STATE OF J&K Vs. GEETA RAINA
LAWS(J&K)-1993-12-7
HIGH COURT OF JAMMU AND KASHMIR
Decided on December 24,1993

STATE OF JANDK Appellant
VERSUS
Geeta Raina Respondents

JUDGEMENT

- (1.)WHAT is required to be considered by a magistrate while framing a charge against an accused or for that matter, discharging him? Is it only the documents referred to in the police report under Sec. 173 Cr. P.C. or something more? Can a document summoned by the Court at the instance of the accused, in exercise of powers under Sec. 94 Cr.P.C. be considered? These are the questions which have cropped up in this revision petition filed by the State to assail the order of the learned Special Judge, Anti Corruption, Jammu, dt. 15.12.1991 discharging the accused under Sec. 5 (2) of the Prevention of corruption Act, 2006 (hereafter referred to as the PC Act).
(2.)THE facts reveal that a police report was presented against the respondents under Sec. 5 (2) of the P.C. Act. They filed an application before the trial court for summoning the record of the District Judge, Vigilance, Jammu, to show that an identical charge had been dropped against respondent NO.2 and also for summoning of the property statements of respondent No. 1 from the office of the Chief Medical Officer, Jammu, to show that the house stood in her name before the complaint was lodged. This application was allowed vide order dated 29.8.1992 and the trial court relied upon both the documents for the purposes of framing the charges and ultimately discharged and accused on consideration of the total record before it. The petitioners case is that the court below could not have considered the documents, summoned at the instance of the accused, for discharging the accused.
(3.)MR . Goel appearing for the petitioner argued that the trial court transgressed its limits by doing so and entertained a probable defence of the accused which it could not do while framing charge. He sought support from AIR 1977 SC 2018 to high light the considerations which a magistrate is required to take into regard for framing a charge and submitted that he could consider only those documents referred to in the police report under Sec. 173 and nothing more.
Mr. Goni, representing respondents, on the other hand, contended that the magistrate had to frame charge after providing the accused "an opportunity of being heard under Sub -secs. (2) and (3) of Sec. 251 -A Cr.P.C. which expression should be so interpreted as to take within its fold all such documents brought before the court at the instance of the accused in exercise of powers under Sec.94 or otherwise. Any other view, he submitted, would render the expression " opportunity to be provided to the accused by the Court at charge stage", meaningless and illusory.



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