The court has the authority to issue a direction under Section 73 of the Evidence Act to obtain specimen handwriting for comparison with a disputed document, and such direction is not an abuse of process.

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 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. S. 73 of the Evidence Act therefore, does not offend Art. 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 Art. 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 S. 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 the 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, eve