P V G NAIR Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner who is an accused in a cheating case was arrested at Madras and produced before the Sub Magistrate of Tellicherry and was released on bail. On 20-9-61 an application was made to the Magistrate for taking the specimen handwriting and signature of the accused. On notice being issued, the accused appeared and opposed the application and the learned Sub Magistrate passed the followed order:

(2.) The question that arises for decision in this petition is whether a direction given by a court to an accused person to give specimen writings, thumb impressions, finger prints or foot prints to be used for comparison under the provisions of S.73 of the Evidence Act infringes the fundamental right enshrined in Art.20(3) of the Constitution. Various decisions were cited at the bar, but it is unnecessary to refer to any one of them because the position is now settled beyond controversy by the recent decision of the Supreme Court in State of Bombay v. Kathi Kalu Oghad ( AIR 1961 SC 1808 ). There it was held that the direction by a Magistrate to accused persons to give signatures, specimen writings, thumb impressions, finger prints or foot prints which the police may require in the course of investigation will not amount to compelling the accused persons to be witnesses against themselves. So the order passed by the second Class Magistrate directing the petitioner to give specimen handwriting and signature is irreproachable.

(3.) Regarding the question whether the Magistrate could have passed the impugned order, I am not sure that the Magistrate had no power to pass the order complained against as it is doubtful whether S.369 Crl. P. C., would strictly apply. It is unnecessary to decide this point because even if the Magistrate had no jurisdiction if his order is the correct order that order could have been maintained by the learned Sessions Judge and even if the Magistrate had no jurisdiction to amend his earlier order, the amended order being the correct order which ought to have been passed, I hereby maintain it as an order of this court.