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2000 DIGILAW 893 (PNJ)

Puran Singh Jassi v. State of Punjab

2000-08-09

V.M.JAIN

body2000
ORDER V.M. Jain, J. - This is a petition under Section 482 Criminal Procedure Code filed by the accused-petitioner, seeking quashment of the order dated 28.10.1999 passed by the learned Sessions Judge dismissing the revision petition and upholding the order dated 25.9.1999 passed by the Judicial Magistrate, refusing to order the summoning of record at the instance of the accused-petitioner. 2. The facts which are relevant for the decision of the present petition are that in case FIR No. 44 dated 27.6.1997 under Sections 419/420/467/468/471 Indian Penal Code, accused-petitioner had moved an application dated 18.9.1999 under Section 294 Criminal Procedure Code for summoning of some record at the pre-charge stage, at the instance of the accused. It was alleged that the said record was relevant to be considered on the point of framing of charge. The said application was contested by the State by filing a written reply dated 20.9.1999. After hearing both sides, the learned trial Magistrate, vide order dated 25.9.1999 dismissed the said application of the accused-petitioner. Aggrieved against the said order of the trial Magistrate, the accused- petitioner filed revision petition before the Sessions Court. After hearing both sides, the learned Sessions Judge, vide judgment dated 28.10.1999 dismissed the revision petition. Aggrieved against the orders passed by the Courts below, the petitioner filed the present petition under Section 482 Criminal Procedure Code in this Court, seeking quashment of both the orders passed by the Courts below. 3. I have heard the learned Counsel for the parties and have gone through the record carefully. 4. The learned Counsel appearing for the accused-petitioner submitted before me that the Court is within its powers to consider even the material which the accused may produce at the stage of consideration of charge. Reliance was placed on the law laid down by their Lordships of the Supreme Court in JT 1996(7) SC 6, Shri Satish Mehra v. Delhi Administration and another, and the law laid down by this Court in 1990(1) Punjab Law Reporter 642, K.N. Seth and others v. Union of India and another. 5. In JT 1996(7) SC 6 (supra) after considering the effect of Sections 227, 228 Criminal Procedure Code, it was held by their Lordships of the Supreme Court as under :- " 12. 5. In JT 1996(7) SC 6 (supra) after considering the effect of Sections 227, 228 Criminal Procedure Code, it was held by their Lordships of the Supreme Court as under :- " 12. An incidental question which emerges in this context is whether the Sessions Judge can look into any material other than those produced by the prosecution. Section 226 of the Code obliges the prosecution to describe the charge brought against the accused and to state by what evidence the guilt of the accused would be proved. The next provision enjoins on the Sessions Judge to decide whether there is sufficient ground to proceed against the accused. In so deciding the Judge has to consider (1) the record of the case, and (2) the documents produced therewith. He has then to hear the submissions of the accused as well as the prosecution on the limited question whether there is sufficient ground to proceed. What is the scope of hearing the submissions ? Should it be confined to hearing oral arguments alone ? 13. Similar situation arises under Section 239 of the Code (which deals with trial of warrant cases on police report). In that situation the Magistrate has to afford the prosecution and the accused an opportunity of being heard besides considering the police report and the documents sent therewith. At these two stages the Code enjoins on the Court to give audience to the accused for deciding whether it is necessary to proceed to the next stage. It is a matter of exercise of judicial mind. There is nothing in the Code which shrinks the scope of such audience to oral arguments. If the accused succeeds in producing any reliable material at that stage which might fatally affect even the very sustainability of the case, it is unjust to suggest that no such material shall be looked into by the Court at that stage. Here the "ground" may be any valid ground including insufficiency of evidence to prove the charge. 14. The object of providing such an opportunity as is envisaged in Section 227 of the Code is to enable the Court to decide whether it is necessary to proceed to conduct the trial. If the case ends there it gains a lot of times of the Court and saves much human efforts and costs. 14. The object of providing such an opportunity as is envisaged in Section 227 of the Code is to enable the Court to decide whether it is necessary to proceed to conduct the trial. If the case ends there it gains a lot of times of the Court and saves much human efforts and costs. If the materials produced by the accused even at that early stage would clinch the issue, why should the Court shut it out saying that such documents need be produced only after wasting a lot more time in the name of trial proceedings. Hence, we are of the view that Sessions Judge would be within his powers to consider even materials which the accused may produce at the stage contemplated in Section 227 of the Code." In view of the law laid down by their Lordships of Supreme Court in the above mentioned authority, it would be clear that the trial Court would be within its powers to consider even that material which the accused may produce at the stage contemplated in Section 227 Criminal Procedure Code (in respect of case triable by Court of Sessions) and under Section 239 Criminal Procedure Code (in respect of case triable by the Magistrate on police report). 6. In the present case, the learned trial Magistrate dismissed the application of the accused-petitioner seeking summoning of some record for consideration at the pre-charge stage, on the ground that the summoned record was not associated at the time when the case was investigated. In my opinion, in view of the law laid down by their Lordships of Supreme Court, in the above mentioned authority, learned Magistrate was required to summon the record at the behest of the accused and to take the same into consideration, while considering the question regarding framing of charge. It was at that stage that the learned Magistrate could have commented upon the worth of the said evidence at the stage of framing of charge. However, the summoning of the said record could not be refused merely on the ground that the same was of no evidentiary value or that the same was not associated at the time of investigation of the case. 7. However, the summoning of the said record could not be refused merely on the ground that the same was of no evidentiary value or that the same was not associated at the time of investigation of the case. 7. Before concluding, I would observe that the present application which was filed by the accused under Section 294 Criminal Procedure Code in fact would not be the application under Section 294 Criminal Procedure Code On the other hand it would be an application before the Magistrate to summon the record, so that the same could be taken into consideration at the stage of considering the question of charge. 8. for the reasons record above, the present petition is allowed and the orders dated 25.9.199 and 28.10.1999 passed by the Courts below are set aside and the learned Magistrate is directed to decide the application filed by the accused-petitioner afresh in accordance with law keeping in view the observation made by me above. 9. The parties through their counsel are directed to appear before the learned Magistrate on 4.9.2000 for further proceedings in accordance with law. Petition allowed.