JUDGMENT R.K. Rastogi, J.
1. This is an application under Section 482 Cr.P.C. for quashing the order dated 2.7.2005 passed by Sri O.P. Agrawal, then learned Addl. Session Judge Court No. 2, Etah in Session Trial No. 320 of 2004, State v. Mahesh and Ors., under Section 302/34 I.P.C.
2. The facts relevant for disposal of this application are that on 17.12.2002 at about 9.10 A.M. Sri Naresh Chandra lodged a F.I.R. at police station Kotwali, Etah with these allegations that on 16.12.2002 at about 8 P.M. the accused Mahesh, Seesram Lekhpal, and Bilsan came on a motor cycle, and Seesram and Bilsan after getting down from the motor cycle went inside a P.C.O. and fire at Raju son of the informant from pistols in their hands. Raju received one bullet injury on his body and the other bullet passed away touching his body. Thereafter the accused went away on the motor cycle. Thereafter Naresh Chandra took Raju to the district hospital Etah but as his condition was serious, the doctor advised that he should be immediately taken to Agra. Raju died in the hospital at Agra. Then Naresh Chandra after leaving the dead body in the hospital came back to Etah and lodged the report at the police station Kotwali Etah.
3. On the basis of that report the police registered a case under Section 302 I.P.C. and after completion of the investigation submitted a charge sheet against all the accused persons.
4. The case was committed to the court of Sessions and it was transferred to the court of the Addl. Session Judge Court No. 2 Etah. It may be mentioned that the accused had moved bail applications in the above case. Co-accused Seesram was granted bail by the Session Judge Etah vide his order dated 27.3.2003 and thereafter the accused applicant Mahesh was also granted bail by the Sessions Judge, Etah vide his order dated 24.2.2004. Copies of the bail orders of both these accused persons have been filed as Annexures 6 and 7 to affidavit filed in support of the application under Section 482 Cr.P.C. It appears from perusal of the bail order passed in favour of the applicant Mahesh that he was granted bail on the ground that he was simply driving the motor cycle at the time of the incident and there was no allegation of firing against him. It was further observed that the accused applicant Mahesh had filed record to show that he was on duty in military at the date and time of the incident. Bail was granted to him on these two grounds.
5. The applicant at the stage of framing of charge moved an application in the court of the II Addl. Session Judge, Etah that senior authorities of the military had sent a letter to the Superintendent of Police Etah on 24.4.2003 asserting that Mahesh Kumar Singh was on duty in the military on the date of incident. It was, therefore, prayed that the aforesaid letter should be summoned and if the prosecution so desires it may get that letter verified and then on the basis of that letter the accused should be discharged. This prayer was rejected by the Addl. Session Judge and against that order the accused filed this application under Section 482 Cr.P.C.
6. I have heard learned Counsel for both the parties and have also perused the record.
7. It was contended by the learned Counsel for the applicant that bail was granted to the applicant on the plea of alibi taken by him and so there was no justification for refusal to summon the record regarding alibi of the accused applicant. It is, however, to be seen in this connection that bail was granted to the accused applicant on two grounds. The first ground was that he was not the actual assailant and he was simply driving the motor cycle and the allegation of firing was against Seesram and Bilsan. The second ground was that there was a document regarding his alibi. Now it is to be seen that the considerations for grant of bail are different from those of discharge. The defence theory is to be taken into consideration at the time of disposal of the bail application, but at the time of framing of charge the prosecution evidence is to be considered and at that time the accused has got no opportunity to produce any defence evidence or to summon any evidence for that purpose. The same view has been taken by Hon'ble Supreme Court in the State of Orissa v. Debendra Nath Padhi reported in 2005 (51) ACC 209. In this case the Hon'ble Apex Court allowing the appeal against order of the High Court made following observations in paragraph No. 19 of the judgment:
19. 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 (1996 (35) A.C.C. 704 S.C.) 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.
8. Their Lordships further observed in paragraphs No. 23 and 24 of the judgment as under;
23. In so far as Section 91 is concerned, it was rightly held that the width of the powers of that section was unlimited but there were inbuilt inherent limitations as to the stage or point of time of its exercise, commensurately with the nature of proceedings as also the compulsion of necessity and desirability, to fulfil the task or achieve the object. Before the Trial Court the stage was to find out whether there was sufficient ground for proceeding to the next stage against the accused. The application filed by the accused under Section 91 of the Code for summoning and production of document was dismissed and order was upheld by High Court. But observations were made in para 6 to the effect that if the accused could produce any reliable material even at that stage which might totally affect even the very sustainability of the case, a refusal to look into the material so produced may result in injustice, apart from-averting an exercise in futility at the expense of valuable judicial/public time, these observations are clearly obiter dicta and in any case of no consequence in view of conclusion reached by us hereinbefore. Further, the observations cannot be understood to mean that the accused has a right to produce any document at stage of framing of charge having regard to the clear mandate of Sections 227 and 228 in Chapter 18 and Sections 239 and 240 in Chapter 19.
24. 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 purposeinvestigation, 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.
9. The learned Counsel for the accused applicant, however, referred to para 25 of the judgment of the Apex Court which runs as under:
25. Regarding the arguments of accused having to face the trial despite being in a position to produce material of unimpeachable character of sterling quality, the width of the powers of the High Court under Section 482 of the Code and Article 226 of Constitution of India is unlimited whereunder in the interest of justice, the High Court can make such orders as may be necessary to prevent abuse of the process of any court or otherwise to secure the ends of justice within the parameters laid down in Bhajan Lals case.
10. The contention of the learned Counsel for the applicant was that in view of the aforesaid observation made in para 25 of the judgment the court had jurisdiction to summon the relevant record and it erred by refusing to do so. I do not find any force in this contention. It is to be seen that it has been made clear in paragraphs No. 19, 23 and 24 of the judgment, quoted above, that the accused has got no right to summon any document at the stage of framing of charge. Whatever has been observed in para 25 above is that the High Court can make necessary order against abuse of the process of the court and to secure the ends of justice within the parameters laid down in Bhajan Lal's case (1991 (28) ACC 111 (SC). It is, however, to be seen that the present case is not such a case where aforesaid discretion should be exercised. In the present case, there is direct testimony of the informant and other eye witnesses that they had seen the accused applicant on the spot at the time of incident and so this aspect of the case whether he was present on the spo or not at the time of incident is to be adjudged after recording of the prosecution evidence as well as after production of the evidence in support of his alibi; and it will be premature at this stage to discharge him on the basis of so called evidence of alibi. The accused can summon that evidence at the stage of defence and then that can be considered.
11. In this way, the order passed by the learned Addl. Session Judge does not suffer from any illegality. The application under Section 482 Cr.P.C. has got no force and is liable to dismissed.
12. The application under Section 482 Cr.P.C. is dismissed.