Allahabad High Court
Baljor Singh vs State Of U.P. And Another on 9 April, 2018
Equivalent citations: AIRONLINE 2018 ALL 711
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 53 Case :- CRIMINAL REVISION No. - 1091 of 2018 Revisionist :- Baljor Singh Opposite Party :- State Of U.P. And Another Counsel for Revisionist :- Vivek Kumar Singh,Mayank Yadav Counsel for Opposite Party :- G.A. Hon'ble J.J. Munir,J.
1. Heard Sri Baljor Singh, learned counsel for the revisionist and Sri Vishwa Jyoti Sahai, learned Additional Government Advocate for the State.
2. This is a revision filed with a prayer to set aside an order of the learned Additional Sessions Judge, Court No.1, Baghpat dated 13th March, 2018 rejecting an application seeking discharge in S.T. No. 386 of 2013 (State versus Baljor & Others) arising out of Case Crime No. 41 of 2013, under Section 364-A of the Indian Penal Code, Police Station Chhaprauli, District Baghpat.
3. The submission of the learned counsel for the revisionist is that the case against him is based on the veracity of the ransom note in question. He submits that the ransom note has not been written by him. It is submitted that without seeking permission of the Court, the ransom note in question was sent by the prosecution for analysis to a private handwriting expert, who opined that it was in the handwriting of the revisionist. Thereafter on objection by the revisionist, the ransom note was sent for analysis to the Sate Forensic Science Laboratory, Agra, which categorically opined that the same was not in the handwriting of the revisionist. On a further objection of the prosecution, the ransom note was sent for analysis to the Central Forensic Science Laboratory, Chandigarh, which also opined that the ransom note was not in the handwriting of the revisionist. Learned counsel for the revisionist submits that once two State Forensic Science Laboratories have opined that the ransom note was not written in the revisionist's hand, there is no case against him worth trial and it is a case where the charge against him is groundless within the meaning of Section 227 of the Code of Criminal Procedure. He, therefore, should have been discharged by the trial court in exercise of powers under Section 227 of the Code of Criminal Procedure, which the trial court has not done. The impugned order is, therefore, manifestly illegal. He further submits that initial reference to the private handwriting expert by the prosecution on the basis of which the revisionist has been charge-sheeted, is without permission of the Magistrate as required under Section 311A of the Code of Criminal Procedure.
4. Learned Additional Government Advocate has opposed the motion for admission of this revision.
5. The first submission of the learned counsel for the revisionist to the effect that looking to the fact that two State Forensic Science Laboratories have opined that the ransom note in question was not in the handwriting of the revisionist, the trial court has failed to exercise its jurisdiction in not discharging him, in the opinion of the Court, is not tenable. It is well known that opinion of an expert is not substantive evidence. It is but expert evidence, which the Court is not bound to accept. Expert evidence is to be analyzed along with other evidence on record that is of a substantive character. Moreover, it is also well known that the Court is expert of experts and no expert evidence can tie down the hands of the Court. Therefore, the submission of the learned counsel for the revisionist on this score is not acceptable.
6. The other submission of the learned counsel for the revisionist that permission under Section 311 A of the Code of Criminal Procedure not being secured to give specimen signatures or the specimen of handwriting by the Investigating Officer would vitiate the opinion of the private handwriting expert, also does not hold substance in the opinion of this Court.
7. For facility of reference, the provisions of Section 311A of the Code of Criminal Procedure are quoted herein below:
"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." A bare reading of this Section makes it clear that Section 311A cannot be used for obtaining a direction from a Magistrate for taking voice sample."
8. A reading of the said provision reveals that the provision confers jurisdiction upon a Magistrate to direct any person including the accused to give specimen signatures or that of his handwriting and once that order is made, the specimen signatures have to be furnished.
9. In the present case, the specimen signatures when asked for by the Investigating Officer were furnished by the accused revisionist. In the opinion of the Court, the provisions of Section 311A of the Code of Criminal Procedure are enabling in nature and confer power upon the Magistrate to direct an accused or any other person to give specimen signatures or that of his/her handwriting, but the same are not restrictive of the right of any person to give his specimen signatures, if he does so voluntarily, which precisely is the case here. The absence of an order under Section 311A of the Code of Criminal Procedure, in case of specimen signatures being given by any person including the accused will not vitiate the analysis, where those specimen signatures have been given voluntarily.
10. The closest guidance on the point by the Hon'ble Supreme Court is to be found in Sukh Ram versus State of Himanchal Pradesh1 where Their Lordships in paragraph nos. 14, 15, 16 and 17 have held thus:-
"14. The trial court discarded the opinion evidence of PW 20 on the ground that the Executive Magistrate was not the competent authority before whom the fingerprint and handwriting of the witnesses could be taken as no proceeding was pending before the Executive Magistrate. In this regard, the trial court placed reliance upon Sukhvinder Singh case and held that the opinion evidence of handwriting expert cannot be used against the accused.
15. In Sukhvinder Singh case, it was held that the direction given by the Tehsildar-Executive Magistrate to the accused to give his specimen writing was clearly unwarranted and therefore, the said specimen writing could not be made use of during the trial and the report of handwriting expert was rendered of no consequence at all and could not be used against the accused to connect him with the crime. It was held that the direction to an accused to give specimen handwriting can only be issued by the court holding enquiry under the Criminal Procedure Code or the court conducting the trial of such accused.
16. The High Court differentiated the Sukhvinder Singh case from the case at hand on facts as also on law. The High Court pointed out that in the matter at hand, admittedly, the authority Executive Magistrate before whom the specimen signatures were given did not have the authority to enquire into or try the case. However, as observed by the High Court, during the course of investigation, PW 5 and PW 7 gave the specimen signatures willingly. In Sukhvinder Singh case, specimen writing of the accused was taken as per the direction of the Tehsildar; whereas in the present case PW 5 and PW 7 were produced before the Executive Magistrate by the police with a request that their signatures be taken by the Executive Magistrate. Sukhvinder Singh case is clearly distinguishable on facts from the case at hand. The High Court further relied on another decision rendered in Vijay case wherein in the facts and circumstances of the said case, it was held that procurement of specimen handwriting of the accused by the Naib Tehsildar was not in violation of Section 73 of the Evidence Act.
17. The question is whether the Judicial Magistrate/Executive Magistrate was authorised to take specimen writing and signatures of the said accused during the investigation of the case when no matter was pending before either of them. Section 311-A CrPC has been introduced by Act 25 of 2005 with effect from 23-6-2006 with respect to the powers of the Magistrate to order the person to give specimen signatures or handwriting; but no such powers were there prior to the year 2006. Section 311-A CrPC has been inserted on the suggestions of the Supreme Court in State of U.P. v. Ram Babu Misra that a suitable legislation be brought along the lines of Section 5 of the Identification of Prisoners Act, 1920, to provide for the investiture of the Magistrates with powers to issue directions to any person including an accused person to give specimen signatures and handwriting but no such powers existed prior to such amendment. The said amendment is prospective in nature and not retrospective."
11. Even otherwise, if it could be remotely argued that analysis of signatures forwarded to the expert taken or given voluntarily by the accused as in the present case without an order of the Magistrate concerned is not in accordance with law, the same in the opinion of the Court would only be a curable irregularity and not an illegality that goes to the root of the matter. No prejudice has been caused or even alleged to have been caused to the revisionist on account of an order by the Magistrate not being secured by the investigating agency under Section 311-A of the Code of Criminal Procedure. Such an irregularity, if at all, is one that would be curable in accordance with the provisions of Section 460 of the Code of Criminal Procedure or on the analogy of it.
12. In the result, this Court does not find any force in this revision. This revision fails and dismissed in limine.
(J.J. Munir, J.) Order Date :- 9.4.2018 Sushil/-