LILLY Vs. VIJAYALAXMI

JUDGEMENT

(1.) THIS is a petition filed under S. 482 of the Code of criminal Procedure by the complainant in C; C. 308/83. on the file of the judicial Magistrate of I Class. Hosdurg. Respondents 1 and 2 are the accused in that case. The offence alleged is one punishable under S. 420 of the Indian penal Code. In order to establish the offence the petitioner wants to prove a receipt produced by her in court alleged to have been executed by the first respondent (1st accused) receiving Rs. 20. 000/- from the petitioner. making her believe that N. O. C. will be provided for her. She anticipates that during the trial of the case there is the possibility of the genuineness of the receipt being denied by the respondents. Therefore she wants to make her case sure. For that purpose. she moved the Magistrate by a petition requesting that the specimen signature and handwritings of the first respondent may be taken in open court for being sent to an expert for comparison along with the receipt produced in court. The petition filed for that purpose was dismissed by the Magistrate. That is how the present petition under S. 482 of the Code was filed with prayers for quashing the order and for a direction to the first respondent to give her handwriting and signature in open court for being sent to the expert for comparison along with the receipt produced.

(2.) ART. 20 (3) of the Constitution of India provides that no person accused of any offence shall be compelled to be a wimess against himself. The first question is whether a direction to give the specimen handwriting or signature of the accused will amount to testimonial compulsion as envisaged by ART. 20 (3) of the Constitution. In State of Bombay v. Rathi Kalu (AIR. 1961 SC 1808 ). it was held by the Supreme Court: "it has to be noticed however that ART. 20 (3) does not say that an accused person shall not be compelled to be a wimess. It says that such a person shall not be compelled to be a wimess against himself. The question that arises therefore is: Is an accused person furnishing evidence against himself. when he gives his specimen handwriting. or impressions of his fingers. palm or foot? The answer to this must in our opinion be in the negative. " The same question came up for consideration in T. Subbiah v. Ramaswamy (AIR. 1970 Mad. 85) and it was held: "in respect of point No. 2 that directing the petitioner to give his specimen signature and handwriting will amount to testimonial compulsion under ART. 20 (3) of the Constitution of India. the learned counsel was unable to press this point in view of the decision of the Supreme court in AIR. 1961 SC 1808. "

(3.) THAT view was on the basis that any opinion expressed by the investigating agencies will not be conclusive and it is for the court to decide whether the two impressions are of one and the same person or not. The view appears to be that the opinions do not operate as evidence since the final decision has to be taken by the Court. It is not necessary for me to express any opinion on that point because no such question arises in this case. Here. no investigation is pending. The specific prayer of the petitioner itself is to get the signature and handwritings of the first respondent during the trial of a private complaint for the purpose of being sent to the expert for getting his opinion. which has to be used as evidence in the case against the first respondent. In otherwords what the petitioner wants is to collect evidence from the first respondent to be used against him in the trial.