CR No.2630 of 2007 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CR No.2630 of 2007
Date of Decision: 17.11.2008
Hardeep Kaur alias Gurdeep Kaur ....Petitioner
Vs.
Gurmail Kaur & Ors. ..Respondents
Coram: Hon'ble Mr. Justice Vinod K.Sharma
Present: Mr.G.S.Punia, Advocate,
for the petitioner.
Ms.Monika Geol, Advocate,
for the respondent.
Vinod K.Sharma,J.
Plaintiff/respondent moved an application for directing the
petitioner/defendant No.2 in the suit to give her specimen thumb
impressions.
The plaintiff/respondent claimed that she has filed a suit to
challenge the decree, alleging that the same was obtained by fraud by fixing
thumb impressions of petitioner i.e. defendant No.2 in said suit by
representing herself as the plaintiff.
CR No.2630 of 2007 2
The plaintiff/respondent claimed that she wanted to get thumb
impressions of petitioner herein compared from the document Finger Print
Expert.
The application was contested by raising a preliminary
objection that the application was not maintainable in the present form and
the same has been moved to harass the petitioner. She denied having affixed
her thumb impressions in place of the plaintiff in the suit under challenge. It
was claimed that on earlier occasion in a criminal complaint her thumb
impressions were ordered to be taken for comparison but the said order
was set aside by the High Court in Crl.Misc. No.6309-M of 2005 decided on
17.5.2006 titled Hardeep Kaur Vs. Gurmail Singh.
The learned court below observed that the suit has been filed by
the plaintiff/respondent for declaration to the effect that the judgment and
decree passed in Civil Suit No.195 dated 22.5.1982 decided on 17.7.1982
titled Sukhdev Singh and others Vs. Amarjit Kaur and others was illegal,
unlawful, null and void and obtained through fraud and forgery and does
not confer any title upon the defendant.
In para No.6 of the plaint a specific plea was taken that it was
the petitioner i.e. defendant No.2 who appeared in the court in civil suit
No.195 in place of the plaintiff/ respondent and thumb marked the written
statement and power of attorney. The court, therefore, allowed the
application and directed petitioner/defendant No.2 to give her thumb
impression by appearing in court on 9.4.2007 for comparison with the
thumb impressions on the written statement and power of attorney in the
earlier suit.
CR No.2630 of 2007 3
Mr.G.S.Punia, learned counsel appearing on behalf of the
petitioner has challenged the impugned order on the ground that it was not
open to the court to have allowed the application in view of the order
passed by this court in Cr.Misc. No.6309 of 2005 decided on 17.5.2006.
The judgment is of no help to the petitioner. It may be noticed
that the reason for setting aside the order passed in Criminal Complaint was
that the petitioner was yet to be summoned in the said case and therefore,
was not an accused. Thus, it was not a stage where the petitioner could be
asked to give specimen signatures. Therefore, by relying upon the judgment
of Hon’ble Rajasthan High Court in the case of Dr.(Mrs.) Maya Bansal
Vs. State of Rajasthan 2003 (4) R.C.R. (Criminal) 29, this court
accepted the said petition.
In the civil suit the petitioner is defendant No.2 and there are
specific allegations in the suit.
Learned counsel for the petitioner also contended that there is
no provision of law under which a party could be directed to give thumb
impressions for comparison. In support of this contention reliance has been
placed upon the judgment of Hon’ble Kerala High Court in the case of Lilly
Vs. Vijayalaxmi 1985 K.L.T.606. In the said case, Hon’ble Kerala High
Court has been pleased to lay down as sunder:-
“11. What emerged from the above discussion is this. A
direction to give the specimen handwriting or signature will not
amount to testimonial compulsion as envisaged by Art.20(3) of
the Constitution. The Court is entitled to give direction to the
accused to give his specimen handwriting or signature for the
CR No.2630 of 2007 4purposes enumerated in S.73 of the Evidence Act. In that
respect also, there can only be a direction within the limits
allowed by law and there cannot be a compulsion. If that
direction, which is within the law, is disobeyed, a presumption
under S.114 of the Evidence Act will be the legitimate
consequence. A direction under S.73 of the Evidence Act
cannot be given for the purpose of enabling the oppose party to
use the same as evidence against the person who has given the
specimen handwriting or signature. In such a case, it is likely to
incriminate him as held in State of Bombay V. Kathi Kalu (AIR
1961 SC 1808). The question whether a magistrate is
competent to direct an accused to give his specimen
handwriting of signature to the police during investigation does
not arise in this case and hence such a question is not decided.
In this case the direction sought for was definitely for the
purpose of using the specimen handwriting and signature as
evidence against the first respondent by getting the opinion of
the expert by comparison with the writings and signature
contained in the receipt produced before court. Such a direction
is not permitted by the provisions of law and therefore the
learned Magistrate was correct when he dismissed the petition
filed by the petitioner for that purpose.”
On consideration of matter, I find no force in this contention
also. In a criminal case accused cannot be forced to give evidence which
may be used against him. That is not so in civil case. Section 73 of the
CR No.2630 of 2007 5
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 been written by such person.
This section applies also, with any necessary
modifications, to finger impressions."
Power of Court:
xxxx
It is within jurisdiction of court to instruct a party to
submit his writing or signature, enabling court to compare and
decide a case, if the instruction are not followed court is free to
presume what is most closure to the justice.”
Reading of Section 73 of the Evidence Act would show that it
is within the jurisdiction of the court to instruct a party to submit his writing
or signatures so as to enable the court to compare and decide the case.
CR No.2630 of 2007 6
However, if the instructions are not followed the court would be free to
presume what is most closure to justice.
The words ‘any person’ used in Section 73 of the Evidence Act
would also include a party to the suit.
Hon’ble Rajasthan High Court in the case of Dr.(Mrs.) Maya
Bansal Vs. State of Rajasthan (supra) and this court in the case of
Parveen Kumar Vs. Union Territory, Chandigarh 2004 (1) Cri.C.C. 724
has been pleased to lay down that directions can be issued to give
specimen handwriting when the case is under investigation.
The order passed by the learned trial court, therefore, cannot be
said to be without jurisdiction or suffering from any error which may call
for interference by this court in exercise of revisional jurisdiction.
Needless to mention here that if the directions issued by the
court are not followed by the petitioner/defendant No.2 it would be open to
the court to draw adverse inference against the petitioner.
Petition dismissed.
17.11.2008 (Vinod K.Sharma) rp Judge