Where this Court made a distinction between an act, though in excess of the duty, was reasonably connected with the discharge of official duty and an act which was merely a cloak for doing the objectionable act.
No public servant is appointed with a mandate or authority to commit an offence. Therefore, if the observations contained in paragraph 50 of the decision in Parkash Singh Badal are applied, any act which constitutes an offence under any statute will go out of the purview of an act in the discharge of official duty. The requirement of a previous sanction will thus be rendered redundant by such an interpretation.
In view of the above, we uphold the contention advanced on behalf of A-1 that the prosecution ought to have taken previous sanction in terms of Section 197(1) of the Code, for prosecuting A-1, for the offences under the IPC.
Accomplice as Witness
Section 133 of the Indian Evidence Act, 1872 declares an accomplice to be a competent witness and that a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. However, while considering the import of Section 133. this Court held in M.O. Shamsudhin vs. State of Kerala[(1995) 3 SCC 351] that the court is bound to take note of a precautionary provision contained in Illustration (b) to Section 114 of the Evidence Act, which provides that an accomplice is unworthy of credit unless he is corroborated in material particulars.
For invoking Section 73, there must first have been some signature or writing admitted or proved to the satisfaction of the Court, to have been written or made by that person. The Section empowers the Court also to direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figure
There was no signature or writing available before the High Court, which had been admitted or proved to the satisfaction of the Court to have been written or made. The High Court did not also direct A-7 to write any words or figures for the purpose of enabling a comparison. Without following the procedure so prescribed in Section 73, the High Court invented a novel procedure, to uphold the conviction handed over by the Trial Court through a wrong reasoning.
In fact, the High Court considered Exhibit P-75 to be the document containing the admitted handwritings and signatures of A-7 and compared what was found therein with the handwritings/signatures found in Exhibits P-66, P-76, P-90 and P-92.
But what was contained in Exhibit P-75 was never admitted by A- 7 to be in his handwriting. Exhibit P-75 was marked through PW-30, the handwriting expert, and not even by the I.O. At least if the I.O. had identified and marked the specimen writings and signatures of A-7 as Exhibit P-75, it was possible for the prosecution to contend that the specimen signatures stood proved. But the I.O. did not identify Exhibit P-75. PW-30 through whom Exhibit P-75 was marked did not directly obtain the specimen writings of A-7. The statement of PW-30 that the specimen writings of A-7 are in Exhibit P-75 was only hearsay evidence, as he did not directly obtain those specimen signatures. Thus, Exhibit P- 75 never stood proved.
Even in the questioning under Section 313 of the Code, no specific question was put to A-7 whether Exhibits P-66, P-76, P-90, P-92 and P- 75 were in his handwritings and whether they contained his signatures. Therefore, what was contained in Exhibit P-75 was not even admitted signatures.
In the absence of either admission or proof of the admitted signatures, the High Court could not have resorted to Section 73 of the Evidence Act.
Supreme Court Judgment
SRINIVASULU Vs. STATE REP. BY THE INSPECTOR OF POLICE,
Citation: 2023 STPL(WEB) 9 SC
Criminal Appeal No. 2417 of 2010 With Criminal Appeal No.16 of 2011 Criminal Appeal No.2444 of 2010-Decided on 15-6-2023
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