Calcutta High Court (Appellete Side)
Mr. Apurba Kumar Dutta .... For The vs State Of on 25 July, 2019
Author: Tirthankar Ghosh
Bench: Tirthankar Ghosh
1 20 25.07.2019
C.R.R. 3873of 2016 SB Ct. No. 34 In Re : Sri Biswajyoti Chatterjee Mr. Apurba Kumar Dutta .... For the petitioner Mr. Kaushik Gupta .... For the O.P. No. 2 Mr. Saswata Gopal Mukherjee, Ld. P.P. Ms. Anusua Sinha ....For the State Mr. Dutta, learned counsel appearing on behalf of the petitioner submits that the order dated 25.11.2016 is illegal in view of the fact that the prayers advanced by the investigating agency do not satisfy the requirements for obtaining the specimen signature of the accused / petitioner as well as for his medical examination. According to the learned counsel for the petitioner, the learned Magistrate acted mechanically and passed the impugned order thereby endorsing the prayer of the investigating agency. On the point of law the learned counsel argues that Section 311A of the Code of Criminal Procedure only empowers the learned Magistrate to order the investigating agency to take specimen signature in case the accused is arrested and as the petitioner has been released on anticipatory bail the provisions do not apply. The learned counsel thereafter relies upon a judgement of the Hon'ble Apex Court in Sandeep Kumar Bafna vs. State of Maharastra and Another (Criminal Appeal No. 689 of 2014).
I find from the said judgement that it relates to the difference between custody and arrest and do not decide the ratio whether a person while on bail can be directed by a Magistrate to give his specimen signature.
Mr. Mukherjee, learned Public Prosecutor appearing on behalf of the State opposes the prayer advanced by the petitioner and submits that so far as the proviso clause relating to Section 311A of the Code of Criminal Procedure is concerned the same provides that "at sometime been arrested in connection with such investigation or 2 proceeding". Accordingly he submits that the pendency of the revisional application is stalling the investigation, as an accused cannot as a matter of right claim immunity from the steps required for taking the investigation to its logical conclusion.
Mr. Gupta, learned counsel appearing on behalf of the opposite party no. 2 draws the attention of the Court to the settled position of law as decided by the hon'ble Apex Court in the case of Director of Enforcement vs. Deepak Mahajan & Anr. reported in 1994 SCC (Cri) 785 and submits that the accused pursuant to the order of anticipatory bail surrendered before the Court below and has obtained regular bail so the accused is deemed to be in custody in connection with the case and is under obligation to co-operate with the investigation and comply with the provisions of law. Further, the learned Magistrate committed no illegality in view of the fact that Section 311A of the Code of Criminal Procedure empowers the learned Magistrate in such circumstances to pass directions upon the accused to give specimen signature.
I have considered the submissions advanced by the learned counsel for the petitioner who has stressed on the proviso clause and tried to convince this Court that if a person is not arrested in course of proceeding his handwriting or specimen signature cannot be taken by the investigating agency. I hold that if such an interpretation is given to the provisions of Section 311A of the Code of Criminal Procedure then in that case no accused who has been granted anticipatory bail would co-operate with the investigation and allow the investigating agency to reach its logical conclusion. The word arrest so far as the provisions of Section 311A of the Code of Criminal Procedure is concerned has been used for the purpose of facilitating the investigating agency and not the accused, so that the learned Magistrate can pass an order directing an accused in custody for giving the specimen signature or handwriting and the same would not be in violation of his (accused) 3 right either under Article 20(3) of the Constitution of India or under the provisions of the Code of Criminal Procedure. The handwriting of an accused in course of an investigation can be taken without the accused being arrested. Section 311A of the Code of Criminal Procedure do not create any embargo for taking the specimen signature or handwriting of a person who may be an accused or a witness, the said provision has only been incorporated to give a right to the investigating agency so that they can advance a prayer in respect of an arrested accused.
It has been submitted that pursuant to the order of anticipatory bail the petitioner has surrendered before the Learned Magistrate and obtained regular bail. As such, the petitioner has already submitted himself to the jurisdiction of the Court. The investigating authorities under such circumstances have only option to apply before a Court of law so that their requirements can be complied with and the Court of law after considering the same would arrive at its finding. However, while pronouncing such orders in course of investigation the Court is not obliged to assign in detail the reason for requirement of such specimen signature or requirement for medical examination of the accused. It is for the accused to decide whether he will give specimen signature or handwriting or will participate in the medical examination. But a Court of law will not endorse the opinion or view of the accused at the stage of investigation.
In view of the observations made above, I find no illegality in the order dated 25.11.2016 passed by the learned Chief Judicial Magistrate, Purba Medinipur. The revisional application is therefore dismissed.
I find from the order sheet certain directions were passed upon the Superintendent of Haldia Sub-Divisional Hospital as also the sureties of the case to produce the accused before the Court. As the learned Public Prosecutor has submitted that the order dated 25.11.2016 has not been complied with till date because of the 4 pendency of the revisional application before this Court, I direct the learned Chief Judicial Magistrate, Purba Medinipur to pass necessary orders upon the Superintendent of Haldia Sub-Divisional Hospital and the sureties who represented the accused in this case and fix dates for complying with the order dated 25.11.2016.
The investigating officer of this case is directed to communicate this order to the Court of the learned Chief Judicial Magistrate, Purba Medinipur within a period of fifteen days from the date of passing of this order.
The learned Chief Judicial Magistrate, Purba Medinipur is directed to act on the server copy of the order, if produced before him by the investigating officer of the case.
With the aforesaid observations the revisional application being C.R.R. 3873 of 2016 is disposed of.
Urgent photostat certified copy of this order, if applied for, be given to the parties, upon completion of requisite formalities.
(Tirthankar Ghosh, J.)