 of the Evidence Act does not give power to the Court to take finger prints, signature and handwriting from a person in the course of investigation by the police but also it must have thought that it might not be necessary to include the taking of handwriting or signature of a person in the course of investigation by the police. Otherwise, there is no tangible reason for the Parliament to exclude, under the Identification of Prisoners Act, the taking of handwriting or signature. The Parliament must have probably thought that though the taking of the handwriting or the signature of a person is one of the modes of identification, it was not an infallible one and that the better mode of proving the handwriting or signature is what is provided under Section 47 of the Evidence Act, namely, the evidence of that person who is acquainted with the signature of the person concerned. In this context, it is also worthwhile to note in contrast to Section 73 of the Evidence Act that this section empowers the Magistrate to direct any person irrespective of the fact whether that person is a party to the cause or not, and the section also empowers the Magistrate to direct a person to be produced before him at the time and place specified by him and does not confine only to those persons present in Court. By this contrast between these two provisions, though under different statutes, it appears to my mind that the Court under Section 73 of the Evidence Act does not have even power to issue summons to the person to be present in Court unless he is already present in Court as a party concerned in the proceeding before it. The Magistrate can direct a person to give his finger prints in the course of investigation by the police by virtue of Section 5 of the Identification of Prisoners Act but not under Section 73 of the Evidence Act though the finger prints are included therein for the purpose of comparison.

13. It is contended by Sri Shanmughavel, the learned counsel appearing for the complainant that in the interests of justice it is the duty of the Magistrate to assist the police in the course of investigation and that Section 73 must be read so as to give a liberal meaning to it and he stresses this point further, stating that there is no other provision under any other statute enabling a Magistrate to direct a person to give his handwriting or signature in the course of investigation. There is a fallacy in this contention. If, in the interests of justice, even, before the Court takes cognizance of the case, it would assist the Police Officer in Investigation equally, in the interests of Justice, it can be contended that a party accused of an offence by the police, even before the Magistrate takes cognizance of the case against him, could approach the Magistrate and seek his assistance to take his specimen signature or handwriting for the purpose of comparison in the course of investigation by the police to establish his innocence. Can it be said that the Magistrate could comply with the request of the party before taking cognizance of the case against him? This will lead to an anomaly. The learned counsel is unable to press this point further. But, however, he relied upon a decision of the Supreme Court in AIR 1961 SC 1808.

14. On a careful reading of the decision of the Supreme Court, I do not find any basis for the contention of the learned counsel that even during the investigation, the Magistrate can direct a person to give the specimen handwriting or signature under Section 73 of the Evidence Act. That decision arose from three appeals from three States, namely, Bombay, Punjab and West Bengal. In the Bombay case, the Police, in the course of the investigation, had obtained specimen hand writings of the accused for the purpose of comparison of the handwriting in the disputed document in the Punjab case, the impressions of the palms and fingers of the accused were taken by the police in the course of investigation in the presence of a Magistrate, obviously under the provisions of Sections 5 and 6 of the Identification of Prisoners Act in the West Bengal case, the facts of which are similar to the facts of the present case, the accused, after he was released on bail, was directed by the Magistrate under Section 73 of the Evidence Act to give his specimen writing and signature for the purpose of comparison, during the investigation by the police and at their instance. The learned counsel depends upon the following passage in the said decision.

“To be a witness” may be equivalent to “furnishing evidence” in the sense of making oral or written statements, but not in the larger sense of the expression so as to include giving of thumb impression or impression of palm or foot or fingers or specimen writing or exposing a part of the body by an accused person for the “purpose of identification”. “Furnishing evidence” in the latter sense could not have been within the contemplation of the Constitution-makers for the simple reason that — though they may have intended to protect an accused person from the hazards of self-incrimination. In the light of the English law on the subject — they could not have intended to put obstacles in the way of efficient and effective investigation into crime and of bringing criminal to justice. The taking of impressions of parts of the body of an accused person very often becomes necessary to help the investigation of crime. It is as much necessary to protect an accused person against being compelled to incriminate himself, as to arm the agents of law and the law Courts with legitimate powers to bring offenders to justice. Furthermore it must be assumed that the Constitution-makers were aware of the existing law, for example. Section 73 of the Evidence Act or Sections 5 and 6 of the Identification of Prisoners Act (33 of 1920). Set 5 authorises a Magistrate to direct any person to allow his measurements or photographs to be taken if he is satisfied that it is expedient for the purposes of any investigation or proceeding under the Code of Criminal Procedure to do so; ‘Measurements’ include finger impressions and foot-print Impressions. If any such person who is directed by a Magistrate under S. 5 of the Act, to allow his measurements or photographs to be taken resists or refuses to allow the taking of the measurements or photographs, it has been declared lawful by Section 6 to use all necessary means to secure the taking of the required measurements or photographs. Similarly Section 73 of the Evidence Act authorises the Court to permit the taking of finger Impression or a specimen handwriting or signature of a person present in Court, if necessary for the purpose of comparison”.

15. Nowhere in this passage we find that Section 73 of the Evidence Act authorises the Court to take the finger impression or specimen handwriting of the person present in Court in the course of investigation by the police. It is true that in the West Bengal case, (the point of) the specimen handwriting or signature to be taken in the course of investigation by the police does not appear to have been raised at all. It is also significant to note that in the decision of the High Court of West Bengal against which the appeal was filed reported in Farid Ahmed v. The State, AIR 1960 Cal 32, it was held that the order could not have been made under Section 73 of the Evidence Act as it was made in the course of an investigation. This appears to be the finding given by the West Bengal High Court in that case on that point. In the appeal, against the decision of the High Court to the Supreme Court, this point was not at all raised. The Supreme Court was wholly concerned in all the three cases, irrespective of the details of the facts of those cases, with the question whether the taking of finger prints, handwriting etc., etc., from an accused either under the Identification of Prisoners Act or under Section 73 of the Evidence Act, would offend Art. 20(3) of the Constitution. This is made very clear in the first sentence of para 2 of the majority judgment which is as follows:

“It is not necessary to state in any detail the facts of each of the cases now before us. We shall, therefore, state only so much of the facts as have occasioned calling in and of the provisions of Cl. (3) of Art. 20 of the Constitution”.

This passage makes it abundantly clear that the Supreme Court was not concerned with any other question in relation to the facts of each of these cases. I am, therefore, of the view that there is no basis for the contention of the learned counsel that the Supreme Court has at least indirectly approved the point that the Magistrate can take handwriting or signature of the accused in the course of investigation.

16. The learned counsel relied upon a Full Bench case of the Patna Court in Gulzar Khan v. State, AIR 1962 Pat 255 (FB) which is similar to the facts of this case. The facts of that case are these; They were concerned with three cases. In one case, the accused were directed by the Magistrate to appear before the police for giving their finger-prints and foot prints for the purpose of comparison in the course of investigation, when the accused were on bail. In the second case, the accused was directed by the Magistrate to appear before the Sub Inspector of Police and to give specimen of his signature for the purpose of comparison while he was on bail and the investigation was pending. In the third case, the Magistrate directed the accused to appear before him and to give specimen hand writings and thumb-impressions. To an argument by the counsel that Section 73 of the Evidence Act cannot be invoked by the Magistrate before taking cognizance of the case and that the Magistrate was not empowered under S. 73 to direct a person to give specimen handwriting and thumb impressions for the purpose of investigation by the police, the Court answered it by one sentence that the argument could not be acceded to. The Court has observed (sic) its view in the following terms indicating that even before the Magistrate takes cognizance of the case, he can direct the accused to give specimen handwriting and signature under Section 73 of the Evidence Act

“But even in regard to Section 73 of the Evidence Act the word “Court” therein 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 he is required to give his specimen handwriting of 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 Cr PC, he must be produced before a Magistrate without unreasonable delay and follow the procedure under Sections 60 to 63 of the Code as also under Art. 22 of the Constitution of India and that attracts the provisions of Section 73 of the Evidence Act. In none of the numerous cases, has this point been specifically raised on this account and this contention also fails accordingly.”

With great respect I am unable to agree with these observations for the reasons given by me in the earlier portion of my judgment the Magistrate issuing a warrant for the arrest of an accused or exercising his powers under Sections 60 to 63 of the Cr PC are not the powers exercised by him in the course of an enquiry or trial by him which, as already pointed out by me is the only stage when he could exercise his powers under Section 73 of the Evidence Act.

17. In a decision of a Division Bench of Kerala High Court in Aloysious John v. State of Kerala, 1966 Mad LJ Crl 298 (Ker), Govinda Menon, J., on behalf of the Division Bench, dissented from his own earlier judgment decided by him as single Judge, and held that under Section 73 of the Evidence Act, the Magistrate has no powers at the investigation stage by the police to issue a direction to the accused to appear in Court for the purpose of giving specimen handwriting and signature at the request of the police.

18. The Division Bench expressed inability to subscribe to the view mentioned in AIR 1962 Pat 255. I respectfully agree with this decision.

19. In State v. Poonamchand Gupta, AIR 1958 Bom 207 it was held that Clause (2) of Section 73 of the Evidence Act limits the power of the Court to directing a person present in Court to write any words or figure 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, and that the power does not extend permitting one or the other party before the Court to ask the Court to take such writing for the purpose of its evidence or its own case.

20. In Hiralal v. State, AIR 1958 Cal 123, it was held that Section 73 cannot be construed as an instrument or a device to be used for the advancement of any party, either the prosecution or the accused that it is one of those sections where large powers are given to the Court to find out the truth and to do complete justice between party and party and that any other use of it would be wholly unjustified. I respectfully agree with these two decisions.

21. In the result, I find that the Magistrate had no power to direct the accused to give his specimen handwriting or signature in the course of investigation by the police at their instance.

22. The petition is allowed.

23. Petition allowed.