When the Court Compares for Itself: Section 72
Chapter Twelve
Syllabus topic 1, "Forensic Science – An Integral component of Criminal Justice system – scope."
Pages 49 to 52 of 654
In one line
A court may compare a disputed signature, writing, seal or finger impression with a genuine one for itself, and may make a person present in court write.
In the wording a student can write in an exam: section 72 of the Bharatiya Sakshya Adhiniyam, 2023 provides that 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; that the Court may direct any person present in Court to write words or figures for the purpose of enabling the Court to compare them; and that the section applies also, with any necessary modifications, to finger impressions.
Why the law has this at all
Comparison of handwriting is not a mystery. Anybody can look at two signatures and see whether they resemble each other. The section exists because the ordinary rule that a court decides on the evidence before it would otherwise stop a judge from doing what any reader can do, and because bringing an expert for every disputed signature would be intolerable.
The section is therefore an enabling provision. It confers a power, not a duty, and it does not make the court an expert.
The three sub-sections
Sub-section (1): comparison with an admitted or proved standard. The court may compare the disputed writing with any signature, writing or seal admitted or proved to its satisfaction to be that of the person, and may do so although the standard was not produced or proved for any other purpose. Those last words matter. A document brought in only to serve as a standard is not thereby made evidence of its own contents.
Sub-section (2): the power to make a person write. The court may direct any person present in court to write words or figures so that the court may compare them. The person must be present. The purpose is comparison by the court.
Sub-section (3): finger impressions. The section applies also, with any necessary modifications, to finger impressions. So a court may compare a chance print with an admitted one, and may direct a person present to give an impression.
The limit the Supreme Court has fixed on sub-section (2)
The leading authority is State (Delhi Administration) v. Pali Ram.
Facts. In criminal proceedings before a magistrate the prosecution said that a document vital to its case was in the accused's handwriting, but the comparison could not be made because the accused would not give a specimen. The magistrate, acting under what was then section 73 of the Evidence Act, directed him to give a specimen so that a handwriting expert could examine it. The Sessions Judge dismissed a revision. The High Court held that the only purpose for which a court may direct a person present in court to write is to enable the court itself to compare.
When the Court Compares for Itself: Section 72
Held. The Supreme Court upheld that reading. The power in the second paragraph is to enable the Court to compare, and not to provide a handwriting expert with material to work on. The Court also observed that no expert would claim today that he could be absolutely sure his opinion was correct, since the expert depends to a great extent on the material put before him and on the nature of the question put to him.
Why it matters. For nearly fifty years this left a real gap in the criminal law. If an accused refused to give a specimen, the investigating agency could not compel one, because the only power was the court's own comparison power and it could not be used to feed an expert. The gap is now closed by section 349 of the Bharatiya Nagarik Suraksha Sanhita, 2023, which empowers a Magistrate of the first class to order any person, including an accused, to give specimen signatures, finger impressions, handwriting or a voice sample for the purposes of an investigation or proceeding. That section is the subject of its own chapter.
The warning about the court comparing for itself
The power exists, and the courts have repeatedly warned against leaning on it. The reasoning is not that judges are careless but that comparison is a skill, that a signature varies naturally from occasion to occasion, and that a simulated signature is designed to survive exactly the kind of look a non-specialist gives it.
Two propositions follow and both are settled.
A court should not ordinarily base a finding solely on its own comparison without the assistance of an expert, particularly where the consequence is a conviction.
Where a court does compare, it should say what it looked at. A conclusion that two signatures "appear to be by the same hand" with no reasons is not a judicial finding at all.
Murari Lal v. State of Madhya Pradesh is the case that reconciles the two halves.
Facts. A conviction for murder rested on the recovery of the deceased's wrist watch at the appellant's instance and on a pencil note found beside the body, reading that the writer had passed his B.A. and found no employment. A handwriting expert attributed the note to the appellant. It was argued that a conviction cannot rest on the uncorroborated opinion of a handwriting expert, and that the High Court had wrongly compared the writings itself.
When the Court Compares for Itself: Section 72
Held. The appeal was dismissed. An expert is no accomplice, and there is no justification for putting his opinion in the same class as the evidence of an accomplice and insisting on corroboration as a matter of law. The hazard in accepting the opinion of a handwriting expert is not that such experts are unreliable as a class but that all human judgment is fallible, so the correct approach is caution and an examination of the reasons given, not a rule requiring corroboration.
Why it matters here. It establishes that the court may look for itself and may act on an expert, and that in both cases what carries the finding is the reasoning rather than the source.
A worked example: a disputed thumb impression on a sale deed
A prosecution for forgery. A sale deed bears a thumb impression said to be that of Laxmi Sawant, who is illiterate and says she never executed it. She is present in court.
Under sub-section (1) the court may compare the impression on the deed with the impression on her ration card, if that impression is admitted or proved to be hers. The ration card is not evidence of anything else in the case; it is produced only as a standard, and the closing words of the sub-section permit that.
Under sub-section (3) with sub-section (2) the court may direct Laxmi, being present, to give a fresh impression for the purpose of the court's own comparison.
What the court may not do is direct her to give an impression so that it can be sent to the Finger Print Bureau. That is Pali Ram, and it is the exact point the case decides.
How the gap is filled now. The investigating officer applies to the Magistrate of the first class under section 349 of the Sanhita, who orders Laxmi to give specimen impressions for the purposes of the investigation. Those go to the Bureau. Note the first proviso: the section ordinarily requires that the person has at some time been arrested in connection with the investigation, and the second proviso allows the Magistrate to dispense with that for reasons recorded in writing.
And the practical difference in weight. A ridge comparison by the Bureau, spoken to by an examiner who can point to twelve or fifteen points of agreement, is worth incomparably more than a judge's impression that two smudges look alike.
Distinctions
| Section 72(1) | Section 72(2) | Section 349, Sanhita | |
|---|---|---|---|
| What it permits | comparison with an admitted or proved standard | making a person present in court write | a Magistrate ordering specimens for investigation |
| Who compares | the Court | the Court | an expert |
| Person must be present in court | no | yes | no, he is produced or attends as ordered |
| Available before trial | no | no | yes, during investigation |
| Covers voice samples | no | no | yes |
When the Court Compares for Itself: Section 72
What beginners get wrong
Saying a court may take a specimen for the expert. It may not, and Pali Ram is the case.
Citing section 73. That is the repealed Evidence Act number. The current provision is section 72.
Forgetting sub-section (3). The section applies to finger impressions too, and questions are set on exactly that.
Treating the court's own comparison as strong evidence. It is permitted, and it is the weakest of the routes.
Quick revision
- Section 72, Bharatiya Sakshya Adhiniyam, 2023, formerly section 73 of the Evidence Act.
- (1) compare the disputed writing with an admitted or proved standard, even one not produced for any other purpose; (2) direct a person present in court to write, for the Court's own comparison; (3) the section applies to finger impressions.
- State (Delhi Administration) v. Pali Ram, AIR 1979 SC 14: sub-section (2) is for the Court's comparison, not to supply material to an expert.
- The gap that left is filled by section 349 of the Sanhita, which also covers voice samples.
- Murari Lal v. State of Madhya Pradesh, AIR 1980 SC 531: an expert is no accomplice, corroboration is a rule of prudence and not of law, and what matters is the reasoning.
- A court's own comparison is permitted and is the weakest of the three routes.
Test yourself
1. What are the three limbs of section 72? Comparison of a disputed signature, writing or seal with an admitted or proved standard; a power to direct a person present in court to write for the court's own comparison; and the application of both to finger impressions.
2. May a court direct an accused to give a specimen so that a handwriting expert can examine it? No. In State (Delhi Administration) v. Pali Ram the Supreme Court held that the power exists only to enable the court itself to compare. Specimens for an expert are now obtained from a Magistrate of the first class under section 349 of the Bharatiya Nagarik Suraksha Sanhita, 2023.
3. Is corroboration of a handwriting expert required as a matter of law? No. Murari Lal holds that an expert is no accomplice and that no rule of law requires corroboration. In practice the courts insist on it as a rule of prudence, and Magan Bihari Lal states that insistence in strong terms.
4. What does section 349 add that section 72 never covered? It operates during an investigation rather than only in court, it produces specimens for an expert rather than for the judge, and it expressly covers voice samples as well as signatures, handwriting and finger impressions.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.