IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE P.B. BAJANTHRI W.P. NOs.39657-659 OF 2018 (GM-RES) BETWEEN:
1. NAINAR ABBAS ALI @ APPAS ALI @ LIBRARY ABBAS S/O. NAINAR MOHAMMED AGED ABOUT 28 YEARS R/AT H.NO.11/23, 4TH STREET ISMAILPURAM, MUNISALAI NELPETTAI MADURAI, TAMILNADU- 625 001 2. M SAMSUN KARIM RAJA @ KARIM @ ABDUL KARIM S/O.JAINULABUDDIN AGED ABOUT 23 YEARS R/AT NO.44, 1ST STREET MANMALAIMEDU, K.PUDUR MADURAI TAMILNADU- 625 007 3. S.DAWOOD SULAIMAN S/O.DAWOODSAIT MOHAMMED ABDULLAH AGED ABOUT 23 YEARS R/AT NO. 23, KARIM RAJA SHAH MASJID, 1ST STREET VILAKKUTHOON PS NELLAPETTAI, MADURAI TAMILNADU-625 001 PETITIONERS NO.1 TO 3 ARE IN JUDICIAL CUSTODY … PETITIONERS (BY SRI.MOHAMMED TALIR, ADV.) AND:
SUPERINTENDENT OF POLICE NATIONAL INVESTIGATION AGENCY MHA GOVT. OF INDIA BEGUMPET, HYDERABAD TELANGANA-500 016 ... RESPONDENT THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 R/W SECTION 482 OF CR.P.C. PRAYING TO SET ASIDE THE IMPUGNED ORDER VIDE DATED: 28.08.2018 IN SPL. C.C.NO.223/2017. PENDING ON THE FILE OF HON’BLE XLIX ADDL. CITY CIVIL J AND SESSIONS JUDGE (SPECIAL COURT FOR TRIAL OF NIA CASES) AT BANGALORE (CCH-50) THE SAME IS PROVIDED AT ANNEXURE-G AND ETC.
THESE PETITIONS COMING ON FOR PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Petitioners have questioned the validity of order dated 28.8.2018 by which petitioner’s I.A. filed under Section 45 of the Indian Evidence Act seeking an order to subject Ex.P8 for examination by handwriting expert of Forensic lab, Bengaluru is dismissed.
2. Learned counsel for the petitioners submitted that certain receipt (Annexure-C) issued from the office of the Police Commissioner, Mysore City is required to be sent for Handwriting Expert of Forensic Science Lab, Bengaluru for the reason that it was alleged that such write ups are by two persons. Further, it is contended that there is overwriting. Court below considered Ex.P8 with reference to suggestions and answers at para Nos.8 and 9 r/w deposition of PW.9 pertains to document at Ex.P8. Deposition of PW.9 is sufficient to answer the genuinity of Ex.P8. Further, at para Nos.12 and 15 in Spl. C.C. No.223/2017 on the file of XLIX Additional City Civil & Sessions Judge (Special Court for trial of NIA Cases) At Bengaluru reads as under:
12. That the genuinity or otherwise of Ex.P8 is not a fact in issue of the case on hand. Ex.P8, according to the prosecution, was prepared in the course of investigation and submitted along with the charge sheet so as to substantiate the fact that on the date of explode the local police and the expert police personnel visited the spot of incident and examined the same. Therefore, the very purpose of examination of PW-9 and marking of documents at Ex.P-8 is to prove the said fact.
15. It is needless to mention herein that Sec.45 of Indian Evidence Act does fall within Chapter 2, which deals with the relevancy of the facts. It is crystal clear that Sec. 45 of Indian Evidence Act, as pointed out by learned Spl. P.P. narrates the circumstances, under which the opinion of expert is relevant. According to Sec.45 of Indian Evidence Act, whenever a court of law has to form an opinion in respect of a Foreign law, in respect of Science or Art, in respect of handwriting or finger impressions, the opinion upon that point of experts skilled in such foreign law, science or Art, handwriting and finger impressions is relevant. It is also clear that Sec. 45 does not give any right to any party to a litigation before the Court of law to seek necessary orders enabling such litigant to have expert opinion. Therefore, on this ground too, the IA under consideration deserves to be dismissed.
3. The petitioners could not apprise this Court as to what is the error committed by the Court below in respect of the order relating to rejection of I.A. under Section 45 of the Indian Evidence Act with reference to Ex.P8 except stating that Ex.P8 is written by two persons. Perusal of Ex.P8 with the naked eye, there is no difference of handwriting to say that it was written by two persons. Thus, petitioner has not made out a case so as to interfere with the order dated 28.8.2018 in Spl. C.C. No.223/2017 pending on the file of XLIX Addl. City Civil Judge and Sessions Jude (Special Court for Trial of NIA Cases) at Bengaluru (CCH-50). Accordingly, writ petitions stand dismissed.
Sd/- JUDGE BS