RAJESH BINDAL J. - (1.) The challenge in the present petition is to the order dated 28.2.2006 passed by learned Judicial Magistrate Ist Class, Ludhiana whereby the application filed by the petitioner accused under Section 294 Cr. P.C. for direction to the prosecution for admission and denial of the documents detailed in the application before hearing arguments on charge was dismissed. Heard learned counsel for the State.
(2.) BRIEFLY , the facts are that the petitioners are accused in FIR No. 50 dated May 21, 2003 registered at Police Station Dakha, District Ludhiana under Sections 379/427/506 IPC. The application under Section 294 Cr.P.C. was filed after the presentation of the challan with the allegations that the documents, the admission and denial of which was sought, are relevant for the purpose of consideration of the case for charge as the investigating agency-prosecution had failed to take the same into consideration. Along with the application sale deed, the order passed by the court and the pleadings therein were annexed. The Court did not find any merit in the contentions raised by learned counsel for the petitioners and vide impugned order dated February 28, 2006 dismissed the same with the following observations :- "I have given thoughtful consideration to the respective arguments. In a criminal case, the prosecution has to prove its own case and the onus is upon the prosecution to prove the guilt of the accused. The accused can take their pleas in defence evidence. The truthfulness, sufficiency and the acceptability of the material on the file, can be done only at the stage of the trial. Before framing of the charge, the Court is not required to marshal material and not meticulously examine the material available on record as to whether there is sufficient material against the accused which would ultimately result in conviction. It is well settled law that at the time of framing of the charge, the defence of the accused cannot be putforth. Certainly if the contention of the applicant-accused is accepted it would lead to mini trial at the state of framing of the charge. Applying these consideration and keeping in view the facts and circumstances explained above, the contentions put for the by learned counsel for applicant-accused are not sustainable. Thus, without commenting upon the merits of the case, present application moved by the applicant accused is dismissed." 3. The issue is as to whether an accused is to be heard or a document produced by him is to be considered at the time of framing of charge has been considered by Hon'ble the Supreme Court in State of Orissa v. Debendra Nath Padhi, 2003(2) RCR(Criminal) 116 : 2004(1) Apex Criminal 36 (SC), Paras Nos. 16, 18, 23 and 25 thereof are extracted below : "16. All the decisions, when they hold that there can only be limited evaluation of materials and documents on record and sifting of evidence to prima facie find out whether sufficient ground exists or not for the purpose of proceeding further with the trial, have so held with reference to materials and documents produced by the prosecution and not the accused. The decisions proceed on the basis of settled legal position that the material as produced by the prosecution alone is to be considered and not the one produced by the accused. The latter aspect relating to the accused though has not been specifically stated, yet it is implicit in the decisions. It seems to have not been specifically so stated as it was taken to be well settled proposition. This aspect, however, has been adverted to in State Anti- Corruption Bureau, Hyderabad and another v. P. Suryaprakasam, [1999 SCC (Crl.) 373] where considering the scope of Sections 239 and 240 of the Code it was held that at the time of framing of charge, what the trial court is required to, and can consider are only the police report referred to under Section 173 of the Code and the documents sent with it. The only right the accused has at that stage is of being heard and nothing beyond that (emphasis supplied). The judgment of the High Court quashing the proceedings by looking into the documents filed by the accused in support of his claim that no case was made out against him even before the trial had commenced was reversed by this Court. It may be noticed here that learned counsel for the parties addressed the arguments on the basis that the principles applicable would be same whether the case be under Sections 227 and 228 or under Sections 239 and 240 of the Code. 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 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' cannot mean opportunity to file material to be granted to the accused and thereby changing the settled law. At the stage of framing of charge hearing the submissions of the accused has to be confined to the material produced by the police. 23. As a result of 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's case holding that the trial court has powers to consider even materials which accused may produce at the stage of Section 227 of the Code has not been correctly decided. 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 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. In so far 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 summons for production of document can be issued by Court and under a written order an officer in charge of 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." (Emphasis supplied) 4. From a bare perusal of the judgment referred to above, it is clear that the expression hearing the submission of the accused as provided for under Section 227 Cr.P.C. cannot mean opportunity to file material be granted to the accused. At the stage of framing of charge, hearing the submissions of the accused has to be confined to the material produced by the police. While laying down the law on this issue Hon'ble the Supreme Court held that the view expressed in Satish Mehra v. Delhi Administration and another, 1996(3) RCR(Criminal) 410 : (1996)9 SCC 766 was not the correct enunciation of law. 5. For the reasons mentioned above, I do not find that any illegailty has been committed by the court below while dismissing the application filed by the petitioners. Accordingly, the petition is dismissed. Petition dismissed.;