State of J & K vs Geeta Raina and another

What is required to be considered by a magistrate while framing a charge against an accused or for that matter, discharging him? Is it only the

documents referred to in the police report under Sec. 173 Cr. P.C. or something more? Can a document summoned by the Court at the instance

of the accused, in exercise of powers under Sec. 94 Cr.P.C. be considered? These are the questions which have cropped up in this revision

petition filed by the State to assail the order of the learned Special Judge, Anti Corruption, Jammu, dt. 15.12.1991 discharging the accused under

Sec. 5 (2) of the Prevention of corruption Act, 2006 (hereafter referred to as the PC Act).

The facts reveal that a police report was presented against the respondents under Sec. 5 (2) of the P.C. Act. They filed an application before

the trial court for summoning the record of the District Judge, Vigilance, Jammu, to show that an identical charge had been dropped against

respondent NO. 2 and also for summoning of the property statements of respondent No. 1 from the office of the Chief Medical Officer, Jammu, to

show that the house stood in her name before the complaint was lodged. This application was allowed vide order dated 29.8.1992 and the trial

court relied upon both the documents for the purposes of framing the charges and ultimately discharged and accused on consideration of the total

record before it. The petitioner's case is that the court below could not have considered the documents, summoned at the instance of the accused,

for discharging the accused.

Mr. Goel appearing for the petitioner argued that the trial court transgressed its limits by doing so and entertained a probable defence of the

accused which it could not do while framing charge. He sought support from AIR 1977 SC 2018 to high light the considerations which a

magistrate is required to take into regard for framing a charge and submitted that he could consider only those documents referred to in the police

report under Sec. 173 and nothing more.

Mr. Goni, representing respondents, on the other hand, contended that the magistrate had to frame charge after providing the accused ""an

opportunity of being heard under Subsees. (2) and (3) of Sec. 251A Cr.P.C. which expression should be so interpreted as to take within its fold

all such documents brought before the court at the instance of the accused in exercise of powers under Sec.94 or otherwise. Any other view, he

submitted, would render the expression "" opportunity to be provided to the accused by the Court at charge stage"", meaningless and illusory.

I have heard learned counsel for the parties and examined the record also.

Though the canvass of the controversy appears to be limited, it nevertheless raises a new point involving interpretation of sections 94, 251A (1),

(2),(3) and (9) of the Code of Criminal Procedure. Therefore, it becomes necessary at the very outset to extract these provisions to appreciate the

rival contentions of the parties and to reach proper conclusions. The relevant provisions read thus:

94, Summons to produce document or other thing: (1) Whenever any Court, or any officerincharge of a police station considers that the

production of any document or other thing is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceedings under

this Code by or before such Court or officer, such court may issue a summons, or such officer a written order to the person in whose possession

or power such document or thing is believed to be requiring him to attend and produce it, or to produce it, at the time and place stated in the

summons or order.

(2) Any person required under this section merely to produce a document or other thing shall be deemed to have complied with the requisition, if

he causes such document or thing to be produced instead of attending personally to produce the same.

(3) Nothing in this section shall be deemed to affect the Evidence Act, 1977, sections 123 and 124, or to apply to a letter, post card, telegram or

other document or any parcel or thing in the custody of the postal or Telegraph authorities.

251A. Procedure to be adopted in cases instituted on police report:

(1) When, in any case instituted on a police report, the accused appears or is brought before a Magistrate at the commencement of the trial, such

Magistrate shall satisfy himself that the documents referred to in section 173 have been furnished to the accused, and if he finds that the accused

has not been furnished with such documents or any of them, he shall cause them to be so furnished.

(2) If, upon consideration of all the documents, referred to in section 173 and making such examination, if any, of the accused as the Magistrate

thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the

accused to be groundless, he shall discharge him.

(3) If, upon such documents being considered, such examination, if any being made and the prosecution and the accused being given an

opportunity of being heard, 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.

(9) If the accused, after he has entered upon his defence, applies to the Magistrate to issue any process for compelling the attendance of any

witness for the purpose of examination or crossexamination, or the production of any document or other thing, the Magistrate shall issue such

process unless he considers 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. Such ground shall be recorded by him in writing.

Provided that when the accused has crossexamined or had the opportunity of crossexamining any witness after the charge is framed, the

attendance of such witness shall not be compelled under this section unless the magistrate is satisfied that it is necessary for the purposes of

Justice"".

Sec. 94 falls under Chapter VII Cr.P.C. which deals with the processes to compel the production of documents etc. It lays down that when any

court or officer incharge of a police station considers the production of any document necessary or desirable for the purposes of any investigation,

inquiry, trial or other proceedings, under this Act court or officer may issue a summons or written order to the person for production of such

document. The power conferred by the section, as is evident, is a general power and is not controlled or circumscribed by any other limitation. The

only requirement for exercise of this power is that the court or officer must consider the production of document necessary for the purposes of any

investigation, inquiry, trial or other proceedings, under the Code. The power can be exercised at any stage during investigation, inquiry and trial, as

the case may be. In other words, where any court considers the production of a document necessary, for inquiry or trial, it can summon the

document before considering the framing of charge as in the present case. Therefore, all that requires to be seen is whether the provisions of

Sec.251A place any rider on the exercise of power under Sec.94.

Section 251A falls under Chapter XXI of the Code which deals with the trial of warrant cases by the Magistrate. It provides a procedure to be

adopted in cases instituted on police reports and says that when the accused appears before a magistrate in any case instituted on the Police

report, the Magistrate shall make sure that the documents referred to in Sec. 173 are furnished to him. Subsec (2) lays down that if the Magistrate

considers the charge against the accused to be groundless, upon consideration of all the documents referred to in section 173 and making such

examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being

heard, he shall discharge him. Subsec (3) provides that where the Magistrate is of the opinion, upon consideration of the three requirements

(Supra), and sees a ground for presuming that the accused has committed an offence triable under chapter XXII, he shall frame in writing a charge

against the accused. Subsec {9} enables an accused to apply to the Magistrate for issuance of any process of compelling the attendance of any

witness or for the production of any document or other thing but only after he has entered upon his defence.

After reading the provisions in correct perspective and in totality, the position that emerges is that the Magistrate is required to satisfy three

requirements necessarily at the time of framing of charge. These are: (i) to consider all documents referred to in section 173; (ii) making such

examination of the accused as he may think necessary; and (Ui) to provide the prosecution and the accused an opportunity of being heard. If he

fails to meet any one of the aforesaid requirements in the circumstantance of a particular case, he would be only exposing his order to challenge in

he process. In other words, just as he cannot overlook or sidetrack consideration of documents referred to in the police report under Sec. 173, he

cannot on the same analogy deny opportunity of being heard to either the prosecution or the accused.

The questions that arises in the process are: what construction should be placed on the expression 'opportunity of being heard'. Should a

conservative construction be given to confine it to a hearing of the accused or his counsel or should it be stretched further liberally to take within its

sweep any admitted document which the accused may want to produce or which may be already before the Magistrate having crucial bearing on

the charge?

In my view the expression ""opportunity of being heard"" must receive a liberal construction so that it is not reduced to any empty formality. If

that be so, which, in fact, it must be, it should be interpreted to mean that accused has the opportunity of even bringing to the notice and attention

of the Court any document or thing provided, of course, it is genuine and undisputed. Then alone it can be said that the accused had an opportunity

of being heard.

It is true that subsections (2) and (3) of Sec. 251A, require of a Magistrate to consider all documents covered under Sec. 173, but it does not

shut the door at that. It gives a further leeway and provides for the examination of the accused and for giving him an opportunity of being heard.

Therefore, it will be too much to confine the requirement of the provision in a straight jacket and capsule it only to the documents referred in Sec.

I find support for this view from 1983 Crl. L.J. 318 and 1987 Crl.L.J. 1335. Though these two cases are slightly different on facts inasmuch

as in these the accused has filed documents on their own which had not been considered by the Magistrate yet the principle laid down therein

fortifies the view taken by me here in. While in the first case the Kamataka High Court opined, though not in so many words, that ""opportunity of

being heard"" by the accused included his right to introduce documents at the precharge stage, in the latter decision the Punjab High Court made

things more clear by holding that the accused could also produce his documents at the time of framing of the charge, subject to the condition that

the documents were genuine. All this holds to reason also. Otherwise the statutory mandate to provide the accused an opportunity of being heard

would be rendered meaningless in the process.

It is futile to dilate on the provisions of subsec. {9} of Sec. 251A which contemplate a stage for calling of documents by the accused after he

has entered his defence. This obviously has no much of relevance to the present controversy. Therefore, summong up, I hold that a Magistrate can

summon any document, if he considers it necessary for inquiry or trial under Sec.94 Cr.P.C. and can also take it into consideration for purposes of

framing a charge or dropping it provided the genuineness of the document(s) is not in dispute. And wherever the document is disputed, the

Magistrate would be within his right to sidetrack it and its authenticity or otherwise would be better left to proof at the trial stage.

Applying this to the facts of the present case, the order of the trial court summoning the findings of the District Judge, Vigilance and the

property statement from the Chief Medical Officer, Jammu, in exercise of his power under Sec,94 can hardly be faulted. Nor can his action to take

these documents into consideration, be assailed by placing a narrow interpretation on the provisions of Sec.251A (2) and (3) Cr.P.C.

I have also gone through the impugned order discharging the respondents and find that it is not confined to the weight given to the controversial

documents. It also takes into account all that was before the Trial Court to arrive at a conclusion that the charge against the respondents in

groundless. I find no infirmity or illegality in the order impugned which otherwise deserves appreciation for its elucidity and meticulous details with

which the matter has been approached.

I accordingly find no merit in this revision petition which is dismissed.

Record of the court below be returned forthwith.