Report No. 87
VIII. Overlapping between section 5 and section 73
5.30. Overlapping between section 5, Act of 1920 and section 73, Evidence Act.-
While the above amendments would expand the scope of section 5, there is one point in regard to which its scope may need to be restricted. This is necessary in order to remove a certain amount of overlapping that exists at present between section 5 of the Act of 1920 and section 73, Evidence Act. If one takes the case of a magistrate acting in the course of trying an offence, the overlapping becomes manifest. The magistrate may, at the trial stage, require the person concerned-usually, the accused person-to furnish a specimen of his finger impression not only under section 73, but also under section 5. Section 5 is wide enough to cover the stage of trial, as it covers every "proceeding" under the Code. There exists, thus, an overlapping between the two.1
So far as section 73 is concerned, its scope will, to a certain extent, come to be better defined, after the recommendation2 of the Law Commission on the Evidence Act is implemented. According to the clarification us recommended by the Law Commission, section 73 will apply to a court only after it has taken cognizance of an offence. To this extent the overlapping will be reduced3. But section 5 (unless suitably amended) will continue to apply, inter alia, to the stage after cognizance of an offence by a magistrate and, to that extent, overlapping will continue. It does not need much argument to point out that such overlapping jurisdiction in this matter is not only unnecessary, but also likely to create confusion. For example, section 5 is hedged in with certain safeguards, while section 73 is not. Thus, the question whether safeguards should or should not be complied with in a particular case will depend on the statutory provision resorted to. This should be avoided.
1. (a) Superintendent and Remembrancer of Legal Affairs v. Kiranbala, AIR 1928 Pat 103; (b) 'Zahri... Emperor, AIR 1928 Pat 103.
2. Law Commission of India, 69th Report, para. 33.40.
3. See para. 3.20, supra.