Report No. 69
V. Section 73-Second Paragraph
33.29. Section 73-Second paragraph Constitutional validity-Supreme Court case.-
The second paragraph deals with the power of the court to take certain compulsive measures directing a person to give his signature or thumb impressions. A constitutional question pertaining to this paragraph may first be dealt with. An order forcing the accused to give his signature or thumb-impressions does not violate Article 20(3) of the Constitution. This has now been decided by a majority judgment1 of the Supreme Court.2 No change is required on the above point.
1. State of Bombay v. Kathi Kalu, AIR 1961 SC 1808 (1816, Points (3) and (4) and 1819, 1820 para. 32).
2. See also-
(a) the case law discussed in Mahal Chand v. State, (1960-61) 65 CWN 433 (DB); and
(b) J. Subbash, AIR 1970 Mad 85.
33.30. Comparison pending investigation.-
But controversy has arisen as to the power of the court to direct comparison pending investigation. In one case,1 it has been held that a Magistrate has power under section 73 to direct an accused to give finger impressions as well as specimen writings, and this does not offend against Article 20(3) of the Constitution. In this case, the accused were produced before a Magistrate by the police for taking their specimen signatures and thumb impressions for the purpose of comparison during the course of investigation of the case. The accused refused to give their specimens as such. The Magistrate rejected the request of the police. In revision, the High Court set aside the order of the Magistrate and directed him to obtain the thumb impressions and signatures of the accused, with the observation that this does not fall within the expression "to be a witness" under Article 20(3) of the Constitution of India.
1. Govt. of Manipur v. Thokchom Tomba Singh, AIR 1969 Manipur 22.
33.31. Madras, Kerala and Calcutta view-Comparison not permissible.-
In one Madras case,1 the High Court has taken the view that under section 73, the Court cannot direct a person to give specimen signatures and handwriting pending investigation by the police.2
1. T. Subbia (Accused) v. S.K.D. Ramaswamy (Complainant), AIR 1970 Mad 85.
2. See also Farid Ahmad, AIR 1960 Cal 32 (34).
33.32. The Madras High Court1 has in the above case (dissenting from a Patna case2, held that the court cannot direct a person to give a specimen signature and handwriting pending investigation by the police. The petitioner in the Madras case was arrested by the police in connection with certain offences of cheating, forgery etc., and was subsequently released on bail. Pending investigation, the police filed a Memorandum to the Sub-Divisional Magistrate, requesting him to direct the petitioner to give a specimen signature and hand writing, for the purposes of further investigation. On issue of a notice by the Magistrate, it was held that the Magistrate had no power to direct the accused to give his specimen handwriting or signature in the course of investigation by the police at their instance.
Same is the Kerala view.3
1. Subblah v. Ramaswamy, AIR 1970 Mad 85.
2. Gulzar Khan v. State, AIR 1962 Pat 255 (257), para. 8 (FB).
3. Alaysius John v. State of Kerala, 1966 MUJ (Cr) 298 (Ker) (DB), (Noted in the Year!, Digest).
33.33. It has also been held1 in Orissa that the Court cannot direct the accused to give specimen signatures and handwriting pending investigation of the case by the police. The High Court held that there is no provision in the Code of Criminal Procedure which empowers a magistrate in every context or generally to assist the police in their investigation with a view to securing evidence. Such powers as exist are of a limited character. The provisions of the Identification of Prisoners2 Act, are also silent as to the taking of specimen handwriting or signatures of the accused. This Act confines itself to the securing of "measurements", including the finger impressions and footprints of an accused or a convicted person.
1. Srikant Rout v. State of Orissa, (1972) 2 CWR 1332 (noted in the Yearly Digest) (B.0 Das, J.).
2. Identification of Prisoner Act (30 of 1920).
33.34. In a Calcutta case,1 two criminal Revisions were taken up for hearing together, as they involved a common question of law.
1. Priti Ranjan Ghosh v. State and Gokal Chand Sharma, 77 CWN 865.
33.35. In one case, the petitioner Priti Ranjan Ghosh was directed by the Sub-Divisional Magistrate, Alipore to give specimen hand-writings to an officer of the Central Bureau of Investigation during the investigation of a case against the petitioner. Against this order, the petitioner moved the Sessions Judge, Alipore, but the order of the Sub-divisional Magistrate was upheld. The petitioner then filed a criminal Revision in the High Court.
33.36. In the other case, the petitioner Gokal Chand Sharma was directed by the Chief Presidency Magistrate, Calcutta to give specimen handwritings and signatures for the purpose of investigation of a case against him by the Enforcement Branch of the Calcutta police. The petitioner came up in revision to the High court against this order of the Chief Presidency Magistrate.
33.37. The common question of law which arose in both the criminal Revisions was whether a Magistrate can direct an accused person to give his specimen writings to the police in the course of investigation.
33.38. The High Court accepted both the criminal Revisions, holding that section 73 does not empower a court to direct an accused person to give his land writing or signature in the course of investigation. It quashed the orders of :he lower courts. The High Court held as under:
"After a Court has taken cognizance,1 it has the power to direct an accused person to give his specimen hand writings where the Court itself requires such writings to come to its own conclusion and the Court cannot exercise this power for the benefit of either the prosecution or the defence."
1. Emphasis added.
33.39. Andhra view-Comparison permissible.-
It has, however, been held by the Andhra Pradesh High Court1 that under section 73, the Court does not exceed its powers in directing an accused to give his thumb-impressions to enable he police to make investigation of an offence, and, even in such a case, the purpose s to enable the court before which the accused is ultimately sent up for trial to compare the specimen thumb impressions of the accused with his alleged impressions. It has been further held that the order of a magistrate directing an accused to give his specimen signature for the purpose of investigation does not amount o testimonial compulsion so as to be violative of Article 20(3) of the Constitution.
1. B. Raini Reddy v. State of Andhra Pradesh, 1971 Cr LJ 1891 (AP).
33.40. Clarification recommended as to stage at which second paragraph begins to operate.-
The case law discussed above shows that there is a conflict of views, and a clarification is desirable. We recommend that it should be made clear that the power under the section operates only after a court has taken cognizance. It may be noted that the Evidence Act applies only to judicial proceedings1 and it would be inconsistent with the general scheme of the Act to provide for a power exercisable at an earlier stage.
1. Section 1.
VI. Section 73-Third Paragraph
33.41. Section 73-third paragraph-palm impressions.-
We now come to the third paragraph of the section (finger impressions). Consequential on the amendments1 recommended by us with reference to section 45 as regards palm impressions, footprints, and typewriting, it is necessary to include, in section 73, reference to palm impressions, footprints and typewriting, and we recommend that the section should be suitably amended for the purpose.
1. See, under section 45, discussion relating to palm impressions, footprints and typewriting.
In the light of the above discussion, we recommend that section 73 should be revised as follows:
Revised section 73
"73. (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 or under the orders of the court 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 of figures for the purpose of enabling 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 typewriting.
Explanation.-Nothing in this section applies to a criminal court before it has taken cognizance of an offence."