Santoshkumar and others v. State of Kerala and Bindu

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **MONDAY, THE 13[TH] DAY OF DECEMBER 2021 / 22ND AGRAHAYANA, 1943** ## **CRL.MC NO. 1080 OF 2020** **CC 797/2017 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,NEDUMKANDOM** ## **PETITIONERS/RESPONDENTS/ACCUSED** - 1 SANTHOSHKUMAR,AGED 48 YEARS S/O. CHANDRASEKHARAN ACHARI, KOLLAMMATTAYIL HOUSE, 3RD CAMP KARA, KARUNAPURAM, BALAGRAMA P.O., IDUKKI DISTRICT (A1). - 2 K.K. DAMODARAN ACHARI,AGED 72 YEARS S/O. KUNJUPANNIKAR, ATTUMUKKIL HOUSE, THOOKKUPALAM BHAGAM, KALLAR KARA, KARUNAPURAM, IDUKKI DISTRICT685552(A2). - 3 V.G. REMANAN,AGED 57 YEARS,S/O. GOPALAN ACHARI, VELUTHARAYIL HOUSE, KUNTHALAMPARA BHAGAM, KATTAPPANA KARA, KATTAPPANA VILLAGE, IDUKKI DISTRICT-685552 (A3). - 4 MOHANDAS,AGED 61 YEARS S/O. SANKARAN ACHARI, THONDIPPARA HOUSE, VANDIPERIYAR, NALAMKANDAM BHAGAM, THENGAKKAL KARA, MANJUMALA, IDUKKI DISTRICT-685552 (A4). - 5 C.S. SASEENDRAN,AGED 57 YEARS S/O. SANKARA ACHARI, CHALUVELLI HOUSE, KOOTTAR BHAGAM, KOOTTAR KARA, KARUNAPURAM VILLAGE, IDUKKI DISTRICT-685552 (A5). - 6 K.K. PRABHAKARAN ACHARI,AGED 74 YEARS S/O. KRISHNA ACHARI, KUNNATHUPARYAIL HOUSE, 3RD CAMP BHAGAM, BALAGRAM KARA, KARUNAPURAM VILLAGE, IDDUKI DISTRICT-685552 (A6). BY ADV S.M.ALTHAF ## **RESPONDENTS/STATE AND DE FACTO COMPLAINANT** 2 ## Crl.M.C.1080/2020 - 1 STATE OF KERALA,REPRESENTED BY THE PUBLIC PROSECUTOR, THROUGH HIGH COURT OF KERALA, ERNAKULAM. - 2 BINDU,AGED 40 YEARS, RESIDING AT KOLLAMMATTAYIL, THIRDCAMP, KARUNAPURAM, NEDUMKANDAM, IDUKKI DISTRICT-685552. PP SRI.K.A.ANAS (Sr.) - THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON - 7.12.2021, THE COURT ON 13.12.2021 DELIVERED THE FOLLOWING: Crl.M.C.1080/2020 3 ## **ORDER** Dated : 13[th] December, 2021 1. This Crl.M.C has been filed against the order in C.M.P.2333/2019 in C.C.797/2017 on the file of Judicial First Class Magistrate Court, Nedumkandom. 2. Petitioners are accused Nos.1 to 6 in C.C.797/2017. C.M.P.2333/2019 has been filed under Section 311A Cr.P.C which was allowed by the learned Magistrate by the impugned order directing the petitioners/accused 1 to 6 to appear before the Court to give their signatures and handwriting for the purpose of proceedings in this case. 3. Prosecution case is that accused with the intention to make wrongful gain by deceiving CW1, along with 2[nd] and 8[th] accused affixed their signatures on the agreement. It is further alleged that accused persons fraudulently affixed the signature of CW1, 2 and 3 on that agreement and produced the same before the Judicial First Class Magistrate Court, Peerumedu in M.C.64/2016 and obtained an order against CW1 and got Crl.M.C.1080/2020 4 divorced from CW1 on the basis of said agreement. The only contention advanced by the learned counsel for the petitioner is that petitioners actually surrendered before the Court and have not been arrested and hence as per the proviso to Section 311A Cr.P.C, there is bar for passing an order directing them to give the specimen signatures and handwriting. It is not in dispute that accused 1 to 6 were not arrested and actually they have surrendered before the court. So the only question for determination is whether the surrender of the petitioner/accused 1 to 6 would have the effect of arrest so as to direct them to give the specimen signature or handwriting as provided under Section 311A. 4. In this context the learned Public Prosecutor brought to my attention **Niranjan Singh and Another v. Prabhakar Rajaram Kharote and Others (1980 (2) SCC 559 = AIR 1980 SC 785 = 1980 KHC 664)** , wherein the question arose whether a person accused of an offence can move for bail under Section 439 Cr.P.C unless he is in custody. Paragraph Nos.7 and 8 were highlighted by the learned counsel which read Crl.M.C.1080/2020 5 ## as under :- 7. When is a person in custody, within the meaning of s.439 Cr. P.C. ? When he is in duress either because he is held by the investigating agency or other police or allied authority or is under the control of the court having been remanded by judicial order, or having offered himself to the court's jurisdiction and submitted to its orders by physical presence. No lexical dexterity nor presidential profusion is needed to come to the realistic conclusion that he who is under the control of the court or is in the physical hold of an officer with coercive power is in custody for the purpose of s. 439. This word is of elastic semantics but its core meaning is that the law has taken control of the person. The equivocatory quibblings and hide-and-seek niceties sometimes heard in court that the police have taken a man into informal custody but not arrested him, have detained him for interrogation but not taken him into formal custody and other like terminological dubieties are unfair evasions of the straightforwardness of the law. We need not dilate on this shady facet here because we are satisfied that the accused did physically submit before the Sessions Judge and the jurisdiction to grant bail thus arose. 8. Custody, in the context of s.439, (we are not, be it noted, dealing with anticipatory bail under s.438) is physical control or an least physical presence of the accused in court coupled with submission to the jurisdiction and orders of the court. Crl.M.C.1080/2020 6 5. The learned counsel further brought to my attention **Bhaskaran Nair v. State of Kerala (ILR 1986 (2) Ker. 592 = 1986 KHC 124)** where the impact of surrender before the Magistrate under Section 167 (5) of the Code arises for consideration and it has been categorically held that surrender before a Magistrate shall be considered as a proper arrest. Paragraph No.9 of the said decision was highlighted by the learned counsel which reads as follows :- “Now let us go back to Section 167(5) again. That provision has not fixed any time limit beyond which investigation cannot continue. The main purpose of the provision is to avoid the serious abuse of an arrested person being kept in custody indefinitely while the investigation goes on leisurely. The object of that provision is mainly to protect the interest of under-trial prisoners. But we do not mean to say that the restriction is applicable only in cases of investigation involving under-trial prisoners. It equally applies to investigation of cases where accused were either arrested and released on bail or surrendered and released on bail also. Even though the subsection makes it obligatory on the investigator to satisfy the Magistrate that for special reasons and in the interests of justice continuation of investigation beyond six months is necessary and also casts a duty on the Magistrate to stop further investigation in the absence of such satisfaction, the Crl.M.C.1080/2020 7 consequences of these two contingencies not happening are not provided. In this case the investigator has not satisfied the Magistrate and the Magistrate has also not ordered stopping further investigation. The sub-section does not provide for an automatic stoppage of investigation once when the time limit has expired. We do not mean to say that the provision is not mandatory. We are at the purport of that provision. That provision itself contemplates continuance of investigation beyond six months for special reasons and in the interests of justice. What is intended to be protected is interests of justice. It cannot be expected that, even in a case where interest of justice demands, the legislature intended investigation to be automatically closed for the mere laches of the investigating agency in not getting the requisite permission from the Magistrate in exercising his powers. ## 6. **Radhakrishnan v. Saju Thuruthikunnel (2013 (4) KLT 859** ) is relevant in this context to be quoted wherein while dealing with Section 311A of the Code it has been categorically held by a learned Single Judge of this Court that it is intended to enable the investigating agency in appropriate cases to seek the aid of the Court to collect specimen signatures and handwriting of the accused for the purpose of investigation and it is an enabling provision intending to enable the investigating agency in appropriate cases to seek the aid of the court to collect the Crl.M.C.1080/2020 8 specimen signatures and writings of the accused for the purpose of investigation. It is true that in paragraph 9, it has been discussed that the proviso limits the power conferred on the Magistrate by providing a restriction that it can be exercised only in a case where the accused persons had been arrested in connection with such investigation or proceeding. But in that particular case, the accused were not arrested and hence the order of the Magistrate itself allowing the prayer of the complainant by invoking the power under Section 311 A was upheld. 7. **State of U.P v. Ram Babu Misra (1980 KHC 321 = AIR 1980 SC 791)** was brought to my attention by the learned counsel for the petitioner. In that decision while dealing with Section 73 of the Evidence Act, it has been held that, The second paragraph of Section 73 enables the Court to direct any person present in Court to give specimen writings “for the purpose of enabling the Court to compare" such writings with writings alleged to have been written by such person. The clear implication of the words "for the purpose of enabling the Court Crl.M.C.1080/2020 9 to compare" is that there is some proceeding before the Court in which or as a consequence of which it might be necessary for the Court to compare such writings. The direction is to be given for the purpose of 'enabling the Court to compare' and not for the purpose of enabling the investigating or other agency 'to compare'. If the case is still under investigation there is no present proceeding before the Court in which or as a consequence of which it might be necessary to compare the writings. The language of Section 73 does not permit a Court to give a direction to the accused to give specimen writings for anticipated necessity for comparison in a proceeding which may later be instituted in the Court. But in paragraph 7 of the said judgment, the Apex Court quoted State (Delhi Admn.) v. Pali Ram, [1979] 1 SCR 931] wherein the same Bench of the Apex Court held that, a Court holding an enquiry under the Criminal Procedure Code was entitled under Section 73 of the Evidence Act to direct an accused person appearing before it to give his specimen handwriting to enable the Court by which he may be tried to Crl.M.C.1080/2020 10 compare it with disputed writings and it is distinguished in 1980 KHC 321, by finding that the present question whether such a direction, under Section 73 of the Evidence Act, can be given when the matter is still under investigation and there is no proceeding before the Court was expressly left open. More over, at the end of the said decision, there is a direction by the Apex Court as follows:- “We accordingly dismiss the appeal and while doing so we would suggest the 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. 8. It is subsequent to that Section 311A was inserted in the Code by Criminal Procedure Code (Amendment) Act, 2005, (Act 25 of 2005) dated 23.6.2005 w.e.f. 23.6.2006. Since surrender before Court can be considered as a proper arrest, the Magistrate was well within the powers under Section 311A Cr.P.C to direct the petitioners to give their signatures and handwriting for the Crl.M.C.1080/2020 11 purpose of proceedings in the case. 9. Based on the above discussion, I find no illegality or impropriety in the impugned order passed by the learned Magistrate directing the petitioners/ accused 1 to 6 to appear before the Court to give their signatures and handwriting for the purpose of proceedings in the said case. 10. In the result, Crl.M.C dismissed. Sd/- M.R.Anitha, Judge Mrcs/8.12. 12 ## Crl.M.C.1080/2020 ANNEXURES ANNEXURE A1 ANNEXURE A1 TRUE COPY OF THE PRIVATE COMPLAINT FILED BY THE 2ND RESPONDENT BEFORE THE COURT. ANNEXURE A2 TRUE COPY OF THE FIR 70/2017 OF NEDUMKANDOM POLICE STATION DATED 18/01/2017. ANNEXURE A3 TRUE COPY OF THE ORDER IN CMP NO.2333/2019 IN CC 797/2017 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, NEDUMKANDAM.