Before this Court, argument of learned
counsel for Respondent No.2 that unhealthy
ambiance is tried to be created in the Court Hall
at the time of evidence by letting so many
Advocates attend only because they have signed
Vakalatnama, has not been replied to by the
learned counsel for PetitionerAccused. The
Additional Sessions Judge needs to keep in view
provisions of Section 327(2) of the Code of
Criminal Procedure, 1973, which has been inserted
in 1983, providing that the inquiry into or trial
of rape or offence under Section 376, Section 376
A to 376 E of the Indian Penal Code shall be
conducted InCamera. The purpose and object of the
law needs to be kept in view and it is necessary
for the trial Court to ensure that InCamera
proceeding takes place in its letter and spirit.
When it is InCamera proceeding, it is duty of
Court to ensure that Prosecutrix is given
atmosphere which will encourage her to speak about
the incident without being put to avoidable
embarrassment. The evidence can be recorded in
presence of both sides, permitting the counsel
conducting the cross examination to have
assistance of say, one junior Advocate only of his
choice.
BENCH AT AURANGABAD
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL REVISION APPLICATION NO.48 OF 2014
Dr. Suyog s/o Dinkarrao Vyas,
VERSUS
1) The State of Maharashtra,
2) Prosecutrix
(for name see original Petition)
CORAM: A.I.S. CHEEMA, J.
DATE OF PRONOUNCING JUDGMENT: 29TH APRIL, 2014
This Revision Application has been filed by
original AccusedPetitioner facing Sessions Case
No.163 of 2009 pending before Additional Sessions
Judge, Aurangabad. The Petitioner is facing
offence punishable under Section 376, 328, 354 and
506 of the Indian Penal Code, 1860.
The evidence of Respondent No.2 ( I have
2.
refrained to put her name, which is available in
the original Petition) as PW3 was being recorded
in the Sessions Case and in the course of cross
examination, a letter was put up to her. She
declined that the same was in her handwriting. She
was asked and she wrote out a passage to dictation
of the Advocate for PetitionerAccused and also
put signatures in Marathi and English as she was
asked. The PetitionerAccused filed application
Exhibit 26 and the Sessions Judge passed order
that the disputed document Article A and the
sample handwriting given by the prosecutrix
Exhibit 24 and other admitted documents as
mentioned in the order, be sent to the State
Examiner of Documents for opinion whether the
handwriting made in disputed document Article A
was of the same person who had written the
documents Exhibit 24, 15, 18 and 21. Accordingly,
the documents were sent. Subsequently, on 26th
March, 2012 the handwriting expert sent letter to
the Court stating that the sample handwriting sent
was not enough and some more sample handwriting is
necessary. The handwriting expert requested that
the disputed handwriting should be encircled and
concerned person should be asked to give sample
handwriting as per the disputed document on six
pages. The letter also requested that the natural
Marathi and English handwriting of the person
written in ordinary course should also be sent.
3.
Letter of handwriting expert was endorsed
by the trial Court on 27th March, 2012 directing
Advocate for PetitionerAccused to give say.
After more than 1 and 1/2 year, on 4th December
2013 vide Exhibit 30, the PetitionerAccused
filed application requesting that the complainant
(prosecutrix) should be called upon to complete
requirement of handwriting expert.
It appears that the A.P.P. opposed
mentioning that sufficient natural handwriting of
complainant/victim has been provided and the
victim has also filed her say and requested to
send to Mumbai handwriting expert office and so
there is no need to supply more natural
handwriting.
.
The Sessions Court heard counsel for the
PetitionerAccused as well as the A.P.P. Earlier
facts were referred and the order of the trial
Court shows that the application filed by the
PetitionerAccused was objected by the victim on
the ground that she has already provided
sufficient writing to the handwriting expert for
the opinion. Advocate for PetitionerAccused
however, insisted that as soon as the earlier
application Exhibit 26 was allowed, the victim was
under obligation to provide her handwriting to
comply the said order. The A.P.P. opposed by
stating that sufficient handwriting was available
for opinion. It was also claimed that the matter
was in the middle of crossexamination of
prosecutrix who was coming from Solapur to attend
the case. The A.P.P. also claimed that it was not
necessary to have opinion of the handwriting
expert on Article A at the concerned stage. The
A.P.P. claimed that progress of the prosecution
case cannot be withheld.
The Additional Sessions Judge considered
rival submissions and observed that victim is not
ready to comply requirements of handwriting expert
and victim cannot be forced to comply the same. It
was observed that the effect of the same, if any,
can be considered while passing final order and
thus the application did not sustain in the eye of
law. The application came to be rejected and the
trial was directed to proceed. The victim
for further crossexamination.
4.
prosecutrix was directed to attend on next date
Against such order, present Revision has
been filed. It was argued on behalf of the
PetitionerAccused that when application Exhibit
26 to send the documents to handwriting expert was
allowed, it had attained finality and so
Respondent No.2prosecutrix could not refuse to
give further sample handwriting. It is argued that
the requirement was of the handwriting expert and
not the PetitionerAccused. It is submitted that
under Section 73 of the Indian Evidence Act, the
Court can direct the prosecutrix to give her
sample handwriting. Reference was made to Section
311A of the Code of Criminal Procedure to submit
that the Magistrate had power to direct a person
to give specimen signature or handwriting. Counsel
for PetitionerAccused relied on the case of M.
Narayanaswami vs. Yangatanna, reported in A.I.R.
1975 Andhra Pradesh, Page 88(1), to submit that as
per Section 73 of the Indian Evidence Act, Court
has ample powers to direct a person to even appear
and give specimen handwriting and signature.
5.
Learned A.P.P. for Respondent No.1 and
learned counsel for Respondent No.2 opposed the
6.
Petition.
Respondent No.2 has filed affidavit in
reply contending that the Petition is not
maintainable. The order concerned is interlocutory
and Revision does not lie. According to Respondent
No.2, the earlier order was obviously passed as
Respondent No.2 had agreed to the same and wrote
down contents on the papers as were dictated by
the Advocate of the PetitionerAccused in the
Court Hall itself. Respondent No.2 contends in the
affidavitinreply that comparison of two scripts
is artistry and even a signature of a person can
suffice and thus according to Respondent No.2, it
was unnecessary exercise and so on subsequent
occasion she refrained from giving any
handwriting. It is claimed that it is not
imperative by any law to provide more handwriting
and it is not a case of documentary evidence where
disproved document will vitiate the proceedings.
The charge levelled against the Petitioner
Accused is of sexual offences and F.I.R. came to
be filed on 22nd October, 2005. The evidence of
Respondent No.2 started on 9th January, 2012,
after about seven years of the incident.
Respondent No.2 claimed that she was working in
London when trial commenced, but she could not
extend her contract due to present proceedings and
has been suffering irreparable loss to her
academic and professional career. She claimed that
she is resident of Solapur and it takes seven
hours to reach Aurangabad and PetitionerAccused
has been deliberately delaying proceedings. Her
ageold parents are also required to accompany her
on each date. Respondent No.2 contended that the
earlier Advocate for PetitionerAccused who
started cross examination, got himself discharged
and the present Advocate filed Vakalatnama taking
signatures of more than 12 Advocates on the
Vakalatnama, so that they could remain present in
the Court while her evidence was being recorded
Incamera. As per Respondent No.2, such practice
is highly immoral, unethical, condemnable and
needs to be deprecated. Respondent No.2 referred
to Roznama to show how the matter was being
protracted. It is claimed by Respondent No.2 that
the PetitionerAccused wants to protract trial and
is resorting to tactics to humiliate, so as to
refrain her from deposing against him. It is
claimed that unhealthy ambiance was created in
Court causing great agony and hardship to victim.
7.
It has been argued for the Respondents
that the prosecutrix had already cooperated and
complied requirements as per Section 73 of the
Indian Evidence Act. Trial Court has rightly
observed that the witness could not be compelled
to give further sample handwriting. The learned
A.P.P. submitted that the trial Court has rightly
observed that if the prosecutrix is not giving any
further sample handwriting, what is the effect,
In reply, learned counsel for the
8.
passing final order.
would be matter for consideration at the time of
PetitionerAccused stated that although the
PetitionerAccused has filed Revision, he has also
relied on Article 227 of the Constitution of India
and so the present Petition is maintainable.
9.
I have gone through the record. There is
copy of the first information report, which shows
that the prosecutrix was studying for higher
education and was residing at Rahuri. The
PetitionerAccused used to attend the college on
Saturdays to teach Research and Statistics and so
was known to the prosecutrix. First Information
Report refers as to how on 8th December, 2004
prosecutrix had gone to Aurangabad to get the
notes from the PetitionerAccused. First
Information Report states that on 4th August, 2005
prosecutrix was at Solapur, there was phone call
and PetitionerAccused asked her to come to
Aurangabad to watch C.D. and Demo. Case is that on
5th August, 2005 prosecutrix came to Aurangabad
and went to the home of the PetitionerAccused.
Then the incident attracting the Sections of
Indian Penal Code referred above, appears to have
taken place at home of the PetitionerAccused.
Prosecutrix has given evidence in this regard. If
the copy of the evidence is perused, it can be
seen that cross examination started on 9th
January, 2012. It was continued on 17th January,
2012 when just a few questions were asked. It
resumed on 18th January, 2012. On that day
prosecutrix was shown one envelope showing address
of the PetitionerAccused. She accepted that the
address written on the envelope, as put in circle
A, was in her handwriting but address shown in
circle B, she stated was not in her handwriting.
The envelope was marked Exhibit 21. The evidence
was deferred. It continued on 6th February, 2012.
In course of cross examination, she was shown
letter containing eight pages and other documents
Exhibit 18 and 19 were shown. She accepted her
signatures on Exhibit 18 and 19. As prosecutrix
had shown willingness to give her handwriting in
presence of the Court, counsel for Petitioner
Accused gave her dictation and she wrote down the
same and put her signatures in Marathi and English
on the document which was marked Exhibit 24. The
evidence was again deferred and taken up on 22nd
February, 2012 when prosecutrix was confronted
with the letter Article A. She denied that it was
in her handwriting, or that she had sent the same
to the PetitionerAccused. It appears that the
PetitionerAccused then suggested to Respondent
No.2prosecutrix that she has intentionally
attempted to point out her different handwriting
while writing Exhibit 24, compared to Article A.
The suggestion was denied. Still, it appears that
the PetitionerAccused applied vide Exhibit 26
and the Court sent the documents for comparison.
10.
I have seen xerox copy of the document
Article A and the passage which was written down
by the prosecutrix, Exhibit 24. Respondent No.2
voluntarily wrote down more than 14 lines and
wrote down 3 different dates as well as her sample
signatures in English as well as in Marathi.
Inspite of this, it is surprising that the State
Examiner of Documents at Aurangabad, wanted more
sample handwriting and signatures. In fact the
letter of State Examiner appears to be saying that
the prosecutrix should write down 6 pages as in
the disputed document Article A. Respondent No.2
appears to be right in her stand that sufficient
sample handwriting and signatures were available.
The prosecutrix has declined to give further
sample handwriting. The trial Court has rightly
observed that she cannot be forced and what is the
effect, would be matter of consideration at the
stage of final order.
11.
The argument of the learned counsel for
PetitionerAccused is that under Section 73 of the
Indian Evidence Act the Court could direct the
prosecutrix to give writing in compliance of the
requirement of the handwriting expert. Section 73
of the Indian Evidence Act, reads as under:
“73. Comparison of signature,
writing or seal with others admitted
or proved. In order to ascertain
whether a signature, writing or seal
is that of the person by whom it
purports to have been written or
made, any signature, writing, or
seal admitted or proved to the
satisfaction of the Court to have
been written or made by that person
may be compared with the one which
is to be proved, although that
signature, writing, or seal has not
been produced or proved for any
other purpose.
The Court may direct any person
present in Court to write any words
or figures for the purpose of
enabling the Court to compare the
words or figures so written with any
words or figures alleged to have
If the above Section is perused, it is
12.
been written by such person.”
clear from the First Part that in order to
ascertain whether a writing is of the person by
whom it purports to have been written, any
signature or writing which has been admitted or
proved to the satisfaction of the Court to have
been written or made by that person, may be
compared with the one which is to be proved.
Second Part of the Section gives power to the
Court to direct any person present in Court to
write “any words” or “figures” for the purpose of
enabling the Court to compare the words or
figures. Thus, Section 73 of the Indian Evidence
Act is to enable the Court to compare and to that
end Court can ask the person to write any words or
figures. Although how many words or figures is not
prescribed, it has to be reasonable. It does not
mean that long passages and pages as is being
sought, could be asked to be written down. Still,
the Respondent No.2 prosecutrix did give sample
handwriting in a long passage as well as her
signatures with different dates.
13.
The other argument that under Section
311A of the Code of Criminal Procedure, 1973, the
signatures or handwriting, is misplaced. Section
311A of the Code of Criminal Procedure, reads as
under:
Magistrate can ask any person to give specimen
“311A. Power of Magistrate to order
person to give specimen signatures
or handwriting. If a Magistrate of
for
the
purposes
of
the first class is satisfied that,
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.”.
14.
Perusal of the above Section makes it
clear, specially the Proviso, that it relates to
the power of the Magistrate to direct any person
including an accused person to give specimen
signatures or handwriting, if it is considered
expedient for the purpose of investigation or
proceeding, provided, the person concerned had at
some time been arrested in connection with the
investigation or proceedings concerned. It is
pertinent to note that Respondent No.2
prosecutrix is not an accused nor a person who was
arrested in connection with investigation or
proceeding concerned. Section 311A of the Code of
Criminal Procedure does not apply to the facts of
the present matter.
15.
There is no substance in the present
Revision Application. It cannot be said that the
impugned order is not correct, not legal or not
proper.
16.
If the case of the prosecution as is
appearing from the record is kept in view and the
cross examination recorded till now is perused, it
can be seen that when in the first place Exhibit
26 was accepted and order was passed to send
Article A for comparison, it was done as in the
cross examination, Respondent No.2 agreed to give
the handwriting. The Additional Sessions Judge
does not appear to have recorded below Exhibit 26
the relevance of the document for deciding the
trial. Affidavitinreply of the Respondent No.2
claims that she is being harassed in the Court and
that there are attempts to deliberately delay the
proceedings. She claims that she is being
humiliated and harassed by putting scandalous
questions and banter. Keeping such affidavitin
reply in view, when her evidence already recorded
is perused, it does appear that the provisions of
Section 136 of the Indian Evidence Act are not
being followed by the trial Court. At the stage of
cross examination, although so much of cross
examination has been done in five sittings, still
the cross examination does not appear to have yet
touched the incident in dispute dated 5th August,
2005. As per Chapter X of the Indian Evidence Act,
1872, there are various provisions which cast duty
on the Court to ensure that the cross examination
of witness does not become a tool for harassing
the prosecutrix. The prosecutrix has filed copy of
Vakalatnama Exhibit 17, which shows so many
Advocates to have signed the Vakalatnama. It is
the contention of the prosecutrix in her
affidavitinreply, in Para 8, that this has been
done so that all those Advocates who are more than
12 can attend the Court while recording her
evidence InCamera. She has claimed that only the
Advocate conducting the trial should be permitted
to sit in the Court.
17.
Before this Court, argument of learned
counsel for Respondent No.2 that unhealthy
ambiance is tried to be created in the Court Hall
at the time of evidence by letting so many
Advocates attend only because they have signed
Vakalatnama, has not been replied to by the
learned counsel for PetitionerAccused. The
Additional Sessions Judge needs to keep in view
provisions of Section 327(2) of the Code of
Criminal Procedure, 1973, which has been inserted
in 1983, providing that the inquiry into or trial
of rape or offence under Section 376, Section 376
A to 376 E of the Indian Penal Code shall be
conducted InCamera. The purpose and object of the
law needs to be kept in view and it is necessary
for the trial Court to ensure that InCamera
proceeding takes place in its letter and spirit.
When it is InCamera proceeding, it is duty of
Court to ensure that Prosecutrix is given
atmosphere which will encourage her to speak about
the incident without being put to avoidable
embarrassment. The evidence can be recorded in
presence of both sides, permitting the counsel
conducting the cross examination to have
assistance of say, one junior Advocate only of his
choice.
18.
The trial Court is directed to keep
in view specific requirement of law under
Section 309 of the Code of Criminal procedure,
1973, which requires that enquiry or trial
relating to offence under Section 376 of the
Indian Penal Code shall, as far as possible be
completed within period of two months from the
date of filing of the chargesheet. In such
matters, Adjournments granted need to be justified
from record, which does not appear to be the case
in present matter when Roznama is perused.
For the reasons mentioned above, there is
19.
no substance in the present Revision Application.
The Revision Application is rejected with costs of
Rs.3000/ (Rupees Three Thousand), to be paid to
Respondent No.2.
[A.I.S. CHEEMA,J.]
No comments:
Post a Comment