KURA RAM Vs. KRISHEN DEV

JUDGEMENT

(1.) THIS is an application to revise an order dated February 5,1974, of the learned sub -Judge Judicial Magistrate, Jammu whereby he over -ruled the objection raised by the counsel for the complaint in regard to courtâ„¢s action in detaching the two medical certificates from the Police diaries and treating them as part of the record relating to the injuries said to have been found on the persons of Balak Ram and Amir Chand, accused respondents by the Medical Officer. Bisnah, during the investigation of the alleged offence of murder of Puran Chand son of Juma Ram Batwal of Bisnah.

(2.) IT appears that during the committal proceedings against the respondents when the statement of Dr. V. S. Gupta, P.W. who conducted the post mortem examination of the dead body of Puran Chand deceased on July 15, 1973, was being recorded by the Sub Judge Magistrate, the learned counsel for the respondents questioned the witness as to whether he examined Balak Ram and Amir Chand, respondents on July 15, 1973, and July 16, 1973, respectively. On his replying in the affirmative the learned Magistrate detached from the police diaries the aforesaid two medical certificates and placed them on the file at the instance of the learned counsel for the respondents. After the examination of the Medical witness, Mr. Sethi learned counsel for the complainant filed written objections protesting against the course adopted by the learned magistrate in searching the police diaries, detaching therefrom the aforesaid medical certificates to the prosecution. These objections were disposed of by the magistrate vide his order alluded to above.

(3.) IN the course of his order, the leaned Magistrate has relied upon the provisions of Section 94 of the Criminal Procedure Code, and has observed that the court can at any stage of the case order the production of a document or thing it considers necessary or desirable for the purpose of enquiry or trial. He has further observed that in the instant case the production of the certificates would be helpful in determining the circumstances under which the alleged murder took place. It would be worthwhile at this stage to reproduce the exact words used by the learned Magistrate while dealing with the matter : "From the very opening words of the Section 94 of the Code it shall be clear that no definite stage has been fixed at which the court could ask for the production of the document. The section opens with the words "whenever". This would set at rest the controversy raised by Mr. Sethi that two stages were set for the production of the documents. Next comes the question of discretion in asking the party to produce document. In case in hand the question that would naturally arise at the trial would be what were those circumstances under which the trial took place. To set out those circumstances is very material for the purpose of this case. If not at this stage at the defence stage the accused shall have a right to get all those documents introduced into the case on which they rely. However, if the circumstances can be proved from the statement of a prosecution witness itself I think there is no harm in it if the defence can get it at the inquiry stage only. The second most important word of the Section 94 of the Code is the desirability or necessity considered by the court in allowing the document to be produced. In this regard I have no hesitation in saying that after all the committing court is not like a post office to mail the challan to the trial court. It has to apply its mind to the facts of the case and after consideration of the facts of the case on the record, it has to apply its mind as to what is the offence that has been proved prima facie against the accused and consequently charge them accordingly. If the two medical certificates I have been allowed at this stage of the inquiry only what is the prejudice that is caused to the prosecution. None more so in the present case. In the present case, the prosecution fully well knows that the accused too have been injured at the occurrence and the testimonials regarding those injuries are lying with them. It should have been different had the case been otherwise. In that case the prosecution could be really taken by surprise and thus the documents could not be allowed to be produced but all the more those could be produced by the accused at the time of adducing their defence. In view of the circumstances of the case, it was considered necessary by the court, that the two medical certificates should be introduced in the case so it ordered its production to the learned prosecutor. I am satisfied that it has caused no prejudice to the prosecution."