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Thursday, September 27, 2012

I. In respect of an incident of rape, an FIR was lodged. The Dy.S.P. recorded the statement of the prosecutrix, wherein she narrated the facts alleging rape against the appellant. II. The prosecutrix, appeared before the Chief Judicial Magistrate, Sirohi, on 9.4.1997 and lodged a complaint, stating that the police was not investigating the case properly. She filed an application that her statement be recorded under Section 164 Cr.P.C. III. The prosecutrix had signed the said application. It was also signed by her lawyer. However, she was not identified by any one. IV. There is nothing on record to show with whom she had appeared before the Court. V. From the signatures on the FIR and Medical Report, it appears that she is not an educated person and can hardly form her own signatures. VI. Thus, it leads to suspicion regarding how an 18 year old, who is an illiterate rustic villager, reached the court and how she knew that her statement could be recorded by the Magistrate. VII. More so, she appeared before the Chief Judicial Magistrate, Sirohi, and not before the area Magistrate at Sheoganj. VIII. The Chief Judicial Magistrate on the same day disposed of the application, directing the Judicial Magistrate, Sheoganj, to record her statement. IX. The prosecutrix appeared before the Judicial Magistrate, Sheoganj, at a far distance from Sirohi, where she originally went, on 9.4.1997 itself, and her statement under Section 164 Cr.P.C. was recorded on 10.4.1997 as on 9.4.1997, since the public prosecutor could not produce the Case Diary. X. Signature of the prosecutrix on the papers before the Chief Judicial Magistrate, Sirohi and Judicial Magistrate, Sheoganj, do not tally with the signatures on the FIR and Medical Report. There is apparent dissimilarity between the same, which creates suspicion. XI. After completing the investigation, charge-sheet was filed before the Judicial Magistrate, Sheoganj, on 20.3.1998. XII. The Judicial Magistrate, Sheoganj, vide order dated 25.3.1998, refused to take cognizance of the offences on the basis of the statement of the prosecutrix, recorded under Section 164 Cr.P.C. The said court erred in not taking cognizance on this count as the said statement could not be relied upon. XIII. The revisional court as well as the High Court have rightly held that the statement under Section 164 Cr.P.C. had not been recorded correctly. The said courts have rightly set aside the order of the Judicial Magistrate, Sheoganj, dated 25.3.1998, not taking the cognizance of the offence. XIV. There is no provision analogous to Section 207-A of the old Cr.P.C. The Judicial Magistrate, Sheoganj, should have committed the case to the Sessions court as the said application could be entertained only by the Sessions Court. More so, it was not permissible for the court to examine the weight of defence evidence at that stage. Thus, the order is insignificant and inconsequential being without jurisdiction. 25. In view of the above, we do not find any force in the appeal. It is, accordingly, dismissed. The judgment and order of the revisional court, as well as of the High Court is upheld. The original record reveals that in pursuance of the High Court’s order, the case has been committed by the Judicial Magistrate, Sheoganj, to the Court of Sessions on 23.4.2012. The Sessions Court is requested to proceed strictly in accordance with law, expeditiously and take the case to its logical conclusion without any further delay. We make it clear that none of the observations made herein will adversely affect either of the parties, as the same have been made only to decide the present case.


REPORTABLE


                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION


                      CRIMINAL APPEAL NO. 1496 of 2012




      Ajay Kumar Parmar                                       …Appellant


                                   Versus


      State of Rajasthan
           …Respondent




                               J U D G M E N T




      Dr. B.S.CHAUHAN, J.




      1.    This appeal has been preferred against the impugned judgment and
      order dated 9.1.2012 passed  by  the  High  Court  of  Judicature  for
      Rajasthan at Jodhpur in S.B. Criminal Revision  Petition  No.  458  of
      1998, by way of which, the High Court  has  upheld  the  judgment  and
      order dated 25.7.1998,  passed  by  the  Sessions  Judge  in  Revision
      Petition No. 5 of 1998. By way of the said revisional order, the court
      had reversed the order of discharge of the appellant for the  offences
      under Sections 376 and 342 of the Indian Penal Code, 1860 (hereinafter
      referred to as the ‘IPC’) dated  25.3.1998,  passed  by  the  Judicial
      Magistrate, Sheoganj.
      2.    The facts and circumstances giving rise to this  appeal  are  as
      follows:
      A.    An FIR was lodged  by  one  Pushpa  on  22.3.1997,  against  the
      appellant stating that the appellant had raped her  on  10.3.1997.  In
      view thereof, an investigation ensued and the appellant was  medically
      examined. The prosecutrix’s clothes were then also recovered and  were
      sent for the preparation of FSL report.  The prosecutrix was medically
      examined on 22.3.1997, wherein it was opined by the  doctor  that  she
      was habitual to sexual intercourse, however, a final opinion regarding
      fresh intercourse would be given only after receipt of report from the
      Chemical Examiner.


      B.    The statement of the prosecutrix was recorded under Section  161
      of Code of Criminal Procedure, 1973, (hereinafter referred to as  `the
      Cr.P.C.’), by the  Dy.S.P.,  wherein  she  narrated  the  incident  as
      mentioned in the FIR, stating that she had been employed as a  servant
      at the residence of one sister Durgi for the past six years. Close  to
      the residence of sister Durgi, Dr. D.R. Parmar and his son Ajay Parmar
      were also residing. On the day  of  the  said  incident,  Ajay  Parmar
      called  Pushpa, the prosecutrix home on the pretext that there  was  a
      telephone call for her. When she reached the residence of Ajay Parmar,
      she was raped by him and was restrained from  going  out  for  a  long
      period of time and kept indoors  without  provision  of  any  food  or
      water. However, the next evening, she was pushed  out  surreptitiously
      from the back exit of the said house. She then tried to commit suicide
      but was saved by Prakash Sen and  Vikram  Sen  and  then,  eventually,
      after a lapse of about 10 days, the complaint in question  was  handed
      over to the SP, Sirohi.  Subsequently, she herself appeared before the
      Chief  Judicial  Magistrate,  Sirohi  on  9.4.1997,   and   moved   an
      application before him stating that, although she had  lodged  an  FIR
      under Section 376/342 IPC, the police was not investigating  the  case
      in a correct manner and, therefore,  she wished to make her  statement
      under Section 164 Cr.P.C.


      C.    The Chief Judicial Magistrate,  Sirohi,   entertained  the  said
      application  and disposed it of on the  same  day,  i.e.  9.4.1997  by
      directing the Judicial Magistrate, Sheoganj, to record  her  statement
      under Section 164 Cr.P.C.


      D.    In  pursuance  thereof,  the  prosecutrix  appeared  before  the
      Judicial Magistrate, Sheoganj, which is at a far distance from Sirohi,
      on 9.4.1997 itself and handed over all the  requisite  papers  to  the
      Magistrate.  After examining the order passed by  the  Chief  Judicial
      Magiastrate, Sirohi, the Judicial Magistrate, Sheoganj,  directed  the
      public prosecutor to produce the Case Diary of the case at  4.00  P.M.
      on the same day.


      E.    As the public prosecutor could not produce  the  Case  Diary  at
      4.00 P.M, the  Judicial  Magistrate,  Sheoganj,  directed  the  Public
      prosecutor to produce the Case Diary on 10.4.1997 at  10.00  A.M.  The
      Case Diary was then produced before the said court on 10.4.1997 by the
       Public prosecutor.  The Statement of the  prosecutrix  under  Section
      164 Cr.P.C., was recorded after being identified by the lawyer, to the
      effect that the said FIR lodged by  her  was  false;  in  addition  to
      which, the statement made by her under Section 161 Cr.P.C., before the
      Deputy Superintendent of  Police was also false; and finally  that  no
      offence whatsoever was ever committed by the appellant, so far as  the
      prosecutrix was concerned.


      F.    After the conclusion of  the  investigation,  charge  sheet  was
      filed against the appellant.  On 25.3.1998, the  Judicial  Magistrate,
      Sheoganj,  taking note of the statement given by the prosecrutix under
      Section 164 Cr.P.C., passed an order of not taking cognizance  of  the
      offences under Sections 376 and  342 IPC and not  only  acquitted  the
      appellant but  also  passed  strictures  against  the    investigating
      agency.


      G.    Aggrieved, the public prosecutor filed  a  revision  before  the
      Learned Sessions Judge, Sirohi, wherein,  the  aforesaid  order  dated
      25.3.1998 was reversed  by  order  dated  25.7.1998  on  two  grounds,
      firstly,  that a case under Sections 376 and 342 IPC  was  triable  by
      the Sessions Court and the Magistrate, therefore, had no  jurisdiction
      to discharge/acquit the appellant on any ground whatsoever, as he  was
      bound to commit the case to the Sessions Court,  which was  the   only
      competent court  to  deal  with  the  issue.   Secondly,  the  alleged
      statement of the prosecutrix under Section 164 Cr.P.C. was  not  worth
      reliance as she had not been produced before  the  Magistrate  by  the
      police.


      H.    Being aggrieved by the aforesaid order  of  the  Sessions  Court
      dated 25.7.1998, the appellant moved the High Court and the High Court
      vide its impugned judgment  and  order,  affirmed  the  order  of  the
      Sessions Court on both counts.
            Hence, this appeal.


      3.    Ms. Aishwarya Bhati, learned counsel appearing on behalf of  the
      appellant, has  submitted  that  in  view  of  the  statement  of  the
      prosecutrix as  recorded  under  Section  164  Cr.P.C.,  the  Judicial
      Magistrate, Sheoganj, has rightly refused to take  cognizance  of  the
      offence and has  acquitted the appellant stating that no fault can  be
      found with  the said order, and therefore it is stated that both,  the
      Revisional Court, as well as the High Court committed a serious  error
      in reversing the same.


      4.    On the contrary, Shri Ajay  Veer  Singh  Jain,  learned  counsel
      appearing for the State, has opposed the appeal, contending  that  the
      Magistrate ought not to have refused to take cognizance  of  the  said
      offences and has committed a grave error in acquitting the  appellant,
      after taking note of  the  statement  of  the  prosecutrix  which  was
      recorded under Section 164 Cr.P.C.  The said statement was recorded in
      great haste. It is further submitted  that,  as  the  prosecutrix  had
      appeared before the Magistrate independently, without  any  assistance
      of the police, her statement recorded under Section 164 Cr.P.C. is not
      worth acceptance. Thus, no interference is called for. The  appeal  is
      liable to be dismissed.


      5.    We have considered the rival submissions  made  by  the  learned
      counsel for the parties and perused the records.
            A three Judge bench of this  Court in Jogendra Nahak &  Ors.  v.
      State of Orissa & Ors., AIR 1999 SC 2565, held that Sub-Section  5  of
      Section 165, deals with the statement of  a  person,  other  than  the
      statement of an accused i.e. a confession.  Such a  statement  can  be
      recorded, only and only when, the  person  making  such  statement  is
      produced before the Magistrate by the police. This Court held that, in
      case such a course of action, wherein such person is allowed to appear
      before the Magistrate of his own volition, is made  permissible,   and
      the doors of court are opened to them to come as they please,  and  if
      the Magistrate starts recording all their statements, then   too  many
      persons sponsored by culprits might throng before the portals  of  the
      Magistrate courts, for the purpose of creating record  in  advance  to
      aid the said  culprits.   Such statements would be very helpful to the
      accused to get  bail and discharge orders.


      6.    The said judgment was distinguished by  this  Court  in  Mahabir
      Singh v. State of Haryana, AIR 2001 SC 2503, on facts, but the   Court
      expressed its anguish at the fact that the statement of  a  person  in
      the  said  case  was  recorded  under  Section  164  Cr.P.C.  by   the
      Magistrate, without knowing him personally or without any  attempt  of
      identification of the said person, by any other person.


      7.    In view of the above, it is evident that this case  is  squarely
      covered by the aforesaid judgment of the three Judge bench in Jogendra
      Nahak & Ors. (Supra), which held that  a  person  should  be  produced
      before a Magistrate, by the police for recording his  statement  under
      Section  164  Cr.P.C.  The  Chief  Judicial  Magistrate,  Sirohi,  who
      entertained  the  application  and  further  directed   the   Judicial
      Magistrate, Sheoganj, to record the statement of the prosecutrix,  was
      not known to the prosecutrix in the case and the latter also  recorded
      her statement, without any attempt at  identification,  by  any  court
      officer/lawyer/police or anybody else.


      8.    In Sanjay Gandhi v. Union of India, AIR 1978 SC 514, this  court
      while  dealing with the competence of the Magistrate to  discharge  an
      accused, in a case like the instant one at hand, held :
                 “….it is not open to the committal Court  to  launch  on  a
                 process of satisfying itself that a prima  facie  case  has
                 been made out on the merits. The jurisdiction  once  vested
                 in him under the earlier Code but has been  eliminated  now
                 under the present Code. Therefore, to hold that he  can  go
                 into the merits even for a prima facie satisfaction  is  to
                 frustrate the Parliament's purpose in  re-moulding  Section
                 207-A (old Code) into its present non-discretionary  shape.
                 Expedition was intended by this change  and  this  will  be
                 defeated successfully if interpretatively we  hold  that  a
                 dress rehearsal of a trial  before  the  Magistrate  is  in
                 order. In our view,  the  narrow  inspection  hole  through
                 which the committing Magistrate has to  look  at  the  case
                 limits  him  merely  to  ascertain  whether  the  case,  as
                 disclosed by the police report, appears to  the  Magistrate
                 to show an offence triable solely by the Court of  Session.
                 Assuming the facts to be correct as stated  in  the  police
                 report, …..the Magistrate has simply to  commit  for  trial
                 before the Court of Session. If, by error, a wrong  section
                 of the Penal Code is quoted, he may look into that  aspect.
                 If made-up facts unsupported by any material  are  reported
                 by the police and a sessions offence is made to appear,  it
                 is perfectly open to the Sessions Court under  Section  227
                 CrPC to discharge the accused. This provision takes care of
                 the alleged grievance of the accused.”

       (Emphasis added)


      9.    Thus, it is evident from the aforesaid  judgment  that  when  an
      offence is cognizable by the Sessions  court,  the  Magistrate  cannot
      probe into the matter and discharge the accused. It is not permissible
      for him to do so, even after considering the evidence on record, as he
      has no jurisdiction to probe or look  into  the  matter  at  all.  His
      concern should be to see what provisions of  the  Penal  statute  have
      been mentioned and in case an offence triable by  the  Sessions  Court
      has been mentioned, he must commit the case to the Sessions Court  and
      do nothing else.


      10.   Thus, we are of the considered opinion that the  Magistrate  had
      no business to discharge the appellant.   In fact,  Section  207-A  in
      the old Cr.P.C., empowered the Magistrate to exercise  such  a  power.
      However, in the Cr.P.C. 1973, there is no provision analogous  to  the
      said Section 207-A. He was bound under law, to commit the case to  the
      Sessions  Court,  where  such  application  for  discharge  would   be
      considered. The order of discharge  is  therefore,  a  nullity,  being
      without jurisdiction.


      11.   More  so,  it  was  permissible  for  the  Judicial  Magistrate,
      Sheoganj, to take into consideration the evidence in defence  produced
      by the appellant as it has consistently been held by this  Court  that
      at the time of framing  the  charge,  the  only  documents  which  are
      required  to  be  considered  are  the  documents  submitted  by   the
      investigating agency alongwith the charge-sheet.   Any document  which
      the accused want to rely upon cannot be read  as  evidence.   If  such
      evidence is to be considered, there would be a mini trial at the stage
      of framing of charge. That would defeat the object of  the  Code.  The
      provision about hearing the submissions of the accused  as  postulated
      by Section 227 means hearing  the  submissions of the accused  on  the
      record of the case as filed by the prosecution and documents submitted
      therewith and nothing more. Even if, in a rare case it is  permissible
      to consider  the  defence  evidence,  if  such  material  convincingly
      establishes that the whole  prosecution  version  is  totally  absurd,
      preposterous or concocted, the instant case  does  not  fall  in  that
      category. (Vide: State of Orissa v. Debendra Nath Padhi, AIR  2003  SC
      1512; State of Orissa v. Debendra Nath Padhi, AIR 2005 SC 359;  S.M.S.
      Pharmaceuticals Ltd. v. Neeta Bhalla & Anr., AIR 2005 SC 3512;  Bharat
      Parikh v. C.B.I. & Anr., (2008)  10 SCC 109; and Rukmini  Narvekar  v.
      Vijaya Satardekar & Ors., AIR 2009 SC 1013)


      12.   The court should not pass an order of acquittal by resorting  to
      a course of  not taking cognizance, where prima facie case is made out
      by the Investigating Agency.  More so, it is the duty of the court  to
      safeguard the  right  and  interests  of  the  victim,  who  does  not
      participate in discharge proceedings. At the stage of  application  of
      Section 227, the court has to shift the evidence in order to find  out
      whether or not there is sufficient ground for proceeding  against  the
      accused.  Thus,  appreciation  of  evidence  at  this  stage,  is  not
      permissible. (Vide:  P. Vijayan v. State of Kerala & Anr., AIR 2010 SC
      663; and R.S. Mishra v. State of Orissa & Ors., AIR 2011 SC 1103).


      13.   The scheme of the Code, particularly, the provisions of Sections
      207 to 209 Cr.P.C., mandate the Magistrate to commit the case  to  the
      Court of Sessions,   when  the  charge-sheet  is  filed.   A  conjoint
      reading of these provisions make it crystal clear that  the  committal
      of a case exclusively triable by the Court  of  Sessions,  in  a  case
      instituted by the police is mandatory.
            The scheme of the Code simply provides that the  Magistrate  can
      determine, whether the facts stated in the report make out an  offence
      triable exclusively, by the Court of Sessions.  Once  he  reaches  the
      conclusion that the facts alleged in the report, make out  an  offence
      triable exclusively by the Court of Sessions, he must commit the  case
      to the Sessions Court.


      14.   The Magistrate, in exercise  of  its  power  under  Section  190
      Cr.P.C., can refuse to take  cognizance  if  the  material  on  record
      warrants so.  The Magistrate must, in such a case, be  satisfied  that
      the complaint, case diary, statements of the witnesses recorded  under
      Sections 161 and 164 Cr.P.C., if any, do not make out any offence.  At
      this stage, the Magistrate performs a judicial function.  However,  he
      cannot appreciate the evidence on record and reach a conclusion as  to
      which evidence is acceptable, or can be relied upon.   Thus,  at  this
      stage appreciation of evidence is impermissible. The Magistrate is not
      competent to weigh the evidence and the balance of probability in  the
      case.


      15.   We find no force in  the  submission  advanced  by  the  learned
      counsel for the appellant that the Judicial Magistrate, Sheoganj,  has
      proceeded strictly in accordance with law laid down by this  Court  in
      various judgments wherein  it  has  categorically  been  held  that  a
      Magistrate has a power to drop  the  proceedings  even  in  the  cases
      exclusively triable by the Sessions Court  when  the  charge-sheet  is
      filed by the police.  She has placed  very  heavy  reliance  upon  the
      judgment of this Court in Minu Kumari & Anr. v. State of Bihar & Ors.,
      AIR 2006 SC 1937 wherein this Court placed reliance upon  its  earlier
      judgment in Bhagwant Singh v. Commissioner of Police & Anr., AIR  1985
      SC 1285 and held  that  where  the  Magistrate  decides  not  to  take
      cognizance and to drop the proceeding or takes a view that there is no
      sufficient ground for proceeding against some of the persons mentioned
      in the FIR, notice to informant  and  grant  of  being  heard  in  the
      matter, becomes mandatory.
            In the case at hand, admittedly, the Magistrate  has  not  given
      any notice to the complainant before  dropping  the  proceedings  and,
      thus, acted in violation of the mandatory requirement of law.


      16.   The application filed  before  the  Chief  Judicial  Magistrate,
      Sirohi, has been signed by the prosecutrix, as well as by her counsel.
        However, there has been no identification of the prosecutrix, either
      by the said advocate or by anyone else. The Chief Judicial Magistrate,
      Sirohi, proceeded to deal with the application without  identification
      of the prosecutrix and  has  no  where  mentioned  that  he  knew  the
      prosecutrix personally.  The Judicial  Magistrate, Sheoganj,  recorded
      the statement of the prosecutrix  after  she  was  identified  by  the
      lawyer. There is nothing on record  to  show  that  she  had  appeared
      before the Chief Judicial Magistrate, Sirohi or  before  the  Judicial
      Magistrate, Sheoganj,  alongwith  her  parents  or  any  other  person
      related to her. In such  circumstances,  the  statement  so  recorded,
      loses its significance and legal sanctity.
      17.    The  record  of  the  case  reveals  that  the  Chief  Judicial
      Magistrate, Sirohi, passed an  order  on  9.4.1994.   The  prosecutrix
      appeared before the Judicial Magistrate, Sheoganj, at a place far away
      from Sirohi, on the same date with  papers/order  etc.  and  the  said
      Judicial Magistrate directed the public prosecutor to produce the Case
      Diary on the same date at 4.00 P.M.   The  case  Diary  could  not  be
      produced on the said day.  Thus, direction was issued to  produce  the
      same in the morning of the next day.  The statement  was  recorded  on
      10.4.1997.  The fact-situation reveals that the court  proceeded  with
      utmost haste and any action taken so  hurridly,  can  be  labelled  as
      arbitrary.


      18.   The original record reveals that the prosecutrix had lodged  the
      FIR herself and the same bears  her  signature.    She  was  medically
      examined  the  next  day,  and  the  medical  report  also  bears  her
      signature.  We have compared the aforementioned  signatures  with  the
      signatures appearing upon  the  application  filed  before  the  Chief
      Judicial Magistrate, Sirohi, for recording her statement under Section
      164 Cr.P.C., as also with, the signature on the statement  alleged  to
      have been made by her under Section 164 Cr.P.C.,  and after  examining
      the same, prima facie we are of the view that they have not been  made
      by the same person,  as the two  sets  of  signatures  do  not  tally,
      rather there is an apparent dissimilarity between them.


      19.   Evidence of identity of handwriting has been dealt with by three
      Sections of the Indian Evidence Act, 1872 (hereinafter referred to  as
      the ‘Evidence Act’) i.e. Sections 45, 47 and 73.  Section  73  of  the
      said Act provides for a comparison made by the Court  with  a  writing
      sample given in its presence, or admitted, or proved to be the writing
      of the concerned person. (Vide: Ram Chandra & Anr. v. State  of  Uttar
      Pradesh, AIR 1957 SC 381; Ishwari Prasad Misra v.  Mohammad  Isa,  AIR
      1963 SC 1728; Shashi Kumar Banerjee & Ors. v. Subodh  Kumar  Banerjee,
      AIR 1964 SC 529;  Fakhruddin v. The State of Madhya Pradesh, AIR  1967
      SC 1326; and State of Maharashtra v. Sukhdeo Singh & Anr., AIR 1992 SC
      2100).


      20.         In Murari Lal v. State of Madhya Pradesh, AIR 1981 SC 363,
      this Court, while dealing with the said  issue,  held  that,  in  case
      there is  no  expert  opinion  to  assist  the  court  in  respect  of
      handwriting available,  the  court  should  seek  guidance  from  some
      authoritative text-book and the courts own experience  and  knowledge,
      however even in the absence of the same, it should discharge its  duty
      with or without expert, with or without any other evidence.


      21.   In A. Neelalohithadasan Nadar v. George Mascrene  &  Ors.,  1994
      Supp. (2) SCC 619, this Court considered a case involving an  election
      dispute regarding whether certain voters had voted more than once. The
      comparison of their signatures on the counter foil  of  the  electoral
      rolls with their admitted signatures was in  issue.  This  Court  held
      that in election matters when there is a need of expeditious  disposal
      of the case, the  Court  takes  upon  itself  the  task  of  comparing
      signatures, and thus  it  may  not  be  necessary  to  send  the  said
      signatures for comparison to a handwriting expert. While taking such a
      decision, reliance was placed by the Court, on its  earlier  judgments
      in State (Delhi Administration) v. Pali Ram, AIR 1979 SC 14;  and  Ram
      Pyarelal Shrivastava v. State of Bihar, AIR 1980 SC 1523.


      22.   In O. Bharathan v. K. Sudhakaran & Anr., AIR 1996 SC 1140,  this
      Court considered a similar issue and held that the  facts  of  a  case
      will be relevant to decide where the Court will exercise its power for
      comparing the signatures and where it will  refer  the  matter  to  an
      expert. The observations of the Court are as follows:
                 “The learned Judge in our view  was  not  right......taking
                 upon himself the hazardous task of  adjudicating  upon  the
                 genuineness and authenticity of the signatures in  question
                 even without the assistance of a skilled and trained person
                 whose services could have been easily availed of. Annulling
                 the verdict of popular will is as much a serious matter  of
                 grave  concern  to  the  society  as  enforcement  of  laws
                 pertaining to criminal offences, if not more. Though it  is
                 the province of the expert to act as Judge or jury after  a
                 scientific  comparison  of  the  disputed  signatures  with
                 admitted signatures, the caution administered by the  Court
                 is to the course to be adopted in such situations could not
                 have been ignored unmindful of  the  serious  repercussions
                 arising out of the decision to the ultimately rendered.”


      (See also: Lalit Popli v. Canara Bank & Ors., AIR 2003 SC 1795; Jagjit
      Singh v. State of Haryana & Ors., (2006) 11 SCC 1; Thiruvengada Pillai
      v. Navaneethammal, AIR 2008 SC 1541; and G. Someshwar Rao v.  Samineni
      Nageshwar Rao & Anr., (2009) 14 SCC 677).


      23.   The opinion of a handwriting expert is fallible/liable to  error
      like that of any other witness, and yet, it cannot be brushed aside as
      useless. There is no legal bar to prevent  the  Court  from  comparing
      signatures or handwriting, by  using  its  own  eyes  to  compare  the
      disputed writing with the admitted writing and then from applying  its
      own observation to prove the said  handwritings  to  be  the  same  or
      different, as the case may be, but  in  doing  so,  the  Court  cannot
      itself become an expert in this regard and must refrain  from  playing
      the role of an expert, for the simple reason that the opinion  of  the
      Court may also not be conclusive. Therefore, when the Court takes such
      a task upon itself, and findings are recorded solely on the  basis  of
      comparison of signatures or handwritings, the Court must keep in  mind
      the risk involved, as the opinion formed  by  the  Court  may  not  be
      conclusive and is susceptible to error, especially when  the  exercise
      is conducted by one, not  conversant  with  the  subject.  The  Court,
      therefore, as a matter of prudence and caution should hesitate  or  be
      slow to base its findings solely  upon  the  comparison  made  by  it.
      However, where there is an opinion whether of an  expert,  or  of  any
      witness, the Court may then apply its own observation by comparing the
      signatures,  or  handwritings  for  providing  a  decisive  weight  or
      influence to its decision.


      24.   The aforesaid discussion leads to the following inferences:
        I. In respect of an incident  of  rape,  an  FIR  was  lodged.  The
           Dy.S.P. recorded the statement of the prosecutrix,  wherein  she
           narrated the facts alleging rape against the appellant.
       II. The prosecutrix, appeared before the Chief Judicial  Magistrate,
           Sirohi, on 9.4.1997 and lodged a  complaint,  stating  that  the
           police was not investigating the case  properly.  She  filed  an
           application that her statement be  recorded  under  Section  164
           Cr.P.C.
      III. The prosecutrix had signed the said application.   It  was  also
           signed by her lawyer.  However, she was not  identified  by  any
           one.
       IV. There is nothing on record to show with whom she  had   appeared
           before the Court.
        V. From the signatures on the FIR and Medical  Report,  it  appears
           that she is not an educated person and can hardly form  her  own
           signatures.
       VI. Thus, it leads to suspicion regarding how an 18 year old, who is
           an illiterate rustic villager, reached the  court  and  how  she
           knew that her statement could be recorded by the Magistrate.
      VII. More so, she appeared  before  the  Chief  Judicial  Magistrate,
           Sirohi, and not before the area Magistrate at Sheoganj.
     VIII. The Chief Judicial Magistrate on the same day  disposed  of  the
           application, directing the  Judicial  Magistrate,  Sheoganj,  to
           record her statement.
       IX.  The  prosecutrix   appeared  before  the  Judicial  Magistrate,
           Sheoganj, at a far distance from Sirohi,  where  she  originally
           went, on 9.4.1997 itself, and her statement  under  Section  164
           Cr.P.C. was recorded on 10.4.1997  as  on  9.4.1997,  since  the
           public prosecutor could not produce the Case Diary.
        X. Signature of the prosecutrix on  the  papers  before  the  Chief
           Judicial Magistrate, Sirohi  and Judicial Magistrate,  Sheoganj,
           do not tally with the signatures on the FIR and Medical  Report.
           There is apparent dissimilarity between the same, which  creates
           suspicion.
       XI. After  completing  the  investigation,  charge-sheet  was  filed
           before the Judicial Magistrate, Sheoganj, on 20.3.1998.
      XII. The Judicial Magistrate, Sheoganj, vide order  dated  25.3.1998,
           refused to take cognizance of the offences on the basis  of  the
           statement of the prosecutrix, recorded under Section 164 Cr.P.C.
             The said court erred in not taking cognizance on this count as
           the said statement could not be relied upon.
     XIII.  The revisional court as well as the  High  Court  have  rightly
           held that the statement under Section 164 Cr.P.C. had  not  been
           recorded correctly.  The said courts have rightly set aside  the
           order of the Judicial Magistrate, Sheoganj, dated 25.3.1998, not
           taking the cognizance of the offence.
      XIV. There is no provision analogous to  Section  207-A  of  the  old
           Cr.P.C. The Judicial Magistrate, Sheoganj, should have committed
           the case to the Sessions court as the said application could  be
           entertained only by the Sessions Court.  More  so,  it  was  not
           permissible for the court  to  examine  the  weight  of  defence
           evidence at that stage. Thus, the  order  is  insignificant  and
           inconsequential being without jurisdiction.


      25.   In view of the above, we do not find any force in the appeal. It
      is, accordingly, dismissed. The judgment and order of  the  revisional
      court, as well as of the High Court is  upheld.  The  original  record
      reveals that in pursuance of the High Court’s order, the case has been
      committed by the  Judicial  Magistrate,  Sheoganj,  to  the  Court  of
      Sessions on 23.4.2012.   The Sessions Court is requested  to   proceed
      strictly in accordance with law, expeditiously and take  the  case  to
      its logical conclusion without any further delay.  We  make  it  clear
      that none of the observations made herein will adversely affect either
      of the parties, as the same have been made only to decide the  present
      case.


                                       ……..………………………J.
                                        (Dr. B.S. CHAUHAN)



                                                    ……………….………………………………………J.
                             (FAKKIR     MOHAMED     IBRAHIM     KALIFULLA)




      New Delhi,
      September 27,  2012