Decided on November 12,1986

CHAMAN LAL Appellant


A.S.Anand, C. J. - (1.) A short, but meaningful question involved in this revision petition is as to whether a charge under section 201 R.P.C. can be framed against an accused after he is discharged of the substantive offence and the court framing the charge does not record that it had found any prima facie case that the substantive offence had been committed either by the accused or by any other known or unknown accused.
(2.) In the present case a-complaint was filed against the petitioner by the respondent alleging the commission of an offence by him under section 429 R.P.C. for causing the death of a cow belonging to the complainant. Learned Chief Judicial Magistrate, Kathua, after recording some preliminary evidence and perusing the material on the record, including the complaint, found that no prima facie case had been made out against the accused for the commission of an offence under section 429 R.P.C. The Court further found that the material on the record did hot show that any offence qua cow in question had been committed either by the accused or by any other person. Accordingly no charge under section 429 R.P.C. was framed against the accused. The trial Court, however, found that there was a prima facie evidence against the accused justifying the framing of a charge for an offence under section 201 R.P.C. principally for the reason that the material on the record revealed that the petitioner had got the skin of the dead cow lying in his field, peeled off knowing fully well that the cow belonged to the complainant and that by so doing the accused petitioner bad destroyed a piece of evidence rendering himself liable to be tried for an offence under section 201 R.P.C. A charge under section 201 R.P.C. was accordingly framed against the accused petitioner against which a revision petition was filed by him before the learned Sessions Judge which failed. He has now filed this revision petition calling in question the framing of the charge under section 201 RP.C.
(3.) Mr. L.K. Sharma, learned counsel for the petitioner submits that the bar created by sub-section (4-a) of section 435 Cr. P.C. is not attracted in the facts of the present case because the challenge to the order for framing charge against the petitioner is based upon a plea which is independent of the main controversy and does not involve any appreciation of the evidence and if the plea is accepted, It would conclude the proceedings against the petitioner. In support of his submission he has relied upon answer No. II to question No.2 framed by the Division Bench of this court in S.K. Mahajan v. Municipality1. Learned counsel in the alternative submitted that even otherwise without adverting to the evidence in the case the petitioner is entitled to show that the continuation of the proceedings in the instant case is an abuse of -the process of the court and relying upon certain observations of the Division Bench in S.K. Mahajans case (supra) urged that the proceedings against the petitioner deserved to be quashed. I shall first take up the question regarding the maintainability of the present petition which is a composite petition under section 439 and section 561-A Cr. P.C.;

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