Kerala High Court
Kumaran Nair vs Bhargavi And Anr. on 9 April, 1987
Equivalent citations: 1988CRILJ1000
ORDER S. Padmanabhan, J.
1. In a proceeding under Section 125 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') respondents 1 and 2 (mother and minor child) claimed maintenance from the petitioner who denied marriage and paternity. A letter, Ext. P2 marked subject to proof, denied by the petitioner, but having bearing on the question of paternity and marriage, was sought to be sent to the expert after obtaining the specimen signature of the petitioner. This petition filed under Section 482 of the Code is to quash the order allowing the prayer.
2. The order could have been passed only under Section 73 of the Evidence Act, which reads:
In order to ascertain whether a signature, writing or seal is that of the person by whom it purports 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 with the one which is to be proved, although that signature, writing or seal has not been produced or proved for any other purpose.
The Court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person.
This section applies also, with any necessary modifications, to finger-impressions.
3. Article 20(3) of the Constitution provides that no person accused of any offence shall be compelled to be a witness against himself. A person against whom a proceeding under Section 125 of the Code is pending cannot be a person accused of any offence. What is involved is only enforcement of a liability and not punishment for a crime. Further, a direction to give the specimen handwriting or signature for comparison will not amount to testimonial compulsion also. Article 20(3) does not say that an accused person shall not be compelled to be a witness. It only says that he shall not be compelled to be a witness against himself. By giving specimen handwriting or impression he is not giving evidence against himself. It becomes evidence against him only when after due comparison with it and formation of opinion it is ultimately found that the disputed writing or impression is that of himself. Section 73 of the Evidence Act therefore, does not offend Article 20(3) of the Constitution because by giving a direction under the section to give the specimen handwriting or signature or impression the Court does not compel him to be a witness against himself. This position of law is well settled and therefore there was no argument based on Article 20(3) of the Constitution.
4. The argument was that the direction by the court to write any words or figures under the second part of Section 73 of the Evidence Act could only be for the purpose of enabling the court to make a comparison by itself with the disputed words or figures and not for anything else. In other words the argument was that the court is not having the jurisdiction under Section 73 to give a direction to write any words or figures in order to enable the prosecution in a criminal case or the opposite party in a civil case to use it as evidence after getting it compared by an expert.
5. In this connection the learned Counsel for the petitioner brought to my notice a decision of mine in Lilly v. Vijayalaxmi 1985 Ker LT 696. In that decision I had occasion to hold that a direction under Section 73 of the Evidence Act to give the specimen handwriting or signature could only be within the limits allowed by law and there cannot be a compulsion. So also it was held:
If that direction, which is within the law, is disobeyed, a presumption under Section 114 of the Evidence Act will be the legitimate consequence. A direction under Section 73 of the Evidence Act cannot be given for the purpose of enabling the opposite party to use the same as evidence against the person who has given the specimen handwriting or signature.
That decision was concerning a private complaint in which, even before the trial started, the complainant anticipated the possibility of the genuineness of a receipt being denied by the accused. In order to overcome the possible contention the complainant wanted the court to get his specimen handwriting and signature for being compared by the expert. The Court did not feel that it was necessary for its own purpose to take such writing and signature in order to compare with the disputed writing and signature. Therefore the prayer was rejected. That decision was rendered on a petition filed by the complainant under Section 482 of the Code to quash the order. Para. 6 of that decision shows that even the petitioner in that case conceded that only a direction could be given and there cannot be any compulsion if the respondent refused. What the petitioner in that case wanted was only the advantage of an adverse presumption, under Section 114 of the Evidence Act consequent on the refusal of the respondent to give the handwriting or signature. So also the decisions of the Supreme Court in State (Delhi Administration) v. Pali Ram and State of U. P. v. Ram Babu did not come to my notice at that time, Basing on the decisions in State v. Poonamchand , Subbiah's case and R.B. Khajotia v. A.S.T. Zaidy 1973 Cri LJ 1499 (Bom) that decision only held that a direction under Section 73 of the Evidence Act could be had only when the court itself is of the view that it is necessary for its own purposes and not for being used by the investigating officer or the opposite party as evidence. The main question for decision in that case was whether the order refusing the prayer amounted to an abuse of the process of court.
6. Here we are dealing with an entirely different situation. The document was produced in court in a proceeding under; Section 125 of the Code and it was marked subject to proof. The court felt the necessity of the genuineness of that document being considered by comparison with the specimen (admitted) handwriting. In making such a comparison probably the court wanted assistance of the opinion of an expert. A direction was given accordingly. We are at the question whether that direction is liable to be quashed in exercise of the inherent powers as an abuse of the process of court. Competency of the court to issue such a direction under Section 73 of the Evidence Act for the purpose of enabling it to compare it with the disputed writing is not in doubt. The only question for consideration is whether the direction is really for that purpose or whether it is to enable the opposite party to be used as evidence and therefore illegal.
7. There cannot be any dispute regarding the fact that the provisions of Section 73 of the Evidence Act are equally applicable to the civil and criminal courts. In order to ascertain whether a signature, writing or seal is that of of the person by whom it purports to have been written or made, both the courts are having the right under the first part of Section 73 to compare them with any signature, writing or seal admitted or proved to its satisfaction to have been written or made by that person. The second part of Section 73 of the Evidence Act only enables the court to issue a direction to any person present in court to write words or figures for being treated as admitted or proved writing or signature to be compared with the disputed words or figures to form an opinion whether the disputed words or figures were written by the person who purports to have written them.
8. The scope and ambit of Section 73 of the Evidence Act was considered by the Supreme Court in State (Delhi Administration) v. Pali Ram in the legislative background of the provision. Section 73, like many other provisions of the Evidence Act, is modelled after the English Law of Evidence as it existed then. Section 8 of the English Criminal Procedure Act, 1865 permitted comparison of a disputed writing, with any writing proved to the satisfaction of the judge to be genuine, to be made by witnesses. Such writings and the evidence of the witnesses was allowed to be submitted to the court and the jury as evidence of genuineness or otherwise of the writing. So also courts were permitted to obtain specimen writings and compare them with the disputed writings either by witnesses acquainted with the writings or by witnesses skilled in deciphering or by the jury themselves without the intervention of any witness, or by the court itself when there is no jury. Courts were also competent to direct, the suspected author of the disputed writing, present in court, to write in his presence to be compared with the document in question. Section 73 of the Evidence Act, in substance, is a reproduction of the English Law.
9. The Indian Evidence Act, just like the English law, recognises proof of handwriting by admission of person who made it or by evidence of witnesses who saw it written. There are three other methods of proof by opinion and they are (1) by the evidence of handwriting experts as provided in Section 45, (2) by the evidence of witnesses acquainted with the handwriting (not experts) as provided in Section 47, and (3) By the opinion formed by the court on comparison made by itself as provided in Section 73. All these three methods involve a process of comparison. A sample taken by court under the second para of Section 73 is really the admitted writing within the meaning of the first para also. The first para also provides for comparison, but does not specify by whom the comparison is to be made. These two paras of Section 73 are not mutually exclusive, but they are complementary to each other. There cannot be any dispute that the comparison mentioned in the first para, could be as provided in Sections 45 and 47. If Section 73 is read as a whole in the light of Sections 45 and 47 it is clear that the court does not exceed its powers under Section 73, if in the interest of justice, it directs any person present in court to give his sample writing enabling the same to be compared by an expert, because even in adopting such a course, the ultimate purpose is to enable to court to compare a disputed writing with the admitted writing.
10. Although there is no legal bar to the presiding officer using his own eyes to compare the disputed writing with the admitted writing, even without assistance from the opinion of an expert or a non-expert, he being not an expert in the field and since there is possibility of mistakes, as a matter of prudence and caution, the presiding officer will have to hesitate to base his finding on his independent opinion alone solely on comparison made by himself. The prudent course is to obtain the opinion and assistance from an expert. The expert is not acting as judge or jury. His real function is to put before court all the materials together with reasons which induce him to come to the conclusion, so that the court, although not an expert, may form its own judgment by its own observation of the materials. The expert's function is only to opine after a scientific comparison of the two writings considering the similarities and dissimilarities. Whether it be under Section 45 or Section 47 the evidence is only opinion and not finding and it is for the court to decide, by such means that are open, that the opinion may be acted upon. One such means open to the court is to apply its own observation to verify the premises of the expert or to appraise the value of the opinion given by the non-expert. Direction given by the court under Section 73 to write down a sample writing is, therefore, only for the purpose of ultimately enabling the court to compare the writings and form an opinion of its own, When Sections 45, 47 and 73 are read together and Section 73 is read as a whole it could be seen that the direction mentioned in the second part of Section 73 for the purpose of enabling the court to compare is for ascertaining what is contemplated in the first part and forming an opinion by comparison. Such comparison and formation of opinion could be had not only solely on the comparison made by the court without any other assistance, but in the manner provided under Sections 45 and 47 also.
11. What emerges from the discussion is that the court does not exceed its powers under Section 73 of the Evidence Act if, in the interest of justice, it directs a person appearing before it, whether it is a civil or criminal court, to give sample writing to enable the same to be compared by a handwriting expert, because even in adopting this course, the purpose is to enable the court to compare the disputed writing with the admitted writing and to reach its own conclusion with the assistance of the expert. There is nothing in Section 73 which ousts the jurisdiction of the court in getting the opinion of an expert by comparison of the disputed and admitted writings in order to enable the court to compare the specimen writing with the disputed one to reach its own conclusions, notwithstanding the fact that in the first instance, the court thinks it necessary in the interest of justice to have the advantage of the opinion and assistance of an expert,
12. In these petitions I was only following the decision of Supreme Court in State (Delhi Administration) v. Pali Ram . That was a case in which the Magistrate allowed the prayer to get the specimen writing and send it for expert opinion in the interests of justice to enable the court to form an opinion. In appeal the High Court held that when the purpose of directing a person present in court to write any words or figures is not to enable the court to compare the words or figures with any 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 para, of Section 73 would have no application. Reversing that decision the Supreme Court said that the court does not exceed its powers under Section 73 if, in the interest of justice, it directs a person appearing before it, to give his sample writing to enable the same to be compared by a handwriting expert chosen or approved by the court, because even in adopting this course, the purpose is to enable the court to make the comparison and reach its own conclusion with the assistance of the expert. It was also held that refusal of the direction will enable the court to draw under Section 114, Evidence Act, such adverse presumption as may be appropriate in the circumstances.
13. The same Honourable Judges who decided that case considered another aspect while rendering the decision in State of U. P. v. Ram Babu . It was held therein that "for the purpose of enabling the court to compare" there must be some proceeding before the court in which or as a consequence of which it might be necessary for the court to compare such writings. The direction is to be given for the purpose of 'enabling the court to compare' and not to enable the investigating officer or some other party or agency to compare. Therefore it was held in that decision that the language of Section 73 does not permit a court to give a direction to the accused to give specimen writings for anticipated necessity for comparison in a proceeding which may later be instituted in a court. On the basis of that opinion it was found that though a direction to the accused to give his specimen writing when the case is still under investigation would be within the interest of administration of justice, the language of Section 73 of the Evidence Act does not enable such a direction when the case is still under investigation because the Section contemplates pendency of some proceedings before a court. For the same reason it was held that it would not be open to a person to seek the assistance of the civil court for a direction under Section 73 to some other person to give sample writing on the plea that it would help him to decide whether to institute a civil suit in which the question would be whether certain alleged writings are those of the other person or not. Their Lordships also compared Section 5 of the Identification of Prisoners Act, 1920 and Section 73 of the Evidence Act and said that exclusion of 'signature and writing' in Section 5 and inclusion of 'finger impression' in both are indicative of the fact that Section 73 of the Evidence Act is not intended to take in the stage of investigation.
14. I am of opinion that the Magistrate was well within his competence when he gave a direction under Section 73 for the purpose of comparison by an expert to enable him to form an opinion by comparison. No illegality or abuse of the process of court is involved justifying interference by this Court because the ultimate object and purpose is to decide in the interest of justice whether Ext. P2 was written by the petitioner or not. A decision on that question is relevant to enable the court to come to a proper finding on the disputed questions. I do not understand why the petitioner is so much aggrieved by the order. If the letter was not written by him he need not be worried about the comparison by the expert. If it is otherwise it is the duty of the court to arrive at the truth.
The petition has no merit and it is hereby dismissed.