IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 9TH JUNE 2011 / 19TH JYAISHTA 1933 Crl.MC.No. 1419 of 2011() ------------------ CMP NO. 1109/2011 IN CC 255/2004 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, TIRUR ........... PETITIONER / 1ST RESPONDENT / A1 : -------------------------------------------------------- AMBIKA, NELLIPALATH HOUSE, VEERANCHIRA, P.O.KODAKKAL, MALAPPURAM DISTRICT. BY ADVS. SRI.P.VIJAYA BHANU, SENIOR ADVOCATE SRI. M. REVIKRISHNAN SRI. UNNI SEBASTIAN KAPPEN RESPONDENT / PETITIONER / COMPLAINANT: -------------------------------------------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. K.J. MOHAMED ANZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 09/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Mn THOMAS P.JOSEPH, J. ==================================== Crl. M.C. No.1419 of 2011 ==================================== Dated this the 09th day of June, 2011 O R D E R This petition is filed by the first accused challenging Annexure-D, order dated March 31, 2011 on C.M.P. No.1109 of 2011 in C.C. No.255 of 2004 of the court of learned Judicial First Class Magistrate. That case arose from the final report in Crime No.56 of Tirur Police Station. Offences attributed to the petitioner are under Sections 403, 406, 408, 420 468 and 477A read with Section 34 of the Indian Penal Code. During the time the case was pending before the learned Magistrate, learned Public Prosecutor filed an application under Sections 311 and 311A of the Code of Criminal Procedure (for short, “the Code”) requesting that signatures of petitioner and other accused be obtained for comparison with the disputed signatures. Petition was objected by the petitioner on the ground that it is not maintainable under Secs.311 and 311A of the Code. Learned Magistrate by Annexure- D, order rejected the objection and allowed the petition. That order is under challenge. Learned counsel submitted that as seen from the final report petitioner and other accused had appeared, were released on bail and in such situation Sec.311A of the Code CRL.M.C. No.1419 of 2011 -: 2 :- has no application as the proviso to the said Section says that no order shall be made under the said Section unless the person has at some time been arrested in connection with such investigation or proceeding. Learned counsel submitted that even under Section 73 of the Evidence Act the court cannot direct signatures to be given by the accused for being sent to the Expert for opinion. Reliance is placed on the decisions in State v. Poonamchand (AIR 1958 Bombay 207) and R.B. Khajotia v. A.S.T. Zaidy and Another (1973 Crl. L.J. 1499). According to the learned counsel for the said reason the petition filed by learned Public Prosecutor is not maintainable. 2. Assuming that Sec.311A of the Code has no application having regard to the fact that petitioner or the other accused were not arrested in the course of investigation or proceeding, it is not as if the Magistrate is powerless to direct signatures of petitioner and other accused to be given on a motion made by the law Officer. 3. When the law Officer moves an application for the said purpose it need only be considered as a request for further investigation under Sec.173(8) of the Code. True that the law Officer has labelled his petition as under Secs.311 and 311A of CRL.M.C. No.1419 of 2011 -: 3 :- the Code which apparently cannot apply. I find that learned Magistrate has referred to in Annexure-D, order that the petition is having filed under Secs.311 and 311A of the “IPC”. Either way, misquoting of the section in the petition is no ground to refuse the relief. 4. In view of the power of the Investigating agency to conduct further investigation under Sec.173(8) of the Code I do not find reason to interfere with the order passed by the learned Magistrate. Criminal Miscellaneous Case is dismissed. THOMAS P. JOSEPH, JUDGE. vsv