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2007 DIGILAW 176 (JK)

Harshvardhan Alias Bittu v. State Of J. &K.

2007-09-07

J.P.SINGH

body2007
Harshvardhan alias Bittu has filed this petition invoking jurisdiction under Section 561-A Cr. P. C to quash Police Challan No. 7/2004 arising out of FIR No. 89/2003 registered at Police Station Kana Chak under Sections 447/436/427 RPC. It is alleged by the petitioner that one Kuldeep Singh had reflected a false and frivolous story in the report which culminated in registration of FIR No. 89/2003 to deprive the petitioner of his right over the land comprised in Khasra No. 966 of village Chinnore Tehsil Jammu. Elaborating his grievance, the petitioner says that the allegations of the prosecution that he had put a Thatched Hut belonging to the complainant on fire, was false because the Thatched Hut belonged to him and had been constructed in Khasra No. 966. He relies on the reports of the Revenue authorities as also a copy of status quo order dated 10.9.2003 issued by Assistant Settlement Officer, Jammu to seek quashing of the proceedings pending against him before Learned Special Judge (Sessions Judge), Jammu. Mr. A. V. Gupta, learned Senior counsel appearing for the petitioner, submitted that an application for considering the documents i.e. reports of the revenue officials and status quo order issued by Assistant Settlement Officer, Jammu had been produced before the Learned Special Judge (Sessions Judge), Jammu to consider those documents at the time of framing of the charge but the learned Sessions Judge, proceeded to frame the charge against the petitioner under Sections 447/436/427 RPC, ignoring the documents which had been placed on records by the petitioner-accused. According to the learned counsel, the learned Special Judge (Sessions Judge), Jammu was required to consider these documents before considering as to whether or not a case for charge had been made out against the petitioner. Learned counsel submitted that in view of the documents which had been placed on records by the petitioner, no case for framing charge had been made out against the petitioner by the prosecution and the proceedings pending before learned Special Judge (Sessions Judge), Jammu, were thus required to be quashed. Learned State Counsel, Mr. B. S. Salathia, submitted that the petitioner cannot invoke the inherent jurisdiction of this Court to seek adjudication of those pleas of the petitioner which are required to be considered at the time when he is called upon to enter defence. Learned State Counsel, Mr. B. S. Salathia, submitted that the petitioner cannot invoke the inherent jurisdiction of this Court to seek adjudication of those pleas of the petitioner which are required to be considered at the time when he is called upon to enter defence. Learned counsel submits that the learned Special Judge (Sessions Judge), Jammu was right in not taking note of the documents produced by the petitioner-accused, because the Code of Criminal Procedure does not contemplate consideration of any foreign material by the Court at the time of consideration of the case for framing charge, other than that which is relied upon by the prosecution in support of its case. I have considered the submissions of learned counsel for the parties. Learned Special Judge (Sessions Judge), Jammu has famed charge against the petitioner-accused under Sections 447/436/427 RPC on the basis of the evidence which had been collected by the Investigating Agency, during the currency of the investigation. Perusal of the records reveals that the prosecution had assembled enough evidence proving the possession of the complainant and existence of a thatched hut (Kulla) in Khasra No. 961 of village Chinnore. The evidence further reveals that the accused with the help of others had put the Kulla on fire thereby committing the offences with which he had been charged by the State. After registration of the FIR, the Investigating Officer had proceeded on spot and recovered burnt articles including clothes etc and ash from the spot where the Kulla had been existing. In view of the evidence collected by the prosecution in the case justifying framing of charge against the petitioner, the documents sought to be placed on records by the petitioner for consideration of the learned Special Judge, could not have been considered by the learned Special Judge at the stage when he was considering the case I as to whether or not a charge was required to be framed against the petitioner because the documentary evidence relied upon by the petitioner was in the nature of defence which the petitioner is entitled to project and prove but only at the opportune time when the prosecution had exhausted its right of leading evidence to prove whatever had been alleged by it against the petitioner in its Police challan. It is trite law that any documentary evidence or material foreign to the material and evidence collected during the currency of the investigation, cannot be taken into consideration by the Court while deciding as to whether or not a case for charge had been made out against the accused. In terms of Sections 268 and 269 of the Code of Criminal Procedure Samvat 1989, a court seized of a police case is required to take into consideration only the record of the case and documents submitted therewith. This Section does not contemplate consideration of documents or any other material produced by the accused at this stage before the court. Reference may conveniently be made in this respect to State of Orissa v. Debendra Nath Padhi, reported as (2005) 1 SCC 568 where while disproving its earlier judgment in Satish Mehras case reported as (1996) 9 SCC 766, Honble Supreme Court of India had held as follows: "As a result of the aforesaid discussion, in our view, clearly the law is that at the time of framing charge or taking cognizance the accused has no right to produce any material. Satish Mehra case 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 has not been correctly decided." In view of the law laid down by Honble Supreme Court of India and existence of sufficient evidence on records produced by the Investigating agency, I do not find any case to have been made out by the petitioner for quashing the proceedings pending before learned Special Judge (Sessions Judge), Jammu. The charge framed by the learned Special Judge is found to be justified. For all what has been said above, there is no merit in this petition which is, accordingly, dismissed. Records shall be sent back forthwith.