W.P. (CRL) 317/2023 Page 1 of 19

* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Reserved on: 30

th

October, 2025

Pronounced on: 05

th

January, 2026

+ W.P. (CRL) 317/2023, CRL.M.A. 2928/2023

RAVINDER SINGH GANDOAK

S/o Mohinder Singh

R/o M-77, Greater Kailash-1,

New Delhi-110048

.....Petitioner

Through: Ms. Rebecca M John, Sr. Advocate

with Mr. Vinayak Bhandari, Ms.

Jaisal Singh and Mr. Pravir,

Advocates.

versus

1. STATE (GOVT. OF NCT OF DELHI)

2. HARKIRAT SINGH SODHI

S/o Sh. M.S. Sodhi

R/o 210-A, Golf Links,

New Delhi-110003.

.....Respondents

Through: Mr. Sanjeev Bhandari, ASC with

Mr. Arjit Sharma and Ms. Sakshi Jha,

Advocates for State with SI Kamal,

P.S.: Tughlak Road. Mr. Tanvir

Ahmed Mir, Sr. Advocate with Mr.

Rajat Asija and Ms. Mansi Singh,

Advocate for R-2.

CORAM:

HON'BLE MS. JUSTICE NEENA BANSAL KRISHNA

J U D G M E N T

NEENA BANSAL KRISHNA, J.

W.P. (CRL) 317/2023 Page 2 of 19

1. A Petition under Article 226/227 Constitution of India read with

Section 482 Cr.P.C has been filed on behalf of the Petitioner Ravinder Singh

Gandoak to challenge the Order dated 19.01.2023 whereby the learned M.M

has allowed the Application under Section 311 Cr.P.C. of the Respondent

No.2 to take the handwriting samples of Ravinder Gandoak, Deepali

Gandoak and Praveet Gandoak.

2. Briefly stated, a Complaint against the Respondent No.2, son of Late

S. Surinder Kaur Sodhi was filed in regard to his illegal acts with respect to

the premises bearing No.210A, Golf Links, New Delhi on which FIR

No.0149/2014 was registered. The Chargesheet was filed after due

investigations.

3. During the investigations, an Application was filed by the I.O under

Section 311A Cr.P.C seeking directions to the Accused persons namely

Amita Gandoak, Ravinder Singh Gandoak, Praveet Gandoak and Deepali

Gandoak all residents of M-77, Greater Kailash-I, New Delhi, to provide

their specimen signatures and handwriting samples, for the purpose of

investigation.

4. The Application was contested by Amita Gandoak, Ravinder

Gandoak, Deepali Gandoak and Praveet Gandoak who filed their detailed

reply.

5. The learned M.M. after due consideration, allowed the Application

and directed that in order to ensure fair investigations, specimen signatures

and handwriting be provided by Ravinder Gandoak, Deepali Gandoak and

Praveet Gandoak, for which they shall appear in the Court on 03.02.2023.

No handwriting/signatures of Amit Gandoak were directed to be taken since

W.P. (CRL) 317/2023 Page 3 of 19

it had already been obtained for which opinion had also been obtained from

FSL.

6. Aggrieved by the said Order of learned M.M dated 19.01.2023, the

present Petition has been filed.

7. The grounds of challenge of the impugned Order are that the

Petitioner was never arrested in the present case and in fact, the Chargesheet

has been filed by putting him in Column No.12, on account of insufficient

evidence.

8. The Petitioner’s wife had moved an Application before the concerned

Magistrate seeking monitoring of investigations as the I.O was doing unfair

investigations and was causing harassment to the Petitioner and his family

members.

9. The Investigating Officer, Nikhil Raman, has been suspended by the

Police on corruption charges, which corroborate the Petitioner’s fears that

the entire investigation has been conducted in an unfair and mala fide

manner.

10. It has not been appreciated by the learned M.M that the Application

for seeking specimen handwriting and signatures, was to counter the

monitoring Application filed by Amita Gandoak. The Investigation is the

sole prerogative of the Investigating Agency and the Courts cannot direct the

Investigating Officer, to investigate the case in a particular manner.

11. Further, despite the direction of this Court that the Investigating

Officer must investigate uninfluenced by the observations of the learned

Metropolitan Magistrate’s Order directing further investigations, the Trial

Court recorded the submissions of the Complainant with respect to the

directions passed in further Investigation Order. Thorough investigations

W.P. (CRL) 317/2023 Page 4 of 19

had been conducted for almost five years and thereafter, the Charge-Sheet

was filed in the Court against the wife of the Petitioner.

12. However, on the Application of the Respondent No. 2/Complainant,

the Court deferred the process and ordered further investigations against her

family members and new accused, who was never part of original Complaint

or FIR. There were no specific allegations against Mr. Devottam Sengupta

and yet, the learned Trial Court has ordered the investigations against him. It

has not been appreciated that the alleged transaction was spread over such a

long period of time and that the amount allegedly withdrawn, is absurdly

odd.

13. It is submitted that even the Complainant belongs to a highly affluent

family and is involved in a dispute over a property at Golf Links worth

many crores. Without attributing any allegation or overt act against the

family members of the Petitioner, they have also been roped in the FIR by

way of omnibus allegation that they were in conspiracy with Amita

Gandoak.

14. The I.O’s Application was silent on the grounds on which the

handwriting specimen of the Petitioner and his children was required.

Merely stating that the names of the alleged persons are present in FIR,

cannot be sufficient to invoke Section 311A Cr.P.C. The criminal

prosecution cannot be allowed to assume a character of fishing and roving

Enquiry. The Prosecution cannot be permitted to linger, limp and continue

on the basis of mere hope and expectation that in the trial, some material

may be found to implicate the accused. Such course of action is not

contemplated in the system of criminal jurisprudence.

W.P. (CRL) 317/2023 Page 5 of 19

15. The observations regarding the prima facie allegations of forgery of

cheques against Amita Gandoak and her family members, is pre-judging the

issue as the matter is at the stage of further investigations. The Chargesheet

has already been filed against the wife of the Petitioner and any observations

on allegations of forgery, would cause prejudice to the accused persons.

16. It has not been considered that the Petitioner and his family members

had joined the investigations on several occasions and cooperated with the

Investigating Agency and they are still willing and ready to extent all

cooperation. The Impugned Order has been passed in a mechanical way

and is liable to be set-aside.

17. Status Report has been filed on behalf of the State wherein it is

submitted that after the registration of FIR No. 149/2014 on the Complaint

of the Respondent No.2, Harkirat Singh Sodhi, the investigations were

entrusted to SI Yogender, who during the investigations, collected three

original cheques bearing signatures of Late Surinder Kaur Sodhi, which

were allegedly forged by the accused, Amita Gandoak.

18. During the course of Investigation, Amita Gandoak and Ravinder Pal

Singh/Petitioner herein, were interrogated and specimen handwriting and

admitted Signatures/handwriting of Amita Gandoak, was obtained. The

Complainant produced some photocopies of medical record of her late

mother, Surinder Kaur Sodhi, which were taken on record. Mr. Rajiv Pal,

servant of the Complainant, was examined, who mentioned that on

24.05.2010, Amita Gandoak had handed over one cheque dated 24.05.2010

for Rs.36,223/-, issued on Indian Overseas Bank, to withdraw the money.

He, upon withdrawal, handed over the cash to Accused, Amita Gandoak.

W.P. (CRL) 317/2023 Page 6 of 19

19. On 31.10.2013, the Accused, Amita Gandoak had asked him to fill a

self-cheque for Rs.1,80,000/-, which was signed on the front and back by

her, in presence of Rajiv Pal Singh. Thereafter, accused, Amita Gandoak

asked Rajiv Singh to withdraw the amount and hand over the same to Ms.

Amita Gandoak.

20. On 04.11.2013, Amita Gandoak handed over a signed cheque book

requisition slip of Indian Overseas Bank to Rajiv, who on her instructions

filled it up on that day as Rajiv was busy with some work. Accused, Amita

Gandoak deputed Pawan to collect the cheque book, which was collected by

him and handed over to Amita Gandoak, in the presence of Rajiv Pal Singh.

Some more cheques from Indian Overseas Bank, Golf Links, New Delhi

having non-alleged/real signature of Late Surinder Kaur Sodhi, were also

seized.

21. All these three alleged cheques and other cheques bearing original

signatures of Late Surinder Kaur Sodhi and specimen signatures and

admitted handwriting of Amita Gandoak, were sent to FSL Rohini, for

ascertaining the authorship of the alleged/questioned signatures of Late

Surinder Kaur Sodhi. The Expert opinion has already been obtained wherein

it is opined that the real signatures of Late Surinder Kaur Sodhi, did not

match with the signatures in question and that they were forged.

22. The Exhibits were again sent to FSL for further clarification regarding

the authorship of forged signatures of Surinder Kaur Sodhi, specimen,

handwriting and signatures of alleged Amita Gandoak. On the basis of

expert opinion and statement of witnesses, it was found that the signatures of

Surinder Kaur, on the three cheques in question, were forged and Amita

Gandoak was the direct beneficiary of cheque dated 29.12.2008 for

W.P. (CRL) 317/2023 Page 7 of 19

Rs.61,400/-. The Charge-Sheet has been filed against Amita Gandoak while

the Petitioner, Ravinder Pal Singh has been kept in Column No. 12, on

account of insufficient evidence.

23. After the filing of Charge-Sheet, a Protest Petition was filed by the

Complainant for further investigations and monitoring by the learned Trial

Court, on which the learned Trial Court directed the Investigating Officer, to

conduct the further investigations on the following aspects:

I. the documents of the contemporaneous period when the

forgeries took place were not provided by the IO to the FSL

when they were easily available to him.

II. Cheque bearing number 453323 dated 23.12.2013 was not sent

to the FSL for comparison by the IO and accordingly, the

complainant has apprehensions that Mr. Ravinder Singh, Mr.

Parveet Gandoak and Ms. Deepali Gandoak were never

questioned nor interrogated in the present case and their

admitted signatures and handwritings were not seized by the IO

nor the specimen signatures were obtained by the IO and

hence, the question of sending them to FSL and seeking opinion

could not arise.

III. It has also been alleged by the complainant that Mr. Parveet

Gandoak and his childhood friend, Mr. Devottam Sen Gupta

had conspired with first accused Mrs. Amita Gandoak, Mr.

Ravinder Singh and Ms. Deepali Gandoak etc. To forge and

fabricate documents and use the same so as to cause Fraud and

Cheating upon the complainant and from the Charge Sheet,

complainant found out that by means of cheque bearing number

949351 dated 28.08.2007which was written by Mrs. Amita

Gandoak and bore forged signatures of Ms. Sodhi, an amount

of Rs. 26,575 was withdrawn from her account.

IV. Based on her said objections of the complainant with the

manner in which investigation has been carried out, the

applicant/ complainant has moved the present application in

order to bring out the guilt of the real culprits.

W.P. (CRL) 317/2023 Page 8 of 19

24. Aggrieved by the Order dated 06.07.2021 of the learned Trial Court,

W.P. (CRL.) No.1208/2021 and Crl.M.A. No. 10210/2021 was filed which

was disposed of by this Court by directing the Investigating Officer, to

further investigate the matter uninfluenced by the observations made by the

learned Metropolitan Magistrate and if some documents need to be further

examined, they may only be sent to CFSL but not to Truth Lab as had been

directed in the Supplementary Report, within six months from the date of

Order.

25. SI Yogendra again requested the alleged person to join the

investigations and additional specimen signatures and handwriting of Amita

Gandoak were taken, but the Petitioner refused to give his specimen

signatures and handwriting by stating that he would do so only after

consulting his lawyer.

26. During the interrogation of the Petitioner, he stated that there is a

family property dispute between his wife and the Complainant (Brother) and

in order to pressurize his family, the Complainant has filed this case against

them. On asking about his specimen signature, he stated that in one Petition,

the Complainant had accepted that all the documents were forged by Amita

Gandoak and other persons did not forge the signatures. He also submitted

the copy of Affidavit.

27. SI Kishore obtained the original documents from the learned Trial

Court and sent the exhibits to CFSL, again for analysis.

28. Parveet Gandoak and Deepali Gandoak, in addition to accused Amita

Gandoak and the Petitioner, were interrogated but they both stated that they

did not forge the signatures and also refused to give their specimen

W.P. (CRL) 317/2023 Page 9 of 19

signatures and hand writing, to the Investigating Officer/SI Nikhil Raman by

stating that they would do so only, if directed by the Court.

29. On 06.01.2023, SI Nikhil Raman filed the Application before the

learned Trial Court seeking directions to the alleged persons to appear and

give specimen signature and handwriting. Accordingly, on 19.01.2023, the

learned Trial Court directed Ravinder Gandoak, Parveet Gandoak and

Deepali Gandoak to appear before the Court on 03.02.2023 and give their

specimen signatures and handwriting.

30. In the meanwhile, the result from CFSL, CGO Complex, Lodhi road,

Delhi, was obtained and a Supplementary Charge-Sheet dated 27.01.2023,

was filed in the Court.

31. It is submitted that all the alleged persons are named in the FIR and

for the fair investigations, their specimen signatures and handwriting is

needed to be sent to CFSL for comparison.

32. Written Submissions have been filed on behalf of the Petitioner

wherein the averments made in the Petition, have been reiterated.

33. It is submitted that the proviso to Section 311A Cr.P.C. explicitly

governs and controls the main provision, stating that no order under this

section shall be made unless the accused has, at some point, been arrested in

connection with the investigation or proceeding and in this reliance has been

placed on Suyog v. State of Maharashtra, 2014 SCC OnLine Bom 510,

Manoj Umar v. Vipin Gautam, 2016 SCC OnLine Del 4745, and Jaswinder

Singh v. Rakesh Kumar Jain 2023 PHHC 087715.

34. It is a well-established principle of statutory interpretation that a

Proviso typically serves to exclude or qualify something that would

otherwise fall within the purview of the main Section. As per the Proviso to

W.P. (CRL) 317/2023 Page 10 of 19

Section 311A, the power conferred upon a Magistrate to direct an individual

to provide specimen signatures, can only be invoked when the accused has

been arrested in connection with the relevant investigation or proceedings.

In this regard, reliance has been placed on B.C. Radhakrishnan & Ors. v.

Saju Thuruthikunnen & Anr. (2013) SCC OnLine Ker 24224, and

Christopher Sam Miller v. Inspector of Police, 2017 SCC OnLine Mad

36949.

35. On a careful examination of the proviso, it is evident that the arrest of

the accused is an essential pre-condition for invoking the Magistrate’s

power under Section 311A Cr.P.C. Reliance has been placed on Vinod

Kumar Singh v. State of UP & anr. 2019 SCC OnLine ALL 5029.

36. The Application moved by the IO to obtain specimen signatures of the

Petitioner and his children, is nothing but a counterblast to the Application

filed by Petitioner’s wife seeking monitoring of the Investigation. In her

Application, she had already highlighted the malicious intent of the

Complainant to manipulate the investigation, clearly aimed at causing undue

harassment to her and her family members. This retaliatory Application

lacks substantive grounds and appears to be an attempt to derail the focus

from the Complainant’s improper conduct.

37. Written Submissions have been filed by Respondent No. 2 wherein

the core argument rebuts the Petitioner’s contention that the specimen could

not be taken because he was not arrested. It is contended that Section 311A

Cr.P.C.---????? The proviso to this Section cannot be read to render the

main provision “otiose, redundant and derogate its legislative intent”. The

legislative intent of the proviso to Section 311A Cr.P.C. is that the

Magistrate’s jurisdiction to require specimens applies to an accused only if

W.P. (CRL) 317/2023 Page 11 of 19

they have been arrested in connection with the inquiry or trial, but not

otherwise.

38. The Respondent has argued that this Proviso does not apply to “any

other person” such as a complainant, suspect, witness, or any person other

than an accused. Since the Petitioner is not an “accused” as he is not

charge-sheeted under Section 173 Cr.P.C, he falls under the category of

“any other person”, and therefore, the proviso to Section 311A is not

applicable to him.

39. It is submitted that the Petitioner’s signatures are necessary for a just

and proper investigation, and his refusal highlights his non-cooperative

nature.

40. The Respondent No. 2 prays that the present Petition be dismissed

and the Impugned Order dated 19.01.2023 be upheld.

Submissions Heard and Record Perused.

41. The present case originates from an FIR No. 149 of 2014 dated

17.11.2014 registered at PS Tughlak Road under Sections

420/468/471/120B IPC, based on the Complaint of Respondent No. 2.

42. Respondent No. 2/Complainant and the Petitioner’s wife Smt. Amita

Gandoak, are brother and sister. The case involves alleged forgeries related

to the accounts of the mother of Respondent No. 2, Mrs. Surinder Kaur

Sodhi. One joint account was of Mrs. Surinder Kaur Sodhi and Respondent

No. 2/Complainant. Another joint account was of Mrs. Surinder Kaur Sodhi

and the Petitioner’s wife. Mrs. Surinder Kaur Sodhi expired on 31.03.2014,

and the forgeries were found while ascertaining the account.

W.P. (CRL) 317/2023 Page 12 of 19

43. The forgery of the signatures of Mrs. Surinder Kaur Sodhi on cheques

from Account No. 9064, were allegedly done by the Petitioner’s wife and

her family, along with accomplices.

44. Chargesheet was filed on 11.12.2019 against Amita Gandoak while

the Petitioner and others, were kept in Column NO.12 for lack of sufficient

evidence. Further investigation was directed by the Ld. M.M. in June 2021.

During further investigation, the Petitioner refused to give specimen

signatures and handwriting, which led the I.O. to file the Application under

S.311A CrPC, that resulted in the Impugned Order.

45. The Issue raised is whether the Trial Court can allow the Application

under Section 311A (proviso) Cr.P.C. qua the Petitioner, when he claims to

be not an accused person.

46. Prior to the introduction of Section 311A, the power of a court to

compare disputed handwriting with admitted/proved handwriting, was

derived from Section 73 of the Indian Evidence Act, 1872. The Supreme

Court, in a series of judgments, consistently held that this power was

restrictive and could not be extended to the investigation stage.

47. In the landmark judgment of State of U.P. v. Ram Babu Misra, (1980)

2 SCC 343 the Apex Court held the limitations of Section 73, holding that

the provision “does not empower the Magistrate to direct the accused to

give his specimen writing during the course of investigation”. The Court

observed that Section 73 only permits a court to give a direction for

comparison in a proceeding already pending before it, not for an anticipated

necessity in a proceeding that may later be instituted.

W.P. (CRL) 317/2023 Page 13 of 19

48. Reinforcing the principle in Sukhvinder Singh v. State of Punjab,

(1994) 5 SCC 152, the Supreme Court stressed that the direction to an

accused to give specimen writing “can only be issued by the court holding

enquiry under CrPC or the court conducting trial of such accused”. The

Court further held that “where case still under investigation and no

proceedings pending in any court, the accused cannot be compelled to give

specimen writing”.

49. This limitation of seeking handwriting samples only during the trial,

created a significant impediment to the investigation of forgery, cheating,

and other document-based crimes, necessitating the subsequent legislative

change.

50. The jurisdictional gap that existed in the law, whereby a court’s power

to obtain samples was limited to the inquiry or trial stage, leaving the

investigating Agency powerless to seek such a direction during the crucial

stage of Investigation. Code of Criminal Procedure (Amendment) Act, 2005

(w.e.f. 23.06.2006), was introduced to address this judicial anomaly

concerning the power of courts to compel individuals, particularly the

accused, to provide specimen handwriting or signatures for investigation

and comparison.

51. The Statement of object and reasoning of Section 311A reads as

under:-

“the Hon’ble Supreme Court of India in State of Uttar Pradesh vs.

Ram Babu Mishra, (1980) 2 SCC 343, suggested that a suitable

legislation be made on the analogy of Section 5 of the Identification of

Prisoners Act, 1980, to provide for the investigation of the

Magistrates with the power to issue directions to any person,

W.P. (CRL) 317/2023 Page 14 of 19

including an accused person, to give specimen signatures and

handwriting. A new Section 311A is accordingly being inserted.”

52. Section 311A remedied the deficiency by explicitly granting the

power to compel the creation of samples during the investigation stage. The

provision is extracted as under for reference:

“311-A - Power of Magistrate to order person to give

specimen signatures or handwriting

[Inserted by Act of 2005, Section 27 (w.e.f. 23-6-2006)]

- If a Magistrate of the first class is satisfied that, for the

purposes of 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.”

53. A bare perusal of the provision reveals that a Metropolitan Magistrate

or a Judicial Magistrate of the first class is empowered to pass such an Order

to direct any person, including an accused person, to give specimen

signatures or handwriting for the purposes of any “investigation or

proceeding.”

54. The Apex Court in the judgment of Sukh Ram v. State of H.P., (2016)

14 SCC 183, directly addressed the “authority of Judicial

Magistrate/Executive Magistrate to take specimen writing and signatures”

under S. 311A, confirming its application during investigation stage.

W.P. (CRL) 317/2023 Page 15 of 19

55. Learned counsel for the Petitioner, has challenged the Order dated

19.01.2023 of the learned Metropolitan Magistrate, directing him to appear

for taking of his handwriting samples essentially in the light of proviso to

Section 311A, which clearly states that no orders can be made under Section

311A unless the person has been arrested.

56. The Petitioner has relied on Proviso to S.311 A to contend that since

he was never arrested, he cannot be directed to provide his hand writing

specimen. In this regard, it would be relevant to refer to State of Kerala and

Anr. vs. Six Holiday Resorts Private Limited, (2010) 5 SCC 186 wherein the

functionality of proviso to a Section was discussed. It was observed that a

proviso may either qualify or except certain provisions from the main

provision; or it can change the very concept of the intendment of the main

provision by incorporating certain mandatory conditions to be fulfilled; or it

can temporarily suspend the operation of the main provision. Ultimately, the

proviso has to be construed upon its terms. Merely because it suspends or

stops further operation of the main provision, it does not become invalid.

57. Likewise, in the case of Kedarnath Jute Manufactuing Co. Ltd. vs.

Commercial Tax Officer and Others, 1965 SCC OnLine SC 32, the Apex

Court observed that it is well-settled that “the effect of an exception or

qualifying proviso, according to the ordinary rules of construction, is to

except out of the preceding portion of the enactment, or to qualify something

enacted therein, which but for the proviso would be within it.”

58. If the intention of the legislature was to give exemption if the terms of

the substantive part of the main provision alone to be complied with, the

proviso becomes redundant and otiose.

W.P. (CRL) 317/2023 Page 16 of 19

59. The main contention of the Petitioner, is that he was not named as an

accused in Column No. 11 but was put in Column No. 12 and, therefore, in

terms of proviso to Section 311A Cr.P.C, “he had not been arrested and

therefore, no directions can be given to him to give his handwriting

sample.”

60. This aspect was specifically and directly addressed by the Allahabad

High Court in the case of Vinod Kumar Singh v. State of U.P., 2019 SCC

OnLine All 5029 wherein the core issue was “Whether the Magistrate can

issue directions under Section 311-A Cr.P.C. to a person pending

investigation of a crime to give a specimen of his signature or handwriting,

if at no time he has been arrested in connection with the said crime?”

61. It was observed that in the first blush, it seems that the proviso by

conditioning to direct under the main provision any person, including an

accused, to provide his specimen signature or handwriting, with the

requirement that such person should have been arrested at some time in

connection with that investigation or proceeding, would certainly exclude

witnesses, the complainant, or the still other and wider “any other person”

from the purview of the Magistrate’s jurisdiction under Section 311-A

Cr.P.C. It would be limited to a narrow class of persons, who are accused of

an offence, and, that too, when such person, are arrested in connection with

the investigation or proceeding, but not the other accused, who have not

been arrested. This indeed would lead to the proviso controlling and limiting

the operation of the principal clause of Section 311-A to an extent that it

would lead to an absurd result. It is a settled principle of construction that

the clauses of statute including its proviso, must be harmoniously construed

in a manner that eschews an absurd conclusion. It was further observed that

W.P. (CRL) 317/2023 Page 17 of 19

if Section 311-A is construed in the manner that no person unless arrested in

connection with the enquiry or trial involved, can be directed by the

Magistrate, persons like the complainant or witnesses, who would hardly

ever be arrested in connection with the inquiry or trial involved, they were to

defy witness summons, would always be away from the Magistrate’s

jurisdiction under Section 311-A Cr.P.C. This possibly could never be the

legislative intent. The import of the proviso is that the jurisdiction of the

Magistrate under Section 311-A Cr.P.C, would be available in case of the

accused alone, if he has been arrested in connection with the relative inquiry

or trial, but not otherwise. The Proviso would not apply in the case of “any

other person”, other than the accused. It would not apply in case of a

complainant, a witness, other than an accused. Any other construction would

lead to an absurdity, which the legislature could never have intended.

62. In regard to the arrest of the accused, it was observed by the Madras

High Court in the Case of Babitha Surendran vs. State rep by Inspector of

Police, 2015 CriLJ 5016, wherein it was observed that it is trite law that

arrest is not compulsory in every case as held in Joginder Kumar vs. State of

U.P., AIR 1994 SC 1349. If the Police Officer consciously decides to follow

the Supreme Court dictum in Joginder Kumar’s case and does not affect

arrest, then he will be precluded from obtaining specimen handwriting and

signatures from the accused, which cannot be the intent of Section 311-A

Cr.P.C.

63. Likewise, in the case of Christopher Sam Miller vs. Inspector of

Police in Criminal Original Petition (MD) No. 9985/2011, decided on

21.11.2017, it was held that the proviso is meant to be an exception to

W.P. (CRL) 317/2023 Page 18 of 19

something within the main enactment or to qualify something enacted

therein, but for the proviso, it would be within the purview of the enactment.

64. In the light of the aforesaid, it emerges from the comprehensive and

harmonious reading of Section 311 and its proviso and by applying the

mischief rule or the rule of Heydon’s Case, permitting the Court to read a

statute valiantly alone, when a literal construction would lead to an absurd

result. It is evident that the requirement of person being under arrest in terms

of proviso, is limited to the accused and not to any other person stated in

Section 311 Cr.P.C.

65. It also emerges that the arrest of a person does not imply that he

should have been physically arrested but if he is arrayed as an accused, the

investigations against him including the arrest, has to be done in accordance

with the dictate of the Hon’ble Supreme Court of India in the various

Judgments, which direct that no arrest be made unless mandatorily required.

In this regard, reference may also be made to the guidelines that have been

led in the Case of Arnesh Kumar vs. State of Bihar & Anr.

66. Therefore, the requirement of Proviso to 311-A Cr.P.C would be

satisfied if the person is arrayed as an accused and is required to give the

sample of his signatures/handwriting for the purpose of instigations.

67. The facts of the present case may now be considered in the light of the

aforesaid discussion. A bare perusal of the Chargesheet filed in the case,

reveals that the Petitioner, though included in 12

th

Column, but is stated to

be “on Court Bail”. The accused could only be on Court Bail, if he was

arrested in some manner at some point in time, which is enough to bring his

case out of the exception provided in the given proviso.

W.P. (CRL) 317/2023 Page 19 of 19

68. The judgment of Vinod Kumar Singh (supra), underscores that the fact

of “having been arrested at some time” as a condition for the Magistrate to

assume jurisdiction and issue a compulsory direction under Section 311A, is

met in the instant case.

69. Thus, this contention of the Petitioner is untenable in law.

Order:

70. In view of the aforesaid discussion, the Petition is hereby dismissed as

without merit. The Petitioner is directed to comply with the directions of the

Ld. Magistrate.

71. The pending Application(s), if any, are accordingly disposed of.

(NEENA BANSAL KRISHNA)

JUDGE

JANUARY 05, 2026

va