Heard Smt Bhatmal Shirin Shabbisbhai, appearing on behalf of Sri Mento Issac, learned counsel for the revision petitioner and Sri M.R. Patil, learned High Court Government Pleader for respondent/State.

2. Revision petition is filed by accused No.4 in S.C.No.1309/2017, challenging the order of rejecting to discharge accused No.4 from the sessions case.

3. Facts in brief which are utmost necessary for disposal of the revision petition are as under:

4. The gist of the complaint averments reveal that the brother of complainant by name Girish was found dead in the intervening night of 25/26.12.2016, near the walking path of -3- NC: 2024:KHC:21406 CRL.RP No. 1539 of 2023 Byrasandra Tank. The injuries found on the dead body show that the injuries could have been caused with the sharp edged weapons.

5. On the basis of suspicion, a complaint came to be lodged against Tejas and his friends. Police after registering the case, conducted thorough investigation. During the course of the investigation, based on the voluntary statement given by the other accused persons, present accused No.4 was apprehended by the police and his voluntary statement was also recorded.\

6. Based on the voluntary statement of the accused, seized the vehicle said to have been used in the incident and a mobile phone possessed by the accused, wherein conversation between present petitioner and the other accused persons were appearing. Therefore, the Investigating Agency has arraigned accused No.4 in the case and charge sheet came to be filed.

7. After accused No.4 appeared before the Trial Court, he filed an application under Section 227 of Cr.P.C. The State objected for the said application.

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8. Learned Trial Judge heard the parties in detail and considered the case that is advanced on behalf of the present petitioner and the written objections lodged on behalf of the prosecution. Paragraphs 10 to 12 of the order passed in S.C.No.1309/2017 is culled out hereunder for ready reference.

Here in this case also this Court noticed that, the materials placed by the prosecution at this stage are sufficient to proceed against the accused No.4. Thereby, the facts and circumstances discussed in the above respected citation and the facts and circumstances of the present case are one and the same. Thereby, the above respected citation is aptly applicable to the present case on hand."

9. Being aggrieved by the same, accused No.4 is before this Court.

10. Smt Bhatmal Shirin Shabbisbhai, learned counsel representing Sri Mento Issac, vehemently contended that there is no material, whatsoever that has been collected by the Investigating Agency to arraign the present petitioner as accused No.4 in the incident and further contended that name of the revision petitioner was not found in the FIR and therefore, the discharge application ought to have been allowed by the learned Trial Judge.

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11. Per contra, learned High Court Government Pleader supports the impugned order.

12. Perused the material on record including the charge sheet papers which has been filed along with the revision petition.

13. It is no doubt true that initially the case came to be filed against Tejas. Present petitioner's name is not found in the FIR.

14. Admittedly, the informant came to know about the death of younger brother through some one else. He rushed to the spot and noticed that there were several blood injuries in the dead body. Thereafter, police registered the case under Section 302 r/w Section 34 IPC and conducted the detail investigation.

15. During the course of the investigation, Tejas and two other persons are apprehended by the police. Material on record would show the role played by the present petitioner prima facie as well in the investigation. Thereafter the present petitioner has been apprehended by the police.

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16. After the arrest, voluntary statement of present petitioner has also been recorded by the Investigating Agency and a mobile telephone said to have been used in the incident is recovered by the police and seized in the mahazar. Call records between the present petitioner and the accused at the relevant date is also collected by the Investigating Agency.

17. All these materials have been properly taken note of by the learned Trial Judge while supplying the reasons for rejection of the application for discharge as referred to supra.

18. It is settled principles of law and requires no emphasis that at the time of framing the charge, the Trial Court is required to consider only the prosecution papers and not the defense of the accused.

19. Likewise, there cannot be any mini trial while considering the request for discharge.

20. In this regard, gainfully this Court relies upon the judgment of the Hon'ble Apex Court in the case of State of Orissa v. Debendra Nath Padhi , reported in (2005) 1 SCC 568, relevant paragraphs are culled out hereunder:

21 of the Constitution and to save the said provisions from being declared ultra vires, the reasonable interpretation to be placed thereupon is the one which gives a right, howsoever limited that right may be, to the accused to produce unimpeachable and unassailable material to show his innocence at the stage of framing charge.

18. We are unable to accept the aforesaid contention. The reliance on Articles 14 and 21 is misplaced. The scheme of the Code and object with which Section 227 was incorporated and Sections 207 and 207-A omitted have already been noticed. Further, at the stage of framing of charge roving and fishing inquiry is impermissible. If the contention of the accused is accepted, there would be a mini-trial at the stage of framing of charge. That would defeat the object of the Code. It is well settled that at the stage of framing of

NC: 2024:KHC:21406 CRL.RP No. 1539 of 2023 charge the defence of the accused cannot be put forth. The acceptance of the contention of the learned counsel for the accused would mean permitting the accused to adduce his defence at the stage of framing of charge and for examination thereof at that stage which is against the criminal jurisprudence. By way of illustration, it may be noted that the plea of alibi taken by the accused may have to be examined at the stage of framing of charge if the contention of the accused is accepted despite the well-settled proposition that it is for the accused to lead evidence at the trial to sustain such a plea. The accused would be entitled to produce materials and documents in proof of such a plea at the stage of framing of the charge, in case we accept the contention put forth on behalf of the accused. That has never been the intention of the law well settled for over one hundred years now. It is in this light that the provision about hearing the submissions of the accused as postulated by Section 227 is to be understood. It only means hearing the submissions of the accused on the record of the case as filed by the prosecution and documents submitted therewith and nothing more. The expression "hearing the submissions of the accused"

19. It may also be noted that, in fact, in one of the cases under consideration (SLP No. 1912), the plea of

NC: 2024:KHC:21406 CRL.RP No. 1539 of 2023 alibi has been taken by the accused in a case under Section 302 read with other provisions of the Penal Code, 1860. We may also note that the decisions cited by learned counsel for the accused where the prosecutions under the Income Tax Act have been quashed as a result of findings in the departmental appeals have no relevance for considering the question involved in these matters.

20. Reliance placed on behalf of the accused on some observations made in Minakshi Bala v. Sudhir Kumar [(1994) 4 SCC 142 : 1994 SCC (Cri) 1181] to the effect that in exceptional cases the High Court can look into only those documents which are unimpeachable and can be legally translated into relevant evidence is misplaced for the purpose of considering the point in issue in these matters. If para 7 of the judgment where these observations have been made is read as a whole, it would be clear that the judgment instead of supporting the contention sought to be put forth on behalf of the accused, in fact, supports the prosecution. Para 7 of the aforesaid case reads as under: (SCC p.

145) "7. If charges are framed in accordance with Section 240 CrPC on a finding that a prima facie case has been made out -- as has been done in the instant case -- the person arraigned may, if he feels aggrieved, invoke the revisional jurisdiction of the High Court or the Sessions Judge to contend that the charge-sheet submitted under Section 173

NC: 2024:KHC:21406 CRL.RP No. 1539 of 2023 CrPC and documents sent with it did not disclose any ground to presume that he had committed any offence for which he is charged and the revisional court if so satisfied can quash the charges framed against him. To put it differently, once charges are framed under Section 240 CrPC the High Court in its revisional jurisdiction would not be justified in relying upon documents other than those referred to in Sections 239 and 240 CrPC; nor would it be justified in invoking its inherent jurisdiction under Section 482 CrPC to quash the same except in those rare cases where forensic exigencies and formidable compulsions justify such a course. We hasten to add even in such exceptional cases the High Court can look into only those documents which are unimpeachable and can be legally translated into relevant evidence."

21. It is evident from the above that this Court was considering the rare and exceptional cases where the High Court may consider unimpeachable evidence while exercising jurisdiction for quashing under Section 482 of the Code. In the present case, however, the question involved is not about the exercise of jurisdiction under Section 482 of the Code where along with the petition the accused may file unimpeachable evidence of sterling quality and on that basis seek quashing, but is about the right claimed by the accused to produce material at the stage of framing of charge.

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22. Reliance has also been placed on the decision in the case of P.S. Rajya v. State of Bihar [(1996) 9 SCC 1 : 1996 SCC (Cri) 897] where this Court rejected the contention urged on behalf of the State that the points on which the accused was seeking quashing of criminal proceedings could be established by giving evidence at appropriate time and no case had been made out for quashing the charge itself. The charge was quashed by this Court. In this case too only on peculiar facts of the case, this Court came to the conclusion that the criminal proceedings initiated against the appellant-accused could not be pursued. Those peculiar facts have been noticed in paras 14, 17, 18 and 19 of the decision. The contention of the accused based on those peculiar facts has been noticed in para 15 and that of the respondent that CBI was entitled to proceed on the basis of the material available and the mere allegations made by the accused cannot take the place of proof and that had to be gone into and established in the final hearing, has been noticed in para 16. After noticing those contentions and the decision in the case of State of Haryana v. Bhajan Lal [1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426] laying down the guidelines relating to the exercise of extraordinary power under Article 226 or the inherent power under Section 482 of the Code for quashing an FIR or a complaint, this Court, on the peculiar facts, came to the conclusion that the case of the appellant could be brought under more than one head given in Bhajan Lal case [1992 Supp (1) SCC 335 :

23. As a result of the aforesaid discussion, in our view, clearly the law is that at the time of framing charge or taking cognizance the accused has no right to produce any material. Satish Mehra case [(1996) 9 SCC 766 : 1996 SCC (Cri) 1104] holding that the trial court has powers to consider even materials which the accused may produce at the stage of Section 227 of the Code has not been correctly decided.

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24. On behalf of the accused a contention about production of documents relying upon Section 91 of the Code has also been made. Section 91 of the Code reads as under:

25. Any document or other thing envisaged under the aforesaid provision can be ordered to be produced on finding that the same is "necessary or desirable for the purpose of investigation, inquiry, trial or other proceedings under the Code". The first and foremost requirement of the section is about the document being necessary or desirable. The necessity or

NC: 2024:KHC:21406 CRL.RP No. 1539 of 2023 desirability would have to be seen with reference to the stage when a prayer is made for the production. If any document is necessary or desirable for the defence of the accused, the question of invoking Section 91 at the initial stage of framing of a charge would not arise since defence of the accused is not relevant at that stage.

When the section refers to investigation, inquiry, trial or other proceedings, it is to be borne in mind that under the section a police officer may move the court for summoning and production of a document as may be necessary at any of the stages mentioned in the section.

Insofar as the accused is concerned, his entitlement to seek order under Section 91 would ordinarily not come till the stage of defence. 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

NC: 2024:KHC:21406 CRL.RP No. 1539 of 2023 summons for production of document can be issued by court and under a written order an officer in charge of a 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. Section 91 presupposes that when the document is not produced process may be initiated to compel production thereof.

21. Learned Trial Judge has also bestowed his attention on to the latest judgment of this Court in the case of Suresh and Others v. State of Karnataka through Banahatti Police Station, reported in 2022 (2) Kar.L.J 526.

22. On applying the principles of law enunciated in the aforesaid judgments to the case on hand, material on record prima-facie establish the involvement of the accused No.4 in murder of Girish.

23. Expressing any other opinion by this Court at this stage would definitely affect the rights of the parties during the trial one way or the other.

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24. Thus, on perusal of the material on record, this Court is of the considered opinion that there are sufficient materials to frame the charge against the accused and the accused has to stand to the trial.

Accordingly, following ORDER Admission is declined Revision petition is dismissed.

JUDGE MR List No.: 1 Sl No.: 55