ORDER

1. The present petition under section 482 of Cr.P.C. has been preferred by the petitioner being aggrieved by the order dated 15.11.2021 passed by the First Additional Sessions Judge, Mungwali, District Ashoknagar, whereby application under section 243 of Cr.P.C. has been dismissed.

2. Precisely stated facts of the cases are that the petitioner is facing charge under sections 302, 307, 201, 147, 148, 149 of IPC and section 25/27 of the Arms Act before the trial Court. Evidence of prosecution has been concluded and thereafter, at the stage of defence evidence, the petitioner filed an application under section 243 of Cr.P.C. for issuance of process for ensuring the attendance of the defence witness i.e. handwriting expert, who prepared the report in connection with the memo (Ex.P/29) and seizure memo (Ex.P/30) allegedly signed by the petitioner, but handwriting expert gave opinion otherwise. According to him, those documents have not been signed by one and the same person who signed comparative signature and on documents marked as A-1 to A-20. The petitioner wants to call the said handwriting expert in support of his defence. The trial Court dismissed the said application, therefore, the petitioner preferred this petition before this Court.

3. Learned Public Prosecutor for the State opposed the prayer and prayed for dismissal of the petition.

4. Heard the learned counsel for the parties and perused the documents appended thereto.

5. This is the case where the petitioner filed an application under section 243 of Cr.P.C. for calling handwriting expert who gave report at the instance of the petitioner/accused only for deposition and to get the documents exhibited.

6. Apex Court in the case of Kalyani Baskar (Mrs.) v. M.S.Sampoornam (Mrs.) reported in (2007) 2 SCC 258 has taken into consideration this aspect and held that Magistrate holds an inquiry under Code of Criminal Procedure in respect of offence triable by him does not exceed his power if he directs to send the documents for enabling the same to be compared by handwriting expert. The relevant para reads as under:-

“Section 243 (2) is clear that a Magistrate holding an inquiry under the Cr.P.C. in respect of an offence triable by him does not exceed his powers under section 243(2) if, in the interest of justice, he directs to send the document for enabling the same to be compared by a hand-writing expert because even in adopting this course, the purpose is to enable the Magistrate to compare the disputed signature or writing with the admitted writing or signature of the accused and to reach his own conclusion with the assistance of the expert. The appellant is entitled to rebut the case of the respondent and if the document viz. the cheque on which the respondent has relied upon for initiating criminal proceedings against the appellant would furnish good material for rebutting that case, the Magistrate having declined to send the document for the examination and opinion of the hand-writing expert has deprived the appellant of an opportunity of rebutting it. The appellant cannot be convicted without an opportunity being given to her to present her evidence and if it is denied to her, there is no fair trial. 'Fair trial' includes fair and proper opportunities allowed by law to prove her innocence. Adducing evidence in support of the defence is a valuable right. Denial of that right means denial of fair trial. It is essential that rules of procedure designed to ensure justice should be scrupulously followed, and Courts should be jealous in seeing that there is no breach of them. We have not been able to appreciate the view of the learned Judge of the High Court that the petitioner has filed application under section 243 Cr.P.C. without naming any person as witness or anything to be summoned, which are to be sent for handwriting expert for examination. As noticed above, section 243(2) Cr.P.C. refers to a stage when the prosecution closes its evidence after examining the witnes