IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.15132 of 2008 Date of decision : 29th August, 2008 Ram Pal and another … Petitioners Versus State of Haryana and others … Respondents CORAM: HON’BLE MR. JUSTICE HEMANT GUPTA HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present : Mr. R.S. Hooda, Advocate for the petitioners. KANWALJIT SINGH AHLUWALIA, J. Petitioner – Ram Pal and Mohinder sons of Nand Lal have been named as accused in case FIR No. 198 dated 12.07.2006 registered at Police Station Sadar, Rohtak under Sections 148/ 149/ 323/ 324/ 307/ 302/ 120-B IPC and Section 25/ 54/ 59 of Arms Act. The FIR was investigated and report under Section 173 Cr.P.C. (challan) was submitted by the Investigating Agency on 4th October, 2006. Grievance of the petitioner, by way of present writ petition, is that certain vital documents, which demolish the case of the prosecution have been purposely withheld by the Investigating Agency and not annexed with report under Section 173 Cr.P.C. It has been stated that at the behest of Investigating Officer, i.e., SHO Police Station Sadar, Rohtak, in the presence of SDM Rohtak, Deputy Commissioner and Superintendent CWP 15132 of 2008 of Police Rohtak, order dated 12th July, 2006 (Annexure P-3) was passed by SDM Rohtak under Section 145 Cr.P.C. It has been averred that Annexure P-3 is contrary to the version set out in report under Section 173 Cr.P.C. (Annexure P-2) and had the same been made part of report under Section 173 Cr.P.C. (Annexure P-2), then the same would have demolished the case of the prosecution. It has been further submitted that recovery memo prepared by the Commandant CRPF (Annexure P-4); copy of FIR No. 199 dated 12.07.2006 registered at Police Station Sadar Rohtak under Section 148/ 149/ 435/ 341/ 323/ 332/ 353/ 186 IPC (Annexure P-5); another copy of FIR No. 195 dated 13.07.2006 registered at Police Station Beri under Section 148/ 149/ 353/ 332/ 186/ 436/ 307 IPC (Annexure P-6); and also copy of FIR No. 152 dated 06.06.2007 registered at Police Station Sadar Rohtak under Sections 148/ 149/ 307/ 323/ 427/ 435/ 436/ 452/ 511/ 109/ 120-B IPC and Sections 25/ 54/ 59 of Arms Act (Annexure P-7) have not been made part of the report under Section 173 Cr.P.C. (challan). After making this grievance, petitioners have pleaded that the following documents are necessary to be considered at the time of framing of charge and therefore, Investigating Agency be directed by issuing writ of mandamus to place these documents on record of the report under Section 173 Cr.P.C. (challan) (Annexure P-2): i) The order of S.D.M. Rohtak passed under section 145 Cr.P.C. has been withheld, which gives entirely different story. ii) The requisition sent by Deputy Commissioner to the C.R.P.F. calling for Battalion to control the situation has been withheld. iii) Statement under section 161 Cr.P.C. of Commandant C.R.P.F. who searched the ashram and recovered certain articles, which were handed over to the police has been withheld. 2 CWP 15132 of 2008 iv) FIR No.199 (Annexure P-5) and FIR No.195 (Annexure P-6) has been suppressed while presenting the report under section 173 Cr.P.C. Scope of Section 91 Cr.P.C. and Section 294 Cr.P.C. was considered by the Hon'ble Apex Court in State of Orissa v. Debendra Nath Padhi, 2005 (1) RCR (Criminal) 297 and following question was formulated: “Can the trial Court at the time of framing of charge consider material filed by the accused, is the point for determination in these matters.” After examining this question, the Court came to the conclusion that two Judge Bench judgment of Hon'ble Apex Court rendered in Satish Mehra v. Delhi Administration and Another, 1996 (3) RCR (Crl.) 410 (SC) contained observations, which were obiter-dicta. Therefore the Court held as under: “28. We are of the view that jurisdiction under Section 91 of the Code when invoked by accused the necessity and desirability would have to be seen by the Court in the context of the purpose – investigation, inquiry, trial or other proceedings under the Code. It would also have to be borne in mind that law does not permit a roving or fishing inquiry.” It has been otherwise, well settled law that truth and veracity of the prosecution allegations is not to be meticulously adjudged or examined at the time of framing of charge. The case presented before the Court by the Investigating Agency is to be examined at the touchstone of prima facie and the Court has to formulate presumptive opinion. Therefore, the present 3 CWP 15132 of 2008 prayer of the petitioners cannot be accepted. Petitioners, if so advised, may introduce documents, which have been allegedly withheld by the Investigator, during his cross-examination by filing an application before the Court to summon these documents in order to facilitate effective cross- examination by the defence counsel. The accused have also the right to summon and prove these documents in defence evidence. During arguments, counsel for the petitioner placed reliance upon para 29 of Debendra Nath Padhi’s judgment (supra) and the same reads as under: “29. Regarding the argument of accused having to face the trial despite being in a position to produce material of unimpeachable character of sterling quality, the width of the powers of the High Court under Section 482 of the Code and Article 226 of Constitution of India is unlimited whereunder in the interests of justice the High Court can make such orders as may be necessary to prevent abuse of the process of any Court or otherwise to secure the ends of justice within the parameters laid down in Bhajan Lal’s case.” Learned counsel urged that in view of the observations of Hon'ble Apex Court, while exercising writ jurisdiction under article 226 of the Constitution of India, while giving directions, we should come to the rescue of the petitioners to prevent abuse of process of Court, to meet the ends of justice, which, counsel for the petitioner claims, are in his favour. We are afraid, this contention cannot be accepted as the powers of the writ Court have been qualified by Hon'ble Apex Court, which are to be exercised within the parameters of law laid down in State of Haryana v. Bhajan Lal, 1991 (1) RCR (Crl.) 383 (SC): [1992 (Suppl.-1) 335]. We are, otherwise, of the view that documents sought to be relied upon by the petitioners, at best advance defence of the accused and 4 CWP 15132 of 2008 they are not unnecessarily required to be considered at the time of framing of charge. We find no merit in the present writ petition and the same is dismissed. [HEMANT GUPTA] JUDGE [KANWALJIT SINGH AHLUWALIA] JUDGE August 29, 2008. rps 5