Ram Pratap and Ors. vs State of U.P.

O. P. Jain, J.—This is an application under Section 482, Cr.P.C. for quashing the committal order dated 521994.

The brief facts of the case are that on 2391993 at about 2.00 p.m. two persons namely, Abid Ali and Mohd. Salim were murdered. The F.I.R., in which six accused were named, was lodged and on that basis a chargesheet was filed by the police against six persons on 8111993. The chargesheet was filed in the Court of C.J.M. However, on 421994 the committal proceedings were transferred from the Court of C.J.M. to the Court of A.C.J.M. The A.C.J.M. passed the committal order on 521994 and it is the legality of this committal order which is being challenged in this application under Section 482, Cr.P.C.

The main grievance of the applicants is that the copies of the statements recorded under Section 161, Cr.P.C. were not made available to the accused persons before committing the case to the Sessions Judge and in this way the mandatory provisions of Section 207, Cr.P C. have been infringed. The learned counsel for the accused has filed a certified copy of the order dated 521994 at the time of argument and it is pointed out that in the photostat copy, Annexure4, in the margin there is hand written note that the accused have refused to accept copies. It is pointed out that in the certified copy there is no such note in the margin. On that basis it is argued that the endorsement in the margin of Annexure4 was made by somebody at a latter date and in this way forgery has been committed in the record of the case.

The learned counsel for the applicants has pointed out that the signatures of Sri D. L. Srivastava, A.C.J.M., Deoria on photo copy, Annexure5and on photo copy Annexure4, are different and this is also said to be the result of forgery.

In view of the seriousness of the allegations I have carefully gone through the record but in my opinion this allegation is not justified Annexure4, order dated 521994, is the first ordersheet written by the A.C.J.M. after he received the file from the Court of C.J.M. It is stated in the ordersheet that the case fixed today for committing of accused to the Court of Sessions. It is further recited that the copying section has prapared all the copies and the accused have applied for copies of statements recorded under Section 164, Cr.P.C.and the same have also been got prepared. The order further mentions that the defence counsel objected on the ground that the copies are yet to be compared with the original and, therefore, the copies may not be given to the accused and the case should not be committed on that day. This objection was overruled by the Court on the ground that all the copies have been prepared by the Copying Section of the Court and are true copies and, therefore, the objection raised by the learned counsel for the accused is not justified. Due to this reluctance on the part of the learned counsel for the accused to accept the copies the A.C.J.M. ordered his office that the copies may be made available to the accused. In this context the office made a note on the margin that the accused have refused to accept the copies. As the reluctance of the accused to accept the copies is mentioned in the ordersheet itself it cannot be said that the endorsement on the margin is a forged one. It is true that in the certified copy there is no such note in the margin but that may be due to the negligence of the person who prepared the certified copy. This certified copy was applied on 2421994 was prepared on 831994 and was supplied on 1631994.

The learned counsel for the petitioners has cited AIR 1983 SC 439 para 12 in which it has been held that supplying of copies to the accused persons is not a ministerial or admisitrative function and it is a judicial function. The learnsd counsel for the petitioners has also cited AIR 1957 Mad 508, in which noncompliance of the provisions of Section 173 (4) of the old Cr.P.C. has been considered. AIR 1957 Mad 508Ram Das v. State, cited by the learned counsel for the petitioner is not applicable because in that case there was an omission to record the statement of the accused and it was held that it has caused prejudice to the accused. In that view of the matter the commitment was quashed. In the case before me there is no noncomliance of the provision of Section 207, Cr.P.C. The Magistrate can only get the copies prepared and offer the same to the accused. The Magistrate cannot compel the accused to accept the copies. In this case it is apparent that for one reason or the other the accused wanted to delay the committal proceeding and, therefore, they were reluctant to accept the copies which were ready and were being offered to them.

The learned counsel for the accused has also argued that in Annexure4 order dated 521994 the C.J.M. has observed in the last line of the order that the order of commitment may be drafted. It is argued that this was a judicial function and could not have been left to the office. The record shows that committal order was prepared and signed on the same day. Perhaps what the A.C.J.M. intended to say is that the letter of commitment may be prepared by the office. Annexure3 is the information of commitment to the Sessions Judge on the prescribed printed form which appears to have been prepared by the office after filling in the blanks. Form No. 31 of the Cr.P.C. is prescribed for giving information of the commitment to the Public Prosecutor. A form is prescribed for giving intimation to the Sessions Judge of the commitment. The blank spaces in these forms appear to have been filled in by the office. It cannot therefore be said that the learned A.C.J.M. has delegated his judicial functions to the office. The allegation of forgery is found to be baseless.

It may be mentioned that the case of State of U. P. v. Laxmi Brahman, AIR 1983 SC 439, cited by the learned counsel for the applicants was considered by this Court in 1984 ACC 73Mustaque Ahmad v. State of U. P.and it was held that the nonsupply of copies is a mere irregularity.

It has been held above by me that there is no noncompliance of Section 207, Cr.P.C. by the Magistrate. But out of abundant caution an order is being passed that one more set of police papers may be supplied to the accused.

During the course of the arguments the learned counsel for the accused stated that by this time only one witness has been examined in the session trial. It appears that the accused have refused to accept the copies of the statements which were offered to them under Section 207, Cr.P.C. In the circumstances of the case before proceeding further with the trial the learned Sessions Judge should supply another set of statements and other papers to the counsel for the accused and this fact should be clearly mentioned in the ordersheet. If some witnesses have already been examined and if a a request is made to recall them the learned Sessions Judge should give one more opportunity to the defence to crossexamine them.

With these directions, the application under Section 482, Cr.P.C. is dismissed. A copy of this order may be sent to Special Judge, Deoria.