Point of Law : Court sitting in a jurisdiction under Section 482 Cr.P.C is not in a position to appreciate quality and quantity of evidence available before trial court.

ORDER :

Aggrieved by the order passed by the Judicial First Class Magistrate Court - I, Changanacherry on C.M.P No.840/2013 in C.C No.314/2005, the defacto complainant (PW1) has come up in this petition under Section 482 Cr.P.C.

2. The defacto complainant was the husband of the accused. He (PW1) filed a complaint before the court below alleging offences against the accused punishable under Sections 406, 420, 465, 467, 468 and 471 I.P.C. Gist of allegations is that the complainant was the owner of a vehicle bearing registration No.KL 5H-5360. He was working abroad from 1-5-2001 till 23-01-2002. During the month of May 2001, he entrusted the vehicle with its registration certificate to the accused. When he demanded to return of the vehicle and its papers, the accused refused to do so and demanded Rs.25,000/- from the defacto complainant. It is the allegation that the accused forged Form Nos.29 and 30 (Exhibits P5 and P6 series before the court below) and cheated the defacto complainant.

3. Heard the learned counsel for the petitioner and the learned counsel for the accused/respondent.

4. Learned Magistrate considered an application filed by the Assistant Public Prosecutor (APP) under Section 311A Cr.P.C. The provisions reads as follows :

“311A. 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.”

5. Learned Magistrate entered a finding that the application under Section 311A Cr.P.C can be entertained for the purpose of investigation or proceedings under the Code. It is also found that the proceeding is not “a judicial proceeding” as defined under Section 2(i) Cr.P.C. Learned Magistrate, therefore found that the application cannot be entertained. Learned counsel for the petitioner submitted that this finding of the court below is without any legal basis. Application under Section 311A Cr.P.C is intended for the purpose of any investigation or proceeding under the Code. It must be established that it is expedient to direct any person, including an accused person, to give specimen signatures or handwriting. In that event, learned Magistrate 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 as the case may be. The section contains a proviso which would say that no order under this Section shall be made unless the person has at some time been arrested in connection with such investigation or proceeding.

6. Learned Single Judge of this Court in Subin v. State of Kerala (2012(1) K.L.T 82) considered the question whether the powers of the court under Section 311A Cr.P.C can be invoked only during investigation or can it be invoked in a matter pending trial. Answering that issue, the point laid down is as follows :

“11. The words “proceeding under this Code” should receive wider meaning. If such a wider meaning is given it can be reasonably held that it includes inquiry and trial as well. Though the word 'trial' is not specifically mentioned in Section 311A, the reasonable interpretation should be that the expression 'proceeding under this Code' includes inquiry and trial. In other words, inquiry and trial are proceedings under the Code. Therefore, the argument advanced by the learned counsel for the petitioner that Section 311A has no applica