Dismissed

Hardeep Kaur v. Gurmail Kaur and Ors.

Punjab & Haryana HC17 Nov 2008CR/2630/2007

Case brief

AI extract

What is this about?

This revision petition challenged a trial court order directing the petitioner to provide thumb impressions for comparison in a civil suit alleging fraud. The High Court upheld the trial court's authority under Section 73 of the Evidence Act, distinguishing between criminal investigation stages and civil litigations.

What did the court decide?

Petition dismissed; trial court order directing petitioner to give thumb impressions upheld.

Hardeep Kaur Vs Gurmail Kaur and Ors. — Civil Procedure and Limitation | Punjab & Haryana HC (2008)

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CR No.2630 of 2007

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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CR No.2630 of 2007

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Date of Decision: 17.11.2008

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Hardeep Kaur alias Gurdeep Kaur

....Petitioner

Vs.

Gurmail Kaur & Ors.

..Respondents

Coram: Hon'ble Mr. Justice Vinod K.Sharma

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Present: Mr.G.S.Punia, Advocate, for the petitioner.

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Ms.Monika Geol, Advocate, for the respondent.

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Vinod K.Sharma,J.

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Plaintiff/respondent moved an application for directing the petitioner/defendant No.2 in the suit to give her specimen thumb impressions.

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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.

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CR No.2630 of 2007

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The plaintiff/respondent claimed that she wanted to get thumb impressions of petitioner herein compared from the document Finger Print Expert.

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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.

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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.

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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.

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CR No.2630 of 2007 3

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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.

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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.

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In the civil suit the petitioner is defendant No.2 and there are specific allegations in the suit.

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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:-

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“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

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CR No.2630 of 2007

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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.”

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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

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CR No.2630 of 2007

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Evidence Act reads as under:-

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“ 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.

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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.

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This section applies also, with any necessary modifications, to finger impressions.” Power of Court:

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xxxx

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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.”

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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.

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CR No.2630 of 2007

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However, if the instructions are not followed the court would be free to presume what is most closure to justice.

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The words 'any person' used in Section 73 of the Evidence Act would also include a party to the suit.

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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.

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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.

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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.

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Petition dismissed.

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17.11.2008 (Vinod K.Sharma) rp Judge

Hardeep Kaur v. Gurmail Kaur and Ors.

Case brief

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Hardeep Kaur v. Gurmail Kaur and Ors.

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