Delhi High Court
Raj Kumar vs State on 18 October, 2012
Author: Sanjiv Khanna
Bench: Sanjiv Khanna, S. P. Garg
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Crl.M.A. 14076/2012 in Crl. A. 582/2012
Reserved on: 3rd September, 2012
% Date of Decision: 18th October, 2012
RAJ KUMAR ....Appellant
Through Mr. Lovkesh Sawhney, Advocate.
Versus
STATE ...Respondent
Through Ms. Richa Kapoor, APP.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE S. P. GARG
SANJIV KHANNA, J.
This application has been filed by the State, under Section 391 read with Section 482 Cr.P.C., for taking specimen handwriting of the appellant Raj Kumar, before the Court, for the purpose of comparison with the handwriting on the ransom letters.
2. The appellant Raj Kumar and other co-accused, have been convicted under Section 302/364A/201/120B IPC, for having abducted/ kidnapped Ashok @ Bunty for ransom and for his murder. The prosecution case, as accepted by the trial court, is that Ashok, aged 18- 19 years, was missing since 8.30 P.M., 6th December, 2005. Ashok‟s father, Ram Kishan (PW-5), searched but could not locate him. On 7th December, 2005, PW-5 called No. 100 and, on 8th December, 2005, lodged a „Missing Person‟s Complaint‟ with Police Station, Kalyan Puri. On 9th December, 2005, PW-5 received a ransom note, demanding Rs.10 lakhs, along with the jeans jacket of Ashok. The ransom note, with the jeans jacket of the deceased, was dropped at the door step of PW-5‟s Crl. M.A 14076/2012 Page 1 of 14 house. FIR No. 624/05 was registered under Section 364A IPC, on 10th December, 2005 at 00.10 Hrs with P.S. KalyanPuri. The factum of seizure of the said jeans jacket, along with the ransom note, is recorded in the endorsement Ex. PW5/B. Again, on 12th December, 2005, shirt of the deceased was thrown outside PW-5‟s house. The shirt had another ransom note/letter, repeating the demand and the threat (seized vide Ex. PW-5/D). On 15th January, 2006, at about 7.00 P.M., co-accused Rakesh was apprehended by Jai Prakash (PW-2), brother of PW-5, when he was attempting to throw another ransom letter inside PW-5‟s house. In the third ransom note/letter demand of Rs.15 lacs was made. On the basis of disclosure, made by co-accused Rakesh, and the investigation done by the police, the appellant Raj Kumar was arrested from the house of the accused Mohan.
3. Prosecution version, accepted by the trial court, alleges that two ransom notes, received by PW-5 on 9th December, 2005 and 12th December, 2005, were in the hand writing of accused Raj Kumar and were written on pages drawn from the diary, which was recovered through the disclosure statement (Ex.PW-2/C) made by the appellant Raj Kumar, from the house of co-accused Mohan in village Bhoapur, Ghaziabad. Other alleged incriminating material, relied upon by the prosecution, and other aspects of this case need not be examined at this stage, where a limited issue has arisen for consideration.
4. During the course of investigation, ACP Rajeshwar Kumar (Retd.) (PW-16), on 18th January, 2006, took specimen handwriting of the appellant Raj Kumar, vide memo Ex. PW16/H-1 TO 16/H-3, for forensic evaluation. S.I. Sansar Singh (PW-15) was witness to the same. FSL Report, dated 30th June, 2006, (Ex. PW16/O) has been relied upon for two reasons. Firstly, to prove that the ransom notes were in the appellant Crl. M.A 14076/2012 Page 2 of 14 Raj Kumar‟s handwriting and, secondly, to prove that ransom notes were written on pages torn from the diary seized from the accused (Ex. PW- 2/G).
5. The trial court had relied upon the FSL Report (Ex. PW16/O) for conviction of Raj Kumar and the another co-accused.
6. One of the contentions, raised by the appellant counsel, is that FSL Report (Ex. PW16/O) cannot be relied upon and should be excluded from evidence, on the premise that, specimen handwriting cannot be taken by a police officer (PW-16 in the present case). Reliance is placed on Section 311A Code of Criminal Procedure, 1973 (Cr.P.C.), which was inserted by Amendment Act 2005 w.e.f. 23 rd June, 2006 and on Section 5 of the Identification of Prisoner‟s Act, 1920 (herein referred to as 1920 Act).
7. Sections 3, 4 and 5 of 1920 Act read, as under:-
"3. Taking of measurements, etc., of convicted persons.
-- Every person who has been, -- (a) convicted of any offence punishable with rigorous imprisonment for a term of one year or upwards, or of any offence which would render him liable to enhanced punishment on a subsequent conviction; or (b) ordered to give security for his good behaviour under section 118 of the Code of Criminal Procedure, 1898, shall, if so required, allow his measurements and photograph to be taken by a police officer in the prescribed.
"4. Taking of measurement, etc., of non-convicted persons.-- Any person who has been arrested in connection with an offence punishable with rigorous imprisonment for a term of one year or upwards shall, if so required by a police officer, allow his measurements to be taken in the prescribed manner."
"5. Power of Magistrate to order a person to be measured or photographed. -- If a Magistrate is satisfied that, for the purposes of any investigation or proceeding under the Code of Criminal Procedure, 1898 (5 of 1898), it is expedient to direct any person to allow his measurements Crl. M.A 14076/2012 Page 3 of 14 or photograph to be taken, 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 the order and shall allow his measurements or photograph to be taken, as the case may be, by a police officer:
Provided that no order shall be made directing any person to be photographed except by a Magistrate of the First Class: Provided further, 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. There has been considerable debate and controversy surrounding these sections, quoted above, on the moot question of whether or not an investigating officer is entitled to obtain „measurements‟, of an accused, during investigation, under Section 4 of the 1920 Act, without taking recourse to Section 5 of the 1920 Act.
9. Division Bench of this Court in Harpal Singh vs. State, Crl. Appeal No. 362/2008 decided on 25th May, 2010 and Satyawan vs. State, Crl. Appeal No. 34/2001 decided on 9th July, 2009, have held that reports of the handwriting expert should be excluded because the investigating officers, in the respective cases, had not taken the specimen handwriting before a Magistrate and therefore had violated the provisions of 1920 Act.
10. Disagreeing, a Division Bench of this Court referred these two decisions to a larger Bench in Crl. Appeal No. 1005/2008 titled Bhupender Singh vs. State and Crl. A. No. 408/2007 titled Drojan Singh vs. the State. The question of law, referred to the larger Bench, was as under:-
"Whether the sample finger prints, given by the accused during investigation under Section 4 of the Identification of Prisoners Act, 1920 without prior Crl. M.A 14076/2012 Page 4 of 14 permission of the Magistrate under Section 5 of the Act, will be admissible or not?"
11. A Full Bench of this Court, to which one of us was also a member (Sanjiv Khanna, J. ), examined the said provisions, after referring to the objective and reasons for the enactment of 1920 Act. Reference was made to the Supreme Court decisions, in Shankaria v. State of Rajasthan, (1978) 3 SCC 435, Mohd. Aman v. State of Rajasthan, (1997) 10 SCC 44, State of Madhya Pradesh v. Devendra, (2009) 14 SCC 80, to gauge the scope of the aforesaid provisions. Reference was also made to Manikram v. State, (2009) 5 CTC 316, in which it has been held that no law prohibits an investigating officer from lifting finger prints of an accused, for comparison. Section 5 of 1920 Act and Section 311A Cr.P.C., as inserted by Act 25 of 2005, were with regards to the powers of a Judicial Magistrate, when approached by the investigating officer. However, these two sections did not put any embargo on the investigating officer, acting on his own. It was observed that there was no mandatory provision, under 1920 Act, to obtain permission of the Magistrate. Thereafter, reference was made to State of Bombay v. Kathi Kalu Oghad, AIR 1961 SC 1808, wherein the Supreme Court examined whether Section 27 of the Indian Evidence Act, 1872 violates Articles 14 and 20(3) of the Constitution. This contention was rejected, on the ground that, an accused, who is asked to provide finger prints or handwriting etc., was not being compelled to be a witness against himself. Furnishing proof for identification cannot be equated with compulsion to be a witness. The expression „to be a witness‟ was not equivalent to furnishing evidence in its widest significant . „To be a witness‟ means imparting knowledge with respect to relevant facts, by oral or written statement, given in the court or otherwise.
Crl. M.A 14076/2012 Page 5 of 1412. The Full Bench relied upon judgments of the Supreme Court in Directorate of Enforcement v. Deepak Mahajan & Anr., AIR 1994 SC 1775, Pooran Mal v. The Director of Inspection (Investigation), New Delhi, (1974) 1 SCC 345, wherein it has been held that the term investigation was very wide and evidence obtained on an illegal investigation or search cannot be excluded as it still retains the character of material evidence. Admissibility of evidence has to be judged keeping in view the provisions of The Indian Evidence Act, 1872.
13. Reference was also made to Section 73 of the Evidence Act. As the said Section is relevant, for the sake of convenience it is reproduced below:-
Section 73: Comparison of signature, writing or seal with others admitted or proved:-In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made, any signature, writing, or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing or seal has not been produced or proved for any other purpose.
The Court may direct any person present in the Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written, although that signature, writing, or figures alleged to have been written by such person.
[This section applies also, with any necessary modifications, to finger-impressions.]
14. The Full Bench referred to the decision of the Supreme Court in State of Uttar Pradesh v. Ram Babu Misra, (1980) 2 SCC 343, for elucidation wherein it is noted that:-
"6. There are two things to be noticed here. First, signature and writing are excluded from the range of Section 5 of the Identification of Prisoners Act and, second, 'finger impressions' are included in both Section 73 of the Crl. M.A 14076/2012 Page 6 of 14 Evidence Act and Section 5 of the Identification of Prisoners Act. A possible view is that it was thought that Section 73 of the Evidence Act would not take in the stage of investigation and so Section 5 of the Identification of Prisoners Act made special provision for that stage and even while making such provision, signature and writings were deliberately excluded. As we said, this is a possible view but not one on which we desire to rest our conclusion. Our conclusion rests on the language of Section 73 of the Evidence Act."
15. It was held that the aforesaid decision, if appositely understood, would mean that Section 73 of the Indian Evidence Act, does not enable the Magistrate to give directions to the accused to provide specimen signature, where the matter was still under investigation. Section 73 of the Evidence Act fundamentally comes into force when proceedings were pending before the court and not at the stage of investigation. It was accordingly held that the view expressed in Harpal Singh's case (supra) and Satyawan's case (supra) were not correct and, therefore, were overruled.
16. As noticed above, the question of law, raised before the Full Bench, related to finger prints given by the accused under Section 4 of the 1920 Act, without prior permission of the Magistrate under Section 5 of the said Act. However, while dealing with the said question, the Full Bench referred to the related question of admissibility of handwriting, under Section 4 of the 1920 Act.
17. Second reference made to a Bench of three Judges, in the case of Sapan Haldar & Anr. Vs. State, Crl. A. 804/2001 was pronounced on 25th May, 2012. In the said judgment, the Full Bench referred to Section 2(a) of the 1920 Act, wherein the term „measurement‟ has been defined as under:-
Crl. M.A 14076/2012 Page 7 of 14"(a) "measurements" include finger impressions and foot-print impressions."
18. Thereafter, the Full Bench referred to the observations of the Constitutional Bench of State of Bombay v. Kathi Kalu (1962) 3 SCR 10 with specific reference to the Madras High Court decision in T.Subbiah v. S.K.D. Ramaswamy Nadar, AIR 1970 Mad. 85. It was observed that the Madras High Court had specifically dealt the difference between measurement, as defined under Section 2(a), and handwriting and signatures obtained from an accused, and this was highlighted. Reliance was also placed upon the judgment of the Supreme Court in Ram Babu Mishra's case (supra) wherein T. Subbiah's case (supra) was examined and referred to. The word „measurement‟, as explained in various dictionaries, was elucidated upon and the Full Bench concluded that the term „measurement‟, used in 1920 Act, did not include handwriting or signatures. The earlier Full Bench decision in Bhupinder Singh (supra) answered the limited question relating to „measurement‟ which included finger prints and not „handwriting‟ and „signatures‟. The Full Bench thereafter referred to the decisions of the Supreme Court in Shankaria vs. State of Rajasthan, (1978) 3 SCC 435, Mohd. Aman & Ors. v. State of Rajasthan (1997) 10 SCC 44, Sukhwinder Singh & Ors. v.State of Punjab (1994) 5 SCC 152, State of Haryana v. Jagbir Singh & Anr. AIR 2003 SC 4377 and the Madras High Court decision in Thavaraj Pandian & Ors. v. State 2003 Cri. L.J.2642, and it has been held that „handwriting‟, obtained from an accused or from a person, during investigation, for having committed an offence; in the law is different vis-à-vis „fingerprints‟ or „measurements‟ obtained during investigation. With respect to handwriting or signatures, neither can the investigating officer obtain Crl. M.A 14076/2012 Page 8 of 14 sample writing nor can a Magistrate give directions for the same. The 1920 Act is applicable only to measurements which include finger print impressions but not to handwriting or signatures.
19. Reference was made to Section 311A Cr.P.C. and, it was noticed that, the Legislature had taken corrective action, by virtue of Act No.25 of 2005 with effect from June 23, 2006. Legislature enacted Section 311A Cr.P.C. to empower the Magistrate to direct and obtain specimen signatures or handwriting of the accused. Thus, the lacuna in the law, which was noted by the Supreme Court in Ram Babu Mishra's case (supra), had been removed. Thus, prior to 23rd June, 2006, a Magistrate could not have directed an accused to give his specimen signature and handwriting under Section 311A Cr.P.C. However, power under Section 73 of the Evidence Act was available to the concerned court. During pendency of proceedings before the court, under the said section, the court could direct a person, produced before the court, to submit a sample of his handwriting and signatures, for the purpose of comparison.
20. We have highlighted, and referred to, the two Full Bench decisions and other decisions referred to therein, only to highlight the difference of opinion and understanding on the said aspect. It is apparent that the issue in question has raised considerable debate and there have been varied and distinct opinions regarding whether an investigating officer can obtain handwriting and signature of the accused.
21. In the present case, as noted above, the prosecution avers that the Investigating Officer (PW-16), during the course of investigation, had obtained signatures and handwriting of the accused and, thereafter, the FSL Report, dated 30th June, 2006 (Ex. PW16/O) was obtained. We Crl. M.A 14076/2012 Page 9 of 14 may also note some more factors. The charge sheet in the present case was filed on 6th April, 2006. The FSL report is itself dated 30th June, 2006 but the request for FSL was made much earlier. The specimen handwriting was purportedly taken on 18th January, 2006 (by Memo Ex. PW16/H and 16/I). We also note that the trial court has relied upon the FSL Report (Ex. PW16/O).
22. In view of the authoritative pronouncement of the Full Bench in the case of Sapan Haldar (supra), the FSL Report (Ex. PW16/O) will have to be disregarded, as the Investigating Officer had not taken handwriting samples through a court order. Section 311A Cr.P.C. was not applicable, as the charge sheet was filed prior to enactment of the said Section i.e. 23rd June, 2006. The specimen handwriting and signature of the appellant could have been certainly taken, under Section 73 of the Evidence Act, but after the charge sheet was filed before the court. As explained and held, Section 73 of the Evidence Act enables the Court to direct any person, appearing before the Court, while proceedings are pending, to give specimen signatures or handwriting. This enables the Court to make a comparison. However, recourse to the said Section was not taken, as it is apparent that the trial court and prosecution felt that the investigating officer had the requisite power.
23. Keeping in view the aforesaid facts, we are inclined to and do hereby accept, the prayer of the prosecution, and issue a direction that the appellant Raj Kumar shall appear, before the trial court, and shall be asked to submit samples of his handwriting for the purpose of comparison. Thereafter, a fresh FSL Report, with regard to ransom notes, be obtained and filed. This, we feel, is necessary for full and proper adjudication and fair decision. The Supreme Court in Zahira Crl. M.A 14076/2012 Page 10 of 14 Habibulla H. Sheikh and Anr. Vs. State of Gujarat and Ors. AIR 2004 SC 346 has observed as under:-
"33. The principle of fair trial now informs and energies many areas of the law. It is reflected in numerous rules and practices. It is a constant, ongoing development process continually adapted to new and changing circumstances, and exigencies of the situation - peculiar at times and related to the nature of crime, persons involved - directly or operating behind, social impact and societal needs and even so many powerful balancing factors which may come in the way of administration of criminal justice system.
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38. A criminal trial is a judicial examination of the issues in the case and its purpose is to arrive at judgment on an issue as a fact or relevant facts which may lead to the discovery of the fact issue and obtain proof of such facts at which the prosecution and the accused have arrived by their pleadings; the controlling question being the guilt or innocence of the accused. Since the object is to mete out justice and to convict the guilty and protect the innocent, the trial should be a search for the truth and not a bout over technicalities, and must be conducted under such rules as will protect the innocent, and punish the guilty. The proof of charge which has to be beyond reasonable doubt must depend upon judicial evaluation of the totality of the evidence, oral and circumstantial and not by an isolated scrutiny.
39. Failure to accord fair hearing either to the accused or the prosecution violates even minimum standards of due process of law. It is inherent in the concept of due process of law, that condemnation should be rendered only after the trial in which the hearing is a real one, not sham or a mere farce and pretence. Since the fair hearing requires an opportunity to preserve the process, it may be vitiated and violated by an overhasty stage-managed, tailored and partisan trial.
40. The fair trial for a criminal offence consists not only in technical observance of the frame and forms of law, but also in recognition and just application of its principles in substance, to find out the truth and prevent miscarriage of justice."Crl. M.A 14076/2012 Page 11 of 14
24. We do not agree with the counsel for the appellant that the aforesaid exercise should not be permitted now, as it is contrary to the powers under Section 391 Cr.P.C. Section 391 Cr.P.C. reads as under:
"Section 391: Appellate Court may take further evidence or direct it to be taken:-
1) In dealing with any appeal under this Chapter, the Appellate Court, if it thinks additional evidence to eb necessary, shall record its reason and may either take such evidence to be necessary, shall record its reasons and may either take such evidence itself, or direct it to be taken by a Magistrate, or when the Appellate Court is a High Court, by a Court of Session or Magistrate.
2) When the additional evidence is taken by the Court of Session or the Magistrate, it or he shall certify such evidence to the Appellate Court, and such Court shall thereupon proceed to dispose of the appeal.
3) The accused or his pleader shall have the right to be present when the additional evidence is taken.
4) The taking of evidence under this section shall be subject to the provisions of Chapter XXIII, as if it were an inquiry."
25. In the present case, we are not asking for a fresh investigation. The ransom notes are already on record and have been relied upon. Whether the ransom notes were in fact recovered on the dates, as alleged, is as an aspect which we have to examine in the appeal on merit. As of now, we have the judgment of the trial court accepting the stand of the prosecution. Under Section 73 of the Evidence Act, as held by the Supreme Court in Ram Babu Mishra's case (supra) and Sukhvinder Singh's case (supra), the court, for the purpose of comparison can ask the accused to furnish his signatures, handwriting etc. However proceedings should be pending before the court at the said time, when such direction, under Section 73, is issued. We do not, therefore, think that there is a prohibition, in law or the Cr.P.C., which bars or contradicts aforesaid action. The direction recorded cannot be treated as Crl. M.A 14076/2012 Page 12 of 14 further „investigation‟, otherwise Section 73 of the Evidence Act would be rendered redundant and meaningless, as it applies only when proceedings are pending before the court. We do not really foresee any prejudice being caused to the accused. FSL report may well be in favour of the accused and no assumption can be drawn, at this stage.
26. The two decisions relied upon by the appellant in Wakkar and Anr. Vs. State of Uttar Pradesh (2011) 3 SCC 306 and Delhi High Court in Chander Pal & Anr. Vs. State 75 (1998) DLT 461 (DB) deal with Section 27 of the Evidence Act. There are observations relating to evidential value when recovery of incriminating material is made. In Chander Pal's case (supra), recoveries were made but they were doubted, for various reasons, as stated in Paragraph 8 of the said decision. However, this is not really the issue at the present stage. The appellate court is asking for expert opinion, in view of the law as expounded by the Supreme Court, and the challenge made to the earlier FSL Report (PW16/O).
27. Power of the appellate court, under Section 391 Cr.P.C., is wide and appellate court can take additional evidence when it considers it necessary, for reasons to be recorded. The underline principle is that justice should be done. In the present case, additional evidence is not a disguise for retrial and does not result into a change in nature of the case. Evidence was collected, by the prosecution, but for technical and legal reasons the same has to be ignored. The legal principle itself was highly debatable and subject matter of different opinions.
28. Accordingly, the application is allowed. The appellant Raj Kumar will appear before the trial court and will be asked to give his specimen handwriting. The said specimen signature and handwriting and the original ransom notes will be sent for comparison, before the Crl. M.A 14076/2012 Page 13 of 14 Government Examiner of questioned documents, Simla who shall submit the report, before the trial court within one month. The case will be fixed, before the trial court, for recording of statement of the government examiner, thereafter. Section 313 Cr.P.C. will be also complied with.
29. Trial court record be sent back. List the matter before the trial court on 2nd November, 2012.
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(SANJIV KHANNA) JUDGE
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(S. P. GARG) JUDGE October 18th, 2012 kkb Crl. M.A 14076/2012 Page 14 of 14