Gujarat High Court
Ashish Ishwarbhai Vaghela & vs State Of Gujarat & on 26 April, 2016
Author: Sonia Gokani
Bench: Sonia Gokani
R/CR.MA/21126/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 21126 of 2015
With
CRIMINAL MISC.APPLICATION NO. 19877 of 2015
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ASHISH ISHWARBHAI VAGHELA & 1....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR ASHISH M DAGLI, ADVOCATE for the Applicant(s) No. 1 - 2
MR. BHADRISH S RAJU, ADVOCATE for the Respondent(s) No. 2
MR MITESH AMIN, PUBLIC PROSECUTOR for the Respondent(s) No. 1
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CORAM: HONOURABLE MS JUSTICE SONIA GOKANI
Date : 26/04/2016
ORAL ORDER
1. Applicant of Criminal Miscellaneous Application No. 19877 of 2015 by virtue of the order dated 29.10.2015 has been protected by way of ad interim relief whereby the investigating agency is directed to refrain from arresting these applicants while allowing to continue with further investigation. This order from time to time has been extended in favour of the applicants.
2. This Court on 22.3.2016 in Criminal Miscellaneous Application No. 21126 of 2015 passed the following order:-
" It can be noticed that learned 10th Additional Senior Civil Judge, Vadodara in order dated 17.3.2016 in Probate Application No.13 of 2016 had directed the Registry to hand Page 1 of 9 HC-NIC Page 1 of 9 Created On Sat May 07 05:41:11 IST 2016 R/CR.MA/21126/2015 ORDER over the original bill to the investigating officer after keeping three certified copies with Nazir Department. The Court also directed the original seal to be once again deposited with the Registry at the earliest. However, no time period is given. No time period is specified for the examination and filing of the report of FSL and the hand writing expert. Let such examination be carried out at the earliest and the report be submitted to the concerned Court latest before 22.4.2016. It has been ensured by the applicants to cooperate with the investigating officer in giving the specimen writing.
Let this matter be notified on 24.4.2016 for further hearing. In the event of any difficulty either side will be at liberty to approach this Court. Ad interim relief to continue till then."
3. Learned Public Prosecutor for respondent No.1-State on instructions from the investigating officer has urged that the required cooperation was not available from the applicant of Criminal Miscellaneous Application No.19877 of 2015. She was needed to give her specimen writing as also natural writings of her father.
4. According to learned advocate for the applicant-lady, there is objection for giving specimen writing of the signature of the father of the applicant. This Court passed the following order dated 25.4.2016 as under:-
"1. The Investigating Officer is present. Learned APP, on instructions, submits that the cooperation, which is expected from the Respondent No.2 is not coming forth. According to learned Advocate, Mr. Unwala, Respondent is ready to cooperate not only to provide the natural writings and also the specimen writings. However, the insistence to give specimen writing signature of the father of the petitioner is being objected to.
2. Let the Investigating Officer file an affidavit explaining the requirement for specimen writing signature of the father of the petitioner. He shall also produce the communication, if any, from the Scientific Officer having expertise in the filed of handwriting to appraise the Court the need for such Page 2 of 9 HC-NIC Page 2 of 9 Created On Sat May 07 05:41:11 IST 2016 R/CR.MA/21126/2015 ORDER insistence. Let the matter appear tomorrow, i.e. on 26TH APRIL, 2016, at 11:00 A.M..
3. Ad-interim-relief granted earlier to continue, till then."
5. Affidavit-in-reply has been filed by one Bhikhabhai Kalubhai Bariya, Police Inspector, DCB police station, Vadodara City urging inter alia that her hand writings can be obtained from the concerned Court as the matter is sub-judice. She is not ready and willing to give specimen signature of her father. However, she is ready to give her specimen signature only before the Court of learned Additional Civil Judge. It is also pointed out that she moved an application on 24.4.2015 by making an excuse that since the date of hearing before the Court was 20.4.2016, she could not remain present. On 20.4.2016 there was a public holiday. Therefore, in wake of such non- cooperation, the matter is not proceeding further. It is urged that the parties are not asking her to forge any document or to make forged signature but they need to follow the Police Manual ("the Manual" for short) for collecting the signatures and specimen writings.
6. Learned Public Prosecutor Mr.Mitesh Amin for respondent No.1- State has urged that for want of cooperation the specimen writings, natural writings and disputed writings could not be sent and examined by the Examiner of Questioned Documents. She has urged that what is required is to give specimen signature as provided under the Manual and unless those specimen writings and signatures are sent to the Handwriting and Photographic Bureau, Directorate of Page 3 of 9 HC-NIC Page 3 of 9 Created On Sat May 07 05:41:11 IST 2016 R/CR.MA/21126/2015 ORDER Forensic Science, the officer concerned may not be in a position to examine the same for carrying out the examination and no officer is asking her to challenge the document, signature or the writings.
7. Learned advocate Mr. Bhadrish Raju appearing for the complainant has urged that Rule 167 sub-rule(6) of the Manual provides for instructions that are to be scrupulously observed while forwarding documents for examination in the Handwriting and Photographic Bureau of the State Criminal Investigation Department. According to him, the said rules and sub-rules are to be followed scrupulously. Day in and day out specimen writings have been insisted from the persons, who are arraigned as accused. That in no manner amounts to police officer insisting for forgery of document since it is a requirement of law. According to him, the same should be allowed.
8. Learned advocate Mr. Jal Soli Unwala for the applicants has not insisted on any of the averments made by the petitioner except of not giving her specimen signature before the police officer, as has been done in the will, which is of that of her father. According to learned advocate Mr. Unwala, to insist upon such signature would amount to self-incrimination and the officer concerned cannot insist on specimen writings and signatures with the very style etc. as the alphabets of the disputed signatures are even otherwise included in the specimen writings and therefore the same writings and the signatures as the disputed writings/signatures could not have been insisted upon.
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R/CR.MA/21126/2015 ORDER
9. Having thus heard learned advocates for both the sides, the question that requires to be considered is as to whether the police officer can insist upon the collection of specimen hand writings/signatures for forwarding the documents and such writings for examination to the Handwriting and Photographic Bureau, Directorate of Forensic Science insisting on the writings almost similar to those of the disputed writings/signatures.
10. If one looks at the detailed procedure, as provided by the police Manual, particularly, sub-rule (6) of Rule 167, the same provides for examination by the Handwriting and Photographic Bureau of the State Criminal Investigation Department which insists upon its specimen handwritings. It also insists that natural admitted writings and signatures should be in the same script as that of the questioned ones. Signatures or writing in different scripts should not be sent. The natural admitted writings should be so selected as to contain sufficient words in the common with those from the questioned writings. When taking specimen handwritings of several suspected or accused persons, the writings of each individual should be taken on separate sheet and not on the same sheet. In case where a person is required to write on separate papers, care be taken to remove the previously written sheets from the sight of the individual when he is writing the other specimens. For the purposes of obtaining specimen handwritings, the matter should be preferably be dictated. The suspect, if unable readily to write from dictation, should be made to Page 5 of 9 HC-NIC Page 5 of 9 Created On Sat May 07 05:41:11 IST 2016 R/CR.MA/21126/2015 ORDER write from typewritten or printed matter, and not manuscript, so the chances of imitation or variation of formation may be minimised. In no case should the suspect be allowed to see the questioned document to write from.
It is apt to reproduce sub paragraph (iii) of sub-rule (5) of Rule 167 is as under::-
"(iii) Standards of writing for comparison.-It is advisable to send as many specimens of the handwriting of the suspected person or person as can conveniently be obtained. Care should be taken as to the selection of these standards and no writing should be characterized as admitted or genuine, unless it is absolutely certain that it is so. When selecting handwritings for comparison, writings written about the same period as the document in question should , as far as possible, be selected. This should be done in cases where already existing writings of the suspect or accused are readily available whether contained among any correspondence or in books or registers. The natural admitted writings and signatures should be in the same script as that of the questioned ones. Signatures or writings in different scripts should not be sent. The natural admitted writings should be so selected as to contain sufficient words in common with those from the questioned writings. When taking specimen handwritings of several suspected or accused person, the writings of each individual should be taken on separate sheeets and not on the same sheet. In cases where a person is required to give several specimens of his signature, it is also advisable to take each specimen on a separate paper, care being taken to remove the previously written sheets from the sight of the individual when he is writing the other specimens. For the purposes of obtaining specimen handwritings, the matter should be preferably be dictated. The suspect, if unable readily to write from dictation, should be made to write from typewritten or printed matter, and not manuscript, so the chances of imitation or variation of formation may be minimised. In no case should the suspect be allowed to see the questioned document to write from. When any lengthy piece of writing is dictated or given for copy, the actual time occupied in writing should be noted and also the kind of pen used and the position of the paper while in the act of writing, i.e., whether laid on a flat hard surface, or held across the palm or placed across the thigh or in any other position. The Page 6 of 9 HC-NIC Page 6 of 9 Created On Sat May 07 05:41:11 IST 2016 R/CR.MA/21126/2015 ORDER officer taking the specimen should state on it the name of the writer together with the particulars above referred to, and affix the date of the writing. He should also certify on the same sheet, that the specimen was written in his presence. Admitted writings, if undated, should if possible, bear on them a pencil entry giving the probable date of the writing e.g. "Said to have been written in July, 1904". In the same way, if the disputed document bears no date, the supposed or probable date of writing, or the date of receipt, should be ascertained and noted."
11. From the Manual which is being followed in every case, it is obvious that while obtaining specimen writings, the officer taking specimen is required to follow the detailed procedure. Signatures or writings are also expected to be in the same script and for all other details of collection of the sample absolute care needs to be taken so that in no manner, there is any chance of imitation or variation of formation . It also insists that in no case should the suspect be allowed to see the questioned document to write from.
12. As is also pointed out by learned Public Prosecutor for the respondent No.1-State, on the basis of standard communication received from the Hand-writings and Photographic Bureau that every time by the Investigating agency, natural and specimen documents, signatures and writings are to be obtained for comparison with the disputed writings and they shall be as provided in the Check list produced at R7 with the affidavit-in-reply. It further says that where the writings and signatures are as per the disputed writings and signatures, the authorities are required to send the details of the specimen of handwriting and signatures in the form as prescribed by Page 7 of 9 HC-NIC Page 7 of 9 Created On Sat May 07 05:41:11 IST 2016 R/CR.MA/21126/2015 ORDER Handwriting and Photographic Bureau, FSL. It is being followed on regular basis by the investigating agency. It is also forming the part of the Manual as per the standard communication addressed by FSL, Hand Writing and Photographic Bureau, Directorate of FSL, Gandhinagar.
Therefore also, the objections raised by the applicants are found to be unsustainable.
13. It is to be noted that the apprehension shown on the part of the applicant and as raised through the learned advocate appearing for the applicant also, in the opinion of this Court, has no valid and sustainable basis. Not only the Manual provides for all safety measures, one of the most rigorous checks against any overzealous officer is of getting this specimen signatures and writings by getting details dictated. It has gone to the extent of saying that the suspect is also not to be shown the disputed signatures so that there may not be any chance of imitation. The same can be dictated and if the suspect is the person who, cannot take dictation of specimen writing, he/she needs to be shown typed version of writing.
14. As rightly submitted by the learned Public Prosecutor Mr.Mitesh Amin that no matter what the writings or the nature of signature are, it is ultimately the suspect or the person concerned, who is expected to write in his own writings and that needs to be examined and compared with the natural writings. Therefore also, there does not arise any question of jeopardizing the interest of the applicant. The Page 8 of 9 HC-NIC Page 8 of 9 Created On Sat May 07 05:41:11 IST 2016 R/CR.MA/21126/2015 ORDER applicant is, in no manner, going to be self-incriminating, as is apprehended by her.
15. Learned Public Prosecutor has stated that original applicant has given a list of the documents which are required to be in original. At this stage learned Public Prosecutor makes a request to examine some of the documents which are lying with the Court below.
The investigating officer may give an appropriate application through the learned Public Prosecutor and the Court concerned will consider the same in accordance with law.
16. Resultantly, this request is not entertained. Applicant is directed to provide her specimen writings of the signatures as required by the Scientific Officer looking after the Handwriting and Photographic Bureau by a separate purshis of the applicant.
17. The collection of specimen writings should be completed at the earliest. Let this be sent to the FSL. Once collected, the report shall be obtained at the earliest, but in no case later than four weeks from the date of receipt of these documents from the Handwritings and Photographic Bureau, Directorate of Forensic Science, Gandhinagar. In the event of any difficulty, either side is at liberty to approach this Court.
S.O. to 5.5.2016.
(MS SONIA GOKANI, J.) SUDHIR Page 9 of 9 HC-NIC Page 9 of 9 Created On Sat May 07 05:41:11 IST 2016