[-1-] IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL W.P.NO.2035 OF 2008 Rakesh Kapoor ] Age 55 years, ] Adult, Indian Inhabitant ] Occ: Business, ] Residing at 402, Lands End ] ‘A’ Lokhandwala Complex, ] Andheri (West), Mumbai ] 400 053 ]..Petitioner Vs. State of Maharashtra ] Through the Office of the ] Government Pleader, ] High Court, Appellate Side, ] Mumbai. ]..Respondent ... Mr.A.P.Mundargi senior counsel for Mr.Munir Merchant advocate for petitioner Mr.V.B.Konde-Deshmukh A.P.P. for the State ... CORAM: SMT.V.K.TAHILRAMANI,J. CORAM: SMT.V.K.TAHILRAMANI,J. CORAM: SMT.V.K.TAHILRAMANI,J. DATE : OCTOBER 8, 2008 DATE : OCTOBER 8, 2008 DATE : OCTOBER 8, 2008 ORAL ORDER: ORAL ORDER: ORAL ORDER: 1. Heard the learned counsel for the petitioner-original accused and the learned A.P.P. for the State. Rule. By consent, rule is made returnable forthwith. 2. The petitioner is facing prosecution in case [-2-] under Sections 420, 465 and 467 of IPC. The said case is numbered as RCC No.242/P/1984 and is pending before the Court of Addl. Chief Metropolitan Magistrate, 19th Court at Esplanade Mumbai. In the said case, the prosecution preferred an application for exhibiting the report of the handwriting expert under Section 293 of Cr.P.C. The said application came to be allowed by order dated 22.5.2008 and the report of the handwriting expert came to be exhibited. Being aggrieved by the said order, present petition has been preferred. 3. Admittedly the report of the Handwriting expert was exhibited without examining the person who had given the report. Mr.Mundargi, learned counsel for petitioner contended that only certain reports from the government scientific experts are admissible in evidence without examination of the expert in view of the provisions of Section 293, Cr.P.C. As per sub-section (4) of Section 293, this section applies to (a) Chemical Examiner or Assistant Chemical Examiner to Government; (b) the Chief Inspector of explosives; (c) The Director of the Finger Print Bureau; (d) The Director, Haffkeine [-3-] Institute, Bombay; (e) The Director, (Deputy Director or Assistant Director) of a Central Forensic Science Laboratory or a State Forensic Science Laboratory and (f) the Serologist to the Government. Thus it is seen that section 293 is not applicable to the handwriting expert. Section 45 of the Evidence Act provides that when the Court has to form an opinion upon a point of foreign law, or of science, or art, or as to identity of handwriting or finger impressions, the opinions upon that point, of persons specially skilled in such field are relevant facts and such persons are called experts. Thus, report of handwriting expert is relevant and admissible in evidence under Section 45. However, Section 45 does not provide that such report would be admissible in evidence without examining the expert. I have already pointed out that Section 293, Criminal Procedure Code specifically provides only for reports of certain scientific authorities which can be admitted in evidence without examining them before the Court and report of handwriting expert is not one of them. 4. There is no evidence on record to show that a [-4-] notice was given to the accused under Section 294 of Cr.P.C. to admit the document and that he had admitted the correctness of the report or opinion of the handwriting expert. The application preferred by the Additional Public Prosecutor before the trial Court whereby he submitted the opinion of the handwriting expert and request was made that the document be exhibited is under Section 293 of Cr.P.C. It appears that on that application, production of documents was allowed but there is no indication anywhere that the accused was called upon to admit or deny the said documents and more specifically the report of the handwriting expert. There is also no record that the accused had admitted that document. In absence of admission by the accused, the report of the handwriting expert could not have been admitted in evidence and exhibited unless the handwriting expert was examined as a witness before the Court and opportunity was given to the defence to cross-examine him. 5. In this view of the matter, the order dated 25.2.2008 passed by the learned Addl. Chief Metropolitan Magistrate, 19th Court, Esplanade, [-5-] Mumbai in RCC No.242/P/1984 is set aside. It would be open to the prosecution to follow the proper procedure and to get the opinion of the handwriting expert exhibited. 6. Rule is made absolute. Petition is disposed of accordingly. [SMT.V.K.TAHILRAMANI, J.] [SMT.V.K.TAHILRAMANI, J.] [SMT.V.K.TAHILRAMANI, J.]