Delhi District Court
Arjun Chaudhary vs Om Prakash Sachdeva on 8 April, 2016
IN THE COURT OF SHRI SANJIV KUMAR, ADDITIONAL
SESSION JUDGE, SOUTH EAST DISTRICT,SAKET
COURTS, NEW DELHI
CRIMINAL REVISION NO. 2/16
IN THE MATTER OF
ARJUN CHAUDHARY
S/O SH. AJAY CHAUDHARY
R/O C-311, SARITA VIHAR,
NEW DELHI.
..............REVISIONIST
VERSUS
1. OM PRAKASH SACHDEVA
S/O KHUSHI RAM
2. ANKUR SACHDEVA
S/O OM PRAKASH SACHDEVA
BOTH R/O 305, TAGORE PARK,
NEW DELHI.
3. RAGHUNATH SINGH
R/O G-132, KALKA JI, NEW DELHI-110019
CR No. 2/16 1 Arjun Chaudhary v. O.P.
Sachdeva
4. SUSHIL KHERA
S/O SH. SH. D.C. KHERA
R/O 240B, MIG GREEN APARTMENTS,
RAJOURI GARDEN,
NEW DELHI-110015.
5. SMT. SHARDA DEVI
R/O C-39, BALI NAGAR,
NEW DELHI.
6. M/S. USHA KIRAN
R/O 506, MUKHERJEE NAGAR,
NEW DELHI
..........RESPONDENTS
Date of reserving the order: 19.03.2016
Date of order: 08.04.2016
JUDGMENT
1. This revision petition has been filed inasmuch as the petitioner / revisionist is aggrieved by the order dated 10.07.2014 passed by the learned Metropolitan Magistrate- 05, South-East District, Saket Courts, New Delhi in Complaint CR No. 2/16 2 Arjun Chaudhary v. O.P. Sachdeva Case No. 260/1/11 namely Arjun Chaudhary v. Om Prakash Sachdeva & Ors. whereby the respondent's application under Section 294 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the "Code") for admission / denial of the documents was allowed at the stage of pre-charge evidence and petitioner/revisionist was called upon to admit or deny the genuineness of those documents.
2. The respondents have filed reply to the revision petition.
3. Trial Court Record has been requisitioned. I have heard arguments advanced by the learned counsel for both the parties. I have perused the record.
4. The learned counsel for the revisionist has submitted that the case was listed for pre-charge evidence of the petitioner under Section 244 of the Code and at that stage the accused cannot be allowed to get a documents/ materials admitted or a denied by the complainant on which the accused is relying for their defence; that the accused/ respondents cannot be allowed to bring on record any document at the stage of framing of charge and he can only produce the document at the stage of defence evidence ; that the accused cannot file any type of document whether it is public documents or order etc. of the Court till the framing CR No. 2/16 3 Arjun Chaudhary v. O.P. Sachdeva of charge ; that the defence of the accused is not relevant at the stage of the framing of charge and therefore order of the Learned Metropolitan Magistrate is bad in law and same may be set aside and revision petition may be allowed. Learned Counsel has placed reliance upon the decisions, namely, State of Orissa v. Devender Nath Padhi, (2003) 2 SCC 711 ; Dr. P. Das Gupta vs. State & Anr., 2006 INDLAW DEL 732; Jude Chidibere and Ors. v. N.C.B., 2010 SCC Online DEN 770, and Guwhati Sub-Division Market Committee v. Sh. Suresh Sikaria, Crl. Rev. Petition No. 552/2012.
5. On the other hand, learned counsel for the respondents has submitted that Padhi's case is not applicable as it is a warrant trial case instituted otherwise than on police report and documents are certified copies of order of Courts etc.; that only a judicial orders are required to be admitted or denied by the revisionist; that Section 294 of the Code is exclusive and an enabling provision and therefore revision petition may be dismissed. He has relied upon the decisions, namely, Mohan Lal Singhal v. State (Delhi Administration), 1996 JCC129 ; Shamsher Singh Verma v. State of Haryana, 2015 (4) Crimes 353 (SC) ; Laxlavva v. Halamappa Bhimappa & Others, ILR 1968 Mys 1 and Md. Akbar & Another v. State of AP, 2002 Cri LJ 3167.
CR No. 2/16 4 Arjun Chaudhary v. O.P. Sachdeva
6. The questions for consideration in this revision petition are that whether accused/respondents have right to produce documents/material alongwith the application under section 294 of the Code at the stage of pre-charge evidence in the warrant trial case instituted otherwise than on police report and whether the Learned Metropolitan Magistrate court can direct at that stage the appellant/complainant to admit or deny the said documents/material filed by the respondents/accused.
7. The learned Counsel for the revisionist had relied upon the Padhi's case (supra) before the learned Metropolitan Magistrate, but same was distinguished by the learned Metropolitan Magistrate observing that the observations in Padhi's case are confined to cases instituted on 'police report' and/or involving interpretation of term 'record of the case' as appearing in Section 227 of the Code and the law laid down can to the most be read as analogy for Section 239 of the Code but not for Section 245 which is based on an entirely different premise. First of all, it is not correct to say that Padhi's case has only interpreted provisions of "Trials Before a Court of Session " particularly Sections 227 and 228 Cr.P.C. because para no. 16,17,20 and 27 thereof finds mentioning of Section 239 and 240 as well.
CR No. 2/16 5 Arjun Chaudhary v. O.P. Sachdeva
8. The learned counsel for the respondents submitted that the provisions of Section 227 and 228 of the Code and that of Section 244, 245 and 246 are different inasmuch as Section 244 provides for pre charge evidence. He, therefore, tried to distinguish the present case in an attempt to show that Padhi's case would not be applicable. Reading section 244, 245 and 246 of the Code, I do not see how that would be of any use to the respondents. Section 244(1), 245 and 246 (1) read as under:
" 244. Evidence for prosecution- (1) When, in any warrant-case instituted otherwise than on a police report, the accused appears or is brought before a Magistrate, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution.
245. When accused shall be discharged- (1) If, upon taking all the evidence referred to in Section 244, the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him.
(2) Nothing in this section shall be deemed to prevent a Magistrate from discharging the CR No. 2/16 6 Arjun Chaudhary v. O.P. Sachdeva accused at any previous stage of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless.
246. Procedure where accused is not discharged-(1) If, when such evidence has been taken, or at any previous stage of the case, 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. In trial of warrant cases instituted otherwise than on police report, evidence for prosecution is recorded under Section 244 and thereafter accused can be discharged if upon taking all the evidence referred to in Section 244, the Magistrate considers that no case against the accused has been made out which, if unrebutted, would warrant his conviction. Under Section 246 of the Code if the Magistrate is of the opinion that there is ground for presuming that accused has committed an offence triable under this Chapter, he shall frame a charge against the accused. Hence aforesaid provisions do not say that the CR No. 2/16 7 Arjun Chaudhary v. O.P. Sachdeva accused/respondents have the right to produce documents/material at the stage of pre charge evidence and framing of charge. It is another thing to put any document/material by the accused/respondents during the cross examination of the complainant's witness if permissible in law.
10. In Jude's case (supra) it has also been observed that in case of trial of warrant cases instituted otherwise than on a police report, the stage for defence evidence only after evidence in terms of Section 244 has been recorded, the accused is not discharged in terms of section 245 and after framing charge against him, evidence in terms of sub- Section 5 and sub-Section 6 of section 246 of the Code has been recorded; that the scheme of the Code does not envisage consideration of the defence available to the accused at any stage before recording of the evidence of the prosecution; that if the defence available to the accused is considered at this stage, that would be absolutely contrary to the scheme of trial envisaged in Chapter XIX of the Code and hence to examine the defence of the accused, at this stage, will be in violation of the mandate contained in the Code Hence in this authority also it has been categorically observed after considering Sections 244, 245 and 246 of the Code that if defence available to the accused is considered at any stage before recording of the evidence of the CR No. 2/16 8 Arjun Chaudhary v. O.P. Sachdeva prosecution, that would be absolutely contrary to the scheme of trial envisaged in Chapter XIX of the Code.
11. In Sunil Mehta & Anr. v. State of Gujrat & Anr., Criminal Appeal No. 327 of 2013 decided on 20.02.2013, Hon'ble Supreme Court has observed in Para no. 12 that Section 244 to 246 leave no manner of doubt that once the accused appears or is brought before the Magistrate, the prosecution has to be heard and all such evidence as is brought in support of its case recorded ; that power to discharge is also under Section 245 exercisable only upon taking all of the evidence that is referred to in Section 244, so also the power to frame charges in terms of Section 246 has to be exercised on the basis of the evidence recorded under Section 244 ; that the expression "when such evidence has been taken"
appearing in Section 246 is significant and refers to the evidence that the prosecution is required to produce in terms of Section 244 (1) of the Code. Hence this authority also clearly says that power to discharge under section 245 and to frame charge under section 246 are exercisable only on the basis of the evidence recorded under Section 244 of the Code. This authority does not say also that the accused/respondents have the right to produce any document/material prior to the stage of defence evidence and documents/material of the accused can be considered at the time of framing of charge.
CR No. 2/16 9 Arjun Chaudhary v. O.P. Sachdeva
12. In Padhi's case, interpreting section 91 of the Code, it has been held that 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. Under Section 91 summons for production of document can be issued by Court and under a written 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. It was further held that at a time of framing of charge or taking cognizance the accused has no right to produce any material; that accused has no right to produce a document at a stage of framing of charge and documents/material of the accused cannot be taken into consideration at that stage.
13. In view of above discussion, I am of the view that none of the Sections 244, 245 and 246 of the code give the right to the respondents/accused to produce/file CR No. 2/16 10 Arjun Chaudhary v. O.P. Sachdeva documents/material till the stage of framing of charge and said provisions do not give power to the learned Metropolitan Magistrate to consider the documents/material till the stage of framing of charge in warrant trial case instituted otherwise than on a police report.
14. Now I come to the Section 294 of the Code which provides that no formal proof of documents is required if same are admitted by the prosecution or accused. The same reads as under:
"294. No formal proof of certain documents. - (1) Where any document is filed before any Court by the prosecution or the accused, the particulars of every such document shall be included in a list and the prosecution or the accused, as the case may be, or the pleader for the prosecution or the accused, if any, shall be called upon to admit or deny the genuineness of each such document.
(2) The list of documents shall be in such form as may be prescribed by the State Government.
(3) Where the genuineness of any document is not disputed, such document may be read in evidence in CR No. 2/16 11 Arjun Chaudhary v. O.P. Sachdeva any inquiry trial or other proceeding under this Code without proof of the signature of the person to whom it purports to be signed:
Provided that the Court may, in its discretion, require such signature to be proved."
15. In Das Gupta's case (supra), the Hon'ble Delhi High Court had occasion to interpret the section 294 of the Code. In that case it has been observed that a plain reading of the Section 294 indicates that the accused or the prosecution may call upon each other to admit or deny the genuineness of any document which is filed before any court by the prosecution or the accused. Therefore, before any requirement for admission/denial of documents can arise, the documents must have been filed before any court by the prosecution or the accused. At the stage of framing of charges, in view of Padhi's case, the accused has no right to produce any material. Therefore, unless and until the documents are filed before the court by the prosecution, the accused would not have any right to ask for admission/denial of the same.
16. Hence, It is clear from the Section 294 of the Code and Dass Gupta's case that admission / denial of the document CR No. 2/16 12 Arjun Chaudhary v. O.P. Sachdeva can be done only when the documents have already been filed on record. If documents have not been filed already on record and then a party wants admission or denial of the documents filed with the application under Section 294 of the Code, same cannot be done as Section 294 of the Code does not confer any right upon the accused/respondents to produce any document in any form at the stage of pre- charge evidence in warrant trial case instituted otherwise than on a police report.
17. The present case is warrant trial case instituted otherwise than on a police report and case was at the stage of pre charge evidence under Section 244 of the Code and no documents were produced/filed before moving application under Section 294 of the Code by the accused/respondents before learned Metropolitan Magistrate. Hence accused/respondents cannot produce/file documents along with application under Section 294 of the Code. Neither of the Sections 244, 245 and 246 nor Section 294 of the Code give the accused/respondents any right to produce the documents/material at the stage of pre charge evidence. Similarly neither of the aforementioned Sections confer the power upon the learned Metropolitan Magistrate to permit the accused/respondents to produce the documents/material along with the application under Section 294 of the Code at that stage. As the accused/respondents could not produce CR No. 2/16 13 Arjun Chaudhary v. O.P. Sachdeva the documents/material at that stage, there was no question of admission or denial of documents of the accused by the revisionist/complainant.
Hence in view of above discussions, impugned order of learned Metropolitan Magistrate is set aside and revision petition is allowed accordingly.
Announced in the open court on 08.04.2016 (SANJEEV KUMAR) ADDITIONAL SESSION JUDGE-05 SOUTH EAST DISTRICT, SAKET COURTS, NEW DELHI CR No. 2/16 14 Arjun Chaudhary v. O.P. Sachdeva