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PETITIONER: STATE (THROUGH CBI/NEW DELHI)

       Vs.

RESPONDENT: S.J. CHOUDHARY

DATE OF JUDGMENT22/03/1990

BENCH: PANDIAN, S.R. (J) BENCH: 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.

HEADNOTE:     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

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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]

JUDGMENT:     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

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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

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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-

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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

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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. P.S.S.                       Appeal referred to Larger Bench 131