Madras High Court
S. Sundari vs The State on 26 November, 2012
Author: M.Venugopal
Bench: M.Venugopal
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 26/11/2012 CORAM THE HONOURABLE MR.JUSTICE M.VENUGOPAL CRL.R.C.(MD)No.540 of 2012 a n d M.P.(MD) No.1 of 2012 S. Sundari ... Petitioner Vs The State represented by The Inspector of Police District Crime Branch Tirunelveli District. ... Respondent PRAYER Criminal Revision Petition filed under Section 397 r/w. 401 of Cr.P.C., to call for the entire records pertaining to the order passed by the learned Judicial Magistrate No.I, Tirunelveli District in Cr.M.P.No.4952 of 2012 and set aside the same and consequently direct the above said learned Magistrate not to compel the petitioner to give her thumb impression and to subscribe her specimen signature in connection with the case in Crime No.73 of 2011 pending on the file of the Respondent. !For Petitioner ... Mr.R.Anand ^For Respondents ... Mr.P.Kandasamy, GA (Criminal Side) - - - - - :ORDER
The Petitioner/Accused No.4 has filed the present Criminal Revision Petition as against the order dated 1/10/2012 in Cr.M.P.No.4952 of 2012 passed by the Learned Judicial Magistrate No.I, Tirunelveli.
2. The Learned Judicial Magistrate No.I, Tirunelveli, while passing the orders in Cr.M.P.No.4952 of 2012 on 1/10/2012 has inter alia observed that the Petitioner has surrendered before the Court pursuance to the orders obtained in the Anticipatory Bail and the said surrender as per Section 311 of Cr.P.C., amounts to arrest being made for some time either during investigation or in connection with the said proceeding and also opined that the signature of the petitioner for the purpose of investigation is necessary and consequently rejected the Objection Petition.
3. The Learned Counsel for the Petitioner/A.4 submits that the impugned order passed by the trial Court in Cr.M.P.No.4952 of 2012 in Crime No.73 of 2011 dated 1/10/2012 is against Law and probabilities of the case.
4. The Learned Counsel for the Petitioner/A.4 urges before this Court that the new Section 311 (A) of Cr.P.C., conferring power on the Learned Magistrate to order person to give specimen signatures or handwriting, introduced by means of Cr.P.C., Amendment Act, 2005 (25/2005), though has come into force with effect from 23/6/2006, as far as State of Tamil Nadu is concerned, the said Section 311 (A) of the Principal Act viz., in Cr.P.C., has been omitted as per Indian Penal Code and Code of Criminal Procedure (Tamil Nadu Amendment Act, 2006) and therefore, the impugned order passed by the Learned Judicial Magistrate No.I, Tirunelveli in Cr.M.P.No.4952 of 2012 dated 1/10/2012 is clearly unsustainable in the eye of Law.
5. Also, the Learned Counsel for the Petitioner/A.4 submits that as per Provisio to Section 311 A of Cr.P.C., (Principal Act), a person ought to have been arrested in connection with such investigation or proceeding and in the instant case on hand, the Petitioner/A.4 has not been arrested and she obtained Anticipatory Nail from this Court in Crl.O.P.No.12244 of 2011 dated 20/9/2011 and as such invocation of Section 311 A of the Code of Criminal Procedure is not legally correct.
6. At this stage, it is to be pointed that the Inspector of Police, Anti- land grabbing Cell, Tirunelveli District has filed a memo before the Learned Judicial Magistrate No.I, Tirunelveli, inter alia stating that "....... But the accused conspired together and executed documents, fraudulently regarding this property and thereby, committed the offences etc., and in the interest of investigation, it is essential to take the finger print impressions of the Accused 1 to 3 therein before the Court, in which the name of the Revision Petitioner/A.4 is found in Serial No.3. Only for that, the Revision Petitioner/A.4 has filed an Objection Petition in Cr.M.P.No.4952 of 2012, which ultimately has been dismissed by the trial Court on 1/10/2012.
7. It is to be borne in mind that even though new Section 311 (A) of Cr.P.C., has been inserted by way of Cr.P.C., Amendment Act 2005 (25/05), and has come into force from 23/6/2006, yet as far as the State of Tamil Nadu is concerned, the same has been omitted by virtue of the Tamil Nadu Amendment Act, 2006 relating to Indian Penal Code and Cr.P.C.
8. On a perusal of the memo filed by the Inspector of Police, Andi-Land Grabbing Special Cell, Tirunelveli District, it is evident that the Officer has requested for issuance of summons of the Accused mentioned therein under Section 311 (A) of Cr.P.C. The obvious quoting of Section 311 (A) of Cr.P.C., by the Inspector of Police in the memo is not a correct legal provision.
9. In this connection, it is not out of place for this Court to make a significant mention of the decision of the Honourable Supreme Court in STATE OF UTTAR PRADESH Vs. RAM BABU MISRA (AIR 1980 SUPREME COURT - 791), at page 793, in paragraph 8, it is among other things observed as under:-
"... We accordingly dismiss the appeal and while doing so, we would suggest that suitable legislation may be made on the analogy of S.5 of the Identification of Prisoners Act to provide for the investigature of Magistrates with the power to issue directions to any person, including an accused person, to give specimen signatures and writings."
10. It is to be noted that the term 'proceeding' is not defined under the Criminal Procedure Code. Eventhough the same is not defined, one can reasonably conclude that the said term 'Enquiry' and 'Trial' are proceedings under the Criminal Procedure Code, as opined by this Court.
11. Also, this Court aptly points out the decision of the Honourable Supreme Court in STATE Vs. PALI RAM (AIR 1979 SUPREME COURT 14), wherein it is laid down that "The Court of Law is empowered to direct the Accused to give the specimen handwriting and that the said direction can be given to enable the same to be compared by the Handwriting expert."
12. As far as the present case is concerned, even though Section 311 (A) of Cr.P.C., (Central Act 2/74) is omitted by virtue of the Indian Penal Code and the Code of Criminal Procedure (Tamil Nadu Amendment) Act, 2006, yet this Court is of the considered view that as per Section 73 of the Indian Evidence Act, 1872, the Learned Magistrate can direct the Petitioner/A.4 present in Court to give her fingerprint impression for the purpose of comparison. In this regard, the Court can either be a Court holding the Enquiry or trying the Accused in the considered opinion of this Court. More importantly, the power as per Section 73 of the Indian Evidence Act, 1872 is to enable a Court of Law to compare the writings and not to enable the Investigating Agency or any other Agency to compare such writings. Viewed in that perspective, this Criminal Revision Petition fails.
13. In the result, this Criminal Revision Petition is dismissed. No costs. Consequently, the connected Miscellaneous Petition is also dismissed.
mvs.
To
1. The Judicial Magistrate No.I, Tirunelveli
2. The Inspector of Police District Crime Branch Tirunelveli District.