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2005 Supreme(Raj) 921
High Court Of Rajasthan
Judgename : K.C. Sharma
Ram Dev - Appellant
Versus
State of Rajasthan - Respondent
S.B. Criminal Miscellaneous Petition No. 269 of 2005
Decided On : 04/07/2005
Mr. Anoop Dhand, for the Petitioner.
Mr. Ashvin Sharma, Public Prosecutor.
Mr. A.S. Shekhawat, for the Complainant.
The court has the power under Section 73 of the Evidence Act to direct any person present in court to give specimen writing for the purpose of enabling the court to compare such writings with alleged writings.
Headnote:
Section 73 of the Evidence Act - Handwriting Comparison - The court has the power to direct any person present in court to give specimen writing for the purpose of enabling the court to compare such writings with writings alleged to have been written by such person. The trial court's refusal to allow the comparison of handwriting was contrary to the provisions of law and was quashed and set aside.
Fact of the Case:
The petitioner sought to quash the order dismissing the application filed under Section 73 of the Evidence Act for comparing the hand-writing of the prosecutrix with certain letters.
Finding of the Court:
The court found that the trial court's refusal to allow the comparison of handwriting was contrary to the provisions of law and quashed the impugned order, directing the trial court to decide the application afresh.
Issues: The issue was whether the trial court's dismissal of the application under Section 73 of the Evidence Act for comparing handwriting was in accordance with the law.
Ratio Decidendi: The court held that the trial court's refusal was contrary to the provisions of Section 73 of the Evidence Act, which empowers the court to direct any person present in court to give specimen writing for the purpose of enabling the court to compare such writings with alleged writings.
Final Decision: The petition succeeded, and the impugned order was quashed and set aside, with directions for the trial court to decide the application afresh.
K.C. Sharma, J.-Heard learned Counsel for the parties.
2. Through this petition, the petitioner has prayed for quashing the order dated 01.03.2005 passed by the Additional Sessions Judge (Fast Track), Sikar dismissing the application of the petitioner filed under Section 73 of the Evidence Act for getting compared the hand-writing of the prosecutrix on the letters Exh. D-2 to D-5 and/or to seek opinion of the hand-writing expert.
3. The petitioner is facing trial for offence under Section 376/511 IPC. On 17.02.2005, in the course of cross-examination of the prosecutrix, some of the letters referred to above were exhibited to show that prosecutrix fell in love with the petitioner. However, the prosecutrix denied to have written any such letters. Accordingly, the accused petitioner, on the same day i.e. on 17.02.2005 moved an application under Section 73 of the Evidence Act with the prayer to get compared the hand-writing of the prosecutrix with the aforesaid letters written by her and/or in the alternative, to get the opinion of hand-writing expert. The learned trial Court vide its order under challenge dismissed the said application of the petitioner on the ground that there is no provision in law to take specimen signature of a witness and then to send the same to hand writing expert for the purposes of getting compared the hand-writing of a witness, in the course of trial. According to the trial Court, only a judicial Magistrate is competent to make an inquiry and he alone can get the report of hand writing expert so as to compare the hand writing of a witness.
4. A perusal of Section 73 of the Evidence Act makes it clear that 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. Section 73 further enables the Court to direct any person present in Court to give specimen writing for the purpose of enabling the Court to compare such writings with the writings alleged to have been written by such person. The direction is to be given for the purpose of enabling the Court to compare and not for the purpose of enabling the investigating or other agency to compare. Evidently thus, the Court has ample power under Section 73 of the Evidence Act to compare the disputed signature/writing with the admitted signature/writing. I am fortified in my view by a decision of the Apex Court in State of Haryana vs. Jagir Singh, 2004 CrLR SC 17, wherein their Lordships of the Apex Court, after considering the provisions of Section 73 of the Evidence Act, observed as under:
"The second paragraph of Section 73 enables the Court to direct any person present in the Court 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 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 purposes of enabling the investigating or other agency to compare. If the case is still under investigation there is no present proceedings 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 specimen writings for anticipated necessity for comparison in proceeding which may later be instituted in the Court".
5. Thus, in view of the provisions of Section 73 of the Evidence Act and in the light of the observations of the Apex Court quoted above, it must be concluded that the trial Court has committed grave error in declining the request of the petitioner. The observations made by by the trial Co
