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Madhya Pradesh High Court · body

2024 DIGILAW 583 (MP)

Akil Ahmed Ansari v. State of M. P.

2024-08-28

SUBODH ABHYANKAR

body2024
ORDER 1. This petition has been filed by the petitioner under section 482 of Cr.P.C. against the order dated 25.6.2024, passed by XXII Additional Sessions Judge, Indore in ST No.04/2021 whereby the application filed the Investigating Officer for obtaining the specimen signature of the petitioner in the manner in which it is signed in the questioned documents (in the name of complainant Masrur Ahmed Khan) has been allowed. 2. In brief, the facts of the case are that the petitioner is facing the aforesaid trial under section 420, 467, 468, 471 and 120B of IPC registered at Crime No.525/2019 in which, it is alleged that the petitioner opened an account in the name of one Masrur Ahmed Khan, and obtained a sum of Rs.1,78,65,560/- in the aforesaid account by selling the property lying in the name of the complainant, and embezzled the same. In the aforesaid trial, an application was been filed by the Investigating Officer that the petitioners specimen signature would again be required. The application has been filed on the basis of a memo dated 29/04/2024, issued to the Deputy Commissioner of Police, Zone-13 by the State Examiner of the questioned documents, Bhopal, in which, it was requested that the petitioner?s specimen signatures, identical to that of the questioned signature Q2 and Q3, which are the account opening documents, be again sent,. 3. Shri Ajay Bagidia, learned senior counsel appearing for the petitioner has submitted that the aforesaid order passed by the trial Court allowing the aforesaid application is in violation of the fundamental rights of the petitioner as he cannot be allowed to give the specimen signature identical to that of the specimen signature Q2 and Q3 as it would amount the self-incrimination. In support of his submissions, that there is no subsequent stage in which the documents can be filed by the prosecution, learned counsel has relied upon the decision rendered by the Supreme Court in the case of Vinubhai Haribhai Malviya and others v. State of Gujarat and others reported as AIR 2019 SC 5233 . Thus, it is submitted that the petition may be allowed, and the impugned order be set aside. 4. Thus, it is submitted that the petition may be allowed, and the impugned order be set aside. 4. Shri Pranay Joshi, learned counsel appearing for the State, on the other hand, has opposed the prayer and it is submitted that the application is filed only with a limited prayer to obtain the specimen signatures as the earlier signatures obtained from the present petitioner were found to be insufficient. In support of his submission, counsel has relied upon the decision rendered by the High Court of Kerala in the case Faizal K.V. v. State of Kerala and another passed CRL. MC No.5660 of 2023 dated 12.7.2023. 5. Heard learned counsel for the parties and perused the record. 6. On perusal of the record, it is found that the application dated 29.4.2024, to obtain the specimen signature of the petitioner was in fact addressed to the Deputy Commissioner of Police, Zone-3, Indore by the Assistant State Examiner, Police Headquarter, Bhopal and subsequent to that, the letter dated 20.6.2024 was also sent by the State Examiner of questioned document, addressed to the Additional Sessions Judge, Indore, seeking specimen signature and specimen handwriting of the petitioner/accused. It is also found that as per the aforesaid letter, the specimen signature and handwriting, which were earlier obtained from the petitioner have been found to be inadequate in quantity, hence the subsequent specimen signatures have been sought. Thus, by no stretch of imagination it can be said that the prosecution was trying to further investigate the matter or file any new document at the subsequent stage infringing upon the fundamental rights of the petitioner, or in any manner compelling him to give incriminating evidence against him. The contention of the learned senior counsel for the petitioner that the petitioner cannot be compelled to replicate the signature of the complainant is also misconceived as the signatures are required to be obtained by the handwriting expert as per his technical requirement, and thus, in such circumstances, it cannot be said that the petitioner was directed to be a witness against himself. In this regard, reference may be had to a decision rendered by the learned Single Judge of the Kerala High Court at Ernakulam in the case of Faizal K.V. (supra), the relevant para of the same read as under:- “9. In this regard, reference may be had to a decision rendered by the learned Single Judge of the Kerala High Court at Ernakulam in the case of Faizal K.V. (supra), the relevant para of the same read as under:- “9. The apex Court ordered that suitable legislation be made on the analogy of section 5 of the Identification of Prisoners Act to provide for the investiture of Magistrates with the power to issue directions to any person, including an accused person, to give specimen signatures and writings. It is in pursuance to the said directions that section 311A was incorporated. The said provision reads thus: Section 311A: Power of Magistrate to order the 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. 10. Under the above provision, the Magistrate of the First Class is empowered to may order a person, including an accused person, to give specimen signatures or handwriting if the Magistrate is satisfied that it is expedient to do so for the purposes of any investigation or proceeding under the Code of Criminal Procedure. The person to whom the order is made must be produced or attend at the time and place specified in the order and give their specimen signatures or handwriting. No order may be made under this section unless the person has at some time been arrested in connection with the investigation or proceeding. xx xx xx xx xx xx xx xx xx xx xx xx 18. After referring to the law laid down by the Eleven Judge Bench decision of the apex Court in State of Bombay v. Kathi Kalu Oghad, the following questions formulated by the larger Bench were noticed in paragraph No. 77 of the judgment. 77. xx xx xx xx xx xx xx xx xx xx xx xx 18. After referring to the law laid down by the Eleven Judge Bench decision of the apex Court in State of Bombay v. Kathi Kalu Oghad, the following questions formulated by the larger Bench were noticed in paragraph No. 77 of the judgment. 77. After adverting to various factual aspects, the larger Bench formulated the following questions for consideration : ( Kathi Kalu Oghad case [ AIR 1961 SC 1808 : (1961) 2 Cri LJ 856 : (1962) 3 SCR 10 ] , AIR pp. 1810 & 1812, paras 2 & 4) “ 2 . … On these facts, the only questions of constitutional importance that this Bench has to determine are; ( 1 ) whether by the production of the specimen handwritings, Exts. 27, 28 and 29, the accused could be said to have been „a witness against himself? within the meaning of Article 20(3) of the Constitution; and ( 2 ) whether the mere fact that when those specimen handwritings had been given, the accused person was in police custody could, by itself, amount to compulsion, apart from any other circumstances which could be urged as vitiating the consent of the accused in giving those specimen handwritings. … *** *** *** 4 . … The main question which arises for determination in this appeal is whether a direction given by a Court to an accused person present in court to give his specimen writing and signature for the purpose of comparison under the provisions of section 73 of the Evidence Act infringes the fundamental right enshrined in Article 20(3) of the Constitution.” The following conclusion/answers are relevant : (AIR pp. 1814-17, paras 10-12 & 16) “ 10 . … „Furnishing evidence? in the latter sense could not have been within the contemplation of the Constitution-makers for the simple reason that—though they may have intended to protect an accused person from the hazards of self-incrimination, in the light of the English law on the subject—they could not have intended to put obstacles in the way of efficient and effective investigation into crime and of bringing criminals to justice. The taking of impressions of parts of the body of an accused person very often becomes necessary to help the investigation of a crime. The taking of impressions of parts of the body of an accused person very often becomes necessary to help the investigation of a crime. It is as much necessary to protect an accused person against being compelled to incriminate himself, as to arm the agents of law and the law courts with legitimate powers to bring offenders to justice. … efficient and effective investigation into crime and of bringing criminals to justice. 11 . … When an accused person is called upon by the Court or any other authority holding an investigation to give his finger impression or signature or a specimen of his handwriting, he is not giving any testimony of the nature of a „personal testimony?. The giving of a „personal testimony? must depend upon his volition. He can make any kind of statement or may refuse to make any statement. But his finger impressions or his handwriting, in spite of efforts at concealing the true nature of it by dissimulation cannot change their intrinsic character. Thus, the giving of finger impressions or of specimen writing or of signatures by an accused person, though it may amount to furnishing evidence in the larger sense, is not included within the expression „to be a witness?. 12 . … A specimen handwriting or signature or finger impressions by themselves are no testimony at all, being wholly innocuous because they are unchangeable except in rare cases where the ridges of the fingers or the style of writing have been tampered with. They are only materials for comparison in order to lend assurance to the court that its inference based on other pieces of evidence is reliable. They are neither oral nor documentary evidence but belong to the third category of material evidence which is outside the limit of „testimony?. *** *** *** 16 . In view of these considerations, we have come to the following conclusions— ( 1 ) An accused person cannot be said to have been compelled to be a witness against himself simply because he made a statement while in police custody, without anything more. *** *** *** 16 . In view of these considerations, we have come to the following conclusions— ( 1 ) An accused person cannot be said to have been compelled to be a witness against himself simply because he made a statement while in police custody, without anything more. In other words, the mere fact of being in police custody at the time when the statement in question was made would not, by itself, as a proposition of law, lend itself to the inference that the accused was compelled to make the statement, though that fact, in conjunction with other circumstances disclosed in evidence in a particular case, would be a relevant consideration in an enquiry whether or not the accused person had been compelled to make the impugned statement. ( 2 ) The mere questioning of an accused person by a police officer, resulting in a voluntary statement, which may ultimately turn out to be incriminatory, is not „compulsion?. ( 3 ) „To be a witness? is not equivalent to „furnishing evidence? in its widest significance; that is to say, as including not merely making of oral or written statements but also production of documents or giving materials which may be relevant at a trial to determine the guilt or innocence of the accused. ( 4 ) Giving thumb impressions or impressions of foot or palm or fingers or specimen writings or showing parts of the body by way of identification are not included in the expression „to be a witness?. ( 5 ) „To be a witness? means imparting knowledge in respect of relevant facts by an oral statement or a statement in writing, made or given in Court or otherwise. ( 6 ) „To be a witness? in its ordinary grammatical sense means giving oral testimony in court. Case law has gone beyond this strict literal interpretation of the expression which may now bear a wider meaning, namely, bearing testimony in court or out of court by a person accused of an offence, orally or in writing. 7. To bring the statement in question within the prohibition of Article 20(3), the person accused must have stood in the character of an accused person at the time he made the statement. It is not enough that he should become an accused, any time after the statement has been made.” (Emphasis supplied) 7. 7. To bring the statement in question within the prohibition of Article 20(3), the person accused must have stood in the character of an accused person at the time he made the statement. It is not enough that he should become an accused, any time after the statement has been made.” (Emphasis supplied) 7. On perusal of the aforesaid decision, it also reveals that various judgements of the Supreme Court have also been referred to, in which, it has been categorically held that giving specimen signature would not amount to violation of any fundamental right of a person specially when the said procedure is also provided under section 311A of Cr.P.C. 8. So far as the decision relied upon by the Senior Counsel for the petitioner in the case of Vinubhai Haribhai Malviya (supra) is concerned, the same is distinguishable as the said case relates to further investigation and also touching upon the aspects of fair investigation, whereas, in the case at hand, the issue is whether the investigating officer can obtain additional specimen signature or handwriting if the earlier obtained specimen were found to be inadequate. 9. It is but obvious that if the petitioner has forged the signature of the complainant in any manner, in that case, he would be required to give his specimen signature/handwriting by writing the name of the complainant or to sign in the manner in which it is done in the questioned document/s, and only then the handwriting expert can find out if the signatures are forged by the petitioner. 10. At the cost of repetition, this Court is also of the considered opining that filing of such an application in the middle of the trail would not amount to bring any new evidence, as admittedly the petitioner?s specimen signatures were earlier obtained, however, the same were found to be inadequate, which led the prosecution to file the aforesaid application. 11. In such circumstances, no case for interference is made out as the impugned order does not appear to have suffered from any illegality. 12. Accordingly, the petition, sans merits, stands dismissed.