High Court Punjab-Haryana High Court

Hardeep Kaur Alias Gurdeep Kaur vs Gurmail Kaur & Ors on 17 November, 2008

Punjab-Haryana High Court
Hardeep Kaur Alias Gurdeep Kaur vs Gurmail Kaur & Ors on 17 November, 2008
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 4

purposes 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