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Mar 30, 2009

Evidence- Sec 73 Under the Indian Evidence Act, two direct methods of proving the handwriting of a person are : a) by an admission of a person who wrote it; b) by the evidence of some witness who saw it being written by that person. Apart from these, there are some other methods of proof of handwriting by option. They are: 1) by the evidence of a handwriting expert (Section 45). 2) by the evidence of a witness acquainted with the handwriting of the person who is said to have written the disputed writing (Section 47). 3) opinion formed by the Court itself on comparison made of the disputed writings with the admitted or specimen writings (Section 73). A subsequent writing of an accused taken under the direction of the court is in substance a specimen writing obtained for comparison of the disputed writing with it. Though, Section 73 does not specifically say as to who could make such a comparison but reading Section 73 as a whole, it is obvious that it is the Court which has to make the comparison and it may form the opinion itself by comparing the disputed and the admitted writings or seek the assistance of an expert, to put before the Court all the material, together with reasons, which induce the expert to come to a conclusion that the disputed and the admitted writings are of one and the same author so that the court may form its own opinion by its own assessment of the report of the expert based on the data furnished by the expert. The function of an handwriting expert is to opine after a scientific comparison of the disputed writing with the admitted (specimen) writing with regard to the points of similarity and dissimilarity in the two set of writings. The language of Section 73 does not permit any court to give a direction to an accused to give his specimen writing for comparison in a proceeding which may subsequently be instituted in some other competent court. Section 73 of the Evidence Act in our opinion cannot be made use of for collecting , specimen writings during the investigation and recourse to it can be had only when the enquiry or the trial court before which proceedings are pending requires the writing for the purpose of enabling it to compare' the same. A court holding an enquiry under the CrPC is indeed entitled under Section 73 of the Evidence Act to direct an accused person appearing before it to give his specimen handwriting to enable the court by which he may be subsequently tried to compare it with the disputed writings. Therefore, in our opinion the court which can issue a direction to the person to give his specimen writing can either by the court holding the enquiry under the CrPC or the court trying the accused person with a view to enable it to compare the specimen writings with the writings alleged to have been written by such a person. A court which is not holding an enquiry under the CrPC or conducting the trial is not permitted, on the plain language of Section 73 of the Evidence Act, to issue any direction of the nature contained in the second paragraph of Section 73 of the Evidence Act.

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