Shiv Kumar Agarwal and Another vs Badri Prasad Agarwal and Another

B.N. Katju, J.—This is an application u/s 482 Code of Criminal Procedure praying that the proceedings against the applicants in criminal case No. X of 1979

State v. Shiv Kumar Agarwal and Anr. under Sections 420, 466 and 460 IPC pending in the court of Judicial Magistrate, Mirzapur be quashed.

It appears that a report dated 8-3-1979 under Sections 420/423/467/477 and 120B IPC was made by Badri Prasad Agarwal opposite party No. 1 before the Superintendent of Police, Mirzapur, who directed the Inspector Kotwali, Mirzapur to register a case against the applicants and investigated it. An application was thereafter made by opposite party No. 1 before the Judicial Magistrate, Mirzapur on 5-5-1979 along with a copy of the report submitted by him to the Superintendent of Police, Mirzapur, in which it was stated that the police had neither registered a case against the applicants nor had investigated it and it was prayed that the police be directed to investigate the case. The learned Magistrate rejected the aforesaid application dated 5-5-1979 by his order dated 2-6-1979. Opposite party No. 1 thereafter filed a revision against the aforesaid order of the learned Magistrate dated 2-6-1979, which was allowed by the Sessions Judge, Mirzapur by his order dated 4-7-1979 and the order of the learned Magistrate dated 2-6-1979 was set aside and the police was directed to investigate the case u/s 156(3) Code of Criminal Procedure An application was thereafter made by the police to summon the applicants for obtaining their specimen signatures and the Judicial Magistrate, Mirzapur allowed the aforesaid application and summoned the applicants by his order dated 12-12-1979. It appears that the applicants did not comply with the order of the learned Magistrate dated 12-12-1979 and the learned Magistrate by his order dated 9-1-1980 issued non-bailable warrants against the applicants.

Section 73 of the Evidence Act runs as follows: "73. In order to ascertain whether a signature writing or seal is that of the person by whom it purports to have been written or made, any signature, writing 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 figure 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.

It appears from a plain reading of Section 73 of the Evidence Act that Court can direct a person who is present in Court to write any words or figures and this direction can be only given for the purposes of enabling the Court to compare the words and figures so written with any words or figures alleged to have been written by such person. It is thus obvious that there must be some proceedings in Court in which it is necessary for the Court to compare such writing. The direction given under this section is to enable the Court to compare such writings and not to enable the investigating agency or any other agency to compare such writings. It, therefore, follows that no direction can be given u/s 73 of the Evidence Act to an accused to write any words or figures during the investigation of a case to enable the investigating agency to compare such writing with any words or figures alleged to have been written by the accused.

Section 5 of the Identification of Prisoners Act, 1920 runs as follows: "5. If a Magistrate is satisfied that, for the purposes of any investigation or proceeding under the Code of Criminal Procedure, 1898, it is expedient to direct any person to allow his measurements or photograph to be taken, he may make an order to that effect, and in that case the person to whom the order relates shall be produced or shall attend at the time and place specified in the order and shall allow his measurements or photograph to be taken, as the case may be by a police officer;

Provided that no order shall be made directing any person to be photographed except by a Magistrate of the first class:

Provided further, that no order shall be made under this section unless the person has at some time been arrested in connection with such investigation or proceeding.

Section 2(a) of the Act defines "measurements as including finger impressions and foot print impressions.

It is clear from a plain reading of Section 5 of the Identification of Prisoners Act that it does not apply to signatures or writings.

1 am fortified in my view by the decision of the Supreme Court in the State of Uttar Pradesh v. Ram Babu Misra 1980 AWC 192 : 1980 ACR 145.

The orders of the learned Magistrate dated 12-12-1979 and 9-1-1980 are, therefore, clearly illegal and deserve to be quashed.

This application is accordingly allowed and the orders of the Judicial Magistrate, Mirzapur dated 12-12-1979 and 9-1-1980 are quashed.