HIGH COURT OF JUDICATURE MADHYA PRADESH, JABAPLUR S.B.: HON. SHRI S.C.SINHO, J. M.Cr.C. No.2895/2008 Mulayam Singh and others VERSES State of M.P. -------------------------------------------------------------------------------------------------- Shri Manikant Sharma, Advocate for the applicants. Shri G.S. Thakur, P.L. for the respondent/State. -------------------------------------------------------------------------------------------------- O R D E R 09/03/2011 1. Applicants have filed this petition under Section 482 of Cr.P.C. being aggrieved by the order dated 19.02.2008 passed by 1st Additional Sessions Judge, Damoh in S.T. No.134/2005, whereby the learned Sessions Judge prepared a Panchnama before advocates of both the parties and thereafter framed additional charges under Section 201 of the I.P.C. 2. As per prosecution story on 02.01.2005 Tarabai was found dead in her house. On 04.04.2005 the brother of Tarabai submitted an application to the Superintendent of Police to take action against the applicants as there was suspicion over them. After due investigation on the basis of circumstantial evidence and other evidence a charge sheet was filed against the applicants and after examining 13 prosecution witnesses the case was fixed for judgment on 19.02.2008. 3. On 19.02.2008 Presiding Officer noticed that during the course of the investigation a key of a lock was allegedly seized from the possession of applicant No.1 Mulayam Singh and further as lock of the room was also seized where dead body of Tarabai was found but prosecution has not placed any evidence or filed any Panchnama to prove the fact that the key was the part of the lock found at the door of the deceased or the lock is operated by the said key allegedly recovered from Mulayam Singh. 4. When Presiding Officer noticed this lacuna called the said key alleged to be seized from applicant Mulayam Singh and the lock seized from the door of deceased room and prepared a panchnama Ex.A-1 in presence of defence counsel Shri C.M. Guru and Government Advocate and other members of the Bar Shri Rajkishan Shrivastava and Shri Sachin Guru the lock was opened with the seized key and it was found that the key was of the same lock which was seized from the door of deceased and aforesaid facts have been mentioned in the order sheet dated 19.02.2008 as well as a panchnama duly signed by aforesaid advocates as well as signed by Presiding Officer was prepared and additional charges framed under Section 201 of the Cr.P.C. on 19.02.2008. 5. Shri Manikant Sharma, Advocate for the applicants has vehemently submitted that on perusal of order-sheet and Panchnama it is clear that court below himself has become a witness of the aforesaid fact and the counsel appearing for both the parties were also made the witnesses of panchnama and thus learned Sessions Judge has committed gross illegality and adopted the procedure which is not provided in the Cr.P.C. or in the Evidence Act and applicants constitutional rights guaranteed under Article 21 of the Constitution of India are violated. 6. Shri G.S. Thakur, learned counsel for the State has supported the impugned order passed by the court below. 7. There is no quarrel on this issue that court can frame charges or alter or amend charges at any stage in view of section 216 of the Cr.P.C. 8. On going through the impugned order dated 19.02.2008 and panchnama Ex.A-1 duly signed by the Presiding Officer, it is clear that Presiding Officer as well as counsel appearing for both the parties along with two other counsels Shri Rajkishan Shrivastava and Shri Sachin Guru are also made witnesses. During judicial proceedings in court Presiding Officer is not supposed to become an Investigating Officer nor such Panchnama can be prepared during proceeding in presence of counsel of both the parties. The whole procedure adopted 2 by the Presiding Officer is grossly illegal and unknown to Criminal Procedure Code and Evidence Act. The learned counsel of the defence or learned counsel of the State cannot be made witnesses nor Presiding Officer should also become a party where judicial proceedings are going before him. 9. In the result this petition is partly allowed. The learned Sessions Judge will not consider Panchanama Ex.A-1 prepared in the court as well as the fact mentioned in the impugned order dated 19.02.2008 that the lock was opened with the seized key and it was found that the key was of the same lock which was seized. 10. It is settled position that court can frame charges or alter or amend charges at any stage in view of Section 216 of Cr.P.C. Thus Presiding Officer has not committed any mistake while framing charges under Section 201 of the Cr.P.C. However, it will be proper to mention that Presiding Officer on the basis of evidence and other documents, seized articles is free to infer any conclusion on the basis of aforesaid materials. 11. Accordingly, this petition under Section 482 of Cr.P.C. is partly allowed. The panchnama prepared on 19.02.2008 is quashed. The office is directed to send a copy of this order to the trial Court for information and compliance. (S.C. Sinho) Judge psm 3 HIGH COURT OF JUDICATURE MADHYA PRADESH, JABAPLUR S.B.: HON. SHRI S.C.SINHO, J. M.Cr.C. No.2895/2008 Mulayam Singh and others VERSES State of M.P. -------------------------------------------------------------------------------------------------- ORDER POST FOR : 09/03/2011 (S.C. SINHO) Judge 4