Vinod Kumar S/O Thimmappa vs The State Through
2021 Latest Caselaw 6227 Kant

           IN THE HIGH COURT OF KARNATAKA
                  KALABURAGI BENCH
                           TH
                                                            R
       DATED THIS THE 16        DAY OF DECEMBER 2021

                       BEFORE

         THE HON'BLE MR. JUSTICE H.P.SANDESH

           CRIMINAL PETITION No.201543/2021

BETWEEN:

SRI VINOD KUMAR
S/O THIMMAPPA
AGED ABOUT 25 YEARS
OCC: AGRICULTURE
R/O CHANDRABANDA VILLAGE
TQ: & DIST. RAICHUR - 584 106
                                     ...PETITIONER
(BY SRI ARUNKUMAR AMARGUNDAPPA, ADVOCATE)

AND:

THE STATE THROUGH
YAPALADINNI POLICE STATION
REP. BY ADDL. STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
KALABURAGI BENCH - 585 102
                                            ...RESPONDENT
(BY SRI GURURAJ V. HASILKAR, HCGP)

   THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C. PRAYING THIS COURT TO QUASH THE ORDER
DATED 25.08.2021 PASSED IN CRL.R.P.NO.39/2021 BY
THE II ADDITIONAL DISTRICT AND SESSIONS JUDGE,
RAICHUR AND ETC.

     THIS PETITION COMING ON FOR ADMISSION THIS DAY,
THE COURT MADE THE FOLLOWING:
                                 2




                             ORDER

This petition is filed under Section 482 of Cr.P.C., by

petitioner/ accused seeking to quash the order dated

25.08.2021 passed in Crl.R.P.No.39/2021 by the II

Additional District and Sessions Judge, Raichur.

2. Heard the learned counsel appearing for the

petitioner and the learned High Court Government Pleader

appearing for the respondent-State.

3. The factual matrix of the case is that based on

the complaint, the respondent police have registered the

case in Cr.No.9/2020 for the offences punishable under

Sections 420, 468, 470 and 471 of IPC and FIR was

submitted to the Court and this petitioner voluntarily

surrendered before the III JMFC Court, Raichur on

24.06.2020 and enlarged on bail by accepting the bail

petition filed under Section 437 of Cr.P.C.

4. That on 27.04.2020, through APP, the PSI of

Yapaladinni police station filed an application under Section

311A of Cr.P.C., seeking a direction from the Court to

direct the petitioner herein to furnish the specimen

signature and his hand writing to get the opinion from the

expert. The same was opposed by the petitioner herein.

The Trial Court having considered the allegations made

against this petitioner, comes to the conclusion that the

specimen signature and hand writing of this petitioner is

necessary to investigate the matter further and hence,

allowed the application vide order dated 10.06.2021.

5. Being aggrieved by the order of the learned

Magistrate, Crl.R.P.No.39/2021 was filed and the Sessions

Judge while exercising the revisional powers allowed the

revision in part and while allowing the revision petition,

directed the IO to take the specimen signature of the

accused in between 11.00 a.m. to 2.00 p.m. in the

presence of the counsel for the accused and rest of the

order passed by the Trial Court has been unaltered. Being

aggrieved by the said modification of the order as well as

directing the petitioner to provide specimen signature, the

present petition is filed under Section 482 of Cr.P.C.

6. The main contention of the petitioner's counsel

before this Court that the very impugned order dated

25.08.2021 has caused substantial injustice to the

petitioner herein and the counsel would vehemently

contend that both the Courts have committed illegality in

directing the petitioner/accused to provide the specimen

signature and hand writing without properly understanding

the proviso of Section 311 of Cr.P.C., and the same can be

obtained only if the accused got arrested. The Sessions

Judge also erred in directing the accused to give specimen

signature without mentioning the date on which the

petitioner should present before the IO and the mandatory

requirement of Section 311 of Cr.P.C., is not followed and

when Section 311A of Cr.P.C., prescribes the procedure for

obtaining the specimen signature it has to be done in that

manner alone and hence, the order passed by both the

Courts are not sustainable in the eye of law. The counsel

would submit that subjecting the accused for providing

specimen signature is in violation of Article 21 and 23 of

the Constitution of India and hence, it requires

interference of this Court.

7. Per contra, the learned High Court Government

Pleader would submit that the amount which was released

in favour of the farmers are misappropriated by the

petitioner herein creating the documents and forging the

signature and made use of those fabricated documents to

swallow the money of the farmers and in terms of the list,

there were 99 farmers and an amount of Rs.5,35,839/-

was got credited in the name of the 14 farmers and

cheated by misappropriating the said amount and hence,

the very contention of the petitioner counsel cannot be

accepted.

8. Having heard the respective counsel for the

parties and also on perusal of the material on record, the

question that would arise for consideration before this

Court are:

(i) Whether both the Courts have committed an

error in invoking Section 311A of Cr.P.C., in

directing the accused to provide his specimen

signature and hand writing and whether it

violates Articles 21 and 20 (3) of the

Constitution of India as contended by the

petitioner's counsel?

(ii) What order?

Point No.1:

9. Having heard the respective counsel, it

discloses that it is the specific case of the prosecution that

the accused has forged the signature of list of the

beneficiary farmers and prepared the list of 99 farmers and

got credited the amount of Rs.5,35,839/- in 14 farmers'

name and cheated by misappropriating the said amount.

Admittedly, on registration of the case, the petitioner

herein voluntarily surrendered before the Court and an

application was filed for release him on bail and he was

enlarged on bail on the very same day.

10. The counsel for the petitioner in support of his

argument, relied upon the Section 311A of Cr.P.C., which

reads thus:

"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."

11. The learned counsel for the petitioner relying

upon this Section, particularly to the proviso that no order

shall be made unless the person has at some time been

arrested in connection with investigation or proceedings,

would contend that this petitioner has not been arrested

and hence, he cannot be directed to provide any specimen

signature or hand writing. The counsel also would submits

that the meaning of arrest of a person necessarily done by

arrest by the police and in the case on hand, no such

arrest was done by the police and hence, he cannot be

directed to provide any specimen signature and he was not

arrested and at any point of time or some time he has

been arrested in connection with such investigation or

proceeding and hence, the Court cannot exercise its

powers under Section 311A of Cr.P.C., the said contention

of the petitioner's counsel cannot be accepted. Having read

the proviso of Section 311A of Cr.P.C., and the proviso

says no doubt no order shall be made under this Section

unless the person at some time been arrested in

connection with such investigation or proceeding but once

the accused himself has surrendered before the Court and

sought for bail and the very contention of the petitioner's

counsel cannot be accepted that he has not been arrested

and only after his voluntary surrender only he invoked the

bail provision and the fact that he has been surrendered

before the Court is not been disputed and thereafter it is

also not in dispute that he has been enlarged on bail but

once he has surrendered means he was in custody for

sometime and he was in judicial custody before the Court

unless he was enlarged on bail and may be he was

enlarged on bail on the very same day.

12. It is also important to note that allegation

against him that he misappropriated the amount by forging

and creating document and swallowed the amount of

Rs.5,35,839/- and credited the amount in the name of 14

farmers and cheated by misappropriating the said amount.

When such specific allegation are made against him and in

order to file the chargesheet for the offences punishable

under Sections 429, 468, 470, 471 of IPC, the specimen

signature of the accused is warranted and proviso under

Section 311A of Cr.P.C., also confers such powers to the

Magistrate and accordingly the Magistrate has exercised

the power under section 311A of Cr.P.C. No doubt the

Sessions Court by exercising revisional power directed the

Investigating Officer to collect the specimen signature of

the accused and also hand writing and in a particular time

between 11.00 a.m., to 2.00 p.m., but not mentioned the

specific date as contended by the petitioner's counsel and

this Court can fix the date to appear before the

Investigating Officer on particular date within the time

between 11.00 a.m., and 2.00 p.m.,

13. The other contention of the learned counsel for

the petitioner that directing the accused to furnish the

handwriting as well as specimen signature amounts to self-

incrimination and it violates Articles 20(3) and 21 of the

Constitution of India. In this regard this Court would like to

refer the judgment of the Constitution Bench delivered by

11 Judges in the case of The State of Bombay vs. Kathi

Kalu Oghad and Others reported in AIR 1961 SCC

1808 held that if the self-incriminating explanation by an

accused person without any threat that will not be hit by

provisions of clause 3 of Article 20 of the Constitution of

India for the reason that there has been no compulsion.

The Hon'ble Apex Court in paragraph 10 of the judgment

held that taking of impressions or 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.

Furthermore, it must be assumed that the Constitution-

makers were aware of the existing law, for example,

section 73 of the Evidence Act or Sections 5 and 6 of the

Identification of Prisoners Act.

14. In the case on hand also only the Investigating

Officer sought for a direction against the accused to

provide specimen signature as well as his hand writing.

The allegation made that he has fabricated the documents

by forging the signature and swallowed the amount of

Rs.5,35,839/- which belongs to the farmers and in order to

collect the evidence by the Investigating Officer, the said

direction was sought from the Magistrate, since serious

allegations are made against him.

15. The Hon'ble Apex Court in the very same

judgment in paragraph-12 held that the testimony by an

accused person may be said to have been self-

incriminatory, the compulsion of which comes within the

prohibition, of the constitutional provision, it must be of

such a' character, that by itself it should have the

tendency of incriminating the accused, if riot also of

actually doing so. In other words, it should be a statement

which makes the case against the accused person atleast

probable, considered by itself. 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. Having considered the principles laid down in

the judgment referred supra, directing the accused to

provide handwriting of the accused and also his specimen

signature will not amount to self-incrimination as

contended by the learned counsel for the petitioner and

the same is mode of technology that is used for collecting

the evidence by the Investigating Officer and it is the

domain of the Investigating Officer to collect the material

in order to find out the truth in the investigation. Hence,

the very contention that it amounts to self-incrimination

and violation of Article 20(3) of the Constitution of India

cannot be accepted.

17. In view of the discussion made above, I pass

the following:

ORDER

The petition is allowed in part.

The order passed in Crl.R.P.No.39/2021 is modified

directing the accused to appear before the Investigating

Officer on 27.12.2021 in between 11.00 a.m., to 2.00

p.m., and Investigating Officer is directed to take the

specimen signature of the petitioner/accused in crime

No.9/2020 and his handwriting in accordance with law

within the above timings. Except the inclusion of the date,

other portion of the order is undisturbed.

Sd/-

JUDGE

SAN/VNR