BHASKARAN Vs. SANKARAN

JUDGEMENT

(1.) This revision is filed by the de facto complainant in C.C. 73/1999 on the file of the Judicial Magistrate of the First Class - I, Thrissur. Petitioner filed petition, M.P. 4288/2001 in the above case praying that direction may be given to the first respondent, who is the accused in the case, to give his thumb impression for comparison by expert. That petition was dismissed by the learned Magistrate and the order by which the application was dismissed is under challenge.

(2.) The allegation against respondents 1 and 2 is that they committed the offences under S.471, 474 and 465 read with S.34 of the Indian Penal Code. It is stated that in 1953 and 1956 two documents were executed by the first respondent in favour of the father and mother of the petitioner transferring 41 1/2 cents of property and subsequently in 1996 the first respondent executed sale deed in respect of the very same property in favour of the second respondent. The application filed by the petitioner was dismissed by the learned Magistrate in finding that direction under S.73 of the Evidence Act cannot be given for the purpose of enabling the opposite party to use the same as evidence against the person who has given the specimen handwriting or signature. After observing that giving direction to give specimen signature or thumb impression may not violate Art.20(3) of the Constitution, the learned Magistrate found that the case was one in which after completing investigation charge was laid in Court and after framing charge on commencing the trial the petitioner had already been examined as PW 1. The application for obtaining the specimen thumb impression of the first respondent was filed when the case stood posted for examination of C.W.1 and C.W. 3. In the order under challenge the learned Magistrate mentions about the decision of this Court in Lilly v. Vijayalaxmi ( 1985 KLT 696 ) in support of the observation that direction under S.73 of the Evidence Act cannot be given for the purpose of enabling the opposite party to use the specimen handwriting or signature as evidence against the person who has given it.

(3.) In Kumaran Nair v. Bhargavi ( 1987 (2) KLT 644 ) this Court held that the comparison mentioned in the first para of S.73 could be as provided in S.45 and 47 and that the Court does not exceed its powers under S.73, if in the interest of justice, it directs any person present in Court to give his sample writing enabling the same to be compared by an expert, because even in adopting such a course, the ultimate purpose is to enable the Court to compare a disputed writing with the admitted writing. There is nothing in S.73 which ousts the jurisdiction of the Court in getting the opinion of an expert by comparison of disputed and admitted writings in order to enable the Court to compare the specimen writing with the disputed one to reach its own conclusion. In the above decision it was also held that by giving specimen handwriting or impression he is not giving evidence against himself and it becomes evidence against him only when after due comparison with it and formation of opinion it is ultimately found that the disputed writing or impression is that of himself. S.73 of the Evidence Act does not violate Art.20(3) of the Constitution because by giving a direction under the section to give specimen handwriting or signature the Court does not compel him to be a witness against himself.