A

STATE (THROUGH CBI/NEW DELHI)

v.

S.J. CHOUDHARY

MARCH 22,1990

B [S. RA1NAVEL PANDIAN AND K. JAYACHANDRA

c

D

E

REDDY, JJ.]

Indian Evidence Act, 1872: S. 45-0pinion of typescript

expert-Whether admissible in evidence -Question referred to larger

Bench.

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 Forensic Science Laboratory where they succeeded

in partially reconstructing the name and address of the deceased. ~''1ese

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 conclude

that the typescripts found on the slip pasted on

the wrapper of the parcel had .been typed from one. of the machines of

the

colleg~ as both the impressions were identical.

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

F

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'

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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,

H HELD: By the march of time, there is rapid development in the

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STATE v. S.J. CHOUDHARY [PANDIAN, J.J 125

field of forensic science and it has become imperative to match the said

march of modern vistas of scientific knowledge. The question in the

instant case whether the opinion

of an expert in regard

lo typescript

would fall within the ambit of s. 45 of the Evidence Act should, there­

fore, he examined in detail and decided by a Large Bench as the judgment

in Hanumant's case was rendered

by a Bench of three Judges.

[J30D, G]

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal

No. 461of1987.

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

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dismissing the petition of the petitioner in limine. The relevant facts E

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 l.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 F

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

re~istered at Hazrat

Nizamuddin Police Station as

FIR No.

305 dated 2.10.1982. The G

investigation was taken up

by the police of the said police station.

Thereafter, the investigation 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 H

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126 SUPREME COURT REPORTS [ 1990] 2 S.C.R.

custody of the respondent was handed over to the CBI for sometime.

After completing the investigatioc, the CBI laid the charge-sheet on

28.10.1983.

Presently, the case is pending trial before the Additional

Sessions Judge, Delhi. While the petitioner in the SLP, filed in

B

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.

c

D

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 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

E

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,

Jania Commercial College at I-43, Lajpat Nagar-II, New De-

F lhi.

The Investigating Agency took the specimen of typing prints from

the 13 English typewriters found in the said college. The re-construc­

ted 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 gove his opinion that on balance

of similarities and dissimilarities, it is reasonable to conclude that the

G typescripts found

on the slip pasted on the wrapper of the parcel col­

lected from the scene have been typed from one of the machines

of the

Janta Commercial 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 for the

H accused

on the ground that the evidence of such typewriting expert is

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STATE v. S.J. CHOUDHARY [PANDIAN, J.] 127

inadmissible under Section 45 of the Indian Evidence Act as it does not

fall within its ambit.

It seems from the. impugned 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 Hanu­

mant & 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 he 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

typewritten documents cannot be examined to give evi­

dence on this

point."

On being dissatisfied with the above order of the High Court,

this criminal appeal

is filed by the State.

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For proper understanding and appreciation of the question E

involved in this case, the relevant portion of the observation of this

Court in

Hanumant'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 F

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 crtain 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 fall within the ambit

of

Section 45 of the Act. This view of the High Court was G

not contested before us.

It is curious that the learned Judge

in the High Court, though he held that the evidence of the

experts was inadmissible, proceeded nevertheless to dis-

cuss it and placed some reliance on

it."

Though a lengthy argument was advanced by the respective H

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128 SUPREME COURT REPORTS [ 1990] 2 S.C.R.

counsel for both the parties by citing a series of decisions in support of

their respective contentions, we are not adverting to all those conten­

tions 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

branches

of specialised knowledge to the formation of opinion, that by

the march of science, the evidence of expert regarding typescript has

assumed importance, that such expert evidence on typescript 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

D was no issue

in that case as to whether the expert's testimony on

typescript was admissible or not under the Evidence Act and conse­

quently there was no discussion of

law on that subject and in fact,

there was no contest on the question of the admissibility of the evi­

dence

of an expert regarding typed documents. He would reiterate

that the judgment in Hanumant's case has not declared the law in

E regard to the admissibility of the testimony of an expert in regard to

typescript and that the learned

Judges have pronounced no indepen­

dent opinion upon the same. In support of this submission, firstly he

drew

our attention to the following passage appearing in Woodrofee

and Ameerali's Law of Evidence, which reads thus:

F

"The Supreme Court has held in Han um ant 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 indi-

G cated 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

H expressed

by the Law Commission in its 69th Report (Vol.

IV) in Chap-

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STATE v. S.J. CHOUDHARY [PANDIAN, J.J 129

ter 17 captioned 'Opinion of Expert' wherein the Law Commission

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

w.ords

"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 Ameerali in 'Law of Evidence' and by the Law Commission in its

69th Report, the word 'science' occurring in Section 45 should be held

wmprehensive enough to include the opinion of an expert in regard to

the transcript as well. But the acceptability

or otherwise of an expert

testimony

on typewritten documents would depend upon the satisfac­

tion

of the Court about the specialised skill and experience of that

expert

on that subject. Finally, he requested that this Court notwith­

standing the passing observation in

Hanumant's case be pleased to

examine in detail the question

of the admissibility or otherwise of an

expert testimony

on typescript 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

Ha.iumant's case

cannot be discarded

or brushed aside as a passing 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 respndent should

not be subjected 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 prosecu­

tion

to permit it to examine Sh. S.K. Gupta as an expert and, there­

fore, 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

contrary 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-

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130 SUPREME COURT REPORTS [ 1990) 2 S.C.R.

cumstances. In support of this submission, he places reliance 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 jurisdiction tinder 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 elucidation and final decision of

this Court or which disclose such of the exceptional or special cir-

cumstances which merit the consideration of this Court on a particular

issue.

He cites the decision of this Court in Bengal Chemical &

Pharmaceutical 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

C

warrant examination of the request made by the appellant.

After bestowing our anxious consideration on the question of

law involved, we without expressing any

view at this stage on the

observation made

in Hanumant's case feel that the question with

D regard to the admissibility of the opinion of an expert on typescript

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 typescript would fall within the

E 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 consi­

dering" the importance

of the question involved made the following

order:

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"Special leave granted.

Since the question involved is important and is involved in

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."

Takmg tn.: 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

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