R B KHAJOTIA Vs. A S T ZAIDY

JUDGEMENT

(1.) THE petitioner here is the accused who is aggrieved by the order passed by the learned Addl. Chief Presidency Magistrate, Esplanade, Bombay, that he should give his specimen handwriting to the Court for sending the same to the handwriting expert for his opinion as to whether the particular disputed letter was in the handwriting of the accused. Complainant Zaidy had filed a complaint on 9th of August 1971 against the accused under Sections 500, 504 and 506, IPC During the course of the proceedings the complainant filed an application praying that the accused be directed to give his specimen handwriting in Court for use thereof by the handwriting expert to opine whether the letter dated 3rd June, 1971 which is the subject-matter of the dispute was in the handwriting of the accused and whetheu he had signed the same. The accused submitted that he cannot be directed by the Court to give his specimen handwriting as prayed inasmuch as there is a constitutional bar under Article 20 (3) of the Constitution of India. The learned Magistrate relied on the ruling of the Supreme Court in State of Bombay v. Kathi Kalu Oghad, 64 Bom LR 240 : (1961-2 Cri LJ 856) (SC) wherein the vires of Section 73 of the Indian Evidence Act has been discussed and decided. The learned Magistrate passed the order that the accused should give his handwriting to be sent to the handwriting expert for his opinion as to whether the disputed letter was in the handwriting of the accused. It is this order of the learned Magistrate that is now challenged here by the accused. Mr. Kamat, the learned Advocate for the petitioner, does not dispute the vires of Section 73 of the Indian Evidence Act, but contends that the learned Magistrate cannot after taking the handwriting of the accused send it for the opinion of the handwriting expert to help the prosecution. According to Mr. Kamat, if the learned Magistrate wants to use it for his own assistance he can certainly use that handwriting for comparing the handwriting with the disputed handwriting. On the other hand Mr. Shah, the learned Advocate for respondent No. 2, contends here that on a motion by the prosecution the learned Magistrate can ask the accused to give his handwriting and that the learned Magistrate can also hand it over to the prosecution for being given to the handwriting expert for his opinion.

(2.) THIS Court was considering the power of the Court under Section 73 and its limits in Punamchand Bhawaniram Gupta v. State of Madhya Pradesh, 59 Bom LR 1165 : (1958 Cri LJ 619 ). It was held in that case that Section 73 of the Indian Evidence Act limits the power of the Court to direct a person present in Court to write any words or figures only where the Court itself is of the view that it is necessary for its own purposes to take such writing in order to compare the words or figures so written with any words or figures alleged to have been written by such person. The Court further held that the power does not extend to permitting one or the other party before the Court to ask the Court to take such writing for the purpose of its evidence or its own use. That was also a case where it was urged that all the accused persons should make signatures in the presence of the Court and also to write some portion of the writing in issue for the purpose of handing it over to the handwriting expert. I have also taken a similar view in an unreported decision viz. Criminal Revn. Appln. No. 1126 of 1970 read with Criminal Revn. Appln. No. 1464 of 1971 delivered on 12-4-1972 (Bom ). But Mr. Shah, the learned advocate for respondent No. 2, contends here that in 64 Bom LR 240 : (1961) 2 Cri LJ 856 (SC) the Supreme Court took a different view. He has also invited my attention to the ruling in Criminal Appeal No. 174 of 1969 (Bom) which was also the subject-matter of the Supreme Court decision in the said Supreme Court case. Mr. Shah contended that the statement of facts in Criminal Appeal No. 174 of 1969 (Bom) showed that on motion by prosecution the Magistrate can ask the accused to give his handwriting and that the Magistrate can also hand over his handwriting to the prosecution for the use and the opinion of the handwriting expect. I cannot agree with this view for the obvious reason that the Supreme Court was only deciding the substantial point of law as to the interpretation of the Constitution with particular reference to Clause 3 of Article 20 of the Constitution. The larger bench of the Supreme Court was constituted in order to re-examine some of the propositions of law laid down by the Supreme Court in the case of M. P. Sharma v. Satish Chandra, District Magistrate, Delhi,. Their Lordships were of the view that Some of the propositions therein laid down may have been too widely stated, and therefore required to be re-stated with more particularity. They were dealing in that case with Criminal Appeals Nos. 146, 110 and 111 of 1968 and 174 of 1969 (Bom ). In all these appeals only one question of law was raised and that was as to the interpretation of Article 20 (3) of the Constitution. It was then decided: There was no infringement of Article 20 (3) of the Constitution of India by compelling an accused person to give his specimen handwriting or signature, or impressions of his fingers, palm or foot to the investigating officer or under orders of a Court for the purpose of comparison under the provisions of Section 73 of the Indian Evidence Act. The point whether the Court after taking such specimen handwriting can for the purpose of helping the prosecution send it to the handwriting expert or not was not for consideration before their Lordships. It does not therefore appear to me that this ruling helps Mr. Shah. We are in the instant case concerned not with the question of infringement of Article 20 (3) of the Constitution but with the question viz. whether the Magistrate after recording a specimen handwriting of an accused person in his presence can help the prosecution by sending it for the opinion of the handwriting expert. No other case has been cited before me. It therefore appears to me that the view which my Lord Kotval, C. I. took in 59 Bom LR 1165 : (1968 Cri LJ 619) and with which I with respect concurred in Criminal Revn. Appln. No. 1126 of 1970 (Bom) is the correct view.

(3.) THIS revision application, therefore, will have to be allowed. The order of the learned Magistrate directing the accused to give his specimen handwriting in Court stands. But the order of the learned Magistrate directing the specimen handwriting of the accused so taken in Court to be sent to the handwriting expert is set aside. Subject to this modification of the order of the lower Court, the rule is made absolute.