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Jharkhand High Court · body

2009 DIGILAW 937 (JHR)

Shyam Kishore Pandey v. State of Jharkhand

2009-07-07

PRASHANT KUMAR

body2009
ORDER This application has been filed for quashing the order dated 22.03.2005 passed in Cr. Revision No. 04 of 2005 by the Additional Sessions Judge-F.T. C.-II, Bokaro whereby and whereunder, he dismissed the criminal revision directed against the order dated 08.12.2004 passed by Judicial Magistrate, 1st Class, Bokaro in C.P. Case No. 270 of 2000. 2. It appears that a complaint petition was filed by the opposite party no. 2 alleging therein that accused had borrowed a total sum of Rs. 5,000,00/-(Five Lakhs ) from the complainant opposite party no. 2 on different dates. It is further alleged that on 05.05.2000 a cheque of Rs. 5,000,00/-(Five Lakhs) was handed over to the complainant for refund of aforesaid borrowed amount. It is further alleged that the aforesaid cheque was presented in the Bank but the same was returned to the complainant with intimation that cheque in question has been dishonoured due to insufficient fund. It is further alleged that the accused was informed about bouncing of cheque. It is further stated that in August 2000, accused-petitioner advised the complainant for presenting cheque in the Bank for encashment, as he had sufficient amount in his account. Thus, as advised by the accused-petitioner, complainant again presented the said cheque in the Bank on 14.08.2000 for encashment, but, the same was again returned to the complainant with a note of insufficient fund. It is stated that thereafter on 21.08.2000 the complainant had issued a legal notice which was received by the accused-petitioner on 28.02.2000, but he did not pay the amount mentioned in the cheque and accordingly, the complainant went to police station for lodging First Information Report, but local police asked the complainant to file complaint petition. Thereafter present complaint has been filed. 3. It appears that the case was transferred to the Court of Judicial Magistrate, 1st Class, Bokaro for inquiry. It then appears that after inquiry summons were issued to the petitioner-accused. Accordingly, he appeared in the court below. It further appears that thereafter witnesses were examined and documents were produced by the complainant as per the provisions contained in Section 244 of the Cr. P.C. Thereafter case was posted for hearing on the point of framing of charge. It then appears that on 01.12.2004 the accused-petitioner filed an application under Section 91 of the Cr. It further appears that thereafter witnesses were examined and documents were produced by the complainant as per the provisions contained in Section 244 of the Cr. P.C. Thereafter case was posted for hearing on the point of framing of charge. It then appears that on 01.12.2004 the accused-petitioner filed an application under Section 91 of the Cr. P. C. praying therein that original postal receipt from the concerned Post Office, original consignment notebook, from Good Luck Commercial Service may be called for, as the same was essential for hearing on the point of framing of charge. It then appears that learned Judicial Magistrate, Bokaro vide his order dated 08.12.2004 rejected the said petition. Against the aforesaid order accused-petitioner had filed a Criminal Revision which was dismissed by order dated 22.03.2005 passed by learned Additional Sessions Judge-F.T.C.-II, Bokaro on the ground that at the time of framing of charge it is not open for the petitioner-accused to produce any evidence in support of his defence. Learned Additional Sessions Judge, had also come to the conclusion that order passed by the Judicial Magistrate is interlocutory order, therefore, Revision application is not maintainable as per clause(2) of Section 397 of Cr. P.C. Against the aforesaid order present application under Section 482 of Cr. P.C. has been filed. 4. It is an admitted position that in the present case cognizance was taken on the basis of complaint petition. Therefore, in the instant case procedure prescribed under Section 244 to 246(1) will be applicable for framing of charge. Sections 244,245 and 246(1) runs as follows :- “Section 244-Evidence for prosecution-: (1) When, in any warrant-case instituted otherwise than on a police report, the accused appears or is brought before a Magistrate, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution. (2) The Magistrate may, on the application of the prosecution, issue a summons to any of its witnesses directing him to attend or to produce any document or other thing. Section-245 When accused shall be discharged. -(1) If, upon taking all the evidence referred to in section 244, the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him. Section-245 When accused shall be discharged. -(1) If, upon taking all the evidence referred to in section 244, the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him. (2) Nothing in this section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless. Section 246 Procedure where accused is not discharged-(1) If, when such evidence has been taken, or at any previous stage of the case, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try and which, in his opinion, could be adequately punished by him, he shall frame in writing a charge against the accused”. 5. From perusal of Section 244 of the Cr. P.C. it is clear that after appearance of accused, Magistrate is required to hear the prosecution and take all such evidence as may be produced in support of the prosecution. Clause-(2) of the said Section further provides that Magistrate may summon any witness on the application of prosecution to attend or to produce any document or other thing. Section 245 provides that if on the basis of evidence produced by the prosecution no offence is made out, then the Magistrate shall discharge the accused. Whereas Section 246 (1) provides that if from the evidence produced by the prosecution Magistrate is of opinion that there is ground for presuming that the accused had committed the offence, which can be punished by him, he shall frame charge against the accused. Thus, from bare perusal of Section 244, 245 and 246 (1) it is clear that till the framing of charge accused has no right to produce any evidence in his defence. At that stage only prosecution has right to produce evidence, both oral and documentary, to show that the accused has committed the offence as alleged in the complaint petition. Thus, from bare perusal of Section 244, 245 and 246 (1) it is clear that till the framing of charge accused has no right to produce any evidence in his defence. At that stage only prosecution has right to produce evidence, both oral and documentary, to show that the accused has committed the offence as alleged in the complaint petition. It has been held by their lordship of Supreme Court in State of Orissa Versus Devendra Nath Padhi reported in 2005(1), SCC 568 that materials as produced by the prosecution alone is to be considered at the time of framing of charge and not the one produced by the accused. At paragraph 18 of the said judgment it is further held that it is well settled that at the stage of framing of charge defence of the accused cannot be put forth. It is further held that permitting the accused to adduce his defence at the stage of framing of charge is against the Criminal Jurisprudence. In the same judgment their lordship’s had held regarding the maintainability of an application under Section 91 of Cr. P.C. on behalf of accused at the stage of framing of charge which is as follow :- “If any document is necessary or desirable for the defence of the accused, the question of invoking Section 91 at the initial stage of framing of charge would not arise, since the defence of the accused is not relevant at that stage. When Section refers to investigation, inquiry, trial or other proceeding, it is to be borne in mind that under the section a police officer may move the Court for summoning and production of a document as may be necessary at any of the stages mentioned in the section. In so far as the accused is concerned, his entitlement to seek order under Section 91 would ordinarily not come till the stage of defence. When the section talks of the documents being necessary and desirable, it is implicit that necessity and desirability is to be examined considering the stage when such a prayer for summoning and production is made and the party who makes it, whether police or accused ” 6. Thus the aforesaid law laid down by their lordship of Supreme Court makes it clear that at the stage of framing of charge application filed by the accused is not maintainable. Thus the aforesaid law laid down by their lordship of Supreme Court makes it clear that at the stage of framing of charge application filed by the accused is not maintainable. Under the said circumstance, I find that learned court below had rightly come to the conclusion that application of accused-petitioner under Section 91 of the Cr. P.C. is premature, accordingly the same is not maintainable. 7. In view of the discussions made above, I find no illegality and/or irregularity in the impugned order of learned court below which requires any interference by this Court. In the result, this application is dismissed.