STATE OF KERALA Vs. K K SANKARAN NAIR

JUDGEMENT

(1.) These revision petitions seek to vacate the order by the Additional Sessions Judge of Kottayam, sustaining the accuseds objection to the admissibility of the specimen of his handwriting, which was sought to be proved by a witness. The accused has been committed in Sessions Case Nos. 99, 100 and 101 of 1958; and the aforesaid order covers all the cases, having been passed on February 3, 1959. The prosecution case is that, with a view to cause wrongful loss to the Transport Department and make unlawful gain, the accused got printed bogus warrant form, affixed false seal on the form purporting to be that of the Superintendent of Police, entered in his own handwriting the false names and numbers of three fictitious constables, made other entries, further forged the signature of one Plathanam a Sub-Inspector of Police who had retired, by false representation induced P.O. Titus a Conductor to hand him three bus tickets, and utilised these for making unlawful gain. Each Sessions Case is concerned with a bus warrant so forged by the accused. During the investigation the Sub-Inspector of Police requested the Sub Divisional Magistrate, Kottayam, to take specimen handwritings of the relevant passages by the accused, and the Magistrate issued notice to the accused, who gave the specimen writing, which was sent to the Government Examiner of Questioned Documents, Intelligence Bureau, Ministry of Home Affairs, Government of India, at Simla. The expert has given the opinion that the specimen writing by the accused and the entries in as well as the signatures on the bogus warrants tally, and that the writings on the warrants seem to be of the accused.

(2.) During the Sessions trial, the prosecution examined the Sub-Divisional Magistrate as Pw. 16 to prove the specimen handwriting, and the accuseds advocate then objected to the document being admitted in evidence on the ground that the specimen hand wring was taken by the witness against consent, and the guarantee against testimonial compulsion under Art.20 (3) has been infringed. The prosecution has urged that the handwriting was taken under S.73 of the Evidence Act, that it was for the purposes of comparison that the accused willingly agreed to give the specimen, and that the complaint of the Constitutional guarantee having been infringed, cannot, therefore, be sustained. The Additional Sessions Judge has, however, held that the specimen handwriting cannot be proved, for the admission of the specimen handwriting compelled from the accused, was prohibited by Art.20 (3), and has relied on M.P. Sharma v. Satish Chandra, AIR 1954 S.C. 300. All these three revision petitions seek to have the aforesaid order revised

(3.) The learned Advocate General has urged that a number of decisions in this country have held the guarantee against self incrimination not to be infringed where the accuseds finger impressions are taken though by compulsion; and that the accuseds handwriting being as such part of his person, the decisions taking a different view where handwriting be taken, should not be followed. He has further argued that compulsory exposing of the accused person has been held not to be covered by the guarantee, and it is difficult to see how asking the accused to give specimen of his handwriting should be treated differently, from asking him to expose some scar on or part of his body. He has also argued that the specimen handwriting does not amount to documentary evidence and would not be covered by Art.20 (3). We think the last argument should be dealt with first. If the paper containing the specimen of the accuseds handwriting be not document, we do not see why the prosecution should seek to prove it, or complain against its being made inadmissible; and, having sought, to prove the paper as a document, it would hardly be consistent with that position to seek revision of the order on the assumption that the paper is something different. That apart, we think the paper containing the writing to be a document.