Madhya Pradesh High Court
Phool Singh Kandoliya vs The State Of Madhya Pradesh on 12 March, 2025
Author: Avanindra Kumar Singh
Bench: Sushrut Arvind Dharmadhikari, Avanindra Kumar Singh
NEUTRAL CITATION NO. 2025:MPHC-JBP:12742
1 MCRC-8727-2025
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SUSHRUT ARVIND DHARMADHIKARI
&
HON'BLE SHRI JUSTICE AVANINDRA KUMAR SINGH
ON THE 12 th OF MARCH, 2025
MISC. CRIMINAL CASE No. 8727 of 2025
PHOOL SINGH KANDOLIYA
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Siddharth Datt - Advocate for the applicant.
Shri Gitesh Singh Thakur - Govt. Advocate for the State of M.P.
ORDER
Per: Justice Avanindra Kumar Singh This M.Cr.C. is filed under Section 528 of the Bharatiya Nagarik Suraksha Sanhita (Section 482 of Cr.P.C.) against the order dated 23.01.2025 passed in SCLOK No.03 of 2023 by learned Special Judge Prevention of Corruption Act 1988, Narsinghpur.
2. Learned counsel for the applicant submits that Police Station - Gotegaon, district Narsinghpur M.P. lodged a report under Crime No.663 of 2021 against the present applicant-accused - Phool Singh, Bank Employee and other co- accused for the offence punishable under Section 409, 420, 467, 468, 120-B r/w Section 34 of IPC, Section 13 (1) (a) @ and 13 (2) of the Prevention of Corruption Act, 1988.
3. As per prosecution story on 5.1.2021 one Bhaiya Ji and others made a complaint against the Union Bank of India, Gotegaon, District Narsinghpur regarding transfer of a sum of Rs.1,55,37,000/- behind the back of the complainants illegally and when the complainant approached the concerned branch of the bank, they did not give proper response to the complainant. Thus, employees of SID, branch of the bank, embezzled a total sum of Rs.3,73,72,250/- by forgery transferring the money from the account of account holders to other persons. The allegation against the present applicant - Phool Singh Kandoliya is that he was also involved in embezzlement of funds which was collected from the complainant and other account holders by using I.D. of bank staff through bank vouchers and other transfer documents.
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4. It is submitted by learned counsel for the applicant that in SCLOK No.03 of 2023 (State of M.P. Vs. Phoolsingh and others) learned trial court has demanded specimen hand writing of the accused - Phoosingh on an application by the prosecution dated 26.11.2024. Copy of the order dated 23.01.2025 is Annexure I.
5. It is submitted that applicant is innocent. He has not committed any offence. The charge sheet has been filed and the charges have been framed. The trial has begun and evidence of some witnesses recorded and now hand- writing sample has been demanded for verification of writing on Questioned Documents.
6. State of U.P. Vs. Ram Babu Mishra (1980) 2 SCC 343 is referred by learned counsel for the petitioner and submitted that when investigation is over and trial has begun and some witnesses have been examined, then hand-writing sample cannot be demanded by prosecution to fix culpability and court cannot allow such application of Police/prosecution.
7. The trial court has held that giving of sample is not prohibited in the light of amendment in Section 53, 53-A and 311-A but the order of learned trial court dated 23.01.2025 is bad in law and it has to be set aside.
8. On the other hand, learned Counsel for the State submits that there is no bar in collecting the sample of hand-writing even when criminal trial has begun.
9. Considered the arguments and perused the record.
10. On perusal of the order, it is seen that document seized by the Police were sent for examination by Draft No.पु.अ./नर./FSL/446/2024, dated 15.10.2024. The documents were sent for report regarding hand writing of applicant, non-applicant and accused - Phoolsingh to the office of State, i.e. Examiner of Questioned Documents but by letter No. CID/QD/C.X.- 716/438/2024, dated 06.11.2024, he has asked for collection of sample writing of Phoolsingh and applicant and non-applicant persons to match and since the accused- Phoolsingh was in jail, therefore, permission was sought from the trial Court. Phoolsingh objected to the application and submitted that he has not done any wrong. He simply took a loan for construction of house. It has not been made clear to applicant Phoolsingh whether his hand writing is required for investigation or for what purpose. It has also not been made clear to Phoolsingh as to what documents are to be checked from his hand-writing on the allegation that they have been fabricated and therefore, sought dismissal of the application.
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11. Accused-Phoolsingh has been charged under Section 420 in alternative 420/34, Section 467 in alternative 467/34, Section 468 in alternative 468/34, Section 471 in alternative Section 471/34, Section 409 in alternative 409/34 and Section 120 (B) and Section 13 (1) (a) r/w Section 13 (2) of Prevention of Corruption Act and Section 173 (8) of Cr.P.C. The investigation is going on under Section 173 (8) of Cr.P.C on the basis of communication from Examiner of Questioned Documents dated 6.11.2024, Hindi and English hand writing of Phoolsingh is sought in the format as mentioned in the letter.
12. The question is whether order of the learned trial court dated 23.01.2025 passed in SCLOK No. 03 of 2023 can be interfered by which application of prosecution has been allowed for collection of hand-writing sample of accused- Phoolsingh.
13. Learned counsel for the applicant has relied on the judgment of T. Subbiah (accused) petitioner Vs. S.K.D. Ramaswamy Nadar, 1969 SCC OnLine Madras 85. In Para-21 it has been held by the Hon'ble Madras High Court (Single Bench) that Magistrate had no power to direct the accused to give his specimen hand-writing or signature in the course of investigation by the Police at their instance.
14. In Faizal K.V. Vs. State of Kerala, CRL. MC No.5660 of 2023, order dated 20.7.2023, Hon'ble Kerala High Court in Para 23 has held as under :-
"23. The Supreme Court has held that the fundamental right to privacy is not absolute but must give way to the compelling public interest. The Court also held that the power to collect voice samples from accused persons can be conferred on magistrate through judicial interpretation and the exercise of the Supreme Court's jurisdiction under Article 142 of the Constitution of India. The Court rejected the contention that the collection of voice samples would violate the right to privacy of accused persons unless rules are framed and an appropriate standard operating system is notified under the provisions of the Criminal Procedure (Identification) Act, 2022. The above principles would apply to the facts of the instant case as well.
In view of above discussion, I am of the considered opinion that the order passed by the learned Magistrate is unexceptional and warrants no interference.Signature Not Verified Signed by: BASANT KUMAR SHRIVAS Signing time: 3/13/2025 6:24:29 PM
NEUTRAL CITATION NO. 2025:MPHC-JBP:12742 4 MCRC-8727-2025 This petition will stand dismissed."
15. Delhi High Court in CRL. REF.3 of 2019, the Court on its own motion Vs. State, vide judgment dated 23.12.2024, (Hon'ble Division Bench) in Para 25 has answered the reference made by ACMM :-
25. Thus, in the facts and circumstances of the case, the reference made by the learned ACMM to this Court is answered in the following manner: -
Question No. 1 : Whether, when a person appears before the court or Magistrate pursuant to the application by the IO for giving specimen signatures, is it essential that he must be arrested at that stage or must be in custody at any stage prior thereto in view of the proviso under Section 311A of the CrPC. Thereby implying that the proviso is a mandatory provision.
Answer: In view of the aforesaid discussion, the proviso to Section 311A of the CrPC is directory in nature and not mandatory. Thus, when a person voluntarily appears before the Court or Magistrate, pursuant to the application filed by the Investigating Officer, for giving specimen signature or handwriting, it is not essential to arrest him.
Question No. 2 : Is the proviso to Section 311A of the CrPC imposing excessive restriction on fundamental right to Article 14, 19, 20, 21 and 22 of Constitution of India.
Answer: In view of the aforesaid opinion rendered by this Court, the proviso to Section 311A of the CrPC, being directory in nature, is constitutionally valid as the same does not impose any excessive restriction on the fundamental rights under Articles 14, 19, 20, 21 and 22 enshrined in Part III of the Constitution of India.
16. In Utter Pradesh Vs. Ram Babu Misra, (1980) 2 SCC 343 in Para-8, it was held that suitable legislation may be made on the analogy of Section 5 of the Identification of Prisoners Act to provide for investiture of Magistrates with the power to issue directions to any person, including an accused person, to give specimen signatures and writings.Signature Not Verified Signed by: BASANT KUMAR SHRIVAS Signing time: 3/13/2025 6:24:29 PM
NEUTRAL CITATION NO. 2025:MPHC-JBP:12742 5 MCRC-8727-2025
17. Section 311-A of Cr.P.C., 1973 was inserted in the Cr.P.C. 1973 in the year 2005 and it came to be in effect on 23.6.2006. Section 311-A of Cr.P.C., 1973 reads as under :-
Section 311A. Power of Magistrate to order person person to give specimen signatures or handwring :-
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.
18. Therefore, the law permits court to direct the accused to give hand- writing sample for comparison.
19. Now the only question remains whether at this stage as submitted by learned counsel for both the parties when the trial is in progress hand-writing sample can be directed to be furnished or not. It is seen that investigation under Section 173 (8) of Cr.P.C. is still pending, as per charge -sheet, the trial is in progress against Phoosingh (applicant-accused/bank staff).
20. In Baliram Barman s. State of M.P., M.Cr.C. No.54639 of 2022 , vide order dated 3.4.2023, the Hon'ble Division Bench of this court where during pendency of the trial the voice sample of the petitioner - accused was sought and in which during investigation request for voice sample was opposed by the accused and when during trial when the examination in chief of the Investigating Officer had been recorded, then at that stage the prosecution moved an application with the prayer that voice sample of the petitioner- accused be directed to be collected in order to compare with Audio CD demanding money/bribe and application was opposed by learned counsel for the accused-petitioner but learned trial court allowed the application challenge of which was made on the basis of dictum laid down in Vinubhai Haribhai Malaviya Vs. State of Gujrat (2019) 17 SCC 1. In Vinubhai (supra) it was held that during investigation Magistrate can direct further Signature Not Verified Signed by: BASANT KUMAR SHRIVAS Signing time: 3/13/2025 6:24:29 PM NEUTRAL CITATION NO. 2025:MPHC-JBP:12742 6 MCRC-8727-2025 investigation but not at the fag end of the trial.
21. Relevant Paragraphs in the case of Baliram Barman (supra) order dated 3.4.2023 are:-
12. It is also submitted that during course of the investigation, the accused refused to give his voice sample, therefore, presumption is available against him and he may be presumed to be guilty of the alleged offence. Reference may be made in this behalf of a three Judge Bench decision rendered in Sharda vs Dharampal (2003) 4 SCC 493. Even then, with a bonafide intention, the prosecution wants to ensure that no innocence would be punished for any fault on its part. Therefore, they opted to go for said voice test. It does not or will not, in any manner whatsoever, prejudice his defence;
rather may help him to prove his innocence. Therefore, it is prayed to dismiss the petition.
13. x x x
14. x x x x
15. There is also no dispute between the parties as the power of the Court to direct an accused to give his voice sample for corroboration of evidence collected during investigation. The dispute is only with regard to the stage as to when or up to what stage of trial such direction can be given?
16. The concerns of the petitioner regarding the fact that by filing this application the prosecution is 'causing delay in trial' and that this is an attempt to 'fill up lacunas' or that it may cause prejudice to the accused have been addressed by the Hon'ble Supreme Court in the State (Delhi Admn.) v. Pali Ram, (1979) 2 SCC 158 : 1979 SCC (Cri) 389 at page 167. The Supreme Court while giving paramount importance to "doing justice" observed that the "likelihood of filling up of loopholes in prosecution case" was a subsidiary factor if the trial Court, that was in seisin of the case, formed an opinion that the assistance of an expert was essential to enable the Court to arrive at a just determination of the issue. We quote para 26 & 28 here-in-below wherein both the concerns have been dealt with and dismissed.
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26. Section 73 is therefore to be read as a whole, in the light of Section 45. Thus read, it is clear that a court holding an inquiry under the Code of Criminal Procedure in respect of an offence triable by itself or by the Court of Session, does not exceed its powers under Section 73 if, in the interests of justice, it directs an accused person appearing before it, to give his sample writing to enabling the same to be compared by a handwriting expert chosen or approved by the court, irrespective of whether his name was suggested by the prosecution or the defence, because even in adopting this course, the purpose is to enable the court before which he is ultimately put up for trial, to compare the disputed writing with his (accused's) admitted writing, and to reach its own conclusion with the assistance of the expert.
28. In the revision petition filed by the accused before the High Court a grievance is sought to be made out that the Magistrate's order will work prejudice to the defence and enable the prosecution to fill gaps and loopholes in its case. This contention was devoid of force. Once a Magistrate in seisin of a case, duly forms an opinion that the assistance of an expert is essential to enable the court to arrive at a just determination of the issue of the identity of the disputed writing, the fact that this may result in the "filling of loopholes" in the prosecution case is purely a subsidiary factor which must give way to the paramount consideration of doing justice. Moreover, it could not be predicated at this stage whether the opinion of the Government Expert of Questioned Documents would go in favour of the prosecution or the defence. The argument raised before the High Court was thus purely speculative.
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18. Thus, the assurance of a fair trial is to be the first imperative in the dispensation of justice (Commissioner of Police, Delhi and Another v. Registrar, Delhi High Court, New Delhi (1996) 6 SCC 3 2 3 relied on). The need for fair investigation has also been emphasized in Vinay Tyagi v. Irshad Ali alias Deepak (2013) 5 SCC 762 where it was observed thus:
"48. What ultimately is the aim or significance of the expression "fair and proper investigation" in criminal jurisprudence? It has a twin purpose: Firstly, the investigation must be unbiased, honest, just and in accordance with law; secondly, the entire emphasis on a fair investigation has to be to bring out the truth of the case before the court of competent jurisdiction...."
19. Examining the issue from another point of view that whether by passing of the impugned order, any prejudice is caused to the petitioner. Still, the same fails to satisfy this Court and the answer is in negative for the reason that during investigation, though the petitioner had been asked to give his voice sample, he refused to do the same for the reason best known to him and subsequently, during the course of trial, by filing the application at the instance of prosecution shall in no manner prejudice his case. It is rather preposterous to forestall forensic examination in anticipation of an unfavorable outcome. If favorable, the outcome will help the petitioner himself in substantiating his defence. The voice sample of the petitioner is a vital piece of evidence. At this stage, no one knows as the sample would match with the specimen or not. Such argument is, thus, purely speculative. If the C.D., already Signature Not Verified Signed by: BASANT KUMAR SHRIVAS Signing time: 3/13/2025 6:24:29 PM NEUTRAL CITATION NO. 2025:MPHC-JBP:12742 9 MCRC-8727-2025 exhibited, matches with the voice sample so obtained, the result would corroborate the version of the prosecution. If not, the same would come to the aid of the petitioner. Therefore, it cannot be said that comparing the voice sample with the specimen will result in illegal harm to the accused.
20. Based on the law laid down by the Apex Court in Vinubhai Haribhai Malaviya vs. State of Gujarat (2019) 17 SCC 1, the core contention of the petitioner is that such direction amounts to 'further investigation' and direction for 'further investigation' can be given only till 'trial commences i.e. the charges are framed', but as in the case on hand, the trial is at fag end, such direction cannot be given and it is illegal to issue such direction. But this judgement deals with altogether different field of law as well as different fact situation and cannot be read out of context. It has been rendered in reference to the powers of the magistrate conferred under Section 156(3), 173(8) of the Cr.P.C. It says that such powers can be exercised by the magistrate till the charges are framed, while the present case deals with the powers of a Court bestowed on by Section 311A Cr.P.C. Reference in this regard may also be made to the provision of Section 53, 53A, 54, 91, 311 of the CrPC and Section 73, 165 of the Evidence Act. A bare reading of all these provisions would reveal that no bar, rider or restriction, such as asserted by the petitioner, on exercise of these powers by the Courts has been created, crafted or carved out by any law or by any pronouncement of the Hon'ble Supreme Court, rather it scripted in Section 311 CrPC that the power can be used "at any stage of any inquiry, trial or other proceeding". Section 311A Cr.P.C., is nothing but an extension of Section 311 Cr.P.C. It empowers a magistrate to direct any person to give even his blood sample in accordance with Sections 53 and 53A of the Cr.P.C. at any stage whether pre-cognizance or post-cognizance. Section 165 of the Evidence Act, 1872 has entrusted almost similar; rather wider powers to the Courts. All these provisions show that no restriction, whatsoever, has been imposed over the power of the courts, which have been felt necessary to reach out the truth, for fair and just disposal of the case and to do complete justice.
21. Reliance in this regard may also be placed on the decision in Pooja Pal v. Union of India (2016) 3 SCC 135 , where the fundamental rights enshrined under Article 21 of the Constitution Signature Not Verified Signed by: BASANT KUMAR SHRIVAS Signing time: 3/13/2025 6:24:29 PM NEUTRAL CITATION NO. 2025:MPHC-JBP:12742 10 MCRC-8727-2025 of India were discussed in the context of "speedy trial" juxtaposed to "fair trial" in the following manner and sets that everything has to be done by the Court to secure justice on the basis of true facts:
83. A "speedy trial", albeit the essence of the fundamental right to life entrenched in Article 21 of the Constitution of India has a companion in concept in "fair trial", both being inalienable constituents of an adjudicative process, to culminate in a judicial decision by a court of law as the final arbiter. There is indeed a qualitative difference between right to speedy trial and fair trial so much so that denial of the former by itself would not be prejudicial to the accused, when pitted against the imperative of fair trial. As fundamentally, justice not only has to be done but also must appear to have been done, the residuary jurisdiction of a court to direct further investigation or reinvestigation by any impartial agency, probe by the State Police notwithstanding, has to be essentially invoked if the statutory agency already in charge of the investigation appears to have been ineffective or is presumed or inferred to be not being able to discharge its functions fairly, meaningfully and fructuously. As the cause of justice has to reign supreme, a court of law cannot reduce itself to be a resigned and a helpless spectator and with the foreseen consequences apparently unjust, in the face of a faulty investigation, meekly complete the formalities to record a foregone conclusion. Justice then would become a casualty. Though a court's satisfaction of want of proper, fair, impartial and effective investigation eroding its credence and reliability is the precondition for a direction for further investigation or reinvestigation, submission of the charge-sheet ipso facto or the pendency of the trial can by no means be a prohibitive impediment. The contextual facts and the attendant circumstances have to be singularly evaluated and analysed to decide the needfulness of further investigation or reinvestigation to unravel the truth and mete out justice to the parties. The prime concern and the endeavour of the court of law is Signature Not Verified Signed by: BASANT KUMAR SHRIVAS Signing time: 3/13/2025 6:24:29 PM NEUTRAL CITATION NO. 2025:MPHC-JBP:12742
11 MCRC-8727-2025 to secure justice on the basis of true facts which ought to be unearthed through a committed, resolved and a competent investigating agency.
(Emphasis added)
22. Let us now examine whether the direction in dispute amounts to 'further investigation'?
23. It is to be noted that the word "further" means additional, more, or supplemental; and "further investigation", therefore, would mean continuation of the earlier investigation. The facts of the present case are peculiar. It is further to be noted that during the investigation, voice of the petitioner got recorded in the form of conversation between him and the complainant with regard to the demand of illegal gratification. The petitioner was asked to give his voice sample to compare it with the conversation so recorded, but he refused to do so. A compact disc of this conversation was prepared and was filed with charge-sheet with a copy thereof supplied to the petitioner. This CD was proved during examination of the prosecution witnesses by marking exhibit. Hence, the sample to be taken would not amount to collect evidence rather it would be for comparing the evidence already on record. Pithily put, the prosecution had not come across any additional, more or supplemental material. There was no subsequent disclosure/ discovery of any new or additional material whatsoever. By filing the application, the prosecution was only Signature Not Verified Signed by: BASANT KUMAR SHRIVAS Signing time: 3/13/2025 6:24:29 PM NEUTRAL CITATION NO. 2025:MPHC-JBP:12742 12 MCRC-8727-2025 repeating the step which it had already taken during the course of investigation. In the peculiar facts and circumstances of this case, this Court is of the opinion that the impugned direction does not amount to directing 'further investigation'. While dealing with almost the identical fact situation, discussing various judgements on the subject including Vinubhai Haribhai Malaviya case (supra) relied upon by the learned Sr. Counsel of the petitioner and the law on the subject exhaustively, a single bench of Delhi High Court in the matter of Ram Udagar Mahto v State reported in 2021 SCC OnLine Del 4368 : 2022 Cri LJ 1127 has taken a view that that in the peculiar facts and circumstances of the case the impugned direction does not amount to 'further investigation'.
24. x x x x
25. In view of the foregoing discussion, it has to be concluded that in the peculiar facts and circumstances of the present case, the impugned direction does not amount to further investigation; rather constitutes a step which was essential to reach to the truth and impart fair, unprejudiced and objective justice and we hold that there is no such restriction or limit on the Courts in exercise of powers conferred under Section 311A of CrPC that it can only be used upto any particular stage of trial. Such powers of the Courts are unfettered and unaffected with the stage of the trial.
26. Consequently, the impugned order is upheld and the petition is dismissed."
22. In the light of the discussion and citations referred hereinabove, it is crystal clear that there is no limit in the power of the court to direct for taking of sample of hand-writing of the accused -Phoolsingh Kandoliya at stage of the recording of evidence in the case at hand where the trial is even not at the fag end.
23. Accordingly, this M.Cr.C. filed against the order dated 23.01.2025 passed in SCLOK No. 03 of 2023 being devoid of any merit is dismissed.
(SUSHRUT ARVIND DHARMADHIKARI) (AVANINDRA KUMAR SINGH)
Signature Not Verified
Signed by: BASANT KUMAR
SHRIVAS
Signing time: 3/13/2025
6:24:29 PM
NEUTRAL CITATION NO. 2025:MPHC-JBP:12742
13 MCRC-8727-2025
JUDGE JUDGE
bks
Signature Not Verified
Signed by: BASANT KUMAR
SHRIVAS
Signing time: 3/13/2025
6:24:29 PM