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2006 DIGILAW 1356 (RAJ)

Nadeem v. State of Rajasthan

2006-04-26

GOPAL KRISHAN VYAS

body2006
Judgment G.K. Vyas, J.-By the present petition, filed under Section 482, CrPC, the petitioner, accused in FIR No. 82/2005, P.S. Chopasani Housing Board, Jodhpur for offences under Sections 363, 368 and 376, IPC., seeks to challenge the validity of order dated 01.04.2006 passed by trial Judge, Additional Sessions Judge (Fast Track) No. 1, Jodhpur whereby the learned trial Judge took on record transfer certificate issued by the Anjuman Muslim Girls Secondary School, Sikar on the application filed by the prosecution. 2. Learned Counsel for the petitioner contends that there is no provision in the Code of Criminal Procedure for taking on record any document after filing challan under Section 173(2), CrPC and only the documents produced alongwith the charge-sheet could be taken on record as part of the challan papers. He invites attention of the Court towards Section 173(8) of the Code of Criminal Procedure which reads as under: - “Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under Sub-section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of Sub-sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under Sub-section (2).” 3. It is contended by learned Counsel for the petitioner that it is true that the prosecution is not precluded from further investigation in respect of an offence after the report under Sub-section (2) has been forwarded to the Magistrate; but, herein, the prosecution has submitted particular education document with regard to the age of the prosecutrix which was not part of the challan and, therefore, such document has wrongly been taken on record as prosecution evidence and the said document cannot be exhibited at the trial. 4. On the other hand learned Counsel for the complainant Mr. J.S. Choudhary and learned Public Prosecutor Mr. Ashok Upadhyay supported the order impugned. It is submitted that the impugned order is perfectly legal order and the document taken on record by the impugned order is directly relevant to the fact alleged in the complaint. 4. On the other hand learned Counsel for the complainant Mr. J.S. Choudhary and learned Public Prosecutor Mr. Ashok Upadhyay supported the order impugned. It is submitted that the impugned order is perfectly legal order and the document taken on record by the impugned order is directly relevant to the fact alleged in the complaint. Learned Counsel for the complainant argues that the prosecutrix was living with her parents at Sikar and she went to school there and at present she is residing at Jodhpur with her maternal uncle, therefore, the document was not available earlier. It is contended that the proof regarding age of the prosecutrix has direct relation to the prosecution case and accordingly the prosecution has a right at the trial to take on record the documentary evidence in regard thereto. It is submitted that at the time of filing it was not possible for the complainant to produce the said document before the investigating officer and, later on, when the father of prosecutrix obtained the said certificate from the school and submitted before the police, it was incumbent upon the prosecution to produce the said document before the Court as documentary evidence with regard to ascertaining the age of the prosecutrix. Learned Counsel for the complainant draws attention of the Court towards Section 91(1) of the Code of Criminal Procedure, which reads as under:- “91. Summons to produce document or other thing -(1) whenever any Court or any officer in charge of a police station considers that the production of any document or other thing is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding under this Code by or before such Court or officer, such Court may issue a summons, or such officer a written order, to the person in whose possession or power such document or thing is believed to be, requiring him to attend and produce it, or to produce it, at the time and place stated in the summons or order. With reference to the aforequoted provision of Section 91 of the Code of Criminal Procedure, learned Counsel for the complainant argues that the legislature has invested the Court with the power to summon a document in evidence to prove the fact even during trial and, therefore, if any evidence is in existence it may be taken into account for the final adjudication if , in the wisdom of the Court, such evidence is “necessary or desirable” for the purpose. He contends that in the case on hand no educational document of the prosecutrix was taken on record initially at the time of investigation, however, the prosecutrix had been to school at Sikar and, therefore, the complainant obtained the transfer certificate from the school and produced the same before the police station. When a document can be summoned by the trial Court during trial then if any document is brought to the notice of the trial Court by the prosecution and the Court thinks it proper to take the same on record then there is no illegality in the order passed by the trial Court for taking the said document on record and the Courts is well within its power under Section 91 of the Code of Criminal Procedure to proceed accordingly. 5. I have carefully considered the rival submissions. 6. There cannot be any dispute that the Court has power under Section 91, CrPC to summon a document which is, in its opinion, necessary or desirable for the purposes of any investigation, inquiry trial or other proceedings under the Code and it is obvious from the language of the aforequoted Section 91(1) that the Court may invoke the power even after the police filed its report under Section 173(2), CrPC. It cannot be disputed that the document filed by the prosecution has direct relation to a fact in dispute before the Court and the prosecution has a right to bring on record the evidence which is in existence bearing directly upon the question in dispute before the Court. 7. Learned Counsel for the petitioner contends that the said document is not a genuine document and was not produced earlier at any stage. 7. Learned Counsel for the petitioner contends that the said document is not a genuine document and was not produced earlier at any stage. He further contends that neither the name of the prosecutrix nor her age disclosed by her in her statements recorded under Sections 161 and 164, CrPC, is mentioned in the said document; but the name of one Shabnam Bano is mentioned whereas in the complaint as well as in her statements the name of the prosecutrix is given Sabba and she disclosed her age as 16 years whereas by the said document the prosecutrix would be only 13 years of age at the time of the incident. 8. I do not find any substance in the contention of the learned Counsel for the petitioner. The petitioner can avail himself of the opportunity of cross-examine the prosecution witnesses for the purpose of genuineness and authenticity of the said document and the questions sought to be raised by him in this petition can be decided finally only after completion of the trial on the basis of the evidence on record. These questions are not germane to the decision of the present petition. I do not any error in the impugned order. The petition does not make out any case of abuse of the process of Court to warrant interference in exercise of power under Section 482, CrPC. 9. The petition is consequently dismissed.