A.S.Subin v. State of Kerala and Raveendran S/o Ayyappankutty

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN THURSDAY, THE 24TH NOVEMBER 2011 / 3RD AGRAHAYANA 1933 Crl.MC.No. 3723 of 2011(A) ------------------------CC.199/2003 of JUDL.FIRST CLASS MAGISTRATE, PONNANI ....................** **PETITIONER(S):** **---------------** **A.S.SUBIN, S/O.SUGATHAN ARAKKAL HOUSE, THAMBAN KADAVU, THRISSUR DISTRICT.** **BY ADVS. SRI.M.R.VENUGOPAL SMT.DHANYA P.ASHOKAN** **RESPONDENT(S):** **---------------** **1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM.** **2. RAVEENDRAN S/O.AYYAPPANKUTTY, KOLLARA HOUSE PATTURAIKKAL, THRISSUR DISTRICT 680 502.** **R1 BY PUBLIC PROSECUTOR SRI.RAJESH VIJAYAN R2 BY ADVS.SRI.P.SANTHOSH (PODUVAL) SMT.R.RAJITHA** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 24/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **Crl.MC.No. 3723 of 2011(A)** ## **APPENDIX** ## **PETITIONERS ANNEXURES:** - **A: COPY OF THE COMPLAINT DATED 25.6.01 FILED BY THE 2[ND] RESPONDENT** - **B: COPY OF THE F.I.R. IN CRIME NO:196/2001 DATED 25.6.01** - **C: COPY OF C.M.P. NO:2488/10 DATED 16.9.10 FILED BY THE 1[ST] RESPONDENT IN C.C.199/2003** - **D: COPY OF THE OBJECTION DATED 10.11.2010 IN C.M.P.2488/10 FILED ON BEHALF OF THE ACCUSED** - **E: COPY OF THE ORDER DATED 1.9.2011 IN C.M.P. 2488/10 PASSED BY THE JFCM PONNANI** - **F: COPY OF THE CMP NO:4576/2001 DATED 10.7.2001** - **G: COPY OF THE ORDER IN THE REMAND REPORT DATED 10.7.2001** ## **RESPONDENTS ANNEXURES: NIL** ## **//TRUE COPY//** **P.A.TO JUDGE** **JJJ** ## **N.K. BALAKRISHNAN, J. -----------------------------------------Crl. M.C. No: 3723 OF 2011 (A) -----------------------------------------Dated this the 24[th] day of November, 2011** ## **O R D E R** The petitioner is the first accused in C.C. No:199/2003 of Judicial First Class Magistrate, Ponnani. He and another accused are facing trial for offences punishable under sections 406, 408 and 420 r/w 34 I.P.C. The defacto complainant therein was examined in part as PW1. The accused are stated to be the near relatives of PW1. The case of the Prosecution is that while PW1 was away, engaged in the construction of his house, the management of the toddy business was entrusted with the accused. They were to keep the accounts. Subsequently, it was revealed that the accused misappropriated a sum of `13,69,283/- by manipulating the accounts of the business. It was also alleged that by forging documents it was made to appear that they had remitted the amount towards toddy worker's ## **Crl. M.C. No: 3723 OF 2011 (A)** -2- welfare fund and without remitting that amount they committed criminal breach of trust to the tune of `1,00,236/-. 2. It is submitted by the learned counsel for the complainant that two witnesses have filed applications before the trial Court in advance, stating that the allegation in the complaint is not true. An application was filed by the Assistant Public Prosecutor, Grade I, before the Court below on 16.9.2010, stating that the specimen handwriting and signature of the second accused have to be obtained so as to send the same for expert opinion. That application filed under Section 311A Cr.P.C. was opposed by the accused contending, _inter alia,_ that such a petition can be filed only at the stage of investigation and not during trial. It was also contended that in Annexure F, Remand Report, the signature of the accused was obtained and as such there is **Crl. M.C. No: 3723 OF 2011 (A)** -3- no justification for the Assistant Public Prosecutor to file this petition at this stage. It is submitted by Adv. Sri.M.R.Venugopal, the learned counsel for the petitioner, that the signature in the Remand Report as well as Annexure F itself would be sufficient for comparison and hence there is no necessity to obtain their specimen handwritings and signatures. It is further submitted that the alleged defalcation or misappropriation took place in the year 1998 and so there would certainly be variations in the signatures and handwritings of the accused if taken now. 3. Adv.Sri.P.Santhosh Poduval, the learned counsel for the complainant, would submit that there is no guarantee or proof that Annexure F was actually written by the accused. That is only an application filed before Court. If at all it can only be held that it was signed by the accused. There can be no presumption that it was written by the accused. The **Crl. M.C. No: 3723 OF 2011 (A)** -4- remand report may contain the signature of the accused. That also will not serve the purpose. According to Sri.P.Santhosh, it is not only the signature but also the handwritings of the accused which are required to be compared with the handwritings and signatures found in the account books and other connected records produced by the Prosecution. 4. Sri. Venugopal, learned counsel for the petitioner, submits that Annexure E Order passed by the learned Magistrate would show that there was no application of mind with regard to the contention raised by the petitioner. The finding that as per Section 73 of the Indian Evidence Act, the court can direct any person present in court to write any words or figures for the purpose of enabling the court to compare the words or figures so written, is taken exception to by the learned counsel for the complainant/petitioner, for, **Crl. M.C. No: 3723 OF 2011 (A)** -5- according to the learned counsel Section 73 is only an enabling provision as per which the Court can get handwritings and signature for comparison or for sending it to the expert. But that submission is resisted by Adv.Sri.Santhosh Poduval relying upon the decision of the apex Court in **State (Delhi Admn.) v. Pali Ram reported in AIR 1979 SC 14** where it was held: "A Court holding an inquiry under the Code of Criminal Procedure in respect of an offence triable by itself or by the Court of Sessions, does not exceed its powers under Section 73 if, in the interests of justice, it directs an accused person appearing before it to give 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 1975 Cri LJ 1756 (Delhi), Reversed." ## **Crl. M.C. No: 3723 OF 2011 (A)** -6- 5. That apart, in the light of the new provision, Section 311A, the contention advanced by the petitioner cannot be sustained, the learned counsel for the respondents submits. Adv. Venugopal has cited the decision in **Vijay Kumar v.** ## **State of Uttar Pradesh (2011) 3 SCC (Crl)371, (2011)** ## **8 SCC 136** where it was held: "The wide discretion conferred on the court to summon a witness must be exercised judicially, as wider the power, the greater is the necessity for application of the judicial mind" 6. The aforesaid decision was rendered in a case while dealing with the principles to be borne in mind while exercising discretionary power under Section 311 Cr.P.C. No doubt, under section 311A also, the Court has to exercise the discretion judiciously. It all depends on the facts of each case. 7. The decision of the Division Bench reported in **Johnson v. State of Kerala 1996 (2) KLT 1027** was also ## **Crl. M.C. No: 3723 OF 2011 (A)** -7- under section 311 Cr.P.C. The facts dealt with therein is also entirely different. Similar was the position dealt with in **Surendra Choudhary v. State of Bihar 2006 CRI.L.J. 4573** . 8. Now the question for consideration is whether Section 311A can be applied to the facts of this case. It is pointed out that the offence was detected in the year 2001 whereas Section 311A came into force only with effect from 23.6.2006. Section 311A is intended to aid the investigating and prosecuting agency. No right vested in an accused is sought to be taken away by invoking Section 311A. It is in the realm of procedure, to aid the Court or investigating officer. As such the provision is applicable to cases pending trial also. 9. The other argument vehemently advanced by Sri. Venugopal, the learned counsel for the petitioner is that ## **Crl. M.C. No: 3723 OF 2011 (A)** -8- Section 311A can be invoked only during the investigation and not in a matter where case is pending trial. The word 'proceeding' is not defined under the Code. ## 10. Section 311A reads: “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.” 11. The words “proceeding under this Code” should receive wider meaning. If such a wider meaning is given it can be reasonably held that it includes inquiry and trial as well. Though the word 'trial' is not specifically mentioned in ## **Crl. M.C. No: 3723 OF 2011 (A)** -9- Section 311A, the reasonable interpretation should be that the expression 'proceeding under this Code' includes inquiry and trial. In other words, inquiry and trial are proceedings under the code. Therefore, the argument advanced by the learned counsel for the petitioner that Section 311A has no application, as the case is now pending trial also cannot be countenanced. 12. In the decision in **State of U.P v. Ram Babu (AIR 1980 SC 791)** the apex Court suggested that suitable legislation may be made on the analogy of Section 5 of the Identification of Prisoners Act to provide for the investiture of Magistrates with the power to issue directions to any person, including an accused person, to give specimen signatures and writings. It was in view of the suggestion made by the apex Court in the decision cited supra, Section 311A was inserted in the Code as per Act 25 of 2005. **Crl. M.C. No: 3723 OF 2011 (A)** -10- Therefore, there can be no doubt that the Magistrates are invested with the power to issue directions to any person including an accused person to give specimen signatures and writings, in any proceeding under the Code which would include inquiry and trial also. By sending the entries in the register/account books and the specimen handwriting and signature of the accused for comparison, no prejudice, what so ever, is likely to be caused . As such I find no reason to differ from the view taken by the learned Magistrate. Hence this petition is dismissed ## **N.K. BALAKRISHNAN, JUDGE** jjj