Jharkhand High Court
Chetan Sharma vs State Of Jharkhand on 8 May, 2024
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 2764 of 2023
Chetan Sharma, aged about 64 years, Son of Late Laxman Sharma,
Resident of Hariom Market, Din Bandhu Lane, Upper Bazar, P.O. -
G.P.O., P.S. -Kotwali, District -Ranchi, Jharkhand.
.... Petitioner
Versus
1. State of Jharkhand
2. Parwati Devi, wife of Late Ram Chandra Sharma, resident of Din
Bandhu Lane, Upper Bazar, P.O. -G.P.O., P.S. -Kotwali, District -
Ranchi, Jharkhand
.... Opp. Parties
PRESENT
HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
.....
For the Petitioner : Mr. Ashok Kr. Goel, Advocate : Mr. Amlan Palit, Advocate : Mr. Sunil Kr. Ganjhu, Advocate For the State : Mrs. Priya Shrestha, Spl. P.P. For the O.P. No.2 : Mr. Kaushik Sarkhel, Advocate : Mr. Abhishek Singh, Advocate .....
By the Court:-
1. Heard the parties.
2. This criminal miscellaneous petition has been filed invoking the jurisdiction of this Court under Section 482 Cr.P.C. with a prayer to quash the order dated 23.01.2023, passed in P.C. No. 858 of 2014 by the learned Chief Judicial Magistrate, Ranchi and to quash the deposition of C.W. 6 -Suresh Chandra Gupta in connection with the said P.C. Case No. 858 of 2014 passed by the learned Chief Judicial Magistrate, Ranchi.1 Cr.M.P. No.2764 of 2023
3. The brief facts of the case is that the petitioner is the accused person of the said Complaint Case being P.C. Case No. 858 of 2014 in which cognizance has been taken for the offences punishable under Section 467/468/420/120B of the Indian Penal Code.
Charges were framed on 09.10.2018 for the said offences. The genesis of the case is the F.I.R. which was registered as Kotwali P.S. Case No. 1094 of 2012 for the said offences which was investigated and on 24.01.2014, final report was submitted by the police mentioning that the dispute between the parties is a civil dispute. A protest petition was filed and cognizance was taken and charges were subsequently framed as already indicated above. On 06.08.2022, the complainant filed an application under Section 311 Cr.P.C. to summon the authorized person of Truth Labs, New Delhi for proving a report of handwriting expert of a document privately examined by a private handwriting expert. The same was allowed by the learned Chief Judicial Magistrate, Ranchi.
4. It is submitted by the learned counsel for the petitioner that before submission of the final report, the I.O. of the case sent specimen signature of the complainant for examination to the Central Forensic Science Laboratory, Kolkata but vide report dated 02.08.2013, the specimen signatures of 2010 or before was asked for. It is next submitted by the learned counsel for the petitioner that court alone is empowered to pass an order and direction for scientific examination if so needed or necessary for the just and impartial decision of the case as there is every chance 2 Cr.M.P. No.2764 of 2023 of manipulation in the report of a private agency obtained by a private person in the matter of comparison of handwriting and for receiving its report.
5. Relying upon the Judgment of Hon'ble Andhra Pradesh High Court in the case of Virothi Tirupati Rao Vs. Kota Venu, reported in (2016) SCC Online Hyd 216, para -20 of which reads as under:-
"20. As fairly stated by the learned counsel for both the sides, it is no doubt true that no Government expert attached to a Government Forensic Science Laboratory would furnish an opinion directly and privately to parties. A Government expert would furnish an opinion or a report only under the orders and directions of a Court. Obviously for that reason, the defendant had approached a private expert of a private laboratory and had obtained a report by making available to the said expert some documents, which are in his possession and which in his discretion are suited for comparison; and had thus, obtained a report/opinion directly. Therefore, the said report was obtained by the defendant from a private expert by directly furnishing/giving documents, which he considered in his opinion, are best suited for comparison and furnishing a report. There was no opportunity to the plaintiff to have his say in the matter particularly on the comparable standards of the signatures on the documents, which are unilaterally furnished by the defendant to the private expert for his opinion. Generally, it is for one of the parties to make a request to the Court to order issuance of a commission for scientific investigation by sending the documents said to be containing the disputed signatures and the documents said to be containing admitted/standard signatures for comparison by an expert and for furnishing his opinion in regard to the genuineness or otherwise of the disputed signatures. The courts in our States (Andhra Pradesh and Telangana) are generally seeking experts opinions from the Government experts of the Government Forensic Science Laboratories of the States. No doubt the Courts are empowered to seek opinion also from a private expert attached to a private laboratory for reasons to be recorded. In the case on hand, as is fairly stated before this Court, all the documents are furnished directly by the defendant to the private expert from whom a report/an opinion was obtained by the defendant. All those documents are only Photostat copies and none of the documents is an original document. Even the original promissory note is not furnished to the expert. Admittedly, the originals are in the Court record and the originals are not supplied to the private expert from whom the defendant had obtained a report/opinion privately; any opinion/report of a hand writing expert in regard to genuineness or otherwise of signatures/writings on the Photostat copies is generally not of assured and reliable nature. When the originals are very much 3 Cr.M.P. No.2764 of 2023 available in the Court records and there is every opportunity to the defendant to obtain the opinion/report from a qualified expert under the orders and supervision of the Court, there is no reason for the defendant to obtain an opinion/report from an expert that too based on Photostat copies. The submission of the plaintiff that if the Courts permit parties to obtain private reports from private experts directly without the orders of the Court, it would lead to serious and complex situations needs consideration and cannot be brushed aside without due consideration; any report, which is obtained by a party privately and directly and behind the back of one of the parties and without the intervention of the Court and without the orders from a Court having seisin over the matter cannot be permitted to be received on record. It is apt to note that even a Government servant like a Police officer cannot conduct further investigation in a matter within the purview of the Court without obtaining necessary permission from the Court. Such legal principles are enunciated to preserve the primacy of the justice administration and delivery system. The provisions of the Code do not provide for the parties directly and privately obtaining opinions from either the Government or private experts and also do not provide for receiving on record such privately or directly obtained reports/opinion. No-doubt it is true that a party, who is interested in knowing the strength of his case may approach a private expert of a private Forensic Laboratory and obtain an opinion in regard to the disputed document said to be containing his handwriting or signature. However, if he intends to obtain an opinion or report and wants to place reliance on such report in support of his case/defence in the suit, necessarily, he has to follow the procedure established by law and obtain such opinion under the orders and supervision of the Court by filing an appropriate application in accordance with the procedure established by law. When the law is settled that expert's evidence as to handwriting or signatures is opinion evidence and it can rarely, if ever, take the place of substantive evidence, there is no point in permitting a party to rely upon an opinion like the present one, which was obtained directly and unilaterally from an expert without the orders of the Court and by making available only the copies of the documents and not the original documents. The course adopted by the defendant in obtaining the instant opinion without orders of the Court is impermissible and cannot be approved by the Court; and the opinion furnished on the basis of the documents unilaterally furnished by the defendant, that too not original documents, would make the opinion evidence further weak and undependable. Experts opinions that are obtained under the orders and supervision of the Court will be relied upon by one of the parties by treating them as important pieces of evidence and, therefore, such experts opinions and reports shall be of reliable and assured nature; and hence, unless experts opinion/report is obtained on an application made to a Court in accordance with the procedure established by law and under the orders and supervision of the Court, an opinion/report of the expert cannot be a part of the record of the Court. Neither the opinion/report privately obtained can be received nor the expert, 4 Cr.M.P. No.2764 of 2023 who has furnished the said report, be permitted to be examined as a witness as any such evidence is inadmissible and will be of no probative value. In the well considered view of this Court, such report obtained unilaterally by the defendant without following the procedure established by law and without the necessary orders from the Court, cannot be forced either upon the Court or the plaintiff. Further, no explanation is forthcoming from the defendant as to why the codified procedure was not followed by the defendant and as to why an opinion was directly obtained from a private expert of a private laboratory that too without the orders and supervision of the Court, which is having seisin over the matter. In deed, if the defendant wanted to obtain an experts opinion he ought to have filed an appropriate application and ought to have requested the Court to send the relevant original and other documents to an expert and ought to have taken steps accordingly for obtaining an experts opinion as per the codified procedure and norms; and not behind the back of the plaintiff. It is settled law that the opinion of an expert in regard to genuineness or otherwise of signatures and/or hand writings is purely opinion evidence and such opinion evidence in regard to signatures/handwriting is not based on exact science as in the case of thumb impressions. In a case of this uncanny nature, where the reliefs sought for, if granted pave way to a course or accord sanction to a conduct, which is impermissible; and further, the reliefs, if granted, encourage imprudence and insolence of procedure established by law; and such reliefs, if granted, come in conflict with the primacy of justice administration and delivery system, the Courts would be reluctant to grant any such reliefs. One aspect, which may be visualized and be noted is as under : If the parties to a lis are allowed to obtain reports/opinions from experts privately and directly and submit the same to the Court, then several outcomes may be possible. In a given case, if the reports/opinions obtained by both the parties from different experts are akin, then the party who had privately obtained the opinion/report, which is against his case, would tend to suppress that opinion/report obtained by him and would prefer to raise all possible and available contentions against the adverse opinion/report obtained privately by the opposite party. Further, in another given case, if the opinion/report obtained by one party from a private expert is in direct conflict with the other report/opinion obtained by the opposite party from another private expert, then such situation would lead to complexities and results in burdening the record with unnecessary and avoidable evidence. Therefore, the best and only worthwhile course, which would avoid unnecessary complexities and controversies, is to allow the parties, who are desirous of obtaining an experts report/opinion, to make an application to the Court as per the procedure established by law with a request to the Court to send the relevant records to a qualified expert with necessary directions to such expert to furnish a report/opinion as is required in the matter. Such a report/opinion thus obtained under the orders and supervision of the Court would then be one more assured piece of evidence before the Court; and the Court will have the advantage 5 Cr.M.P. No.2764 of 2023 of considering such opinion evidence along with the other evidence that would be available on record by the time the suit comes up for final adjudication on merits. Such a course alone perfectly sub serves the ends of justice, in the well considered view of this Court. In any view of the matter, when the procedure established by law presents a fair opportunity to a party to the lis to obtain an opinion of a qualified expert under the orders and supervision of the Court and such opinion/report will have the sanction of the law, subject to consideration of its probative value at an appropriate stage, any opinion or report of an expert obtained privately and directly by any party, as the one that was obtained by the defendant in the present suit shall not be accepted by the Court. Even in a case where the Court refuses to consider the request of a party to send the disputed and other relevant documents to an expert for securing opinion, the defendant is obliged to assail the orders of the Court before a superior Court, but, cannot resort to obtaining an opinion/report privately on his own. Further, even otherwise, in the case on hand there are no exceptional circumstances to accept the requests of the defendant, by carving out an exception. Hence, this Court finds that the orders impugned in these revisions are valid and sustainable both under facts and in law and do not warrant interference in these revisions, which are misconceived." (Emphasis supplied) It is submitted that like that case, in this case the document being an affidavit purportedly to have been sworn by the complainant of Complaint Case being C.P. Case No. 858 of 2014 was a photocopy and not an original document, hence permitting a party to rely upon an opinion like the present one which was obtained directly and unilaterally from an expert without the orders of the court and by making available only the copies of the document and not the original document is not permissible in law.
6. The learned counsel for the petitioner next relied upon the Judgment of Hon'ble Andhra Pradesh High Court in the case of Bayya Mohana Rao and Another Vs. Parsia Bala Subrahmanyeswara Rao, reported in (2007) 5 ALD 239, para -5 of which reads as under:-
6 Cr.M.P. No.2764 of 2023
"5. One of the releifs claimed by the petitioners is, the cancellation of a sale deed. It was urged that the G.P.A., on the strength of which, the sale deed was executed; is forged one. Having taken such a plea, the respondent ought to have ensured that an issue is framed on it. Since there is a controversy as to the genuinity of the signature on the G.P.A., the only course open to the respondent was, to file an application under Section 45 of the Act, to send the disputed document, for examination by an expert, after comparing the signature thereon, with the undisputed signature. Further, it is not as if reference of document, to an expert, is a matter of course. In case, the Court is satisfied that the controversy can be resolved without reference to an expert, it may reject the application filed under Section 45. This much, however, can be said that, an expert opinion, in relation to disputed document, can be secured only through an order of the Court, and not voluntarily by a party to the suit. If the opinions are on the points of foreign law, or of science, or of art, which are already in existence, by the time the suit is filed, they can be relied upon, as being relevant to the controversy in the suit. An opinion to be procured during the pendency of a suit, that too, in relation to a document, which is the subject-matter of the suit; cannot be secured, except with the leave, or with the intervention of the Court." (Emphasis supplied) And submits that an expert opinion in relation to disputed document, can be secured only through an order of the court and not voluntarily to a party to the suit.
7. The learned counsel for the petitioner next relies upon the Judgment of Hon'ble Madras High Court, in the case of N. Chinnasamy Vs. P.S. Swaminathan, reported in (2006) SCC Online Mad 746 and submits that in para-9 thereof, it has been observed by the Hon'ble Madras High Court that the proper procedure in such cases would be only to permit the handwriting expert to inspect the document in the Court premises in presence of some responsible officer of the Court, and also if necessary permit the expert to have photographic copies of the documents in the presence of the responsible officer the Court and any lapse 7 Cr.M.P. No.2764 of 2023 in taking the necessary safeguards in this direction may result in miscarriage of justice.
8. It is next submitted that consequent upon the said prayer to examine the private handwriting expert as a witness, being allowed, the C.W.6 who is a private handwriting expert has been examined and he has proved his report which has been marked Ext.8. Hence, it is submitted that the prayer as prayed for in this criminal miscellaneous petition be allowed.
9. The learned Spl. P.P. submits that under Section 311 Cr.P.C., the court, if it feels that the evidence of any person appears to be essential to the just decision of the case then has to call for such person to be examined as an witness and as in this case, the private handwriting expert's opinion of a photocopy of a document and which opinion was obtained without the orders of the court, unilaterally by the complainant is essential for the just decision of the case. Hence, it is submitted that the learned Chief Judicial Magistrate has rightly allowed the petition under Section 311 Cr.P.C. and the C.W.6 has legally been examined as a witness and the Ext. 8 proved by him is relevant and legal document, therefore, this criminal miscellaneous petition being without any merit be dismissed.
10. The learned counsel for the opposite party no.2 submits that in the meanwhile the opposite party no.2 has filed a petition in the trial court, under Section 45 of the Evidence Act read with Section 294 Cr.P.C. with a prayer to get the original affidavit fabricated by 8 Cr.M.P. No.2764 of 2023 the petitioner of the criminal miscellaneous petition; to be examined by the Examiner of Questioned Documents (EQD).
11. Having heard the submissions made at the Bar and after going through the materials in the record, so far as the contention of the learned Spl. P.P. that the examination of the C.W.6 was essential for the just decision of the case is concerned, this Court is of the considered view that this Court is in agreement with the observations made by the Hon'ble Andhra Pradesh High Court in the case of Virothi Tirupati Rao Vs. Kota Venu (supra) and for the reasons mentioned therein when there was an option for the complainant to get the questioned document verified through the orders of the court by an expert by ensuring that the photograph of the disputed signature is taken by the expert concerned in presence of the parties or their counsel and in presence of an officer of the court, from the court premises itself but instead of doing that as the opposite party no.2-complainant has obtained unilateral report from a private examiner of questioned document unilaterally behind back of the petitioner who is the accused person of the case, on the basis of photocopies of original document, in the considered opinion of this Court is fallacious and such evidence is not reliable. Handwriting expert's opinion being not itself a substantive evidence, when such opinion is obtained unilateral behind the back of the other party, without the intervention of the court the veracity of such report is of little evidentiary value. Hence, this Court is of the considered view that the conclusion arrived at by the learned trial court to summon the 9 Cr.M.P. No.2764 of 2023 private handwriting expert who has subsequently been examined as C.W.6 is a gross illegality; as such evidence cannot be said to be essential for the just decision of the case and is liable to be quashed and consequent upon the same, the subsequent actions taken on the basis of that order dated 23.01.2023 i.e. the examination of C.W.6 in P.C. Case No. 858 of 2014 is also marking the report as Exhibit-8, is also liable to be quashed and set aside.
12. The order dated 23.01.2023 passed in P.C. Case No. 858 of 2014 by the learned Chief Judicial Magistrate, Ranchi as well as the subsequent actions including examination of the C.W.6 as a witness and the document marked Exhibit on the basis of the deposition as Ext.8 is quashed and set aside.
13. In the result, this criminal miscellaneous petition is allowed.
14. It is made clear that this order will not prejudice the court concerned while passing any order on the fresh petition filed by the complainant-opposite party no.2 dated 04.05.2024.
(Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 8th May, 2024 AFR/Sonu-Gunjan/-
10 Cr.M.P. No.2764 of 2023