Rameshwar Das v. State Of Chhattisgarh

HIGH COURT OF CHHATTISGARH, BILASPUR Cr.M.P. No. 1296 of 2017 Rameshwar Das S/o Late Anteshwar Das, Aged About 47 Years Retired Indian Army, R/o Village Mundgaon, Post Tumadibod, District Rajnandgaon Chhattisgarh. --- Petitioner

Versus

State of Chhattisgarh through the District Magistrate, Rajnandgaon, District Rajnandgaron Chhattisgarh., Chhattisgarh --- Respondent For the applicant :

Mr. Shikar Sharma Advocate.

For the Respondent :

Mr. Adhiraj Surana, Advocate Hon'ble Shri Justice Goutam Bhaduri Order on Board 24.01.2018

1. The instant petition is against the order dated 23.06.2017 passed by the First Additional Sessions judge, Rajnandgaon dismissing the revision and affirming the order of the JMFC dated 23.11.2016 whereby the prayer to discharge the petitioner was dismissed.

2. Learned counsel for the applicant submits that the complainant in this case is wife of the petitioner and during the course of trial the charges have been framed only on the basis of photocopy of the document and the originals were not before this court and when the application for objection was made, the court itself called for the original thereby the act of the prosecution and the court cannot be supported and the applicant is liable to be discharged as no offence can be made out on the basis of photocopies of the documents.

3. Perused the copy of complaint wherein she has categorically made the submission that by putting a forged signature, the

petitioner has obtained loan from the co-operative society and thereafter has also withdrawn the amount by using the land documents which were in the name of complainant. The allegations further show that the forged signatures were made in the Bank account and he obtained the Cheque, put it in the joint account and thereafter has withdrawn the same.

4.

A perusal of the order further shows that on 08.04.2016 the original documents were placed before the Court though the charges were framed on the basis of photocopies of the documents placed before the Court.

5.

The Supreme Court in a case law reported in AIR 2013 SC 52 - Shoraj Singh Ahlawat Vs. State of U.P has observed that the Court trying the case can direct discharge only for the reasons to be recorded by it and only if it considers that the charges against the accused to be groundless. Section 240 of Cr.P.C. provides for framing of a charge which reads as under.

"240. Framing of charge.- (1) If, upon such consideration, examination, if any, and hearing, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try and which, in his opinion, could be adequately punished by him, he shall frame in writing a charge against the accused." 6.

Reading of Section 240 shows that if, upon consideration of the police report and the documents sent therewith and making such examination, if any, of the accused as the Magistrate thinks necessary or the Magistrate is of the opinion that there is ground for presuming that the accused

has committed an offence triable under Chapter XIX, which such Magistrate is competent to try and which can be adequately punished by him. The ambit of section 239 Cr.P.C., and the approach to be adopted by the Court while exercising the powers vested in it under the said provision fell for consideration of this Court in Onkar Nath Mishra Vs. state (NCT of Delhi) (2008) 2 SCC 561 : (AIR 2008 SC (Supp) 204 : 2008 AIR SCW 96).

7.

Further the Supreme Court in a case law reported in M/s. Zandu Pharmaceutical Works Ltd. And others v. Md. Sharaful Haque and others (AIR 2005 SC 9), held thus :- "8. Exercise of power under Section 482 of the Code in a case of this nature is the exception and not the rule. The Section does not confer any new powers on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction.

No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the section which merely recognizes and preserves inherent powers of the High Courts.

sine quo res ipsae esse non potest" (when the law gives a person anything it gives him that without which it cannot exist). While exercising powers under the section, the court does not function as a court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent abuse.

It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look in to the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto." 8.

The scope of interference and exercise of jurisdiction under Section 397 of Cr.P.C. was again reiterated by their Lordship in case of State of Rajasthan Vs. Fatehkaran Mehdu, reported in AIR 2017 SC 796. It is stated that at the stage of framing of charge, the Court is concerned not with the proof of the allegation rather it has to focus on the material and form an opinion whether there is strong suspicion that the accused has committed an offence, which if put to trial, could prove his guilt. The framing of charge is not a stage, at which stage final test of guilt is to be applied.

9. Applying the aforesaid principle, at this stage, the

admissibility of the document cannot be denied especially when the order sheet records that the original documents have been subsequently placed before the Court. The petitioner shall get every right to rebut those documents and challenge the authenticity of the same. Only on technical grounds the petitioner cannot be discharged. Consequently I am not inclined to allow this petition. Accordingly, it is rejected.

Sd/- GOUTAM BHADURI JUDGE R a o