Ram Bahadur Shahi and Others vs State of U.P.

R.P. Shukla, J.—The Applicants are facing trial for the offence punishable under Sections 147/148/149/379/427 & 302 Indian Penal Code vide Session Trial No. 499 of 1987, in the court of IV Additional District and Sessions Judge, Gorakhpur. The case was fixed for orders under Sections 227 and 228 of the Code of Criminal Procedure when the Applicants moved an application praying to summon the documents- N. R. 10, G. R. 100, N. R. 11 and G. R. 150 dated 15-6-1987 at the very stage as the defence proposed to advance arguments that no charges could be framed against the Applicants in view of the aforesaid documents. After hearing the parties the learned Sessions Judge was pleased to reject the aforesaid application vide his order dated 19-11-1987 annexed with the petition as '' Annexure-III''. Aggrieved by the aforesaid order the Applicants have moved this application u/s 482 Code of Criminal Procedure praying that the aforesaid order of the IV Addl. District and Sessions Judge dated 19-11-87 be quashed and that the IV Addl. District add Sessions Judge, Gorakhpur be directed to summon the aforesaid documents from the District Control Room, Gorakhpur.

I have heard the learned Counsel for the parties to some length and have perused the affidavits and counter affidavits. Section 227 of the Code of Criminal Procedure runs as under:

Discharge: If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing.

It is clear from reading the aforesaid section that at the beginning and the initial stage of the trial the truth, veracity and effect of the evidence which the prosecution proposes to adduce at the trial are not to be meticulously judged nor is any weight to be attached to the probable defence of the accused. It is not obligatory for the Judge at this stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter u/s 227 of the Code of Criminal Procedure . At this stage the Court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial, but at the initial stage if there is strong suspicion which leads the court to think that there is ground for presuming that the accused has committed an offence, then it is not open to the court to say that there is not sufficient ground for proceeding against the accused. If the evidence, which the prosecution proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged in the cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial. This would mean that at this stage of the trial the evidence and the documents relied upon by the prosecution shall only be considered u/s 227 Code of Criminal Procedure. The stage of deciding the matter u/s 227 of the Code of Criminal Procedure is only for the purpose of deciding prima facie whether the court should proceed with the trial or not. The accused at this stage cannot insist upon summoning some documents favourable to the defence or that may create some suspicion in the prosecution case while making its submissions u/s 227 Code of Criminal Procedure . Under Chapter XVIII of the Code of Criminal Procedure i. e. trial before a court of Sessions, if the accused is not acquitted u/s 232 he shall be called upon to enter on his defence and adduce any evidence which he may have in support thereof u/s 233 Code of Criminal Procedure. In Sub-clause (3) of Section 233 Code of Criminal Procedure if the accused applies for the issue of any process for compelling the attendance of any witness or the production of any document or thing, the Judge shall issue such process unless if he considers, for the reasons to be recorded, that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice. That would be the proper stage for the defence to insist upon summoning the evidence on which the defence relies.

At the stage of Sections 227 and 228 of the Code of Criminal Procedure the defence will make its submissions only on the evidence on which the prosecution relies to adduce at the trial and the copies of documents and statements forming such evidence have been supplied to the accused u/s 207 Code of Criminal Procedure before the case is committed to the court of Session.

Before parting with this petition I would like to say that inherent powers of the Court u/s 482 Code of Criminal Procedure cannot ordinarily be exercised when there is express provision on the subject matter. In the instant case there is specific provision under Chapter XVIII of the Code when the defence can insist upon summoning a witness or document on which it relies. In this view of the matter no case for interference u/s 482 Code of Criminal Procedure is made out.

The application is, therefore, dismissed. The stay order, if any, stands vacated.