RAGHOTHAM Vs. STATE

JUDGEMENT

(1.) The question that Is referred to us by Sharfuddin Ahmed J. is whether the powers conferred on the Court by Section 94 of the Code of Criminal Procedure to summon witnesses and documents etc. could only be exercised as contemplated under Section 251-A after the charge is framed.

(2.) In order to appreciate this question It is necessary to state a few relevant facts. The petitioner herein was charged for an offence punishable under Section 408 I.P.C. for embezzlement of certain amounts entrusted to him in his capacity as an officer-in-charge of a maternity home, during the course of the enquiry before the IVth City Magistrate, Hyderabad, the petitioner filed an application before turn for summoning certain records from the Court of the District Magistrate, which, according to him, would show trial a prosecution launched on a previous occasion in respect of the very amounts had been withdrawn against him and that as he had been acquitted of the said charge, no charge could be framed in respect of the same amount or part thereof for a second time. The Magistrate, while coming to the conclusion that was desirable to summon those records, nonetheless felt bound by a decision of this Court in Yousoff Sahib v. Hayagriva Rao, 1955 ALT (Cri) 182 and rejected the petition in the view that the powers under Section 34 are controlled by those contained in Section 251-A and that the stage at which the documents could be summoned would only arise after the framing of the charge. Our learned brother, Sharfuddin Ahmed J. while expressing disagreement with the view expressed by Subbarao C.J. (as he then was) in the above case, referred the matter to a Bench for a fuller consideration.

(3.) Before we refer to the relevant authorities, it would be appropriate to read the two relevant provisions and consider the question ex facie on the language of the provisions themselves. Section 94 occurs in Chapter VII which is embodied in Part III General Provisions, and it deals with processes to compel the production of documents and other movable property, and for the discovery of persons wrongfully confined. Omitting the portions which are not relevant, it is in the following words: