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IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM : NAGALAND : MEGHALAYA : MANIPUR : MIZORAM : TRIPURA & ARUNACHAL PRADESH) AGARTALA BENCH

CRIMINAL REVISION PETITION NO.09 OF 2011 Shri Basab Bhattacharjee, S/O. Late Krishna Bandhu Bhattacharjee, resident of Ramnagar Road No.8, P.O. Ramnagar, P.S. West Agartala, District-West Tripura. ............Petitioner. vrs. The State of Tripura (represented by the Public Prosecutor, Gauhati High Court, Agartala Bench, Agartala. ...........Respondent.
PRESENT :

THE HON’BLE MR.JUSTICE UB SAHA For the petitioner For the respondent
Date of hearing/ Judgment & Order

: :
:

Mr. P.Roy Barman, Advocate. Mr. RC Debnath, PP in-charge.
29.3.2011.

JUDGMENT AND ORDER (Oral) The instant revision petition is filed by the accused-petitioner, Shri Basab Bhattacharjee challenging the order, dated 15.12.2010, passed in Case No. PRC 03/10 under Sections 468/420/34 of the Indian Penal Code by the learned Chief Judicial Magistrate, West Tripura, Agartala wherein the learned CJM issued notice upon the surety of the accused to produce him (accused, petitioner herein) before the learned Judicial Magistrate Ist Class, Court No.2 on 5.1.2011 at 3 p.m. for taking his required specimen signatures and writing by the I/O. as required by the Forensic and Science Laboratory in presence of the Magistrate.

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2.

Mr. P.Roy Barman, learned counsel, appearing for the accused-

petitioner submits that earlier also the accused-petitioner who is on bail, appeared before the court on 5.4.2010 on the basis of the prayer of the I/O. and ordered by the Court for putting his signature and thereafter, again vide impugnd order, the learned CJM asked the surety of the accused-petitioner to produce him (i.e. the accused-petitioner) before the learned Judicial Magistrate Ist Class to put his signature as required by the Forensic and Science Laboratory, which is contrary to the provisions of Section 311A of the Cr.PC. He further submits that the Court cannot ask an accused to give evidence against him. In the instant case, the Court passed the impugned order without providing any opportunity to the accused-petitioner and, therefore, the impugned order is liable to be set aside. 3. Mr. RC Debnath, learned PP In-charge appearing for the

respondent State while resisting the submission of Mr. Roy Barman submits that Section 311A Cr.PC. empowers the court to direct any person including an accused person to give his specimen signature or hand writing, for the purpose of investigation, particularly in a case where the prosecution case is based on forgery of documents and cheating. In support of his submission, Mr. Debnath placed reliance on Section 45 of the Evidence Act wherein it is stated that when the Court has to form an opinion upon a point of foreign law or of science or art, or as to identity of handwriting [or finger impressions], the opinions upon that point of persons specially skilled in such foreign law, science or art, [or in questions as to identity of handwriting] [or finger impressions] are relevant facts, who are called as experts and the Court taking note of

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the said provision if of the opinion that the document, which is required to be proved, is to be sent to the handwriting expert for his opinion, it can taking the aid of Section 311 Cr.PC ask the accused to put his signatures/handwriting for sending the same to the expert concerned. In the instant case also the learned CJM passed the impugned order as required by the Forensic & Science Laboratory, Narsingarh on the prayer of the I/O. of the case. Therefore, no wrong was committed by the learned Chief Judicial Magistrate. He further submits that in Section 311 Cr.PC, it is nowhere mentioned that once an accused is asked for providing his signatures/handwriting, subsequently he cannot be asked to give the same in the interest of justice. 4. This Court has gone through the prayer of the I/O. of the case

dated 15.12.2010 (Annexure-8 to the revision petition) on the basis of which the learned Chief Judicial Magistrate passed the impugned order. For better appreciation, the same is reproduced herein under :“In the court of Ld. Chief Judicial Magistrate, West Tripura, Agartala. Ref : West Agt. P.S. Case No.01/10 u/s 468/420/34 IPC. Subject :- Prayer to pass necessary direction to accused Basab Bhattacharjee S/O- Lt. Krishna Bandhu Bhattacharjee of Ram nagar road-8, p/s-West Agartala, West Tripura. Sir, With reference to the above refer case I beg to inform you that accused Basab Bhattacharjee was asked by me to appear at PS on 07-12-10 for giving his simple writing. The accused person appeared at PS but he refused to give his simple writing as directed by me. It is also noted here that on 04-05-10 the same accused person namely Sri. Basab Bhattacharjee gave his simple writing before the Ld. Court and I forwarded the same to Director,

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State Forensic Science Laboratory Narsinghar for examination. But the expert felt necessary to have the following further stander documents for a proper and thorough examination (copy enclosed) 1. About 5 (five) admittedly genuine signatures of the account holder name “Kalachan Paul” available on official documents such as withdrawal slip, C.L. application etc. 2. The specimen signature from the person named “Basab Bhattacharjee” obtained by dictating entire content of questioned withdrawal form, written by him, repeatedly on 4-5 sheets. Under the above circumstances I pray before your honour that the accused Basab Bhattacharjee may I kindly be directed to give his specimen writing as required by me for the interest of the case and to cooperate with the investigating agency and oblige there by. Yours faithfully Sd/(Ranjit Kumar Ghosh) S.I. of Police West Agartala P.S./ Dated, 15-12-10” 5. This Court has also gone through the impugned order as well as

the provisions of Section 311A Cr.PC. Section 311A of Cr.PC is reproduced hereinunder :“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:

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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.” 6. Upon going through the aforequoted provision, it appears that the

said Section of Cr.PC. has been inserted on the suggestion of the Supreme Court, inter alia, that a suitable legislation be made on the analogy of section 5 of the identification of Prisoners Act, 1980, to provide for the investiture of Magistrates with powers to issue directions to any person including an accused person to give specimen signatures and handwriting. Here, in the instant case, the learned Chief Judicial Magistrate exercising his discretion passed the impugned order only summoning the surety to produce the accused-petitioner for putting his signatures and hand writing. Therefore, it cannot be said that the learned CJM asked the accused-petitioner to give evidence against him (accused-petitioner), as contended by Mr. Roy Barman. Rather, on appearance, the accused-petitioner will get an opportunity to raise his voice if such order of the Court is contrary to the provisions of Section 311A Cr.P.C. The direction of the Court in the impugned order is to the surety, not to the accused-petitioner and the surety whom the learned CJM asked to produce the accused did not raise his voice stating his inability to produce the accused-petitioner. 7. It is the admitted position that the petitioner earlier complied the

Court’s order and put his signatures/handwriting for sending the same to the expert. Since the petitioner earlier put his signatures and handwriting, he is in no way going to be prejudiced by way of putting his signatures/handwriting subsequent to the Court’s order and Section 311

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Cr.P.C. put no bar on the Court concerned to issue direction either to the accused or to the surety of the accused for producing the accused to put his signatures /handwriting for sending the same to the expert concerned in the interest of justice. 8. In the instant case as the Forensic & Science Laboratory who are

going to examine the signatures/handwriting, as required, of the petitioner for the second time, according to this Court, the learned CJM rightly passed the impugned order. 9. In view of the above discussions and observations, this Court is of

the considered opinion that this revision petition is devoid of merit. Accordingly, the same is dismissed. However, the petitioner is at liberty to take his defence, as permissible under law, at the time of trial.

JUDGE

P.C.