Report No. 185

Section 73

Section 73 deals with "Comparison of signature, writing or seal with others admitted or proved".

The first part of the section permits the Court to compare a 'purported' signature, writing, or seal with one which is admitted or proved to the satisfaction of the court to be a genuine one.

The second paragraph enables the Court to direct any person present in Court, to write any words or figures for the purpose of comparing the disputed one.

The third paragraph of the section says that the section applies also to 'fingerprint impressions'.

First para of Section 73.- (a) The 69th Report suggested some amendments in view of the multiplicity of judgments of the Courts. So far as the word 'purported' used in para one is concerned, some High Courts took a narrow view of the meaning of the word 'purported' and said that Section 73 applies only if the disputed writing itself states that it was the writing of the person in question while some other High Courts interpreted the words widely and held that the word 'purport' meant 'alleged'. In fact, the second para of Section 73 permits the Court to direct any person in the Court to write words or figures.

The recommendation in para 33.19 of the 69th Report is that the word 'purports' be substituted by the words 'is alleged'. We agree with this recommendation.

(b) Another controversy was whether the comparison is restricted to comparison by the Court and whether it extends to comparison by an expert or any other person. After referring to the conflict in the case law, and in particular to Kailash Chandra v. Dhobi Barik: AIR 1967 S.C. 771, and M.P. Sharma v. Satish Chandra: AIR 1954 S.C. 300, the 69th Report stated in para 33.23 that while Section 73 does not expressly authorize reference to any expert or other person, the same is not prohibited. For example, the Court may still think of sending the disputed signature to an expert to compare the same with the admitted one or the one which the Court was satisfied, was genuine. It was pointed out that in England under Section 4 of the Criminal Procedure Act, 1865 such comparison can be allowed to be made even by witnesses.

In para 33.28, the 69th Report opined that this is an aspect which certainly needed to be clarified.

Second para of sec. 73: So far as the second para of Section 73 is concerned, the power to compel a witness to give his signature or thumb impression or `writing, it must be noted, does not offend Article 20(3) of the Constitution of India (State of Bombay v. Kathi Kalu AIR 1961 SC 1816.

The 69th Report refers to the judgments of various High Courts which stated that the Court of a Magistrate or similar Court cannot direct signature or thumb impression be given, when a criminal complaint is under investigation and before the Court had taken cognizance of an offence. The reasoning was that the Evidence Act applies only to judicial proceedings and not to stages of investigation. It was therefore recommended in para 33.40 that an Explanation be added. Section 73 does not apply to a criminal Court before it had taken cognizance of an offence. The proposal was to add an Explanation as follows:

"Explanation.- Nothing in this section applies to a criminal court before it has taken cognizance of an offence."

But, in our view, it should not appear that at the stage of investigation, such a power could not at all be vested in a court. It would be necessary to add the following words before the words "Nothing in this section",

"Without prejudice to the provisions of any other law"

Third para of sec. 73: So far as the third para of Section 73 is concerned, the 69th Report recommended in para 33.41 that the section should also apply to "palm impressions, footprints and type writing." In that connection, it was pointed out that these words in Section 45 were also to be included. (We have, however, proposed to add the word 'identity' in Section 45.) We accept the said recommendation.

Going by the above recommendations which are accep to us subject to the slight modification suggested, the section should be redrafted as follows:

"73. Comparison of signature, writing or seal with others admitted or proved.- (1) In order to ascertain whether a signature, writing or seal is that of the person by whom it is alleged to have been written or made, any signature, writing or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared by the Court or under its orders with the one which is to be proved, although that signature, writing or seal has not been produced or proved for any other purpose.

(2) The Court may direct any person present in Court to write any words or figures for the purpose of comparison of the words or figures so written with any words or figures alleged to have been written by such person.

(3) This section applies also, with any necessary modifications, to finger impressions, palm impressions, footprints and type-writing.

(4) Without prejudice to the provisions of any other law for the time being in force, nothing in this section shall apply to a criminal Court before it has taken cognizance of an offence."

Section 73A:

This section refers to 'proof as to verification of digital signatures' and was incorporated by the Information Technology Act, 2000 (Act 21/2000). It reads as follows:

"73A: In order to ascertain whether a digital signature is that of the person by whom it purports to have been affixed, the Court may direct-

(a) that person or the Controller or the Certifying Authority to produce the Digital Signature Certificate;

(b) any other person to apply the public key listed in the Digital signature certificate and verify the digital signature purported to have been affixed by that person.

Explanation.- For the purposes of this section, 'Controller' means the Controller appointed under sub-section (1) of section 17 of the Information Technology Act, 2000."

We do not think that any change is necessary in this section.