Holding

The Court held that the admissibility of expert testimony on typescript under Section 45 requires detailed examination and should be decided by a larger bench.

Summary

The State, represented by the CBI, appealed against a High Court order that barred the prosecution from examining a forensic document expert, S.K. Gupta, whose opinion linked a typewritten slip on a grenade parcel to a specific college typewriter. The issue centered on whether an expert's opinion on typescript falls within the ambit of Section 45 of the Indian Evidence Act. The trial court, relying on observations in Hanumant v. State of Madhya Pradesh, held the expert testimony inadmissible. The Supreme Court examined arguments that the term "science" in Section 45 should be given a liberal construction to include modern forensic disciplines such as questioned document examination. The Court noted the rapid development of forensic science and concluded that the question required detailed analysis by a larger bench. Consequently, the appeal was referred to a larger bench for a definitive ruling on the admissibility of such expert evidence.

Issues considered

Whether the opinion of an expert on typewritten documents is admissible under Section 45 of the Indian Evidence Act, 1872.

Legislation cited

Indian Evidence Act, 1872s. 45

Subjects

expert testimonySection 45Indian Evidence Actadmissibilitytypewritten documentsforensic sciencelarger benchcriminal appeal

Judgment

STATE (THROUGH CBI/NEW DELHI)
A v.
S.J. CHOUDHARY

MARCH 22,1990

B [S. RA1NAVEL PANDIAN AND K. JAYACHANDRA
REDDY, JJ.]

Indian Evidence Act, 1872: S. 45-0pinion of typescript
expert-Whether admissible in evidence -Question referred to larger
Bench.
c 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
D 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
E 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'
G 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

l24
STATE v. S.J. CHOUDHARY [PANDIAN, J.J 125

field of forensic science and it has become imperative to match the said
A
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]
B
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, c
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.
D
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
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
126 SUPREME COURT REPORTS [ 1990] 2 S.C.R.

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

Be that as it may, according to the prosecution the cover of the
device parcel containing camouflaged live hand grenade was found
c 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
D 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
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 A
----...., .. 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:
B
"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. c
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- D
dence on this point."

On being dissatisfied with the above order of the High Court,
this criminal appeal is filed by the State.

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

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

B 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
c 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-
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: A

"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.
B
17.31. We, therefore, recommend that Section 45 should
be amended so as to include identity of typewriting" .
J
..
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 c
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 D
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 E
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 F
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- G
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- H
r
130 SUPREME COURT REPORTS [ 1990) 2 S.C.R.

cumstances. In support of this submission, he places reliance in The
A
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
B 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:
"Special leave granted.
F 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
G 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.
H
P.S.S. Appeal referred to Larger Bench