Kanhaiya Lal @APPELLANT@Hash Civil Judge, Suratgarh

The petitioners have preferred this writ petition under Article 226 & 227 of the Constitution of India, claiming the following reliefs:

“I. By a writ, order or direction, the order dated 23.09.2017 (Anx.7) may kindly be quashed and set aside and in consequence the application filed

by the respondent No.10 (Anx.5) may kindly be dismissed in toto.

II. Any other appropriate order or direction, which this Hon’ble Court considers just and proper in the facts and circumstances of this case, may

kindly be passed in favour of the petitioner.

III. Cost of the writ petition may kindly be awarded to the petitioner.â€​

Earlier this Court after hearing learned counsel for the petitioner has passed the following order on 01.11.2017:

“The present writ petition has been preferred against the order dated 23.09.2017 whereby the learned Trial Court has order to send an agreement

dated 17.10.1987 to the Station House Officer Police Station Rajiyasar, District Sriganganagar for FSL, pursuant to his application, while relying upon

the judgment of this Court in case of Malaram Vs. State of Rajasthan & Anr., reported in 2013 (1) RCC (Raj.) 74. Learned counsel for the petitioners

submits that while deciding the Malaram’s case (supra), another judgment of coequal Bench namely Mahant Deepak Swami Vs. A.D.J. (FT)

No.5, Jaipur City, Jaipur & Ors., reported in 2005 (5) Western Law Cases (Raj.) 496, duly affirmed by the Division Bench’s in its judgment

reported in 2005 (6) RDD 1924 (Raj) (DB) were not brought to the notice of the Bench hearing it.

Matter requires consideration. Issue notice. Issue notice of the stay application also. Both the notices be made returnable within six weeks. In the

meanwhile, effect and operation of the order dated 23.09.2017 passed by learned Civil Judge, Suratgarh, District Sriganganagar in Civil Case

No.105/2015, shall remain stayed.â€​

This Court takes note of the fact that the petitioner had filed a suit for specific performance of the agreement dated 17.10.1987 against the

respondent-defendant which was pertaining to one agricultural land situated at Chak 110 RDL Tehsil Suratgarh. The question involved in the present

writ petition is that the learned court below vide order dated 23.09.2017 has allowed an application whereby the original agreement dated 17.10.1987

has been allowed to be given to the investigating officer at Police Station Rajiyasar for getting the agreement examined by a proper Forensic Science

Laboratory report.

Learned counsel for the petitioner has mentioned the Rule 181 of the Rajasthan High Court General Rules (Civil), 1986, which reads as under:

“181. Prohibition against issue of records.- Ordinarily no record shall be issued except on the requisition of a Civil, Criminal or Revenue Court, of a

Tribunal of the Government, of the Board of Revenue, of Commissioner of Excise and of the Inspector General of Registration and Stamps, and then

only on an order of the Presiding Officer. In all other cases, before a record is issued the orders of the High Court shall be taken on the subject.â€​

As per learned counsel for the petitioner, such rule prohibits issuing of any records except on requisition of the Courts or by the permission of the

High Court.

Learned counsel for the petitioner has relied upon the judgment of Mahant Deepak Swami Vs. Additional District & Sessions Judge, (FastÂ

Track) No.5, Jaipur City, Jaipur reported in 2005(6) RDD 1924 (Raj) (DB), the relevant portion of which reads as follows:

“5. Aggrieved by the order of the learned trial Court, the appellant filed a writ petition which was dismissed by the learned Single Judge of this

Court. Being aggrieved by the said order, the present appeal has been filed. Learned Single Judge dismissed the writ petition observing as follows:-

The uncle of the petitioner and respondent No. 6 treating the provision of Section 195, CrPC, applicable in the instant case filed an application before

Assistant Devasthan Commissioner for making a complaint against the respondents and others with regard to the same subject matter. This

application was rejected by the Assistant Devasthan Commissioner on 12.09.2001 against which the respondent No. 6 has submitted a criminal

revision petition No. 57/2004 which is pending before the ADJ No. 1 Jaipur City, Jaipur. Irrespective of pendency of this revision petition and knowing

fully well that in view of bar under Section 195, CrPC, the petitioner got this FIR registered concealing these material facts. Not only this the petitioner

himself has submitted an application under Section 340, CrPC, before the ADJ No. 3 Jaipur City, Jaipur on the same subject matter which is also

pending for decision. Thus, it is wrong to suggest that there is no alternative remedy rather the registration of FIR itself is not an appropriate and legal

remedy.

It is also submitted that so far examination of the documents is concerned, the trial Court is competent to get these documents examined by the FSL if

the petitioner is able to satisfy it about the necessity of such examination during trial of the civil suit. It is at all not necessary to give the documents to

the police to obtain FSL examination.

Having heard the rival submissions of the respective parties and upon perusal of the order impugned and relevant provisions of law and more

specifically Rule 181 of the General Rule, in the facts and circumstances of the present case, as several suits and criminal cases are pending and even

a writ petition is also pending with regard to the original dispute, I am fully convinced with the submissions made on behalf of the respondents that in

case the petitioner is able to satisfy the trial Court, the trial Court is quite competent to get the documents examined through FSL regarding

genuineness and correctness of the documents. It is not necessary that the documents be handed over to the police for FSL verification.

Learned Counsel for the appellant submitted before us that the appellant cannot be left remedy less. The documents which is sought by the police is

forged one and that being the position, he has set the criminal law into motion. The process of criminal law cannot be scuttled and the document was

required to be given to the investigating agency for investigation. He has place reliance on Section 91 of the Criminal Procedure Code whereby

powers have been in the investigating agency for seeking a document relevant for investigation. Section 91 of the, CrPC, is quoted hereinbelow for

ready reference:-

Summons to produce document or other thing. -

(1) Whenever any Court or any officer in charge of a police station considers that the production of any document or other thing is necessary or

desirable for the purposes of any investigation, inquiry, trial or other proceeding under this Code by or before such Court or officer, such Court may

issue summons, or such officer a written order, to the person in whose possession or power such document or thing is believed to be, requiring him to

attend and produce it, or to produce it, at the time and place stated in the summons or order.

(2) Any person required under this section merely to produce a document or other thing shall be deemed to have complied with the requisition if he

causes such document or thing to be produced instead of attending personally to produce the same.

A reading of Section 91, CrPC, shows that an officer of the police is to give a written order to the person in whose possession or power a document

or a thing is believed to be, requiring him to produce it. Admittedly, the document in question presently is in possession of the Court trying the civil suit.

If the literal meaning is given to the language of Section 91, CrPC, then the police officer investigating a case will have to make an order for

production of the document. If this aspect is considered to be imperative, then it would mean that this section authorises the police official to issue an

order to a Court. In our considered opinion, such powers cannot be conceived to be vested in a police officer under Section 91, CrPC. It cannot be

said that an officer of the police station has been vested with powers to issue orders to a Court. Reliance as placed by the learned Counsel for the

appellant on the provision of Section 91, CrPC, appears to be misplaced.â€​

Learned counsel for the respondent has referred to the judgment of Malaram Vs. State of Rajasthan & Anr. reported in 2013(1) RCC (Raj.) 74.

The relevant portion of the judgment reads as follows:

“3. The facts and circumstances of the case as well as the material on record have been considered by this Court and the impugned order has

been carefully perused. The relevant provision with regard to procedure for obtaining the document in question by the investigating agency from the

Civil Court is laid down under Rule 181 of the General Rules (Civil), 1986. The said provision reads as under:-

“181. Prohibition against issue of records.-Ordinarily no record shall be issued except on the requisition of a Civil, Criminal or Revenue Court, of a

Tribunal of the Government, of the Board of Revenue, of Commissioner of Excise and of the Inspector General of Registration and Stamps, and then

only on an order of the presiding officer. In all other cases, before a record is issued the orders of the high Court shall be taken on the subject.â€​

In view of the aforesaid provision, it is clear that in order to obtain an original document which is in the record of the Civil Court, the investigating

officer concerned has to seek an order from the concerning court, Civil/ Criminal/ Revenue/ Tribunal/ Board of Revenue, etc. The said court is to pass

an appropriate order on the application of the investigating officer and thereafter a requisition be issued by it to the concerning Civil Court for handing

over the document. The investigating officer has to then place a certified copy of the said document in the record of the Civil Court and receive the

original documents for the purpose of getting it examined by the handwriting/ finger prints expert from the FSL. On having received the report/ opinion

from the FSL, the investigating officer is supposed to return the original documents to the Civil Court where it is required for the purpose of civil

proceedings pending before it.

In view of the above, this Court is of the considered opinion that so far as the observation made by the learned court below that during the course of

investigation in a criminal case, an original document can be obtained from a Civil Court only by the order of the High Court is erroneous and contrary

to the procedure laid down under law. The aforesaid rule very clearly specifies that in case of other than the one mentioned in the rule, a document is

to be obtained only when an appropriate order has been sought from the High Court. The provision does not lay down that in all cases, where original

document from the record of civil court, etc., is required to be taken by the investigating officer, he has to seek permission from the High Court.

In the facts and circumstances of the case as well as the impugned order passed by the learned court below, it is deemed just and proper to dispose

of this reivision petition with the direction to the investigating officer in FIR No.303/2010, registered at Police Station Sri Madhopur, District Sikar to

file an appropriate application before the concerning court having jurisdiction over Police Station Sri Madhopur and seek order for receiving the

original document from the record of Civil Court. Thereafter, the Court having the jurisdiction in the instant case shall issue a requisition for the Civil

Court concerned to give the original document to the investigating officer for the purpose of getting an expert opinion from the FSL. The investigating

officer shall place on record a certified copy of the original documents in the record of a Civil Court. The said original document received from the

Civil Court shall be returned by the investigating officer as soon as he receives it back from the FSL, after expert opinion.

In view of the above observations, this revision petition is disposed of.â€​

Learned counsel for the respondent has also referred to the judgment of Jasveer Singh Vs. State of Rajasthan reported in 2013 WLC (Raj.) UC

The relevant portion of the judgment reads as under:

“6. The controversy involved in the matter is no longer res-integra in view of the decision rendered in Mahant Hari Ram Vs. State of Rajasthan

(S.B.Cr.Misc. Petition No. 1204/2007) decided on 3.4.2008 and the case of Borilal @ Bodi Lal Vs. State (supra).

Having regard to the view expressed by this Court in the case of Borilal @ Bodi Lal Vs. State of Rajasthan reported in 2006(1) Cr.L.R. (Raj.)-549

and in the case of Mahant Hari Ram Vs. State of Rajasthan (supra) and keeping in view the fact that in the criminal case instituted by the petitioner,

there is a specific allegation that the accused forged the document and then filed the same in the civil court, the original document has to be analyzed

by the Hand Writing Expert and the comparison of the signature/thumb impressions etc. has to be done by the expert in order to secure the ends of

justice and in order to ensure a fair & proper investigation.

In these circumstances and in order to secure the ends of justice, this Court is of the opinion that the civil court trying the suit no. 35/2012 has to be

directed in accordance with Rule 181 of the Rules of 1986 to hand over the original document to the officer investigating the F.I.R. No. 680/2007 of

the Police Station, Anoopgarh for investigation after keeping certified copy thereof on record. Thereafter the I.O. shall send the document to the

concerned Chemical Laboratory/Forensic Science Laboratory for scientific examination and comparison. The examination shall be conducted

expeditiously and thereafter the original document upon being received back from the Finger Print Expert/F.S.L. shall be submitted back to the Civil

Court.

Accordingly, the miscellaneous petition is allowed. The order dated 3.4.2013 passed by Addl. Dist. Judge, Anoopgarh is quashed.â€​

Therefore, the limited question before this Court is whether the learned court below was correct in releasing the document on application of the

investigating officer to him for examination by FSL.

After hearing learned counsel for the parties and perusing the record of the case as well as the precedent law cited at Bar, this Court is of the

opinion that the civil court has ample powers as per the precedent law laid down by this Court in the matter of Jasveer Singh (supra) and Malaram

(supra) to give away the document in its possession for examination by the FSL for scientific examination and comparison as the record can be

returned back to the civil court.

This Court finds that the Division Bench judgment cited by learned counsel for the petitioner has only deliberated on the issue that whether the

investigating officer can order the court under Section 91 Cr.P.C. to obtain the copy and we find certainly the right of the investigating officer is not

absolute to get the copy of of any of the document for FSL but if the satisfaction of the learned civil court is recorded and in normal course, the same

is not going to create any impediment in the process of adjudication of the suit then, there is no harm in providing document in question for FSL to go.

This Court is also of the view that the FSL is only a scientific channel through which the document can be made to go through or the request of

investigating officer to the satisfaction of the learned civil court. Apparently, there is no reason why such document should be refused to be sent for

FSL which is an agreement dated 17.10.1987 and is a bone of contention in the suit for specific relief. The order passed by the learned court below

seems to be justified and supported by the aforementioned precedent law.

In light of the aforesaid discussion, no interference is called for in the present writ petition, hence, the same is dismissed.