Report No. 69
IV. Section 73-First Paragraph
33.15. Section 73, first paragraph-Meaning of "purports".-
Under the first paragraph of the section, comparison of a disputed writing with what may be called a standard writing is permitted. But a controversy has arisen whether the disputed writing must itself state that it is the writing of the person in question, or whether it is enough if the disputed writing is alleged to be of that person. The former view seems to have been taken in Calcutta.1 The latter view seems to have been taken in Bombay.2
1. See case law, infra.
2. See case law, infra.
33.16. The controversy rests on the words 'purports to have been written or made'. The word 'purports' has been given a narrow meaning by Jenkins C.J. it a Calcutta case,1 where he remarked that the section requires that the disputed writing must itself state or indicate that it was written by that person. This interpretation was repeated in a later Calcutta case.2 The High Court of Bombay has,3 however, taken a wider view on this point Decisions in Madras are conflicting An earlier Madras case4 took the same view as the Bombay High Court, but a later case5 again raises some doubt.
1. Barindra Kumar Ghosh v. Emperor, 1910 ILR 37 Cal 467.
2. Saroini Dasi v. Hari Das, ILR 49 Cal 235: AIR 1922 Cal 12.
3. Emperor v. Ganpat, (1912) 13 Cr LJ 505: 15 IC 649 (Chandavarkar and Batehelor, B.) referred to in Veeraraghave v. Souri, AIR 1919 Mad 951.
4. Veeraraghave v. Souri, AIR 1919 Mad 951 (Ayling and Krishnan, JJ.).
5. Narasingha Rao v. Someshwar, AIR 1957 Mad 210.
33.17. Now, while, on the present wording of the section. there is some-thing to be said for the narrower view (that is, the Calcutta view), there is much to be said in favour of adopting the wider view as a matter of legislative choice. There is no reason why this part of the section should be limited in its scope. when the second paragraph of the section (relating to directing any person present in court to write out words and figures for comparison) contemplates comparison with words or figures alleged to have been written by such a person.
33.18. It may be noted, in this connection, that the corresponding provision in the English statute law viz. section 8 of the Criminal Procedure Act, 18651(which by section 1 thereof, applies to all courts), is wider and runs as follows:
"Comparison of a disputed writing with any writing proved to the satisfaction of the Judge to be genuine shall be permitted to be made by witnesses; and such writings and the evidence of witnesses respecting the same may be submitted to the Court and Jury as evidence of the genuineness or otherwise of the writing in dispute."
1. Section 8, Criminal Law Act, 1865 (English).
33.19. Recommendation to amend the first paragraph.-
In view of what we have stated above, we recommend that the first paragraph of section 73 should be amended by substituting, for he word "purports", the words "is alleged".
33.20. Recommendation by expert-controversy as to.-
Another point relating to the first paragraph1, on which controversy seems to have arisen, is whether the comparison should be by the court, or whether the comparison could be by an expert or by any other person. About the power of the court, there is no dispute in the case law although it is hazardous2
A court is competent to compare the disputed writing of a person with others which are admittedly proved to be his writings. It may not be safe3for a Court to record a finding about a person's writing in a certain document merely on the basis of comparison, but a Court can itself compare the writings in order to appreciate properly the other evidence produced before it in that regard.
1. That is after action taken under second paragraph.
2. Kailash Chandra v. Dhobi Barik, (1974) 1 CWR 58: AIR 1967 SC 771.
3. State v. Vinay Kant, AIR 1967 SC 778, referred to in Kailash Chandra Swain v. Dhobi Barth, (1974) 1 CWR 58 (Yearly Digest): 1974 Column 865.
33.21. Case law.-
As to comparison by an expert under the court's orders such a power may, perhaps, be implied. However, a controversy has arisen on the subject. The controversy this time rests on the words "may be compared"-a verb without a subject mentioned. The case law on the subject may be examined. In a Bombay case1 of 1973, the complainant filed an application, praying that the accused be directed to give his specimen handwriting for use thereof by the handwriting expert to give his opinion whether the letter in question was in the handwriting of the accused and was signed by him. The accused argued that the Magistrate should not, after taking the handwriting of the accused, send it for the opinion of the expert to help the prosecution.
1. R.B. Khajotia v. State of Maharashtra, (1973) 75 Bom LR 116 (Bhole, J.).
33.22. It has been held in one earlier Bombay case1that section 73 would limit the power of the court to direct a person present in Court to write any words or figures only for its own purpose, and such power would not extend so as to permit one or other party to ask the court to take such handwriting for the purpose of its evidence or its own use. This was noted.
The High Court also noted a judgment where2 the Supreme Court held that there was no infringement of article 20(3) of the Constitution by compelling the accused person to give his specimen handwriting or signature or impression of his fingers to the investigating officer or under orders of the court for the purpose of comparison under the provisions of section 73 of the Evidence Act. The point whether the court, after taking such specimen handwriting could, for the purpose of helping the prosecution, send it to the handwriting expert or not, was not for consideration before their Lordships of the Supreme Court.
1. Punam Chand v. State of Madhya Pradesh, (1957) 59 Born LR 1165: AIR 1958 Born 207 (208 para. 7 (Kotwal, J.).
2. M.P. Sharma v. Satish Chandra, 1954 SCR 1077: AIR 1954 SC 300.
33.23. The High Court held that the above ruling of the Supreme Court was of no avail, as the Court was not, in the instant case, concerned with the question of infringement of article 20(3). The Court was concerned with the question whether the Magistrate, after recording the specimen handwriting of an accused in his presence, could help the prosecution by sending it for the opinion of the expert.- Hence the order of the Magistrate directing the specimen hand-writing of the accused so taken in court to be sent to the expert, was set aside.
33.24. True view as to procedure. It seems to us, with respect, that a view that section 73 limits the power of the Court1 is based on a misconception of the true scheme of the Act and the scope of the section. No doubt, section 73 does not authorise the Court to send the specimen to an expert. But, at the same time, the section imposes no prohibition against sending the specimen to an expert. Whatever doubts may exist, de hors section 73, on the question whether legally a court can choose an expert and send the document to him, section 73 certainly does not stand in the way of such a procedure. The section is. in fact, irrelevant to the point.
1. Punam Chand v. State of Madhya Pradesh, AIR 1958 Born 207, (supra).
33.25. Provision in Act of 1855.-
It may be noted that in the Act of 185. section 481 ran as follows:2
"On an enquiry whether a signature, writing or seal is genuine, any undisputed signature, writing or seal of the party whose signature, writing or seal is under dispute may be compared with the disputed one, though such signature, writing or seal be an instrument which is not evidence in the cause."
To the same effect is a Calcutta case.3
1. Section 48, Evidence Act (2 of 1855).
2. See R. v. Amanollah, (1866) 6 WR Cr 5 (Cal).
3. Hiralal v. State, AIR 1958 Cal 123.
33.26. Provision in England (Act of 1865).-
In England, by the Criminal Procedure Act, 1865-which applies to civil proceedings also1-"comparison of a disputed writing with any writing proved to the satisfaction of the judge to be genuine shall be permitted to be made by witnesses; and such writings, and evidence of witnesses respecting the same, may be submitted to the court and jury as evidence of the genuineness or otherwise of the writing in dispute."
It will be observed that the Act in force in England does not contain any prohibition. In fact, it does not require the evidence of expert witnesses; but, in a number of criminal cases, such evidence has been regarded as desirable2, or even necessary.
1. Section 6, Criminal Procedure Act, 1865 (Eng).
2. (a) R. v. Talley, (1961) 1 WLR 1309 (1312) (CCA). (b) R. v. Hanlon, (1961) 1 All ER 286 (293) (CCA).
33.27. Clarification recommended as to procedure for comparison.-
Having regard to the obscurity of the position on the subject, it is desirable to clarify the law. In our view, the comparison should be by the court, or under its orders. If such a provision is expressly made, the court will have power, inter alia, to send the document to an expert. Of course, by "expert", in the above discussion in relation to handwriting, we do not mean only professional experts.1-2
1. R. v. Silverlock, (1894) 2 QB 766 (Crown Cases reserved).
2. cf. section 47.
33.28. Power of the court to direct any person present in court to write any words, or figures is restricted to enable the court itself to compare hand-writing according to a Delhi case.1
It holds that there is no ambiguity or confusion in the phraseology used in the second paragraph of the section. Therefore, the only purpose for which a court may direct any person in the court (including an accused person) to write words Dr figures is to enable the court to compare the words or figures so written with any words or figures alleged to have been written by such person. Where the Purpose of directing a person present in court to write any words or figures is lot to enable comparison of words or figures alleged to have been written by such person but is to enable any of the parties to have the words or figures so written compared from a handwriting expert of that party, the second paragraph )f the section would have no application, according to the Delhi case. This case shows the need for clarification.
1. Pali Ram v. State, 1975 (Del) Cr LJ 1756 (Jagjit Singh and V.D. Misra, JJ.) dissenting from MR (1972) 1 Del 717 (November 1975).