State Vs.
S.J. Choudhary [1990] INSC 102 (22 March 1990)
Pandian,
S.R. (J) Pandian, S.R. (J) Reddy, K. Jayachandra (J)
CITATION:
1990 AIR 1050 1990 SCR (2) 124 1990 SCC (2) 481 JT 1990 (2) 15 1990 SCALE
(1)617
ACT:
Indian
Evidence Act. 1872.' S. 45--Opinion of typescript expert--Whether admissible in
evidence --Question referred to larger Bench.
HEAD NOTE:
A
device parcel containing camouflaged live hand grenade exploded in the hands of
the addressee resulting in his instantaneous death. The police collected from
the scene of incident the typewritten pieces of the paper in which the grenade
had been wrapped and sent them to the Central Foren- sic Science Laboratory where they succeeded in partially
reconstructing the name and address of the deceased. These were then examined
by the Head of the Document Division in the said Laboratory with reference to
the specimen of typing prints taken from the commercial college where they were
alleged to have been got typed. He opined that on balance of similarities and
dissimilarities it was reasonable to con- clude that the type scripts found on
the slip pasted on the wrapper of the parcel had been typed from one, of the
ma- chines of the college as both the impressions were identi- cal.
At the
trial the prosecution wanted to examine the said expert to prove the fact. This
was resisted by the defence on the ground that the evidence of such typewriting
expert was inadmissible under s. 45 of the Indian Evidence Act as it did not
fall within its ambit. The trial court relying on the observations to that
effect in Hanumant & Anr. v. State of Madhya Pradesh, [1952] SCR 1091, dismissed the prayer.
The
High Court dismissed the State's revision petition in limine.
In the
appeal by the State it was submitted that the word 'science' occurring in s. 45
of the Evidence Act should be held comprehensive enough to include the opinion
of an expert in regard to transcript as well in view of the march of science.
Referring
the matter to the larger Bench, the Court,
HELD:
By the march of time, there is rapid development in the 125 field of forensic
science and it has become imperative to match the said march of modern vistas
of scientific knowl- edge. The question in the instant case whether the opinion
of an expert in regard to type script would fall within the ambit of s. 45 of
the Evidence Act should, therefore, be examined in detail and decided by a
Large Bench as the judgment in Hanumant's case was rendered by a Bench of three
Judges. [130D, G]
CRIMINAL
APPELLATE JURISDICTION: Criminal Appeal No. 461 of 1987.
From
the Judgment and Order dated 20.5.1987 of the Delhi High Court in Criminal
Revision No. 105 of 1987.
Ashok
Desai, Additional Solicitor General, P.K. Chaube, G. Venkatesh Rao, Ms. A. Subhashini
and P.K. Choudhary for the Appellant.
R.K. Garg,
J.P. Pathak and P.H. Parekh for the Respondent.
The
Judgment of the CoUrt was delivered by S. RATNAVEL PANDIAN, J. The State
represented by C.B.I., New
Delhi has directed
this appeal against the Order dated 20.5.1987 of the High Court of Delhi passed
in Criminal Revision No. 105 of 1987 dismissing the petition of the petitioner
in limine. The relevant facts which have given rise to this appeal can be
stated thus:
The
respondent, S.J. Choudhary is taking his trial before the Additional Sessions
Judge, New Delhi for the offences under Section 302
I.P.C. and Sections 3 and 4 of the Explosive Substances Act in Sessions Case
No. 36 of 1983. According to the prosecution that on 2.10.1982 at about 5.45 p.m., the deceased in this case, namely, Krishan Sikand
received a parcel addressed to him. The deceased being unaware of the
camouflaged contents opened the parcel which on opening exploded resulting in
the instantaneous death of the deceased. Relating to this incident, a case was
registered at Hazrat Nizamuddin Police Station as FIR No.
305
dated 2.10.1982. The investigation was taken up by the police of the said
police station. Thereafter, the investi- gation was transferred to Crime
Branch, Delhi on the very next day i.e. on 3.10.1982 and finally in March 1983
to the Central Bureau of Investigation where it was registered as case RC
3/83-CBI/DSPE/CIUI(P)/New Delhi. The respondent/accused was arrested by the
C.B.I. on 1.8.83.
Under
the orders of Court, the 126 custody of the respondent was handed over to the
CBI for sometime. After completing the investigator the CBI laid the
charge-sheet on 28.10.1983.
Presently,
the case is pending trial before the Addi- tional Sessions Judge, Delhi. While the petitioner in the SLP,
filed in August, 1987 would state that as many as 63 prosecution witnesses have
been examined and PW-64 is in the witness box, the respondent in his affidavit
dated 21.2. 1990 has stated that so far 67 witnesses have been examined.
Be
that as it may, according to the prosecution the cover of the device parcel
containing camouflaged live hand grenade was found pasted with a typewritten
name and address of the deceased, Krishan Sikand on a white slip and the
explosion of the hand grenade resulted in the shattering of the materials into
pieces inclusive of the said slip. The police collected from the scene of
incident the typewritten pieces of the paper in which the grenade had been
wrapped amongst the debris and remanents which were sent to the Central
Forensic Science Laboratory for examination and expert opinion. In the
laboratory, the parcel sent by the Investigating Agency for examination was
opened by PW-61, Dr. G.R. Prasad, Head of the Ballistic Division on 12.10.1982.
He while examining the contents of the parcel succeeded in partially
reconstructing the typewritten name and address of the deceased from the
shattered pieces of the slip. It is the version of the prosecution that on
5.8.83, while the respondent was in the custody of the CBI pursuant to the
order of the Court, he made a voluntary confession which led to the discovery
of the fact that the address on the aforesaid parcel was got typed by him from
a commercial college namely, Janta Commercial College at I-43, Lajpat Nagar-II,
New Delhi. The Investigating Agency took the specimen of typing prints from the
13 English typewriters found in the said college. The re-constructed typed
address and the specimen type-prints were examined by Sh. S.K. Gupta. Head of
Document Division in the Central Forensic Science Laboratory. Mr. S.K. Gupta
gave his opinion that on balance of similarities and dissimilarities, it is a asona-
ble to conclude that the typescripts found on the slip pasted on the wrapper of
the parcel collected from the scene have been typed from one of the machines of
the Janta Com- mercial College as both the impressions are identical. Now, the
prosecution wants to examine Mr. S.K. Gupta as an expert to prove the above
fact. This request of the prosecution to examine Mr. S.K. Gupta was stoutly
resisted by the learned counsel of the accused on the ground that the evidence
of such typewriting expert is 127 inadmissible under Section 45 of the Indian
Evidence Act as it does not fall within its ambit. It seems from the. im- pugned
order that several decisions were cited at the Bar by both the parties but the
Trial Court on the strength of certain observations made by this Court in Hanumant
& Anr. v. State of Madhya
Pradesh, [1952] SCR
1091 dismissed the prayer of the prosecution holding thus:
"It
shows that Hon'ble Judges of the Supreme Court meant that such evidence cannot
be brought on record and be evaluated by the Court. It is well settled that if
their Lordships of the Supreme Court clearly intended to declare the law on a
particular point then even though the observa- tions may be 'obiter dictum',
they are nevertheless binding upon the High Court and subordinate Courts.
Under
these circumstances, I uphold the objections raised by the counsel of the
accused and order that Sh. S.K. Gupta, who is sought to be examined as an
expert on type- written documents cannot be examined to give evidence on this
point." On being dissatisfied with the above order of the High Court, this
criminal appeal is filed by the State.
For
proper understanding and appreciation of the ques- tion involved in this case,
the relevant portion of the observation of this Court in Hanurnant's case on
the strength of which the High Court has passed the impugned order may be
reproduced hereunder:
"Next
it was argued that the letter was not typed on the office typewriter that was
in use in those days, viz. Art. B and that it had been typed on the typewriter
Art. A which did not reach Nagpur till the end of 1946. On this point evidence
of certain experts was led. The High Court rightly held that opinions of such
experts were not admissible under the Indian Evidence Act as they did not fail
within the ambit of Section 45 of the Act. This view of the High Court was not
contested before us. It is curious that the learned Judge in the High Court,
though he held that the evidence of the experts was inadmissible, proceeded
nevertheless to discuss it and placed some reliance on it." Though a
lengthy argument was advanced by the respective 128 counsel for both the
parties by citing a series of decisions in support of their respective
contentions, we are not adverting to all those contentions except to the
relevant one, as we are of the view that the matter requires an in depth
analysis and examination by a larger Bench in view of the observation in Hanumant's
case.
The
learned Solicitor-General has submitted that the words Science or Art'
occurring in Section 45 of the Indian Evidence Act should be given wide and
liberal construction so as to cover all ranches of specialised knowledge to the
formation of opinion, that by the march of science, the evidence of expert
regarding type script has assumed impor- tance, that such expert evidence on
type script needs to be considered at par with the evidence of other experts
brought within the ambit of Section 45 of the Evidence Act, and therefore, the
expert opinion of Mr. S.K. Gupta cannot be shut out as being inadmissible.
According to him, the brief observation of this Court in Hanumant's case
(supra) cannot be construed as ratio-decidendi binding on this Court or even obiter
dictum but it is only a passing observation as there was no issue in that case
as to whether the expert's testimony on type script was admissible or not under
the Evidence Act and consequently there was no discussion of law on that
subject and in fact, there was no contest on the question of the admissibility
of the evidence of an expert regarding typed documents. He would reiterate that
the judgment in Hanumant's case has not declared the law in regard to the
admissibility of the testimony of an expert in regard to typescript and that
the learned Judges have pro- nounced no independent opinion upon the same. In
support of this submission, firstly he drew our attention to the fol- lowing
passage appearing in Woodrofee and Ameerali's Law of Evidence, which reads
thus:
"The
Supreme Court has held in Hanumant v, State of M.P. that the opinion of an
expert that a particular letter was typed on a particular typewriting machine
does not fall within the ambit of section 45 of the Evidence Act and it is not
admissible. It is respectfully submitted it may require consideration in the
light of the modern knowledge indicated to some extent by the research
materials which show that detection of forgeries of typewritten documents has
become an integral part of the science of questioned documents." Secondly,
he brought to the notice of this Court the opinion expressed by the Law
Commission in its 69th Report (Vol. IV) in Chap- 129 ter 17 captioned 'Opinion
of Expert' wherein the Law Commis- sion after referring to the decision in Hanumant's
case stated thus:
"17.26
One could regard these observations as not laying down a definite view on the
subject. But the words "rightly held" could be construed as approving
the negative view.
17.31.
We, therefore, recommend that Section 45 should be amended so as to include
identity of typewriting".
According
to the learned Solicitor-General, as viewed by Woodrofee and Arneerali in 'Law
of Evidence' and by the Law Commission in its 69th Report, the word 'science'
occurring in Section 45 should be held comprehensive enough to include the
opinion of an expert in regard to the transcript as well. But the acceptability
or otherwise of an expert testi- mony on typewritten documents would depend
upon the satis- faction of the Court about the specialised skill and experi- ence
of that expert on that subject. Finally, he requested that this Court
notwithstanding the passing observation in Hanurnant's case be pleased to
examine in detail the ques- tion of the admissibility or otherwise of an expert
testimo- ny on type script and lay down the law on this subject.
Mr.
R.K. Garg, senior counsel appearing on behalf of the respondent vehemently
urged that the observation in Hanu- mant's case cannot be discarded or brushed
aside as a pass- ing observation and if that argument is to be accepted by
treating the view expressed by this Court as gratis dicta and to declare law on
the subject ignoring the view in Hanumant's case it would be tantamount to
saying that the view expressed by the learned three Judges in that case as
having been wrongly held and therefore, the argument of the learned Solicitor
General has to be discountenanced. The proceeding of the trial which has
already been considerably delayed on this issue which is only academic so far as
this case is concerned and so the respondent should not be sub- jected to
immeasurable hardship. According to him, the High Court has passed this
impugned order only on the strength of the observation in Hanumant's case and
rejected the plea of the prosecution to permit it to examine Sh. S.K. Gupta as
an expert and, therefore, the impugned order can neither said to be incorrect
nor it calls for any interference. He adds that this Court should not dissent
lightly from the previous decision of this Court merely on the ground that the
con- trary view appears to be preferable and that the power of review must be
exercised with due care and caution and that too only for advancing the public
well being in the light of the surrounding cir- 130 cumstances. In support of
this submission, he places reli- ance in The Bengal Immunity Company Ltd. v.
The State of Bihar & Ors., [1955] 2 SCR 603 at
630. He continues to state that this Court should exercise its discretionary jurisdic-
tion under Article 136 of the Constitution of India only in cases where there
is violation of the principles of natural justice, causing substantial and
grave injustice to parties or which raise important principles of law requiring
eluci- dation and final decision of this Court or which disclose such of the
exceptional or special circumstances which merit the consideration of this
Court on a particular issue. He cites the decision of this Court in Bengal
Chemical & Phar- maceutical Works Ltd. Calcutta v. Their Workmen, [1959] 2 Suppl.
SCR 136 at 140 in support of his later submission.
Finally,
he states that the facts and circumstances of the case on hand do not warrant
examination of the request made by the appellant.
After
bestowing our anxious consideration on the ques- tion of law involved, we
without expressing any view at this stage on the observation made in Hanumant's
case feel that the question with regard to the admissibility of the opinion of
an expert on type script should be examined in detail and decided. Needless to
say that by the march of time, there is rapid development in the field of
forensic science and, therefore, it has become imperative to match the said
march of modern vistas of scientific knowledge, the question whether the
opinion of an expert in regard to type script would fall within the ambit of
Section 45 of the Evidence Act has to be decided. In fact, when the SLP in this
matter came up for admission, the Bench considering the importance of the
question involved made the following order:
"Special
leave granted.
Since
the question involved is important and is involved in many cases, it is
desirable that it should be heard as early as possible and the matter be
mentioned to Hon'ble the Chief Justice for appropriate directions." Taking
the overall view of this matter, we feel that this important question of law
involved in this case is to be examined in detail and decided by a larger Bench
as the judgment in Hanumant's case was rendered by three learned Judges of this
Court. Since the matter is urgent, it may be posted for hearing at an earliest
point of time so that the trial of the case may not be further delayed.
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