IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MMO No.: 114 of 2009. Date of decision: 12.11.2010. Kanwar Vijay Singh … Petitioner Versus State of H.P. and Another … Respondents Coram : The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 For the petitioner : Mr. Vijay Pandit, Advocate. For respondent No.1: Mr. J.S. Guleria, Assistant Advocate General. For respondent No.2: Mr. Rajiv Sood, Advocate. V.K. Ahuja, J(oral). This order shall dispose of the petition filed under Section 482 of Cr.P.C. by the petitioner against the order dated 22.8.2008 passed by the learned Additional Sessions Judge, Shimla, vide which the order passed by the learned trial Court dated 23.11.2007 directing the framing of charge against respondent No.2 was set aside and respondent No.2 was discharged accordingly. 2. Briefly stated, the facts of the case are that on the basis of a complaint filed by the petitioner, hereinafter referred to as the Complainant, a challan was filed against respondent No.2 before the court of the learned Judicial Magistrate, Ist Class, Court No.V, Shimla for offences punishable under Sections 419, 420, 467, 468 and 471 IPC. FIR was registered on the basis of the complaint filed by the petitioner. At the stage of framing of charge, respondent No.2 moved an application for discharging him without framing of charge and the learned trial 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 Court, vide order dated 23rd November, 2007, dismissed the said application and the case was thereafter listed for framing of charge as against the said respondent. Against the order passed by the learned trial Court for framing of charge, respondent No.2 preferred a revision petition, which was decided by the learned Additional Sessions Judge vide impugned order dated 22.8.2008, whereby order passed by the learned trial court for framing of charge was set aside and respondent No.2 was discharged accordingly, against the said order, the present petition has been preferred by the complainant. 3. I have heard the learned counsel for the parties and have gone through the record of the case. 4. The learned Additional Sessions Judge while passing the impugned order discharging respondent No.2, had placed reliance upon the decision of the Apex Court in Satish Mehdra vs. Delhi Administration and another(1996) 9 S.C.C. 766 and accordingly observed that the certified copy of judgment passed in Writ Petition No. 886 of 2003 can be looked into by the Court produced by the respondent at the time of framing of charge and accordingly after referring to the said judgment passed in the writ petition by this Court, respondent No.2 was discharged. 5. It has been submitted by the learned counsel for the petitioner that the said judgment passed by the Hon’ble Apex Court has been overruled in another subsequent decision of a three Judge Bench of the Apex Court and accordingly the documents produced by respondent No.2/accused could not be considered by the Court at the time of framing of charge. The reliance has been placed upon the decision in State of Orissa v. Debendra Nath Padhi, AIR 2005 Supreme Court 359, which is a decision of three Judge Bench of the Apex Court, in which, in paras 8 and 16, it was concluded by their Lordships as under: 3 “8. What is to the meaning of the expression ’the record of the case’ as used in Section 227 of the Code. Though the word ‘case’ is not defined in the Code but Section 209 throws light on the interpretation to be placed on the said word. Section 209 which deals with the commitment of case to Court of Session when offence is triable exclusively by it, inter alia, provides that when it appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall commit ‘the case’ to the Court of Session and send to that Court ‘the record of the case’ and the document and articles, if any, which are to be produced in evidence and notify the Public Prosecutor of the commitment of the case to the Court of Session. It is evident that the record of the case and documents submitted therewith as postulated in Section 227 relate to the case and the documents referred in Section 209. That is the plain meaning of Section 227 read with Section 209 of the Code. No provision in the Code grants to the accused any right to file any material or document at the state of framing of charge. That right is granted only at the stage of the trial. 16. All the decisions, when they hold that there can only be limited evaluation of materials and documents on record and sifting of evidence to prima facie find out whether sufficient ground exists or not for the purpose of proceeding further with the trial, have so held with reference to materials and documents produced by the prosecution and not the accused. The decisions proceed on the basis of settled legal position that the material as produced by the prosecution alone is to be considered and not the one produced by the accused. The later aspect relating to the accused though has not been specifically stated, yet it is implicit in the decisions. It seems to have not been specifically so stated as it was taken to be well settled proposition. This aspect, however, has been adverted to in State Anti-Corruption Bureau, Hyderabad and another v. P. Suryaprakasam (1999 SCC (Crl) 373) where considering the scope of Sections 239 and 240 of the Code it was held that at the time of framing of charge, what the trial court is required to, and can consider are 4 only the police report referred to under Section 173 of the Code and the documents sent with it. The only right the accused has at that stage is of being heard and nothing beyond that (emphasis supplied). The judgment of the High Court quashing the proceedings by looking into the documents filed by the accused in support of his claim that no case was made out against him even before the trial had commenced was reversed by this Court. It may be noticed here that learned counsel for the parties addressed the arguments on the basis that the principles applicable would be same- whether the case be under Sections 227 and 228 or under Sections 239 and 240 of the Code.” 6. It is, therefore, clear that at the time of framing of charge, the material produced by the prosecution alone has to be considered and not the one produced by the accused. It was also observed by their Lordships in paras 17 and 18 that the judgment passed in Satish Mehdra vs. Delhi Administration and another, referred to above, has been overruled by this decision. Once it is held that such document i.e. copy of the order passed in a writ petition could not be looked into by the court below, the impugned order passed by the learned Additional Sessions Judge is not sustainable. However, learned counsel for the respondent has placed reliance upon another decision of the Apex Court in Rukmini Narvekar v. Vijaya Satardekar (2008) 14 Supreme Court Cases 1, wherein in para 22 of the judgment it was observed by their Lordships as under:- “22. Thus in our opinion, while it is true that ordinarily defence material cannot be looked into by the court while framing of the charge in view of D.N. Padhi case, there may be some very rare and exceptional cases where some defence material when shown to the trial court would convincingly demonstrate that the prosecution version is totally absurd or preposterous, and in such very rare cases the defence material can be looked into by the court at the time of framing of the charges or taking cognizance. In our opinion, therefore, it cannot be said as an absolute 5 proposition that under no circumstances can the court look into the material produced by the defence at the time of framing of the charges, though this should be done in very rare cases i.e. where the defence produces some material which convincingly demonstrates that the whole prosecution case is totally absurd or totally concocted.” 7. It is, therefore, clear that insofar as the decision in State of Orissa v. Debendra Nath Padhi is concerned, it applies to the facts of the case and has not been overruled by a larger Bench but only clarification has been made by their Lordships in Rukmini Narverkar’s case by making observation in para-22 as referred to above. It is, therefore, clear that in case the defence produces some material which convincingly demonstrates that the whole prosecution case is totally absurd or totally concocted, such material can be looked into by the Court. 8. In the present case, after considering the copy of order passed by this Court in the writ petition, it cannot be said that the prosecution case was totally absurd or totally concocted. It does not show that the question raised in the present case in regard to the offences committed by respondent No.2 was under consideration before this Court. A reference was made that prima facie that there was no fraud or cheating committed by respondent No.2. However, complete facts were not mentioned in the order to hold that this question arose before the Division Bench of this court in the writ petition and it had finally concluded that no offence was committed by respondent No.2. 9. In view of the above discussion, I accordingly hold that though the document in question i.e. certified copy of the order cannot be looked into but even if it is considered in view of the judgment in subsequent case, it does not lead to an inference that the prosecution case was totally absurd or totally concocted. Therefore, the impugned order passed by the learned Additional Sessions Judge is liable to be set aside and the same is accordingly set aside and the document placed on 6 record by respondent No.2 can be considered by the Court as and when the same is relied upon by respondent No.2 in his defence but that does not lead to the inference that on that basis respondent No.2 deserved to be discharged accordingly. 10. In view of the above discussion, impugned order is set aside and the case is remanded back to the court of the learned Judicial Magistrate, Ist Class, Court No. V, Shimla to proceed with the case in accordance with law. Parties through their counsel are directed to appear before the learned trial Court on 15.12.2010. Record of the case alongwith a copy of this order be sent to the learned trial Court, so as to reach before the date fixed. A copy of this order be also sent to the learned Additional Sessions Judge, Shimla, for information. ( V.K. Ahuja ), Nov 12, 2010 Judge. (vt)