Thursday, 14 April 2016

Whether so many Advocates of accused can be permitted to remain present in court in Rape trial in in-camera trial?

Before   this   Court,   argument   of   learned 
counsel   for   Respondent   No.2   that   unhealthy 
ambiance is tried to be created in the Court Hall 
at   the   time   of   evidence   by   letting   so   many 
Advocates   attend   only   because   they   have   signed 
Vakalatnama,   has   not   been   replied   to   by   the 
learned   counsel   for     Petitioner­Accused.   The 
Additional   Sessions   Judge   needs   to   keep   in   view 
provisions   of   Section   327(2)   of   the   Code   of 
Criminal Procedure, 1973, which has been inserted 
in 1983, providing that the inquiry into or trial 
of rape or offence under Section 376, Section 376 
A   to   376   E   of   the   Indian   Penal   Code   shall   be 
conducted In­Camera. The purpose and object of the 
law needs to be kept in view and it is necessary 
for   the   trial   Court   to   ensure   that   In­Camera 
proceeding   takes   place   in   its   letter   and   spirit. 
When   it   is   In­Camera   proceeding,   it   is   duty   of 
Court   to   ensure   that   Prosecutrix   is   given 
atmosphere which will encourage her to speak about 
the   incident   without   being   put   to   avoidable 
embarrassment.   The   evidence   can   be   recorded   in 
presence   of   both   sides,   permitting   the   counsel 
conducting   the   cross   examination   to   have 
assistance of say, one junior Advocate only of his 
choice.
BENCH AT AURANGABAD
                                     
     IN  THE HIGH COURT OF JUDICATURE AT BOMBAY 
CRIMINAL  REVISION  APPLICATION  NO.48  OF 2014
Dr. Suyog s/o Dinkarrao Vyas,

       VERSUS             
1) The State of Maharashtra,
2) Prosecutrix
   (for name see original Petition)  
                                ...
              CORAM:    A.I.S. CHEEMA, J.

   DATE OF PRONOUNCING JUDGMENT: 29TH APRIL, 2014 
Citation;2014 CRLJ(NOC)444 Bom,2016 ALLMR(CRI)1042



   This Revision Application has been filed by 

original   Accused­Petitioner   facing   Sessions   Case 
No.63 of 2009 pending before Additional Sessions 
Judge,   Aurangabad.   The   Petitioner   is   facing 
offence punishable under Section 376, 328, 354 and 
506 of the Indian Penal Code, 1860.
The evidence of Respondent No.2 ( I have 
2.
refrained  to  put her  name,  which  is available  in 
the original Petition) as PW­3 was being recorded 
in the Sessions Case and in the course of cross­
examination,   a   letter   was   put   up   to   her.   She 
declined that the same was in her handwriting. She 
was asked and she wrote out a passage to dictation 
of   the   Advocate   for   Petitioner­Accused   and   also 
put  signatures  in Marathi  and English  as she  was 
asked.   The   Petitioner­Accused   filed   application 
Exhibit   26   and   the   Sessions   Judge   passed   order 
that   the   disputed   document   Article   A   and   the 
sample   handwriting   given   by   the   prosecutrix 
Exhibit   24   and   other   admitted   documents   as 
mentioned   in   the   order,   be   sent   to   the   State 
Examiner   of   Documents   for   opinion   whether   the 
handwriting   made   in   disputed   document   Article   A 
was   of   the   same   person   who   had   written   the 
documents Exhibit 24, 15, 18 and 21. Accordingly, 
the   documents   were   sent.     Subsequently,   on   26th 
March, 2012 the handwriting expert sent letter to 
the Court stating that the sample handwriting sent 
was not enough and some more sample handwriting is 
necessary.   The   handwriting   expert   requested   that 
the   disputed   handwriting   should   be   encircled   and 
concerned   person   should   be   asked   to   give   sample 
handwriting   as   per   the   disputed   document   on   six 
pages. The letter also requested that the natural 
Marathi   and   English   handwriting   of   the   person 
written in ordinary course should also be sent.
3.
Letter of handwriting expert was endorsed 
by  the trial  Court  on 27th  March,  2012  directing 
Advocate   for     Petitioner­Accused   to   give   say. 
After   more   than   1   and   1/2   year,   on   4th   December 
2013   vide   Exhibit   30,   the     Petitioner ­Accused 

filed  application  requesting  that the complainant 
(prosecutrix)   should   be   called   upon   to   complete 
requirement of handwriting expert.

It   appears   that   the   A.P.P.   opposed 
mentioning  that  sufficient  natural  handwriting  of 
complainant/victim   has   been   provided   and   the 

victim   has   also   filed   her   say   and   requested   to 
send   to   Mumbai   handwriting   expert   office   and   so 
there   is   no   need   to   supply   more   natural 
handwriting.

The Sessions Court heard counsel for the 
Petitioner­Accused   as   well   as   the   A.P.P.   Earlier 
facts   were   referred   and   the   order   of   the   trial 
Court   shows   that   the   application   filed   by   the 
Petitioner­Accused   was   objected   by   the   victim   on 
the   ground   that   she   has   already   provided 
sufficient   writing   to   the   handwriting   expert   for 
the   opinion.   Advocate   for     Petitioner­Accused 
however,   insisted   that   as   soon   as   the   earlier 

application Exhibit 26 was allowed, the victim was 
under   obligation   to   provide   her   handwriting   to 
comply   the   said   order.   The   A.P.P.   opposed   by 
stating  that  sufficient  handwriting  was  available 
for  opinion.   It was also  claimed   that the  matter 
was   in   the   middle   of   cross­examination   of 
prosecutrix who was coming from Solapur to attend 
ig
the case. The A.P.P. also claimed that it was not 
necessary   to   have   opinion   of   the   handwriting 
expert   on   Article   A   at   the   concerned   stage.   The 
A.P.P.   claimed   that   progress   of   the   prosecution 
case cannot be withheld.

The   Additional   Sessions   Judge   considered 
rival submissions and observed that victim is not 
ready to comply requirements of handwriting expert 
and victim cannot be forced to comply the same. It 
was observed that the effect of the same, if any, 
can  be considered    while  passing   final  order  and 
thus the application did not sustain in the eye of 
law.  The  application  came  to be rejected  and  the 

trial   was   directed   to   proceed.   The   victim­
for further cross­examination.
4.
prosecutrix   was   directed   to   attend   on   next   date 
Against such order, present Revision has 
been   filed.   It   was   argued   on   behalf   of   the 
Petitioner­Accused   that   when   application   Exhibit 
26 to send the documents to handwriting expert was 
allowed,   it   had   attained   finality   and   so 
Respondent   No.2­prosecutrix   could   not   refuse   to 
give further sample handwriting. It is argued that 
the requirement was of the handwriting expert and 
not the   Petitioner­Accused. It is submitted that 
under  Section  73 of the  Indian  Evidence  Act,  the 
Court   can   direct   the   prosecutrix   to   give   her 
sample handwriting. Reference was made to Section 
311­A of the Code of Criminal Procedure to submit 
that  the  Magistrate  had power  to  direct  a person 
to give specimen signature or handwriting. Counsel 
for     Petitioner­Accused  relied  on the  case  of  M. 
Narayanaswami   vs.   Yangatanna,   reported   in   A.I.R. 

1975 Andhra Pradesh, Page 88(1), to submit that as 
per  Section  73  of the Indian   Evidence  Act,  Court 
has ample powers to direct a person to even appear 
and give specimen handwriting and signature.
5.
Learned   A.P.P.   for   Respondent   No.1   and 
learned   counsel   for   Respondent   No.2   opposed   the 
6.

Petition.
Respondent   No.2   has   filed   affidavit­in­
reply   contending   that   the   Petition   is   not 
maintainable. The order concerned is interlocutory 
and Revision does not lie. According to Respondent 
No.2,   the   earlier   order   was   obviously   passed   as 
Respondent   No.2 had  agreed  to the  same  and wrote 
down   contents   on   the   papers   as   were   dictated   by 
the   Advocate   of   the     Petitioner­Accused   in   the 
Court Hall itself. Respondent No.2 contends in the 
affidavit­in­reply that  comparison  of two scripts 
is artistry and even a signature of a person can 
suffice and thus according to Respondent No.2, it 
was   unnecessary   exercise   and   so   on   subsequent 
occasion   she   refrained   from   giving   any 
handwriting.   It   is   claimed   that   it   is   not 
imperative by any law to provide more handwriting 
and it is not a case of documentary evidence where 
disproved   document will vitiate the proceedings. 
The   charge   levelled   against   the     Petitioner­

Accused  is of sexual   offences  and  F.I.R.  came  to 
be   filed   on   22nd   October,   2005.   The   evidence   of 
Respondent   No.2   started   on   9th   January,   2012, 
after   about   seven   years   of   the   incident. 
Respondent   No.2   claimed   that   she   was   working   in 
London   when   trial   commenced,   but   she   could   not 
extend her contract due to present proceedings and 
has   been   suffering   irreparable   loss   to   her 
academic and professional career. She claimed that 
she   is   resident   of   Solapur   and   it   takes   seven 
hours to reach Aurangabad and   Petitioner­Accused 
has   been   deliberately   delaying   proceedings.   Her 
age­old parents are also required to accompany her 
on   each   date.   Respondent   No.2   contended   that   the 

earlier   Advocate   for     Petitioner­Accused   who 
started  cross  examination,  got himself  discharged 
and the present Advocate filed Vakalatnama taking 
signatures   of   more   than   12   Advocates   on   the 
Vakalatnama, so that they could remain present in 
the   Court   while   her   evidence   was   being   recorded 
In­camera.   As   per   Respondent   No.2,   such   practice 

is   highly   immoral,   unethical,   condemnable   and 
needs   to   be   deprecated.   Respondent   No.2   referred 
to   Roznama   to   show   how   the   matter   was   being 
protracted. It is claimed by Respondent No.2 that 
the Petitioner­Accused wants to protract trial and 
is   resorting   to   tactics   to   humiliate,   so   as   to 
refrain   her   from   deposing   against   him.   It   is 
claimed   that   unhealthy   ambiance   was   created   in 
Court causing great agony and hardship to victim. 
7.
It   has   been   argued   for   the   Respondents 
that   the   prosecutrix   had   already   co­operated   and 
complied   requirements   as   per   Section   73   of   the 
Indian   Evidence   Act.   Trial   Court   has   rightly 

observed   that   the   witness   could   not   be   compelled 
to   give   further   sample   handwriting.   The   learned 
A.P.P. submitted that  the trial Court has rightly 
observed that if the prosecutrix is not giving any 
further   sample   handwriting,   what   is   the   effect, 
In   reply,   learned   counsel   for   the 
8.
passing final order. 
would  be  matter  for consideration  at  the time  of 
Petitioner­Accused   stated   that   although   the 
Petitioner­Accused has filed Revision, he has also 
relied on Article 227 of the Constitution of India 
and so the present Petition is maintainable. 
9.
I have gone through the record. There is 
copy of the first information report, which shows 
that   the   prosecutrix   was   studying   for   higher 
education   and   was   residing   at   Rahuri.   The 
Petitioner­Accused   used to attend the college on 
Saturdays to teach Research and Statistics and so 
was   known   to   the   prosecutrix.   First   Information 

Report   refers   as   to   how   on   8th  December,   2004 
prosecutrix   had   gone   to   Aurangabad   to   get   the 
notes   from   the   Petitioner­Accused.   First 
Information Report states that on 4th August, 2005 
prosecutrix   was   at   Solapur,   there   was   phone   call 
and     Petitioner­Accused   asked   her   to   come   to 
Aurangabad to watch C.D. and Demo. Case is that on 

5th   August,   2005   prosecutrix   came   to   Aurangabad 
and  went  to the home  of the     Petitioner­Accused. 
Then   the   incident   attracting   the   Sections   of 
Indian Penal Code referred above, appears to have 
taken   place   at   home   of   the     Petitioner­Accused. 
Prosecutrix has given evidence in this regard. If 
the   copy   of   the   evidence   is   perused,   it   can   be 
seen   that   cross   examination   started   on   9th 
January,   2012.   It   was   continued   on   17th   January, 
2012   when   just   a   few   questions   were   asked.   It 
resumed   on   18th   January,   2012.   On   that   day 
prosecutrix was shown one envelope showing address 
of the   Petitioner­Accused. She accepted that the 
address written on the envelope, as put in circle 

A,   was   in   her   handwriting   but   address   shown   in 
circle   B, she stated   was not  in her handwriting. 
The   envelope   was   marked   Exhibit   21.   The   evidence 
was deferred. It continued on 6th February, 2012. 
In   course   of   cross   examination,   she   was   shown 
letter containing eight pages and other documents 
Exhibit   18   and   19   were   shown.   She   accepted   her 
signatures   on   Exhibit   18   and   19.   As   prosecutrix 
had   shown   willingness   to   give   her   handwriting   in 
presence   of   the   Court,   counsel   for     Petitioner­
Accused gave her dictation and she wrote down the 
same and put her signatures in Marathi and English 
on  the document  which  was marked   Exhibit  24.  The 
evidence  was  again  deferred  and  taken  up on 22nd 
February,   2012   when   prosecutrix   was   confronted 
with the letter Article A. She denied that it was 
in her handwriting, or that she had sent the same 
to   the     Petitioner­Accused.   It   appears   that   the 
Petitioner­Accused   then   suggested   to   Respondent 
No.2­prosecutrix   that   she   has   intentionally 
attempted   to   point   out   her   different   handwriting 

while   writing   Exhibit   24,   compared   to   Article   A. 
The suggestion was denied. Still, it appears that 
the     Petitioner­Accused   applied   vide   Exhibit   26 
and the Court sent the documents for comparison.
10.
I   have   seen   xerox   copy   of   the   document 
Article  A and the  passage  which  was  written  down 

by   the   prosecutrix,   Exhibit   24.   Respondent   No.2 
voluntarily   wrote   down   more   than   14   lines   and 
wrote down 3 different dates as well as her sample 
signatures   in   English   as   well   as   in   Marathi. 
Inspite  of this,  it is  surprising  that  the State 
Examiner   of   Documents   at   Aurangabad,   wanted   more 
sample   handwriting   and   signatures.   In   fact   the 
letter of State Examiner appears to be saying that 
the   prosecutrix   should   write   down   6   pages   as   in 
the   disputed   document   Article   A.   Respondent   No.2 
appears  to be right  in  her stand  that  sufficient 
sample  handwriting  and signatures  were available. 
The   prosecutrix   has   declined   to   give   further 
sample   handwriting.   The   trial   Court   has   rightly 

observed that she cannot be forced and what is the 
effect,   would   be   matter   of   consideration   at   the 
stage of final order.
11.
The   argument   of   the   learned   counsel   for 
Petitioner­Accused is that under Section 73 of the 
Indian   Evidence   Act   the   Court   could   direct   the 
prosecutrix   to   give   writing   in   compliance   of   the 
requirement of the handwriting expert. Section 73 
of the Indian Evidence Act, reads as under:­
“73.   Comparison   of   signature, 
writing or seal with others admitted 
or   proved.­  In   order   to   ascertain 
whether a signature, writing or seal 
is   that   of   the   person   by   whom   it 
purports   to   have   been   written   or 
made,   any   signature,   writing,   or 
seal   admitted   or   proved   to   the 
satisfaction   of   the   Court   to   have 
been written or made by that person 
may   be   compared   with   the   one   which 
is   to   be   proved,   although   that 
signature, writing, or seal has not 

been   produced   or   proved   for   any 
other purpose.
    The   Court   may   direct   any   person 
present in Court to write any words 
or   figures   for   the   purpose   of 
enabling   the   Court   to   compare   the 
words or figures so written with any 
words   or   figures   alleged   to   have 
If   the   above   Section   is   perused,   it   is 
12.
been written by such person.”
clear   from   the   First   Part   that   in   order   to 
ascertain   whether   a   writing   is   of   the   person   by 
whom   it   purports   to   have   been   written,   any 
signature   or   writing   which   has   been   admitted   or 
proved   to   the   satisfaction   of   the   Court   to   have 
been   written   or   made   by   that   person,   may   be 
compared   with   the   one   which   is   to   be   proved. 
Second   Part   of   the   Section   gives   power   to   the 
Court   to   direct   any   person   present   in   Court   to 
write “any words” or “figures” for the purpose of 
enabling   the   Court   to   compare   the   words   or 

figures.   Thus,   Section   73   of   the   Indian   Evidence 
Act is to enable the Court to compare and to that 
end Court can ask the person to write any words or 
figures. Although how many words or figures is not 
prescribed,  it has  to be reasonable.   It does  not 
mean   that   long   passages   and   pages   as   is   being 
sought, could be asked to be written down. Still, 
the   Respondent   No.2­   prosecutrix   did   give   sample 
handwriting   in   a   long   passage   as   well   as   her 
signatures with different dates.
13.
The   other   argument   that   under   Section 
311­A of the Code of Criminal Procedure, 1973, the 
signatures   or   handwriting,   is   misplaced.   Section 
311­A of the Code of Criminal Procedure, reads as 
under:­
Magistrate   can   ask   any   person   to   give   specimen 
“311­A. Power of Magistrate to order 
person   to   give   specimen   signatures 
or handwriting.­  If a Magistrate of 

for
the
purposes
of
the   first   class   is   satisfied   that, 
any 
investigation   or   proceeding   under 
this Code, it is expedient to direct 
any   person,   including   an   accused 
person,   to   give   specimen   signatures 
or handwriting, he may make an order 
to that effect and in that case the 
person   to   whom   the   order   relates 

shall be produced or shall attend at 
the time and place specified in such 
order   and   shall   give   his   specimen 
signatures or handwriting.
     Provided that no order shall be 
made   under   this   section   unless   the 
person   has   at   some   time   been 
arrested   in   connection   with   such 
investigation or proceeding.”.
14.
Perusal   of   the   above   Section   makes   it 
clear,   specially   the   Proviso,   that   it   relates   to 
the  power  of the  Magistrate  to direct  any  person 
including   an   accused   person   to   give   specimen 
signatures   or   handwriting,   if   it   is   considered 

expedient   for   the   purpose   of   investigation   or 
proceeding, provided, the person concerned had at 
some   time   been   arrested   in   connection   with   the 
investigation   or   proceedings   concerned.   It   is 
pertinent   to   note   that   Respondent   No.2­ 
prosecutrix is not an accused nor a person who was 
arrested   in   connection   with   investigation   or 

proceeding concerned. Section 311­A of the Code of 
Criminal Procedure does not apply to the facts of 
the present matter. 
15.
There   is   no   substance   in   the   present 
Revision   Application.   It   cannot   be   said   that   the 
impugned   order   is   not   correct,   not   legal   or   not 
proper.
16.
If   the   case   of   the   prosecution   as   is 
appearing from the record is kept in view and the 
cross examination recorded till now is perused, it 
can be seen that when in the first place Exhibit 
26   was   accepted   and   order   was   passed   to   send 
Article   A   for   comparison,   it   was   done   as   in   the 
cross examination, Respondent No.2 agreed to give 
the   handwriting.   The   Additional   Sessions   Judge 
does not appear to have recorded below Exhibit 26 
the   relevance   of   the   document   for   deciding   the 
trial.   Affidavit­in­reply   of   the   Respondent   No.2 
claims that she is being harassed in the Court and 
that there are attempts to deliberately delay the 
proceedings.   She   claims   that   she   is   being 
humiliated   and   harassed   by   putting   scandalous 
questions   and   banter.   Keeping   such   affidavit­in­ 
reply in view, when her evidence already recorded 
is perused, it does appear that the provisions of 
Section   136   of   the   Indian   Evidence   Act   are   not 
being followed by the trial Court. At the stage of 
cross   examination,   although   so   much   of   cross 
examination has been done in five sittings, still 
the cross examination does not appear to have yet 
touched the incident in dispute dated 5th August, 
2005. As per Chapter X of the Indian Evidence Act, 
1872, there are various provisions which cast duty 

on the Court to ensure that the cross examination 
of   witness   does   not   become   a   tool   for   harassing 
the prosecutrix. The prosecutrix has filed copy of 
Vakalatnama   Exhibit   17,   which   shows   so   many 
Advocates   to   have   signed   the   Vakalatnama.   It   is 
the   contention   of   the   prosecutrix   in   her 
affidavit­in­reply, in Para 8, that this has been 
done so that all those Advocates who are more than 
12   can   attend   the   Court   while   recording   her 
evidence In­Camera. She has claimed that only the 
Advocate conducting the trial should be permitted 
to sit in the Court. 
17.
Before   this   Court,   argument   of   learned 
counsel   for   Respondent   No.2   that   unhealthy 
ambiance is tried to be created in the Court Hall 
at   the   time   of   evidence   by   letting   so   many 
Advocates   attend   only   because   they   have   signed 
Vakalatnama,   has   not   been   replied   to   by   the 
learned   counsel   for     Petitioner­Accused.   The 
Additional   Sessions   Judge   needs   to   keep   in   view 

provisions   of   Section   327(2)   of   the   Code   of 
Criminal Procedure, 1973, which has been inserted 
in 1983, providing that the inquiry into or trial 
of rape or offence under Section 376, Section 376 
A   to   376   E   of   the   Indian   Penal   Code   shall   be 
conducted In­Camera. The purpose and object of the 
law needs to be kept in view and it is necessary 

for   the   trial   Court   to   ensure   that   In­Camera 
proceeding   takes   place   in   its   letter   and   spirit. 
When   it   is   In­Camera   proceeding,   it   is   duty   of 
Court   to   ensure   that   Prosecutrix   is   given 
atmosphere which will encourage her to speak about 
the   incident   without   being   put   to   avoidable 
embarrassment.   The   evidence   can   be   recorded   in 
presence   of   both   sides,   permitting   the   counsel 
conducting   the   cross   examination   to   have 
assistance of say, one junior Advocate only of his 
choice.
18.
The   trial   Court   is   directed   to   keep 
in   view   specific   requirement   of   law   under 

Section   309   of   the   Code   of   Criminal   procedure, 
1973,   which   requires   that   enquiry   or   trial 
relating   to   offence   under   Section   376   of   the 
Indian   Penal   Code   shall,   as   far   as   possible   be 
completed   within   period   of   two   months   from   the 
date   of   filing   of   the   charge­sheet.   In   such 
matters, Adjournments granted need to be justified 
from record, which does not appear to be the case 
in present matter when Roznama is perused.
For the reasons mentioned above, there is 
19.
no substance in the present Revision Application. 
The Revision Application is rejected with costs of 
Rs.3000/­   (Rupees   Three   Thousand),   to   be   paid   to 
Respondent No.2. 
 
                                   [A.I.S. CHEEMA,J.] 



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