Kerala High Court
Sahadevan vs Nil on 5 July, 2013
Author: A.Hariprasad
Bench: A.Hariprasad
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.HARIPRASAD
WEDNESDAY, THE 6TH DAY OF AUGUST 2014/15TH SRAVANA, 1936
Crl.MC.No. 3427 of 2013 ()
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AGAINST THE ORDER IN CMP NO.840/2013 IN CC 314/2005 of J.M.F.C.I,CHANGANACHERRY
DATED 05-07-2013.
PETITIONER/DEFACTO COMPLAINANT:
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SAHADEVAN, S/O GOPALAN,
PUTHANPARAMBIL HOUSE, NATTAKAM P.O.,
KOTTAYAM DISTRICT.
BY ADVS.SRI.S.RAJEEV
SRI.K.K.DHEERENDRAKRISHNAN.
RRESPONDENTS/STATE/ACCUSED:
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1. STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM-682 031 (CRME NO.118/2002 OF
CHINGAVANM POLICE STATION ,
KOTTAYAM DISTRICT).
2. K.N.PADMAM,
PUTHANPARAMBIL HOUSE,
NATTAKAM VILLAGE, KOTTAYAM TALUK,
KOTTAYAM DISTRICT-680 566.
R2 BY ADVS. SRI.JESWIN P.VARGHESE
SRI.BIJO THOMAS GEORGE
R1 BY PUBLIC PROSECUTOR SRI.JESWIN P.VARGHESE.
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 06-08-2014, THE
COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.MC.No. 3427 of 2013 ()
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APPENDIX
PETITIONER(S)' EXHIBITS
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ANNEXURE I: COPY OF THE PETITION SUBMITTED BY THE PETITIONER BEFORE
THE JUDICIAL MAGISTRATE OF FIRST CLASS-I, CHANGANASSERY, AS
CMP.NO.840/2013 IN CC NO.314/2005.
ANNEUXRE II: COPY OF ORDER IN CMP NO.840/13 IN CC NO.314/2005 DATED 5.7.2013
PASSED BY THE JUDICIAL MAGISTRATE OF FIRST CLAS-I,
CHANGANASSERY.
RESPONDENT(S)' EXHIBITS : NIL.
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//TRUE COPY//
P.A TO JUDGE
amk
A.HARIPRASAD, J.
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Crl.M.C No.3427 of 2013
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Dated this the 6th day of August, 2014.
O R D E R
Aggrieved by the order passed by the Judicial First Class Magistrate Court - I, Changanacherry on C.M.P No.840/2013 in C.C No.314/2005, the defacto complainant (PW1) has come up in this petition under Section 482 Cr.P.C.
2. The defacto complainant was the husband of the accused. He (PW1) filed a complaint before the court below alleging offences against the accused punishable under Sections 406, 420, 465, 467, 468 and 471 I.P.C. Gist of allegations is that the complainant was the owner of a vehicle bearing registration No.KL 5H-5360. He was working abroad from 1-5-2001 till 23-01-2002. During the month of May 2001, he entrusted the vehicle with its registration certificate to the accused. When he demanded to return of the vehicle and its papers, the accused refused to do so and demanded `25,000/- from the defacto complainant. It is the allegation that the accused forged Form Crl.M.C No.3427 of 2013 2 Nos.29 and 30 (Exhibits P5 and P6 series before the court below) and cheated the defacto complainant.
3. Heard the learned counsel for the petitioner and the learned counsel for the accused/respondent.
4. Learned Magistrate considered an application filed by the Assistant Public Prosecutor (APP) under Section 311A Cr.P.C. The provisions reads as follows :
"311A. Power of Magistrate to order person to give specimen signatures or handwriting.- If a Magistrate of the first class is satisfied that, for the purposes of any investigation or proceeding under this Code, it is expedient to direct any person, including an accused person, to give specimen signatures or handwriting, he may make an order to that effect and in that case the person to whom the order relates shall be produced or shall attend at the time and place specified in such order and shall give his specimen signatures or handwriting: Crl.M.C No.3427 of 2013 3
Provided that no order shall be made under this section unless the person has at some time been arrested in connection with such investigation or proceeding."
5. Learned Magistrate entered a finding that the application under Section 311A Cr.P.C can be entertained for the purpose of investigation or proceedings under the Code. It is also found that the proceeding is not " a judicial proceeding" as defined under Section 2(i) Cr.P.C. Learned Magistrate, therefore found that the application cannot be entertained. Learned counsel for the petitioner submitted that this finding of the court below is without any legal basis. Application under Section 311A Cr.P.C is intended for the purpose of any investigation or proceeding under the Code. It must be established that it is expedient to direct any person, including an accused person, to give specimen signatures or handwriting. In that event, learned Magistrate may make an order to that effect and in that case the person to whom the order relates shall be produced or shall Crl.M.C No.3427 of 2013 4 attend at the time and place specified in such order and shall give his specimen signatures or handwriting as the case may be. The section contains a proviso which would say that no order under this Section shall be made unless the person has at some time been arrested in connection with such investigation or proceeding.
6. Learned Single Judge of this Court in Subin v. State of Kerala (2012(1) K.L.T 82) considered the question whether the powers of the court under Section 311A Cr.P.C can be invoked only during investigation or can it be invoked in a matter pending trial. Answering that issue, the point laid down is as follows :
"11. The words "proceeding under this Code" should receive wider meaning. If such a wider meaning is given it can be reasonably held that it includes inquiry and trial as well. Though the word 'trial' is not specifically mentioned in Section 311A, the reasonable interpretation should be that the Crl.M.C No.3427 of 2013 5 expression 'proceeding under this Code' includes inquiry and trial. In other words, inquiry and trial are proceedings under the Code. Therefore, the argument advanced by the learned counsel for the petitioner that Section 311A has no application, as the case is now pending trial also cannot be countenanced."
7. Learned counsel for the petitioner relying on a decision in Radhakrishnan v. Saju Thuruthikunnel (2013(4) K.L.T 859) contended that apart from Section 311A Cr.P.C, powers are available to the court under Section 73 of the Evidence Act. Learned counsel places reliance on paragraphs 10, 11 and 12 of the Radhakrishnan's case (supra) which reads as follows :
10. Now we shall consider the controversy regarding the application of S.73 of the Act to this case. S.73 of the Act reads as follows:-
"Comparison of signature, writing or seal Crl.M.C No.3427 of 2013 6 with others admitted or proved.-- 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.
The Court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person.
This section applies also, with any necessary modifications, to finger- impressions."
This Section lays down an additional mode of proving handwriting besides that is provided in Ss.45 and 47 of the Act. It is to Crl.M.C No.3427 of 2013 7 be noted that under Ss.45 and 47 of the Act, the court has to take a view on the opinion of others, whereas under S.73 of the Act, by its own comparison of writings, it can form an opinion. On a survey through the Act, it can be seen that the three Sections of the Act, viz., Ss.45, 47 and 73, deal with the evidence of identity of handwriting. For our purpose, Ss.45A and 47A of the Act are not relevant as they deal with electronic evidence and electronic signature. Both under Ss.45 and 47 of the Act, the evidence is an opinion. Under S.45 of the Act, it is by a scientific comparison and under S.47 of the Act, it is based on familiarity resulting from the frequent observations and experiences. Irrespective of an opinion of the handwriting expert, the court can compare the admitted writing with the disputed writing and come to its own independent conclusion. Such exercise of comparison is permissible under S.73 of the Act.
Crl.M.C No.3427 of 2013 8
11. Ordinarily Ss.45 and 73 of the Act are treated as complementary to one another.
Supreme Court in State (Delhi Administration) v. Pali Ram ((1979) 2 SCC
158) considered the scope of Ss.45 and 73 of the Act in extenso. The relevant dictum therein is as follows:-
" Comparison within the meaning of the first paragraph of S.73, may be made by a handwriting expert (Section 45) or by one familiar with the handwriting of the person concerned (Section 47) or by the court. The two paragraphs of the section are not mutually exclusive, but complementary to each other. S.73 is therefore, to be read as a whole, in the light of S.45."
12. Words employed in S.73 of the Act would show that the power vested with the court under the Section can be exercised by the court directing any person present in court to write any words or figures for the purpose of enabling the court to compare the words or figures so written with any words or Crl.M.C No.3427 of 2013 9 figures alleged to have been written by such person. Learned counsel for the accused submitted that the order passed by the learned Magistrate prior to adducing evidence under S.244 Cr.P.C. is legally unsound. According to the learned counsel for the accused, the Supreme Court clearly held in Ajoy Kumar Ghose v. State of Jharkhand & Anr. (2009 (2) KLT Supp. 549 (SC)) that the accused have a right to cross- examine the witness at the stage of adducing evidence under S.244(1) Cr.P.C. And, therefore, only thereafter the power of the court under S.73 of the Act can be invoked. This contention is not sustainable, even though it sounds attractive. S.73 of the Act does not prescribe any specific time for invocation of the court's power. The direction to furnish any writing can be issued to a person present in court. In this case, process have been issued under S.204 Cr.P.C. and the accused appeared before the court. Therefore, the case is at the stage of Crl.M.C No.3427 of 2013 10 enquiry. A learned Single Judge of this Court in State of Kerala v. Achutha Panicker (1975 KLT 703) delineated the distinction between enquiry and trial thus:
" ............. A question of interest, when does a trial commence, arises in this regard. The trial of an accused person commences when he is called upon to plead to a charge and the proceeding upto the point of framing a charge is in the nature of an inquiry. There is real distinction between a trial and an inquiry. The final order in a trial is either a conviction or an acquittal and this order, so long as it is not set aside, would be a bar to subsequent proceedings for the same offence. An accused person is entitled to raise the plea of autrefois convict or acquit, as the case may be. In the case of an enquiry, the final order of discharge would not be a bar to fresh proceedings... "
8. Therefore, it has to be found that the observation of the learned Magistrate that the application under Section 311A Crl.M.C No.3427 of 2013 11 Cr.P.C cannot be entertained at the time of trial is legally unsustainable. Therefore, that part of the order has to be set aside.
9. The prayer in the petition filed under Section 311A Cr.P.C reads as follows :
" Under these circumstances it is humbly prayed that this Honourable Court may be pleased to pass an order directing the accused to give her specimen signatures so as to send the same for expert opinion to State Forensic Science Laboratory, Thiruvananthapuram to have it compared with the signatures in form no.29 &30 (Exhibits P5 and P6 series)."
10. It is to be noted that the power under Section 311 Cr.P.C can be invoked at any time before pronouncement of the judgment. To fortify this submission, learned counsel for the petitioner relied on the decision in Sree Venkatadeswara Enterprises v. Rajasekharan Nair (2006(3) K.L.T 930), Crl.M.C No.3427 of 2013 12 wherein it has been categorically held that the trial as provided under Section 311 Cr.P.C will not be terminated by closing the evidence of prosecution and defence or posting the case for judgment. The trial ends only on pronouncing the judgment either acquitting or convicting the accused.
11. It is contended by the learned counsel for the complainant that what was sought is only to send the specimen signatures of the accused for comparison. There is some force in the contention that mere sending up the signatures of the accused for comparison with the alleged forged one will not improve the case of the defacto complainant. In answer to this argument, learned counsel of the defacto complainant submitted that actually the prayer should have been one for sending up the handwriting of the accused. It is also submitted that the trial court could have moulded the relief so as to enable the prosecution to establish the guilt of the accused. This Court sitting in a jurisdiction under Section 482 Cr.P.C is not in a Crl.M.C No.3427 of 2013 13 position to appreciate the quality and quantity of evidence available before the trial court. Therefore, the relief claimed in the petition cannot be altered or moulded in this jurisdiction. However, I make it clear that the petitioner, if so advised, or the Assistant Public Prosecutor if feels so, is at liberty to approach the court below with a proper petition for requesting the court to invoke its power either under Section 311A Cr.P.C or Section 73 of Evidence Act for sending the specimen handwriting of the accused for the examination by an expert.
12. Apprehension of the learned counsel for the accused is that this is only to protract the trial of the case. It is for the trial court to decide as to whether obtaining specimen handwritings of the accused will advance the prosecution case. If that be so, it shall not be shut out merely on the apprehension of delay. However, it is in the absolute discretion of the trial court to decide such matters on which I do not wish to make any observation.
Crl.M.C No.3427 of 2013 14
In the result, Crl.M.C is disposed with a direction that the finding by the court below that an application under Section 311A I.P.C cannot be entertained at the stage of trial is without any basis. The petitioner is at liberty to approach the court below seeking invocation of its power either under Section 311A Cr.P.C or Section 73 of Evidence Act for sending the specimen handwriting of the accused for the examination by an expert within a period of two weeks from the date of production of this order.
All pending interlocutory applications will stand dismissed.
Sd/-
A.HARIPRASAD, JUDGE.
amk //True Copy// P.A to Judge