Comparison of Signature, Writing, Seal and Finger Impression under Section 72 of the Bharatiya Sakshya Adhiniyam, 2023

Section 72 gives a court two powers that look modest and are not. It may compare a disputed writing with a genuine one itself, without any expert, and it may order a person standing before it to write. Both powers have produced a substantial body of authority, and the limits on the second — that it is a trial power and not an investigative one — were the subject of two Supreme Court decisions and an amendment to the criminal procedure law that followed from them.

1. The Provision

Section 72 corresponds to Section 73 of the Indian Evidence Act and is carried forward unchanged.

Three distinct things are contained in it: a power of comparison, a power to direct a person present in court to write, and an extension to finger impressions. The third is regularly overlooked and is examined separately below.

2. The Standard Writing

A comparison requires something to compare against, and the section is precise about what will serve: a signature, writing or seal admitted or proved to the satisfaction of the Court to have been written or made by that person.

This is a real condition and it is the first point at which comparisons fail. The standard must itself be established — either admitted by the person, or proved to the court's satisfaction. A comparison against a writing which is itself disputed proves nothing, because if the standard is not the person's hand the exercise is meaningless.

The closing words of the first paragraph remove a difficulty that would otherwise arise. The standard writing is admissible for the purpose of comparison although it has not been produced or proved for any other purpose — it need not be relevant to the case in any other way, and its only function is to serve as a yardstick.

3. Comparison by the Court

The first power is real and is exercised. A judge may look at the disputed writing and the standard and form his own view, and he may do so whether or not an expert has been examined.

It is nevertheless exercised with restraint, and the reason is stated in the leading decision.

The circumstances in which the power is properly exercised are three.

• To confirm an expert opinion already given, where the court wishes to satisfy itself that the characteristics the expert identified are actually present.
• Where the difference is gross, and no expertise is required to see that two writings are not the same hand.
• To test an expert's reasoning, by examining for itself the features he relied upon.

Where the question is genuinely contested and no expert has been examined, a court should be slow to decide it by its own inspection, and slower still to found a criminal conviction upon it. The caution in Pali Ram is directed at that situation.

4. The Power to Direct a Person to Write

The second paragraph permits the court to direct any person present in Court to write any words or figures for the purpose of comparison. This power has generated more litigation than the first, because of what it does not cover.

4.1 A trial power, not an investigative one

Pali Ram held that the power is exercisable by a court in a proceeding before it, to compare a writing with a writing already before it. The consequence was that a Magistrate could not use the section to obtain specimen writings for the police during investigation, and the point was squarely decided the following year.

4.2 The gap and how it was filled

The suggestion was acted upon. An express provision was inserted into the criminal procedure legislation empowering a Magistrate to order any person to give specimen signatures or handwriting for the purposes of an investigation or proceeding, and the power is carried forward in the Bharatiya Nagarik Suraksha Sanhita, 2023 — Section 349 of that Sanhita corresponding to Section 311A of the Code of Criminal Procedure, 1973.

The position today is therefore twofold, and the distinction should be kept clear.

5. Specimen Handwriting and Article 20(3)

Directing a person to write raises an immediate constitutional question, and it has been settled since 1961.

The distinction has been applied consistently since, and was reaffirmed when the Supreme Court examined modern investigative techniques.

The same reasoning was applied to voice samples in Ritesh Sinha v. State of Uttar Pradesh, (2019) 8 SCC 1, where a three-Judge Bench held that a Magistrate may order a person to give a voice sample and that compelling one does not offend Article 20(3), a voice sample being material for comparison in the same sense as a specimen signature. Section 349 of the Bharatiya Nagarik Suraksha Sanhita, 2023 now names voice samples expressly alongside specimen signatures, finger impressions and handwriting, so the power the decision inferred is statutory.

6. Finger Impressions

The closing words of Section 72 are easy to miss and are of considerable practical importance: this section applies also, with any necessary modifications, to finger impressions.

Both powers therefore extend. The court may compare a disputed finger impression with one admitted or proved to be genuine, and may direct a person present in court to give an impression for that purpose.

The comparison power is exercised with less hesitation here than with handwriting, because fingerprint identification rests on ridge characteristics which either correspond or do not, rather than on a judgment about the appearance of writing. But the same caution applies to a finding founded on the court's own inspection alone, since identifying and counting ridge characteristics is a skill.

For the taking of impressions during investigation, the position is governed by the Criminal Procedure (Identification) Act, 2022, which replaced the Identification of Prisoners Act, 1920 and permits the taking of 'measurements' from the categories of person it specifies — an expression defined widely enough to include finger impressions, palm prints, footprint impressions, photographs, iris and retina scans, and physical and biological samples.

Section 72 and that Act therefore stand in the same relation as Section 72 and the BNSS provision on specimen writings: the Adhiniyam supplies a trial power, and the separate statute supplies the investigative one.

7. Section 72 and Section 73 Compared

The electronic counterpart of Section 72 is Section 73, and the contrast between them is instructive.

Under Section 72 the court compares. Comparison is an exercise of judgment about similarity, it admits of degrees, and Pali Ram cautions that the court should be slow to rely on its own.

Under Section 73 the court directs a verification. Verification is a computation: the public key is applied, the hashes either match or they do not, and no judgment is involved. There is no scope for a contest between experts and no room for the court's impression.

This is the practical superiority of a digital signature in litigation, and it explains why disputes about electronic execution turn on who controlled the key rather than on what the signature looks like.

8. Practical Points

1. Establish the standard first. The writing compared against must be admitted or proved to the satisfaction of the court, and a standard that is itself disputed is useless.
2. Check the adequacy of the standard — contemporaneity, quantity, and the presence of the same words and letters.
3. Do not ask the court to decide a contested question on its own comparison. Lead expert evidence and use the comparison to support it.
4. Use the comparison to test an adverse expert. Inviting the court to look for itself at the characteristics the expert says are present is frequently more effective than calling an expert of one's own.
5. For specimens during investigation, use the provision of the BNSS, not Section 72.
6. Call for neutral words and figures under the second paragraph, not for the text of the disputed document.
7. Remember the extension to finger impressions, which is a power the section confers and which is regularly overlooked.
8. Take no Article 20(3) objection to a direction for a specimen writing or an impression; it has been settled against such an objection since Kathi Kalu Oghad.

9. The Position Stated Shortly

1. Section 72 confers two powers — to compare, and to direct a person present in court to write — and extends both to finger impressions.
2. The standard must be admitted or proved to the satisfaction of the court, and it is admissible for comparison though not proved for any other purpose.
3. The court may compare, but should be slow to found a finding on its own comparison alone — Pali Ram.
4. The power to direct writing is a trial power, exercisable where the person is present in court in a proceeding before it.
5. There is no investigative power under Section 72 — Ram Babu Misra — and the gap was filled by express provision now carried forward in the BNSS.
6. Article 20(3) is not attracted. A specimen writing is identificatory, not testimonial — Kathi Kalu Oghad, reaffirmed in Selvi.
7. Finger impressions during investigation are governed by the Criminal Procedure (Identification) Act, 2022.
8. Section 73 permits verification rather than comparison, which is why electronic execution disputes turn on control of the key.

10. Related Topics and Provisions