GEORGE Vs. STATE OF KERALA

JUDGEMENT

(1.) ONE K. C. George, the accused person in Crime no. 135/cr/74 of C. B, CID. (F. S.) Ernakulam, has filed this petition under s. 401 and 482 of the Criminal Procedure Code, for quashing an order purported to have been passed under S. 73 of the Indian Evidence Act by the Chief Judicial magistrate, Kottayam, directing him to report before the Divisional Inspector of Police, CB. , CID (FS.) Ernakulam at 10 AM. on 18-7-1979 for enabling him to complete the investigation by taking a sample signature and handwriting of the accused.

(2.) THE case referred to in the petition was registered as early as in the year 1974 and the FIR. was also filed before the Chief Judicial magistrate, Kottayam, immediately after the registration of the case. THEreafter the accused appeared before the Chief Judicial Magistrate, Kottayam and he was released on bail in 1974 itself. THE accused had no information of the case thereafter. While so, on 18-6-1979, the Divisional Inspector of police, C. B, CID. (FS.) Edappally, the second respondent herein, filed an application before the court below stating that a sample signature and handwriting of the accused is essential for completing the investigation of the case and therefore the accused may be directed to appear before him for the purpose of taking sample signature and handwriting of the accused person. THE court below issued notice on this to the petitioner and after a few postings a warrant was issued and when the accused appeared on 3-7-1979, he was granted bail and the case was ported to 23-7-1979. THEreafter on an application filed by the petitioner for recalling the warrant issued against him the impugned order was passed on 10-7-1979, without even hearing him.

(3.) THERE is no provision under the Code of Criminal procedure or under the Indian Evidence Act which enables a Magistrate to direct or compel an accused person to give his sample signature and handwriting to the police for the purpose of investigation or pass any order compelling him to co-operate with the police so as to enable them to complete investigation of the case. THERE is also no provision under the Identification of Prisoners Act (Act XXIII of 1920), for taking specimen signature or handwriting of the accused persons. The only provision which enables a court to direct an accused person present in court to give his specimen signature and handwriting is S. 73 of the Indian Evidence Act. It is clear from S. 73 that the powers conferred under the second paragraph of that section on a court to direct a person present in court to give a sample handwriting or signature can be exercised only under specific circumstances and for the purposes mentioned therein. Under this latter part of S. 73 of the Evidence Act, the court may direct any person present in court to write any words or figures for the purposes of enabling the court to compare the words or figures so written with any words or figures alleged to have been written by such person. This is an enabling provision and the words used therein make it clear that this power can be exercised only for the purpose of enabling the court to compare the words or figures so written with any words or figures alleged to have been written by such person. This section helps a court making an enquiry or trial in determining an issue to form its opinion by comparison of the words or figures as the case may be. A court can take extraneous aid for its comparison. This power under S. 73 can be exercised by the court without being asked for by any party and can also be exercised either at the instance of the prosecution or the defence. The two parts of S. 73 are complementary to each other and not mutually exclusive. But it is clear from the provisions in the section that this power should not be exercised for directing an accused person to appear before the Police during investigation to give specimen signature or handwriting for the purpose of investigation or completing investigation by the Police.