# Parmanand v. State Of U.P. & Anr

- **Citation:** (2016) 3 ILRA 374
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-01-20
- **Bench:** Suneet Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/parmanand-v-state-of-u-p-anr-43536
- **Pages:** 4

## Headnote

Article 227 petition - s. 125 cr.p.c. Maintenance - application for handwriting expert on
signatures/thumb impression rejected - identity dispute - onus on petitioner-- High court dismissed
petition under article 227 assailing rejection of application for expert opinion on thumb impression on
prior compromise in s. 125 cr.p.c. --Proceedings, holding that identification of wife cannot be
conclusively determined by thumb impression alone after 32 years-- presumption of marriage exists--
proveable by oral evidence from family/friends.
3 All. Parmanand Vs State Of U.P. & Anr.
375
EXPERT OPINION - Weak Evidentiary Value - Not Conclusive For Identity-- Expert handwriting
opinion is merely an opinion of weak nature-- prone to bias favoring paying party, admissible only as
corroborative evidence alongside other proof.

S. 125 Cr.P.C. - SUBSEQUENT APPLICATION MAINTAINABLE - PRIOR DISMISSAL FOR NONPROSECUTION --Fresh S. 125 Cr.P.C. application by wife after 32 years maintainable despite prior
dismissal for non-prosecution, under different circumstances; mere certified compromise copy without
prior order insufficient; identity question of fact to be tried during proceedings, not warranting expert
at interlocutory stage.

Petition Dismissed.

List of Cases cited:

## Text

374 INDIAN LAW REPORTS ALLAHABAD SERIES

15. Thus, it stands settled that subsequent withdrawal of marker test by the Government
by making amendment in Motor Spirit & High Speed Diesel (Regulation of Supply,
Distribution and Prevention of Malpractices) Order 2005 does not mean that it was not
effective and failure of said test does not conclusively establishes adulteration.

16. Learned District Judge while considering the application under Section 34 of the
Arbitration and Conciliation Act, 1996 placing reliance solely upon the judgment of learned
single Judge in the case of M/s Anil Service Station (supra) allowed the same and set aside
the award without considering the law laid down by the Division Bench in the case of M/s
Kishore Auto Sales (supra). The impugned judgment passed by the District Judge is directly
in the teeth of the law laid down by the Division Bench judgment and based upon a
judgment which impliedly stood over-ruled. hence is not liable to be sustained and is hereby
set aside.

17. As a result, First Appeal From Order stands allowed and the matter is remanded
back to the District Judge to consider the application under Section 34 of the Arbitration and
Conciliation Act, 1996 afresh in accordance with law expeditiously, preferably, within a
period of two months from the date of production of a certified copy of this order before
him.
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ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.1.2016

BEFORE

THE HON'BLE SUNEET KUMAR, J.

Matters Under Article 227 No. - 7064 of 2015

Parmanand ...Petitioner
Versus
State Of U.P. & Anr ...Respondents

Counsel for the Petitioner:
Swati Agrawal

Counsel for the Respondents:
C.S.C

Article 227 petition - s. 125 cr.p.c. Maintenance - application for handwriting expert on
signatures/thumb impression rejected - identity dispute - onus on petitioner-- High court dismissed
petition under article 227 assailing rejection of application for expert opinion on thumb impression on
prior compromise in s. 125 cr.p.c. --Proceedings, holding that identification of wife cannot be
conclusively determined by thumb impression alone after 32 years-- presumption of marriage exists--
proveable by oral evidence from family/friends.
3 All. Parmanand Vs State Of U.P. & Anr.
375
EXPERT OPINION - Weak Evidentiary Value - Not Conclusive For Identity-- Expert handwriting
opinion is merely an opinion of weak nature-- prone to bias favoring paying party, admissible only as
corroborative evidence alongside other proof.

S. 125 Cr.P.C. - SUBSEQUENT APPLICATION MAINTAINABLE - PRIOR DISMISSAL FOR NONPROSECUTION --Fresh S. 125 Cr.P.C. application by wife after 32 years maintainable despite prior
dismissal for non-prosecution, under different circumstances; mere certified compromise copy without
prior order insufficient; identity question of fact to be tried during proceedings, not warranting expert
at interlocutory stage.

Petition Dismissed.

List of Cases cited:
1. Gulzar Ali Vs. State of Himachal Pradesh, 1998 (2) SCC 192
2. Tika Ram vs. Daulat Ram, ADJ 2013 8 617

(Delivered by Hon'ble Suneet Kumar, J.)

1. The applicant has approached this Court assailing order dated 3 November 2015
passed by the Revisional Court/Additional Sessions Judge, Court No. 1, Ghazipur in
Criminal Revision No. 374 of 2008 arising from an order dated 26 November 2008 passed
by the Judicial Magistrate/Civil Judge (Junior Division) rejecting the application to take
expert opinion on the signatures appended by the wife of the applicant on the compromise
submitted in an earlier proceedings under Section 125 Cr.P.C.

2. The record would reveal that the second respondent Ramki Devi filed an application
under Section 125 Cr.P.C. for maintenance. The applicant appeared and contested by stating
that earlier proceedings was initiated under Section 125 Cr.P.C. being Misc. Case No. 12 of
1985 which according to the applicant was compromised between the parties, as such, the
case was dismissed for non-prosecution. After a lapse of 32 years, the present application
has been filed, wherein, an objection was raised that the wife of the applicant, that is, Ramki
Devi has already died, therefore, the present applicant/respondent no. 2 who claims to be
Ramki Devi is not his wife, therefore, an application was moved for taking an expert
opinion of a hand writing expert on the signature/thumb impression appended on the
compromise alleged to have been filed in the earlier proceedings and comparing it with the
thumb impression of the present applicant/respondent no. 2.

3. The Court below rejected the application for the reason that it is not being disputed
by the applicant that Ramki Devi is his wife though would state that the present lady
respondent no. 2 is not his wife, secondly, the subsequent application under 125 Cr.P.C. is
maintainable as is being filed under different circumstances, the earlier application was
dismissed for non-prosecution and not on merit.

4. The submission of the learned counsel for the applicant is that the identity of the
respondent no. 2 must be determined before the Court proceeds to decide the application,
therefore, an application to take opinion of hand writing expert was filed. The family
register would show that Ramki died.
376 INDIAN LAW REPORTS ALLAHABAD SERIES

5. The submission in my opinion is misconceived. It is not being disputed before this
Court that Ramki Devi is the wife of the applicant, further, the earlier application under
Section 125 Cr.P.C. was filed by Ramki Devi, which was dismissed for non-prosecution. It
is sought to be urged by the applicant that in the earlier proceedings a compromise deed was
filed which bears the thumb impression of Ramki Devi, who subsequently died. The present
applicant/respondent no. 2 is an impostor. The Court below noted that the applicant filed the
certified copy of the compromise but has not field the order of the earlier proceedings.
Whether the respondent no. 2 is the wife of the applicant or not is a question of fact which
would be determined during the course of the proceedings. The onus is upon the applicant to
prove that respondent no. 2 is not his wife. The comparison of thumb impression on a
compromise deed would not determine the issue conclusively as to whether the respondent
no. 2 is the wife of the applicant. There is a presumption of marriage between the parties, the
marriage being a social institution can be proved by leading oral evidence of the members of
the family and friends as to whether the respondent no. 2 is the lady to which the applicant
got married, mere thumb impression on documents would not be sufficient to determine the
identity of the respondent no. 2. Since the applicant is questioning her identity, the onus is
upon the applicant to prima facie, establish that the respondent no. 2 is not the wife of the
applicant.

6. Much emphasis has been placed on having an expert opinion. Expert opinion is only
an opinion and has been considered to be of a very weak nature.

7. In Gulzar Ali Vs. Sate of Himachal Pradesh1998 (2) SCC 192 the Supreme Court
observed that the observation of the High Court that there is a natural tendency on the part
of an expert witness to support the view of the party who called him, could not be
downgraded. Many so-called experts have been shown to be remunerated witnesses making
themselves available on hire to pledge their oath in favour of the party paying them.

8. This Court in Tika Ram vs. Daulat Ram (ADJ 2013 8 617) regarding the evidentiary
value of expert evidence held as follows:-

"9. Evidence of an expert is only an opinion. Expert evidence is only a piece of
evidence and external evidence. It has to be considered along with other pieces of
evidence. Which would be the main evidence and which is the corroborative one
depends unmjon the facts of each case. An expert's opinion is admissible to furnish the
Court a scientific opinion which is likely to be outside the experience and knowledge of
a Judge. This kind of testimony, however, has been considered to be of very weak
nature and expert is usually required to speak, not to facts, but to opinions. It is quite
often surprising to see with what facility, and to what extent, their views would be
made to correspond with the wishes and interests of the parties who call them. They do
not, indeed, willfully misrepresent what they think, but their judgment becomes so
warped by regarding the subject in one point of view, that, when conscientiously
deposed, they are incapable of expressing a candid opinion."
3 All. Lokesh Kumar Dwivedi Vs State Of U.P. & Ors.
377
9. In my opinion, the Courts were justified in rejecting the application as the identity of
a lady cannot be determined by her thumb impression, the onus is upon the applicant to lead
cogent evidence to establish that the respondent no. 2 is not his wife.

10. In these circumstances, this Court under Article 227 of the Constitution declines to
interfere with the matter at this stage.

11. The petition being devoid of merit is, accordingly, dismissed.

12. No cost.
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REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 03.03.2016

BEFORE

THE HON'BLE MRS. RANJANA PANDYA, J.

Criminal Revision No. - 494 of 2016

Lokesh Kumar Dwivedi ...Revisionist
Versus
State Of U.P. & Ors ...Respondents

Counsel for the Revisionist:
Rahul Chaudhary

Counsel for the Respondents:
G.A.

CRIMINAL REVISION - S. 156(3) Cr.P.C. APPLICATION - REJECTION FOR WANT OF SANCTION -
PRE-COGNIZANCE STAGE - MANDATORY REQUIREMENT UNDER S. 19 PC ACT UPHELD-- SANCTION
UNDER PC ACT - PRE-CONDITION FOR INVESTIGATION - PROTECTS PUBLIC SERVANTS [Paras 1, 35, 9-10].

TAKING COGNIZANCE - DISTINGUISHED FROM S. 156(3) ORDER - NO APPLICATION OF MIND
UNDER S. 190-- Ordering investigation under Section 156(3) Cr.P.C. does not constitute taking
cognizance-- DEEMED SANCTION - INAPPLICABLE PRE-COGNIZANCE [Paras 5, 7-8, 10].

Revision Dismissed.

List of Cases cited:
1. Subramanian Swamy vs Manmohan Singh and another, (2012) 3 Supreme Court Cases 64
2. R.R. Chari vs State of U.P., AIR 1951 SC 207
3. Supt. and Remembrancer of Legal Affairs vs Abani Kumar Banerjee, AIR 1950 Calcutta 437
4. Anil Kumar & Ors. vs M.K. Aiyappa & Anr., (2014) 1 Supreme Court Cases (Cri) 35
5. General Officer, Commanding vs CBI, Criminal Appeal No. 257 of 2011