BRIJ BHUSHAN RAGHUNANDAN PRASAD Vs. STATE

JUDGEMENT

(1.) THE only question that arises in this case and which has been referred to us for decision is whether a direction made by the First Class Magistrate of Mhow asking the petitioner to give his thumb impression and specimen writing and signature for comparison is prohibited by Article 20 (3) of the Constitution of India.

(2.) THE facts are that the Special Police Establishment of the Government of India has registered a case against the applicant before us for offences under Sections 409 and 471, I. P. C. The charge against the applicant is that on certain dates some money-orders were entrusted to him for payment to payees; and that instead of paying the amounts of the money-orders to the payees, he misappropriated the amounts and returned the money-order forms with forged thumb impressions and signatures of the payees. The accused is a postman. Soon after the arrest of the accused and during the course of investigation, an application was made by the Police before the First Class Magistrate of Mhow for a direction to the accused to give his thumb impression, specimen handwriting and signature in Court for comparison. This application was purported to be one under Section 73 of the Evidence Act and section 5 of the Madhya Bharat Identification of Prisoners Act, Samvat 2008 (Act no. 15 of 1951 ). The accused objected to this saying that under Article 20 (3) of the Constitution and under the decision of the Supreme Court in M. P. Sharma v. Satish Chandra, AIR 1954 SC 300 (A), he could not be compelled to give his thumb impression, specimen writing and signature. The First Class Magistrate of mhow overruled the objection, fie held that Article 20 (3) had no applicability as by a direction to give his thumb impression, specimen writing and signature the accused was not being compelled to give any evidence against himself and that the decision of the Supreme Court was distinguishable on facts. Accordingly, on 28th May 1955, he directed the accused to give his thumb impression, his specimen signature and writing. The applicant then preferred a revision petition before the Additional Sessions judge of Indore which was rejected. The learned Additional Sessions Judge, agreeing with the view taken by the learned Magistrate, added that there was no question of the accused furnishing any evidence by giving his thumb impression or signature or specimen writing for comparison as it would be the expert's opinion with regard to the alleged forged signatures and thumb impressions on the money-order forms and not the thumb impression and specimen signature or writing given by the accused that would constitute evidence. Thereafter, the applicant made a revision petition to the Madhya Bharat High Court impugning the order of the First Class Magistrate. When the matter came up for hearing before Chaturvedi, J. , he thought that in view of the decisions in AIR 1954 SC 300 (A), Rajamuthukoil Pillai v. Preiyasami nadar, AIR 1956 Mad 632 (B) and Silendra Nath Sinha v. The State, AIR 1955 Cal 247 (C), the question "whether any direction under Section 73 of the Evidence Act to take specimen writing of a person who is accused of an offence does or does not amount to a direction compelling him to give evidence against himself and whether such a direction offends or not the provisions embodied in Article 20 (3)of the Constitution" is not free from difficulty. Accordingly he thought that the question should be decided by a Division Bench rather than by him sitting singly.

(3.) AT the outset, it must be stated that the impugned direction was made by the learned Magistrate before any challan was presented against the accused in the court. The direction cannot, therefore, be regarded as having been made under section 73 of the Evidence Act in judicial proceedings before the First Class magistrate. It was purported to be under Section 5 of the Madhya Bharat identification of Prisoners Act, which is as follows:--