Heard Sri S.K. Misra, learned counsel for the applicant and the learned A.G.A. for the State.
By the present application u/s 482 Cr.P.C., the applicant has sought for quashing of the order dated 7.1.2013 passed A.C.J.M., Court No. 5, Allahabad in Case No. 57 of 2010 whereby the application of the applicant dated 4.3.2010 has been rejected.
Earlier, by order dated 4.2.2013 of this Court, the record of the court below was summoned. Pursuant to the said order, the record of the court below has been made available.
A perusal of the record reveals that in Case No. 57 of 2010, on 22.2.2010, the Judicial Magistrate, Court no. 3, Allahabad framed charges against Aditya Srivastava, Rajiv Srivastava (the applicant), Santosh Kumar and Surendra Singh under Sections 323, 336, 504, 506 and 294 IPC. The order framing charges has been passed on a single sheet of paper, which is signed on the first page by all the accused and initialed by the presiding officer of the court whereas on the back page that is, over leaf, it is signed by the presiding officer of the court. It appears that after the charges were framed, on 4.3.2010 an application was filed by the accused persons stating therein that all the accused persons were present in the court on 22.2.2010 and that because full papers were not available with the accused at that time, they could not present there case and, therefore, they prayed that another opportunity be given to them. It appears that when no order was passed by the court below on the said application, a direction was sought from this court. Thereafter, on 20.12.2012, an application (annexure 7 to the affidavit) was filed by Rajiv Srivastava (the applicant) alone, stating therein that the concerned court, which was presided over by Sri Vikas Kumar, had got signature of the accused persons on a plain paper and framed charges on that plain paper. It was stated that the accused persons were not given opportunity on the question of charge. It was stated in the application that at the back of the paper, on which the charges were framed, there is no signature of any of the accused persons and as signature of an accused was in such a manner that it was overlapping the typed material it becomes clear that the accused were made to sign on a blank paper. In the subsequent application dated 20.12.2012, although, it was stated that there was no compliance of the provisions of Section 207 Cr.P.C., but in paragraphs 5, 12, 13, 14 and 17 of the application reference was made to the statement of the witnesses recorded under section 161 CrPC. In several paragraphs of the application dated 20.12.2012 extensive reference was made to the injury report also. Relying on the statements recorded under section 161 CrPC as well as the injury report, the applicant, in his application dated 20.12.2012, submitted that it was a fit case where he ought to have been discharged.
By the order impugned, the learned Magistrate rejected the application dated 4.3.2010 observing therein that the said application was misconceived, with vague averments, and was filed just to delay the proceedings when, after framing of charges, the matter was proceeding for recording of evidence.
Challenging the order passed by the court below, learned counsel for the applicant submitted that the provisions of Section 207 Cr.P.C. is mandatory and before framing the charges the Magistrate, under Section 238 Cr.P.C., has to satisfy himself that the provisions of Section 207 Cr.P.C. has been duly complied with. It has been submitted that from the record, it does not appear that the provisions of Section 207 Cr.P.C. has been complied with, therefore, the order framing charge is not legally sustainable and as such the application dated 4.3.2010 was entitled to be allowed.
Per contra, the learned A.G.A. submitted that from the record it clearly appears that the accused persons had signed on the order framing charge which signifies that the charges were framed in the presence of the accused persons and that they were not only heard but also explained the charges, which they denied and claimed for trial. It has further been submitted that the order framing charge was duly signed on the first page and as the order was passed on a single sheet of paper, mere absence of signatures on the back page cannot be interpreted so as to suggest that the charges were not read out or explained to the accused or that the order was transcribed on a blank paper containing signatures of the accused, particularly, when it was specifically noted in the order dated 22.2.2010 that the charges were read over and explained to the accused which they denied and claimed for trial. It was submitted that a presumption would be drawn with regards to the regularity of judicial proceedings. It was submitted that in the earlier application dated 4.3.2010, which has been rejected by the order of the court below, there is no mention that there had been no compliance of the provisions of Section 207 Cr.P.C. It was further submitted that the subsequent application, which was filed on 20.12.2012, though claimed non compliance of the provisions of section 207 Cr.P.C. but it was signed only by Rajiv Srivastava, whereas the other co-accused did not sign the said application even though they had signed the order framing charge. It was thus submitted that as the charges were framed against all the accused persons and since all the accused persons have not come forward with a specific case that they were not supplied with the material, as required by Section 207 Cr.P.C., the contention of one co-accused namely, Rajiv Srivastava, who is the applicant before the court, cannot be accepted, particularly, when there was no such statement in the earlier application dated 4.3.2010.
Having considered the rival submissions of learned counsel for the parties as also on perusal of the record, this Court finds that, no doubt, it is not clear from the record of the court below that the learned Magistrate had recorded any satisfaction with regard to the compliance of the provisions of Section 207 Cr.P.C., but the order framing charges reveals that the accused were read out and explained the charges which they denied and claimed for trial. The contention of learned counsel for the applicant that since the applicant had signed only on the first page of the order framing charge, therefore, it should be presumed that signatures were obtained on blank paper, cannot be accepted, particularly, when the order framing charge has been duly signed by the Presiding Officer of the court and the said order is on a single sheet of paper though typed on both sides. There is signature of the Presiding Officer disclosing that the charges have been read over and explained to the accused and the accused denied the charges and claimed for trial, which would raise a presumption that the order was passed in the manner as it purports to be.
Further, the application dated 4.3.2010, which has been rejected by the court below, does not specifically state that the accused were not supplied with the documents as is required by Section 207 Cr.P.C. There is also no statement in the application dated 4.3.2010 that the procedure required by Section 238 Cr.P.C. was not followed. Another notable feature of the case is that in the subsequent application dated 20.12.2012 there is extensive reference to the statements recorded under section 161 CrPC as also to the injury report. How could that be possible without the requisite material being made available to the accused. Even otherwise, non supply of material, required to be supplied under section 207 CrPC, may not ipso facto vitiate the trial, inasmuch as, in such cases, the Court is required to record its satisfaction that prejudice was caused to the accused on account of non supply of the material. In this regard, it would be useful to refer to the observations of the apex court in the case of Naresh Kumar Yadav v. Ravindra Kumar, (2008) 1 SCC 632, where it was observed that: "The documents in terms of Sections 207 and 208 are supplied to make the accused aware of the materials which are sought to be utilised against him. The object is to enable the accused to defend himself properly. The idea behind the supply of copies is to put him on notice of what he has to meet at the trial. The effect of non-supply of copies has been considered by this Court in Noor Khan v. State of Rajasthan and Shakila Abdul Gafar Khan v. Vasant Raghunath Dhoble. It was held that non-supply is not necessarily prejudicial to the accused. The court has to give a definite finding about the prejudice or otherwise." Thus, on ground of non compliance of the provisions of section 207 CrPC, the proceedings cannot be quashed at the threshold.
Moreover, in the present application the applicant has not challenged the order framing charge. The applicant has only challenged the order dated 7.1.2013 by which the application dated 4.3.2010, which was in the nature of recall application, was rejected. It is well settled that by virtue of section 362 of the Code of Criminal Procedure there cannot be a review or recall of an order. Accordingly, once charges have been framed, the trial has to be brought to its logical conclusion.
For the reasons recorded above, I do not find any good ground to interfere with the order dated 7.1.2013. The application is, accordingly, dismissed. The record of the court below will be sent back immediately by the office.
Order Date :- 24.2.2014 Sunil Kr Tiwari