Calcutta High Court (Appellete Side)
State Of West Bengal vs Abdul Quiyum & Anr on 11 December, 2013
Author: Ashim Kumar Roy
Bench: Ashim Kumar Roy
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Form No. J(1)
IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL/APPELLATE JURISDCITION
APPELLATE SIDE
Present: The Hon'ble Justice Ashim Kumar Roy
C.R.R 3521 of 2013
State of West Bengal
-vs-
Abdul Quiyum & Anr.
For the Petitioner : Mr. Manjit Singh, Ld. P.P.
Mrs. Anausuya Sinha
For the O.P. : Mr. Moni Mohan Chandra
Heard on : 18.11.2013
Judgement on : 11.12.2013
Ashim Kumar Roy, J.
The foster son of the testator Late Gholam Rasool applied before this court for probate of his last Will, which gave rise to a probate proceeding. In the meantime, the real son of the testator filed a criminal case against the foster son, who applied for probate on the allegation, the signature in the Will was forged. In connection therewith, the investigating agency applied before High Court for 2 custody of the Will for forensic examination of the signature of the testator, when the High Court disposed of the said application with the following observations:
" This is an application by Kolkata Police, in connection with the above complaint, seeking leave of this Court to examine the original Will forensically.
I am of the view that forensic examination of the Will by the Kolkata Police should not be refused by this Court. I order accordingly, but the examination has to be carried out in Court under the supervision of the concerned registry officials. I am of the further view that examination of the Will may be made but no further steps be taken in this regard, without the leave of the Court. This is for the reason that in a contested proceeding, the Will has to be proved beyond reasonable doubt. Even if there is a shadow of doubt in the mind of the Court, the Court refuses probate. The standard of proof required to akin to a criminal proceeding. Therefore, if a criminal proceeding continues side by side, it is bound to prejudice the trial. However, the police authorities are also at liberty to approach this Court for expediting the trial, in case delay is caused by the parties.
With the above observations sand directions, this application is disposed of.3
Urgent photostat certified copy of this order, if applied, be supplied to the parties subject to compliance with all requisite formalities."
It is now contended by the learned Public Prosecutor, pursuant of the aforesaid order, the investigating agency applied before the learned Magistrate before whom the criminal case is pending for directing the accused persons to furnish specimen signatures and hand-writings. The learned Magistrate allowed the same.
Challenging the said order, the accused persons moved a criminal revision before the learned City Sessions Court at Calcutta and the learned Additional District & Sessions Judge, 6th Fast Track Court, Bichar Bhawan set aside the said order. The operating part of the order goes like this:
" The Ld. Court below has thus failed to understand the order of the Hon'ble Court dated 6th September, 2012 and came to a wrong finding that obtaining specimen handwriting is integral to the forensic examination which ought to be set aside because same only has to be done under the supervision of the registry officials of the Hon'ble Court.4
Hence, it is ORDERED That Criminal Revision No. 2 of 2013 be and the same is allowed on contest.
The impugned order dated 11.12.2012 passed by the Ld. Court below is hereby set aside.
Let a copy of the judgement along with L.C.R. be sent to the Court of Ld. 7th Metropolitan Magistrate, Kolkata, for information and taking necessary action.
Both parties are directed to appear before the Ld. Court below on 26.04.13."
The learned Public Prosecutor first contended that His Lordship was of the view that forensic examination of Will by Kolkata Police should not be refused and for such examination, the specimen signature and handwriting of the accused persons is essential. He then submitted having regard to that the learned Magistrate has committed no mistake in directing the accused persons to furnish their specimen signatures and handwriting by invoking the provision of Section 311A of the Code of Criminal Procedure and directed them to be present in court for the said purpose. Lastly, he submitted that if the accused persons furnish their signatures before the Registry of this court, the State has no objection.
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On the other hand, the learned advocate for the accused persons opposed this application and submitted that the petitioner should approach the court concerned before whom the probate proceeding is pending for appropriate order.
Now, having gone through the order passed by the probate court, I find the order is absolutely clear and without any ambiguity and needs no clarification. Undoubtedly, the probate court was of the view that in background facts of the case forensic examination was needed. No conclusion can be reached in forensic examination of handwriting without verifying the questioned signature with the signature of the accused and therefore specimen signature is essential.
However, I find from the order impugned, the learned revisional court while set aside the order of the learned Magistrate was of the view that specimen signature and handwriting of the accused be obtained under the supervision of the Registry officials of the Hon'ble High Court. When the learned Public Prosecutor did not take any 6 objection to that, I dispose of this application by directing the State to move the Registry of this Hon'ble High Court for making necessary arrangement for obtaining specimen signature and handwriting of the accused persons in terms of the order passed by the revisional court.
This application accordingly stands disposed of. Urgent photostat certified copy of this order, if applied for, be supplied to the learned advocate for the parties on usual undertaking.
( Ashim Kumar Roy, J. )