Mohd.Ilyas vs Shahbudin

R.L. Anand, J.

There is a criminal revision and a preliminary objection has been raised by Mr. Baldev Singh that the present revision has been directed against the order dated 2.12.1997, vide which the application of the accused u/s 311, Cr.P.C. was allowed and against such type of orders, a revision is not maintainable. I fully agree with the preliminary submission raised by the counsel for the respondents.

Faced with this difficulty, the learned counsel for the petitioner submits that the present petition may be treated as a petition u/s 482, Cr.P.C. in the interest of justice. In view of the peculiar facts of this case, I treat this petition to be u/s 482 Cr.P.C. in the interest of justice.

Respondents in this case were challaned for the offence u/ss 379/506/420/467/468/471/419/120B, IPC. Before the stage of framing of charge, the accused submitted an application u/s 311 Cr.P.C. praying to the court that the disputed signature may be sent to the office of Director, Forensic Science Laboratory at their expense and the framing of the charge may be deferred till the report came. This request of the respondents was acceded to by the learned Judicial Magistrate Ist Class, Ferozepur Jhirkha. Aggrieved by the said order, the present petition, which has been treated to be u/s 482, Cr.P.C.

The learned counsel for the petitioner submits that the procedure adopted by the learned trial court is unwarranted and against the law. It would tantamount to examination of the witness on behalf of the defence at the pre charge stage. In support of his contention, the learned counsel for the petitioner relies upon Randhir Singh Rana v. The State being the Delhi Administration, 1997(1) Crimes (SC) 58, where it was held that the Judicial Magistrate after taking cognizance of an offence on the basis of police report and after appearance of the accused cannot order for further investigation. The counsel also refers to R.S. Naik v. A.R. Antulay, 1987(1) Chandigarh Law Reports 62, and submits that the documents already before the court can form the basis for the charge.

On the contrary, Mr. Baldev Singh, learned counsel for the respondents, invites my attention to the judgement in Satish Mehra v. Delhi Administration and another, 1996 SCC (Crl.) 1104, where their Lordships were pleased to hold that the court is not debarred from looking into any material produced by the accused at that stage and the hearing of the case cannot be allowed to be confined to oral arguments. Mr. Baldev Singh submits that in order to prove that there was no prima facie, case, the assistance of the court was taken for calling the report of the Director, Forensic Science Laboratory, which Laboratory may not be in a position to give the assistance to a private individual and the allowing of the application, in fact, does not amount to summoning or leading additional evidence. I fully endorse the view and submission raised by the learned counsel for the respondents. Present is a case in which it cannot be said that the accused wanted to lead evidence before precharge stage. The only request of the respondents before the Magistrate was that the report of the Forensic Science Laboratory be called on the questioned documents and after obtaining the report, an opinion may be formulated whether any prima facie, case existed or not. It does not tantamount to leading of the evidence.

In this view of the matter, I do not see any merit in the present petition and the same is hereby dismissed. The Magistrate shall obtain the report of the Forensic Science Laboratory as early as possible. The receipt of the report whether in favour of the respondents or not will not debar the learned Magistrate to take into consideration the documents already before him and then to decide whether the charge may be framed against the respondents or not. The Director Forensic Science Laboratory is also directed to send the report to the Magistrate at top priority.

Copy of the order be sent to the Director, Forensic Science Laboratory, for compliance.