1. Through the medium of instant petition filed under section 561-A Cr.P.C., petitioner seeks quashing of the order dated 14.09.2011 passed by the
Judicial Magistrate 1st Class (Munsiff), Jammu, whereby Court has rejected the prayer for further investigation in the case being FIR No. 134/2007
registered with Police Station, Satwari, or in alternative it has been prayed that he be allowed to place on record certain documents before trial court.
2. Brief facts of the case are that the petitioner and his family including two married daughters have falsely been implicated in the FIR No.134/2007.
That the petitioner is in possession of 10 Marlas of land, out of Khasra No.427 min since decades as he had purchased the said land from his brother
Harnam Singh, the complainant in the FIR No. 134/2007. The petitioner out of his resources constructed two rooms, verandah and toilet over the said
land. The registration of Sale Deed was not executed as the parties were in relation, the possession of the land was handed over to the petitioner and
the same stands reflected in the various documents like Khasra Girdawari, 1975 and subsequent Girdawaries and the reports by the settlement Naib-
Tehsildar, Digiana. It is further stated that another FIR No.135/2007 was lodged by Raghubir Singh culminating into challan u/s 353,323 RPC against
sons of Harnam Singh (the complainant in the present case). The allegation in FIR No. 135/2007 is that accused Balbir Singh and others criminally
trespassed into Raghubir’s residential house, outraged modesty of his daughter and beaten them. It is also contended that the statement of the
Harnam Singh recorded by the revenue authorities wherein he has admitted that the two rooms and the verandah over the above said land are in the
possession of petitioner (Raghubir Singh). The order of the learned Sub- Registrar, Jammu dated 24.11.2008 which was upheld by this Court is yet
another proof regarding the possession of the petitioner over the land in dispute. It is further stated that the investigating agency willfully and mala
fidely has not placed these facts and documents in the challan though the same were brought to the knowledge of the investigating officer during
investigation. The petitioner made two applications dated 25.02.2008 and 03.07.2010 respectively before the Trial Court for further investigation or in
alternate to place on record the documents including the statement of Harnam Singh, which clearly indicated the falsity of FIR No.134/2007 as
documents showed petitioner in possession of 10 Marlas in Khasra No. 427 min and further showed petitioner as owner of two rooms, verandah
constructed over the same.
3. Feeling aggrieved, the petitioner has challenged the order impugned and also seeks quashing of the challan on the following grounds:-
a) That order impugned is bad in eyes of law. Copy is attached as annexure-
b) That learned trial court has erred in law by rejecting the applications as the documents sought to be produced were of unimpeachable character of
sterling quality, clearly indicating the falsity of FIR No. 134/2007 and case setup against petitioner. The stand of complainant Harnam Singh that he
constructed and possessed two rooms, varandha over suit land which has been forcibly taken over by petitioner and his family stand falsified and
negated by the statement of Harnam Singh where he has admitted that two rooms and varandha belongs to petitioner further reports of N. T. Digiana
show 10 Marlas of land in Khasra No.427 min and construction thereupon being property of petitioner.
c) That another document sought to be produced was order dated 24.11.80 passed by learned Sub- Registrar, Jammu in an amendment application
filed by Harnam Singh accompanied with affidavit in his suit for injunction against petitioner, wherein it was held that Harnam Singh is not in
possession of suit land falling Khasra No. 427, after referring to KhasraGirdawari 1975, and above stated reports of revenue officials. The said order
was upheld by this court vide order dated 01.01.2010. The order was sufficient to negate the plea of complainant regarding possession over suit land.
d) That application for amendment averred that alleged dispossession took place on 28.07.2007 which is contrary to the FIR and challan which shows
same are false.
e) The findings of the learned trial court are bad in the eyes of law as the reasoning given therein in the order impugned has totally negated the Section
94 of the J&KCr.P.C, which entitles that Magistrate can call any document at any time for the just decision of the case.
f) That learned trial court failed to hold an enquiry regarding the importance of the documents for the just decision of the case.
g) That the possession of the petitioner is amply-clear but investigating agency has deliberately not included the revenue record and the above said
statement of Harnam Singh and never investigated the aspect of physical possession of petitioner over land in dispute in order to falsely implicate the
petitioner/accused.
h) That the directions for further investigation can be issued if the court comes to the conclusion that the investigating office has failed to collect
material evidence or the investigation was not fair and proper or defective and some important aspect of the case which have material bearing on the
case has been left out which were not noticed or investigation has not been conducted in a fair manner deliberately or by mistake or knowingly the
court can direct the further investigation. The documents which the petitioner intended to place on record or in light of which further investigation was
sought or important documents which demolishes the case of prosecution. The investigation carried out was with a malafide intention to fix and frame
the petitioner. The order impugned is bad in the eyes of law as the court has failed to exercise the jurisdiction vested in it and has declined to order the
further investigation or to take the documents or record in order to meet the justice and fair play.
i) That the findings of the learned trial court that there is nothing on record to show that the documents has been deliberately left out the said finding is
based on conjunctures as the prosecution has not denied the relevant averments of the application, moreover, in the cross case being FIR No.
135/2007 titled State vs. Balbir Singh and ors. u/s 323,354,447 RPC wherein petitioner is complainant police has shown the place of occurrence as the
house of Raghubir Singh the petitioner. It is pertinent to mention that the site plan prepared here, the investigating agency has willfully not shown the
possession of the two rooms.Moreover the mutation No. 568 already stands challenged by the petitioner as the same is violative of all laws and
procedures including that of natural justice as the petitioner was never heard in the same.
j) That the trial court has fallen in error by distinguishing and not placing the reliance on the judgments given by the petitioner in support of his case
especially AIR 2009 SC 10134 which has led the failure of justice.
4. Heard learned counsel for the parties and perused the file. From the perusal of documents attached with the petition, it is evident that petitioner
along with other five co-accused are facing trial in FIR No. 134/2007 u/s 447/147 RPC. Allegations against accused are that on 24.07.2007
complainant Harnam Singh lodged a written report at 14.00 O’clock before police station that he is owner of land in khasra no. 426/427 situated at
Digiana; today at 6 am, accused persons with common object formed unlawful assembly and criminally trespassed into his house and have occupied it.
5. All the accused are from the family of petitioner including his wife, two daughters and son whereas, complainant is real brother of accused-
petitioner. During course of trial petitioner/accused filed two application one for further investigation and one for placing on record certain documents,
on the grounds that he is in possession of 10 Marlas of land out of Khasra No.427 min since decades, as he has purchased the said land from his
brother Harnam Singh, the complainant; he has from his resources constructed two rooms, verandah and toilet over the said land; that his possession
stands reflected in the various documents like Khasra Girdawari, 1975 and subsequent Girdawaries and the reports by the settlement Naib-Tehsildar,
Digiana; that another FIR No.135/2007 was lodged by Raghubir Singh culminating into challan u/s 353,323 RPC against sons of Harnam Singh,
wherein the allegations were that accused Balbir Singh and others criminally trespassed into Raghubir/petitioner’s residential house, outraged
modesty of his daughter and beaten them; that the statement of Harnam Singh-complainant recorded by the revenue authorities clearly shows that he
has admitted that the two rooms and the verandah over the said land are the ownership of the accused petitioner (Raghubir Singh); that complainant
filed a suit for injunction thereby restraining them from interfering into possession of 2 rooms, one verandah constructed over 4 marla of land in kh.
No.427 ( subject matter in challan), against accused persons; wherein during pendency of suit, complainant filed an application for amendment of suit
under order VI Rule 17 C.P.C for granting relief of mandatory injunction for vacation of suit property, on the grounds that despite the fact of granting
of interim injunction on 25.07.2007, defendants/petitioner and co accused have forcibly occupied the house in question, the learned Sub- Registrar,
Jammu on 24.11.2008 dismissed the application, which order was upheld by this court in C. Revision 58/2008 on 01.01.2010.
6. On the basis of these facts, petitioner filed two applications dated 25.02.2008 and 03.07.2010 respectively before the Trial Court for further
investigation or in alternate to place on record certain documents including the statement of Harnam Singh. But trial court has dismissed both the
applications on the grounds that accused cannot be allowed to file any documents at initial stage and there was nothing on record which can suggest
that accused have ever furnished these documents before I/O. Court below has relied upon AIR SC 2005 SC 359 in case titled State of Orissa vs.
Debendra Nath Padhi, wherein it is held that documents produced by accused cannot be considered at the stage of framing of charge.
7. In Rukmani Narvekar v. Vijaya Satardkar reported in AIR 2011 SC (Cri) 1825, it has been held as under:-
“3. In the three-Judge Bench decision of this Court in State of Orissa vs Debendra Nath Padhi [(2005) 1 SCC 568], to which my learned Brother
has also referred, it has been mentioned as to how the matter came to be referred to the larger Bench. Till 1996, the consistent view which had been
taken by this Court is that at the time of framing of charge the trial court can consider only such material as are placed by the investigating agency
having regard to the very language of Section 227. At that stage, the defence could only be heard but could not be given an opportunity to produce
evidence for the consideration of the Court. However, a different view was expressed by a two-Judge Bench of this Court in Satish Mehra vs. Delhi
Administration [(1996) 9 SCC 766. The learned Judges observed that if the accused were able to produce any reliable material at the stage of taking
cognizance or framing of charge which might fatally affect the very sustainability of the case, it is unjust to suggest that no such material should be
looked into by the Court at that stage. It was, therefore, held that the trial court would be within its power to consider even material which the accused
may produce at the stage contemplated in Section 227 of the Code. It was because of a discordant note being struck to an otherwise established
principle in the Satish Mehra case (supra) that in Debendra Nath Padhi's case (supra) an order was passed referring the said question to a larger
Bench and the same was taken up for consideration in the said case itself by a three-Judge Bench.
4. While referring to Sections 227 and 228 Cr.P.C. relating to Sessions triable cases, the three-Judge Bench also considered the provisions of Sections
239 and 240 Cr.P.C. relating to trial of warrant cases by Magistrates, which are almost identical to Sections 227 and 228 Cr.P.C. The decision
rendered in Debendra Nath Padhi's case (supra) makes it very clear that the dominant issue being dealt with in the case was with regard to the right
enjoyed by an accused to produce evidence for the consideration of the Court at the stage of framing of charge.
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7. In order to identify the parameters of the questions referred to it, the larger Bench observed that in the case before it the question involved was not
about the jurisdiction under Section 482 of the Code where along with the petition the accused may file unimpeachable evidence of sterling quality and
on that basis seek quashing, but it is about the right claimed by the accused to produce material at the stage of framing charge. The larger Bench was,
therefore, fully conscious of the limits within which it was required to confine its views and the judgment was rendered in that context. The same will
be evident from the opening paragraph of the judgment. While deciding the questions referred to it, the larger Bench made a conscious distinction
between a proceeding under Section 227 Cr.P.C. before the trial court and a proceeding under Section 482 Cr.P.C. and made a reference to the
Court's power to consider material other than those produced by the prosecution in a proceeding under Section 482Cr.P.C. It is in that context that
while holding that the decision rendered in Satish Mehra's case (supra) was erroneous, the larger Bench held that if the submission that the accused
would be entitled to produce materials and documents in proof of his innocence at the stage of framing of charge, was to be accepted, it would be
unsettling a law well settled over a hundred years. It is in that light that the provisions of Section 227 Cr.P.C. would have to be understood and that it
only means hearing the submissions of the accused on the records of the case filed by the prosecution and documents submitted therewith and nothing
more. The larger Bench arrived at definite conclusion that the expression ""hearing the submissions of the accused"" cannot mean an opportunity to file
material to be granted to the accused and thereby changing the settled law. At the stage of framing of charge hearing the submissions of the accused
has to be confined to the material produced by the police.
16. Shri Mukul Rohatgi submitted that at the time of the framing of the charges only the material produced by the prosecution side can be looked into
by the Court but the material produced by the defence cannot be looked into. He has placed reliance on several decisions of this Court in this
connection e.g. State of Orissa vs. Debendra Nath Padhi 2005(1) SCC.
17. We have carefully perused the decision of this Court in the State of Orissa vs. Debendra Nath Padhi(supra). Though the observations in
paragraph 16 of the said decision seems to support the view canvassed by by Shri Rohatgi, it may be also pointed out that in paragraph 29 of the same
decision it has been observed that the width of the powers of the High Court under Section 482 of Cr.P.C and Article 226 of the Constitution is
unlimited whereunder in the interests of justice the High Court can make such orders as may be necessary to prevent abuse of the process of the
court or otherwise to secure the ends of justice within the parameters laid down in Bhajan Lal's case (supra). Thus we have to reconcile paragraphs
16 and 23 of the decision in State of Orissa vs. Debendra Nath Padhi (supra). We should also keep in mind that it is well settled that a judgment of the
Court has not to be treated as a Euclid formula vide Dr. Rajbir Singh Dalal vs. Chaudhari Devi Lal University, Sirsa & Anr. JT2008(8) SC 621. As
observed by this Court in Bharat Petroleum Corporation Ltd. & Anr. vs. N.R. Vairamani & Anr AIR 2004 SC 4778, observations of Courts are
neither to be read as Euclid's formula nor as provisions of the statute. Thus in our opinion while it is true that ordinarily defence material cannot be
looked into by the Court while framing of the charge in view of D.N. Padhi's case (supra), there may be some very rare and exceptional cases where
some defence material when shown to the trial court would convincingly demonstrate that the prosecution version is totally absurd or preposterous,
and in such very rare cases the defence material can be looked into by the Court at the time of framing of the charges or taking cognizance.
18. In our opinion, therefore, it cannot be said as an absolute proposition that under no circumstances can the Court look into the material produced by
the defence at the time of framing of the charges, though this should be done in very rare cases, i.e. where the defence produces some material which
convincingly demonstrates that the whole prosecution case is totally absurd or totally concocted. We agree with Shri Lalit that in some very rare cases
the Court is justified in looking into the material produced by the defence at the time of framing of the charges, if such material convincingly
establishes that the whole prosecution version is totally absurd, preposterous or concoctedâ€
7. In view of above law, it is evident that material produced by the defense at the time of framing of charges, if convincingly establishes that the whole
prosecution version is totally absurd, preposterous or concocted, such material can be looked into. But it should be in very rare cases. In present case,
petitioner and his family have been found involved for commission of offence of criminal trespass under section 447 RPC; so possession of immovable
property regarding which criminal trespass allegedly has been committed, is essential element; the documents regarding which petitioner has made
prayer for placing on record are public documents and are certified copies, which cannot be disputed. Court may form judicial opinion, with regard to
framing charge under section 447/147 RPC, while relying on these documents along with evidence collected during investigation.
8. Hence without commenting on the merits of case, the order impugned so far as dismissing the application for placing on record certain documents is
concerned, is set aside. Court below is directed to take the documents on record and proceed thereafter according to law. This petition is disposed of
accordingly.
