Priti Ranjan Ghosh v. State

P.C.Borooah, J.:-

(1) Criminal revision case nos. 859 of 1971 and 7 of 1972 were taken up for hearing together as the questions of law which arise in both the cases are the same.

(2) In criminal revision no. 859 of 1971 the petitioners are priti ranjan ghose and his two brothers. On the basis of a written complaint made by the superintendent, post offices, presidency division, addressed to the superintendent of police, c. B. I. , s. P. W. Division, calcutta, a case under section 120b/420, 420/471 of the indian penal code was started against them. On the 19th of july, 1971, on the prayer of the inspector, c. B. I. , s. P. W. , calcutta, the learned sub - divisional magistrate, alipore, directed the petitioners to appear before the investigating officer on 21. 7. 71 and 22. 7. 71 for taking of their specimen handwritings before the learned magistrate. On repeated prayers of the petitioners the order requiring the taking of specimen handwritings was kept in abeyance and ultimately on 21. 10. 71, the learned sub - divisional magistrate directed the petitioners to appear before sri s. K. Roychowdhury magistrate, 1st class for giving their specimen hand writings on 21. 11. 71. Against this order the petitioners moved the sessions judge, alipore, under section 435/438 cr. P. C. The learned sessions judge by his order dated 1. 12. 71 rejected the prayer and upheld the order of the learned magistrate. Against the order of the learned sessions judge the petitioners have come up before this court in revision.

(3) In criminal revision no. 7 of 1972, the petitioner is gokul chandra sarma, who along with another person was arrested by the enforcement branch of the calcutta police on 23. 6. 69, and a case under section 120b/417/467|/71 i. P. C. Was started against them. Specimen handwritings and signatures of the accused petitioner was taken by the investigating officer for the purpose of examination by the handwriting expert and on 1. 9. 71 the investigating officer submitted a report before the learned chief presidency magistrate to the effect that the expert could not submit a complete report and asked for further writings of the petitioner and the other accused person. The learned chief presidency magistrate by his order dated 14. 12. 71 directed the petitioner to give his specimen writings in presence of sri g. P. Roy, presidency magistrate. This order of the learned chief presidency magistrate has been challenged in this revisional application.

(4) The common question of law which arises in both the rules is whether a magistrate can direct an accused person to give his specimen writings to the police in course of investigation.

(5) Mr. Ajit kumar dutta appearing on behalf of the petitioners in criminal revision no. 859 of 1971 has submitted that neither the criminal procedure code nor the indian evidence act has anywhere empowered a magistrate to direct an unwilling accused to give his specimen writings to the police in course of investigation. According to mr. Dutta chapter xiv of the criminal procedure code deals, inter alia, with the power of the police to investigate and chapter xiv nowhere empowers the police to forcibly take specimen writings of an accused, and no provision in the criminal procedure code authorises the police to come before a magistrate and ask for necessary orders to take such specimens. In this context. Mr. Dutta has referred to the identification of prisoners act which authorises the taking of measurements and photographs of convicts and others. Mr. Dutta referred to section 4 of the said act which requires a person arrested in connection with an offence punishable with rigorous imprisonment for a term of one year or upwards to allow his finger and foot - print impressions to be taken in the prescribed manner, if so required by a police officer. Mr. Dutta argued that if it was the intention of the legislature to empower the police to take specimen handwritings of the accused, "specimen handwritings" would have been included in the definition of "measurements" in section 2 (a) of the said act. Mr. Dutta has also referred to section 73 of the indian evidence act and submitted that under the said section a magistrate can direct an accused person in a case pending before him to give his specimen handwritings for the purpose of the court's own comparison and a magistrate can give such direction after he has taken cognizance, and section 73 does not give any such power to a magistrate when a case is in the stage of investigation.

(6) In support of his argument mr. Dutta has relied on the case of (1) t. Subbiah v. S. K. D. Ramaswamy nadar reported in a. I. R. 1970 madras 85, mr. Dutta also referred to a decision of this court, (2) (hiralal agarwala v. The state) reported in a. I. R. 1958 calcutta 123 in support of his argument as regards the scope and object of section 73 of the evidence act and the powers of the court under the said section. Reference was also made by mr. Dutta to the case of (3) farid ahammad v. The state re ported in a. I. R. 1960 calcutta 32 and to the appeal by the state to the supreme court against the decision in this case reported in a. I. R. 1961 s. C. 1808. With reference to this decision mr. Dutt argued that the supreme court overruled the view of this court only on the point whether the taking of specimen handwritings was included within the expression "to be a witness" but the supreme court did not express any opinion on the other point decided by this court in farid ahammad's case, viz. , that a magistrate is not empowered to direct an accused person to give his specimen writings to the police in course of investigation.

(7) Mr. Dilip kumar dutt, appearing on behalf of the petitioner in criminal revision no. 7 of 1972 has adopted the arguments of mr. Dutta.

(8) Mr. Prasun chandra ghose appearing on behalf of the state has opposed both the rules and has supported the orders passed by the learned magistrates. According to mr. Ghose sections 154 - 159 of the code of criminal procedure gives supervisory powers to a magistrate in respect of investigation, and section 4 (1) and section 159 6f the code read with the first part of section 73 of the evidence act empowers a magistrate to direct an accused to give his specimen handwriting and also to present himself before a magistrate to give such specimen, and a magistrate can pass such orders in course of investigation on the prayer of the police.

(9) In support of his argument mr. Ghose has relied on the decision of (4) sailendra nath sinha v. The state reported in a. I. R. 1955, calcutta 247, and (5) guljar khan v. The state reported in a. I. R. 1952 patna 255, f. B. Mr. Ghose has also relied on the supreme court decision (6) state of west bengal v. Farid ahmad, reported in a. I. R. 1961 s. C. 1808 and has argued that the supreme court has at least indirectly approved that a magistrate has the power to direct the taking or to take the specimen handwritings or signatures of an accused in the course of investigation.

(10) In the supreme court decision reported in a. I. R. 1961 s. C. 1808, the supreme court disposed of three different appeals. Criminal appeal 174 of 1959 was from a bench decision of this court (farid ahammad v. The state a. I. R, 1960 cal. 32). In this case the accused farid ahamad when he was produced before a magistrate, 1st class, howrah, the investigating officer made a prayer before the magistrate for taking his specimen handwritings and signature. On the adjourned date when the accused was produced before the magistrate he declined to give him specimen handwritings and signatures contending that article 20 (3) of the constitution prohibited any such specimens being taken against the will of the accused. After hearing the parties the learned magistrate overruled the contention made on behalf of the accused and directed the accused to give his specimen handwritings and signatures. Against this order the accused moved this court in revision. A division bench of this court in disposing of the rule (reported in a. I. R 1960 calcutta 32) held that the order of the magistrate allowing the investigating officer to take specimen handwritings and signature of the accused is violative of article 20 (3) of the constitution and further observed.

"we must say that the order concerned could not have been made under section 73 of the indian evidence act as the order was made in course of an investigation."

(11) The supreme court in dealing with the appeal from this decision and the two other appeals was wholly concerned in the said cases with the question whether taking of fingerprints, specimen handwritings etc. From an accused either under sec. 73 of the evidence act or under the provisions of the identification of prisoners act would be violative of article 20 (3) of the constitution.

(12) The supreme court did not express any opinion on the question whether a magistrate can in course of investigation direct an accused to give his specimen handwritings. In our view, there can be no basis for the contention raised by mr. Ghose, appearing on behalf of the state, that the supreme court has at least indirectly approved the point that a magistrate can order the taking of specimen handwritings or signatures of an accused in the course of investigation.

(13) In the case of hiralal agrawala v. The state (a. I. R. 1958 calcutta 123) it was observed by this court :

"section 73 does not in my view entitle the court to assist a party to the proceedings. It entitles the court to assist itself to a proper conclusion in the interests of justice. In so far therefore as the learned magistrate wanted to be satisfied as to the genuineness or otherwise of certain writings it was open to him to ask the petitioner to write out certain words and figures in order that a comparison might be made between them and the disputed writing, but it was certainly not open to the learned magistrate to hand the document over to the prosecution in order that they might make use of it as a piece of their own evidence."

(14) The madras high court in the case of t. Subbiah v. S. K. D. Ramaswamy nadar (a. I. R. 1970 madras 85) decided the identical question which has arisen in the instant rule. In dealing with the question whether a court has got the power under section 73 of the evidence act to direct an accused to give him specimen handwritings or signature or to write words or figures in course of investigation the madras high court in the said case observed as follows:

"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 there 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. "

(15) In this decision of the madras high court the contrary view expressed by the full bench of the patna high court in the case of guljar khan v. The state (a. I. R. 62 patna 225) was dissented from. In the case of sailendra nath sinha v. The state (a. I. R. 1955 calcutta 247) the word "any person" in section 3 of the evidence act was held to include a person accused of an offence and it was further held that there was nothing in the section which would preclude a magistrate from directing specimen, writings to be taken for the purpose of their examination by an expert.

(16) There is no provision in the code of criminal procedure which empowers a court to direct an accused person to give his specimen hand writings or signatures or authorises the police in course of investigation to go before a court and ask for directions requiring an accused to give such specimens.

(17) Paragraph 2 of section 73 of the evidence act is the only provision of law under which a court can direct an accused person to give his specimen handwritings or signatures. The said paragraph reads 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."

(18) Thus under the aforesaid provision a court may direct, but cannot necessarily compel, any person who is present in court to write, words or figures for the purpose of enabling the court to compare such writings with the disputed writings. "any person" has been held to include a person accused of an offence in the case of sailendra nath sinha v. The state (supra).

(19) When this power is exercised in relation to an accused person, such person must be "present in court" in other words the accused person must be before the court in connection with an enquiry or proceeding, and this stage is only reached after the court has taken cognisance in accordance with law. When a case is in the stage of investigation an accused person cannot be deemed to be present before a court.

(20) After a court has taken cognizance it has the power to direct an accused person to give his specimen handwritings where the court itself re quires such writings to come to its own conclusion, and the court cannot exercise this power for the benefit of either the prosecution or the defense. The words "for the purpose of enabling the court to compare" in the aforesaid section makes this clear. That was also the view taken in the case of hiralal agarwalla v. The state (supra).

(21) Section 4 of the identification of prisoners act authorises a police officer to take the measurements of a person arrested in connection with an offence punishable with rigorous imprisonment for a term of one year or upwards. Section 5 of the said act empowers a magistrate to order a person to allow his measurements or photographs to be taken in course of any investigation or proceeding under the code of criminal procedure. Any resistance or refusal is made punishable as an offence under section 186 of the indian penal code by virtue of section 6 of the said act.

(22) If it was the intention of the legislature to allow the police to take specimen handwritings or signatures of a person in the course of investigation or to empower a magistrate to give necessary directions to a person to give ms specimen handwritings or signatures to the police in course of investigation, all that was necessary was to include the word "specimen handwritings and signatures" in the definition of "measurements" in section 2 (a) of the said act. "

(23) It must accordingly be held that section 73 of the evidence act does not empower a court to direct an accused person to give his handwritings or signatures in course of investigation. In the result, these applications must succeed. The rules are made absolute. And the orders dated 21. 10. 71 and 14. 12. 71, pissed by the sub - divisional magistrate, alipore and the chief presidency magistrate, calcutta respectively are set aside. Let the records be sent down as soon as possible.