IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 22ND JUNE 2010 / 1ST ASHADHA 1932 CRP.No. 212 of 2010() --------------------- OS.207/2007 of MUNSIFF COURT,CHENGANNUR .................... REVN. PETITIONER(S)/PLAINTIFF ----------------------------------------- SRI.M.V.SELVA RAJ, S/O.VELAYUDHAN ACHARY ASWATHY BHAVAN, MOOLAPADAVIL, ANGADICKAL, CHENGANNUR TALUK. BY ADV. SRI.SIBY MATHEW SRI.B.PREMNATH SRI.PHILIP J.VETTICKATTU RESPONDENT(S): DEFENDANTS ------------------------- 1. SARAKUNJU WILSON KOCHUTHUNDIL, M/S.KUMAR ASSOCIATES, MORNING STAR BUILDING, KACHERIPPADY, ERNAKULAM. 2. WILSON ZACHARIA KOCHUTHUNDIL, M/S.KUMAR ASSOCIATES, MORNING STAR BUILDING, KACHERIPPADY, ERNAKULAM. 3. G.SIVAKUMAR, M/S.KUMAR ASSOCIATES, MORNING STAR BUILDING, KACHERIPPADY, ERNAKULAM. 4. GUJARA HAVI CHEMICALS LTD., 6TH FLOOR, MISTRY CHAMBERS, KHANPUR, AHAMMEDABAD-380 002, GUJARAT, REPRESENTED BY ITS MANAGING DIRECTOR. 5. INTIME SPECTUM REGISTRY LTD., C-13, PANNALAL SILK MILLS COMPOUND, LBS MARG, BHANDUP WEST, MUMBAI-400 078, MAHARASHTRA REPRESENTED BY ITS REGISTRAR. (EX PARTE BEFORE THE TRIAL COURT). THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 22/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRP NO.212/2010 ORDER ON IA NO.989/2010 IN CRP NO.212/2010 DISMISSED 22.06.2010 Sd/-THOMAS P.JOSEPH, JUDGE. //TRUE COPY// “C.R.” THOMAS P. JOSEPH, J. -------------------------------------- C.R.P.No.212 of 2010 -------------------------------------- Dated this the 22nd day of June, 2010. ORDER The question raised for a decision in this revision is whether the civil court before which a document was produced and admitted in evidence is bound to return that document to the party who produced it notwithstanding that in relation to the said document an offence is said to be committed and the document is necessary in connection with investigation of the criminal case. 2. Petitioner before me is the plaintiff in O.S.No.207 of 2007 of the court of learned Munsiff, Chengannur. That was a suit for declaration of title over certain shares claimed by the petitioner. The suit ended in an exparte decree dated 29.11.2008 in favour of the petitioner. It is not disputed that the documents referred to herein were marked in the said suit on the side of petitioner. There was no appeal preferred against the exparte decree by any of the respondents. In the meantime, the Detective Inspector, Crime Branch, CID, Alappuzha preferred Application No.612 of 2009 before the learned Munsiff accompanied by a complaint presented to the Director General of Police, Thiruvananthapuram and a copy of First Information Report requesting that as the documents produced by petitioner in the suit are involved in a case of forgery and for examination of the disputed signature, etc. in the said CRP No.212/2010 2 documents he, as Investigating Officer requires the said documents. The Investigating Officer suspected that petitioner might seek closure of the case and return of the documents. Learned Munsiff on getting that application passed an order that the documents shall not be returned to the petitioner until further orders. On 19.11.2009 petitioner preferred an application to the learned Munsiff for return of the documents. On 25.01.2010 learned Munsiff passed the impugned order refusing to return the documents to the petitioner. That order is under challenge in this revision petition. Learned counsel for petitioner contended that there is no provision either in the Code of Criminal Procedure (for short, “the Cr.P.C.”) or the Code of Civil Procedure (for short, “the Code”) which enabled the Investigating Officer to get custody of documents produced before the civil court and marked in evidence. It is also contended by learned counsel that none of the provisions of Order 13 of the Code enabled learned Munsiff to refuse to return the documents on the ground that the same are required for investigation of a criminal case. According to the learned counsel a reading of Rules 8 and 9 of Order 13 of the Code along with Rule 134 of the Civil Rules of Practice (for short, “the Rules”) unerringly show that once the document is admitted in evidence and its return is asked for by the party who produced it after the period of appeal is over the court has no alternative but to return the document. Learned counsel argued that the expression ‘may’ occurring in Rule 134 of the Rules has to be read as ‘shall’. Reliance is placed on the CRP No.212/2010 3 decisions in Punjalal v. Bhagwatprasad (AIR 1963 SC 120) and Official Liquidator v. Dharti Dhan (P) Ltd. (AIR 1977 SC 740). In support of his contention that after the document has been admitted in evidence and the case has been disposed off the court has no power to impound the document since the court has become functus officio, reliance is placed on the decisions in Javer Chand v. Pukhraj Surana (AIR 1961 SC 1655) and Varghese v. State of Kerala (1989 KLT 24). Learned Government Pleader in response contended that there is no provision in the Code which prevented the learned Munsiff from handing over the document, once it is shown that it is the subject matter of a criminal investigation to the officer investigating the case if the learned Munsiff is satisfied that in the ends of justice such a course is required to be adopted. Learned Government Pleader has placed reliance on the Sections 91 and 102 of the Cr.P.C. 3. As the materials placed before me indicate, it is shown that in respect of the documents which petitioner wanted to get back from the court a criminal case has been registered and it is being investigated by the Detective Inspector, Crime Branch, CID, Alappuzha. The allegation is forgery of the said documents. In connection with investigation of that case original documents are necessary since the disputed signatures, etc. in the said documents are to be CRP No.212/2010 4 examined by the expert. For progress of the investigation of the case those documents are necessary and required by the Investigating Officer. Question is whether it is within the power of learned Munsiff to refuse to return the documents to the petitioner who produced the same and allow the Investigating Officer to get custody of documents in the circumstances stated above. I shall refer to the provisions of law and decisions the learned counsel for petitioner and learned Government Pleader have referred to. 4. Order 13 Rule 9 of the Code deals with return of admitted documents and states that any person, whether a party to the suit or not desirous of receiving back any document produced by him in the suit and placed on the record shall unless the document is “impounded” under Rule 8 be entitled to receive back the same on fulfillment of the conditions mentioned therein. Rule 8 of Order 13 of the Code says that notwithstanding anything contained in Rule 5 or 7 of Order 13 or Rule 17 of Order 7 (which provisions do not apply to the facts of this case) the court may if it sees sufficient cause direct any document or book produced before it in any suit to be “impounded” and kept in the custody of an officer of the court, for such period and subject to such conditions as the Court thinks fit. Rule 134 of the Rules says that when a case has been finally decided and in an appealable case, after the appeal period is over, or the appeal is disposed of, documents which have been admitted in CRP No.212/2010 5 evidence except those which have become void or useless by force of the decree may be returned to the persons producing the same on their application. It leaves me in no doubt that the said rule has to be read along with Rules 8 and 9 of Order 13 of the Code. But the question is whether on the face of Rule 8 of Order 13 of the Code, the civil court is powerless to retain the document for any reason whatsoever notwithstanding that an application has been filed by the party concerned for return of the document. As I stated, this is a case where the documents which were admitted in evidence are prima facie shown to be the subject matter of a criminal investigation. I stated that for the purpose of examination of the disputed handwriting/signature, etc. expert examination of the original document is necessary. In such a situation, if the documents which themselves are the subject matter of the criminal investigation are returned to the party who produced the same, possibility of the party destroying the documents, defeating the investigation and thereby the administration of criminal justice cannot be ruled out. Should the civil court be powerless, helpless and a mute spectator to a party getting back the documents, destroying the same and defeating the criminal investigation?. In my view it cannot, and should not be so. Rule 8 has been provided in Order 13 of the Code providing that if the court sees sufficient cause it is within the power of the court to direct any document or book produced before it in any suit to be impounded and kept in the custody of an officer of the court. What is meant by CRP No.212/2010 6 the word “impound”?. In Wharton's Law Lexicon the word is given the meaning “to place in the custody of the law” . According to Oxford Dictionary, “impound” means “to take legal or formal possession of”. It means to place or keep a document in the custody of a court which is done if it is a forged one. Chamber's Dictionary gives the word the meaning “to confine as in a pound, to restrain within limits, to take legal possession, etc.”. Section 30 of the Code empowers the court, subject to such conditions and limitations as may be prescribed to pass any order, at any time either of its own motion or on the application of any party to make such orders as may be necessary or reasonable in all matters (among other things) relating to the impounding and return of documents or other material objects producible as evidence. Rule 8 of Order 13 of the Code empowers the court where the document has been admitted in evidence to place such document in the custody of law if the court has sufficient cause to do so. The decisions relied on by learned counsel for petitioner Javer Chand v. Pukhraj Surana and Varghese v. State of Kerala (supra) did not concern a factual situation as in the case on hand and instead, dealt with power of court to impound a document under the provisions of the Stamp Act after the document was admitted in evidence. It was held that once the case is over, the decree is signed and sealed or when a document is ordered to be returned, such document can no longer be considered to be part of the judicial record and hence the court is not competent to impound it. That is not the purport of CRP No.212/2010 7 impounding referred to in Rule 8 of Order 13 of the Code. Impounding referred to in Rule 8 of Order 13 of the Code is only for the purpose of getting the document in the custody of law for reasons the court concerned thinks. 5. It is also not as if the Investigating Officer is helpless in the matter. Section 91 of the Cr.P.C. makes it within the power of an officer in charge of a police station if he considered production of any document or other thing to be necessary or desirable for the purpose of any investigation, inquiry, trial or other proceeding under the Cr.P.C. to issue a written order to the person in whose possession or power such document or thing is believed to be requiring such person to attend and produce such document or thing or to produce the same at the time and place stated in the order. The said provision has to be read along with Section 92 of the Cr.P.C. which states that so far as any document, parcel or thing in the custody of the postal authority is concerned, such power can be exercised (only) by the courts mentioned therein. In otherwords the power of an officer in charge of a police station under Section 91 is curtailed only by Section 92 of the Cr.P.C. that if the demand is in relation to a document, parcel or thing in the custody of the postal or telegraph authority such order shall be issued (only) by the courts stated therein. Dealing with Section 91 of the Cr.P.C. it is stated that the document or thing called for must have some relation to or connection with the subject matter of the investigation, inquiry or trial and throw CRP No.212/2010 8 some light on the proceeding or be some link in the chain of evidence. A Division Bench of the Allahabad High Court in Surendra Mohan Sarin and another v. K.P.Mani Tripathi and others (1986 Cri.L.J.1324) has considered the scope and impact of Section 91 of the Cr.P.C. and held that the said provision has to be liberally construed in order to find whether the production of any document or any other thing is necessary or desirable for the purpose of investigation. The proceeding before an Investigating Officer is purely investigatory rather than a adjudicatory in nature and investigation is an informal proceeding held to obtain information to govern a future action as distinguished from a proceeding which is taken as against any person. That being the situation, Section 91 of the Cr.P.C. has to be given an interpretation which advanced the administration of justice and which would not tie down the hands of the Investigating Officer in the matter of getting a document or thing which is the subject matter of a criminal investigation. The word 'person' occurring in Section 91 of the Cr.P.C. need not confined to a private person. It can be a public officer also. Section 91 empowers the officer in charge of a police station to demand by way of a written order a public officer to produce or cause production of a document or thing in his possession and which is necessary for investigation. Section 102 of the Cr.P.C. empowers any police officer to “seize” any property which is alleged or suspected to be involved in the commission of an offence. CRP No.212/2010 9 6. When the Cr.P.C. or the Code both of which are procedural laws does not provide an exactly applicable provision of law to suite a particular situation, the court has to apply the provision in the Cr.P.C. or the Code which is nearest in point with such modification in order to do justice to the parties and prevent failure of justice (See Narayani Amma v. Govindan Nair - 1994 (2) KLT 485) . The court cannot plead helpless to perform an act which administration of justice required it to do. A court is the place wherein justice is judicially administered. It is a body in the Government to which the public administration of justice is delegated. In Tomlin's Law Dictionary, 'jurisdiction' is defined as an authority or power, which a man hath to do justice in causes of complaint brought to him. It is the authority which a court has to decide matters that are litigated before it or to take cognizance if matters presented in a formal way for its decision. When it is shown that a document in the custody of a court whether admitted in evidence or not is the subject matter of a criminal investigation and those documents are necessary for the progress of such investigation the court should have the powers and the jurisdiction to administer justice in the matter by allowing the investigating officer to have its custody rather than leaving it to the party who produced it to destroy the same and thereby scuttle the administration of justice. So far as the exercise of such jurisdiction is not prohibited, it is within the power of the court to do so. CRP No.212/2010 10 7. But it is not proper for an officer in charge of a police station to issue a written demand directing a court of law to produce or cause to produce a document or thing in its custody at the place where such officer directs. Instead, invoking power under Section 91 of the Cr.P.C. and in keeping with the dignity of the court it is well within the power of the officer in charge of a police station to make a request in writing to the court concerned showing reason to permit him get custody of the document in question and if any such request is received, it is within the power of the court concerned to consider the request and if satisfied about the need, permit the officer in charge of the police station to get the documents for the purpose of investigation or pass such other appropriate orders. Any other interpretation would only defeat the administration of justice to which a court of law cannot be a party. Here is a case where the documents are necessary for investigation of the criminal case. In such a situation Rule 8 of Order 13 of the Code and if not, inherent power of the court under Section 151 of the Code must come to the aid. Therefore it is well within the power of the Investigating Officer to make a request to the court stating reasons that the documents may not be delivered to the party who produced it. It is also within the power of court to refuse to return the document to the party concerned. I find no infirmity or jurisdictional error in the learned Munsiff declining to return the documents to the petitioner. CRP No.212/2010 11 8. So far as delivery of the documents to the Investigating Officer is concerned, it is not shown that any request for the said purpose was made by him to the learned Munsiff. If any such application is made, learned Munsiff has to consider the same in accordance with the provisions of law and in case learned Munsiff decides to deliver the documents to the Investigating Officer sufficient safeguard shall be made by retaining certified photocopy of the documents involved. So far as the demand of petitioner is concerned, he can apply for and obtain certified photocopy of the relevant documents. In the light of what I have stated above I find no reason to interfere with the order under challenge. Resultantly with the observations made above this revision petition is dismissed. THOMAS P.JOSEPH, Judge. cks