The power to direct a person to furnish specimens of handwriting or signatures under Section 73 of the Indian Evidence Act is limited to cases where the court itself requires such evidence for its own purposes, and cannot be exercised at the instance of the prosecution.

1. This is a reference made by the Second Additional Sessions Judge, Nagpur, recommending that the order of the Special Magistrate, Nagpur dated 18-4-1956, passed in Criminal Case No. 1 of 1949 should be set aside.

2. The circumstances under which that order came to be made may be briefly stated. The non-applicants and several other persons, 48 in number, were prosecuted on charges under sections 120B, 409, 46B, 420, 193 and 109 Of the Indian Penal Code for offences alleged to have been committed by them in various places in India between the dates 1-1-45 and 1-4-56. The challan in this much protracted trial was put up before the trying Magistrate, as far back as 16-8-49. At the stage at which the question in dispute arose, the prosecution had examined 232 witnesses before the trying Magistrate who was specially appointed by the former State Government of Madhya Pradesh to try this case. The 222nd witness for the prosecution was Mr. M.B. Dixit, the handwriting expert on behalf Of the then Government of Madhya Pradesh. After his examination was terminated, the prosecution put in an application on 14-4-1956, which is the genesis of this proceeding. It is necessary to reproduce the material part of this application because the subsequent order which came to be passed is materially explained thereby. After reciting that there were several documents in the case where there were signatures and writings of the different accused which needed proof the application stated :

"Witnesses have been examined in order to prove the signatures and also the hand-writing. Number of such witnesses have deliberately avoided to prove such handwriting and signatures. It has hence become very necessary to secure the attendance of all the accused in Court and then to direct them to write over their signatures as well as writings for the purpose of comparison. And after such signatures and writings are secured, the witness Shri M.B. Dixit may be asked to examine the writings and signatures and then depose about the result of such examination.

This court may be pleased to order the attendance of all accused and then order them to make signatures and also to write some portions of the writings in Issue."

3. To this application the accused non-applicants took strong objection upon various grounds which they stated in their reply dated 18th April 1956. Apart from grounds of delay and alleged harassment of the accused, they stated that the application was not maintainable under law, was against principles of justice, and that the accused could not be called upon at that stage to sign or write anything in the presence of the Court. They also indicated that the application on behalf of the prosecution was very vague and did not specify whose signatures were required to be made. It seems that before passing an order upon this application the Magistrate must have orally directed the prosecution to state which of the accused were required to furnish their signatures or specimens of their handwriting because on 18th April 1956 a statement was filed on behalf of the prosecution as follows :

"As desired by the Court, the list of the accused whose admitted signatures and handwritings are required for comparison, is as follows."

Then follow the names of the 55 non-applicants before me.

4. Now, the trying Magistrate allowed the application, holding that it was in the interests of justice to take the specimens of the handwriting of the accused in the Court for comparison and then to seek a further report of the handwriting expert on that point.

5. The learned Additional Sessions Judge has recommended that this order should be set aside for the reason that the power to take such evidence as conferred by Section 73 of the Indian Evidence Act is now controlled by Article 20 (3) of the Constitution, and relying upon the case in Rajamuthukoil Pillai v. Periyassami Nadar, 1955-2 Mad LJ 468: (AIR 1956 Mad 632) (A), and on the Supreme Court case in N.P. Sharma v. Satish