P. D. KUDAL, J. - (1.) THIS petition under sec. 482 of the Code of Criminal Procedure, 1973 is directed against the order of the learned Judicial Magistrate, Court No. 4, Jaipur City dated 23-9-1978.
(2.) BRIEF facts giving rise to this petition are that a First Information Report was lodged at the instance of Shri Shiv Charan, Additional District Supply Officer, Jaipur under section 420, IPC against the accused-petitioner for procuring 15 bags of cement by means of three permits, each permit was for 5 bags of cement. A case was registered at the Police Station, Bani Park, Jaipur, and the FIR was numbered as 174 dated 28-6-78. Shri Basir Mohammad, Sub-Inspector Police was investigating into the matter. Anticipatory bail was granted by the learned Sessions Judge, Jaipur City, Jaipur to the accused-petitioner on 22-7-1978. During the course of investigation, the accused was asked by the Investigating Agency to present himself in the Court of the Judicial Magistrate on 20-9-78. There he was asked to sign certain forms which he did. Shri Basir Mohammad, Sub-Inspector, it is said, again called the petitioner at the police station and asked him to sign some papers giving his handwriting and signatures. The accused-petitioner was again directed by the Investigating Agency to present himself before the Judicial Magistrate No. 4, Jaipur City and to give signatures and handwritings. The accused protested through his counsel Shri P. C. Jain, and contended that he was protected under Article 20 (3) of the Constitution of India not to give testimonial evidence against himself. The case was adjourned for hearing on 21-9-1978. On behalf of the accused, certain case laws were produced. The orber was pronounced by the learned Magistrate on 23-9-1978, The accused was then directed to give specimen signatures and handwritings, which he did in compliance with the Court's order. On behalf of the accused-petitioner, it has been contended that the learned Magistrate erred in law in acting without jurisdiction in issuing directions to the accused to give his specimen of signatures and handwriting to the investigating officer at a stage when the matter was still under investigation, it has been contended that the impugned order of the learned Judicial Magistrate is violative of Article 20 (3) of the Constitution of India. It was also contended that such a direction is also nugatory of the provisions of section 162, Cr. P. C. Reliance was placed on Keshavlal vs. State of Gujrat (l); T. Subbiah vs. Rama-swamy (2); Yusuf Ali vs. The State (3) and Smt. Nandini Satpathy vs. P. L. Dani (4 ). It was further contended that such a direction could not have been issued under section 73 of the Indian Evidence Act. Mr. Khan, appearing on behalf of the State, has contended that the word "inquiry" has been defined in section 2 (g) of the Code of Criminal Procedure, 1973, to mean every inquiry, other than a trial, conducted under this Code by a Magistrate or Court. It was further contended that the issue of such a direction to the accused-petitioner to give the specimen of his handwritings and signatures to the investigating officer, who was conducting the investigation was not violative either of Article 20 (3) of the Constitution of India or the provisions of section 162, Cr. P. C. It was further contended that such a direction could be issued under sec. 73 of the Indian Evidence Act. Reliance was placed on State of U. P. vs. Boota Singh (5); The State (Delhi Administration) vs. Pali Ram (SC) (6) and Smt. Nandini Satpathy vs. P. L. Dani (SC) (supra) and State of Bombay vs. Kathi Kalu (7 ). Respective contentions of the learned counsel for the parties have been considered and the record of the case carefully perused.
(3.) IN Keshavlal vs. State of Gujrat (1), it has been held as under: - "section 73 gives the Court a power to direct any person present in the 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 a person. Therefore, if an accused person is present in court, then powers given under the section can be used by the Court. But where the accused is not before the court and is let on bail pending investigation of the case against him the Magistrate has no power to ask the accused person to go to the police and give specimen of his signatures and handwriting. Magistrate and police officers can exercise only those powers which are prescribed under various laws and those powers cannot be enlarged. If there is no provision in the law for, the exercise of a power that power cannot be exercised by a Police Officer, or by a Magistrate or by a Judge. The police have got wide powers of investigation under Ss. 156 of Cr. P. C. but that does not mean that the police can compel an accused person to give his specimen signature and handwriting in exercise of such powers against the express provisions of S. 73 of Evidence Act. " In T. Subbiah vs. Ramaswamy (2), it was held that under section 73 an additional power is conferred on the Court to direct any person present in Court to write any words or figures. But to direct a person to write words or 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. The sine qua non of applying the provisions of the Evidence Act is the enquiry by a Court. It was further held that the Magistrate cannot take part in the investigation by the police or aid the police in any manner except in cases here such assistance is specifically provided in the Criminal Procedure Code or under any other statute. In this ruling it has been observed as under: - "the Supreme Court was wholly concerned in all the three cases, irrespective of the details of the facts of those cases, with the question whether the taking of finger prints, handwriting etc. from an accused either under the Identification of Prisoners Act or under sec. 73 of the Evidence Act would offend Art. 20 (3) of the Constitution. This is made very clear in the first sentence of para 2 of the majority judgment which is as follows : "it is not necessary to state in any detail the facts of each of the cases now before us. We shall, therefore, state only so much of the facts have occasioned calling in aid of the provisions of Cl. (3) of Art. 20 of the Constitution. " This passage makes it abundantly clear that the Supreme Court was not concerned with any other question in relation to the facts of each of these cases. I am, therefore, of the view, that there is no basis for the contention of the learned counsel that the Supreme Court has at least indirectly approved the point that the Magistrate can take handwriting or signature of the accused in the course of investigation. " ;