M NARAYANASWAMI Vs. V YANGATANNA

JUDGEMENT

(1.) The plaintiff in O. S. No. 54 of 1973 on the file of the Court of the District Munsif. Dhone is the petitioner. He filed the suit against the respondent to recover some money on the basis of a promissory note said to have been executed by him in his favour. The respondent denied the borrowing of any money from the petitioner and the execution of any promissory note in his favour. The petitioner filed an application, out of which this revision has arisen, requesting the Court to direct the respondent to attend the Court and give his specimen left hand thumb impression for the purpose of comparing the thumb impression in the suit promissory note by a Fingerprint Expert to find out whether the thumb impression in the suit promissory note is that of the respondent or not. The respondent opposed it by filing a counter stating that the petition is not maintainable and contending that there is no provision of Jaw under which a Court is empowered to direct a party to attend the Court and give specimen thumb impression for the purpose of comparison by a Finger-print Expert. It was argued before the lower Court and the same argument was pressed before me on behalf of the respondent that the only provision contained in the Evidence Act with regard to giving specimen writing or thumb impression in Court is the one contained in para 2 of Section 73 and under it a court can direct any person present in court to write any words or figure 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 and the same can be done with necessary modifications to thumb impressions also and that provision does not give any power to direct a party to be present in court for the purpose of giving specimen signature, writing or thumb impression for the purpose of sending the same to a Handwriting or Finger print expert for comparison. This contention was accepted by the lower court and it came to the conclusion that when the respondent is represented by an advocate and is not present before Court he cannot be directed to be present in Court as required by the petitioner. The lower Court also said that as provided under Article 20 (3) of the Constitution of India an accused cannot be compelled to give his thumb impression. I fail to understand why Article 20 (3) of the Constitution was mentioned because it relates only to accused persons. Moreover what is provided under Article 20 (3) is that no person accused of any offence shall be compelled to be a witness against himself. What is meant by "to be a witness against himself" was considered by the Supreme Court in State of Bombay v. Kathi Kalu, AIR 1961 SC 1808 and there, the Supreme Court said that Clause (3) of Article 20 is directed against self-incrimination by an accused person by giving personal testimony. When an accused person is called upon by the Court or any other authority holding an investigation to give his finger impression or signature or a specimen of his handwriting, he is not giving any testimony of the nature of a personal testimony and giving of finger impressions or of specimen writing or of signatures by an accused person, though it may amount to furnishing evidence in the larger sense, is not included within the expression "to be a witness". Whatever it is, we are not concerned here with any accused person. We are concerned only with a party in a civil suit.

(2.) While rejecting the application of the petitioner, the lower Court has said that when the suit summons was served on the respondent by the Court Amin he has affixed his thumb impression on the return and that thumb impression is available for comparison by a Finger-print Expert and the petitioner can send the thumb impression on the promissory note and the thumb impression available on the suit summons for comparison to a Finger-print expert. But is was argued on behalf of the petitioner that it is the contention of the respondent that he did not put the thumb impression in question and the Court Amin might have taken the impression of somebody else and not his. Under these circumstances, it is necessary that the thumb impression of the respondent should be taken in Court for the purpose of comparison.

(3.) Therefore, the point for consideration is whether the Court has power to direct a party to be present in Court and five his thumb impression or signature or and writing, as the case may be, for sending the same to an expert for the purpose of comparison with the disputed ones.