Angusamy And 10 Others v. Kaleeswaran Ambalam And Another

This petition coming on for hearing on this day upon perusing the petition, and the judgment, of the lower Courts, and the record in the case, and upon hearing the arguments of Mr. A.A Selvam, advocate for the petitioners and of Mr. M. Karpagavinayagam advocate for the 1st Respondent, and of Mr. N. Dinakar Govt. Advocate (Crl Side) on behalf of the State, the Court made the following Order.

This revision is directed against the order of the learned Sessions Judge, Ramanathapuram Division at Madurai in Crl. Revision Petition No. 19 of 1983, which was preferred against the order made by the learned Judicial Second Class Magistrate, Sivaganga, in C.C No. 117 of 1981 on his file.

2. The brief facts which led to the filing of this revision are as follows: On a complaint given by the first respondent in this revision alleging that the revision petitioners committed theft of the standing crops raised in the field bearing S. No. 175/4 measuring 22 cents, a case was registered in Crime No. 43 of 1981 of Kalayarkoil Police Station. The second respondent forwarded the final report to the Magistrate as contemplated under Section 173(2) of the Code of Criminal Procedure, hereinafter referred to as the Code', on completion of investigation. The learned Magistrate, upon considering the police report and the documents sent under Section 173 of the Code and also some documents filed by the accused — revision petitioners during their examination and after affording the prosecution and the accused an opportunity of being heard, discharged the accused-revision petitioners under Section 239 of the Code, on the ground that the charge levelled against the revision petitioners was groundless. Challenging the said order of discharge, the first respondent Page: HC190preferred a revision (Crl. R.P No. 19 of 1983) before the learned Sessions Judge, Ramanathapuram, who set aside the order of discharge holding that there was no scope for the Magistrate to consider the documents filed by the accused — revision petitioners at the stage of the examination of the accussed under Section 239 of the Code and directed the Magistrate to frame the charge if he is of opinion on a consideration of the documents and examination of the accused that there is ground for presuming that the accused have committed an offence and decide the case in accordance with law. Aggrieved against the said order of the learned Sessions Judge, this revision has been preferred by the accused.

3. Mr A.A Selvam, learned Counsel for the revision petitioners, has strenuously contended that the order of the learned Sessions Judge is based on an error of law and that he has failed to note that under Section 239 of the Code, the Magistrate has to consider, before resorting to Section 240 of the Code, the Police report and the documents sent with it under Section 173 of the Code and then make such examination, if any, of the accused as he thinks necessary and hear the prosecution and the accused after affording an opportunity of being heard, and that if the Magistrate, after such consideration of the documents and the examination of the accused and the hearing of the parties is of opinion that the charge is groundless, he shall discharge the accused for reasons to be recorded. Accosding to him, the examination of the accused and the hearing of the accused would be rendered puerile if such a course does not include the examination and consideration of the documents produced by the accused in support of the oral representation made by him, for a dischorge; a fortiori in a case of this nature where in a bonafide claim of right over the disputed property is made; In support of his submission, he cited certain decisions.

4. Countering this argument, Mr. Karpagavinayagam stated that the documents produced by the accused before the Magistrate resorting to Section 240 of the Code ought not to be considered at the stage of the proceedings under Section 239 of the Code. He states that the real test for determining whether the charge could be considered groundless under Section 239 is whether the materials produced by the prosecution are such that, even if unrebutted, would not make out any case whatsoever against the accused. Several decisions were cited by both the parties in support of their respective submissions.

5. Section 239 of the Code corresponds to sub-Section (2) of Section 251-A of the Old Code, which provision read thus:

“If, upon consideration of all the documents referred to in section 173 and making such examination, if any of the accused as the Magistrate thinks necessary and after giving prosecution and the accused on opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he snail discharge him.”

6. What the Magistrate is required to do under section 239 is:

(1) to consider all the documents referred to in Section 173;

(2) to examine the accused if it is considered necessary by the Magistrate; and

(3) to give the prosecution and the accused an opportunity of being heard.

After all this being done, if the Magistrate considers the charge against the accused groundless, he shall discharge the accused for reasons to be recorded. What is urged by Mr. A.A Selvam is that the accused has got a vested right even at the stage of Section 239 to produce documents in support of his case that the charge levelled against him is groundless and the Magistrate should refer to the documents filed by the accused while considering whether the charge against him is groundless or not. If the Magistrate fails to advert to the documents produced by the accused, it would indicate that the accused was not given a sufficient opportunity of being heard as contemplated under Section 239 of the Code. Coming to the case on hand, he has submitted that the petitioner-accused have produced certain documents (showing that the first petitioner-accused has been cultivating the land indispute even from 1956), which documents have been rightly adverted to by the learned Magistrate along with the other materials placed by the prosecution in holding the charge groundless, but the order of the Sessions Page: HC191Judge on the reasoning that there is no scope for consideration of the documents produced by the accused at the stage of Section 239 is unsustainable in law. In support of his submission he relied upon the following two decisions, viz., Thirthraj Upendra Joshi… v. The State Of Karnataka…. (1983 Crl.L.J 318) and Vinodkumar v. State of Haryana (1987 Crl. L.J 1335). In Thirtharaj Upendra Joshi's case (1983 Crl.L.J 318) the accused therein filed a list of documents in support of his defence and addressed the Court that he should be discharged as the matter involved in that case was one of civil nature, but the Magistrate, without advertising to any of the documents filed by the accused, rejected the prayer and directed that a charge be framed. As against the order of the Magistrate the accused preferred a petition before the Karnataka High Court questioning the legality and correctness of the said order. In that context a learned Single Judge of the Karnataka High Court, while allowing the petition filed by the accused, made the following observations:

“It was incumbent upon him to have adverted to those documents as he was expected to hear both the parties in respect of the framing of the charge. The fact that he has not adverted to the documents filed by the accused clearly indicates that the accused was not given sufficient opportunity that he is entitled to under Section 239 Cr. P.C without expressing any opinion with regard to the document produced by the accused, I am of opinion that this is a fit case wherein this Court should interfere with the impugned order.”

7. In the latter case, Vinodkumar v. State of Haryana (1987 Crl. L.J 1335), the accused wanted to place on record certain documents for being considered during the proceedings under Section 239 of the Code; but the Magistrate rejected the prayer of the accused, which gave rise to the proceedings before the High Court. The learned single Judge of the Punjab and Haryana High Court set aside the order of the Magistrate with some directions. While doing so, the court held as follows:

“It is ex facie patent that the prosecution while presenting the police report can support the same with documents and they are required to be considered at the time of the framing of charge. It does not hold to any reason that the accused cannot at that stage produce his documents. This seems to be the reason for such a provision under S. 294 of the Code subject of course to the accused's documents being genuine, and at that stage the documents sought to be introduced by the accused are required to be included in a list and the prosecutor can be called upon to admit or deny the genuineness of each such document. The right is not merely conferred on the accused, but a corresponding right is also vested in the prosecution. Even the documents submitted along with the report' under Sec. 173 of the Code relied upon by the prosecution can be put to the accused and he can be asked to admit or deny the genuineness of each such document. This does away with the formal necessity of proving the genuineness of the document and such document can thereafter be read in evidence without proving of the signature of the person to whom it purports to be signed. The joint effect of the aforesaid two provisions is to put at par the prosecution and the accused so far as the documentary evidence is concerned. One cannot be allowed to score over another by taking shelter in procedural wrangles and tactical gimmicks. Thus, I am of the considered view that the learned Magistrate in suggesting to postpone admission of these documents at this stage on the ground that the complainant was not before him, tended to thwart the rights of the accused to have his documents admitted at that stage so as to be considered while considering the question of charge. Thus, in the interest of justice, it becomes essential to quash his impugned order and regulate the trial by suitable directions.”

8. The further argument of Mr. Selvam is that the consideration of any document produced by the accused at the stage of proceedings under Section 239 not only satisfies the requirements of that section, contemplating an opportunity of being heard given to the prosecution as well as to the accused, but also to avoid abuse of the process of law, lest the use of the said expression “after giving the prosecution and the accused an opportunity of being heard”, would become an empty formality. According to him, Section 235 will have some bearing on the interpretation of this expression occurring in Section 239. To Page: HC192strengthen this argument, he referred to certain decisions. The first decision is Santasingh v. State of Punjab (1976 L.W (Crl.) Journal Section 33), wherein the Supreme Court has stated thus:

“The hearing on the question of sentence would be rendered devoid of all meaning and content and it would become an idle formality, if it were confined merely to hearing oral submissions without any opportunity being given to the parties and particularly to the accused, to produce material in regard to various factors bearing on the question of sentence and, if necessary, to lead evidence for the purpose of placing such material before the Court.”

9. The next decision cited by the learned Counsel is Dagdu v. State of Maharashtra (1977 M.L.J Crl. 462), wherein the Supreme Court, while dealing with the scope of Section 235 of the Code, stated that the opportunity to be given to the accused has to be real and effective, which means that the accused must be permitted to adduce before the Court all the data which he desires to adduce on the question of sentence and the Court may, in appropriate cases, have to adjourn the matter in order to give to the accused sufficient time to produce the necessary data and to make his contentions on the question of sentence.

10. Then reliance was placed on Sirajuddin v. Government of Madras (1966 L.W Crl. 223), in which a Bench of this Court, while considering sub-Section (2) of Section 251-A of the Old Code, relating to the framing of charge stated as follows:

“The evidence Act defines evidence to and include also all documents produced for inspection of Courts. In Ramnarayan Mor v. State of Maharashtra (1964) 5 S.C.R 1064) the documents referred to in S. 173 (4) are considered as part of the evidence mentioned in S. 207-A. As these documents are the matter which a Magistrate has to consider under Sec. 251-A (2) and (3), it would be open to the prosecution and the accused to rely upon or refer to them in support of their respective contentions when they exercise the right of being heard under sub-clauses, (2) and (3) of Sec. 251-A “

11. He would straighaway state that the said decision of this Court was appealed against to the Supreme Court, and the Supreme Court, by its judgment reported in 1971 L.W Crl. 46, though did not endorse the view of this Court with regard to the commencement of the investigation, dismissed the appeal, which dismissal goes to show that the Supreme Court in effect agreed with the view taken by this Court so far as the interpretation of Section 251-A(2) of the old Code is comcerned, which is similar to Section 239 of the Code.

12. Lastly, he drew the attention of this Court to an observation of the Supreme Court in Union of India v. Prafulla Kumar Samal (1979) II S.C.W.R 97), in which the Supreme Court pointed out that the words ‘not sufficient ground for proceening against the accused’ clearly show that the Judge is not a mere post office to frame the charge at the behest of the prosecution, but has to exercise his judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the prosecution.

13. Before adverting to the decisions in Thirthraj Upendra Joshi… v. The State Of Karnataka…. (1983 Crl. L.J 318) and Vinodkumar v. State of Haryana (1987 Crl. L.J 1335), it may be stated that the dictum laid down by the Supreme Court in Santa Singh v. State of Punjab (1976 L.W (Crl.) Jonrnal Section 33) and Dagdu v. State of Maharashtra (1977 MLJ. Crl. 462) cannot be availed of by the revision petitioners in this case because the stage of Section 235 comes after a full trial and after the accused is convicted and at the stage of passing the sentence, whereas under Section 239, the proceeding is not only at the pre-trial stage, but also even before the framing of charge. So, far as Sirajuddin v. Government of Madras (1966 L.W Crl. 223) is concerned, though the Supreme Court in 1971 L.W Crl. 46 did not endorse the view of the High Court with regard to the date of commencement of the investigation, it has not disturbed the observation made by the High Court with regard to the use of the documents referred to in Section 173 at the stage of framing the charge. In that case, the Division Bench of this Court observed:

“Under the amended procedure relating to warrant cases instituted on police report also the documents referred to in Section 173 of the Code are the material on which the accused has to be discharged or charges framed and the accused made to stand on his trial. The examination of the accused by the Magistrate Page: HC193at that stage can only be with reference to the documents. The documents referred to under Section 173 which thus now have positive role in the framing of charges, include the statements and confessions if any recorded under S. 164 and the statements recorded under Sub-S. (3) of S. 161 of all the persons whom the prosecution proposes to examine as its witnessess.”

14. But, what the Division Bench would further state is that it would be open to the prosecution and the accused to rely upon or refer to the documents which the Magistrate has to consider under Section 251-(2) and (3) of the Code in support of their respective contentions. When this finding stands unaltered or modified or not reversed, it has to be presumed that this observation found favour with the Supreme Court. In other words, the observation made by the Division Bench that only such of the documents referred to in Section 173 (4) were to be considered under Section 251-A (2) and (3) and both the prosecution and the accused have to be heard only on those documents stands undisturbed.

15. In Union of India v. Prafulla Kumar Samal (1979 (II) S.C.W.R 97), the Supreme Court observed that the Magistrate is not a mere post-office to frame the charge at the behest of the prosecution. It further held:

“At the stage of Section 227, the Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused. The sufficiency of grounds would take within its fold the nature of the evidence recorded by the police or the documents produced before the court which ex-facie disclose that there are suspicious circumstances against the accused as to frame a charge against him.”

16. Therefore according to this decision, even at the stage of the proceedings under Section 227, the Judge has to consider the nature of the evidence recorded by the police and the documents produced before it. Therefore, in my view, this judgment also cannot be of any assistance to the contentions of the revision petitioner.

17. In this context, it may be noted that the Supreme Court in Century Spinning & Manufacturing Co. Ltd., v. State of Maharashtra (A.I.R 1972 S.C 545—1971 Crl. L.J 329), which decision has been referred to in Thirthraj Upendra Joshi… v. The State Of Karnataka…. (1983 Crl L.J 318), has ruled that,

“The order framing the charges does substantially affect the person's liberty and it cannot be said that the Court must automatically frame the charge merely because the prosecuting authorities by relying on the documents referred to in Section 173, consider it proper to institute the case. The responsibility of framing the charges is that of the Court and it has to judicially consider the question of doing so. Without fully adverting to the material on the record, it must not blindly adopt the decision of the prosecution”.

18. A reading of that ruling reveals that at the time of the framing of the charge, the court should exercise the power judicially, but not blindly. This decision does not spell out that the accused has a right to produce documents in support of his defence even before the stage of framing charges, and the Court should advert to those documents.

19. As I have pointed out earlier the consideration of the documents, the examination of the accused and the hearing of the prosecution and the accused as required under Section 239, are even before the framing of charge under Section 240, At the stage, the section in no way contemplates the examination of any witness, but it only requires that the documents sent with the police report under Section 173 should be considered besides giving an opportunity to the prosecution and the accused of being heard. A reading of section 238 shows that the Magistrate at the commencement of the trial should satisfy himself that he has complied with the provisions of Section 207. From a combined reading of Sections 238 and 239, it would appear that only such documents furnished to the accused under Section 207 of the Code have to be considered. Indisputably, the Section, as stands, does not permit the accused to file documents at that stage; but the petitioners drawing strength from the set of expression “after giving the prosecution and the accused an opportunity of being heard” would contend that the accused should be given an opportunity of even producing his documents in support of his defence.

Page: HC19420. On a careful analysis of Sections 238, 239 and 240 of the Code, I am of the view that Section 239 requires that only the documents referred to in Section 173 of the Code should be considered and that the examination of the accused must necessarily be with regard to the material against him in the documents referred to in Section 173 and the answers given by the accused during such examination explaining those documents should be taken into consideration by the Magistrate while deciding whether the accused should be discharged or not. The expression “opportunity of being heard' would amount only to granting of audience to the accused to present his defence on the facts of the case as borne out from the documents furnished to him under Section 207 of the Code as well as on the question of law, if any.

21. One should not lose sight of the fact that every investigating officer is expected to collect the materials relating to the case in a fair and unbiassed manner and in case the investigating officer himself comes to the conclusion that the allegations made by the complainant do not necessitate forwarding the final report (i.e, the charge sheet), he can refer the case as either mistake of fact or mistake of law etc. If the accused is aggrieved that the investigating agency has not collected the full materials inclusive of those which would support his defence, the accused has got a right to produce the documents during the trial of the case to disprove the charge against him. In case the accused is permitted to file documents at the stage of section 239 of the Code and address arguments that the accusation levelled against him in the teeth of the documents produced by him is groundless, then the Court has to decide the matter without going into the genuineness or otherwise of such documents which course would arise only at the time of taking evidence during trial. In this connection, an argument was advanced by Mr. A. A, Selvan, relying on the observation made in Vinod Kumar's case (1987 Cri. L.J 1335) that the prosecutor can be called upon to admit or deny the genuineness of each such document produced by the accused and thereafter both the parties may be allowed to advance arguments. This observation is based on the provision of Section 294 of the Code, as per which no formal proof of certain documents is necessary. With great respect, I am unable to share with the view taken in Vinod Kumar s case (1987 Crl.L.J 1335), for the reasons, firstly that Section 294 of the Code falls under Chapter XXIII of the Code dealing with recording of “Evidence in Inquiries and Trials”; secondly, that in the absence of any non-obstante clause, we have to follow the procedure laid down under the specific provision of Section 239 of the Code; thirdly, that as per Section 294 (3), such documents, the genuineness of which is not in dispute, can be read in evidence in any inquiry or trial or other proceedings under the Code, but at the stage of Section 239, there is no question of any inquiry or trial or letting in of any evidence; and fourthly, it is not brought to my notice that any form has been prescribed by the State Government for filing the list of documents as contemplated under Subsection (2) of Section 294. Above all, if such a procedure is to be adopted, as contended by the learned Counsel, then at the stage of Section 239, i.e, even before the framing of the charge under Section 240, every Court has to conduct practically an inquiry which itself will become an abuse of process of law and criminal waste of time, besides such a procedure being unsupported by the tenor of Section 239 of the Code.

22. Mr. Karpagavinayagam cited a number of decisions, of which I shall now refer to a few. The first decision relied on by him is Bipat Gope v. State of Bihar (A.I.R 1962 Supreme Court 1195—(1962) Supp. (2) SCR 948. In that case, the Supreme Court, white examining section 207-A, sub-section (6) of the old Code, dealing with ‘Procedure to be adopted in a proceeding instituted upon police report’, ruled that the section can only mean that if there is a prima facie case triable by the Court of Session, the Magistrate must commit the accused to the Court of Session to stand his trial.

23. The next one is the decision in Ramnarayan v. State of Maharastra (A.I.R 1964 Supreme Court 949), where in the majority view was that the opportunity contemplated by Section 207-A (6) of the old Code for the examination of the accused is for his benefit and solely for the purpose of enabling him if he desires to do so to explain the circumstances against him from the oral evidence and also the documents referred to in Section 173 (4), and that Section 207-A(6) does not contemplate such general questioning as it is done under Section 342 of the old Code, but it contemplates examination only for the purpose of explaining any circumstances appearing against the accused.

Page: HC19524. The Supreme Court in Abev Dass v. Gurdial Singh (A.I.R 1971 S.C 834 = 1971 Cri.L.J 691) pointed out that when on allegations made against the accused, a prima facie case is made against him, he could not be discharged under Section 253 (2) of the old Code (which is in pari material to Section 245 (2) of the New Code). See also Subbiah v. Chapalapathi Rao (1971 L.W Cri. 30).

25. In R.W Harcos v. State of West Bengal (1975 Crl. L.J 1256), a Division Bench of the Calcutta High Court, while examining the objects of Sections 227 and 228 of the old Code, which corresponds to Section 216, Sub-sections (1), (2) and (3) of the new Code, dealing with the power of the Court to alter the charge, pointed out as follows:

“Therefore according to Section 228 of the Code, at the time of framing of the charge it is not necessary for the prosecution to establish beyond all reasonable doubt that the accusation which they are bringing against the accused person is bound to be brought home against him. The purpose of Sections 227 and 228 of the Code is to ensure that the Court should be satisfied that the accusation made against the accused person is not frivolous and that there is some material for proceeding against him. The stage prior to the framing of a charge is not expected to be a dress rehearsal of a trial or in other words, the details of all materials which the prosecution will produce or rely on during the stage of the trial, are not expected to be produced or referred to before the learned Judge at the time of the opening of the case for the prosecution.”

26. The Supreme Court, in State Of Bihar v. Ramesh Singh (1977 Cri. L.J 1606—1978 (1) SCR 257), while laying down the test for discharging the accused, observed thus;

“Reading the two provisions (Sections 227 and 228 of the old Code) together in Juxta position as they have got to be, it would be clear that at the beginning and the initial stage of the trial the truth, veracity and effect of the evidence which the Prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defence of the accused. It is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under Section 227 or Section 228 of the Code. At that stage the Court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. The presumption of the guilt of the accused which is to be drawn at the initial stage is not in the sense of the law governing the trial of criminal cases in France where the accused is presumed to be guilty unless the contrary is proved. But it is only for the purpose of deciding prima facie whether the Court should proceed with the trial or not.”

27. In this judgment, their Lordships have referred to the decision of the Supreme Court in Nirmal Jit Singh Hoon v. The State of West Bengal and another ((1973) 2 SCR 66), which Judgment in turn has allowed Chandra Deo Singh v. Prakash Chandra Bose ((1964)3 SCR 629), wherein it was laid down that the test was whether there was sufficient ground for proceeding and not whether there was sufficient ground for conviction.” The Principle laid down in Ramesh Singh's case (1977 Cri. L.J 1606-1978 (1) SCR 257) has been reiterated with approval by the Supreme Court in Superintendent & Remembrancer, Legal Affairs, W.B v. Anil Kumar (1979 Cr. L.J 1390).

28. A Division Bench of the Calcutta High Court in Om Prakash v. State (1983 Crl. L.J 1151), while examining Section 239 of the New Code, has made the following observation:

Page: HC196“The real test for determining whether the charge should be considered groundless under S. 239 Cr.P.C is that where the materials are such that even if unrebutted make out no case whatsoever, the accused should be discharged under S. 239 Cr.P.C”

and added that no other extraneous material could be considered at the stage.

29. A single Judge of the Delhi High Court in Surinder Kumar Yadav & Ors. v. Smt, Suyidya Yadav & Anr. (1986 (3) Crimes 465), while dealing with the scope of Sections 239 and 240 of the present Code expressed his opinion thus:

“The plain reading of sec 239 Cr.P.C, would go to show that whereas this provision talks of the consideration of documents sent by the prosecution along with the police report under Section 173 Cr.P.C, and the police report, it is silent about any documents to be produced by the accused. It simply talks of the examination, if any, of the accused as the Magistrate thinks necessary and also an opportunity to the prosecution as well as the accused of being heard. It is not open to the Magistrate to consider any other document which is not covered by the provisions of Section 207 Cr.P.C as that would widen the scope of the inquiry and necessitate an inquiry about the nature and origin of such documents, which can be done only during the trial, which means after charges have been framed. (Vide Sabarimuthu Ismalias v. Arunaambelam (1969 Kerala L.T, 874).”

The learned Judge farther observed:

“The examination, if any, of the accused under the prorisions of this Section must necessarily be with regard to the material against him in the documents referred to in Section 207 Cr.P.C, and the answers given by him during such examination explaining those documents can, at the most, be the material on which a Magistrate can discharge the accused or frame a charge against him. State v. Sitaram Davaram (A.I.R 1958 M.P 99), K.P Hanumappa & Others… v. State Of Mysore…. (1971) 2 Mys. L.J 499). If documents produced by the accused are also taken into consideration by the Magistrate under Section 239 Crl.P.C, the prosecution would, at that stage, have no opportunity of challenging the correctness or genuineness of the same. The contrary authorities are Thirthraj Upendra Joshi… v. The State Of Karnataka…. (1983 Crl. L.J 318) and Guman Singh v. State of Rajasthan (1977 Cri.L.J (NOC) 239).”

The learned Judge held:

“In view of the plain language pertaining to documents of Section 239 Cr. P.C, the consideration of any other documents including the documents produced by the accused cannot be taken into consideration by the Magistrate while passing the order of discharge and this view stands fortified from the authorities already referred to above and the contrary authorities, with all respect, cannot be relied upon….”

30. The views expressed in the above decisions can be summarised thus: The stage of Section 239 of the Code prior to the framing of the charge under section 240 of the Code, is not expected to be a dress rehearsal of a trial. The Magistrate at that stage is required to consider the police report and the documents sent along with it under Section 173, which are furnished to the accused in compliance with Section 207 of the Code and the explanation given by the accused during his examination and the submission, if any, made by the prosecution and the accused for finding out whether the charge, which means the accusation, levelled against the accused is groundless. At that stage, as rightly pointed out by the learned single Judge of the Delhi High Court in Surinder Kumar Yadav's case (1986(3) Crimes 645), it is not open to the Magistrate to consider any other document, which is not covered by the provisions of Section 207 of the Code, and the examination of the accused, if any, under that provision must necessarily be with regard to the material placed by the prosecution against him and the documents referred to under Section 207 Cr.P.C but the documents produced by the accused are not to be taken into consideration by the Magistrate while applying his mind whether the accusation levelled against the accused is groundless or not. I am fortified in my view by the judgment of the Supreme Court reported in J.P Sharma v. Vinod Kumar Jain (AIR. 1986 SC 833). In that case the Deputy Chief Controller of Imports and Exports filed a complaint under Section 120-B of the Indian Penal Code and Page: HC197Section 5 of the Imports and Exports (Control) Act against the accused persons therein on certain allegations. The Magistrate accepted the complaint and issued summons to the accused persons. Meanwhile there was a supplementary investigation made by the Central Bureau of Investigation (CBI). The accused preferred petitions under Section 482 Crl. P.C for quashing the complaint on the ground that the materials collected by the CBI are relevant and if they were taken into consideration, there was no basis for the complaint. The statement of the accused was opposed by the Government on the ground that the materials collected during the investigation were not relevant and necessary for the complaint launched by the Deputy Chief Controller of Imports & Exports. The Delhi High Court, however, quashed the complaint. As against that order, a criminal appeal was preferred before the Supreme Court. The Supreme Court while examining the legality of the order of the High Court has stated:

“The question at this stage is not whether there was any truth in the allegations made but the question is whether on the basis of the allegations, a cognizable offence or offences had been alleged to have been committed. The facts subsequently found out to prove the truth or otherwise of the allegation is not a ground on the basis of which the complaint can be quashed.”

And then, making reference to the earlier decisions of the Court in Raj Kapoor v. State, (1980) 1 SCC 43: AIR 1980 SC 256 and Pratibha Rani v. Suraj AIR 1985 SC 628, made the following observation:

“The grounds upon which the learned Judge seems to have quashed the complaint in the instant case was (sic) the subsequent report by the CBI which had not yet been proved and considered in the background of the allegations made and secondly that some of the parties alleged to be in the conspiracy were not made parties. These, in our opinion, are no grounds for quashing the criminal proceedings where on prima facie being satisfied the learned Metropolitan Magistrate had taken cognizance. Taking all the allegations in the complaint to be true, without adding or substracting anything, at this stage it cannot be said that no prima facie case for trial had been made out. That is the limit of the power to be exercised by the High Court under Sec. 482 of the Code of Criminal Procedure. The High Court in the instant case has exceeded that jurisdiction.”

31. Ultimately, the Supreme Court allowed the appeal holding as follows;

“We are not concerned with the truth or otherwise of the allegations made in the complaint, that would be investigated at the time of trial. In that view of the matter we are unable to sustain the order under appeal.”

32. I may add, on the principles laid down by the Supreme Court in J.P Sharma's case (AIR 1986 SC 833) cited supra, at the stage of Section 239 Crl.P.C there is no question of adding or substracting anything or considering any extraneous matter other than the documents forwarded to the Court as contemplated under Section 173 Crl.P.C, besides examining the accused and affording an opportunity both to the prosecution and the accused of being heard.

33. For all the discussions made above I hold that there is no illegality in the reasoning of the learned Sessions Judge and as such his order is sustainable. Consequently, this criminal revision is dismissed.