CALCUTTA HIGH COURT
Priti Ranjan Ghosh
Vs
State
(Mitra, J.)
27.09.1972
JUDGMENT
Mitra, J.
- ( 1. ) CRIMINAL Revision Case Nos. 859 of 1971 and 7 of 1972 were taken up for hearing together as the questions of law which arise in both the cases are the same.
( 2. ) IN Criminal Revision No. 859 of 1971 the petitioners are Priti Ranjan
ghose and his two brothers. On the basis of a written complaint made by the
Superintendent, Post Offices, presidency Division, addressed to the
Superintendent of Police, C. B. I. , S. P. W. Division, Calcutta, a case under
section 120b/420, 420/471 of the Indian Penal code was started against them. On
the 19th of July, 1971, on the prayer of the inspector, C. B. I. , S. P. W. ,
Calcutta, the learned Sub-divisional Magistrate, alipore, directed the
petitioners to appear before the investigating Officer on 21. 7. 71 and 22. 7.
71 for taking of their specimen handwritings before the learned Magistrate. On
repeated prayers of the petitioners the order requiring the taking of specimen
handwritings was kept in abeyance and ultimately on 21. 10. 71, the learned
Sub-divisional Magistrate directed the petitioners to appear before Sri s. K.
Roychowdhury Magistrate, 1st class for giving their specimen hand writings on
21. 11. 71. Against this order the petitioners moved the Sessions Judge,
alipore, under Section 435/438 Cr. P. C. The learned Sessions Judge by his
order dated 1. 12. 71 rejected the prayer and upheld the order of the learned
Magistrate. Against the order of the learned sessions Judge the petitioners
have come up before this Court in revision. In Criminal Revision No. 7 of
1972, the petitioner is Gokul Chandra sarma, who along with another person was
arrested by the Enforcement Branch of the Calcutta Police on 23. 6. 69, and a
case under section 120b/417/467|/71 i. P. C. was started against them. Specimen
handwritings and signatures of the accused petitioner was taken by the
Investigating Officer for the purpose of examination by the Handwriting Expert
and on 1. 9. 71 the Investigating Officer submitted a report before the learned
chief Presidency Magistrate to the effect that the Expert could not submit a
complete report and asked for further writings of the petitioner and the other
accused person. The learned Chief presidency Magistrate by his order dated 14.
12. 71 directed the petitioner to give his specimen writings in presence of sri
G. P. Roy, Presidency Magistrate. This order of the learned Chief Presidency
Magistrate has been challenged in this revisional application. The common
question of law which arises in both the Rules is whether a Magistrate can
direct an accused person to give his specimen writings to the police in course
of investigation.
( 3. ) MR. Ajit Kumar Dutta appearing on behalf of the petitioners in Criminal
revision No. 859 of 1971 has submitted that neither the Criminal Procedure code
nor the Indian Evidence Act has anywhere empowered a Magistrate to direct an
unwilling accused to give his specimen writings to the Police in course of
investigation. According to Mr. Dutta chapter XIV of the Criminal Procedure
code deals, inter alia, with the power of the police to investigate and Chapter
xiv nowhere empowers the police to forcibly take specimen writings of an
accused, and no provision in the Criminal Procedure Code authorises the police
to come before a Magistrate and ask for necessary orders to take such
specimens. In this context. Mr. Dutta has referred to the Identification of prisoners
Act which authorises the taking of measurements and photographs of convicts and
others. Mr. Dutta referred to section 4 of the said Act which requires a person
arrested in connection with an offence punishable with rigorous imprisonment
for a term of one year or upwards to allow his finger and foot-print
impressions to be taken in the prescribed manner, if so required by a police
officer. Mr. Dutta argued that if it was the intention of the legislature to
empower the police to take specimen handwritings of the accused, "specimen
handwritings" would have been included in the definition of
"measurements" in section 2 (a) of the said Act. Mr. Dutta has also
referred to section 73 of the indian Evidence Act and submitted that under the
said section a Magistrate can direct an accused person in a case pending before
him to give his specimen handwritings for the purpose of the court's own
comparison and a Magistrate can give such direction after he has taken
cognizance, and section 73 does not give any such power to a Magistrate when a
case is in the stage of investigation. In support of his argument Mr.
Dutta has relied on the case of (1) T. Subbiah v. S. K. D. Ramaswamy Nadar
reported in1, Mr. Dutta also referred to a decision of this court,
(2) (Hiralal Agarwala v. The state) reported in A. I. R. 1958 Calcutta 123 in
support of his argument as regards the scope and object of Section 73 of the
evidence Act and the powers of the court under the said section. Reference was
also made by Mr. Dutta to the case of (3) Farid Ahammad v. The State re
ported in2 and to the appeal by the State to the Supreme court
against the decision in this case reported in A. I. R. 1961 S. C. 1808. With
reference to this decision Mr. Dutt argued that the Supreme Court overruled the
view of this Court only on the point whether the taking of specimen
handwritings was included within the expression "to be a witness" but
the Supreme Court did not express any opinion on the other point decided by
this Court in Farid ahammad's case, viz. , that a Magistrate is not empowered
to direct an accused person to give his specimen writings to the police in
course of investigation. ;
Cases Referred.
1A. I. R. 1970 Mad 85
2 A. I. R. 1960 Cal 32