This is the second part of the bi-partite article series. In the previous part, I discussed about the appointment of Advocate commissioner under Order 26 R 10A, the functions usually carried out by the commission, disputes as to handwriting and verification process of such documents. The last heading dealt with in previous part was appointment of advocate commissioner when expert is not able to verify the documents in the court premises. Moving further in this line the next question comes before us is that instead of directly sending the document to the FSL, why advocate commissioner has to be appointed. Let’s see.
Need of Advocate Commissioner’s Appointment under O.26 R 10A
An opinion from the Forensic Expert involves experiments with sophisticated equipments, which cannot be brought to the Court for the said purpose. However, the said reason cannot preclude a party from obtaining an opinion from the expert. With the advancement of science and technology, the Courts can have the assistance and aid of an expert in deciding a particular issue. The experts also cannot be expected to visit all the Courts wherever such requirements is there. It is also to be noted that there are not many Government experts with the facilities in the State. When the services of the Forensic Experts are originally required in criminal matters, the devotion of their time for civil matters is minimum. In such circumstances, it is open to the Court to appoint a Commissioner to obtain a report from Handwriting Expert after scientific investigation.
Commissioner’s Report is a part of the record and he need not be examined for proving it nor the report required to be exhibited
According to Order 26 Rule 10(2) the report of the Commissioner shall be evidence in the suit and shall form part of the record. The Court on its own or the parties with the permission of the Court are at liberty to summon the Commissioner to examine him personally touching any of the matter referred to him or mentioned in his report. If the Court, for any reasons, is dissatisfied with the report, it can also direct such further enquiry to be made as it shall think fit, according to sub-rule (3) of Rule 10.
The law is also settled in this regard. According to the decision in Shaik Fathima Bi vs Shaik Nanne Saheb[i] it was held that generally, the report of the Commissioner being part of record can be considered as evidence irrespective of the fact whether Commissioner is examined as a witness or not. The Court overruled the tenability of the objection raised by one party that the Commissioner’s report cannot be relied upon when it was not marked as exhibit in the evidence and also for the reason that the Commissioner is not examined. At the same time, the Court expressed that whenever the report of the Commissioner plays a vital role, contention that reversal of judgment of trial Court made on the strength of un-exhibited report of commissioner cannot be sustained. The High Court cautioned the trial Courts that when substantial objections are taken to the report of Commissioner, it would be advisable and desirable to examine the Commissioner for the purpose of having a clear picture. But on that ground also, it cannot be said that the report cannot be looked into by the Court unless the same is exhibited or Commissioner is examined as a witness too.
What should ideally be done?
According to sub-rule (2) of Rule 10 of Order 26, the report of the Commissioner and the evidence taken by him shall be evidence in the suit and shall form part of the record, as held in Smt. Vadda Rajeswaramma vs Dr. V.L. Narasimha Charyulu and Others[ii]. Therefore, there is no controversy with regard to admissibility of the report as evidence during the trial and making the report of the Commissioner part of record. However, it is said, before the report is made part of the record and taken as piece of evidence, it is open for the Court to examine the Commissioner on matter referred to him in his report or as to the manner in which he made the investigation. It is open for the parties also to examine the Commissioner or on the manner in which he had conducted the investigation. The court observed that this is the only interpretation which can be placed upon sub-rule (2) of Rule 10.
It is a different matter if neither the Court nor any of the parties take any objection to the report. In such a situation the report becomes final and becomes part of the record and can also be taken as piece of evidence. But once a party raises objection and specifically wants the Commissioner to be examined, the Court has no option but to examine the Commissioner. Unless that is done, the Commissioner’s report can neither form part of the record nor can it become a piece of evidence which could be relied upon at the stage of disposal of suit.
Probative Value-Corroborative Piece of Evidence
The decision of a material issue cannot be left to the Commissioner, as such issues are decided by the Court. The report of the Commissioner on such an issue is not binding on the Court, as the Court is free to arrive at its own conclusion.[iii] It is open to the parties to disprove the accuracy of the report by leading independent evidence or by cross-examining the Commissioner in regard to his report instead of calling for fresh report, in the light of objection raised.[iv]
In the case of Praga Tools Corporation Limited vs Mehaboobunissa Begum and Others[v], wherein, it is held that the report of the Commissioner is in aid of other evidence to arrive at findings relating to the controversy between the parties.
It has to be noted that the commissioner’s report is just like any other evidence in the suit and is no way binding on the Court. Acceptance or rejection of the report is to be considered by the Court at the stage of trial of the suit. A report of the Commissioner should not be made the sole basis and foundation of the final order in disregard of other evidence on record. Court can partly accept the report and partly reject it.[vi]
Now it is very much clear that under Rule 10 (2) of Order 26 CPC, the report of the Commissioner and the evidence taken by him shall be the evidence in the suit and shall form part of the record. But, nonetheless the report remains only as a piece of evidence. Therefore, it is for the Court to ascertain and find out as to how much reliance can be placed on such evidence keeping in view the other evidence in the case. It has to be kept in mind that the status of the person making report is not always a good ground for attributing credibility. The assessment of evidence has to be made by taking into account the totality of the circumstances and material evidence on record.[vii]
Special Procedure when the document has to be sent to Forensic Examination in Civil Cases
The decision of the Court in S. Chinnathai vs K.C. Chinnadurai[viii] provides much-needed guidelines in relation to the forensic examination of documents in civil cases:
- The Civil Court has jurisdiction to send the document to the Forensic Expert for comparing the signatures between the disputed documents with the admitted documents by appointing a Commissioner and then to call for the report. The admitted signatures should be on contemporaneous documents and not subsequent to the disputed document.
In the decision of Damara Venkata Murali Krishna Rao vs Gurujupalli Satvathamma, the Honourable Supreme Court allowed the prayer for sending the documents to Government Expert for comparison of signatures appearing in the receipts with the admitted signatures, by setting aside the order dismissing interlocutory application.
- In cases of handwriting comparison, the civil Court has to exercise its power under Order 26 Rule 10A of the Code of Civil Procedure instead of invoking Section 73 of the Indian Evidence Act. Court should refrain from becoming an expert and a party to the proceeding. Hon’ble Supreme Court has repeatedly held that despite the fact that the Court has got the power to record a finding on comparison, even in the absence of an expert’s opinion, the Court should hesitate to venture a decision based on its own comparison of the disputed signature with that of the admitted signature.
- The court will send the original document by appointing an Advocate commissioner to FSL.
- When the court sends the original document, then a certified copy of the same will have to be kept on record under the custody of the Court.
- The civil Court cannot direct the disputed signature/document to be compared with the signature on the Vakaltnama or Written Statement of a party.
- When the Civil Court comes to the conclusion that the power under Order 26 Rule 10A of the Code of Civil Procedure should be invoked, then the Civil Court shall invoke the same even without an application from the parties concerned in the interest of justice in order to solve the dispute between the parties.
- When a document is sent to an expert it should be sent only to the Government Department Expert and not to a Private Expert. There cannot be any doubt that the Forensic Science Laboratories established by the Government are specialized institutions regarding the matters involving scientific investigations and carry more credibility.
In T.A. Narasimhan vs Narayana Chettiar[ix], wherein the practice of sending the original documents to the Handwriting Expert was ordered to be deprecated since in the said case the document was ordered to go out of the Court’s custody to a private expert. The reason is very simple that parting with original documents during the course of trial is very dangerous. While in Nagarathinammal vs K.V. Rengasary Chettiar[x], it was held that the document to be sent to a Government Expert viz., State Forensic Science Department for opinion will not cause any harm.
- While sending a document to an expert, the original of the same has to be sent since it is not possible to compare the xerox copies with the other admitted documents.
- The Civil Court shall not dismiss an application seeking for the examination of the document by an expert on the ground of wrong quoting of provision of law and in such a case, the Court shall exercise power under Order 26 Rule 10A of the Code of Civil Procedure.
- The Civil Court has to use Order 26 Rule 10A of the Code of Civil Procedure even when a prayer is sought for a direction to summon the expert to the Court for the purpose of examining the document.
- An application filed under Order 26 Rule 10A of the Code of Civil Procedure will have to be filed at the earliest opportunity in the normal circumstances. However, an application under Order 26 Rule 10A of the Code of Civil Procedure cannot be dismissed merely on the question of delay alone, unless the same is wilful and deliberate.
[i] 2005 (4) ALD 164
[ii] AIR 1988 AP 202
[iii] AIR 1970 Mys 314, Rangayyakanantha Vs. Govinda Chatra and others
[iv] (1989) 2 Kar LJ 499
[v] (2001) 6 SCC 238
[vi] (2001) 2 SCC 762 – Lekh Raj Vs. Muni Lal
[vii] ILR 1995 Kar 1127, Alex D’Souza vs Dinoysius Mohan Pinto and Others; ILR 1995 Kar 3286, Vokkaligara Sanappa vs Vokkaligara Annaiah and Another.
[viii] (2010) 3 MLJ 65
[ix] (1968) 2 MLJ 48
[x] (1975) Vol.88 L.W.71
ABOUT THE AUTHOR
Harshit is a Civil Judge-cum-JMFC at Rajasthan Judicial Services, and a doctoral candidate (Ph.D.) at NLU Jodhpur. He can be reached at firstname.lastname@example.org.
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