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2006 DIGILAW 1080 (PAT)

Md. Mahtab Alam v. State Of Bihar

2006-11-16

SHEEMA ALI KHAN

body2006
Judgment 1. This application has been filed by Mahtab Alam, petitioner, who is the husband of Fatma Khatoon, (opposite party no. 2) challenging the order of the Sub-Divisional Judicial Magistrate, Patna, dated 16.8.2005 passed in Complaint Case No. 518(C) of 2004 which has been confirmed by the Addl. District and Sessions Judge, Patna, on 14.11.2005. The petitioner had filed a petition for expunging the evidence of Fatma Khatoon which was recorded for the purpose of framing of charge. 2. Facts of the case are that, opposite party no. 2 filed a complaint in which the allegations, in short, are that after her marriage with Mahtab Alam on 12.1.1994 she was subjected to torture. She claimed that on the occasion of marriage her father and relations gave her gift worth Rs. 40,000.00 to 50,000/-. Apart from that cash was also paid to the husband. After the marriage Fatma Khatoon went to her husbands home at Biharsharif on 13.1.1994. When she reached the matrimonial home her husband Mahtab Alam and brother-in-law Md. Shamim began to ill-treat her and abused her. Fatma Khatoon has also stated that they have got two children out of their wedlock, who are 8 years and 4 years respectively. The site party no. 2 has also alleged that her brother-in-law Md. Shamim often visited them and would ask her husband to demand different amount of money from her parents and on his persuasion the money was demanded from her family, ft is alleged that opposite party no. 2 was assaulted by her husband on several occasions and he also tried to kill her because her parents could not satisfy the demand of money made from them. 3. Opposite party no. 2 also alleged that Mahtab Alam took her thumb impression on several blank papers. She has also stated in the complaint petition that her children were always under threat and her husband used them as pawn to threaten her. Finally, she had to leave her husbands house and she is now living at Sabzibagh with her two children. On the basis of this fact the complaint was lodged and examination of the complainant took place in the court below and thereafter, the court took cognizance of the offence under sections 498A, 324, 323, 307 and 406 of the Indian Penal Code. 4. It is relevant to state here that the petitioner was remanded to jail custody on 20.7.2004. On the basis of this fact the complaint was lodged and examination of the complainant took place in the court below and thereafter, the court took cognizance of the offence under sections 498A, 324, 323, 307 and 406 of the Indian Penal Code. 4. It is relevant to state here that the petitioner was remanded to jail custody on 20.7.2004. 5. After taking cognizance the court below proceeded to examine the witnesses for the purpose of framing of charge. The object or purpose of examination of witnesses is obviously to enable the court to arrive at the truth or otherwise of the fact under investigation for a just decision in the matter before this Court. In the present case, the court examined five witnesses i.e. RW. 1, Fatma Khatoon, complainant (opposite party no. 2), RW. 2 Danish Mahtab, RW. 3 Naushad Azam, RW. 4 Md. Shahzadul Haque and RW. 5 Farooque Azam. 6. It has been submitted on behalf of the petitioner that RW. 1, who is opposite party no. 2, was examined on 20.8.2004 when the petitioner was in custody in con- opponection with this case and it was, therefore, in violation of Sec.273 of the Code of Criminal Procedure and, as such, the evidence of PW. 1 should be expunged. 7. The procedure is that at the initial stage the complaint is lodged and after that the Magistrate may issue process after taking cognizance on the allegation made in the complaint but at the time of framing of charge under sec. 244 of the Code of Criminal Procedure the Magistrate may consider the evidence produced by the prosecution in support of his case. 8. The question that arises in this case, therefore, is whether the evidence of opposite party no. 2 was taken when the petitioner was in custody is hit by Sec.273 of the Code of Criminal Procedure or not? Sec.273 reads as follows:- "273. Evidence to be taken in presence of accused.Except as otherwise expressly provided, all evidence taken in the course of the trial or other proceeding shall be taken in the presence of the accused or, when his personal attendance is dispensed with, in the presence of his pleader. Explanation.In this section "accused" includes a person in relation to whom any proceeding under Chapter VIII has been commenced under this Code." 9. Explanation.In this section "accused" includes a person in relation to whom any proceeding under Chapter VIII has been commenced under this Code." 9. Coming back to the facts of the present case on perusal of the order of Sub-Divisional Judicial Magistrate, Patna, (Annexure-6) it appears that five witnesses were examined before framing of the charge for the purpose of ascertaining whether the offences are made out under the Code of Criminal Procedure. After examination of the witnesses was concluded the petitioner filed a petition for expunging the evidence of P.W. 1. The Sub-Divisional Judicial Magistrate, Patna, after considering all aspects of the matter has held that opportunity may be given to Mahtab Alam to cross- examine the witness i.e. opposite party no. 2 whose evidence was sought to be expunged. 10. Petitioner instead of taking the opportunity to cross-examine the opposite party no. 2, challenged the order of Sub-Divisional Judicial Magistrate, Patna, by filing a revision. On perusal of the order of the Addl. District and Sessions Judge-XII, it appears that Fatma Khatoon was examined on 20.8.2004 when one of the accused person, namely, Md. Shamim @ Shamsuddin was present in court and it appears that the revisional court after pursuing the order dated 20.8.2004 passed by the Sub-Divisional Judicial Magistrate has clarified in his order that even after repeated calls the counsel for the accused-petitioner did not appear in court and, as such, examination of Fatma Khatoon was concluded by the Sub-Divisional Judicial Magistrate, Patna. 11. From the aforesaid fact it is clear that this is not a fit case for expunging the evidence of Fatma Khatoon as the counsel did not appear in court at the time of taking of evidence. The purpose behind Sec.273 of the Code of Criminal Procedure is that the accused persons should get full opportunity as valuable right of the accused is affected by denial of opportunity of rebuttal. This opportunity was provided by the Sub-Divisional Judicial Magistrate. It is also relevant to note that evidence taken at the pre-trial stage of a criminal proceeding is different to that of recording evidence during trial of the accused person. The evidence recorded at the pre-trial stage is not the last word and no prejudice will be caused to the accused who will get full opportunity to put forth his defence and cross-examine witnesses produced by the prosecution at the trial. 12. The evidence recorded at the pre-trial stage is not the last word and no prejudice will be caused to the accused who will get full opportunity to put forth his defence and cross-examine witnesses produced by the prosecution at the trial. 12. The counsel for the petitioner has referred to two decisions. One of them is State of M.P. vs. Budhram reported in 1989 Cr.L.J. 46. The facts of Budhram case are quite different to the facts of the present case. Budhram was put on trial and during the trial he refused to engage a lawyer. Ultimately after some persuasion Budhram engaged a lawyer. When the evidence was to be recorded. Budhram was not produced in court and this state of affairs continued on a number of occasions. On 31.1.1995 when Budhram was not produced in court, five witnesses were examined in absence of the accused; that too on concessions of the counsel for Budhram that he had no objection to the examination of the witnesses. The Division Bench held that the accused had a right to request the court for dispensing his personal appearance. However, no such request was made by Budhram and as such, there was a violation of the mandate of law. The case was remanded for examination of the appellant under sec. 313 of the Code of Criminal Procedure and it was ordered that the evidence should be recorded afresh. 13. Learned counsel for the petitioner has also referred to a case of Bodhi Sahani vs. The State of Bihar reported in 2006(1) PLJR 150 . The facts of this case is also very different to that of the present case. In the case of Bodhi Sahani, four eye witnesses were examined during the trial of the case who are P.W. 1, P.W. 2, P.W. 3 and P.W. 4. The court found, in fact, that P.W. 1 had not seen the occurrence, P.W. 2 had not named the appellant as accused, P.W. 4 was a highly interested witness and his evidence was disregarded by the court and P.W. 3 was examined in absence of the accused persons. Therefore, the court held that the evidence of P.W. 3 was hit by Sec.273 of the Code of Criminal Procedure and this Court acquitted the appellant disregarding the evidence of P.W. 3. The case was not remitted back for re-trial as it related to offences which were very old. Therefore, the court held that the evidence of P.W. 3 was hit by Sec.273 of the Code of Criminal Procedure and this Court acquitted the appellant disregarding the evidence of P.W. 3. The case was not remitted back for re-trial as it related to offences which were very old. 14. In both the cases referred to by the learned counsel for the petitioner, there was a violation of the provision of Sec.273 of the Code of Criminal Procedure. This section mandates that witnesses should be examined in presence of the accused or his counsel before the court can convict the accused persons. The violation of Sec.273 would vitiate the trial and, as such, the matter was remanded for re-trial in Budhrams case whereas in the case of Bodhi Sahani the court did not remand the matter as the case was very old. However, as discussed earlier, petitioners case stand on a completely different footing. There can be no doubt regarding the fact that evidence led for the purpose of framing of charge is not substantive piece of evidence, the purpose being very limited inasmuch as the court takes evidence for ascertaining whether any case can be made out before the Court frames charges whereas examination of witnesses during trial affect the valuable right of freedom and could lead to conviction and even death sentence. Therefore, there is a definite distinction between the evidence recorded at the pre-trial stage and the evidence recorded during trial. The procedure adopted during trial is to give every opportunity to the accused persons to prove his/her innocence and this is a basic principle of criminal jurisprudence. 15. Having made a distinction between the application of Sec.273 of the Code of Criminal Procedure at the trial stage and examination of witnesses as the time of framing of charge, I hold that the court below was justified in rejecting the petition for expunging the evidence of opposite party no. 2, more so, as the court had given opportunity to the petitioner to cro??-examine opposite party no. 2. 16. In the result, this application is dismissed.