ALOYSIOUS JOHN Vs. STATE OF KERALA

JUDGEMENT

(1.) This revision petition raises the question regarding the power of the Magistrate to direct an accused person to appear in Court and give specimen handwriting and signature in the course of investigation of a case by the police. The petitioner is the second accused in Crime 9 of 1965 registered by the crime branch C.I.D., Trivandrum for offences of cheating, forgery etc. The petitioner appeared before court on 4-5-65 and was enlarged on bail. Subsequently on 25-6-65 the investigating officer presented a petition before the Additional First Class Magistrate, Pathanamthitta that as the handwriting and signature of the accused have to be sent to the Examiner of Questioned Documents for comparison and opinion, the court may summon the petitioner and take the specimen writing and signature both in English and Malayalam in ten different slips of paper. When summons was received the petitioner appeared through counsel and opposed the application on the ground that under S.73 of the Evidence Act the court can direct any person present in court to write words or figures to enable the court to compare the same with words or figures alleged to have been written by such person and this stage would be reached only after charge sheet had been filed and the trial had started. The objection was overruled and the Magistrate passed orders directing the petitioner to appear in court, on 15-7-65 for the purpose of taking his specimen handwriting and signature as sought for by the police.

(2.) The question that arises here for decision is not whether the direction given by the court infringes the fundamental right enshrined in Art.20(3) of the Constitution as that question has already been settled by the Supreme Court in the case in State of Bombay v. Kathi Kelu Oghad ( AIR 1961 SC 1808 ), where it was held that there is no infringement of Art.20(3) if an accused person is directed under S.73 of the Evidence Act to give his specimen handwriting and signature. The question before us is whether the Magistrate has powers under S.73 of the Evidence Act to direct an accused who is on bail to appear in court and give specimen signature and handwriting for the purpose of investigation of the case by the Police.

(3.) That section reads: