102-NLR-NLR-V-66-K.-MAILVAGANAM-and-others-Petitioners-and-T.-KANDIAH-Sub-Inspector-of-Polic.pdf
Mailvaganam v. Kandiah
427
1964Present: Alles, J,
K. MAILVAGANAM and others, Petitioners, andT. KANDIAH (Sub-Inspector of Police). Respondent
S. C. 136164—Application for Revision in M. C. Mallakam, 8309
Commission of cognizable offence—Report of police officer to Magistrate—Specimenhandwriting of suspect-—Power of Magistrate to compel suspect to give thespecimen on application of prosecuting officer—Stage at which such applicationmag be made—Criminal Procedure Code, ss. 121 (2), 148 (J)—EvidenceOrdinance, s. 73 (2).
After a police officer has filed a report in terms of section 121 (2) of theCriminal Procedure Code that he has reason to suspect the commission of acognizable offence, it is open to the prosecuting officer, by virtue of section73 (2) of the Evidence Ordinance, to move the Court to consider whether it isnecessary to exercise its power to compel the suspects to give specimens oftheir handwriting for the purposes of comparison. The application may bemade by the prosecuting officer even before the commencement of proceedingsunder section 148(1) of the Criminal Procedure Code.
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ALLES, J.—Mailvaganam v. Kandiah
Application to revise an order of the Magistrate’s Court, Mallakam.K. Sivasubramaniam, for the Petitioners.
J.0. T. Wee.raratne, Senior Crown Counsel, with Shiva Pasupati,Crown Counsel, for the Respondent.
Cur. adv. vult.
September 8, 1964. Alles, J.—
On the 4th of November, 1963, the respondent to the present applicationfiled a report under section 121 (2) of the Criminal Procedure Code in theMagistrate’s Court of Mallakam to the effect that he had inquired into thecomplaint of the Assistant Commissioner of Co-operative "Development,Jaffna West, made on 7ti) March, 1963, that the 1st petitioner, theManager of the Multi-Purpose Co-operative Society, Pallai, Veeman-kamam, had misappropriated the funds of the Society involving a sum ofBs. 11,516’84 and that offences under Sections 386, 391 and 467 of thePenal Code were disclosed. He also moved Court for notices on thepetitioners to appear in Court and give specimens of their handwritingto be forwarded to the Examiner of Questioned Documents along withthe ledger, pass books and receipt books alleged to have been maintainedby the 1st petitioner when he was employed as Manager of the Society.
On this application the Magistrate issued notices on the petitionersto appear in Court on 8th November, 1963. On 8th November thepetitioners appeared in Court and Counsel appearing on their behalfoojected to the suspects being compelled to give specimens of their hand-writing and asked for a date to make his submissions. Submissions weremade by Counsel cn subsequent dates and the Magistrate by his order of28th March, 1964, over ruled the objections of Counsel and directed thesuspects to appear in Court on lltb April, 1964, for the purpose ofobtaining their handwriting in Court.
On the same day, Proctor for the petitioners forwarded an applicationto this Court praying that this Court do revise the order of the Magistratedirecting the petitioners to give specimens of their handwriting in Courtbefore proceedings were instituted by the police under Section 148 (1)of the Criminal Procedure Code.
Counsel for the petitioners made two submissions before me. Hisfirst submission was that under Section 73 (2) of the Evidence Act itwas not open to the Court to direct fbe suspects to give specimens of theirhandwriting on the application of the police. In the alternative hecontended that even if his submission on this point failed it was notopen to the police to make such an application before the commencementof proceedings under Section 148 (1) of the Criminal Procedure Code.
With regard to the first submission, he contended that when the Courtentertained the application of the police it was tantamount to the Courttaking a part in the police investigations—a procedure which, he submitted,
ALLES, J.—Mailvaganam v. Kandiah
429
was not warranted by law. According to him, under Section 73 (2)the Court should act ex mero motn and not at the instance of the parties-He did not argue, and indeed it was not open to him to do so in viewof the plain language of the section, that the Court had no right tocompel the suspects to give specimens of tbeir handwriting in Court.This right is one that has been recognised both under the English Law andour law (Vide Taylor on Evidence, Vol. 2, 12th Edn., paragraph 1871,Phipson on Evidence, 9th Edn., page 117, and King v. Suppiah1).
It seems to me that whether the Court acts ex mero motn or is movedto do so at the instance of one of the parties the same result is contem-plated. In eithe. event the Court has to consider whether it is necessarythat the handwriting of the suspects should bo obtained for the purposesof comparison and if the Court is so satisfied a direction must be madeby the Court. Does it matter then, whether the Court comes to thatconclusion ex mero motn from an examination of the police report or ismoved to do so on the application of the police ?
Seotion 73 (2) of the Act reads as follows :—
“ The Court may direct any person present in Court to write anywords or figures for the purpose of enabling the Court to compare thewords or figures alleged to have been written by such person. ”
The words of the section are very wide and gives the Court the powerto compel any person present in Court, including an accused person, togive a specimen of his handwriting for the purpose of enabling the Courtto compare the handwriting of the suspect w ith the impugned writing.It seems to me that the section lays emphasis more on the power of theCourt to compel a suspect to give his handwriting rather than the rightof the parties to seek the intervention of Court. If the Court considersthat action under Section 73 (2) is not called for in the particular circum-stances of the case it wall refrain from taking action, whether the appli-cation is made by the parties or not. This is precisely what was held inthe case of State v. Poonamchand2, on which Counsel strongly relied insupport of his contention that it was not open to the Court to act underSection 73 (2) on the application of the parties.
In the Bombay case proceedings were instituted under a special tryingMagistrate in respect of offences committed by 48 persons between1.1.45 and 1.4.56. After 222 witnesses were examined the prosecutionled the evidence of a handwriting expert, Mr. M. B. Dixit. After hisexamination was terminated, the prosecution tendered an applicationon 14 4.56 in the following terms :—
“ Witnesses have been examined in order to prove the signaturesand also the handwriting. Number of such witnesses have delibe-rately avoided to prove such handwriting and signatures. It has hencebecome very necessary to secure the attendance of all the accused in
1 (1930) 31 N. L. R. 435.
a (1958) A. I. R. (Bombay) page 207.
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ALiL.ES, J.—Mailvaganam v. Kandiah
Court and then to direct them to write over their signatures as well aswritings for the purpose of comparison. And after such signatures andwritings are secured, the witness Shri M. B. Dixit may be asked toexamine the writings and signatures and then depose about the resultof such examination …”
To this application the accused took strong objection. Apart fromgrounds of delay and alleged harassment of the accused, they statedthat the application was not maintainable in law, was against the prin-ciples of natural justice, and that the accused could not be called uponat that stage to sign or write anything in the presence of the Court. Thetrying Magistrate allowed the application, but the Additional SessionsJudge recommended to the High Court of Bombay that the order of theMagistrate should be set aside. It was urged before the AdditionalSessions Judge and the High Court that Section 73 (21 could not be usedin the manner in which the trying Magistrate had used it and that thepower could only be used by the Court itself and not at the instance ofthe prosecution.
Counsel for the petitioners before me relied on the following observations0f the High Court in support of his submission :—
“ It appears to me ”, said the Judge, “ that in terms, this clause(Section 73 (2) ) limits the power of the Court to directing a personpresent in Court to write any words or figures only where the Courtitself is of the view that it is necessary for its own purposes to takesuch writing in order to com^ are the words or figures so written withany words or figures alleged to have been written by such person. Thepower does toot extend to permitting one or other party before the Courtto ash the Court to take such writing for the purpose of its evidence or itsown case. ”
The learned Judge of the Bombay High Court in support of thisproposition cites the following observation of Mr. Justice Mookerjee ofthe Calcutta High Court in the case of Hiralal Agarwalla v. The State1:—
“ Section 73 of the Indian Evidence Act does not entitle the Courtto assist a party to the proceedings. It entitles the Court to assistitself to a proper conclusion in the interests of justice. ”
It was argued on behalf of the prosecution in that case that as theorder was one which the trying Magistrate himself had passed he musthave been satisfied that the order was necessary. The High Court,however, was of the view that the facts strongly militated against thisargument. Having reiterated all the relevant facts, the Court came tothe conclusion “ that the circumstances did not indicate that the Courtwas independently asking for the handwritings to be taken in order toenable it to do justice, but on the contrary they indicate that the orderwas passed in aid of the prosecution and on their application of 14.4.56. ”
1 61 Cal. W. N. 691.
ALLES, J.—Mailvaganam v. Kandiah
431
It seems to me that in the particular circumstances of that case it wasapparent that the Court had not independently considered whether theapplication under Section 73 was necessary. That application was madenot to enable the Court to compare the handwriting of the suspects withthe impugned handwriting, but to enable the prosecution to do so andobtain an opinion from the handwriting expert. If the citation is authorityfor the proposition that in every case an application under Section 73 (2)cannot be made by a party to the proceedings but must be madeex mero motu by the Court, I would respectfully disagree. I am, therefore,of the view that the authority cited by learned Counsel for the petitionershas no application to the facts of the present case.
Secondly, Counsel submitted that even if the Court was entitled todeal with an application under Section 73 (2) at the instance of a partyto the proceedings it was premature to make such an application beforeproceedings were instituted under Section 148 (1) of the Criminal ProcedureCode. There is nothing in the section which specifies the stage at whichan application should be made and in the absence of any such referenceit will be open to the Magistrate to compel any person to give his hand-writing in Court either before or after proceedings are instituted underSection 148 (1).
As Counsel for the Crown submitted in the argument before me theappropriate stage at which such an application should ordinarily bemade is before the institution of proceedings in Court. Sometimes theevidence elicited under Section 73 (2) may inure to the benefit of thesuspect. For instance, if the main evidence depends on the comparisonof handwriting and the report is favourable to the suspects the necessityfor action under Section 148 (1) might never arise. When a report ismade by the police under Section 121 (2) of the Criminal Procedure Codethe Court is seised of the offence and the alleged offenders and it is theduty of the Court to assist the police in the course of the investigationwhenever that assistance is needed. The Court has ever to be vigilantagainst the exercise of arbitrary authority by the police and it is for thatreason that there are salutary provisions of the law which require thepolice to seek the intervention of the Court where there is a possibilityof an encroachment on the rights of the subject. For instance, theintervention of the Court is necessary for the issue of a search warrant(Section 68), or where the police consider it necessary to search any place(Section 124 (1) ), or where the investigation cannot be completed within24 hours (Section 1264.). Under Section 419 of the Criminal ProcedureCode, the seizure of property suspected to be stolen or found under circum-stances which create a suspicion of the commission of any offence mustbe forthwith reported to the Magistrate. These are all steps takenbefore the institution of proceedings under Section 148 (1) of the CriminalProcedure Code.
The entire scheme of the Criminal Procedure Code makes it incum-bent on the investigating authorities, once it has made a report to theMagistrate having jurisdiction regarding the commission of a cognizable
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offence, to keep in close touch with the Magistrate at every stage of theinvestigation. The Magistrate is required to give every assistance to thepolice in accordance with the provisions of the law, and at the same timeto ensure that the rights of the subject are not unnecessarily infringedby the arbitrary exercise of the powers of tho police. In a non-summarycase there has to be close co-operation between tho police and theMagistrate until the case is committed for trial. (Vide Section 392 ofthe Criminal Procedure Code.)
When one examines the provisions of Section 73 (2) of the EvidenceAct, it provides for the handwriting of a suspect to be taken before theCourt. Although there is no objection in law to a police officer obtaininga specimen of the suspect’s handwriting outside Court, a prudentpolice officer would always seek the assistance of Court for such a purposeand the stage at which such an application may be made with advantagewould be prior to the institution of proceedings in Court. There is amistaken belief that when a suspect’s handwriting is taken in Court thatit Avould tend to incriminate him. That is not the case. As LyallGrant J. said in Ki,uj v. Suppiah “it is not a question of a confession orstatement by the accused, it is one of identification ”. The same viewwas taken by the Full Bench of the Burma High Court in King Emperorv. Tun Hiding1. There is therefore nothing objectionable in an appli-cation being made by the prosecution under Section 73 (2) of the EvidenceAct. The prosecuting officer does so in order that the Court may, afterconsidering the merits of the application and being satisfied in the interestsof justice that the application should be granted, compel a suspect togive a specimen of his handwriting in Court. I am, therefore, of thevew that both submissions of learned Counsel for the petitioners are notentitled to succeed and that the Magistrate wras right in over-ruling theobjection of Counsel.
Before I conclude I wish to state that as a result of tho present appli-cation, which in my view is without merit, the proceedings before theMagistrate have been delayed for nearly five months. The offences arealleged to have been committed prior to I960, the complaint to the policewas made on the 7th of March, 1963, and the preliminary inquiry hasnot yet commenced. The offences are serious ones involving the loss of alarge sum of money belonging to the public funds. I have dealt with thepresent application as expeditiously as possible and I trust that the policeand the Magistrate will exercise the same expedition in bringing thepreliminary inquiry to a speed}' conclusion.
The application in revision is dismissed.
Application dismissed.
1 {1326) 26 Cr. Law Joartutl Rtporln, page. 108.