Vinod Kumar Singh vs State Of U.P. And Another
2019 Latest Caselaw 2548 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved
 
Court No. - 3								A.F.R.
 

 
Case :- MATTERS UNDER ARTICLE 227 No. - 4251 of 2018
 

 
Petitioner :- Vinod Kumar Singh
 
Respondent :- State Of U.P. And Another
 
Counsel for Petitioner :- Manish Tiwary,Ashwini Kumar Awasthi
 
Counsel for Respondent :- G.A.
 

 
Hon'ble J.J. Munir,J.

1. Whether the Magistrate can issue directions under Section 311-A Cr.P.C. to a person pending investigation of a crime to give a specimen of his signature or handwriting, if at no time he has been arrested in connection with the said crime?

2. This is the question that falls to be answered in the present petition under Article 227 of the Constitution, that is filed seeking to set aside the order dated 21.03.2018 passed by the Special Chief Judicial Magistrate, Varanasi in Case Crime no.837 of 2013, under Sections 419, 420, 467, 468, 504, 506 IPC, Police Station Rohaniya, District Varanasi, and, for reversal of the said order in effect.

3. Before adverting to the question that is required to be answered in the present case, this Court is constrained to look into the relief claimed in the present petition, that is framed as a Criminal Misc. Writ Petition, but under Article 227 of the Constitution. Without dilating much on this issue, this Court is of considered opinion that a Writ Petition under Article 227 of the Constitution, is something unknown to the Constitution of India. A Writ Petition is referable to the power of this Court under Article 226 of the Constitution of India, and, not to the power under Article 227, that has nothing to do with the Court's Writ Jurisdiction. The aforesaid difference as to the distinct and separate constitutional jurisdictions of this Court, that cannot be intermingled and invoked through a petition for a rolled up relief, has been authoritatively recognized by their Lordships of the Supreme Court in Shalini Shyam Shetti and others vs. Rajendra Shanker Patil, 2010 (6) AWC 5814 and again in Radhey Shyam vs. Chhabbi Nath, (2015) 5 SCC 423. The said issue has been dealt with by this Court in M/s. Shiv Baba Industry Lalpur vs. State of U.P., 2018 (9) ADJ 81, sketching the meandering course, the establishment of a separate identity of the two jurisdictions of the High Court has taken and the way it has come to be settled, recognizing the two as distinct and different jurisdictions, each with its own frame and appropriate form of relief. All what has been said about it in M/s. Shiv Baba Industry (supra) does not require repetition, but it must be said here that reliefs in the form claimed in the present petition are ones that can be asked for in a writ petition, and, not in a petition under Article 227 of the Constitution. However, the present petition is shown in the cause title to be a writ petition, and, not a petition or application under Article 227 of the Constitution. At the same time, the petition has been filed not under Article 226, but under Article 227. That in the considered opinion of this Court is not permissible.

4. Accordingly, this Court proceeds to treat the present petition as a petition under Article 227 of the Constitution, notwithstanding its labelling in the cause title as a writ petition and the form in which reliefs have been claimed. This course is being adopted, particularly in view of the fact that the petition has been registered as a Matter under Article 227 of the Constitution, and, has proceeded to hearing on merits, that has gone through. However, for the future, the Stamp Reporter and the office shall take care to ensure that a petition under Article 227 is appropriately labelled in the cause title, framed in that manner with appropriate reliefs, which should nowhere mention the word 'Writ', or any form of it.

5. Heard Sri Manish Tiwary, learned counsel for the petitioner, Sri C.B. Dubey, learned counsel appearing on behalf of opposite party no. 2 and Sri J.B. Singh, learned AGA along with Sri Ashutosh Diljan, learned counsel appearing on behalf of the State. A counter affidavit has been filed on behalf of the State, respondent no.1 and likewise, a counter affidavit on behalf of respondent no.2, Triloki Nath. No rejoinder affidavit has been filed.

6. The provision in the statute, that has given rise to the question formulated is Section 311-A Cr.P.C. It reads as under:

"Section 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."

7. It is the proviso to Section 311-A Cr.P.C. precisely, that has given rise to a situation on the facts of this case, where the question under consideration is required to be dealt with.

8. The facts giving rise to the present petition are these, that a registered power of attorney dated 03.10.2000 was executed by one Triloki Nath, another Kanhaiya Lal, and, still another Vipin Kumar, all brothers along with their mother, Smt. Heeramani Devi, duly signed and executed by each of them. It was admitted to registration. The power of attorney aforesaid, conferred power of disposition over property of the grantors of that power, that is to say, the four persons hereinbefore mentioned. Shorn of unnecessary detail, the petitioner in exercise of his right under the Power aforesaid, executed a sale deed in favour of some third party. While the other grantors of the Power, did not object to the exercise of rights by the petitioner under it, respondent no.2 disowned it, condemning it as a false document; a product of forgery. He proceeded to lodge an FIR against the petitioner on allegations that he had transferred property inter alia belonging to the second respondent, on the strength of a forged power of attorney giving rise to Case Crime no.837 of 2017, under Sections 419, 420, 467, 468, 504, 506 IPC, Police Station Rohaniya, District Varanasi. The FIR aforesaid was lodged on 24.09.2017. The petitioner challenged the said FIR before this Court by means Criminal Misc. Writ Petition no.23066 of 2017, wherein pending investigation, the petitioner was granted stay of arrest vide order dated 31.10.2017. In consequence, the petitioner has not been arrested during investigation, that is still pending.

9. The petitioner took a stand during investigation, as already said, that the Power is a genuine document executed by each of its makers, and, that the same had not been revoked until time that the petitioner executed deeds of sale on the strength of it. At this turn of investigation, the petitioner made an application to the Magistrate under Section 311-A Cr.P.C., invoking the Magistrate's jurisdiction to issue a direction to the Investigating Officer to secure the specimen signatures of respondent no.2, to have them compared with his disputed signatures on the power of attorney, impugned by the said respondent. The application aforesaid has come to be rejected by the learned Magistrate vide an order dated 21.03.2018, relying on the proviso to Section 311-A Cr.P.C., which says that no order shall be passed under the said Section unless the person sought to be directed has, at sometime, been arrested in connection with such investigation or proceedings. The Magistrate had taken the view that a person to whom a direction under Section 311-A Cr.P.C. can be made, has to be one who has been arrested at some point of time during investigation or proceedings, and, in that eventuality alone, jurisdiction under Section 311-A Cr.P.C. would be available to him. It is, thus, on an undisputed canvas of facts, that a pure question of jurisdiction of the Magistrate under Section 311-A Cr.P.C. as formulated has arisen. The order of the Magistrate dated 21.03.2018 is hereinafter referred to as the impugned order.

10. Sri Manish Tiwari, learned counsel for the petitioner submits that the learned Magistrate's view about the lack of jurisdiction under Section 311-A Cr.P.C. that unless the person sought to be directed has been arrested in connection with that crime or proceeding, the Magistrate would have no jurisdiction to direct, is manifestly illegal and flawed. He submits that the order impugned in no way accords with the jurisdiction of the Magistrate under the provision last mentioned. He submits that in case the said interpretation were accepted, the power to secure signatures or handwriting of the complainant, or a witness, would be rendered nugatory and the provision would be available to secure the specimen signatures and handwriting specimens of an accused alone. In the submission of Sri Tiwari, this is neither the legislative intent or the purpose of the provision. He submits that the provision has to be given its full play in order to secure evidence of any disputed signatures or handwriting of whichever party, the complainant, the accused or any witness. He has further argued that a proviso going by the settled principles of interpretation must yield to the rule of the main provision and the Court must adopt a construction that is harmonious and furthers the object of the statute, rather than to bog down the same.

11. Sri J.B. Singh, learned Additional Government Advocate as also Sri C.B. Dubey, learned counsel appearing for respondent no.2, on the other hand, have supported the impugned order to say that the same is well within jurisdiction and also within the four corners of all that is about Section 311-A Cr.P.C. He submits that Section 311-A Cr.P.C. together with its proviso form a complete legislative edict, that cannot be truncated by discounting or reading out the proviso, by invoking the principle of purposive interpretation. It is Sri Singh's submission further that a proviso is an integral part of the main provision and it has to be read, as it is. He has urged that the golden rule of construction, in interpreting a statute is to read it according to its ordinary grammatical meaning, which can be departed from in favour of the mischief rule or the rule in Heydon's case, or some other principle permitting the court to read a statute variantly alone, when a literal construction would lead to an absurd result. By absurdity of result, according to Sri J.B. Singh, is not meant the hardship or inconvenience a statute causes or the more fruitful result that a better crafted statute could achieve. That all according to the learned Additional Government Advocate is the legislative domain.

12. The aforesaid issue has arisen out of the difficulty which the proviso to Section 311-A Cr.P.C. appears to cause in limiting the otherwise wide powers under the main provision to require "any person, including an accused" to give specimen signatures or handwriting for the purposes any investigation or proceeding under the Code. It does seem at first blush that the proviso by conditioning the exercise of power to direct under the main provision any person, including an accused, to provide his specimen signature or handwriting, with the requirement that such person should have been arrested at sometime in connection with that investigation or proceeding, would certainly exclude witnesses, the complainant, or the still other and wider "any other person" from the purview of the Magistrate's jurisdiction under Section 311-A Cr.P.C. It would be limited to a narrow class of persons who are accused of the offence, and, that too, when such accused are arrested in connection with the relative investigation or proceeding, but not the other accused who have not been so arrested. This indeed would lead to the proviso controlling and limiting the operation of the principal clause of Section 311-A of the Code to an extent that it would lead to an absurd result. It is a settled principle of construction that the clauses of statute including its proviso, must be harmoniously construed in a manner that eschews an absurd conclusion.

13. In case the exception brought in through the proviso to Section 311-A is construed in the manner that no person unless arrested in connection with the inquiry or trial involved, can be directed by the Magistrate, persons like the complainant or witnesses, who would hardly ever be arrested in connection with the inquiry or trial unless they were to defy witness summons, would always be away from the Magistrate's jurisdiction under Section 311-A. This possibly could never be the legislative intent. To the understanding of the Court, and, one that is well attuned to the intended import of the proviso, is that the jurisdiction of the Magistrate under Section 311-A would be available in case of an accused alone, if he has been arrested in connection with the relative inquiry or trial, but not otherwise. The aforesaid exception to the rule conferring jurisdiction on the Magistrate under Section 311-A, engrafted through the proviso, would not apply in the case of "any other person", other than the accused. It would not apply in the case of a complainant, a witness, other than an accused. Any other construction would lead to an absurdity, which the legislature could never have intended.

14. Sri Manish Tiwari, learned counsel for the petitioner has referred to the decision of the learned Single Judge of this Court in Deepak Singh vs. State of U.P. and another, 2013(2) ACR 1941, where under similar circumstances the Magistrate had refused an application under Section 311-A of the Code seeking a direction to the first informant of the case to be summoned in court, and provide specimen of his thumb impressions and signatures to be sent for the purpose of expert opinion of the Forensic Science Laboratory, where the informant had alleged forgery of his signatures on a sale deed of which the applicant was the beneficiary. Speaking for this Court, Ramesh Sinha, J. held:

"6. Considered the submissions made by learned counsel for the parties. From the perusal of the provisions of Section 311 A Cr.P.C is absolutely clear than the Magistrate may for the purpose of any investigation or proceedings under this Code direct any person including an accused to give specimen signatures or handwriting and 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 or place specified for the Magistrate and shall give his specimen signatures or handwriting. The proviso to the aforesaid Section makes it clear that no order shall be made under the Section 311 A Cr.P.C, unless the person has had some time been arrested in connection with such investigation or proceedings, meaning thereby that if an accused of a case has been arrested in a case at any point of time then no orders shall be passed in the aforesaid Section against him for the aforesaid purpose.

7. From the perusal of the impugned order, it appears that the learned Magistrate has misread the proviso to Section 311 A Cr.P.C and had made applicable to the informant/opposite party no.2 that he has never been arrested as the said fact has not been stated by the applicant in his application. Hence it is apparent from the impugned order that the said proviso has been applicable to the complainant of the case by the Magistrate. ..........."

15. Learned A.G.A. while supporting the impugned order submits that the fact that the power of a Magistrate flows strictly from the provisions of Section 311-A of the Code, which he otherwise does not have, would lead to the inevitable conclusion that the provision has to be strictly construed and no more right can be acceded to the Magistrate, than that conferred by the statute. The proviso restricting the class of persons who can be directed to furnish samples of their signatures or handwriting to those who have been arrested in connection with the inquiry or proceedings, would render directions to any person not so arrested, manifestly illegal. He has drawn inspiration to urge the said proposition from the decision of a Full Bench of the Delhi High Court in Sapan Haldar and another vs. State, 2012 SCC OnLine Del 3078, where it has been held:

"27. Thus, with respect to a handwriting obtained from a person accused of having committed an offence or from any person during investigation, the law is entirely different vis-à-vis finger print impressions and a handwriting. With respect to handwriting neither can the investigating officer obtain a sample writing nor can even a Magistrate so direct. The Identification of Prisoners Act, 1920 is applicable only to measurements which include finger print impressions. Even with respect to finger print impressions, the weight of the judicial pronouncements leans to hold that unless there is a manner prescribed, be it under the Rules framed by the State Government or an executive instruction issued, evidence pertaining to finger print impressions obtained by the investigating officer would be inadmissible in evidence; and even when the same is provided, as held by the Supreme Court in Mohd. Aman's case (supra), to obviate any suspicion, it should be desirable that procedure prescribed under Section 5 of The Identification of Prisoners Act, 1920 should be followed.

28. There is yet another argument which needs to be considered with respect to Section 4 of The Identification of Prisoners Act, 1920. The Section empowers a police officer to take measurements of a person who has been arrested in connection with an offence punishable with rigorous imprisonment for a term of one year or upwards. Ex-facie, the Section would have no application where the person is suspected of having committed an offence which is punishable with death or imprisonment for life, as was held by a Division Bench of the Bombay High Court in the decision reported as ILR 1983 Bom. 1508; Nizammuddin Usman v. State of Maharashtra.

29. We note that the legislature has taken corrective action, when by virtue of Act No. 25 of 2005, with effect from June 23, 2006, Section 311A has been inserted in the Code of Criminal Procedure, 1973 and has empowered a Magistrate to direct a person accused to give specimen signatures or handwriting. Section 311A reads as under:--

"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."

30. Thus, with effect from June 23, 2006 the legislative empowerment has empowered the Magistrate concerned with reference to signatures and handwriting; the lacuna in the law which was noted by the Supreme Court in the year 1980 when Ram Babu Mishra's case (supra) was decided has been removed.

31. We answer the reference as follows:--

(i) Handwriting and signature are not measurements as defined under clause (a) of Section 2 of The Identification of Prisoners Act, 1920. Therefore, Section 4 and Section 5 of The Identification of Prisoners Act, 1920 will not apply to a handwriting sample or a sample signature. Thus, an investigating officer, during investigation, cannot obtain a handwriting sample or a signature sample from a person accused of having committed an offence.

(ii) Prior to June 23, 2006, when Act No. 25 of 2005 was notified, inter-alia, inserting Section 311A in the Code of Criminal Procedure, 1973, even a Magistrate could not direct a person accused to give specimen signatures or handwriting samples. In cases where Magistrates have directed so, the evidence was held to be inadmissible as per the decision of the Supreme Court in Ram Babu Mishra's case (supra). According to Section 73 of the Indian Evidence Act, 1872, only the Court concerned can direct a person appearing before it to submit samples of his handwriting and/or signature for purposes of comparison."

16. The principle has not been very precisely culled out in the aforesaid Full Bench Decision of their Lordships of the Delhi High Court because the issues there arose in a different context, that were concerned with the admissibility of finger prints given by an accused during investigation under Section 4 of the Identification of Prisoners Act without the order of a Magistrate under Section 5 of the said Act, where the issue examined also was regarding the distinction between the powers of the police with regard to the taking of measurement and finger prints of an accused during investigation on the one hand, and, taking samples of his signatures or handwriting on the other. It was held that the police had no powers to take samples of handwriting or signatures, without the order of the Magistrate, and, that the Magistrate had acquired the said jurisdiction under Section 311-A of the Code w.e.f. 23.06.2006 upon enforcement of Act no.25 of 2005; prior to that the Magistrate too did not have power to direct an accused to give samples of signatures or handwriting to the police in aid of investigation. Thus, the issue, in question here, did not directly fall for consideration of the Full Bench.

17. Even if the submission of the learned Government Advocate, based on a remote reasoning inferable from the decision of their Lordships in Sapan Haldar (supra) were to be accepted, the proposition based on the said decision identical in terms to the one now canvassed by the learned Government Advocate, has been considered and repelled by a learned Single Judge of the Madras High Court in Babitha Surendran vs. State rep by Inspector of Police, 2015 CriLJ 5016, where P.N. Prakash, J. held:

"......... If the opinion of the Full Bench of the Delhi High Court is to be accepted, then in every case, the police will have to necessarily arrest the accused before making an application under Section 311ACr.P.C. as set out in the proviso to Section 311A Cr.P.C. It is trite law that arrest is not compulsory in every case as held in Joginder Kumar vs. State of U.P. [AIR 1994 SC 1349]. If a Police Officer, as pointed out by me in the illustration given above, consciously decides to follow the Supreme Court dictum in Joginder Kumar's case and does not effect arrest, then will he be precluded from obtaining specimen handwritings and signatures from the accused? If the Delhi Full Bench judgment is to be followed, then it would lead to anomalous results. The Police will have to willy nilly arrest a person if they have to obtain specimen handwritings and signatures under Section 311A. The effect of the proviso to Section 311A has not been discussed by the Delhi Full Bench."

18. Again, faced with an objection by an accused, that the direction issued to him to give specimen of his signatures issued by a Magistrate, on an application by the police, where the accused was charged by the complainant of impersonation to execute a registered sale deed of his property, based on the proviso to Section 311-A of the Code on foot of the fact that he had not been arrested, a learned Single Judge of the Madras High Court in Christopher Sam Miller vs. The Inspector of Police, District Crime Branch, Nagarcoil, Kanyakumari Distrct, Criminal Original Petition (MD) No.9985 of 2011, decided on 21.11.2017, held thus:

"14. On perusal of the aforesaid decisions, it is clear that a proviso is meant to be an exception to something within the main enactment or to qualify something enacted therein, but for the proviso it would be within purview of the enactment. The Code of Criminal Procedure is a procedural law and it is not substantial (sic) law. The learned counsel for the petitioner mainly relied on Proviso to Section 311-ACr.P.C. When the said Proviso states that a person must be arrested for some time in connection with such investigation or proceeding, in the present case, the petitioner is neither arrayed as an accused nor a witness. The learned counsel for the petitioner relied on the said Proviso without mentioning the main enactment of When (sic) there is no doubt that the main provision is unambiguous and clear, its effect and tenor cannot be cut down by the Proviso. The proviso appended to Section 311A of Code must be read as a whole along with Section 311-A of the Code and it cannot be read in isolation. The second point arise in this petition is answered accordingly."

19. Thus considered, the operation of the proviso to Section 311-A of the Code has to be restricted to the case of an accused, so as to avoid an absurd result. This appears to be the clear legislative intent also, as already analyzed.

20. In the result, this petition succeeds and is allowed. The impugned order dated 21.03.2018 passed by the Special Chief Judicial Magistrate, Varanasi in Case Crime no.837 of 2017, under Sections 419, 420, 467, 468, 504, 506 IPC, Police Station Rohaniya, District Varanasi, is hereby set aside and reversed. The application dated 05.02.2018 on the file of the learned Magistrate (Annexure-5 to the petition) stands allowed.

Order Date :- 5.4.2019

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