IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Criminal Misc. 41247-M of 2007 DATE OF DECISION : AUGUST 6, 2008 SURESH KUMAR ....... PETITIONER(S) VERSUS RAM PHAL SINGH ETC. .... RESPONDENT(S) CORAM : HON'BLE MR. JUSTICE AJAI LAMBA PRESENT: Mr. VS Punia, Advocate, for the petitioner(s). Mr. Ajay Kansal, Advocate, for respondent No.1. Mr. GK Jain, Advocate, for respondent No.4. AJAI LAMBA, J. (Oral) Challenge in this petition under Section 482, Code of Criminal Procedure, is to order dated 27.8.2005 (Annexure P-2), passed by CJM, Jind, and order dated 10.7.2007 (Annexure P-1) passed by the revisional court. The petitioner is an accused in a criminal complaint. Respondent-No.1-complainant accused the petitioner and others of commission of offences under Sections 406, 420, 468, 471 read with 120- B, Indian Penal Code. The allegations, in brief, are that the accused were partners in a Criminal Misc. 41247-M of 2007 2 firm-M/s Asian Tubes Rajpura, Jind, vide partnership deed dated 6.4.1992. The complainant and his relatives were interested in establishing an industry. Suresh Kumar-petitioner was already known to the complainant and others. The petitioner informed the complainant and others that they are not interested in running M/s Asian Tubes Rajpura as they did not have sufficient manpower. They persuaded the complainant and others to take over the industry. The complainant asked for complete statement of accounts signed by all the partners. The petitioner supplied the statement of accounts and balance-sheet, etc. to the complainant and others. The complainant and others, thereafter, inspected the industry and believing the balance-sheet to be correct, agreed to take over the industry and asked the accused to complete the formalities. The petitioner gave one dissolution deed dated 25.11.1994, according to which the other partners were shown to have retired. One Indemnity Bond was also supplied to the complainant by the petitioner. The complainant and others contributed money and paid to the accused. On 17.12.1994, a fresh partnership deed was executed between accused Suresh, complainant and others and it was settled that all the partners would be entitled to profit and loss in equal share to the extent of 20% each. The account books were not supplied to the complainant among other articles. Physical possession was given to the complainant and others in the month of December, 1994. Before handing over the possession, the petitioner got signatures of the complainant and others on documents so as to transfer the liability of Haryana Financial Corporation upon the complainant and others without disclosing the contents. One house owned and possessed Criminal Misc. 41247-M of 2007 3 by the complainant and one Kuldeep Singh was also offered for mortgage to the Haryana Financial Corporation. Subsequently, the statement of accounts was found to be fabricated. The complainant became suspicious and contacted a Finger Prints Expert. On examination of various documents, it was revealed that the documents were forged and were not genuine. Various other details of commission of offences have been given in the complaint and in the preliminary evidence. An application was made to the court seeking directions to the accused to give their specimen handwriting and signatures. Having considered the issue, the CJM, vide order dated 27.8.2005 (Annexure P- 2), formulated an opinion that the application deserved to be allowed because the comparison of handwriting and signatures of the accused with those on the documents at issue in trial, would help the court in adjudicating the case and do justice. Aggrieved by the aforesaid order (Annexure P-2), a revision petition was carried. The revisional court, vide order dated 10.7.2007 (Anneuxre P-1) has also held that such directions could be given by the court and no prejudice was going to be caused to the accused because they would have ample opportunity to rebut the evidence, which the complainant would be leading after obtaining the specimen handwriting and signatures of the accused. Learned counsel for the petitioner has merely stated that the petitioners cannot be forced to give specimen handwriting and signatures. Learned counsel for respondent No.1, however, has referred to the judgments of the Hon'ble Supreme Court of India in State of Uttar Criminal Misc. 41247-M of 2007 4 Pradesh v. Boota Singh and others, AIR 1978 Supreme Court 1770 and People's Union for Civil Liberties and another v. Union of India, AIR 2004 Supreme Court 456. In Boota Singh's case (supra), the Hon'ble Supreme Court of India (in para-41) has held as under:- “....... Before closing this part of the case we might advert to an argument advanced before us by Mr. Mulla regarding the specimen signature of the respondent Boota Singh taken by the Police during investigation. Mr. Mulla submitted that the act of the investigating officer in taking the specimen signature of the respondent Boota Singh was hit by section 162 of the Criminal Procedure Code and also amounted to testimonial compulsion so as to violate the guarantee contained in Article 20(3) of the Constitution. The matter is no longer res integra and is concluded by a decision of this Court in the case of State of Bombay v. Kathi Kalu Oghad (1962) 2 SCR 10 : (AIR 1961 SC 1808) where the Court observed as follows (At p. 1820 of AIR SC):- "That is why it must be held that by giving these impressions or specimen handwriting, the accused person does not furnish evidence against himself. So when an accused person is compelled to give a specimen handwriting or impressions of his finger, palm or foot, it may be said that he has been compelled to be a witness; it cannot however be said that he has been compelled to be a witness against himself." It was also held that merely taking a specimen handwriting does not amount to be giving a statement so as to be hit by S. 162 Cr. P.C.” In the case of People's Union for Civil Liberties (supra), the Hon'ble Supreme Court of India has held (in paras 49 to 51) as under:- Criminal Misc. 41247-M of 2007 5 “49. Under Section 27, a police officer investigating a case can seek a direction through the Court of Chief Judicial Magistrate or the Court of a Chief Metropolitan Magistrate for obtaining samples of handwriting, finger prints, foot- prints, photographs, blood, saliva, semen, hair, voice of any accused person reasonably suspected to be involved in the commission of an offence under the Act. The Court can also draw adverse inference if an accused refuses to do so. 49-A. Petitioners argued that this Section falls foul of Articles 14, 20(3) and 21 of the Constitution for the reason: that no power has been left with the Court to decide whether the request for samples from a suspect person sought for by investigating office is reasonable or not; that no power has been given to the Court to refuse the request of the investigating officer; that it is not obligatory for the Court to record any reason while allowing the request; and that the Section is a gross violation of Article 20(3) because it amounts to compel a person to give evidence against himself. Relying mainly on State of Bombay V. Kathi Kalu Oghad, 1962 (3) SCR 10, learned Attorney General submitted that the argument pertaining to the violation of Article 20(3) is not sustainable. 50. We do not think, as feared by the Petitioner, that this Section fixes a blanket responsibility upon the Court to grant permission immediately upon the receipt of a request. Upon a close reading of the Section it will become clear that upon a 'request' by an investigating police officer it shall only 'be lawful' for the Court to grant permission. Nowhere it is stated that the Court will have to positively grant permission upon a request. It is very well within the ambit of Court's discretion. If the request is based on wrong premise, the Court is free to refuse the request. This discretionary power granted to the Court presupposes that the Court will have to record its reasoning for allowing or refusing a request. Criminal Misc. 41247-M of 2007 6 Pertaining to the argument that the Section per se violates Article 20(3), it has to be noted that a Bench consisting of 11 judges in Kathi Kalu Oghad's case (supra) have looked into a similar situation and it is ruled therein (at pages 30 -32) that: "...The giving of finger impression or of specimen signature or of handwriting, strictly speaking, is not 'to be a witness' ... when an accused person is called upon by the Court or any other authority holding an investigation to give his finger impression or signature or any specimen of his handwriting, he is not giving any testimony to the nature of a personal testimony. The giving of a personal testimony must depend upon his volition. He can make any kind of statement or may refuse to make any statement. But his finger impressions or his handwriting, in spite of efforts at concealing the true nature of it by dissimulation cannot change their intrinsic character. Thus the giving of finger impression or of specimen writing or of signatures by an accused person, though it may amount to furnishing evidence in the larger sense, is not included within the expression 'to be a witness'... ... They are only materials for comparison in order to lend assurance to the Court that its inference based on other pieces of evidence is reliable..." (Emphasis Supplied) 51. This being the position in law, the argument of the Petitioners pertaining to the violation of Article 20(3) is not sustainable. It is meaningful to look into Section 91 of Cr. PC that empowers a criminal court as also a police officer to order any person to produce a document or other thing in his possession for the purpose of any inquiry or trial. (See: Shyamlal Mohanlal V. State of Gujarat, AIR 1961 SC 1808, in this regard). Moreover, this Section is only a step in aid for further investigation and the samples so obtained can never Criminal Misc. 41247-M of 2007 7 be considered as conclusive proof for conviction. Consequently we uphold the constitutional validity of Section 27.” Having regard to the law as laid down by the Hon'ble Supreme Court of India and particularly the fact that the court has considered it necessary to take sample of handwriting and signatures so as to effectively adjudicate the matter, no ground for interference is made out in this petition. The petition is dismissed. August 6, 2008 ( AJAI LAMBA ) Kang JUDGE