Rajasthan High Court - Jaipur
Tarachand Verma vs State Of Rajasthan Through P P on 31 July, 2018
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Miscellaneous (Petition) No. 2898/2017
Tarachand Verma S/o Shri Shivkaran Ram B/c Jat , R/o Plot No.
54-55, Bhan Nagar, Queens Road, Jaipur, Rajasthan
----Petitioner
Versus
State Of Rajasthan Through Pp
----Respondent
For Petitioner(s) : Mr. Dhoop Singh Poonia
For Respondent(s) : Mr. Prakash Thakuriya PP
HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA
-/Order/-
31/07/2018
The present petition has been filed under Section 482
Cr.P.C. praying that the order dated 13.4.2017 passed by the
Special Judge, Sessions Court, Prevention of Anti Corruption Act,
No.1, Jaipur in Case No. 3/2016 be set aside.
Learned counsel for the petitioner has submitted that a
grave error was committed by the court below not to consider the
documents seized by the investigating agency during the course of
investigation, wherein petitioner had projected his defence to
explain possession of 2,27,000/-, which as per investigating
agency is disproportionate asset of the petitioner. The learned
counsel for the petitioner has submitted that the investigating
agency recovered Rs.2,27,000/- from the petitioner. The petitioner
during investigation raised a defence that one Ganga Prasad
Gupta gave him Rs.2,27,000/- with the request that same be
handed over to property dealer Hemant Chopra, who had struck a
(2 of 4) [CRLMP-2898/2017]
bargain on behalf of Ganga Prasad Gupta, for purchase of the
property.
It is settled legal proposition that the defence raised
during the investigation which has been discarded by the
investigating officer cannot be considered at the time of framing of
charges. The right course for the petitioner is to prove the fact
asserted by leading defence evidence by examining witnesses and
proving the documents relied.
Suffice it to say, the investigating officer has come to
conclusion that the documents given by the petitioner are neither
authentic nor reliable. Therefore, the opinion of the investigating
officer at the stage of investigation has to prevail. It will be
travesty of the justice if the defence version considered and
rejected by the investigating officer is projected at the time of
framing of charges. At the time of framing of charges presumptive
opinion is to be formulated by the trial court.
The documents given by the petitioner during the
course of investigation cannot be considered at the time of
framing of charges.
At this stage, the learned counsel for the petitioner
insisted that the judgments relied by him be dealt with by this Court.
The learned counsel for the petitioner has relied upon the judgment in the case of Davendra Kumar vs. State of Rajasthan reported as 1990(2) RLR 629. In that case, it was held that if some record is with the prosecution and if the prosecution hold back the said record from the court, the court is duty bound to insist that such record be produced. This judgment nowhere says that documents produced by the accused during (3 of 4) [CRLMP-2898/2017] investigation should be considered. The judgment specifically stated that if the document is gathered by the investigating agency which is regarding innocence of the accused, and same is withheld by the prosecution, same cannot be kept back. Hence, this judgment is not applicable.
Learned counsel for the petitioner has also relied upon the judgment rendered in the case of Jagnandan Singh vs. State of Rajasthan, reported as 2008(1) Cr.L.R. (Raj.) 8. This judgment is regarding statements recorded under Section 161 Cr.P.C., which were not relied by the prosecution. Again at the cost of repetition, it is observed that the defence version of the accused noted and discarded cannot be put in the prosecution case and cannot be considered at the stage of framing of charge.
The above argument if upheld, will go contrary to the ratio and spirit of the judgment rendered by the Supreme Court State of Orissa vs. Debendra Nath Padhi reported as (2005) 1 SCC 568, wherein it is held that the documents given by the accused cannot be considered by the court framing charges. The case of the petitioner is worse if the documents given by the accused cannot be considered by the court at the time of framing charges, then the documents given by the accused during investigation cannot get any precedence or prominence. Therefore, the argument being misconceived is rejected.
The learned counsel for the petitioner has submitted that recently Supreme Court in Nitya Dharmananda @ K. Lenin & Another vs. Gopal Sheelum Reddy also known as Nithya Bhaktananda & Another reported as (2018) 2 SCC 93 wherein it has held that the court is not debarred from exercising its power under Section 91 Cr.P.C. The court, as rightly held in its discretion (4 of 4) [CRLMP-2898/2017] can consider the documents which are of sterling and unimpeachable quality but not the documents given by the petitioner during investigation since they contain story which on facts is contrary to the prosecution. Therefore, at time of framing charges defence version cannot be considered. At the time of framing of charge, test which are to be applied at the time of conclusion of the trial, cannot be applied. The judgment relied by the learned counsel for the petitioner is Nitya Dharmananda (supra) specifically states that only those documents which are of sterling and umimpeachable quality can be considered.
The version concocted by obtaining documents to explain amount, cannot be considered at the time of framing of charges. Hence, the present petition being devoid of merit is dismissed.
Nothing said herein shall be construed as an expression on the merits of the case.
(KANWALJIT SINGH AHLUWALIA),J Mak/-
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