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KERALA HIGH COURT
A. Hariprasad, J.
Radhakrishnan —Petitioner
versus
Sanju Thuruthikunnel —Respondent
Cri.M.C. No. 3308 of 2011 & 2631 of 2012
Decided on 18.11.2013
For the Petitioner:S. Rajeev and K.K. Dheerendrakrishnan, Advocates.
For the Respondents: Paul K. Varghese and Public Prosecutor (K. Abboobacker)
IMPORTANT POINTS
(1) Section 73 of the Act does not prescribe any specific time for invocation of the court’s power.
(2) 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.
Headnote:(i) Criminal Procedure Code, 1973—Section 311A—Petition by complainant to obtain handwriting of accused for comparing with disputed handwriting—Accused persons were alleged to have mis-appropriated funds of Gramin Panchayat by forgery and Courts took cognizance of offences under Sections 406, 465 and 120B r/w 34 IPC in a complaint case—Magistrate dismissed application—Revision—Arrest of accused in connection with investigation or proceedings of the case was essential for invocation of power under Section 311A CrPC—Accused were not arrested in the case and Magistrate was right in disallowing the prayer of complainant.
(ii) Evidence Act, 1872—Section 73, and 45 and 47—Court can direct any person present in Court to write any words or figures for enabling court to compare it with words or figures alleged to have been written by such person—Provision does not prescribe any specific time for invocation of court’s power.
Result: Petition disposed of.
ORDER (COMMON)
A. Hariprasad, J.—Petitions filed under Section 482 of the Code of Criminal Procedure, 1973 (in short, “Cr.P.C.”).
2. Petitioners in Cri M.C. No. 3308 of 2011 are the accused in a complaint case filed by the 1st 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 Rs. 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 abovesaid 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. Annexure-Il 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. Cri 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 Cri. 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 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 Section 311 A inserted by Cr.P.C. (Amendment) Act, 2005 with effect 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 Section 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 Section 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
