State of Mysore Vs. C.V. Gopala Rao - Court Judgment
|Court||Karnataka High Court|
|Judge|| Venkata Ramaiya and ;Balakrishnaiya, JJ.|
|Appellant||State of Mysore|
|Respondent||C.V. Gopala Rao|
- code of civil procedure, 1908. order 47 rule 1: [v. jagannathan, j] review of judgment and decree in regular second appeal position of an illegitimate son coparcenary properties ruling in the case of smt. sarojamma v smt. neelamma, [reported in ilr 2005 (3) kar 3293; 2005 (5) klj 66; 2005 (3) kccr 2053; 2005 air kar r 1894; air 2005 noc 422; 2006 (1) civil l.j. 145] consideration of held, one of the grounds for seeking review is that there is an error apparent on the face of the record and not an erroneous decision on facts, held, an error on a point of law is apparent on the face of the judgment with regard to the entitlement of an illegitimate child to a share in the property of his father, irrespective of the nature of the property. hence, the matter requires to be reviewed...........and tantamount to compelling the accused to give incriminatory evidence. the objection was upheld. later the prosecution requested the court to call upon the accused to give his writing in court and make it available for comparison by the expert. this was also rejected. hence this petition.2. whatever may be said in regard to the writing given to the police, there is preponderance of authority to justify the later application made to the magistrate, the cases are collected in - 'golam rahman v. the king' : air1950cal66 . the effect of these as stated in the head note is:section 73, evidence act is quite general in its terms and applies to all cases and there is no exception in favour of an accused person. if there is nothing in the criminal p. c. which precludes its application to.....
1. In the course of the trial of the case against respondent for offences of cheating, forgery etc., the prosecution sought to prove the writing of accused by evidence of an expert based on comparison of the writing in question with that obtained during investigation, from the accused. This was objected to as being repugnant to Article 20 (3) of the Constitution of India and tantamount to compelling the accused to give incriminatory evidence. The objection was upheld. Later the prosecution requested the Court to call upon the accused to give his writing in Court and make it available for comparison by the expert. This was also rejected. Hence this petition.
2. Whatever may be said in regard to the writing given to the Police, there is preponderance of authority to justify the later application made to the Magistrate, The cases are collected In - 'Golam Rahman v. The King' : AIR1950Cal66 . The effect of these as stated in the head note is:
Section 73, Evidence Act is quite general in its terms and applies to all cases and there is no exception in favour of an accused person. If there is nothing in the Criminal P. C. which precludes its application to criminal trials there is no reason why the plain language of the section should not be given its full effect. Section 342, Criminal P. C. does not make Section 73, Evidence Act inapplicable to criminal trials. The procedure followed in taking specimen thumb impressions of the accused under the direction of the Court is in strict compliance with Section 73 and Section 45, ill (c), Evidence Act.
With respect we agree that this is the proper view to be taken. The order of the lower Court is therefore set aside. It is open to the prosecution to renew the prayer and for the Court to direct the accused to give a writing for the purpose of comparison and make such use of it as it is entitled to.