Calcutta High Court (Appellete Side)
In Re : Shahid Hossain vs Y.R. Muralidhar on 27 July, 2010
Author: Ashim Kumar Roy
Bench: Ashim Kumar Roy
81. 27.07.2010 C.R.R. No. 2213 of 2010
In Re : Shahid Hossain Petitioner.
Mr. Deep Chaim Kabir ... for the Petitioner.
Heard Mr. Deep Chaim Kabir, learned advocate appearing for the petitioner. Perused the impugned order and other materials on record.
It is submitted by Mr. Kabir that the present petitioner along with others have been facing their trial before the Learned Sessions Judge, 9th Fast Track Court, Calcutta on a charge relating to the offences punishable under Sections 120B/363/364/365/420/467//468/471/302 of the Indian Penal Code. He further submitted that after examination of the accused persons under Section 313 of the Code of Criminal Procedure was over although the petitioner was not opted to examine any defence witness, but on the date fixed for argument, he moved an application for re-cross-examination of P.W. 27, the handwriting expert who gave his opinion as regards to the signature of alleged executor thereon viz., the deceased Gopendra Nath Dutta. However, the Learned Judge rejected the said prayer. According to Mr. Kabir such examination is necessary to prove the signature of the petitioner appearing in the said forged deed was not of him.
Now, having gone through the impugned judgement, I find that during the examination of the petitioner under Section 313 of the Code of Criminal Procedure he declined to examine any defence witness in support of his case and the Trial Court rejected such application basically on the ground that the said handwriting expert, P.W. 27 has never testified as regards to the said purported signature of the petitioner appearing in the deed. The Learned Judge further found that it was never the case of the prosecution that such 2 signature was of the present petitioner and the opinion of the handwriting expert was never sought for as regards to the same. It was the further finding of the Learned Trial Court that the defence has not been able to make out any case to justify that re-cross-examination of the said witness at the verge end of the trial, on the point of such signature was essential for just decision of the case, far less to show the same was at all relevant.
In support of his submission Mr. Kabir relied on the decision of the Hon'ble Supreme Court in the case of T. Nagappa Vs. Y.R. Muralidhar, reported in AIR 2008 SC 2010 and more particularly the observation of the Hon'ble Apex Court made in paragraph 7 therein, which is quoted below;
"...It is the accused who knows how to prove his defence. It is true that the court being the master of the proceedings must determine as to whether the application filed by the accused in terms of Sub-section (2) of Section 243 of the Code is bona fide or not or whether thereby he intends to bring on record a relevant material. But ordinarily an accused should be allowed to approach the court for obtaining its assistance with regard to summoning of witnesses etc. if permitted to do so, steps therefor, however, must be taken within a limited time.
There cannot be any doubt whatsoever that the accused should not be allowed to unnecessarily protracting the trial or summon witnesses whose evidence would not be at all relevant."
There is no dispute far less this Court can at all dispute that it is the accused, who knows how to prove his defence and no accused be stopped to bring into records any relevant materials which is likely to disprove the charge brought against him.
In this regard this Court feels that it is extremely necessary to take into consideration the issue before the Apex Court. In the case of T. Nagappa Vs. Y.R. Muralidhar (supra) and the decision of the Court as regards to the same. The case of T. Nagappa Vs. Y.R. Muralidhar (supra) went upto Hon'ble Supreme Court when in connection with a proceeding relating to an offence under Section 138 of the Negotiable Instruments Act 3 the prayer of the payee, i.e., the accused therein was rejected for referring the dishonoured cheque in question for examination by the Director of Forensic Science and Laboratory for determining the age of his signature contending that the payee thereof obtained the signed cheque from him long back as a security for a hand loan which had been paid back, but instead of returning the cheque the same has been misused by entering a huge amount which he did not owe to the appellant. The said order of rejection was also affirmed by the Hon'ble High Court, reference may be made to paragraph 3 and 5 of the aforesaid decision.
Now, having regards to the such position the Hon'ble Supreme Court in paragraph 12 in the case of T. Nagappa Vs. Y.R. Muralidhar (supra) observed as follows;
"For the aforementioned reasons, the impugned judgment cannot be sustained. It is set aside accordingly with the aforementioned directions."
Thus, it appears with reference to Section 243 (2) of the Code of Criminal Procedure the Apex Court held a Court of Magistrate cannot be said to have exceeded jurisdiction under Section 243 (2) if, in the interest of justice directs to send a document for enabling the same to be compared by handwriting expert to compare the disputed signature or writing with the admitted writing or signature of the accused and to reach his own conclusion with assistance of the expert. The accused is entitled to rebut the case of the complainant and if the document, the cheque on which the complainant relied upon for initiating criminal proceeding against the accused would furnish good material for rebutting that case otherwise denial of such opportunity would be against the "fair trial". In the aforesaid case at 4 paragraph 10 the Supreme Court finally concluded with the following observations and the same is quoted below;
"However, it is not necessary to have any expert opinion on the question other than the following:
Whether the writings appearing in the said cheque on the front page is written on the same day and time when the said cheque was signed as "T. Nagappa" on the front page as well as on the reverse, or in other words, whether the age of the writing on Ex. P2 on the front page is the same as that of the signature "T. Nagappa" appearing on the front as well as on the reverse of the Cheque Ex. P2?"
Now, coming to the case at hand there is no dispute that prosecution never even remotely suggested, nor even remotely proposed to rely on such purported signature of the accused throughout the course of examination of the P.W. 27, the handwriting expert as a relevant circumstance against the petitioner either to prove his guilt or to link him up with the commission of the alleged offence.
Therefore, I do not find any mistake in the impugned order of the Learned Sessions Judge and same deserved no interference. This criminal revision has no merit and accordingly stands dismissed.
Before parting with the judgement I set it down by way of abundant caution that whatever have been observed hereinabove by this Court at the concluding portion of this Judgement are only to decide the question raised before this Court by the Learned Counsel appearing on behalf of the petitioner and same must not be construed to be an expression of my opinion on the merits of the case in either way.
It appears the trial is near to the conclusion. The Learned Trial Court is requested to make all endeavours to conclude the trial as expeditiously as possible preferably within two months from the date of communication of this order, unless is prevented due to any unforeseen circumstances. 5
The Criminal Section is directed to supply the urgent Photostat certified copy of this order, if applied for, on usual undertaking forthwith and to communicate this order to the Trial Court immediately.
( Ashim Kumar Roy, J. )