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Whether the Court can look into the defence material or whether the record can be summoned at the instance of the defence at the stage of framing of charge?

Singh Lawyers for the Complainant

Facts: An FIR was registered on the statement made by the victim of a rape case. Police had filed the challan. During the trial an application was filed by the accused  seeking to summon the attendance register and the CCTV footage from State Bank of India, Bathinda at the stage of framing of charge in order to prove her defence of alibi[1]. The claim of the accused was that she had been falsely implicated and she was not involved and she was on duty in the bank on the said date.

The Trial Court rejected the prayer of summoning the CCTV footage, relying upon the judgment in Debendra Nath Padhi 2005(1) RCR (Crl.) 297. However, it allowed the accused to place the attendance register on the record.

The issue which was to be examined by the Hon’ble High Court is:

  • Whether the Court can look into the defence material or whether the record can be summoned at the instance of the defence at the stage of framing of charge?

The counsel for the petitioner/accused vehemently urged that there was no absolute bar to consider the documents produced by the accused at the stage of framing of charge and the Apex Court had held that the Court was justified to look into the matter produced by the defence if the material establishes that the prosecution story is absurd and concocted. The counsel submitted that the documents sought to be summoned by them would prove that the petitioner-accused was innocent. It was urged that the Court can exercise the power under Section 91 Cr.P.C. when it finds it necessary and desirable.

On the other hand, the submission of the State as well as the complainant is that there can be no appreciation of evidence at the stage of framing of charge and charge can be framed on the basis of strong suspicion and the accused have no right to produce any material or ask the Court to summon any record as it would amount to a mini trial.

Observations: The Apex Court in State of State of Orissa Vs. Debendra Nath Padhi 2005(1) RCR (Criminal) 297 had overruled the earlier judgment rendered in Satish Mehra  Vs. Delhi Administration 1996(3) RCR Criminal 410 (SC). The three Judges Bench while examining the provisions of Criminal Procedure Code also referred to     the     judgment     rendered     in     Superintendent   and Remembrancer of  Legal Affairs, West Bengal  Vs. Anil Kumar Bhunja and others (1979)4 SCC 274, wherein it was  held that the Magistrate at the stage of framing the charge had to see whether the facts alleged and sought to be proved disclosed an offence prima facie on general consideration  of  the  material placed           before  him by the Investigating Officer. It  was ultimately held as under:-

“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.”

With respect to the contention as to whether the documents could be summoned under Section 91 Cr.P.C., it was held:-

“28. We are of the view that jurisdiction under Section 91 of the    Code when  invoked by accused, the necessity and desirability would have to be seen by the Court in the context of  the purpose– investigation, inquiry, trial or other proceedings under the Code. It would also have to be borne in mind  that  law  does not permit  a  roving or  fishing inquiry.”

The petitioner-accused seeks summoning of the attendance register of a bank where she was working. The authenticity of the document would have to be proved at the trial. So far as the CCTV footage is concerned, it is not a per se admissible document nor is a material which can be examined without the certificate as required under Section 65-A of the Information Technology Act. The Court cannot hold a mini trial at this stage. The three Judges Bench in Depender Nath Padhi’s case in 2005 had held that the accused have no right to produce any document. It cannot even be said that this is a very rare case where the Court was justified in allowing the defence to produce the attendance register.

The trial Court had partly allowed the application and had permitted the accused to place on record the attendance register which could not have been done, therefore, the impugned order of allowing the accused to place on record the attendance register is set aside.


To download the full judgement click here

[1] An alibi is a form of defence used in criminal procedure wherein the accused attempts to prove that he or she was at some other place at the time the alleged offence was committed.

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