Karnataka High Court
Vinod Kumar S/O Thimmappa vs The State Through on 16 December, 2021
Author: H.P.Sandesh
Bench: H.P.Sandesh
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
TH
R
DATED THIS THE 16 DAY OF DECEMBER 2021
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
CRIMINAL PETITION No.201543/2021
BETWEEN:
SRI VINOD KUMAR
S/O THIMMAPPA
AGED ABOUT 25 YEARS
OCC: AGRICULTURE
R/O CHANDRABANDA VILLAGE
TQ: & DIST. RAICHUR - 584 106
...PETITIONER
(BY SRI ARUNKUMAR AMARGUNDAPPA, ADVOCATE)
AND:
THE STATE THROUGH
YAPALADINNI POLICE STATION
REP. BY ADDL. STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
KALABURAGI BENCH - 585 102
...RESPONDENT
(BY SRI GURURAJ V. HASILKAR, HCGP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C. PRAYING THIS COURT TO QUASH THE ORDER
DATED 25.08.2021 PASSED IN CRL.R.P.NO.39/2021 BY
THE II ADDITIONAL DISTRICT AND SESSIONS JUDGE,
RAICHUR AND ETC.
THIS PETITION COMING ON FOR ADMISSION THIS DAY,
THE COURT MADE THE FOLLOWING:
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ORDER
This petition is filed under Section 482 of Cr.P.C., by petitioner/ accused seeking to quash the order dated 25.08.2021 passed in Crl.R.P.No.39/2021 by the II Additional District and Sessions Judge, Raichur.
2. Heard the learned counsel appearing for the petitioner and the learned High Court Government Pleader appearing for the respondent-State.
3. The factual matrix of the case is that based on the complaint, the respondent police have registered the case in Cr.No.9/2020 for the offences punishable under Sections 420, 468, 470 and 471 of IPC and FIR was submitted to the Court and this petitioner voluntarily surrendered before the III JMFC Court, Raichur on 24.06.2020 and enlarged on bail by accepting the bail petition filed under Section 437 of Cr.P.C.
4. That on 27.04.2020, through APP, the PSI of Yapaladinni police station filed an application under Section 3 311A of Cr.P.C., seeking a direction from the Court to direct the petitioner herein to furnish the specimen signature and his hand writing to get the opinion from the expert. The same was opposed by the petitioner herein. The Trial Court having considered the allegations made against this petitioner, comes to the conclusion that the specimen signature and hand writing of this petitioner is necessary to investigate the matter further and hence, allowed the application vide order dated 10.06.2021.
5. Being aggrieved by the order of the learned Magistrate, Crl.R.P.No.39/2021 was filed and the Sessions Judge while exercising the revisional powers allowed the revision in part and while allowing the revision petition, directed the IO to take the specimen signature of the accused in between 11.00 a.m. to 2.00 p.m. in the presence of the counsel for the accused and rest of the order passed by the Trial Court has been unaltered. Being aggrieved by the said modification of the order as well as 4 directing the petitioner to provide specimen signature, the present petition is filed under Section 482 of Cr.P.C.
6. The main contention of the petitioner's counsel before this Court that the very impugned order dated 25.08.2021 has caused substantial injustice to the petitioner herein and the counsel would vehemently contend that both the Courts have committed illegality in directing the petitioner/accused to provide the specimen signature and hand writing without properly understanding the proviso of Section 311 of Cr.P.C., and the same can be obtained only if the accused got arrested. The Sessions Judge also erred in directing the accused to give specimen signature without mentioning the date on which the petitioner should present before the IO and the mandatory requirement of Section 311 of Cr.P.C., is not followed and when Section 311A of Cr.P.C., prescribes the procedure for obtaining the specimen signature it has to be done in that manner alone and hence, the order passed by both the Courts are not sustainable in the eye of law. The counsel 5 would submit that subjecting the accused for providing specimen signature is in violation of Article 21 and 23 of the Constitution of India and hence, it requires interference of this Court.
7. Per contra, the learned High Court Government Pleader would submit that the amount which was released in favour of the farmers are misappropriated by the petitioner herein creating the documents and forging the signature and made use of those fabricated documents to swallow the money of the farmers and in terms of the list, there were 99 farmers and an amount of Rs.5,35,839/- was got credited in the name of the 14 farmers and cheated by misappropriating the said amount and hence, the very contention of the petitioner counsel cannot be accepted.
8. Having heard the respective counsel for the parties and also on perusal of the material on record, the question that would arise for consideration before this Court are:
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(i) Whether both the Courts have committed an error in invoking Section 311A of Cr.P.C., in directing the accused to provide his specimen signature and hand writing and whether it violates Articles 21 and 20 (3) of the Constitution of India as contended by the petitioner's counsel?
(ii) What order?
Point No.1:
9. Having heard the respective counsel, it discloses that it is the specific case of the prosecution that the accused has forged the signature of list of the beneficiary farmers and prepared the list of 99 farmers and got credited the amount of Rs.5,35,839/- in 14 farmers' name and cheated by misappropriating the said amount. Admittedly, on registration of the case, the petitioner herein voluntarily surrendered before the Court and an application was filed for release him on bail and he was enlarged on bail on the very same day.
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10. The counsel for the petitioner in support of his argument, relied upon the Section 311A of Cr.P.C., which reads thus:
"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:
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."8
11. The learned counsel for the petitioner relying upon this Section, particularly to the proviso that no order shall be made unless the person has at some time been arrested in connection with investigation or proceedings, would contend that this petitioner has not been arrested and hence, he cannot be directed to provide any specimen signature or hand writing. The counsel also would submits that the meaning of arrest of a person necessarily done by arrest by the police and in the case on hand, no such arrest was done by the police and hence, he cannot be directed to provide any specimen signature and he was not arrested and at any point of time or some time he has been arrested in connection with such investigation or proceeding and hence, the Court cannot exercise its powers under Section 311A of Cr.P.C., the said contention of the petitioner's counsel cannot be accepted. Having read the proviso of Section 311A of Cr.P.C., and the proviso says no doubt no order shall be made under this Section unless the person at some time been arrested in connection with such investigation or proceeding but once 9 the accused himself has surrendered before the Court and sought for bail and the very contention of the petitioner's counsel cannot be accepted that he has not been arrested and only after his voluntary surrender only he invoked the bail provision and the fact that he has been surrendered before the Court is not been disputed and thereafter it is also not in dispute that he has been enlarged on bail but once he has surrendered means he was in custody for sometime and he was in judicial custody before the Court unless he was enlarged on bail and may be he was enlarged on bail on the very same day.
12. It is also important to note that allegation against him that he misappropriated the amount by forging and creating document and swallowed the amount of Rs.5,35,839/- and credited the amount in the name of 14 farmers and cheated by misappropriating the said amount. When such specific allegation are made against him and in order to file the chargesheet for the offences punishable under Sections 429, 468, 470, 471 of IPC, the specimen 10 signature of the accused is warranted and proviso under Section 311A of Cr.P.C., also confers such powers to the Magistrate and accordingly the Magistrate has exercised the power under section 311A of Cr.P.C. No doubt the Sessions Court by exercising revisional power directed the Investigating Officer to collect the specimen signature of the accused and also hand writing and in a particular time between 11.00 a.m., to 2.00 p.m., but not mentioned the specific date as contended by the petitioner's counsel and this Court can fix the date to appear before the Investigating Officer on particular date within the time between 11.00 a.m., and 2.00 p.m.,
13. The other contention of the learned counsel for the petitioner that directing the accused to furnish the handwriting as well as specimen signature amounts to self- incrimination and it violates Articles 20(3) and 21 of the Constitution of India. In this regard this Court would like to refer the judgment of the Constitution Bench delivered by 11 Judges in the case of The State of Bombay vs. Kathi 11 Kalu Oghad and Others reported in AIR 1961 SCC 1808 held that if the self-incriminating explanation by an accused person without any threat that will not be hit by provisions of clause 3 of Article 20 of the Constitution of India for the reason that there has been no compulsion. The Hon'ble Apex Court in paragraph 10 of the judgment held that taking of impressions or parts of the body of an accused person very often becomes necessary to help the investigation of a crime. It is as much necessary to protect an accused person against being compelled to incriminate himself, as to arm the agents of law and the law courts with legitimate powers to bring offenders to justice. Furthermore, it must be assumed that the Constitution- makers were aware of the existing law, for example, section 73 of the Evidence Act or Sections 5 and 6 of the Identification of Prisoners Act.
14. In the case on hand also only the Investigating Officer sought for a direction against the accused to provide specimen signature as well as his hand writing. 12 The allegation made that he has fabricated the documents by forging the signature and swallowed the amount of Rs.5,35,839/- which belongs to the farmers and in order to collect the evidence by the Investigating Officer, the said direction was sought from the Magistrate, since serious allegations are made against him.
15. The Hon'ble Apex Court in the very same judgment in paragraph-12 held that the testimony by an accused person may be said to have been self- incriminatory, the compulsion of which comes within the prohibition, of the constitutional provision, it must be of such a' character, that by itself it should have the tendency of incriminating the accused, if riot also of actually doing so. In other words, it should be a statement which makes the case against the accused person atleast probable, considered by itself. A specimen handwriting or signature or finger impressions by themselves are no testimony at all being wholly innocuous because they are unchangeable except in rare cases where the ridges of the 13 fingers or the style of writing have been tampered with. They are only materials for comparison in order to lend assurance to the Court that its inference based on other pieces of evidence is reliable. They are neither oral nor documentary evidence but belong to the third category of material evidence which is outside the limit of 'testimony'.
16. Having considered the principles laid down in the judgment referred supra, directing the accused to provide handwriting of the accused and also his specimen signature will not amount to self-incrimination as contended by the learned counsel for the petitioner and the same is mode of technology that is used for collecting the evidence by the Investigating Officer and it is the domain of the Investigating Officer to collect the material in order to find out the truth in the investigation. Hence, the very contention that it amounts to self-incrimination and violation of Article 20(3) of the Constitution of India cannot be accepted.
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17. In view of the discussion made above, I pass the following:
ORDER The petition is allowed in part. The order passed in Crl.R.P.No.39/2021 is modified directing the accused to appear before the Investigating Officer on 27.12.2021 in between 11.00 a.m., to 2.00 p.m., and Investigating Officer is directed to take the specimen signature of the petitioner/accused in crime No.9/2020 and his handwriting in accordance with law within the above timings. Except the inclusion of the date, other portion of the order is undisturbed.
Sd/-
JUDGE SAN/VNR