SARKARIA - (1.) THIS appeal by special leave, directed against a judgment dated February 18, 1975, of the High Court of Delhi, involves a question with regard to the scope of the powers of Court under Section 73, Evidence Act to direct an accused person to give his specimen writings. It arises out of these circumstances; Pali Ram, respondent along with Har Narain and 8 others was challaned by the police in respect of offences under Sections 120-B/420/477-A/467/471, Penal Code before the Additional Chief Judicial Magistrate, Delhi. The case being exclusively triable by the Court of Section, the Magistrate started inquiry proceedings under Section 207-A, Chapter XVIII of the Code of Criminal Procedure, 1898. After most of the prosecution evidence had been recorded, an application dated 11/12/1970, was submitted on behalf of the prosecution. It was stated in the application that one of the basic documents (Ex. PW-21) tendered in evidence was, according to the prosecution, in the handwriting of Pali Ram; but it could not be got compared by a handwriting expert with any specimen writing of Pali Ram because the latter was absconding and had avoided to give any specimen writing. It was further stated that this document is a very vital link to establish the case against the accused, and in the interest of justice, the Court should direct Pali Ram accused to give his specimen writings, and forward the same along with the original documents, marked P-21/F, to the Government Expert of Questioned Documents "with a view to have the necessary comparison". THIS application was strenuously opposed on behalf of the accused. After hearing arguments, the Magistrate on 20/05/1972, allowed that application. Since the construction of that order has a bearing on the problem before us, it will be appropriate to extract its material portion in extenso, as under:- It was argued on behalf of Pali Ram accused... .. that the power of the Court is limited to the extent only where the Court itself is of the view that it is necessary for its own purpose to take such writing in order to compare the words or figures so written with any word or figure alleged to have been written by such person and that this power does not extend to permitting one or the other party before the Court to take such writing for the purpose of its evidence or its own use. AIR 1958 Bom 207 was cited in this connection. It was further argued that Section 73, Indian Evidence Act did not entitle the Court to assist a party to the proceedings. It is entitled the Court only to assist itself for a proper conclusion in the interest of justice. I have applied this test to the present case before me. It is true that here it is the prosecution which has made this request. But the observation contained in this ruling cannot be stretched to the extent, the defence wants me to do it. Ex. PW-21/F was stated by Tekchand to be in Pali Ram's handwriting when he made statement before the Police. In his statement during committal proceedings he resiled from it. Thus document is undoubtedly a vital link. It has an important bearing on the case as Pali Ram himself happens to be an accused. In this peculiar situation it becomes necessary to take recourse to the Court's power under S. 73 in the interest of justice and to ask Pali Ram to give specimen handwriting (to have it examined by handwriting expert) and then to decide about it. Under these circumstances, I think it fit to allow the request of the prosecution in this regard." (emphasis supplied).
(2.) FEELING aggrieved by this Order, Pali Ram preferred a revision to the Court of Session. The revision was dismissed by the learned Additional Sections Judge on 7/12/1972. Against this dismissal, Pali Ram preferred a revision petition (C. R. No. 46 of 1973) in the High Court. The revision petition first came up for hearing before R. N. Agarwal J., who felt that the case involved an important question of law which was not free from difficulty. He therefore referred it to a larger Bench, although he did not formulate any specific question. The matter then came up for consideration before a Division Bench consisting of Jagjit Singh and R. N. Agarwal JJ. The Division Bench gathered from the referring order "that the matter requiring consideration is, whether the second paragraph of Section 73 of the Indian Evidence Act empowers a Court to direct an accused to write in words or figures by way of specimen writings for enabling the prosecution to send the specimen writing to a handwriting expert for purposes of comparison with the writing of a disputed document alleged to be in the handwriting of that accused person". After referring to certain decisions, Jagjit Singh J., who delivered the judgment of the Bench, answered the question posed, thus: "There is no ambiguity or confusion in the phraseology used in the second paragraph of the section. Therefore, the only purpose for which a Court may direct any person present in the Court (including an accused person) to write words or figures is to enable the Court to compare the words and figures so written with any words or figures alleged to have been written by such person. Where the purpose of directing a person present in Court to write any words or figures is not to enable the Court to compare the words or figures with any words or figures alleged to have been written by such person but is to enable any of the parties to have the words or figures so written compared from a handwriting expert of that party, the second paragraph of Section 73 would have no application." In the result, the High Court held that "the order of the learned Additional Chief Judicial Magistrate dated 20/05/1972, in so far as it related to disposal of the application filed on 11/12/1970, was not legal and was beyond the scope of Section 73 of the Evidence Act. To that extent, the said order and the order of the Additional Sessions Judge dated 7/12/1972, by which the revision was dismissed, are set aside and the revision filed by Pali Ram is accepted."
(3.) HENCE, this appeal by the State (Delhi Administration). We have heard Shri Marwah, appearing for the appellant-State. None has appeared on behalf of the respondent, despite notice.;