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2006 DIGILAW 1619 (DEL)

P. DAS GUPTA v. STATE

2006-09-13

BADAR DURREZ AHMED

body2006
BADAR DURREZ AHMED, J. ( 1 ) THIS revision petition has been filed inasmuch as the petitioner is aggrieved by the order dated 13. 4. 2006 passed by the Special Judge, CBI, New delhi whereby the petitioner's application [under Section 294 of the Code of criminal Procedure, 1973 (hereinafter referred to as "the Code")] for admission/denial of certain documents filed along with the application was dismissed. ( 2 ) IT is pertinent to note that this application under Section 294 of the Code was filed at the stage of framing of charges and not in the course of a trial. Furthermore, before the said application under Section 294 of the code was filed, the petitioner had filed two applications dated 26. 9. 2003 and 24. 7. 2004 praying for permission to file certain documents. Those applications had been rejected by the Special Judge by a speaking order dated 20. 2. 2006. It is also an admitted position that the documents mentioned in the application under Section 294 of the Code were the same documents which were the subject matter of the order passed by the Special Judge on 20. 2. 2006. ( 3 ) IN the impugned order, this fact has been noticed and the learned Special Judge observed that the said application under Section 294 of the Code was "clearly a gross abuse of the precious time of the court". The same documents which had been rejected and had not been permitted to be taken on record by virtue of the order dated 20. 2. 2006 were again sought to be introduced into the record in this indirect fashion. Moreover, the application under section 294 of the Code had been filed just two weeks after the earlier applications had been rejected. The exact words used by the learned Special judge, while dismissing the application with costs of Rs. 10,000/-, were as under:"this application is clearly a gross abuse of the precious time of this Court; the same documents which had been rejected and had not been permitted to be taken on record vide order dated 20. 02. The exact words used by the learned Special judge, while dismissing the application with costs of Rs. 10,000/-, were as under:"this application is clearly a gross abuse of the precious time of this Court; the same documents which had been rejected and had not been permitted to be taken on record vide order dated 20. 02. 2006 are now again being prayed to be taken on record; the present application had been filed just two weeks after the earlier applications had been rejected with a twist given to the facts; there is already a speaking order of this court rejecting the permission to take those documents on record which admittedly has not been the subject matter of any appeal by moving this present application, there appears to be only one purpose with the accused and that is to delay the progress of the case and with this object in mind abuse the process of the Court. The provisions of Section 294 of the Cr. P. C. clearly contemplate only admission/denial of those documents which have been filed either by the Prosecution of by the accused; which is admittedly not so in the instant case. Application is clearly malafide. Application is dismissed with cost of rs. 10,000/- to be deposited by the accused with Delhi Legal Services Authority, patiala House Court, New Delhi. For consideration of charge, to come up on 19. 05. 2006. " ( 4 ) THE learned counsel for the petitioner submitted that the decision of the Supreme Court in the case of State of Orrisa v Debendra Nath padhi : (2005) 1 SCC 568 was distinguishable and the same would be inapplicable to the facts of the present case. He further submitted that the Supreme Court decision in Padhi's case did not at all consider the provisions of Section 294 of the Code. He submitted that the application under Section 294 of the Code was one in which the CBI was merely called upon to admit or deny the documents filed along with the said application. It was for the CBI to admit or deny those documents and it is only, thereafter, that the question of utilising those documents would arise in the present case. It was for the CBI to admit or deny those documents and it is only, thereafter, that the question of utilising those documents would arise in the present case. ( 5 ) THE learned counsel for the petitioner further submitted that a conjoint reading of Section 2 (g) of the Code which defines "inquiry" and Section 5 of the Prevention and Corruption Act, 1988 which provides for the cases under the said Act to be tried as a warrant case by Magistrates and Section 239 of the code would indicate that the provision of Section 294 could be invoked even at the stage of framing of charges. ( 6 ) MR Tiwari, who appears for the CBI, submitted that the impugned order itself indicates that the application under Section 294 of the Code moved by the petitioner was an abuse of the process of the court. He submitted that apart from this, Section 294 was not applicable at the present stage. He submitted that Section 294 falls under Chapter XXIII which pertains to "evidence in Inquiries and Trials". In this context, he submitted that the stage of framing of charges could not be equated to the stage of leading evidence in an inquiry or a trial. Therefore, according to Mr Tiwari, Section 294 could not be invoked by the petitioner at this stage and his application was rightly rejected by the learned Special Judge. He further submitted that the Supreme Court's decision in Padhi's case clearly pointed out that at the stage of framing of charges, the accused cannot seek the filing of any documents. The charges have to be framed on the basis of the material produced by the prosecution. Accordingly, he prayed that the revision petition be dismissed. ( 7 ) FOR a consideration of the arguments advanced by the counsel for the parties, it would be necessary to set out the provisions of Section 294 of the Code. The same reads as under:"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. (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: provided that the Court may, in its discretion, require such signature to be proved. " ( 8 ) A plain reading of the Section 294 indicates that the accused or the prosecution may call upon each other to admit or deny the genuineness of any document which is filed before any court by the prosecution or the accused. Therefore, before any requirement for admission/denial of documents can arise, the documents must have been filed before any court by the prosecution or the accused. At the stage of framing of charges, in view of Devinder Nath Padhi's case, the accused has no right to produce any material. Therefore, unless and until the documents are filed before the court by the prosecution, the accused would not have any right to ask for admission/denial of the same. ( 9 ) SUB-SECTION (3) of Section 294 provides that 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. Provided that, the court may, in its discretion, require such signature to be proved. This provision was interpreted by the learned counsel for the petitioner so as to include the introduction of documents even at the stage of framing of charges inasmuch as this provision uses the expression "other proceedings under this code". However, I am of the view that sub-section (3) would only come into play after the stage of sub-section (1) of section 294 is crossed. It would apply in a case where a document is filed before a court and after admission/denial is done and its genuineness is not disputed then that document may be read in evidence in any inquiry, trial or other proceeding under this Code. This is not the case here. It would apply in a case where a document is filed before a court and after admission/denial is done and its genuineness is not disputed then that document may be read in evidence in any inquiry, trial or other proceeding under this Code. This is not the case here. The documents that were filed along with the application under section 294 of the Code, all pertained to income tax proceedings and were not filed before any court either by the prosecution or the accused and were also not subjected to any admission/denial. The stage of section 294 (1) was not crossed and, therefore, the provisions of sub-section (3) of section 294 cannot be invoked by the present petitioner. ( 10 ) I am also in agreement with Mr Tiwari's submissions that section 294 falls in Chapter XXIII of the Code which deals with evidence in inquiries and trials. The stage of framing of charges is neither an inquiry nor a trial and, as held by the Supreme court in the case of Debendra Nath Padhi's case in paragraph 23 of the said report, " the law is that at the time of framing of charge or taking cognizance the accused has no right to produce any material". The Supreme Court in Padhi's case also held that Satish Mehra's case (1996) 9 SCC 766 , holding that the trial court has powers to consider even materials which the accused may produce at the stage of Section 227 of the Code, was not correctly decided. Faced with this, the learned counsel for the petitioner submitted that the provisions of section 239 of the Code and that of section 227 are different inasmuch as section 239 is much wider than section 227. He, therefore, tried to distinguish the present case in an attempt to show that Debendra Nath Padhi's case would not be applicable. Reading section 239 of the Code, I do not see how that would be of any use to the petitioner. Section 239 reads as under:"239. He, therefore, tried to distinguish the present case in an attempt to show that Debendra Nath Padhi's case would not be applicable. Reading section 239 of the Code, I do not see how that would be of any use to the petitioner. Section 239 reads as under:"239. When accused shall be discharged.- If, upon considering the police report and the documents sent with it under Section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing. " ( 11 ) THE said provision clearly indicates that at the time of considering the discharge of the accused, the court has to consider (1) the police report; (2) the documents sent with it under Section 173; (3) such examination, if any, of the accused as the court thinks necessary after giving the prosecution and the accused an opportunity of being heard. This provision nowhere permits the accused to file any document at the stage of consideration of charge/discharge. Therefore, the distinction that is sought to be drawn by the learned counsel for the petitioner is not borne out by the reading of the provisions of Section 239 of the Act. The only material that the court is required to consider are the police report and the documents sent with it under section 173. ( 12 ) IN any event, this argument is not available to the petitioner inasmuch as the Supreme court in Debendra Nath Padhi's case clearly held in paragraph 27 that :"further, the observations cannot be understood to mean that the accused has a right to produce any document at the stage of framing of charges having regard to the clear mandate by Sections 227 and 228 in Chapter 18 and Sections 239 and 240 in Chapter 19. "12. In view of the foregoing discussions, I find no infirmity whatsoever in the impugned order which is clearly in accordance with law. This revision petition is dismissed.