C.R.

**“C.R.”** IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.HARIPRASAD MONDAY, THE 18TH DAY OF NOVEMBER 2013/27TH KARTHIKA, 1935 Crl.MC.No. 3308 of 2011 ( ) ---------------------------CMP NO.1101/2011 IN CC 790/2008 of JUDICIAL FIRST CLASS MAGISTRATE COURT, KOLENCHERRY PETITIONER(S)/ACCUSED: ------------------------------------------ 1. B.C.RADHAKRISHNAN, S/O.THANANGADAN, SAI BHAVAN, VADAYAMPADI KARA AIKKARANAD SOUTH VILLAGE. 2. ANNAMMA, W/O.YOHANNAN, VALIYA KUZHIYIL, KURINJI. 3. SLEEBA, S/O.VARKEY, AIKKARAKUNNATHU VEEDU, VADAYAMPADI, AIKKARANAD SOUTH. BY ADVS.SRI.S.RAJEEV SRI.K.K.DHEERENDRAKRISHNAN RESPONDENT(S)/COMPLAINANT/STATE: ------------------------------------------------------------------ 1. SAJU THURUTHIKUNNEL, S/O.THANKAPPAN, THURUTHIKUNNEL VEEDU, VADAYAMPADI KARA AIKKARANAD SOUTH VILLAGE. 2. STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. R1 BY ADV. SRI.PAUL K.VARGHESE R2 BY PUBLIC PROSECUTOR SRIM.K.ABOOBACKER THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 25-10-2013, ALONG WITH CRL.MC. 2631/2012, THE COURT ON 18-11-2013 PASSED THE FOLLOWING: CRL MC NO.3308/2011 APPENDIX PETITIONERS' EXHIBITS: ANNEXURE I COPY OF THE COMPLAINT FILED BY THE FIRST RESPONDENT DATED 31.07.2008 ANNEXURE II COPY OF ORDER DATED 13.11.2008 IN CMP NO.5245/08 PASSED BY THE JUDICIAL FIRST CLASS MAGISTRATE, KOLENCHERRY ANNEXURE III COPY OF PETITION SUBMITTED BY THE COMPLAINANT BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE, KOLENCHERRY ANNEXURE IV COPY OF THE ORDER PASSED BY THE LEARNED JUDICIAL MAGISTRATE OF FIRST CLASS, KOLENCHERRY IN CMP NO.1101/2011 IN CC NO.790/2008 RESPONDENTS' EXHIBITS: NIL //TRUE COPY// ## **“C.R.”** ## **A.HARIPRASAD, J.** ## **-------------------------------------Crl.M.C. Nos.3308 of 2011 & 2631 of 2012** **-------------------------------------Dated this the 18[th] day of November, 2013.** ## **COMMON ORDER** Petitions filed under Section 482 of the Code of Criminal Procedure, 1973 (in short, “Cr.P.C.”). 2. Petitioners in Crl.M.C.No.3308 of 2011 are the accused in a complaint case filed by the 1[st] respondent alleging the offences punishable under Sections 406, 465 and 120B read with Section 34 of the Indian Penal Code. Allegations in the complaint are that the petitioners, who are the Secretary, President and Chairman of the Standing Committee of a Grama Panchayat, conspired together and expended an amount of `1,34,007/from the funds of the Panchayat without inviting tenders or preparing an estimate or inviting a quotation. They did so to make an unlawful gain for themselves. Furthermore, they committed forgery to manipulate the records. It is alleged that thereby they have committed the above said offences. Annexure-I therein is the copy of the complaint. After holding an enquiry under Section 202 Cr.P.C., the learned Magistrate took cognizance of the offences and issued process under Section 204 Cr.P.C. **Crl.M.C. Nos.3308 of 2011 & 2631 of 2012** 2 Annexure-II is the order passed by the learned Magistrate taking cognizance of the offences. 3. The parties are hereinafter referred to as the complainant and the accused for brevity and clarity. Crl.M.C.No.3308 of 2011 is taken as the leading case. 4. Pending enquiry, the complainant submitted an application under Sections 311A Cr.P.C. and 73 of the Evidence Act (in short, “the Act”) requesting the assistance of the court to obtain the handwriting of the accused for the purpose of comparing with the disputed handwriting. Annexure-III is the copy of the petition submitted by the complainant before the learned Magistrate. After considering the matters, learned Magistrate passed Annexure-IV order, which is impugned in these proceedings. Learned Magistrate found that the prayer for granting relief under Section 311A Cr.P.C. is not maintainable in the established facts. However, learned Magistrate allowed the prayer under Section 73 of the Act. Feeling aggrieved by the denial of one of the prayers, the complainant preferred Crl.M.C. No.2631 of 2012. 5. Heard the learned counsel for the complainant and accused. 6. Learned counsel for the complainant submitted that the trial court committed a legal error in disallowing the prayer, based on Section **Crl.M.C. Nos.3308 of 2011 & 2631 of 2012** 3 311A Cr.P.C., for directing the accused to furnish handwriting. Section 311A Cr.P.C. reads as follows:- _“If a Magistrate of the first class is satisfied that,_ _for the purpose 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.”_ Statement of Objects and Reasoning of Section 311A Cr.P.C. inserted by Cr.P.C. (Amendment) Act, 2005 reads as follows:- ## _“_ _**The Statement of Objects and Reasoning** .-_ _The Statement of Objects and Reasoning of s.311A_ _inserted by Cr.P.C. (Amendment) Act, 2005 with effect_ **Crl.M.C. Nos.3308 of 2011 & 2631 of 2012** 4 _from 23.06.2006 reads as follows:_ _“The Supreme Court in State of U.P. v. Ram Babu Mishra (AIR 1980 SC 791) suggested that a suitable legislation be made on the analogy of s.5 of the Identification of Prisoners, 1980 to provide for the investiture of the Magistrate with power to issue directions to any person including an accused person to give specimen signatures and handwriting. A new s.311A is accordingly being inserted.””_ 7. The Supreme Court in **Ram Babu Mishra** 's case (supra) considered the question whether the request of an investigating officer to a Magistrate for issuing a direction to the accused to furnish his specimen writings for the purpose of comparison with certain disputed writings, was legally allowable or not. Learned Magistrate held that he had no power to do so when the case was still under investigation. This view had been upheld by the High Court, which was challenged by the State before the Apex Court. Scope of Section 73 of the Act was also considered by the Supreme Court in this context. In the above circumstances, the Supreme Court while dismissing the appeal filed by the State, held as follows:- _“ ........... We accordingly dismiss the appeal and_ **Crl.M.C. Nos.3308 of 2011 & 2631 of 2012** 5 _while doing so we would suggest that suitable legislation may be made on the analogy of S.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.”_ In this backdrop, Section 311A Cr.P.C. was introduced in the statute book. This Section is an enabling provision. It is intended to enable the investigating agency, in appropriate cases, to seek the aid of the court to collect specimen signatures and writings of the accused for the purpose of investigation. Body of the Section shows that the power can be invoked by the Magistrate, naturally on a prayer made by the Investigating Officer, during the stage of investigation of the case. 8. Learned counsel for the accused submitted that the learned Magistrate rightly disallowed the prayer made by the complainant to invoke Section 311A Cr.P.C.. It is contended on behalf of the accused that the proviso to Section 311A Cr.P.C. control the main provision, wherein it is stated that no order under the provision shall be made, unless the accused has at some time been arrested in connection with such investigation or proceeding. It is settled law that the normal function of a proviso is to ## **Crl.M.C. Nos.3308 of 2011 & 2631 of 2012** 6 except something out of the enactment or to qualify something enacted therein, which, but for the proviso, would be within the purview of the enactment (see **Kedarnath Jute Manufacturing Co. Ltd. v. Commercial Tax Officer - AIR 1966 SC 12** ). My attention was also drawn to a decision rendered by the Supreme Court in **State of Kerala and another v. B.Six Holiday Resorts Private Limited ((2010) 5 SCC 186** ). The relevant dictum therein is as follows:- _“A proviso may either qualify or except certain provisions from the main provision; or it can change the very concept of the intendment of the main provision by incorporating certain mandatory conditions to be fulfilled; or it can temporarily suspend the operation of the main provision. Ultimately the proviso has to be construed upon its terms. Merely because it suspends or stops further operation of the main provision, the proviso does not become invalid. ....._ ” 9. On a careful perusal of the proviso, it can be seen that arrest of the accused in connection with the investigation or proceedings of the case is essential for invocation of power under Section 311A Cr.P.C. by the Magistrate. The proviso limits the power conferred on the Magistrate ## **Crl.M.C. Nos.3308 of 2011 & 2631 of 2012** 7 by the Section by providing a restriction that it can be exercised only in a case where the accused person had been arrested in connection with such investigation or proceeding. Admittedly, in this case the accused were not arrested and therefore, the learned Magistrate was right in disallowing the prayer of the complainant for invoking the power under Section 311A Cr.P.C. Hence there is no merit in Crl.M.C.No.2631 of 2012. 10. Now we shall consider the controversy regarding the application of Section 73 of the Act to this case. Section 73 of the Act reads as follows:- ## _“_ _**Comparison of signature, writing or seal**_ _**with others admitted or proved.** -In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made, any signature, writing, or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing, or seal has not been produced or proved for any other purpose._ _The Court may direct any person present in_ **Crl.M.C. Nos.3308 of 2011 & 2631 of 2012** 8 _Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person._ _This section applies also, with any necessary modifications, to finger-impressions.”_ This Section lays down an additional mode of proving handwriting besides that is provided in Sections 45 and 47 of the Act. It is to be noted that under Sections 45 and 47 of the Act, the court has to take a view on the opinion of others, whereas under Section 73 of the Act, by its own comparison of writings, it can form an opinion. On a survey through the Act, it can be seen that the three Sections of the Act, viz., Sections 45, 47 and 73, deal with the evidence of identity of handwriting. For our purpose, Sections 45A and 47A of the Act are not relevant as they deal with electronic evidence and electronic signature. Both under Sections 45 and 47 of the Act, the evidence is an opinion. Under Section 45 of the Act, it is by a scientific comparison and under Section 47 of the Act, it is based on familiarity resulting from the frequent observations and experiences. Irrespective of an opinion of the handwriting expert, the court can compare the admitted writing with the disputed writing and come to its own **Crl.M.C. Nos.3308 of 2011 & 2631 of 2012** 9 independent conclusion. Such exercise of comparison is permissible under Section 73 of the Act. 11. Ordinarily Sections 45 and 73 of the Act are treated as complementary to one another. Supreme Court in **State (Delhi Administration) v. Pali Ram ((1979) 2 SCC 158)** considered the scope of Sections 45 and 73 of the Act in extenso. The relevant dictum therein is as follows:- _“Comparison within the meaning of the first paragraph of Section 73, may be made by a handwriting expert (Section 45) or by one familiar with the handwriting of the person concerned (Section 47) or by the court. The two paragraphs of the section are not mutually exclusive, but complementary to each other. Section 73 is therefore, to be read as a whole, in the light of Section 45.”_ 12. Words employed in Section 73 of the Act would show that the power vested with the court under the Section can be exercised by the court directing 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 with any words or figures alleged to have been written by such **Crl.M.C. Nos.3308 of 2011 & 2631 of 2012** 10 person. Learned counsel for the accused submitted that the order passed by the learned Magistrate prior to adducing evidence under Section 244 Cr.P.C. is legally unsound. According to the learned counsel for the accused, the Supreme Court clearly held in **Ajoy Kumar Ghose v. State of Jharkhand and another (2009 (2) KLT Supp. 549)** that the accused have a right to cross-examine the witness at the stage of adducing evidence under Section 244(1) Cr.P.C. And, therefore, only thereafter the power of the court under Section 73 of the Act can be invoked. This contention is not sustainable, even though it sounds attractive. Section 73 of the Act does not prescribe any specific time for invocation of the court's power. The direction to furnish any writing can be issued to a person present in court. In this case, process have been issued under Section 204 Cr.P.C. and the accused appeared before the court. Therefore, the case is at the stage of enquiry. A learned Single Judge of this Court in **State of Kerala v. Achutha Panicker (1975 KLT 703)** delineated the distinction between enquiry and trial thus: _“............. A question of interest, when does a_ _trial commence, arises in this regard. The trial of an accused person commences when he is called upon to plead to a charge and the proceeding upto the_ **Crl.M.C. Nos.3308 of 2011 & 2631 of 2012** 11 _point of framing a charge is in the nature of an inquiry. There is real distinction between a trial and an inquiry. The final order in a trial is either a conviction or an acquittal and this order, so long as it is not set aside, would be a bar to subsequent proceedings for the same offence. An accused person is entitled to raise the plea of autrefois convict or acquit, as the case may be. In the case of an enquiry, the final order of discharge would not be a bar to fresh proceedings. ............”_ 13. Apex Court in **Common Cause, A Regd. Society through its Director v. Union of India (1997 KHC 70** ) clarified/modified its earlier judgment. It has been clearly stated that in the matter of trials of warrant cases instituted otherwise on a police report, trials shall be treated to have commenced when the charges are framed against the concerned accused under Section 246 Cr.P.C. Therefore, the case in question is indubitably pending at the stage of enquiry. It is therefore, undebatable that the Magistrate has ample power and jurisdiction to invoke Section 73 of the Act for directing the accused to furnish specimen writing for the purpose of comparison. For the above reasons, I do not find any infirmity in the order **Crl.M.C. Nos.3308 of 2011 & 2631 of 2012** 12 passed by the learned Magistrate directing the accused under Section 73 of the Act to furnish specimen writings. Crl.M.C.No.3308 of 2011 is also found to be devoid of merits. It is also liable to be dismissed. Hence both the petitions are dismissed. All pending interlocutory applications will stand dismissed. ## **A. HARIPRASAD, JUDGE.** **cks**