This is the first part of Bi-partite article series.
Introduction
Appointment of commission is a daily thing in the civil courts, the most usual being appointment for local inspection, to get a report of the disputed spot. Out of the purposes for which commissioner can be appointed the most technical and tricky in terms of appointment, its procedure and the value of its report is the commissioner appointed to carry out scientific investigation. So this article will try to focus upon these aspects in detail.
Rule 10A of Order 26 CPC (Code of Civil Procedure)[i] provides for commission for scientific investigation and it deals with question which must have arisen in a suit involving scientific investigation, and in the opinion of the Court it cannot be conveniently conducted before the Court and issuance of the commission may be necessary or expedient in the interest of justice. For example: When there is a dispute regarding handwriting, it requires a scientific investigation. Before we move forward lets quickly understand the general procedure which is routinely followed to carry out commission.
General Procedure for carrying out commission
- The commissioner will conduct the investigation and other functions as ordered in the commission.
- After completion of the function, the commissioner will reduce the findings in writing and will make a report.
- The commissioner will submit the report signed by him along with the evidence recorded in the Court.
- The report of commissioner will form a part of the record.
- While examining the report, the Court or the concerned parties, after prior permission, can examine the commissioner personally in open Court.
- If the Court is dissatisfied with the proceedings of the commissioner the Court can order a further inquiry on the commission or can issue a fresh commission and appoint a new commissioner.
Dispute as to Handwriting
Rule 10 A of Order 26 CPC is frequently used in two situations:
- When handwriting or signature on a document is disputed
- When Paternity is disputed (DNA Test)
In this article I will be dealing thoroughly with the first situation only.
In the case of Chikkanna vs Sri. Lokesh and Others[ii], it was held that application for appointment of handwriting expert when there is dispute regarding genuineness of signature of testator, has to be accepted.
In Ram Avatar Soni vs Mahanta Laxidhar Das and Ors[iii], it was held by Hon’ble SC that when a party challenges the genuineness of the will it means that it is challenging the signature of the testator on the will and in such a case the alleged will along with documents containing admitted signatures has to be sent to expert for handwriting comparison. While relying upon Order 26 Rule 10-A of Code of Civil Procedure, it was observed that in case the scientific examination of a document facilitates ascertaining of truth, the same has to be permitted in the interest of justice.
Where in a Suit for Recovery of Money based upon an agreement the main contention of the defendant is that the words font in page no 1 and 2 of the agreement differs from page no 3 and such an agreement is forged and fabricated then the right approach would be to send such agreement to FSL examination to the extent of checking whether fonts in page no 1 and 2 differs from page no 3.[iv]
If the application is filed by the Defendant seeking appointment of Court Commissioner to examine the signature on certain documents marked in evidence to examine and give opinion as to genuineness. But if the evidence on record shows that defendant is admitting the disputed signatures, then such application has to be rejected.[v]
Procedure for Verification of Documents
From judgement of N. Chinnasamy vs P.S. Swaminathan[vi] the following principles for verification of the documents by the Court as well as by the experts has been culled out:
- Section 73 of the Indian Evidence Act[vii] authorises the Court to compare the disputed signature with the admitted signature in order to come to its own conclusion.
- It is always safe for the Court to take the aid of handwriting expert to have the expertise to scientifically compare such handwriting with reasons.
- The practice of sending original documents from the custody of the Courts to the handwriting experts is a highly objectionable one and a very bad procedure.
- The proper procedure would be to permit the handwriting expert to inspect the document in the Court premises itself in the presence of some responsible officers of the Court.
- If necessary, the expert may be permitted to have photographic copies of documents in the presence of the responsible officers of the Court.
- When examination of the disputed documents within the Court’s premises is not possible due to genuine difficulties expressed by the expert, the Court has to find out the alternative way of achieving the object for the purpose of doing justice. (Discussed under next heading)
- In such circumstances as mentioned above, the Application has to be treated as an Application for an appointment of the commissioner in whose presence the examination of the disputed document has to be conducted by the expert.
- When the investigation cannot be conveniently conducted within the premises of the Court and the same has to be carried out in the laboratory of the Forensic Department of the Government, it is necessary to appoint a commissioner for conducting the investigation of the document in his presence.
- Filing Application for examination of documents by handwriting expert at a late stage thereby protracting and holding up the proceedings is highly objectionable.
- Merely because of the reasons that the Trial Court has by itself compared the admitted signature and the disputed signature invoking Section 73 of the Indian Evidence Act there is no bar or ban for the First Appellate Court for sending the documents to get the expert opinion.
- Expert opinions could give much more clarity for arriving at a decision upon the truth and genuineness of a disputed document.
- When the defendant denies the signature in a particular document which is very much relied upon by the plaintiff, it is for the plaintiff to take steps for examination of the disputed signature by sending the document to a handwriting expert.
- Thus, it is evident that when examination of the disputed documents within the Court premises is not possible due to genuine difficulties expressed by the expert, the Court has to find out the alternate way of achieving the object for the purpose of doing justice and in such circumstance, the application has to be treated as an application for appointment of Commissioner, in whose presence the examination of the disputed documents has to be made by the expert. It is also made clear in this judgment that an investigation has to be made by the expert in the presence of the Commissioner, appointed by the Court.
Appointment of Advocate Commissioner when the expert is not able to verify the document in the Court premises
In Saharban Beevi vs S. Mumtaj[viii] and S. Chinnathai vs K.C. Chinnadurai[ix], it was held that Scientific Investigation would mean and include ascertainment of facts by observation and experiment, tested systematized and brought under a set of principle. If in the opinion of the Civil Court that the evidence of forensic expert is very much necessary for deciding the dispute between the parties, the Civil Court instead of exercising the powers under Section 73 of the Evidence Act, shall have to invoke the provisions of Order 26, Rule 10 of C.P.C. There is no bar for the Court to order appointment of Advocate commissioner for the purpose of taking a document to an expert.
In the case of M. Munusamy vs Saraswathy[x] it was held that in order to conduct such specific investigation, the Court has also got power to appoint a Commissioner under Rule 10 A of the Civil Procedure Code. As the scientific investigation contemplated in Order 26 Rule 10A CPC includes report of the Forensic Expert, the Court can appoint a Commissioner / Advocate Commissioner to send the documents to be compared with the other admitted documents and get a report from the Forensic Expert. The Advocate Commissioner, who is an Officer of the Court, has to be given the responsibility of taking the document to an expert and collecting them back from the expert and submit a report to the Court. An Advocate Commissioner appointed by the Court is an Officer of the Court and giving the same to the Commissioner for the said purpose is deemed to be in the custody of the Court only.
In Utham Prabhat Industries etc. vs P. Subramaniam[xi], it was held that when the very examining the disputed document within the Court is not possible due to the genuine difficulties expressed by the expert, certainly the Court has to find out the alternate way for achieving the object for the purpose of doing justice. The Court further held that the documents can be handed over to the Advocate Commissioner appointed by the Court, in whose presence the disputed documents have to be examined by the handwriting Expert. The advocate Commissioner shall address the Director of Forensic Science Department to fix a date and time for examination of the documents in his presence and after fixing the time, he shall receive the Court records either on the same day or one day in advance from the Court. The Advocate Commissioner shall deliver the documents, which are in sealed cover given by the Court and the department can verify the documents in the presence of the Advocate Commissioner. The said procedure is directed to be followed when the expert expresses his inability to verify the disputed documents within the Court premises.
The consideration that weighs in not allowing the document to be handled by any other person except the commissioner is only for the purpose of ensuring the safety of the document or preventing it from being tampered. So in such circumstances it is proper and desirable to have the document examined by the Government expert, but he will do it in the presence of a Court official i.e., Commissioner.
Rest of the issues will be dealt in the second part.
[i] https://www.writinglaw.com/order-26-rule-10a-cpc/
[ii] (2001) 1 KCCR SN 52, ILR 2001 Kar 2681
[iii] CIVIL APPEAL NOS. 10684-10685 OF 2018
[iv] Sandeep Anand vs Vivek Ranjan And Anr, IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH (109) CR-3494-2021 (O&M)
[v] Indian Institute of Computer Science Ltd. vs Calisys Technology Private Ltd., Bangalore, (1999)4 KCCR SN 533.
[vi] 2006 (4) CTC 850
[vii] https://indiankanoon.org/doc/770022/
[viii] 2013 (2) CTC 394
[ix] 2010 (1) MWN (Civil) 413: (2010) 3 MLJ 65
[x] CRP PD No.1023 of 2015 and M.P.No.1 of 2015
[xi] 1996 (1) LW 255