Research › Browse › Judgment

Calcutta High Court · body

1994 DIGILAW 105 (CAL)

Pradip Chandra v. State

1994-03-29

Nikhil Nath Bhattacharjee

body1994
ORDER This revisional application under s. 397/401 of the Code of Criminal Procedure is directed against an order dated 15.7.91 passed by the learned Sessions Judge, Birbhum, in Sessions case No. 85 of 1989 arising under s. 498A, 306/304 of the Indian Penal Code. By the said order, the learned Sessions Judge rejected the application of the accused persons filed on 6th June, 1990 before him praying leave of the Court to file some documents, namely letters exchanged between the family of the accused petitioners and the family of the parents of the deceased as per Annexure to the petition. In the said application the accused/petitioners prayed that the learned Judge should ask the prosecution to admit or deny genuineness of those letters as per provision under s. 294 Cr.P.C. It was urged before him on behalf of the accused/petitioners that s. 294 Cr.P.C. was applicable at any stage of an inquiry, trial or other proceeding and if the genuineness of the letters was not disputed, to consider the said letters along with the materials and documents as may be produced by the prosecution at the time of consideration of framing of charge. 2. The learned Sessions Judge by his impugned order considered the submissions of both sides and came to the conclusion that s. 294 of the Cr.P.C. is not attracted at the time of considering the question of framing of charge and accordingly rejected the petition. 3. Being aggrieved by the said decision, the accused/petitioners have come up before this Court challenging the order of the learned Sessions Judge. 4. For facility of understanding s. 294 of the Cr.P.C. is quoted below : "294. No formal proof of certain documents–.(1) Where any document is filed before any Court by the prosecution or the accused, the particulars of every such document shall be included in a list and the prosecution or the accused, as the case may be, or the pleader for the prosecution or the accused, if any, shall be called upon to admit or deny the genuineness of each such document. (2) The list of documents shall be in such form as may be prescribed by the State Government. (2) The list of documents shall be in such form as may be prescribed by the State Government. (3) Where the genuineness of any document is not disputed, such document may be read in evidence in any inquiry, trial or other proceeding under this Code without proof of the signature of the person to whom it purports to be signed : 5. Provided that the Court may in its discretion, require such signature to be proved." 6. Mr. Sekhar Bose, learned Advocate for the petitioners argued that the legislature in its wisdom has incorporated s. 294 Cr.P.C. to avoid unnecessary prolongation of a trial or litigation by providing that at any stage of an inquiry, trial or other proceedings, if either side files some documents, it is the duty of the Court to call upon the other side to admit or deny genuineness of such documents and if the genuineness is not disputed, the documents are to be accepted and read as evidence in due course. Mr. Bose urged that such introduction of documents may be allowed at the pre-charge stage in a Sessions trial as in his view the stage for consideration of charge if not taken as part of a trial, may very well be taken as being covered under the expressions 'inquiry' or 'other proceedings' as provided in the said Section. Mr. Bose submitted that at the time of considering the question of framing of charge, the Sessions Judge is to consider the record of the case and documents submitted therewith and if at this stage the accused wants to produce some documents lying in his custody, which may have some bearing on the question of framing of charge, there is no reason why he should not be allowed to avail of this opportunity. In his view, unless s. 294 Cr.P.C. is allowed to be invoked, how else the documents intended to be considered by the Sessions Judge at the time of consideration of charge could be introduced with due evidence credibility about them. 7. I have given an anxious consideration to Mr. Bose's submissions but with respect to him, I must state that I am unable to agree with him. The reason is that s. 294 Cr.P.C. comes under Chapter XXIII under the heading, EVIDENCE IN INQUIRIES AND TRIALS and under Sub-heading, "Mode of taking and recording evidence". 7. I have given an anxious consideration to Mr. Bose's submissions but with respect to him, I must state that I am unable to agree with him. The reason is that s. 294 Cr.P.C. comes under Chapter XXIII under the heading, EVIDENCE IN INQUIRIES AND TRIALS and under Sub-heading, "Mode of taking and recording evidence". In a sessions trial evidence is recorded only after charge is framed and accused pleads not guilty to the same. At the pre-charge stage, the Sessions Judge is only to consider the record of the case and documents and materials submitted therewith and that being so, clearly s. 294 is not attracted at the pre-charge stage. The expressions 'inquiry' or 'other proceeding' may relate to, illustratively, inquiry' under s. 202 read with s. 204 Cr.P.C. and proceeding under s. 125 Cr.P.C, where evidence is recorded by the Magistrate holding the inquiry or dealing with the proceeding. For the purpose of considering the question of framing of charge, there cannot be any question of recording evidence and consideration for framing of charge cannot be said to be an inquiry or a proceeding. In the old Code of 1898, there was the elaborate procedure for holding commital inquiry but with the promulgation of the New Code, the same has been given a go-by. Now if the Sessions Judge is to hold an inquiry by not only considering the records and the documents or materials submitted therewith but also by considering documentary evidences as may be submitted by the accused, genuineness whereof being obtained by admission from the prosecution side, it is to reintroduce the committal inquiry not permissible under the present Code. 8. In this connection, Mr. Bose has relied on a decision of the Punjab and Haryana High Court reported in Vinod kumar and Others vs. State of Haryana, reported in 1987 Cr.L.J. 1935 wherein it was held that the right to take recourse to s. 294 Cr.P.C. is available equally to the prosecution and the accused even at the pre-charge stage. It is a Single Bench decision. It is a Single Bench decision. With great respect to the learned Judge, I must, however, say that I am unable to agree with this view, for if the prosecution is allowed to take recourse to this section and the Sessions Judge calls upon the accused to admit or deny genuineness of documents sought to be introduced into evidence, there will be a serious prejudice to the accused and infringment of his fundamental right as guaranteed under the Constitution. 9. The next line of argument built up by Mr. Bose is as follows : Under s. 226 Cr.P.C. when the accused appears or is brought before the Court of Sessions in persuance of an order of commitment passed under s. 209 Cr.P.C., the Public Prosecutor is to open his case by describing the charge brought against the accused and stating by what evidence he proposes to prove the guilt of the accused. Under s. 227 Cr.P.C., if upon considering the record of the case and documents submitted therewith and "after hearing the submissions of the accused" and the prosecution in this behalf, the Sessions Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing. Under s. 228(1) if after consideration and hearing as aforesaid, the Sessions Judge holds the view that there is ground for presuming that the accused has committed an offence which is exclusively triable by the Court of Sessions he shall frame in writing a charge against the accused, and if not exclusively triable by the Court of Sessions, he may frame a charge and by an order transfer the case for trial to the Chief Judicial Magistrate. Mr. Bose laid emphasis on the words "after hearing the submissions of the accused" in s. 227 and urged that such submissions unless include documents the accused wants to produce which the accused thinks may have a bearing on the question of framing of charge, hearing the submissions of the accused becomes meaningless. In Mr. Bose's view, it is for the protection of the accused to avoid unnecessary harassment that the provision for hearing submissions of the accused is included in the section, as such hearing may lead to his discharge or at least in framing a charge which is not exclusively triable by the Court of Sessions. In this connection Mr. In Mr. Bose's view, it is for the protection of the accused to avoid unnecessary harassment that the provision for hearing submissions of the accused is included in the section, as such hearing may lead to his discharge or at least in framing a charge which is not exclusively triable by the Court of Sessions. In this connection Mr. Bose has cited a Single Bench decision of this Court in Brajendra Nath Kolay and another vs. The State, reported in 1993 (1) CHN page 440. In that case chargesheet was submitted against the petitioner under s. 120B, 409 and 477 IPC. During investigation police seized 112 cheques, out of which copies of 81 cheques were supplied to the accused. The accused prayed for supplying him copies of balance 31 cheques. The learned Magistrate refused to give such direction, against which the accused came up with the revisional application. In allowing his prayer the learned Judge observed as follows : "It is therefore evident that even at the stage of consideration of framing of charge the accused is entitled to a hearing on the question as to whether charge should be framed on the basis of the materials on record and if so, under what section or sections. Therefore to make the hearing meaningful and purposeful it is only fit and proper that the accused should have an opportunity to demand production of a document even at the stage if such document has any bearing on the question of framing of charge although the prosecution may not rely on the same. It will be only fair and rather sub-servant to the cause of justice that the document which may have a bearing on the question of framing of charge in the sense of having a potentiality of explaining any circumstance, document or evidence on which the prosecution wants to rely, should be made available so that the accused can make his submissions, in a more meaningful way even at the stage of consideration of framing of charge, particularly where such document, Or which copy has not been supplied, is in the Custody or control of police but the disclosure of which is not otherwise barred by law." This decision has no doubt no direct bearing on the question under consideration in the present case. But, nevertheless on an analogy that in that case the accused was given an opportunity to call for documents not relied on by the prosecution at the stage of framing of charge, it goes automatically that if the accused has in his possession some documents which may have some reflection on the question of framing of charge, there is no reason why he should be debarred from submitting those documents for consideration of the Court. At the stage of framing of charge, the Sessions Judge is to consider the totality of the materials and documents produced before him in order to find whether there are grounds for proceeding further against the accused. It is the subjective satisfaction of the Sessions Judge. It is not that the Sessions Judge is to consider each and every document as a piece of evidence and express his opinion about the same. It will be sufficient if on the whole the Sessions Judge frames his opinion in the matter. That being so, in my view, if the accused wants to produce some documents lying in his custody with the prayer for their consideration along with the documents and materials submitted by the prosecution in connection with considering the question of framing of charge, no illegality would be committed if the Sessions Judge gives a look at those documents to find whether the documents are of such potentiality as to influence his mind at that stage. If after such consideration he comes to the conclusion that no sufficient ground exists for proceeding further against the accused, he has to give reasons therefore. And if he frames charge he need not have to express any opinion about the evidentiary value of each of such documents or as a matter of fact about any document produced before him by the prosecution as well. In my view, heaven will not fall if the Sessions Judge accepts such documents from the accused while hearing his submissions and looks into them to gather an overall impression about the prosecution's prima facie case. After such perusal these documents may be kept on record for future use, if any by the accused either during cross-examination of the prosecution witnesses or after he is called upon to enter his defence. After such perusal these documents may be kept on record for future use, if any by the accused either during cross-examination of the prosecution witnesses or after he is called upon to enter his defence. So far the stage relating to consideration of the framing of charge is concerned, ends of justice will be met if the Sessions Judge allows the accused to produce his documents for the purpose of his perusal along with the case record and documents of the prosecution side, particularly when there is no express bar in the Code of Criminal Procedure against so doing. 10. In this view of the matter, I agree with Mr. Bose that such opportunity should be given to the accused and in that view of the matter the revisional application is allowed to the limited extent as indicated above. The learned Sessions judge shall act accordingly. 11. There will be no order as to cost. Revisional application allowed to the limited extent as indicated.