PETITIONER:
STATE (THROUGH CBI/NEW DELHI)
Vs.
RESPONDENT:
S.J. CHOUDHARY
DATE OF JUDGMENT: 13/02/1996
BENCH:
VERMA, JAGDISH SARAN (J)
RAY, G.N. (J)
SINGH N.P. (J)
FAIZAN UDDIN (J)
NANAVATI G.T. (J)
CITATION:
1996 AIR 1491 1996 SCC (2) 428
JT 1996 (2) 186 1996 SCALE (2)37
ACT
HEADNOTE
JUDGMENT
JUDGMENIJ.S VERMA. J.
The reference made in this appeal to the Constitution Bench is for deciding the important question of law : Whether the opinion of a typewriter expert is admissible in evidence under Section 45 of the Indian Evidence Act, 1872 ?
The respondent - S.J. Chaudhary was being tried in the Court of Addl. Sessions Judge, New Delhi, on charges punishable under Section 302, IPC and Sections 3 and 4 of the Explosive Substances Act, 1908 in Sessions Case No. 36 of 1983. The prosecution wanted to examine a typewriter expert for proof of certain incriminating facts against the respondent based on the identity of a typewriter on which a material document was alleged to have been typed. An objection was taken to the admissibility of the opinion evidence of the typewriter expert under Section 45 of the Indian Evidence Act, 1872 (for short "Evidence Act") based on the decision of this Court in Hanumant vs. The state of Madhya Pradesh, AIR 1952 SC 343 = 1952 SCR 1091, and the Trial Court upheld that objection. Criminal Revision No.105 of 1987 was filed in the Delhi High Court by the prosecution challenging that order. The Delhi High Court has dismissed the revision, hence this appeal by special leave.
The Present criminal appeal came up for hearing before a Division Bench comprising of two learned Judges of this Court. The correctness of the observations in Hanumant’s case by a Bench of three learned Judges on this point was doubted and reconsideration thereof was sought on behalf of the appellant. Accordingly, by order dated March 22, 1990 the Division Bench took the view that this important question of law involved in this appeal should be considered and decided by a larger Bench. This question of law is the only point involved for decision in this appeal and the decision thereon would dispose of the appeal.
In Hanumant (supra), while dealing with one of the arguments advanced therein, it was stated thus:
"Next it was argued that the
letter was not typed on the office
typewriter that was in those days,
viz., article B, and that it had
been typed on the typewriter
article A which did not reach
Nagpur till the end of 1946. On
this point evidence of certain
experts was led. The High Court
rightly held that opinion of such
experts was 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 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 discuss
it and placed some reliance on it.
The trial magistrate and the
learned Sessions Judge used this
evidence to arrive at the finding
that, as the letter was typed on
article A which had not reached
Nagpur till the end of December,
1946, obviously the letter was
antedated. Their conclusion based
on inadmissible evidence has
therefore to be ignored."
(Page 1110)
(emphasis supplied) The above passage in that decision is the basis of the view taken that the opinion of a typewriter expert is not admissible under the Evidence Act and that it does not fall within the ambit of Section 45 of the Act. It is significant that this view taken by the High Court in that case was not even contested in this court and, therefore, the decision in Hanumant proceeds on the concession that the evidence of a typewriter expert is not admissible in evidence under Section 45 of the Act. In our opinion, the decision in Hanumant cannot be taken as deciding that point even though on the basis of that observation the evidence of typewriter expert was excluded as inadmissible. This question of law has, therefore, to be answered without any further assistance being available from the decision in Hanumant.
In the Indian Evidence Act, 1872, Chapter II relating to ’Relevancy of Facts’ contains Sections 5 to 55 and therein under the heading ’Opinions of Third Persons, when relevant’ are Sections 45 to 51. Section 45 reads thus:
"Opinions of experts - When the
Court has to form an opinion upon a
point of foreign law, or of
science, or art, or as to identity
of handwriting [or finger
impressions] (Ins. by Act 5 of
1899, S. 3), the opinions upon that
point of persons specially skilled
in such foreign law, science or
art, [or in questions as to
identity of handwriting] (Ins. by
Act 18 of 1872, S. 4), [or finger
impressions] (Ins. by Act 5 of
1899, S. 3), are relevant facts.
Such persons are called experts." Illustration (c) to Section 45 is as under:
"(c) The question is, whether
a certain document was written by
A. Another document is produced
which is proved or admitted to have
been written by A.
The opinions of experts on the
question whether the two documents
were written by the same person or
by different persons are relevant." The plain meaning of Section 45 is that the Court in order to form an opinion upon a point of foreign law, or of science, or art, or as to identity of handwriting, or finger impressions can treat the opinion upon that point of person specially skilled in such foreign law, science or art, or in questions as to identity of - handwriting, or finger impressions as relevant facts. In other words, the opinion of persons specially skilled in such foreign law, science, or art, or questions as to the identity of handwriting or finger impression, called experts therein, are relevant facts. The opinion of such experts is admissible in evidence as relevant facts by virtue of Section 45 of the Evidence Act.
In our opinion, irrespective of the view taken on the question of meaning of the word ’handwriting’ in Section 45 to include typewriting, the word ’science’, occurring independently and in addition to the word ’handwriting’ in Section 45, is sufficient to indicate that the opinion of a person specially skilled in the use of typewriters and having the scientific knowledge of typewriters would be an expert in this science; and his opinion about the identity of typewriting for the purpose of identifying the particular typewriter on which the writing is typed is a relevant fact under Section 45 of the Evidence Act. It is obvious that the Indian Evidence Act when enacted originally in 1872 did not specifically mention typewriting in addition to handwriting because typewriters were then practically unknown. However, the expression ’science, or art’ in Section 45 in addition to the expressions ’foreign law’ and ’handwriting’ used in the Section as originally enacted, and the expression ’finger impressions’ inserted in 1899 is sufficient to indicate that the expression ’science, or art’ therein is of wide import. This expression ’science, or art’ cannot, therefore, have a narrow meaning in Section 45 and each of the words ’science’ and ’art’ has to be construed widely to include within its ambit the opinion of an expert in each branch of these subjects, whenever the Court has to form an opinion upon a point relating to any aspect of science or art.
The meaning of the word ’science’ as understood ordinarily with reference to its dictionary meaning must be attributed to the word as used in Section 45 of the Indian Evidence Act. Some of the meanings given in the dictionaries are :
The Oxford Encyclopedic English
Dictionary :
"Science.....a systematic and
formulated knowledge, esp. of a
specified type or on a specified
subject (political science). b. the
pursuit or principles of
this......."
The New Shorter Oxford English
Dictionary, Vol. 2.,:
"Science...2a Knowledge acquired by
study; acquaintance with or mastery
of a department of learning 3a. A
particular branch of knowledge or
study; a recognized department of
learning;..."
Collins Dictionary of the English
Language:
"Science n. 1 the systemetic study
of the nature and behavior of the
material and physical universe,
based on observation, experiment,
and measurement, and the
formulation of laws to describe
these facts in general terms. 2.
the knowledge so obtained or the
practice of obtaining it. 3. any
particular branch of this
knowledge: the pure and applied
sciences. 4. any body of knowledge
organized in a systematic manner.
5. skill or technique..."
It is clear from the meaning of the word ’science’ that the skill or technique of the study of the peculiar features of a typewriter and the comparison of the disputed typewriting with the admitted typewriting on a particular typewriter to determine whether the disputed typewriting was done on the same typewriter is based on a science study of the two typewritings with reference to the peculiarities therein; and the opinion formed by an expert is based on recognized principles resulting the scientific study. The opinion so formed by a person having the requisite special skill in the subject is, therefore, the opinion of an expert in that branch of the science. Such an opinion is the opinion of an expert in a branch of science which is admissible in evidence under Section 45 of the Indian Evidence Act.
There cannot be any doubt that the opinion of an expert in typewriting about the questioned typed document being typed on a particular typewriter is based on a scientific study of the typewriting is based on a scientific study of the typewriting with reference to the significant peculiar features of a particular typewriter and the ultimate opinion of the expert is based on scientific grounds. The opinion of a typewriter expert is an opinion of a person specially skilled in that branch of the science with reference to which the Court has to form an opinion on the point involved for decision in the case. In our opinion, on a plain constructing of Section 45 giving to the word ’science’ used therein its natural meaning, this conclusion is inevitable; and for supporting that conclusion, it is not necessary to rely on the further reason that the word ’handwriting’ in Section 45 would also include typewriting.
Statutory Interpretation by Francis Bennion, Second edition, Section 288 with the heading "Presumption that updating construction to be given" states one of the rules thus: " xxx xxx xxx
(2) It is presumed that Parliament
intends the court to apply to an
ongoing Act a construction that
continuously updates its wording to
allow for changes since the Act was
initially framed (an updating
construction). While it remains
law, it is to be treated as always
speaking. This means that in its
application on any date, the
language of the Act, though
necessarily embedded in its own
time, is nevertheless to be
construed in accordance with the
need to treat it as current law.
xxx xxx xxx
( Page 617 ) In the comments that follow it is pointed out that an ongoing Act is taken to be always speaking. It is also, further, stated thus:
"In construing an ongoing Act,
the interpreter is to presume that
Parliament intended the Act to be
applied at any future time in such
a way as to give effect to the true
original intention. Accordingly the
interpreter is to make allowances
for any relevant changes that have
occurred, since the Act’s passing,
in law, social conditions,
technology, the meaning of words,
and other matters. Just as the US
Constitution is regarded as ’a
living Constitution’, so an ongoing
British Rct is regarded as ’a
living Act’. That today’s
construction involves the
supposition that Parliament was
catering long ago for a state of
affairs that did not then exist is
no argument against that
construction. Parliament, in the
wording of an enactment, is
expected to anticipate temporal
developments. The drafter will try
to foresee the future, and allow
for it in the wording.
xxx xxx xxx
An enactment of former days is thus
to be read today, in the light of
dynamic processing received over
the years, with such modification
of the current meaning of its
language as will now give effect to
the original legislative intention.
The reality and effect of dynamic
processing provides the gradual
adjustment. It is constituted by
judicial interpretation, year in
and year out. It also comprises
processing by executive officials."
( Pages 618-619 )
There cannot be any doubt that the Indian Evidence Act, 1872 is, by its very nature, an ’ongoing Act.’
It appears that it was only in 1874 that the first practical typewriter made its appearance and was marketed in that year by the E. Remington and Sons Company which later became the Remington typewriter - Obviously, in the Indian Evidence Act enacted in 1872 typewriting could not be specifically mentioned as a means of writing in Section 45 of the Evidence Act. Ever since then, technology has made great strides and so also the technology of manufacture of typewriters resulting in common use of typewriters as a prevalent mode of writing. This has given rise to development of the branch of science relating to examination of questioned typewriting. I ’Questioned Documents’, Second Edition, by Albert S. Osborn in the Chapter of "questioned typewriting" this aspect is considered and, therein at page 598, it is stated thus:
"The principles underlying the
identification of typewriting are
the same as those by which the
identity of a person is determined
or a handwriting is identified. The
identification in either case is
based upon a definite combination
of common or class qualities and
features in connection with a
second group of characteristics
made up of divergences from class
qualities which then become
individual peculiarities.
The mathematical principles
outlined in the fourteenth chapter
show how remote is the possibility
of coincidence of even a few scars
or deformities on a person, and
coincidence of scars and
deformities are as remote with
typewriters as with persons."
In ’Photographic Evidence’ by Charles C. Scott, Second Edition, Volume 1, under the heading "Typewriting-Identity or Non-identity of Typing" it is stated thus:
"But even as the nationality
of an individual may be perplexing
but does not in any way hamper the
determination of his personal
identity by means of his finger-
prints, his handwriting, or other
reliable indications, so also the
fact that it is often difficult to
determine the make of a typewriter
used in typing a document does not
lessen the reliability of the
scientific determination that a
certain typewritten document was
typed on a particular machine
ragardless of its make. By the use
of the proper microscopes and test
plates the document examiner often
can determine the question and by
the use of photographic comparison
charts he can demonstrate his
findings, usually with
unimpeachable certainty.
From a comparison of the
typewriting on a document which is
a subject of controversy with
specimens known to have been made
on a certain typewriter it is
usually possible to determine
whether or not that typewriter was
used in typing the subject
document, provided the subject
document contains sufficient
typewriting and the specimens from
the known machine are of a suitable
kind. This is true because every
typewriter when it comes off the
assembly line is an individual and
writes exactly like no other
typewriter. When a typewriter is
brand new the differences between
it and other typewriters coming off
the assembly line at the same time
are extremely minute and elusive,
but theoretically at least there
are identifying differences that
can be discovered by microscopic
examination and demonstrated
photographically. Furthermore, the
more a typewriter is used the more
individualistic it becomes and the
easier it is to identify its
typewriting. In some instances
through overuse, misuse, or abuse a
typewriter develops so many
peculiarities that its typing can
be identified readily with the
naked eye."
(page 636)
In ‘Law of Disputed and Forged Documents’ by J. Newton Baker, while dealing with the basic principles of identification of Typewriting generally it is stated:
" Since typewriting possesses
individuality it can be compared
and identified in the same manner
as handwriting. ..........."
(page 453) Therein while discussing individuality of typewriting, it is stated thus :
"The individuality of the
typewriter is established by the
character of its type impressions
on the paper. These characteristics
of typewriting can be analyzed,
compared and differentiated and can
be positively identified as those
of a particular typewriter. This
individual comparison and
identification of characteristics
may establish the genuineness or
forgery of a typewritten instrument
and when admitted in evidence is
sufficient proof.
The occurrence of similar
irregularities in typewriting it
two or more machines is practicable
impossible. The rule that the
typewriter creates for itself a
certain distinctive character of
writing which identifies one
certain machine from all other
machines is well established. To
prove that two instruments were
written on a Particular typewriter
similar coincidences of character-
istics must be shown in both
instruments, and these coincidences
considered collectively must demand
a single conclusion."
(pages-451-452)
In ’Typewriting Identification (Identification System for Questioned Typewriting)’ by Billy Prior Bates, the conclusion of the principles is stated thus:
"Conclusion
TYPEWRITING identification is
based on the same principle
underlying handwriting
identification, or any other thing
which has a great number of
possible variations.
The identification of a
typewritten document can be likened
to the identification of a
particular person. A person may be
identified in general by his sex,
size, features etc., and in
addition, for example, by a radical
mastestomy scar. A typewriter may
be identified in general by
characteristics such as type design
and size, possessed by all machines
of a specific make and model, and
in addition, for example, by a
flaw in the serif on the letter E.
No opinion as to identity
should be based upon only a few
dissimilarities (or similarities).
It is the combination of
measurements and characteristics
all together make up the
conclusion.
When good, clear specimens ere
available in sufficient amount for
a scientific identification of the
twelve points of comparison, it is
possible to show with absolute
certainty that a document was, or
was not, produced by a particular
machine.
The mathematical probability
of the same combination of these
characteristics divergent from the
norm appearing in two machines is
practically nil. The evidence of
the twelve points of comparison can
be conclusive proof."
(page 59)
It is, therefore, clear that the examination of typewriting and identification of the typewriter on which the questioned document was typed is based on a scientific study of certain significant features of the typewriter peculiar to a particular typewriter and its individuality which can be studied by an expert having professional skill in the subject and, therefore, his opinion on that point relates to an aspect in the field of science which falls within the ambit of Section 45 of the Indian Evidence Act. Such opinion evidence of experts in the field has long been treated as admissible evidence in similar jurisdictions like United States as is evident from these standard text books on the subject.
In the present case, even without resort to the word handwriting’ in Section 45 to include typewriting therein, in the view we have taken, the word ’science’ is wide enough to meet the requirement of treating the opinion of a typewriter expert as an opinion evidence coming within the ambit of Section 45 of the Evidence Act. We may, however, add that the long accepted practice of Judicial construction which enabled the reading of the word ’telegraph’ to include ’telephone’ within the meaning of that word in Acts of 1863 and 1869 when telephone was not invented, would also be available in the present case to read ’typewriting’ within the meaning of word ’handwriting’ in the Act of 1872. This is so because what was understood by hand writing in 1872 must now in the present times after more than a century of the enactment of that provision, be necessarily understood to include typewriting as well, since typing has become more common than handwriting and this change is on account of the availability of typewriters and their common use much after the statute was enacted in 1872. This is an additional reason for us to hold that the opinion of the typewriter expert in this context is admissible under Section 45 of the Indian Evidence Act.
As a result of the above discussion, we hold that the observations made in the above extract in the decision in Hanumant on the basis of a concession does not reflect the correct position of law on this point and should, therefore, be treated as no longer good law on the point.
For the aforesaid reasons, we hold that the opinion of the typewriter expert in the present case is admissible under Section 45 of the Evidence Act and the contrary view taken by the Trial Court and the High Court is erroneous. This appeal is accordingly allowed and the impugned orders of the Trial Court and the High Court are set aside.