LexSTATE (DELHI ADMINISTRATION) versus PALI RAM
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) • 931 STATE (DELHI ADMINISTRATION) v. PALI RAM September 26, 1978 £R. S. SARKARIA AND 0. CJIINNAPPA REDDY, JJ.J Indian Evidence Act, 1872-Section 73-Scope of. Section 73 of the Indian ENidence Act provides that in order to asceftair. whether a writing is that of the person by whom it purports to have been written any writing admitted or proved to the satisfaction of the court to have A B been written by that person may be compared with the one which is to be proved, although that signature, writing has not been produced or proved for C any other purpose. Para 2 of the section provides that the court may direct any person pre.sent in court to v.·rite in words or figures for the purpose of ·enabling the court to compare words or figures alleged to have been written by such person. In the course of criminal proceedings before a piagistrate the prosecution alleged that one of the basic documents which was of vital importance to D establish the case against the accused was in the handwriting Of the accused but it could not be compared by the handwriting expert with any specimen writing of the accused because the latter avoided to· give any specimen writ- ing ·and 'that in the interest of justice the court should direct him to give his specimen writing. Exercising the court's power under s. 73 of the Evidence Act the Magistrate directed the accused to give his specimen handwriting to have it examined by a handwriting expert. E Revision preferred by the accused was dismissed by the Sessions Judge. The l'.ligh Court, in the revision petition filed by the accused.~ held that . the only purpose for which a court may direct any person present in the court (including the accused person) to write words is to enable the court to com- pare the words and figures with any iwords and figures alleged to have been written by such person but where the purpose is to enable any of the parties to have the words so written compared from a handwriting expert of that party, the second paragraph of s. 73 would have no application. The High Court therefore held that the order of the Magistrate was beyond the scope of s. 73. AJlowing the appeal, HELD : The Magistrate did not act beyond the scope of s. 73 of the Evidence Act or in a manner which is not legal. I. The two paragraphs of s. 73 are not mutually exclusive, but comple- mentary to each other. The sample writing taken by the Court under the second paragraph of s. 73 is in substance and reality, the same thing as "'admitted writing" within the purview of the first paragraph of s. 73. The first paragraph does not specifically say by whom such comparison may be made but such comparison may be made by 11 handwriting expert (s. 45), or by one familiar with the handwriting of the person concerned (s. 47) or by the court, The section should be read as " whole in the light of s. 45. Thus F G H A B 932 SUPREME COURT REPORTS [1979] 1 s.c.R. read it is clear that a court holding an enquiry under the Code of Criminal Procedure in respect of. en offence triable by itself or by the Court of Session, does not exceed its powers under s. 73 if in the interests of justice it directs an accused person to give his sample writing to enable the same to be com· pared by a handwriting expert chosen or approved by the court, it is imnlate- r,ial whether the expert's name was suggested by the prosecution or the defence because even in adopting this course the purpose is to enab1e the court to compare the disputed writing with his admitted writing and to reach its own conclusion' with the assistance of an expert. [942G-H) In the instant case the circumstances which weighed with the Magistrate in making the order, included the contumacious conduct of the accused and the resiling of the material witness. lt was apparent from the record that the accused was playing the game of hide and seek with the process of law. The C Magistrate therefore had good reason to hold that the assistance of the Gov- ernment Expert was essential in the interests of justice to enable the Magis~ trate to compare the sample with 'ilie questioned writing with expert assistance. Although the specimen handwriting was sought to be used for comparison by the expert the ultimate purpose was to .enable the court to compare that specimen writing with the disputed one. [943E-FJ D 2. Tue fact that the Magistrate's order ·might result in filling up of loop·· holes in
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