The High Court at Patna rejected a petition for quashing an order refusing discharge under Section 239 CrPC. The court held that the trial court is not required to consider material filed by the accused at the framing of charge stage and that the defence must be raised during the trial.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.29981 of 2012
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.... Petitioner Versus 1. The State Of Bihar .... Opposite Party ====================================================== CORAM: HONOURABLE MR. JUSTICE GOPAL PRASAD ORAL ORDER
Heard the learned counsel for the petitioner and the State.
2 30-04-2013
This is a petition for quashing the order, dated 01.06.2012, passed by Sri Anand Kumar Singh, Judicial Magistrate, 1st Class, Ara, in G.R. No. 994 of 2010/Tr. No. 5221 of 2010/Udwantnagar P.S. Case No. 62 of 2010, by which the application, filed by the petitioner under Section 239 of the Criminal Procedure Code, has been rejected.
The prosecution case as alleged is that the informant, Birendra Kumar Singh, was returning, then, five persons, including this petitioner, Kavi Tiway, snatched Rs.5,000/- from his pocket, gold ring, worth Rs.2,500/-, and some Government’s papers.
The police, after investigation, submitted the charge sheet and the cognizance has been taken against the petitioner.
The learned counsel for the petitioner, however, submits that the petitioner has moved the Hon’ble Court in Cr. Misc. No. 23940 of 2011 against the order taking cognizance, but, the said case, after some arguments, was dismissed as withdrawn by order, dated 18.01.2012, with liberty to raise the issue at appropriate stage.
The learned counsel for the petitioner, however,
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contends after the withdrawal of the petition, the petitioner filed a petition under Section 239 of the Criminal Procedure Code for discharge along with various documents showing his false implication and ill motive for his prosecution. It was asserted that the petitioner has been falsely implicated in this case by the informant as the wife of the petitioner was a candidate for appointment as Panchayat Teacher, she had the highest number of marks, but, she was not appointed and the persons having lesser marks have been appointed. Hence, the petitioner sought information under the Right to Information Act, but, information was not provided, then, he pursued the mater before the appellate authority and there is direction to make available the information so the informant being aggrieved has lodged false case.
The petitioner also approached the Human Rights Commission, which asked for enquiry and, thereafter, the Superintendent of Police, after investigation, gave a report and the case instituted bearing Udwantnagar P.S. Case No. 62 of 2010 and even show cause issued to the investigating officer and it has been submitted that he had attached all the documents along with the petition under Section 239 of the Criminal Procedure Code, but, though the petition under Section 239 of the Criminal Procedure Code has been disposed off, the documents filed by the petitioner has not been considered and discussed by the trial Court. The learned counsel for the petitioner submits the petitioner filed all the documents at the time of hearing of discharge, but, the same was not considered while rejecting the prayer of the petitioner under Section 239 of the Criminal Procedure Code.
The learned counsel for the State, however, contends that the Magistrate is not required to look into the documents filed
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by the accused at the stage of framing of the charge and the Magistrate is required to look into the paper produced by the investigating officer.
Hence, the question for consideration whether the trial Court at the time of framing of charge considered the material, filed by the accused. However, the same question arise for consideration in decision reported in (2005)1 S.C.C., 568 State of Orissa Vrs. Debendra Nath Padhi .
The argument advanced, in above mentioend decision, was that to deprive the accused to such discharge at the initial stage by filing unimpeachable and unassailable material of sterling quality would be illegal, violative of Article 21 of the Constitution since that would result in the accused having to face the trial for a long number of years despite the fact that he is liable to be discharged if granted an opportunity to produce the material and on perusal thereof by the Court and any interpretation that Court can not consider the material filed by accused at the stage of framing of framing charge run the risk of the provision under Sections 227 and 239 of the Criminal Procedure Code being declared ultra vires by Articles 14 and 21 of the Constitution as it would compel the accused to face trial despite being in a position to produce unimpeachable and unassailable material to show his innocence at the stage of framing of charge.
The Hon’ble Apex Court rejected the submission and held it is not acceptable as it amounts to permitting to conduct a mini trial at the stage and Section 91 of the Criminal Procedure Code held that accused has no right to produce document in his possession to prove his defence at the stage of framing of charge. It held that at the stage of framing chare or taking cognizance the
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accused has no right to produce any material. The right is granted only at the stage of trial as it is well settled that defence can not be put forth at the stage of framing of charge and permitting the accused to adduce evidence at the stage of framing charge is against criminal jurisprudence.
Hence, having regard to the fact I do not feel it fit to interfere with the order, impugned.
This petition is rejected .
However, the defence of the petitioner can be considered only at the stage of trial.
(Gopal Prasad, J)
SA/-
3 issues framed by the court
Whether a trial court at the stage of framing charge must consider material filed by the accused regarding false implication during cognizance proceedings.
Whether Section 239 of the Criminal Procedure Code allows an accused to produce unimpeachable material at the stage of framing charge to prove innocence.
Whether the accused has the right to produce evidence at the stage of framing charge under Article 21 of the Constitution.
Colour shows how this judgement treated each authority
State of Orissa Vrs. Debendra Nath PadhiDistinguished¶19
(2005)1 S.C.C., 568 State of Orissa Vrs. Debendra Nath Padhi · Who else cites this
3 provisions across 2 enactments
Kavi Tiwary
The State Of Bihar
Gopal Prasad
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
