M.V. Liju and Mohana Chandran v. State of Kerala and Sub Inspector of Police, Aryancode Police Station, Neyyattinkara

**“C.R.”** # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **FRIDAY, THE 07TH DAY OF JUNE 2019 / 17TH JYAISHTA, 1941** ## **Crl.MC.No. 3094 of 2019** **AGAINST THE ORDER IN CRL.M.P.NO.2019/2019 ON THE FILES OF THE JUDICIAL MAGISTRATE OF FIRST CLASS-I, NEYYATINKARA DATED 04-04-2019 CRIME NO. 226/2015 OF ARYANCODE POLICE STATION, THIRUVANANTHAPURAM** ## **PETITIONERS / COUNTER PETITIONER:** **1 M.V.LIJU, AGED 36 YEARS, S/O. P.C. MANI, ROSE COTTAGE, CHEMBOOR, CHEMBOOR DESOM, KEEZHAROOR VILLAGE, THIRUVANANTHAPURAM. 2 MOHANA CHANDRAN, AGED 40 YEARS, S/O. THANKAPPAN, MJ COTTAGE, PAZHAMALA MELKONAM, PAZHAMALA DESOM, PERUMKADAVILA VILLAGE, THIRUVANANTHAPURAM BY ADVS.SRI.BLAZE K.JOSE SMT.SANTHA O.K.** ## **RESPONDENTS / PETITIONER:** **1 THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031. 2 SUB INSPECTOR OF POLICE, ARYANCODE POLICE STATION, THIRUVANANTHAPURAM-695 121.** **BY PUBLIC PROSECUTOR SRI. AJITH MURALI** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 07.06.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** CRL.MC:3094/2019 2 ## **O R D E R** The breadth, scope and amplitude of the powers of the Judicial Magistrate while considering a petition under Section 311A of the Code of Criminal Procedure is called in question in this petition filed under Section 482 of the Cr.P.C. What led to the challenge is the order passed by the learned Judicial Magistrate of the First Class, Neyyattinkara, directing the petitioners to furnish their specimen signature and handwriting by allowing an application for that purpose filed by the investigating officer. 2. The petitioners are the accused in Crime No. 226 of 2015 of the Aryancode Police Station registered under Sections 419, 420, 465, 468, 471 r/w. Section 34 of the I.P.C. The said crime was registered at the instance of the Vigilance and Security Wing of the Kerala Public Service Commission, Thiruvananthapuram. 3. The 1[st] petitioner received information that applications were being invited for the post of Male Warden in the Jail Department. He approached the 2[nd] accused and sought for his help. With intent to cheat the Kerala Public Service Commission, two applications were submitted for the post with the PSC; the first was submitted by the 1[st] petitioner and the second by the 2[nd] petitioner CRL.MC:3094/2019 3 impersonating as another person. They managed to secure two hall tickets for the exam and that too, in close proximity to each others seats. After the exams, the petitioners are alleged to have swapped the answer sheets covertly. When the results were declared, the 1[st] petitioner secured a high rank and got selection to the post. The complicity of the petitioners were revealed pursuant to an enquiry conducted by the Commission. The Police were alerted and crime was registered. Though the crime was registered in the year 2015, the investigation is still proceeding at a snail’s pace. 4. While so, in the year 2019, a petition was filed before the learned Magistrate under Section 311A of the Cr.P.C by the investigating officer seeking for a direction to the accused to give specimen signatures or handwriting for the purpose of investigation. Serious objection was raised by the petitioners. 5. The learned Magistrate by a detailed order allowed the application and the petitioners were ordered to appear before the learned Magistrate and give their specimen signatures and handwriting by invoking Section 311A of the Cr.P.C. 6. The above order is under challenge. 7. Sri.Blaze K.Jose, the learned counsel appearing for the petitioners, submitted that the application is filed quite belatedly and with intent to harass the petitioners. According to the learned CRL.MC:3094/2019 4 counsel, no purpose would be served by forcing the petitioners to submit their handwriting and specimen signatures. When the investigating officer failed to collect any material to link the petitioners with the crime, they are embarking on a roving enquiry. It is urged that the learned Magistrate has allowed the application in a mechanical manner without applying its judicial mind. 8. Heard the learned Public Prosecutor, who submitted that it was pursuant to the suggestions of the Hon’ble Supreme Court in **State of U.P v. Ram Babu Misra** [AIR 1980 SC 791] that Section 311A was inserted in the Code as per Act 25 of 2005. It was argued that the Magistrates are vested 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. The only rider is that no order be made under Section 311A unless the person has at some time been arrested in connection with such investigation or proceeding. According to the learned Public Prosecutor, the order is unexceptionable and does not warrant any interference. 9. I have considered the submissions advanced. 10. The only question that begs an answer is whether the learned Magistrate was justified in directing the petitioners to furnish their specimen signatures and handwriting by invoking its power CRL.MC:3094/2019 5 ## under Section 311A of the Cr.P.C. ## 11. Section 311A reads as follows: “Power of Magistrate to order person to give specimen signatures or handwriting. - 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." 12. Section 311A empowers the Magistrate to direct any person, including the accused, to provide specimen signatures or handwriting and if such an order is passed, the accused is legally bound to attend at the time and place specified in the order and furnish his specimen signature or handwriting. The provision mandates that before passing such an order, the Magistrate should be satisfied that it would be expedient for the purpose of investigation to issue such directions to any person. The only precondition is that the accused had at some time been arrested in connection with such investigation or proceeding. CRL.MC:3094/2019 6 13. Here, the question is whether the handwriting and signature of the accused would be required for a proper investigation. As is apparent from the nature of allegations, the 2[nd] petitioner impersonated another person and appeared for the exam. Later, he swapped the answer paper with the 1[st] petitioner. It is the contention of the prosecution that the comparison of signatures and handwriting of the accused by an expert is required for arriving at the truth. The learned Magistrate was satisfied that it is expedient for the purpose of investigation that the petitioners be ordered to furnish their specimen signature and handwriting to aid the investigation. 14. It is trite that investigation is carried on for the purpose of gathering necessary materials for establishing and proving an offence which is disclosed and to book the offender. In the absence of a proper investigation in a case where an offence is disclosed, the offender may succeed in escaping from the consequences and if that happens, it would be to the detriment of the cause of justice and the society at large. 15. It is beyond cavil that investigation of an offence is the field exclusively reserved for the police officers, whose powers in that field are unfettered so long as the power to investigate into the cognizable offences is legitimately exercised in strict compliance with the provisions falling under Chapter XII of the Code. The Courts will CRL.MC:3094/2019 7 not be justified in obliterating the track of investigation when the investigating agencies are well within their legal bounds. A noticeable feature of the scheme under Chapter XIV of the Code is that a learned Magistrate is kept in the picture at all stages of the police investigation, but he is not authorised to interfere with the actual investigation or to direct the police how that investigation is to be conducted. But, if a police officer transgresses the circumscribed limits and improperly and illegally exercises his investigatory powers in breach of any statutory provision causing serious prejudice to the personal liberty and also property of a citizen, then the Court, on being approached by the person aggrieved for redress of any grievance, has to consider the nature and extent of the breach and pass appropriate orders as may be called for without leaving the citizens to the mercy of police echelons since human dignity is a dear value of our Constitution. No one can demand absolute immunity even if he is wrong and claim unquestionable right and unlimited powers exercisable upto unfathomable cosmos. (See **State of Haryana and others v. Ch.Bhajan Lal and Others** [1992 SCC (Cri) 426]). 16. Having given my anxious consideration to the facts and circumstances and after perusing the impugned order, I am inclined to agree with the learned Magistrate that in the case on hand, the examination of signature and handwriting of the accused is CRL.MC:3094/2019 8 imperative for the purpose of investigation. The learned Magistrate has acted well within his powers to allow the petition filed by the investigating officer. The order cannot be faulted on any of the grounds raised before this Court. This petition will stand dismissed. Sd/- **RAJA VIJAYARAGHAVAN V., JUDGE** ps/6/6/19 CRL.MC:3094/2019 9 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **ANNEXURE 1** **A CERTIFIED COPY OF THE ORDER IN CMP NO. 2019/2019 DATED 4.4.2019 OF THE JFCM 1 NEYYATTINKARA.** ## **RESPONDENTS’ EXHIBITS:-NIL**