The admissibility of handwriting expert reports under Section 293 Cr.P.C. and the liability of co-participators in achieving the common goal of the conspiracy.

ORDER

Yogesh Khanna, J. - This petition challenges the impugned order dated 28.10.2020 whereby the charge was directed to be framed against the petitioner. It also challenges an order dated 30.01.2021 whereby the formal charges were framed against the petitioner herein.

2. The brief facts are on 31.12.1983 the society namely M/s.Anshika Co-operative Group Housing Society Ltd. was formed. On 27.01.1993 it was wound up. On 19.04.1999 an application was made to revive the said society and ultimately on 28.01.2000 it was revived. The allegations are of conspiracy to get the society revived so as to grab the land belonging to it.

3. It is submitted by the learned senior counsel for the petitioner the petitioner herein has no role in the revival of the society or forgery of documents, hence the charge must go.

4. Vide an order dated 20.05.2021 of this Court the CBI/respondent was directed to file a reply as to if there is any other evidence, besides the handwriting expert report against this applicant. The allegations against the applicant are he had signed documents at point Q-16, Q-139 and Q-140 viz. a letter and an affidavit. It is argued GEQD report, signed by an Assistant Government Examiner, even otherwise is not per se admissible under Section 293 Cr.P.C. The section is as under:-

"29 3. Reports of certain Government scientific experts.

(1) Any document purporting to be a report under the hand of a Government scientific expert to whom this section applies, upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceeding under this Code, may be used as evidence in any inquiry, trial or other proceeding under this Code.

(2) The Court may, if it thinks fit, summon and examine any such expert as to the subject- matter of his report.

(3) Where any such expert is summoned by a Court and he is unable to attend personally, he may, unless the Court has expressly directed him to appear personally, depute any responsible officer working with him to attend the Court, if such officer is conversant with the facts of the case and can satisfactorily depose in Court on his behalf.

(4) This section applies to the following Government scientific experts, namely:-

(a) any Chemical Examiner or Assistant Chemical Examiner to Government;

(b) the Chief Inspector of- Explosives;

(c) the Director of the Finger Print Bureau;

(d) the Director, Haffkeine Institute, Bombay;

(e) the Director 1 , Deputy Director or Assistant Director of a Central Forensic Science Laboratory or a State Forensic Science Laboratory;

(f) the Serologist to the Government. "

5. It is argued the Assistant Government Examiner is not included under sub section (4) of Section 293 Cr.P.C., hence his report is not admissible in evidence and the CBI had rather failed to place on record any notification to show this report would fall within the ambit of Section 293 Cr.P.C.

6. It is also the submission of the learned senior counsel for the petitioner the witnesses viz PW-36 Amit Saxena; PW-58 Smt.Poonam.V.K.; PW-59 Murali N.Khemchandanil PW-60 Nitin Gulati and PW-76 Sanjeev Nayyar do not provide any linkage with the petitioner much less of any conspiracy. Their statements are read and perused.

7. The learned senior counsel for the petitioner relied upon Sandeep Dixit vs. State 2012 SCC Online Del 2430 which held as under:

9. Hence I am in agreement with the contention of the learned counsel for the petitioner that the learned ASJ has gravely erred in not appreciating the fact that the opinion of an expert under section 45 of the Indian Evidence Act is merely an opinion and not a conclusive proof of the validity of the handwriting in question and the learned ASJ exceeded its jurisdiction by ordering the framing of charge against the petitioner merely on the report of the GEQD without corroboration.

and in Rajeshbhai Muljibhai Patel and Others vs. State of Gujarat and Another (2020) 3 SCC 794 the Court held:

"21. It is also to be pointed out that in terms of