1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 08.06.2011 CORAM THE HONOURABLE MR.JUSTICE M.SATHYANARAYANAN Crl.R.C.(MD)No.120 of 2011 and M.P(MD)No.1 of 2011 R.R.Govindarajan ... Petitioner/A.1 Vs. 1.The Inspector of Police, District Crime Branch, Thanjavur. (Crime No.17/2002) ... 1st Respondent/Complainant 2.R.R.Natarajan ... 2nd Respondent/Defacto Complainant (R2 impleaded as per the orders of this Court in M.P(MD)No.2 of 2011 in Crl.R.C.(MD)No.120 of 2011 dated 11.03.2011) Criminal Revision Case is filed under Sections 397 and 401 of the Code of Criminal Procedure to call for the records pertaining to the summon dated 07.02.2011 issued by the learned Judicial Magistrate No.I, Thanjavur, in C.C.No.451 of 2003 and set aside the same. For Petitioner : Mr.Ramesh, Senior Counsel for Mr.D.Shanmugaraja Sethupathy For Respondents : Mr.P.Rajendran, Govt. Advocate (Crl.Side) for R.1 Mr.R.A.S.Annadurai for R.2 ORDER The revision petitioner is arrayed as A.1 in C.C.No.451 of 2003 pending on the file of the learned Judicial Magistrate No.I, Thanjavur. He along with A.2, A.3, A.5 and A.6 are prosecuted for the alleged commission of the offence under Sections 406, 465, 468, 471, 420 read with Section 34 I.P.C and A.4 is facing prosecution for the alleged commission of the offence under Sections 419 and 420 I.P.C. 2. The defacto complainant is the brother of A.1. The case of the prosecution as per the charge sheet is that the father of the defacto complainant and A.1 namely Ramasamy through his finance, established a rice mill under the name and style of Sri Ramavilas Rice Mill and was running it. Ramasamy died on 17.07.2002 and A.1, R.Chellammal, R.Sudanthiradevi, R.R.Krishnamoorthy, R.R.Natarajan (defacto complainant), Senthamilselvi, R.R.Saminathan and R.R.Rengarajan are his legal representatives and they are entitled to succeed to the said property. 3. It is further alleged by the prosecution that Ramasamy while he was alive, did not execute any Will. However, A.1 namley https://hcservices.ecourts.gov.in/hcservices/ 2 R.R.Govindarajan, with a view to get the property exclusively in his favour, has committed a breach of trust and planned deception at inception and managed to create a document as if while Ramasamy was alive and he executed a Will in his favour. The said Will was registered in the office of the Joint Sub Registrar, Thanjavur on 25.02.2002 in Document No.17/2002. The prosecution also alleged that A.4 has impersonated Ramasamy and A.3 signed the Will as attestor and A.2 and A.3 identified A.4 as Ramasamy and thereby, all of them connived and committed forgery, impersonation and allied offences. 4. In pursuance of the execution of the Will, A.1 managed to get transfer of patta in his favour with the help of A.6 and also effected name transfer in respect of the service connection with Tamil Nadu Electricity Board and also got the transfer of licence in respect of the above said Rice Mill in his favour from the Tamil Nadu Civil Supplies Corporation. 5. The charge sheet was filed on 21.08.2003 on the file of the Court of Judicial Magistrate No.I, Thanjavur which has taken cognizance in C.C.No.451 of 2003. Subsequently, the Inspector of Police, District Crime Branch, Thanjavur, obtained number of orders in the petitions filed under Section 91 Cr.P.C. The prosecution filed Crl.M.P.No.8752 of 2005 on the file of the Court of Judicial Magistrate No.I, Thanjavur, praying for appropriate direction directing the hand-writing expert to visit the Office of the Joint Sub Registrar, Thanjavur and peruse the signature of A.1 found in the Will and submit his opinion and it was ordered on 11.01.2010. Accordingly, the learned Judicial Magistrate No.I, (in- charge), Thanjavur, has written a letter to the Director, Regional Forensic Science Lab, (Documents Division), Madurai on 13.09.2010 requesting him to visit the Office of the Joint Sub Registrar, Thanjavur, for the purpose of examining the document which contained the signature of A.1 and requested him to inform his date of convenience. 6. The Deputy Director, Regional Forensic Science Laboratory, Collector's Office Road, Madurai, vide letter dated 01.12.2010 has replied as follows: "1. For a thorough and proper scientific examination, original documents are necessary. Hence, the Original documents (both Standard and Questioned) are to be procured and sent to this laboratory for the purpose of examination. 2. Sufficient number of specimen signatures (20 signatures obtained by the Honourable Court from R.R.Govindarajan with due authorization) and admittedly genuine signatures (about 10 signatures of R.R.Govindarajan available on some existing documents like registered documents, court documents, petitions, applications, etc. made in the same language and nearest to the date of the disputed signatures are to be procured and sent for comparison along with the disputed documents. https://hcservices.ecourts.gov.in/hcservices/ 3 3. The documents and the other particulars namely the history of the case, nature of examination required may be sent under the seal of the Court to this Laboratory through a responsible person/ Advocate Commissioner on any working day between 10 A.M to 5 P.M. 4. I further wish to inform that a minimum Fee of Rs.1,500/- (Rupees one thousand five hundred only) is chargeable towards the examination of the documents and the same may be paid either by cash or by Bank Draft drawn in favour of 'The Deputy Director, Regional Forensic Sciences Laboratory, Madurai-625 020'." 7. Since the Deputy Director of Regional Forensic Sciences Laboratory, Madurai, has made a request for procuring the specimen signatures (20 in number) from A.1 namely R.R.Govindarajan for the purpose of comparing the same with 10 of his signatures available on the existing documents, the lower Court vide order dated 07.02.2011, issued summons to A.2 directing him to be present before the Court on 14.02.2011 at 10.30 a.m. for the purpose of obtaining his signatures. 8. Challenging the vires of the same, the present revision is filed. 9. The learned Counsel for the revision petitioner would submit that the revision petitioner/ A.1 is not willing to give any specimen signatures as it will incriminate him and the procedure adopted by the lower Court is in gross violation of Article 20(3) of the Constitution of India. It is the further submission of the learned Counsel for the petitioner that Section 73 of the Indian Evidence Act does not permit the Court to give a direction to the accused to give specimen writings for the purpose of enabling the prosecution or aiding the prosecution to prove its case and that the lower Court before issuing the summons ought to have heard the accused. Hence, for the said reasons, the learned Counsel for the revision petitioner prayed for quashing the summons. 10. The learned Government Advocate (Criminal Side) appearing for the first respondent would submit that since the case pertains to impersonation and forgery of a valuable document namely Will and that the Deputy Director of Regional Forensic Sciences Laboratory, Madurai, made a specific request to the lower Court for obtaining the sample signatures, the revision petitioner/A.1 was summoned to be present before the Court and there is no infirmity in the said order. 11. The learned Counsel for the second respondent/defacto complainant has submitted that the purpose of the investigation is to find out the truth and only for that purpose, the lower Court directed the revision petitioner/A.1 to be present before the Court for obtaining his sample signatures and it will not in any event incriminate him. It is further submitted by the learned Counsel for the second respondent that admittedly, the revision petitioner/ A.1 is not at all willing to co-operate with the investigation and refused to produce the original Will which is in his custody and therefore, left with no other option, the prosecution moved the application and based on the orders passed thereon and as per the request made by the Deputy Director of Regional https://hcservices.ecourts.gov.in/hcservices/ 4 Forensic Sciences Laboratory, Madurai, summons were issued to the revision petitioner/A.1 for his appearance for the purpose of obtaining his signatures and there is no infirmity in the said order. 12. This Court has carefully considered the rival submissions and perused the materials available on record. 13. The question that arises for consideration, is, whether the lower Court is within its power to summon the accused for the purpose of obtaining his signatures to aid the investigation? 14. In State of Bombay v. Kathi Kalu reported in A.I.R. 1961 Supreme Court 1808, (11 Judges Bench), it has been held that 'an accused person furnishes evidence when he is giving specimen handwriting, or impressions of his fingers or palms or foot but he does not furnish evidence against himself in so doing within the meaning of Article 20(3) of the Constitution of India.' 15. Therefore, in the light of the ratio laid down in the above said decision, this Court is of the considered opinion that the summons directing the revision petitioner/A.1 to present before the Court for obtaining his sample signatures would in no way offend Article 20(3) of the Constitution of India. 16. It is the further submission of the learned Counsel for the revision petitioner that under Section 73 of the Indian Evidence Act, the Court cannot direct the accused to give his specimen writing during the course of investigation. In support of his submissions, the learned Counsel for the revision petitioner/A.1 placed reliance upon the following decisions: (i) State of Uttar Pradesh v. Ram Babu Misra reported in AIR 1980 SC 791 : (1980) 2 SCC 343. (ii) State of Haryana v. Jagbir Singh and another reported in AIR 2003 SC 4377 : (2003) 11 SCC 261. 17. In State of Uttar Pradesh v. Ram Babu Misra reported in AIR 1980 SC 791 : (1980) 2 SCC 343, the Investigating Officer investigating the case pertaining to the commission of the offences under Sections 120- B, 420, 468 and 471 I.P.C, has moved the jurisdictional Magistrate Court for directing the accused to give his specimen writing for the purpose of comparison with certain disputed writings and the said petition was dismissed by the lower Court holding that no power has been vested with it to pass such order when the case was under still investigation. The Investigating Officer preferred an appeal before the High Court and it was also dismissed and hence, the State of Uttar Pradesh has preferred an appeal before the Honourable Supreme Court and it has been held that the Magistrate has no power to do so and the Honourable Supreme Court while dismissing the appeal filed by the State, made an observation that suitable legislation may be made on the analogy of Section 5 of Identification of Prisoners Act, 1920, to provide investiture of Magistrates with power to issue directions to any person to give specimen signatures and writings. https://hcservices.ecourts.gov.in/hcservices/ 5 18. In State of Haryana v. Jagbir Singh and another reported in AIR 2003 SC 4377 : (2003) 11 SCC 261, the State of Haryana preferred an appeal against the order of the Punjab and Haryana High Court and the facts of the case would disclose among other things that the respondent accused was taken before the Court of Additional Chief Judicial Magistrate, Bhiwani for giving his specimen signature under Section 73 of the Indian Evidence Act and the said issue was also discussed in the said judgment and in paragraphs 18 and 19, it has been held as follows: "18. The second paragraph of Section 73 enables the Court to direct any person present in the Court to give specimen writings 'for the purpose of enabling the Court to compare' such writings with writings alleged to have been written by such person. The clear implication of the words 'for the purpose of enabling the Court to compare' is that there is some proceeding before the Court in which or as a consequence of which it might be necessary for the Court to compare such writings. The direction is to be given for the purpose of enabling the Court to compare and not for the purpose of enabling the investigating or other agency 'to compare'. If the case is still under investigation there is no present proceeding before the Court in which or as a consequence of which it might be necessary to compare the writings. The language of Section 73 does not permit a court to give a direction to the accused to give specimen writings for anticipated necessity for comparison in a proceeding which may later be instituted in the Court. 19. In order to enable exercise of power under Section 73, the pendency of a proceeding before the Court is the sine qua non. Therefore, the comparison of the signature on the alleged ransom note in no way helps the prosecution." 19. The decision of the Honourable Supreme Court in State of Uttar Pradesh v. Ram Babu Misra reported in AIR 1980 SC 791 : (1980) 2 SCC 343, refers to the earlier decision of the Honourable Supreme Court in State (Delhi Administration) v. Pali Ram reported in AIR 1979 SUPREME COURT 14. 20. The facts of the decision in State (Delhi Administration) v. Pali Ram reported in AIR 1979 SUPREME COURT 14, are that the respondent Pali Ram along with 8 others, were charged for the commission of the offences under Sections 120-B, 420, 477-A, 467, 471 I.P.C. During the enquiry in committal proceedings, an application was taken out by the prosecution for comparison of one of the documents namely Ex.P.21 which contains the signature of the accused Pali Ram with his specimen signature and therefore, prayed for appropriate direction, directing the said accused to give his specimen writings and it was ordered by the lower Court. The accused Pali Ram preferred a revision before the Court of Sessions and it was also dismissed and further revision was preferred before the High Court and it was referred to a Larger Bench. https://hcservices.ecourts.gov.in/hcservices/ 6 21. A Division Bench of the Delhi High Court which was constituted for answering the reference, held that such a direction was not legal and was beyond the scope of Section 73 of the Indian Evidence Act and therefore, set aside the said portion of the order and challenging the vires of the same, the Delhi Administration preferred an appeal before the Honourable Supreme Court. 22. The Honourable Supreme Court formulated the following questions for consideration: "Whether a Magistrate in the course of an enquiry or trial on being moved by the prosecution, is competent under Section 73, Evidence Act, to direct the accused person to give his specimen handwriting so that the same may be sent along with the disputed writing to the Government Expert of Questioned Documents for examination, "with a view to have the necessary comparison"?" 23. The Honourable Supreme Court noted some divergence of judicial opinion on this point in the decisions rendered by the Calcutta High Court in Hiralal Agarwalla v. State reported in AIR 1958 Cal 123 and by the Bombay High Court in State v. Poonam Chand Gupta reported in AIR 1958 Bom 207 and by the Madras High Court in T.Subbiah v. S.K.D.Ramaswamy Nadar reported in AIR 1970 Mad 85, wherein it has been held that under Section 73 of the Indian Evidence Act, does not entitle the Court to assist a party to the proceedings and it entitles the Court to assist itself to a proper conclusion in the interests of justice. 24. The Honourable Supreme Court found that the Full Bench of Patna High Court in Gulzar Khan v. State reported in AIR 1962 Pat 255, held that the Magistrate has the power under Section 73 of the Indian Evidence Act to direct, even before he has taken cognizance of the offence, an accused person to give signatures, specimen writings, finger- prints or foot-prints to be used for comparison with some other signatures, etc. 25. The Honourable Supreme Court in the said decision has also formulated the following question: "Whether the High Court was right in holding that the order dated May 20, 1972 of the Magistrate calling upon the accused before it, to give his specimen handwriting, was "beyond the scope of Section 73, Evidence Act.?" and in paragraph 25, it has been held as follows: "25. Section 73 is therefore to be read as a whole, in the light of Sec.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 https://hcservices.ecourts.gov.in/hcservices/ 7 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." 26. It is also useful to extract certain portions in paragraphs 26 and 27 thus: "26. ..... The Magistrate therefore, had good reason to hold that the assistance of the Government Expert of Questioned Documents was essential in the interest of justice to enable the Magistrate to compare the sample and the questioned writings with the expert assistance so obtained and then to reach a just and correct conclusion about their identity. Although the order of the Magistrate is somewhat inartistically worded, its substance was clear that although initially, the specimen writing sought from the accused was to be used for comparison by the Government Expert, the ultimate purpose was to enable the Court to compare that specimen writing with the disputed one, Ex.PW.21F, to reach a just decision. 27. 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 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." 27. The Honourable Supreme Court by citing the said reason held that the learned Additional District Magistrate did not exceed his powers under Section 73, Evidence Act and allowed the appeal filed by the State (Delhi Administration). 28. As per the ratio laid down in the above cited decision which has been subsequently referred in State of Uttar Pradesh v. Ram Babu Misra reported in AIR 1980 SC 791 : (1980) 2 SCC 343, in the interest of justice, the Magistrate can get the assistance of Expert for his opinion https://hcservices.ecourts.gov.in/hcservices/ 8 with regard to the questioned documents to enable him to compare the sample and questioned writings to reach just and correct conclusion about their identity. 29. In the case on hand, the case after investigation has culminated in a charge sheet which has been taken on file in C.C.No.451 of 2003 pending on the file of the learned Judicial Magistrate No.I, Thanjavur. As per the ratio laid down in the decision of the Honourable Supreme Court in State (Delhi Administration) v. Pali Ram reported in AIR 1979 SUPREME COURT 14, the Court can ask the accused to give his specimen handwritings for getting the expert opinion so as to enable it to compare the sample with the questioned writings with the expert assistance. 30. It also came to the knowledge of this Court that in terms of the suggestion made in the decision in State of Uttar Pradesh v. Ram Babu Misra reported in AIR 1980 SC 791 : (1980) 2 SCC 343, cited supra, under CrPC (Amendment) Act, 2005 (25 of 2005), Section 311-A Cr.P.C has been inserted and the same is extracted below: "Section.311-A. 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." 31. As per the proviso to Section 311-A Cr.P.C, no order shall be made under that section unless the person has at some time been arrested in connection with such such investigation or proceeding. 32. As per the decision in State of Haryana v. Dinesh Kumar reported in AIR 2008 SUPREME COURT 1083 ; (2008) 1 Supreme Court Cases 722, a person whose control is taken over by law either when he voluntarily surrenders before the Court or by an Officer by coercive measure, is said to be in custody for the purpose of criminal proceedings. 33. It was informed by the learned Counsel for the revision petitioner that the petitioner apprehending the arrest, moved for anticipatory bail and it was ordered and in the light of the ratio laid down in the above said decision, he was deemed to be in custody and therefore, proviso to Section 311-A Cr.P.C has been satisfied. It was also informed by the Office of the Public Prosecutor that Section 311-A Cr.P.C has been notified in the State of Tamil Nadu also and hence, there cannot be any impediment on the part of the prosecuting agency to invoke the said provision. https://hcservices.ecourts.gov.in/hcservices/ 9 34. In the result, the Criminal Revision Case is dismissed *subject to the observations made in the earlier Paragraphs. Consequently, the connected Miscellaneous Petition is closed. However, it is made clear that after obtaining the opinion of the handwriting expert with regard to the signatures/ writings of the revision petitioner/A.1, the Court can compare and arrive at the conclusion. It is also open to the first respondent/prosecuting agency to invoke Section 311-A Cr.P.C for getting the specimen signatures or handwritings of the revision petitioner/A.1. Sd/- Assistant Registrar (CO) *(Corrected as per order of this Court dated 09.06.2011 by MSNJ in Crl.RC.(MD) No.120 of 2011) /True copy/ Sub Assistant Registrar To: 1.The Judicial Magistrate No.I, Thanjavur. 2.The Inspector of Police, District Crime Branch, Thanjavur. 3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai. Copy to The Section Officer, Criminal Section, Madurai Bench of Madras High Court, Madurai. Rsb SR : 16.06.2011 : 9p/5c ORDER MADE IN Crl.R.C.(MD)No.120 of 2011 and M.P(MD)No.1 of 2011 08.06.2011 https://hcservices.ecourts.gov.in/hcservices/