SELVARAJ M V Vs. SARAKUNJU WILSON KOCHUTHUNDIL

JUDGEMENT

(1.) The question raised for a decision in this revision is whether the civil court before which a document was produced and admitted in evidence is bound to return that document to the party who produced it notwithstanding that in relation to the said document an offence is said to be committed and the document is necessary in connection with investigation of the criminal case. Petitioner before me is the plaintiff in O.S.No.207 of 2007 of the court of learned Munsiff, Chengannur. That was a suit for declaration of title over certain shares claimed by the petitioner. The suit ended in an exparte decree dated 29.11.2008 in favour of the petitioner. It is not disputed that the documents referred to herein were marked in the said suit on the side of petitioner. There was no appeal preferred against the exparte decree by any of the respondents. In the meantime, the Detective Inspector, Crime Branch, CID, Alappuzha preferred Application No.612 of 2009 before the learned Munsiff accompanied by a complaint presented to the Director General of Police, Thiruvananthapuram and a copy of First Information Report requesting that as the documents produced by petitioner in the suit are involved in a case of forgery and for examination of the disputed signature, etc. in the said documents he, as Investigating Officer requires the said documents. The Investigating Officer suspected that petitioner might seek closure of the case and return of the documents. Learned Munsiff on getting that application passed an order that the documents shall not be returned to the petitioner until further orders. On 19.11.2009 petitioner preferred an application to the learned Munsiff for return of the documents. On 25.01.2010 learned Munsiff passed the impugned order refusing to return the documents to the petitioner. That order is under challenge in this revision petition. Learned counsel for petitioner contended that there is no provision either in the Code of Criminal Procedure (for short, "the Cr.P.C") or the Code of Civil Procedure (for short, "the Code") which enabled the Investigating Officer to get custody of documents produced before the civil court and marked in evidence. It is also contended by learned counsel that none of the provisions of Order 13 of the Code enabled learned Munsiff to refuse to return the documents on the ground that the same are required for investigation of a criminal case. According to the learned counsel a reading of Rules 8 and 9 of Order 13 of the Code along with Rule 134 of the Civil Rules of Practice (for short, The Rules") unerringly show that once the document is admitted in evidence and its return is asked for by the party who produced it after the period of appeal is over the court has no alternative but to return the document. Learned counsel argued that the expression 'may' occurring in Rule 134 of the Rules has to be read as 'shall'. Reliance is placed on the decisions in Punjalai v. Bhagwatprasad, 1963 AIR(SC) 120 and Official Liquidator v. Dharti Dhan (P) Ltd., 1977 AIR(SC) 740. in support of his contention that after the document has been admitted in evidence and the case has been disposed off the court has no power to impound the document since the court has become functus officio, reliance is placed on the decisions in Javer Chand v. Pukhraj Surana, 1961 AIR(SC) 1655 and Varghese v. State of Kerala, 1989 1 KerLT 24. Learned Government Pleader in response contended that there is no provision in the Code which prevented the learned Munsiff from handing over the document, once it is shown that it is the subject matter of a criminal investigation to the officer investigating the case if the learned Munsiff is satisfied that in the ends of justice such a course is required to be adopted. Learned Government Pleader has placed reliance on the Sections 91 and 102 of the Cr.P.C.

(2.) As the materials placed before me indicate, it is shown that in respect of the documents which petitioner wanted to get back from the court a criminal case has been registered and it is being investigated by the Detective Inspector, Crime Branch, CID, Alappuzha. The allegation is forgery of the said documents, in connection with investigation of that case original documents are necessary since the disputed signatures, etc. in the said documents are to be examined by the expert. For progress of the investigation of the case those documents are necessary and required by the Investigating Officer. Question is whether it is within the power of learned Munsiff to refuse to return the documents to the petitioner who produced the same and allow the Investigating Officer to get custody of documents in the circumstances stated above. 1 shall refer to the provisions of law and decisions the learned counsel for petitioner and learned Government Pleader have referred to.

(3.) Order 13 Rule 9 of the Code deals with return of admitted documents and states that any person, whether a party to the suit or not desirous of receiving back any document produced by him in the suit and placed on the record shall unless the document is "impounded" under Rule 8 be entitled to receive back the same on fulfillment of the conditions mentioned therein. Rule 8 of Order 13 of the Code says that notwithstanding anything contained in Rule 5 or 7 of Order 13 or Rule 17 of Order 7 (which provisions do not apply to the facts of this case) the court may if it sees sufficient cause direct any document or book produced before it in any suit to be "impounded" and kept in the custody of an officer of the court, for such period and subject to such conditions as the Court thinks fit. Rule 134 of the Rules says that when a case has been finally decided and in an appealable case, after the appeal period is over, or the appeal is disposed of, documents which have been admitted in evidence except those which have become void or useless by force of the decree may be returned to the persons producing the same on their application. St leaves me in no doubt that the said rule has to be read along with Rules 8 and S of Order 13 of the Code. But the question is whether on the face of Rule 3 of Order 13 of the Code, the civil court is powerless to retain the document for any reason whatsoever notwithstanding that an application has been filed by the party concerned for return of the document. As I stated, this is a case where the documents which were admitted in evidence are prima facie shown to be the subject matter of a criminal investigation. I stated that for the purpose of examination of the disputed handwriting/signature, etc. expert examination of the original document is necessary. In such a situation, if the documents which themselves are the subject matter of the criminal investigation are returned to the party who produced the same, possibility of the party destroying the documents, defeating the investigation and thereby the administration of criminal justice cannot be ruled out. Should the civil court be powerless, helpless and a mute spectator to a party getting back the documents, destroying the same and defeating the criminal investigation . In my view it cannot, and should not be so. Rule 8 has been provided in Order 13 of the Code providing that if the court sees sufficient cause it is within the power of the court to direct any document or book produced before it in any suit to be impounded and kept in the custody of an officer of the court. What is meant by the word "impound" . In Wharton's Law Lexicon the word is given the meaning 'to place in the custody of the Saw'". According to Oxford Dictionary, "impound" means 'to take legal or formal possession of. It means to place or keep a document in the custody of a court which is done if it is a forged one. Chamber's Dictionary gives the word the meaning to confine as in a pound, to restrain within limits, to take legal possession, etc.". Section 30 of the Code empowers the court, subject to such conditions and limitations as may be prescribed to pass any order, at any time either of its own motion or on the application of any party to make such orders as may be necessary or reasonable in all matters (among other things) relating to the impounding and return of documents or other material objects producible as evidence. Rule 8 of Order 13 of the Code empowers the court where the document has been admitted in evidence to place such document in the custody of law if the court has sufficient cause to do so. The decisions relied on by learned counsel for petitioner Javer Chand v. Pukhraj Surana and Varghese v. State of Kerala did not concern a factual situation as in the case on hand and instead, dealt with power of court to impound a document under the provisions of the Stamp Act after the document was admitted in evidence. It was held that once the case is over, the decree is signed and sealed or when a document is ordered to be returned, such document can no longer be considered to be part of the judicial record and hence the court is not competent to impound it That is not the purport of impounding referred to in Rule 8 of Order 13 of the Code. Impounding referred to in Rule 8 of Order 13 of the Code is only for the purpose of getting the document in the custody of law for reasons the court concerned thinks.