Holding

Section 73 of the Evidence Act does not enable a magistrate to direct an accused to give specimen writing while the case is still under investigation; such direction is permissible only when a proceeding before the court requires comparison of writings.

Summary

The State of Uttar Pradesh investigated Ram Babu Misra for offences under Sections 120‑B, 420, 468 and 471 IPC and asked the Chief Judicial Magistrate to order the accused to provide a specimen writing for comparison with disputed documents. The magistrate refused, holding that Section 73 of the Evidence Act did not empower him to give such a direction while the case was still under investigation; the High Court affirmed this view. On appeal, the Supreme Court examined the language of Section 73, which permits a court to direct a person present before it to give specimen writing "for the purpose of enabling the Court to compare" – implying an existing proceeding before the court. Since no proceeding existed during the investigation, the Court held that the magistrate lacked authority to issue the direction. The Court dismissed the appeal and suggested that legislation similar to Section 5 of the Identification of Prisoners Act could be enacted to grant such power to magistrates.

Issues considered

Whether Section 73 of the Indian Evidence Act empowers a magistrate to direct an accused to give specimen writing when the matter is still under investigation and no proceeding is pending before the court.
Whether the provision of Section 73 applies equally to civil and criminal courts for the purpose of obtaining specimen writings.

Legislation cited

Subjects

Evidence ActSection 73specimen writingmagistrate powerinvestigation stagesignature comparisoncriminal procedureIdentification of Prisoners Act

Judgment

l 067

• STATE OF U.P.
v.
A

RAM BABU MISRA
February 19, 1980

(R. S. SARKARIA AND 0. CHINNAPPA REDDY, JJ.]
B
Evidence Act, 1872, Section 73-Scope of-Comparison of signature, writing
or seal with others adn1itted or proved-Competency of the Magistrates to gtve
directio1l to the accused to give specimen signature when the case is sti!J under
investigation.
Dismissing the appeal by special Jea\·e, the Court :

HELD : Though a direction by the Magistrate to the accused to give his
c
specimen writing when the case is still under investigation would ~urely be
in the interests of the administration of justic'e, Section 73 of the E\rideace Act
does not ena.ble the Magistrate to give such a direction when the case is still
under investigation. [1068G-H]

The second paragraph of Section 73 'enables the Court to direct any person
present in Court to give specimen writings "for the purpose of enabling the
D
• Court to compare" such writings with writings alleged to have been written
by such p'erson. The clear implication of the words "for the purpose of en-
abling the Court to compare" is that there is 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 for the purpose of enabling the inves- E
tigating or other agency 'to compare'. If the case is still under investigation
there is no present proceeding before the Court in which or as a consequence
of which it might be necessary to compare the writings. The language of
Section 73 does not permit a Court to give a direction to the accused to give
~pecimen writings for anticipated necessity for comparison in a proceeding
which may later be' instituted in the Court. [1069D-F]
I!'
(ii) Section 73 of the Evidence Act m•akes no distinction between a Civil
Court and a Criminal Court. It would not be open to a person to seek tlre
assistance of the Civil Court for a direction to some other p'erson to give ·sample
writing under section 73 of the Evidence Act on the pl'ea that it would help him
to decide whether to institute a civil suit in Which the question would be whether
certain alleged writing5 are those' of the other person or not. That being the
position, it should not make any difference if the investigating a.gency seeks G
the assistance of the court under section 73 of the Evidence Act ori the plea
that a case might be instituted before the Court where it would be necessary
to compare the writings. [1069G-H]

State (Del/ii Admn.) v. Pali Ram, [1979] 1 SCR 931 and State of Bombay
v. Kathi Kalu Oghad, AIR 1961 SC 1808; distinguished,

State of Bombay v. Kathi Kalu Oghad, AIR 1961 SC 1808; T. Subbaiah v. R
S. K. D. Ramaswamy Nadar, AIR 1970 Mad. 85; Farid Ahmed v. The State,
AIR 1960 Cal. 32; Priti Ran;an Ghosh and others v. The State, 77 C.W.N.
1068 SUPREME COURT REPORTS [1980] 2 s.c.R.

A 865; Dharamvir Singh v. State, 1975 Crl. L.J. 884 (Pb. & Haryana); Brii •
Bhusha11 Raghunandan Pd. v. The State, AIR 1957 M.P. 106; and Srikant Rout
v. State of Orissa, 1972 (2) CUttack Weekly Reporter 1332; appr<'\''d.

Guizar Khan and Ors. v. State, AIR 1962 Patna 255 and B. Rami Reddy
and Ors. v. State of A.P., 1971 Crl. L.J. 1591 (AP); over-ruled.
[The Court suggested that suitable legislation may be made on the analogy
B of s. 5 of the Identification of Prisoners Act, to provide for the investiture of
Magistrates \Vith the power to issue directions tO :1ny per~on, i:r:icluding an
accused person, to give specimen signatures and \Vritings.]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 811 of 1979.
Appeal by special leave from the Judgment and Orde~ dated
c 18-12-1970 of the Allahabad High Court in Cr!. Revision No. 170 of
1975.
0. P. Rana and M. Ramachandran for the Appellant.
Nemo for the Respondent.
The Judgment of the Court was delivered by
D
CHINNAPPA REDDY, J.-The Officer who was investigating into
offences under Section 120-B, 420, 468 and 471 Indian Penal Code
'
alleged against the respondent, Ram Babu Misra, moved the Chief
Judicial Magistrate, Lucknow, to direct the accused to give his specimen
••
writing for the purpose of comparison with certain disputed writings.
E The leruved Magistrate held that he had no power to do so when the
case was still under investigation. His view has been upheld by the
High Court. "'he State has preferred this appeal by Special Leave of
this Court.
Shri 0. P. Rana, learned Counsel for the appellant, contended that
Section 73 of the Evidence Act conferred ample power on the Magis-
F
trate to direct the accused to give his speciruen writing even during
the course of investigation. He also urged that it would be generally
in the interests of the administration of justice for the Magistrate to
direct the accused to give his speciruen writing when the case was still
under investigation, since that would enable the investigating agency
G not to place the accused before the Magistrate for trial or enquiry, if
the disputed writing, as a result of comparison with the specimen
writing, was found not to have been made by the accused. While we
agree with Mr. Rana that a direction by the Magistrate to the accused
to give his specimen writing when the case is still under investigation
would surely be in the interests of the administration of justice, we
H find ourselves unable to agree with his submission that s. 73 of the
Evidence Act enables the Magistrate to give. such a direction even when
the case is still under investigation. f "'
U.P. STATE v. RAMDABU (Chinnappa Reddy, J.) 1069

Section 73 of the Evidence Act is as follows :
•
"73. 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 B
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 c
or figures alleged to have been written by such person.

This sectton applies also, with any necessary modifications
to finger-impressions".

T~e second paragraph of section 73 enables the Court to direct any D
person present in Conrt to give specimen writings "for the purpose of
• enabling the Court to compare" such writings with writings alleged
to have been written by such person. The clear implication of the
words "for the purpose of enabling the Court to compare" is that
' l
there is some proceeding before the.Court in which or as a consequence
of which it might be necessary for the Court to compare such writings. E
The direction is to be given for the purpose of 'enabling the Conrt to
compare' and not for the purpose of enabling the investigating or other
agency 'to compare'. If the case is still under investigation there is no
present proceeding before the Court in which or as a consequence of
which it might be necessary to compare the writings. The language of
section 73 does not permit a Court to give a direction to the accused ~ F
to give specimen writings for anticipated necessity for comparison in
a proceeding which may later be institnted in the Court. Further
section 73 of the Evidence Act makes no distinction between a Civil
Conrt and a Criminal Court. Would it be open to a person to seek
the assistance of the Civil Conrt for a direction to some other person G
to give sample writing under section 73 of the Evidence Act 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 ? Obviously not. If not, why should
it make any difference if .the investigating agency seeks the assistance
of the Court under s. 73 of the Evidence Act on the plea that a case H
might be instituted before the Court where it would be necessary to
compare the writings .?
1070 SUPREME COURT REPORTS [1980] 2 S.C.R.

A We may also refer here to Section 5 of the Identification of
Prisoners Act, 1920, which provides : •
"5. If a Magistrate is satisfied that, for the purposes of
any investigation or proceeiling under the Code of Criminal
Procedure, 1898, it is expedient to direct any person to allow
B his measurements or photograph to be taken, he may make
an order to that effect, and in that case the person to whom
the order relates shall be produced or shall attend at the time
and place specified in the order and shall allow his measure- •
ments or photograph to be taken, as the case may be, by a
police officer :
c Provided that no order shall be made directing any person
to be photographed except by a Magistrate of the first class :
Provided further, that no order shall be made under this
section unless the person has at some time been arrested in
connection with such investigatiou or proceeding".
D Section 2(a) of the Act defines "measurements" as 'including "finger
impressions and foot print impressions".
•
There are two things to be noticed here. First, signature and

E
writing are excluded from the range of s. 5 of the Identification of
Prisoners Act and, second, 'finger impression' are included in both
s. 73 of the Evidence Act and s. 5 of the Identification of Prisoners Act.
. )

A possible view is that it was thought that s. 73 of the Evidence Act
would not take in the stage of investigation and so s. 5 of the Identifi-
cation of Prisoners Act made special provision for that stage and even
while making such provision, signature and writings were deliberately
excluded. As we said, this is a possible, view but not one on which
F we desire to rest our conclusion. Our conclusion rests on the language-
of s. 73 of the Evidence Act.
Section 73 of the Evidence Act was considered by us in State
(Delhi Administration) v. Pali Ram('), where we held that a Court
holding an enquiry under the Criminal Procedure Code was entitled
G under s. 73 of the Evidence Act to direct an accused person appearing
before it to give his specimen handwriting to enable the Court by which
he may be tried to compare it with disputed writings. The present
question whether such a direction, under s. 73 of the Evidence Act,
can be given when the matter is still under investigation and there is
no proceeding before the Court was expressly left open. The question
B was also not considered in State ·of Bombay v. Kathi Ka/11 Oghad,(')
(!) [1979] 1 S.C.R. 931.
(2) AIR 1961 SC 1808.
U.P. STATE v. RAMBABU (Chinnappa Reddy,!.) I 071

where the question which was actually decided was that no testimonial t\
• compulsion uhder Art. 20(3) of th;o Constitution was involved in a
direction to give specimen signature and hand-writing for the purpose
of comparison.
The view expressed by us in the earlier paragraphs, on the construc-
tion of s. 73, Evidence Act was the view taken by the Madras High 8
Court in T. Subbiah v. S. K. D. Ramaswamy Nadar('), the Calcutta
High Court in Farid Ahmed v. the State(') (Mitter J., at page 32). and
Prill Ranjan Ghosh & Ors. v. The State('), the High Court of Punjab
and Haryana in Dharamvir Singh v. State('), the High Court of
Madhya Pradesh in Brij Bhushan Raghunandan Prasad v. The
, State(•), the Orissa High Court in Srikant Rout v. State of Orissa( 6 ) C
and the Allahabad High Court in the judgment nnder appeal. A
contrary view was taken by the Patna High Court in Guizar Khan &
Ors. v. State(') and the High Court of Andhra Pradesh in B. Rami
Reddy & Ors. v. State of Andhra Pradesh. ( 8 ) We do not agree with
the latter view. We accordingly dismiss the appeal. and while doing
so We would suggest the suitable legislation may be made on the ana- D
logy of s. 5 of the Identification of Prisoners Act, to provide for the
• investiture of Magistrates with the power to issue directions to any
person, including an accused person, to give specimen signatures and
writings.
E
s. R. Appeal dismissed.

(I) AIR 1978 Mad. 85.
(2) AIR 1960 cal. 32.
(3) 77 C.W.N. 865.
(4) 1975 Crl. L. J. 884 (Pb. & Haryana).
(5) AIR 1957 M. P.106.
(6) 1972(2) Cuttack Weekly Reporter 1332.
(7) AIR 1962 Patna 255.
(8) 1971 Crl. L. J. 1591 (A.P.).
J4-138SCI/80