BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 25/02/2010 CORAM THE HONOURABLE MR.JUSTICE C.T.SELVAM Crl.A.(MD)254of 2001 Crl.A.(MD)258 of 2001 Crl.A.(MD)268 of 2001 Crl.A.(MD)290 of2001 Crl.A.(MD)296 of 2001 Crl.A.(MD)299 of 2001 and Crl.A.(MD)303 of 2001 1.Swamidurai .. Appellant in Crl.A.254/2001-A3 2.P.Meyyappan .. Appellant in Crl.A.258/2001-A5 3.S.Rajamohamed .. Appellant in Crl.A.268/2001-A1 4.Dr.J.Elangovan .. Appellant in Crl.A.290/2001-A2 5.R.Sivasamy .. Appellant in Crl.A.296/2001-A4 6.S.Paulraj .. Appellant in Crl.A.299/2001-A6 7.A.Rangasamy 8.M.Durairaj .. Appellants in Crl.A.303/2001 -A7 & A8 Vs State by Deputy Superintendent of Police Vigilance and Anti-Corruption Wing, Sivaganga. .. Respondent (in all Crl. Appeals) :COMMON PRAYER Criminal appeals filed under Section 374(2) of Cr.P.C., against the judgement and Conviction dated 9.3.2001 and made in C.C.No.140/1991 on the file of Additional Sessions Judge-cum-Chief Judicial Magistrate, Sivaganga. !For Appellants A1 ... M/s.R.N.Amarnath A2 ... M/s.Veerakathiravan A3 ... M/s.T.Munirathnam Naidu A4 ... M/s.Thirumalairaj, SC for Mr.S.Chandrasekaran A5 & A6 ... Mr.AR.L.Sundaresan SC M/s.Al.Gandhimathi A7 & A8 ... M/s.T.Muruganantham ^For Respondent ... Mr.P.Rajendran,GA (Crl.side) :JUDGMENT
These appeals are filed against the judgement dated 9.3.2001 and made in
C.C.No.140/1991 on the file of Additional Sessions Judge-cum-Chief Judicial
Magistrate, Sivaganga. 11 accused faced trial in such proceedings for offences
under Sections 120(b), 467, 471 r/w.467 and 109, 161, 167, 477(A), 467, 409, 406
r/w.109 I.P.C and Section 5(1)(c)(d) r/w 5(2) of the Prevention of Corruption
Act, 1947 r/w 109 IPC. Of the 11 accused, A9 died pending trial, accused 10 &
11 were acquitted. Accused 1 to 8 stood convicted as follows:
A1:- U/s.120(B), 467, 471 r/w 467 (13 counts), 461, 467, 471 r/w 467, 477A,
467, 409 and Section 5(1)(c)(d) r/w 5(2) of the Prevention of Corruption Act,
1947 and sentenced to undergo rigourous imprisonment for 3 years & fine of
Rs.3,000/- & i/d. 9 months rigourous imprisonment for offence u/s.120(B);
rigourous imprisonment for 3 years & fine of Rs.3,000/- & i/d. 9 months
rigourous imprisonment for offence u/s.467 IPC; rigourous imprisonment for 3
years & fine of Rs.250/- for each count & i/d. 9 months rigourous imprisonment
for offence u/s.471 r/w 467(13 counts); rigourous imprisonment for 3 years &
fine of Rs.3,000/- & i/d. 9 months rigourous imprisonment for offence u/s.467;
rigourous imprisonment for 3 years for offence u/s. 471 r/w 467; rigourous
imprisonment for 3 years & fine of Rs.3,000/- & i/d. 9 months rigourous
imprisonment for offence u/s.477A; rigourous imprisonment for 3 years & fine
of Rs.3,000/- & i/d. 9 months rigourous imprisonment for offence u/s.467;
rigourous imprisonment for 3 years & fine of Rs.3,000/- & i/d. 9 months
rigourous imprisonment for offence u/s.409; rigourous imprisonment for 3 years &
fine of Rs.3,000/- & i/d. 9 months rigourous imprisonment for offence
u/s.5(1)(c)(d) r/w 5(2) of the PC Act.
A2:- U/s.120(B), 467, 406 r/w 109, 471 r/w 109 (13 counts), 161, u/s. 5(1)(d)
r/w Sec.5(2) of the PC Act and u/s. 5(1)(c)(d) r/w Sec.5(2) of the PC Act and
sentenced to undergo rigourous imprisonment for 3 years & fine of Rs.3,000/- &
i/d. 9 months rigourous imprisonment for offence u/s.120(B); rigourous
imprisonment for 3 years & fine of Rs.3000/- & i/d. 9 months rigourous
imprisonment for offence 467 IPC; rigourous imprisonment for 3 years & fine of
Rs.3,000/- & i/d. 9 months rigourous imprisonment for offence 406 r/w 109 IPC;
rigourous imprisonment for 3 years & fine of Rs.250/- (for each count) & i/d. 9
months rigourous imprisonment for offence 471 r/w 109 IPC (13 counts); rigourous
imprisonment for 3 years & fine of Rs.3000/- & i/d. 9 months rigourous
imprisonment for offence 161 IPC; rigourous imprisonment for 3 years & fine of
Rs.3,000/- & i/d. 9 months rigourous imprisonment for offence u/s. 5(1)(d) r/w
Sec.5(2)of the PC Act; and rigourous imprisonment for 3 years & fine of
Rs.3,000/- & i/d. 9 months rigourous imprisonment for offence u/s. 5(1)(c)(d)
r/w Sec.5(2)of the PC Act.
A3:- U/s.120(B), 467, 406 r/w 109, 471 r/w 109 (13 counts), 161, u/s. 5(1)(d)
r/w Sec.5(2) of the PC Act and u/s. 5(1)(c)(d) r/w Sec.5(2) of the PC Act and
sentenced to undergo rigourous imprisonment for 3 years & fine of Rs.3,000/- &
i/d. 9 months rigourous imprisonment for offence u/s.120(B); rigourous
imprisonment for 3 years & fine of Rs.3000/- & i/d. 9 months rigourous
imprisonment for offence 467 IPC; rigourous imprisonment for 3 years & fine of
Rs.3,000/- & i/d. 9 months rigourous imprisonment for offence 406 r/w 109 IPC;
rigourous imprisonment for 3 years & fine of Rs.250/- (for each count) & i/d. 9
months rigourous imprisonment for offence 471 r/w 109 IPC (13 counts); rigourous
imprisonment for 3 years & fine of Rs.3000/- & i/d. 9 months rigourous
imprisonment for offence 161 IPC; rigourous imprisonment for 3 years & fine of
Rs.3,000/- & i/d. 9 months rigourous imprisonment for offence u/s. 5(1)(d) r/w
Sec.5(2)of the PC Act; and rigourous imprisonment for 3 years & fine of
Rs.3,000/- & i/d. 9 months rigourous imprisonment for offence u/s. 5(1)(c)(d)
r/w Sec.5(2)of the PC Act.
A4:- U/s.120(B), 467, 406 r/w 109, 471 r/w 109 (13 counts), 467, 471 r/w 467,
and u/s. 5(1)(c)(d) r/w Sec.5(2) of the PC Act and sentenced to undergo
rigourous imprisonment for 3 years & fine of Rs.3,000/- & i/d. 9 months
rigourous imprisonment for offence u/s.120(B); rigourous imprisonment for 3
years & fine of Rs.3000/- & i/d. 9 months rigourous imprisonment for offence 467
IPC; rigourous imprisonment for 3 years & fine of Rs.3,000/- & i/d. 9 months
rigourous imprisonment for offence 406 r/w 109 IPC; rigourous imprisonment for 3
years & fine of Rs.250/- (for each count) & i/d. 9 months rigourous imprisonment
for offence 471 r/w 109 IPC (13 counts); rigourous imprisonment for 3 years &
fine of Rs.3,000/- & i/d. 9 months rigourous imprisonment for offence 467 IPC;
rigourous imprisonment for 3 years & fine of Rs.3,000/- & i/d. 9 months
rigourous imprisonment for offence 471 r/w 467 IPC; and rigourous imprisonment
for 3 years & fine of Rs.3,000/- & i/d. 9 months rigourous imprisonment for
offence u/s. 5(1)(c)(d) r/w Sec.5(2)of the PC Act.
A5:- U/s.120(B), 467, 406 r/w 109, 471 r/w 109 (13 counts), 477A and 5(1)(c)(d)
r/w Sec.5(2) of the PC Act and sentenced to undergo rigourous imprisonment for 3
years & fine of Rs.3,000/- & i/d. 9 months rigourous imprisonment for offence
u/s.120(B); rigourous imprisonment for 3 years & fine of Rs.3000/- & i/d. 9
months rigourous imprisonment for offence 467 IPC; rigourous imprisonment for 3
years & fine of Rs.3,000/- & i/d. 9 months rigourous imprisonment for offence
406 r/w 109 IPC; rigourous imprisonment for 3 years & fine of Rs.250/- (for each
count) & i/d. 9 months rigourous imprisonment for offence 471 r/w 109 IPC (13
counts); rigourous imprisonment for 3 years & fine of Rs.3,000/- & i/d. 9 months
rigourous imprisonment for offence 477A IPC; and rigourous imprisonment for 3
years & fine of Rs.3,000/- & i/d. 9 months rigourous imprisonment for offence
u/s. 5(1)(c)(d) r/w Sec.5(2)of the PC Act.
A6:- U/s.120(B), 467, 406 r/w 109, 471 r/w 109 (13 counts), 477A and u/s.
5(1)(c)(d) r/w Sec.5(2) of the PC Act and sentenced to undergo rigourous
imprisonment for 3 years & fine of Rs.3,000/- & i/d. 9 months rigourous
imprisonment for offence u/s.120(B); rigourous imprisonment for 3 years & fine
of Rs.3000/- & i/d. 9 months rigourous imprisonment for offence 467 IPC;
rigourous imprisonment for 3 years & fine of Rs.3,000/- & i/d. 9 months
rigourous imprisonment for offence 406 r/w 109 IPC; rigourous imprisonment for 3
years & fine of Rs.250/- (for each count) & i/d. 9 months rigourous imprisonment
for offence 471 r/w 109 IPC (13 counts); rigourous imprisonment for 3 years &
fine of Rs.3,000/- & i/d. 9 months rigourous imprisonment for offence 477A IPC;
and rigourous imprisonment for 3 years & fine of Rs.3,000/- & i/d. 9 months
rigourous imprisonment for offence u/s. 5(1)(c)(d) r/w Sec.5(2)of the PC Act.
A7 & A8:- U/s.120(B), 467, 406 r/w 109, 471 r/w 109 (13 counts) and u/s.
5(1)(c)(d) r/w Sec.5(2) of the PC Act and sentenced to undergo rigourous
imprisonment for 3 years & fine of Rs.3,000/- & i/d. 9 months rigourous
imprisonment for offence u/s.120(B); rigourous imprisonment for 3 years & fine
of Rs.3000/- & i/d. 9 months rigourous imprisonment for offence 467 IPC;
rigourous imprisonment for 3 years & fine of Rs.3,000/- & i/d. 9 months
rigourous imprisonment for offence 406 r/w 109 IPC; rigourous imprisonment for 3
years & fine of Rs.250/- (for each count) & i/d. 9 months rigourous imprisonment
for offence 471 r/w 109 IPC (13 counts); and rigourous imprisonment for 3 years
& fine of Rs.3,000/- & i/d. 9 months rigourous imprisonment for offence u/s.
5(1)(c)(d) r/w Sec.5(2)of the PC Act.
2. The case of the prosecution is as follows:
2.1. 1st Accused S.Rajamohamed was the manager of the Kannangudi Pandyan
Grama Bank during 1981. Accused 5 & 6 were cashier and Junior Assistant
respectively in the said Bank, A2 was the veterinary Doctor attached to the
Kannangudi Panchayat Union, A3 was functioning as Welfare Officer, while A9
(deceased) was the Revenue Inspector at Devakottai, A11 was the Village
Administrative Officer at Sooriyankudiyiruppu. They were Government Servants.
A4 was the President of Sooriyankudiyiruppu Goat Rearers Association. A7 & A8
were independent persons. A10 was an independent agent of the Bank.
2.2.The accused are said to have joined hands towards usurping loan funds
under the Integrated Rural Development Programme (IRDP), released through the
Pandyan Grama Bank and for purchase of milch cows, sheep, carts etc., for the
use of small and very small farmers. They entered into a conspiracy where
under, A4 & A1 with the help of the other accused, made it appear that non-
existent persons had applied for loan, prepared false documents there regards,
used the same as genuine and made it appear that loans were granted there under.
2.3.Similarly, the accused also forged the signature of several persons as
if they had been granted loan under the scheme and usurped the funds. The
finger prints obtained from certain farmers under the guise of affording them
loans were also used towards such wrongful purpose. The 1st accused received a
sum of Rs.2,000/- and the 3rd accused received Rs.1,000/- for himself and
Rs.2,000/- for the 2nd accused as bribe from one Manickam. The 2nd accused
issued false certificate to the effect that cattle has been purchased. By these
means, a sum of Rs.64,000/- was drawn under the IRDP Scheme and usurped by the
accused. The accused 1,2,3,5,6,9,11 were Government officials while A4 was the
Co-operative Society President and accused 7,8 & 10 were independent persons.
It is in respect of such conduct of the accused, that they faced charges and
stood trial before the lower Court. The lower Court was pleased to convict the
accused A1 to A8 as aforementioned.
3. The prosecution examined 40 witnesses and marked Exs.P1 to P136. The
defendants examined one witness and marked Exs.D1 to D8. PW’s 1 to 6 were the
sanctioning authorities. PW7 has prepared the initial report regarding
commission of offences. PW8 was the Manager at the Panchayat Union Office
Kannangudi. He has spoken to Panchayat Union Commissioner recommending 45
persons for availment of subsidy in the purchase of cattle, carts etc., under
IRDP Scheme and that it was for that Commissioner to verify the implementation
as also verify that the recommendation of the Block Development Officer were in
order. He has spoken to A4 making certain recommendations as also that the
Panchayat Union Commissioner made some recommendations on his own. He has
informed that, it was the Block Development Officer who held the records
regarding eligible farmers and the same originally was prepared by the Revenue
Officials. PW7 was the Secretary of the Eriyur Agricultural Co-operative
Society. He knew the 4th accused who forwarded a list enquiring if the persons
mentioned therein had dues with the Society. He had issued certificates in this
regard, but had not verified if such persons were members of the Society. PW10,
11,12, 13,17, 15, 28, 29, 30, 31, 32, 33 were the alleged beneficiaries. PW10,
one of the alleged beneficiaries doubted that the signature on the loan
documents was his. PW11 denies availment of loan and says that there was no
person who answered to a particular name. PW12 also denies that there was a
person who answered to a particular name. PW13 having availed of loan denies
that the photo shown to him was his or that he had affixed his thumb impression.
PW15 admits to having availed loan. PW15 admits to not knowing how many persons
who had particular names resided in his village. PW28 denies having signed any
documents, says that none examined him or obtained signatures for comparison.
PW29 denies the signature as that of his father. It is seen that the father was
alive but has not been examined. PW30 denied applying for loan but admits that
there are others by his name. PW31 admits to having been a guarantor. PW32,
who is his brother in law admits that there are others by his name. PW32 admits
of having stood as guarantor but informs that the photograph on the loan paper
differs. PW 16, 18 & 19 examined for similar purposes, have turned hostile.
PW17 admits of having no knowledge of the numbers of persons in the village who
answer to a particular name. PW20 is the finger print expert. PW21 admits to
having been beneficiary of a loan for purchase of cattle and has been treated
hostile. PW22, 23, 27, 34 and 35 are the Village Administrative Officers who
have issued certificates that there were no persons residing in the village
under their jurisdiction who answer to particular names. PW24 admits to having
duly issued the Chittas which were annexed to loan applications and has been
treated hostile. PW25 denies photographs as that of her husband but informs
that her husband had gone away 27 years back and that she did not know if there
were other persons in a village who answer to his name. PW26 is the General
Manager of the Panchayat Grama Bank whose suspicion was aroused since, for
making of six carts, the quotation of one person was shown. PW36 is the
Secretary of the Eriyur Agricultural Co-operative Society and denied having
issued No Objection Certificates. He informs that his signatures was obtained
in the course of investigation, but that the list of members belonging to the
Society was not seized. PW37 has been examined to show that he was a person who
was engaged as broker for the purchase of cattle under the scheme. Pw38 who has
been examined for a similar purpose has turned hostile. PW39 was then a Head
Constable, who had taken all the thumb impressions that were forwarded to PW20,
the finger print expert. PW40 who was Deputy Superintendent of Police attached
to the vigilance cell, Madurai has spoken of the investigation having been
carried out by one Deputy Superintendent of Police Subbaiah who was retired and
who was a heart patient. He has spoken to the bank officials acting as per the
rules. He admits that the Block Development Officer had been shown as accused
by the Investigating Officer, but that he had been dropped from the list of
accused. He also admits that the list of beneficiaries under the IRDP Scheme
were with the Block Development Officer. He is unable to deny that the entire
sums due under the various loans had been recovered and is unable to specify
what was the loss suffered, if any.
4. DW1, who was a Manager with the Pandyan Grama Bank had spoken of the
loans granted, that they were so granted on the recommendation of the Block
Development Officer, that the loans were granted as per the norms and that an
individual could not avail loan under the IRDP scheme, that only after 1989, the
affixing of photographs on applications were made compulsory, that the
photographs were affixed in the loan applications by the Block Development
Officer and that the loans were granted to the Presidents of Society, who in
turn disbursed the money to members and that all the loans had been duly repaid,
but the accounts had been kept open with a minimal balance owing to the
pendency of the case.
5. Heard Mr.R.N.Amarnath, learned counsel for the appellant/A1 in
Crl.A.268/2001, Mr.Veerakathiravan, learned counsel for the appellant/A2 in
Crl.A.290/2001, M/s.T.Munirathnam Nadu, learned counsel for the appellant/A3 in
Crl.A.254/2001, Mr.Thirumalairaj, Senior Counsel for the appellant/A4 in
Crl.A.296/2001, Mr.A.R.L.Sundaresan, Senior Counsel for the appellant/A5 & A6 in
Crl.A.258/2001 & 299/2001, Mr.T.Muruganantham, learned counsel for the
appellant/A7 & A8 in Crl.A.303/2001 and also Mr.P.Rajendran, learned Government
Advocate(Crl.side) appearing for the respondents.
6. Certain broad features are common to all the accused/appellants and
these appeals may be disposed of on consideration thereof. The investigating
officer in the case has not been examined as a witness and this, in the
circumstances of the case, has caused grave prejudice to the accused. Though
PW40 says that the investigating officer who has retired was available, and that
he was suffering from heart ailment, there is hardly any material to justify his
non-examination. Towards showing that certain persons in whose names loans had
been released were really non-existent persons, certificates of VAO’s PW22, 23,
27, 34 and 35 have been produced. Something more, than the mere certificate of
the VAO ought to have been shown by the prosecution. In this regard as to how
the investigating officer had arrived at the satisfaction that the VAO
certificates reflected the correct position could only be explained by such
investigating officer. It is admitted by PW40 that the Block Development
Officer was put up as an accused by the investigating officer. It is only the
investigating officer who could have explained why he thought it fit to include
the Block Development Officer as an accused.
7. The Hon’ble Apex Court in Habeeb Mohammed v. State of Hyderabad AIR
1954 SC 51, has observed as follows:
‘In this situation it seems to us that Biabani who was a top-ranking
police officer present at the scene was a material witness in the case and it
was the bounden duty of the prosecution to examine him, particularly when no
allegation was made that if produced, he would not speak the truth; and in any
case, the court would have been well advised to exercise its discretionary
powers to examine the witness. The witness was at the time of the trial in
charge of the Police Training School and was certainly available. In our
opinion, not only does an adverse inference arise against the prosecution case
from his non-production as a witness in view of illustration (g) to section 114
of the Indian Evidence Act, but the circumstance of his being withheld from the
court casts a serious reflection on the fairness of the trial.’
The observations would apply in the facts of the present case.
8. The observations of The Karnataka High Court in decision reported in
2004 Crl.LJ. 2255 also are most apt. Paragraph 3, of such decision reads as
follows :
‘3. The serious infirmity that has been recorded by the trial court
is that the Investigating Officer was not examined. Some other officer, who was
to a limited extent dealing with this investigation, has been examined and
certain reasons have been set out on behalf of the State as to why this had
happened. Since the full facts are not before us, we do not desire to make any
comments with regard to the non-examination of the Investigating Officer beyond
pointing out that the trial court was right when it recorded a finding to the
effect that the non examination of the Investigating Officer is fatal to the
prosecution. One of the submissions canvassed on behalf of the State is that in
this case the other officer was examined and therefore, if the proving of any
omissions or contradictions was to be done that this was feasible through the
officer who has been examined and secondly what is contended is that the
examination of the Investigating Officer in the majority of instances is only a
formality. We are unable to accept this last submission because the
Investigating Officer is the principal architect and executor of the entire
investigation. He is a crucial witness for purposes of establishing that there
are omissions and contradictions but more importantly, it is always open to the
defence to question the honesty and calibre of the entire process of
investigation. It is well settled law that where an investigation is defective,
insufficient or dishonest that these factors prove fatal to the prosecution. In
the given instance, the accused was totally precluded from any opportunity of
being able to establish the infirmities in the prosecution case and on this
ground alone the order of acquittal will have to be confirmed.’
9. As regards A1 – A3, one Manickam who is said to have paid bribe to
them had not been called as a witness. In the above circumstance, this Court is
unable to ignore Exh.D3, reflecting the position that heavy burden was cast upon
the persons who were involved in implementing the scheme and the same was pushed
through hastily and that the Block Development Officer was involved in the
process of identification of applicants under the Scheme. D3 was the preliminary
objection raised by the 3rd accused to the charge memo issued to him. The lower
Court has failed to consider if the defence evidence may reflect the correct
position in the case.
10. The report of PW-20, the Finger Print expert cannot be looked into
for the reason that it is the admitted case of the prosecution that the finger
prints were taken by PW-39, who assisted the Investigating Officer in the
conduct of the investigation. PW-39 at the relevant point of time was a Head
Constable. In Shanmugayya & Ors. v. State, 1992 (3) Crimes p.505, a Division
Bench of this Court has held as follows:-
’31. In this context, it would be worthwhile to refer to
certain provisions of the Identification of Prisoners Act 1920 (Act No.33 of
1920). The object of this Act was to authorise taking of measurements and
photographs of convicts and others. The word “measurements” has been defined
under Section 2(a) of the Act to include finger impressions and foot-print
impressions and under Section 2(b), it is stated that ‘Police Officer’ means an
Officer in charge of a police station, a police officer making an investigation
under Chapter XIV of the Code of Criminal Procedure,1898 (5 of 1898) or any
other police officer not below the rank of Sub Inspector. Section 3 of the Act
concerns itself with taking of measurements etc., of convicted persons. In the
instant case we are not concerned with this section. Section 4 deals with
taking of measurements or photographs of non-convicted persons, Section 4 reads
as follows :-
“4. Taking of measurements of photographs of non-convicted
persons,-
Any person – (a) who has been arrested –
(i)Under section 55 of the Code of Criminal Procedure, 1898, or under section 4
of the Bombay Beggars Act, 1945;
(ii)In connection with an offence punishable under Section 122 of the Bombay
Police Act, 1951, or under section 6 or 9 of the Bombay Beggars Act, 1945, or in
connection with an offence punishable with rigorous imprisonment for a term of
one year or upwards, or
(b) in respect of whom a direction or order under section 55 or 56 of the
Bombay Police Act, 1951, or under sub section (1) or (2) of section 23 of the
Bombay Beggars Act, 1945, or under Section 2 of the Bombay Public Security
Measures Act, 1947, has been made, shall, if so required by a Police Officer,
allow his measurements or photograph to be taken in the prescribed manner.”
A look at Section 4 of the Act shows, that any person who had been
arrested in connection with an offence punishable with rigorous imprisonment for
a term of one year or upwards (as far it is relevant to this case) shall, if so
required by a police Officer allow his measurements or photograph to be taken in
the prescribed manner.
32. Section 4 refers to taking of measurements etc. of
habitual offenders against whom restriction order is made. We are not concerned
with this section in the present appeal. Section 5 deals with the power of a
Magistrate to order a person to be measured or photographed. Under this Section
if a Magistrate is satisfied that, for the purpose of any investigation or
proceeding under the Code of Criminal Procedure, 1898, it is expedient to direct
any person to allow his measurements or photograph to be taken, 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 the order and
shall allow his measurements or photograph to be taken, as the case may be, by a
Police Officer. Such an order can be made only by a Magistrate of First Class
and further unless the person has at some time been arrested in connection with
such investigation or proceeding. The Act does not say, that Section 5 refers to
the prescribed manner spelt out in Section 4 of the Act. The power of the
Magistrate under Section 5 of the Act does not seem to affect the power of a
Police Officer, to take finger prints or photographs of the persons arrested in
connection with, the various facets referred to under Section 4 of the Act.
33. Section 6 takes in its fold permissibility of use of
lawful means necessary to secure measurements or photographs when resistance is
offered or refusal is indicated by the person concerned. Such resistance or
refusal, according to Section 6 of the Act shall be deemed to be an offence
punishable under Section 186 of the Indian Penal Code. We are not concerned with
Section 7 of the Act.
34. Section 8 confers powers on the State Government to make
rules for the purpose of carrying into effect the provisions of this Act. It was
stated by the learned Public Prosecutor, that the State of Tamil Nadu had not
framed any rules for the purpose of carrying into effect the provisions of the
Act. After careful consideration of Sections 4 and 5 of the Act, we are unable
to agree with Mr.N.Dinakar, that invariably during investigation a person
arrested must be taken before a Magistrate and orders obtained before the
finger prints of such persons could be taken by a Police Officer. Sections 4 and
5 operate in different fields and obviously if the State Government had made any
rules for the purpose of carrying into effect the provisions of this Act, the
Investigating Officer, ought to have followed such rules which would fall within
the ambit of ”prescribed manner” contemplated under Section 4 of the Act. If
the State Government has not made any rules under the Act, it will be the duty
of the Investigating Officer, to follow Police Standing Order 836. Police
Standing Orders are in the nature of instructions given, to be followed by the
Police force. Police Standing Order 836 (3) (a) defines ”finger prints” as
including prints of thumb and are either ‘rolled’ or ‘plain’. P.S.O.836(3) (f)
defines ‘proficient’ to be an Officer, who has been declared by a Superintendent
of Police or in the City of Madras by the Commissioner of Police, to be
qualified to take clear and well-rolled impressions. The method of taking finger
prints with reference to appliances, forms part of P.S.O. 836 (4) (a). P.S.O.
836(4) (d) states that prints should invariably be taken on the authorised
Finger-Print Slip (Form No.141). It also states, that the headings of the slip
are self-explanatory.
35. If Form No.141 had been used in the instant case, the
various infirmities we have pointed would in all possibility, not have occurred
at all.
36. P.S.O. 836(4)(k)
reads as follows:-
” Finger impressions shall be taken only by officers declared by a
Superintendent or, in the City of Madras, by the Commissioner of Police, to be
qualified to take clear and well-rolled impressions.”
None of the provisions of Police Standing Order 836 had been followed
by the investigating agency. Of course, it is possible to argue that Police
Standing Orders do not have statutory force and therefore non-following of the
Standing Order cannot be held in favour of the appellants. Even if the
provisions of the Police Standing Orders had not been complied with and if the
obtaining of finger prints from the appellants in the manner spoken to by C.Ws.
1 and 2, did inspire confidence, we would have still to consider if non-
following of the procedure of the Police Standing Orders, was only irregular,
which did not affect the fact of finger print impressions having been obtained
by C.W.1 in the presence of C.W.2, claimed by the former.
We have already pointed out several infirmities, which taint the
whole process of obtaining of finger print impressions and probably less said it
would be better for the prosecution. We think it necessary that the State
Government must make rules under Section 8 of the Identification of Prisoners
Act 1920 for the purpose of carrying into effect the provisions of this Act.
Some of the State Governments have made rules. A proper procedure in obtaining
finger prints must be followed for otherwise, the sanctity of scientific
evidence not only gets obliterated but also becomes an exercise in futility”.
11. Again in case of K.Dhanasekaran v. State, 2003 (1) CTC 223, this
Hon’ble Court has, after dealing with the aspect of obtaining finger prints,
also dealt with the question of arriving at a finding of conviction, on the
strength of the expert evidence. This Court has this to say;
” 9. It is also argued that in the absence of any evidence to
show that the specimen signatures were obtained as per the procedure laid down
under Section 5 of the Identification of Prisoners Act, it is not safe to impose
conviction merely on the basis of expert’s opinion. In our case, I have already
referred to the fact that the evidence of Pws.1,3 and 4 are not reliable for the
reasons stated above; accordingly in the absence of compliance of Section 5 of
the Identification of Prisoners Act, now I shall consider whether the conviction
can be based only on the expert’s (P.W.8’s) evidence. The following conclusion
of the Supreme Court in S.Gopal Reddy v. State of A.P. 1996 SCC (Crl.) 792 is
pressed into service: (para 28)
“28. Thus, the evidence of PW.3 is not definite and cannot be said to be of
clinching nature to connect the appellant with the disputed letters. The
evidence of an expert is a rather weak type of evidence and the courts do not
generally consider it as offering ‘conclusive’ proof and therefore safe to rely
upon the same without seeking independent and reliable corroboration. In Magan
Bihari Lal v.State of Punjab, 1977 (2) SCC 210: 1977 SCC (Cri.) 313, while
dealing with the evidence of a handwriting expert, this Court opined : (SCC
pp.213-14, para-7)
“… We think it would be extremely hazardous to condemn the appellant
merely on the strength of opinion evidence of a handwriting expert. It is now
well settled that expert opinion must always be received with great caution and
perhaps none so with more caution than the opinion of a handwriting expert.
There is a profusion of precedential authority which holds that it is unsafe to
base a conviction solely on expert opinion without substantial corroboration.
This rule has been universally acted upon and it has almost become a rule of
law. It was held by this Court in Ram Chandra v. State of U.P., AIR 1957 SC 381
: 1957 Crl LJ 559 that it is unsafe to treat expert handwriting opinion as
sufficient basis for conviction, but is may be relied upon when supported by
other items of internal and external evidence. This Court again pointed out in
Ishwari Prasad Misra v. Mohdn. Isa, AIR 1963 SC 1728 : 1963 BLJR 226 that expert
evidence of handwriting can never be conclusive because it is, after all,
opinion evidence, and this view was reiterated in Shashi Kumar Banerjee v.
Subodh Kumar Banerjee, AIR 1964 SC 529 where it was pointed out by this Court
that expert’s evidence as to handwriting being opinion evidence can rarely, if
ever, take the place of substantive evidence and before acting on such evidence,
it would be desirable to consider whether it is corroborated either by clear
direct evidence or by circumstantial evidence. This Court had again occasion to
consider the evidentiary value of expert opinion in regard to handwriting in
Fakruddin v. State of M.P., AIR 1967 SC 1326 : 1967 (2) Andh LT 38 and it
uttered a note of caution pointing out that it would be risky to found a
conviction solely on the evidence of a handwriting expert and before acting upon
such evidence, the court must always try to see whether it is corroborated by
other evidence,direct or circumstantial.”
It is clear from the above judgment that it is not desirable to impose
conviction solely on the evidence of expert without corroborative evidence
either direct or circumstantial.”
Thus it would be seen that the report of the Finger Print expert does not carry
forward the prosecution case.
12. Whatever be the other merits in the prosecution case, the same get
obliterated owing to the above stated glaring defects. Given the same, the
prosecution case would fail and consequently, these appeals shall stands
allowed. Fine amount paid if any, shall be refunded to the appellants.
jvm/avr
To
1.Deputy Superintendent of Police
Vigilance and Anti-Corruption Wing,
Sivaganga.
2.The Additional Public Prosecutor,
Madurai Bench of Madras High Court, Madurai.