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2010 DIGILAW 1761 (RAJ)

Kamla v. State of Rajasthan

2010-10-21

M.N.BHANDARI

body2010
JUDGMENT 1. - Aggrieved by the order dated 9.3.2010, framing charges for the offence under Sections 302 and 120B of the Indian Penal Code (for short the I.P.C."), the criminal revision petition has been filed. 2. Learned counsel appearing on behalf of the petitioners submits that in a matter where occurrence took place almost 7 years prior to filing of the complaint, the Court below has framed the charges ignoring the delay. This is more so when material produced by the petitioners was sufficient to show that no case is made out against them. Aforesaid material was not considered in ignorance of the judgment on the issue that material produced by the accused can be looked into even at the stage of hearing of the matter for framing of charges. It is otherwise a case where initially petitioners filed a complaint regarding commission of offence under Section 302 of I.P.C. Pursuant to the complaint, an order was passed for investigation by the police. The police therein gave negative final report. Thereupon, petitioners preferred a protest petition, however, same was dismissed and accordingly, negative final report was accepted.. The petitioner preferred a revision petition before this Court. While protest petition of the petitioner was pending, one Ghasiram filed an application to allow him to intervene in the matter. He was, however, not permitted to do so. Now, said Ghasiram has preferred complaint in question after lapse of 7 years. It is a case where a person died while he was travelling in a bus and on chemical examination, it was found that he was administered poison. However, in a complaint filed by the petitioner, police did not find anybody's involvement. 3. Now, on the complaint filed by complainant-Ghasiram, cognizance has been taken by the Magistrate on the same facts for which earlier negative final report was accepted. This was in ignorance of the material in regard to the earlier complaint preferred by the petitioner regarding same occurrence. This amounts to abuse of process of law by the Court below. In view of the aforesaid, the petitioners have rightly maintained this revision petition. 4. This was in ignorance of the material in regard to the earlier complaint preferred by the petitioner regarding same occurrence. This amounts to abuse of process of law by the Court below. In view of the aforesaid, the petitioners have rightly maintained this revision petition. 4. In support of his arguments, learned counsel for petitioners has made reference of the judgments in the case of Rukmini Narvekar v. Vijaya Satardekar and others, reported in AIR 2009 SC 1013 and State of Orissa v. Debendra Nath Padhi, reported in AIR 2005 SC 359 to show that subsequent to the judgment of the Hon'ble Apex Court in the case of State of Orissa v. Debendra Nath Padhi (supra), a further judgment has been given by the Hon'ble Apex Court in Rukinini Narvekar's case (supra) wherein after considering the judgment in the case of Debendra Nath Padhi (supra), the Court has come to the conclusion that in an exceptional circumstance, document may be considered at the stage of hearing of the matter for framing of charges. 5. Learned counsel for respondent-complainant as well as learned Public Prosecutor, on the other hand, has opposed the criminal revision petition. 6. Learned counsel for respondent-complainant submits that order of cognizance earlier passed by the same Court was subject matter of a challenge in a separate revision petition wherein the petitioners raised all the grounds, which are urged now in this petition. The revision petition was withdrawn by the petitioner though it was with liberty. to raise all the grounds at the time of hearing of the case for framing of charges and also liberty to move an application under Section 438 of Cr.P.C., before the Sessions Judge. Withdrawal of the revision petition results an adverse order against the petitioners. In any case, it is a settled law that while framing of charges, the Court is not under an obligation to pass a detailed order as if it is adjudicating the matter itself. So far as the issue of delay in lodging the complaint is concerned, it is urged that the report showing administration of poison was received after few years of the occurrence. Thereupon complainant-Ghasiram made an application while matter was pending consideration on the complaint filed by the petitioner. The application was thereafter dismissed. Thus, delay has been justified. So far as the issue of delay in lodging the complaint is concerned, it is urged that the report showing administration of poison was received after few years of the occurrence. Thereupon complainant-Ghasiram made an application while matter was pending consideration on the complaint filed by the petitioner. The application was thereafter dismissed. Thus, delay has been justified. Looking to the aforesaid, it is prayed that revision petition preferred by the petitioner may be dismissed. 7. I have considered rival submissions of learned counsel for the parties and perused the record carefully. 8. The first question for my consideration is as to whether it is permissible under the law for an accused to produce the material at the stage of hearing of the matter for framing of charges. The issue aforesaid was taken into consideration by the Hon'ble Apex Court on a reference made to the Larger Bench in Debendra Nath Padhi's case. It is held that provisions of Section 91 of Cr.P.C. are not available for the accused to produce material at the stage of hearing of the matter for framing of charges and accordingly, reference was answered with the finding that accused is not at liberty to produce the material at that stage. Para 25 of Debendra Nath Padhi's case is relevant and quoted thus : "25. Any document or other thing envisaged under the aforesaid provision can be ordered to be produced on finding that the same is 'necessary or desirable for the purpose of investigation, inquiry, trial or other proceedings under the Code'. The first and foremost requirement of the section is about the document being necessary or desirable. The necessity or desirability would have to be seen with reference to the stage when a prayer is made for the production. 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 a charge would not arise since defence of the accused is not relevant at that stage. When the section refers to investigation, inquiry, trial or other proceedings, 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. When the section refers to investigation, inquiry, trial or other proceedings, 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 document 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. If under Section 227 what is necessary and relevant is only the record produced in terms of Section 173 of the Code, the accused cannot at that stage invoke Section 91 to seek production of any document to show his innocence. Linder Section 91 summons for production of document can be issued by Court and under a zoritten order an officer in charge of Police Station can also direct production thereof. Section 91 does not confer any right on the accused to produce document in his possession to prove his defence. Section 91 presupposes that when the document is not produced process may be initiated to compel production thereof." 9. Perusal of the aforesaid para does not permit acceptance of material by the accused at the stage of hearing of the matter for framing of charges. In the light of the aforesaid, I conclude the issue by holding that provisions of Section 91 of the Cr.P.C. is not available to the accused to produce the material at the stage of hearing of the matter for framing of charges. In view of the aforesaid, if material produced by the petitioners has not been considered by the Court below, then no error exists therein. 10. So far as other issue is concerned i.e., the issue of delay etc., framing of the charges has to be based on the material available on record. It is a case where complaint was filed by the respondents. On filing of the complaint, statements under Sections 200 and 202 of Cr.P.C. were recorded. After considering those statements, the Court issued process pursuant to the provisions of Section 204 of Cr.P.C. and I do not find any error therein. It is a case where complaint was filed by the respondents. On filing of the complaint, statements under Sections 200 and 202 of Cr.P.C. were recorded. After considering those statements, the Court issued process pursuant to the provisions of Section 204 of Cr.P.C. and I do not find any error therein. It is necessary to narrate that there is a stage earlier to it as provided under Section 203 of the Cr.P.C., where the complaint can be dismissed by the competent Magistrate after considering the material. However, it is a case where complaint was not dismissed. The fact further remains is that while framing of the charges, the Court is not required to pass an elaborate order as if it is trying the case. In view of the aforesaid, I do not find any illegality in the order passed by the Court below in framing of the charges and looking to the limited jurisdiction of this Court, this revision petition is dismissed. 11. It is, however, made clear that any observations made in this order will not cause prejudice to the petitioners at the time when they raise their defence at the appropriate stage.Revision dismissed. *******