RAGHOTHAM Vs. STATE

JUDGEMENT

(1.) The short point that requires determination in this Revision Petition is, whether the powers vested in the Magistrate under section 94, Criminal Procedure Code, can be exercised even before the stage under section 251-A, Criminal Procedure Code is reached. The question arose in the following circumstances :- The petitioner herein was charge-sheeted for an offence punishable under section 408, Indian Penal Code, for embezzlement of certain amounts entrusted to him in his capacity as an officer-in-charge of a Maternity Home. The case is pending before the Fourth City Magistrate. The petitioner filed an application before the learned Magistrate under section 94, Criminal Procedure Code, for calling for certain records from the Court of the District Magistrate which would show that a prosecution launched in respect of the very amounts on a previous occasion had been withdrawn against him and that as he had been acquitted of the said charge, no charge could be framed against him for the same amounts or part thereof for a second time.

(2.) The learned Magistrate, though he felt that it was desirable to summon the records, was of the opinion that the application was premature and could be renewed only after a charge had been framed. The same order was upheld in revision by the learned Chief City Magistrate with reference to a decision of this Court in Yousuff Sahib v. Namburi Hayagriva Rao(1955) An.W.R. 409 : 1955 A.L.T. (Grl.) 182. It has been observed therein that section 94 can reasonably be reconciled with section 257 if it be held that section 94 only confers power upon a Magistrate and section 257 prescribes the mode of exercise of that power under certain circumstances. It was further held that the right of the accused to ask for the production of any document or for compelling the attendance of any witnesses accrues to him only after he is called upon to enter upon his defence. With. due respect to the learned Judge, I am unable to agree with the said observations. Section 94, Criminal Procedure Code, lays down :

(3.) It does not prescribe the stage at which such application could be entertained or the powers vested under it could be exercised. A Full Bench of the Sindh High Court in Muhammad Rahim v. Emperor A.I.R. 1935 Sindh 13, considering this aspect, has observed that section 257, Criminal Procedure Code neither controls nor imposes any limitations on the power of a Court to exercise its discretion in using the machinery provided by section 94, Criminal Procedure Code. It is no bar to the exercise of that discretion in a trial under the provisions of Chapter XXI before that trial has reached the stage indicated by section 257. In the instant case, the contention of the petitioner seems to be that in view of his acquittal on a previous occasion, no charge could be framed against him and to substautiate it he has filed the petition calling for the records. It does not seem to be reasonable in consonance with the provision of sect on 94 to reject the petition on the ground that such petition can lie only after a charge has been framed. I do not find myself in agreement with the opinion of the learned single Judge. With due respect, I think a Reference to a Division Bench is desirable.