JUDGMENT
M.K. Chawla, J.
(1) It is well settled proposition that the ordinary -methods of proving handwriting or signature are :
(1)By calling as a witness a person who wrote the document or saw it written or who is qualified to express an opinion as to the handwriting by virtue of Section 47 ;
(2)By the admission of the person against whom the document is tendered;
(3)By comparison of handwriting as provided in Section 73 of the Evidence Act.
In this petition, we are concerned with the third category. Section 73 of the Evidence Act reads as under :
“73.Comparison of signature, writing or seal with others admitted or proved. 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 singature, 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
(2) It is under this provision that the petitioner, one of the accused in a case under Section 61 of the Punjab Excise Act moved an application for taking the specimen signature of his co’accnsed for comparison with his disputed signatures on a document, to the C.F.S.L. This application was rejected by the court below on 24/12/1986 which order is under challenge.
(3) The learned Metropolitan Magistrate dismissed the application inter alia, on the following grounds :-
(A)The ultimate analysis of Section 73 of the Indian Evidence Act: is for the purposes of enabling the court to compare the handwriting so written with the disputed handwriting by such person ;
(B)It is not permissible and justifiable for the court to ask one accused” at the instance of the co-accused to furnish his specimen handwriting and signatures to enable the said accused to prove his. defense version;
(C)If any such directions are issued at the instance of one accuser against the co-accused that will amount to assisting one accused against another, which is not justified under any circumstance
(D)Moreover, issuing of such a direction at the instance of one accused against the co-accused will amount to enforcing the latter to give evidence against himself which is also not permissible under the law;
(4) The reasoning given by the learned Metropolitan Magistrate according to the learned counsel, is contrary to law. However, in order to understand the scope of this provision, few facts need mentioning.
(5) At about 5.15 P.M. on 26/6/75, a raiding party headed by Public Witness Jagtar Singh, Head Constable, Along with other police officers apprehended car No. Dlv 292 near the crossing of Pankha Road-Janakpuri, New Delhi. From the search, 5 gunny-bags containing half-bottles of Haryana Excise liquor were recovered. At that time the car was being driven by Jagdev Singh, respondent No. I in this petition. He was accompanied by respondent No. 2 Panna Lal. It is the case of the petitioner that he being the registered owner of the said car was summoned from his residence and was shown to be present and trying to run away from the car after his apprehension by the police. A case under Section 61 of the Punjab Excise Act was registered against the petitioner and the two respondents. After the charge was framed, the prosecution examined and closed their evidence. The petitioner in his defense relied upon a letter dated 10/7/1975 written executed by Jagdev Singh, the co-accused. The petitioner has alleged that the writing of this letter Ex. D/A is in the hand of Mitter Sain, who is also an attesting witness. This letter also bears the signature of Jagdev Singh with the stamp of Neeraj Motors Workshop of which Jagdev Singh is the proprietor. It is not disputed that this writing has since been proved by Mitter Sain as DW-2/DA while appearing as defense witness.
(6) It is the case of the petitioner that in order to prove the signature of Jagdev Singh on the said letter, he moved an application under Section 294 of the Code of Criminal Procedure, calling upon Jagdev Singh to admit/deny the genuineness of the letter Ex. Dw 2/DA. Jagdev Singh refused to admit or deny the said writing taking up the plea that he was not obliged to admit/deny the said writing. His objection was upheld by the learned Metropolitan Magistrate vide order dated 1/12/1985.
(7) The petitioner made another attempt to prove the signature of respondent No. I on this letter and moved a fresh application under Section 73 of the Indian Evidence Act alleging therein That in the interest of justice, it is essential that the specimen signatures of accused Jagdev Singh be taken in court, in order to ascertain the genuineness of the document Ex. DW2/DA. After taking the specimen signatures, they be sent for comparison to the office of the C.F.S.L. Along with his disputed signatures. As observed earlier, this prayer was disallowed.
(8) To direct a person to write words of figures for the purpose of comparison, there must be :
(I)a cause before the court.
(II)the person so directed must be a party to the cause ;
(III)he should be present in court in respect of the said cause ; and
(IV)such comparison must be necessary to determine the issue raised in the said cause. Section 73 is quite general in its terms and applies to all cases and there is no exemption in favor of the accused person. It is open to the court to direct an accused to give his writing in court for the purpose of comparison by the handwriting expert and make such use of it as the court is entitled to. A mere direction to an accused to write any words or figures cannot be said to amount to the making of an order to the prejudice of the accused under Section 439(2) of the Code of Criminal Procedure.
(9) None of the grounds which made the basis of the dismissal of the application survives if one only refers to the Judgment reported as State (Delhi Administration) v. Pali Ram, 1979 Cri. Law Journal, 17. Under similar circumstances, the full Bench of the Supreme Court held as under :- “A Court holding an enquiry under the Code of Criminal Procedure in respect of an offence friable by itself or by the court of Sessions does not exceed its powers under Section 73, if, in the interest of justice, it directs an accused 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, irrespective of whether his name was suggested by the prosecution or the defense, because even in adopting this course, the purpose is to enable the court before which he is ultimately put up for trial to compare the disputed writing with his (accused) admitted writing and to reach its own conclusion with the assistance of an expert.”
(10) The learned Metropolitan Magistrate did refer to the above said judgment of the Supreme Court but he tried to distinguish the same on the facts of this case but to my mind, he has travelled beyond the ratio discendi, which lays down that it is not essential that the accused should be required to give his specimen handwriting/signature at the instance of the court alone. Such a request can emanate from the side of the prosecution or the defense, inasmuch as the purpose is to enable the court before whom the accused is ultimately put up for trial to compare the disputed writings with the accused admitted writings with a view to reach its own conclusion with the assistance of a handwriting expert.
(11) I also do not find any substance in the reasoning of the Metropolitan Magistrate that his order calling upon the accused to give his specimen writing will cause prejudice to his defense or will help the prosecution to plug the loopholes. The courts are meant to do justice between the parties. If one of the accused can prove that he is innocent and his innocence can be established by a writing of the co-accused, the courts should not shirk their responsibility to do justice in securing the assistance of an expert to enable the court to arrive at ajustdecision. The fact that this may result in filling up the loopholes is purely a subsidiary factor which .must give way to the paramount consideration of doing justice between the parties.
(12) As regards the contention of the Metropolitan Magistrate that the furnishing of specimen writing would amount to testimonial compulsion, it is quite contrary to the observations of the Supreme Court in the Judgment reported as State of Bombay v. Kathi Kalu Oghad, , in which it was observed that giving of thumb-marks or impressions of foot or palm or fingers of specimen writings or showing parts of the body by way of identification are not included in the expression “to be a witness”. An accused person furnishes evidence when he is giving specimen handwriting or impression of his fingers or palms or foot but he does not furnish evidence against himself in so doing within the meaning of Article 20(3) of the Constitution of India.
(13) On these grounds, the reasoning of the learned Metropolitan Magistrate, in dismissing the application is quite contrary to the law laid down by the Supreme Court and cannot be allowed to stand, I, therefore, allow the petition and set aside the order of the Court below dated 24/12/1986. The learned Metropolitan Magistrate will now issue directions to the accused to write down the sample writing/his signatures. If the accused refuses to comply with the directions, it will be open to the court to draw under Section 14 of the Evidence Act such adverse presumption as may be appropriate in the circumstances of the case. If the accused complies with the direction, the Court will in accordance with its powers send the writing so obtain to the office of the C.F.S.L. for comparison with the disputed writing and then examine him as a court witness.
(14) The parties are directed to appear before the lower court on 2/3/1987.