Judgment:
Amaresh Ku. Singh, J.
1. Heard the learned Counsel for the petitioner and the learned Counsel for the respondent and perused the original record.
2. This criminal petition has been filed against the order dated 4th May, 1988 passed by the learned Munsif and Judicial Magistrate, Jetaran in criminal case No. 168/1984 Allauddin v. Kishan Gopal and Ors. whereby he directed that charge under Section 465 of the Indian Penal Code be framed against Kishan Gopal Parasar.
3. The learned Counsel for the petitioner has submitted that no prima facie case for framing charge against the petitioner has been made out by the complainant and, therefore, the order dated 4th May, 1988 passed by the learned Munsif and Judicial Magistrate, Jetaran is without jurisdiction and amounts to abuse of the process of the Court. It is also submitted by him that the alleged criminal act was committed by the petitioner in exercise of his functions as an Executive Officer of the Municipal Board and, therefore, he cannot be prosecuted without a proper sanction given under Section 197 of the Criminal Procedure Code.
4. Offence under Section 465 of the Indian Penal Code is punishable for 2 years imprisonment or fine or both. A perusal of the original record of the lower court shows that after conducting enquiry under Sections 200 and 202 of the Criminal Procedure Code, process was issued against the petitioner on 19th May, 1984. After appearance of the petitioner in the lower court the evidence of the complainant non-petitioner was recorded and thereafter the case was listed for arguments on charge. Order- sheet dated 3rd May, 1988 shows that the procedure prescribed for trial of warrant cases was adopted by the lower court. After hearing the arguments on charge, the learned Munsif and Judicial Magistrate came to the conclusion that a prima facie case was made out against the petitioner under Section 465 of the Indian Penal Code and he should be tried for offence after framing of the charge.
5. The prosecution case in brief is that the complainant's father had moved an application on 20th February, 1984 before the Municipal Board, Jetaran for granting sanction for construction of the house according to the site plan attached with the application. On receipt of the application adjections were invited by notice dated 22nd February, 1984. Nobody submitted any objection to the proposed construction and on 26th March, 1984 the Municipal Board accorded permission for construction according to the site plan. After that the complainant and his father started construction of the house. After completing the construction of the ground floor when construction of the first floor was in progress, one Manak Raj instituted a civil suit against the complainant and his father. The complainant thereafter went to the Office of the Municipal Board, Jetaran to obtain a copy of his application, site plan and the sanction given by the Municipal Board for construction of his house. When the copies were supplied to him he came to know that on the site plan certain portions were marked by the letters A, B, C and D and the sanction for construction was restricted to the portion marked as A,B,C and D. The prosecution case is that when sanction was initially given it was for the construction of the building according to the site plan submitted by the complainant's father without any limitation but subsequently at the instance of Manak Raj, Shri Kishan Gopal Parasar who was then working as an Executive Officer in the Municipal Board marked certain portion of the building as A, B, C and D in the site plan and thereby narrowed the sphere of sanction initially given by the Municipal Board and this act of Shri Krishan Gopal Parasar amounts to forgery punishable under Section 465 of the Indian Penal Code. Under Sections 200 and 202 the complainant examined himself as well as Allanoor. After the appearance of the accused petitioner before the Court the complainant Allauddin PW-1, Allanoor PW-2, Bhanwar Lal PW-3 and Mangilal PW-4 were examined before the lower Court. Bhanwarlal PW-3 is the then Chairman of the Municipal Board. According to him when sanction was granted by the Municipal Board it was granted for the whole of the house and was not restricted to the portion marked as A, B, C and D and that the marking by the letters A, B, C and D was done subsequently by the Executive Officer. It appears that the learned Munsif and Judicial Magistrate was persuaded to give a finding that a prima facie case was made out on the basis of statement given by Bhanwar Lal PW-3. The learned Counsel for the petitioner has submitted that in this case the complainant did not submit any document worth the name before the Court to prove what was his application and what was the building which he proposed to construct and what was the extent of the sanction given by Bhanwar Lal PW-3, and which is that document which has been forged by petitioner by writing letters A, B, C and D on it. The argument advanced by the learned Counsel for the petitioner is to the effect that for want of documentary evidence it is difficult to hold that any prima facie case has been made out against the petitioner.
6. In this case the procedure for trial of warrant cases is being followed and, therefore, provisions of Section 240 of the Criminal Procedure Code are applicable. Section 240 of the Criminal Procedure Code provides that if upon such consideration, examination, if any, and hearing, the Magistrate is of the opinion that there are grounds for presumming that the accused has committed an offence which he is competent to try and, and which in his opinion, could be adequately punished by him, he shall frame in writing a charge against the accused. A bare reading of Section 240 of the Criminal Procedure Code makes it clear that there must be ground for presuming that the accused has committed an offence which can be tried under this Chapter by the Magistrate. What grounds are necessary for presuming that an offence has been committed has not been given in Section 240 of the Criminal Procedure Code because that is a matter with which the provisions of Evidence Act deal with and the 'presumptions' are governed by Section 114 of the Evidence Act. Section 114 of the Evidence Act provides that the Court may presume that existence of any fact which it thinks likely to have happened regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. The provisions of Section 114 of the Evidence Act thus make it very clear that the presumption which is to be drawn in respect of a fact in question must be founded on grounds mentioned in Section 114 of the Evidence Act. The provisions of Section 3 Evidence Act further make it clear that a thing is said to be proved when after considering matters before it the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. Section 3 thus introduces 'matters before it' for the purpose of developing a belief in the existing of a fact. The grounds for presuming any fact as referred to in Section 3 Evidence Act must be compatible with Section 114 of the Evidence Act. Another important provision that is relevant in this behalf is Section 165 of the Evidence Act. Proviso given below 165 of the Evidence Act makes it clear that the Judge shall not dispense with primary evidence of any document, except in the cases hereinafter excepted. Section 144 of the Evidence Act is concerned with the matters in writing and it provides that any witness may be asked, whilst under examination, whether any contract, grant or other disposition of property, as to which he is giving evidence, was not contained in a document, and if he says that it was, or if he is about to make any statement as to the contents of any document, which, in the opinion of the Court, ought to be produced, the adverse party may object to such evidence being given until such document is produced, or until facts have been proved which entitle the party who called the witness to give secondary evidence of it. These provisions of the Evidence Act make it very clear that the grounds for presuming that the accused has committed an offence must be the grounds which are permitted by the Indian Evidence Act, and they must be relevant and admissible. Under Section 136 of the Evidence Act it is the right as well as the duty of the Court to decide whether any evidence which a party intends to produce is relevant and admissible. In view of the proviso given below 165 of the Evidence Act the Court cannot dispense with primary evidence except in the cases excepted by the Evidence Act. In view of Section 144 of the Evidence Act if any witness without producing primary evidence, wants to give oral evidence when matter relating to property is in writing then unless a case for producing secondary evidence is made out the oral evidence of the contents of the documents cannot be given. Therefore, where the primary evidence is in the nature of document or documents that document must be produced before the Court for inspection and if that document is not produced and a case for giving secondary evidence is not made out then secondary evidence would not be admissible under the Evidence Act and, therefore, such secondary evidence whether it is oral or it is in the form of copies, certified or uncertified will not be a 'matter' which the Court can consider within the meaning of Section 3 for the purpose of arriving at an inference'. The common course of conduct of the parties prescribed by the Indian Evidence Act cannot be forgotton while drawing presumption under Section 114 of the Evidence Act. The evidence which is inadmissible or irrelevant cannot be said to be a valid ground for drawing any presumption.
7. In view of above reasons there appears to be force in the contention of the learned Counsel for the petitioner that since the complainant has not produced the original documents or the certified copies there of for the purpose of proving that he had moved an application along with site plan before the Municipal Board, Jetaram for construction and that a valid sanction for the sanction of the entire premises shown in the site plan had been given by Bhanwar Lal PW-3 and that the petitioner has committed any forgery in the official record, it cannot be said that any prima facie case has been made out or that there are any grounds for presuming that the petitioner has committed any offence under Section 465 of the Indian Penal Code.
8. Framing of charge against an accused is a serious matter because it is symbolic of prima facie proof of guilt of an accused person. Therefore, the charge should be framed strictly according to Section 240 of the Criminal Procedure Code and not otherwise. It may be pointed out here that the 'trial' is for the purpose of enabling the accused to test the veracity of the prosecution case. This is why in police cases the accused is to be given copies of the documents under Section 208 of the Criminal Procedure Code. The witnesses are examined in his presence and he is entitled to cross examine them. A charge is framed against him so as to apprise him of the allegations made against him and statement under Section 313 of the Criminal Procedure Code is recorded to enable him to explain the circumstances appearing against him and finally at the conclusion of the trial he has been given a right to address the arguments in his defence either personally or through a counsel of his choice.
9. In view of all these provisions the word 'trial' appears to be used in relation to the allegations made by the prosecution rather than in relation to the accused. In other words the provisions of the Criminal Procedure Code suggest that during trial it is not the accused who is tried or tested, it is the prosecution case or the accusation which is tested and tried to find out whether it is true or false. If this be the correct view that in a criminal trial it is an accusation or the allegation that is tried by cross-examination etc. then there would be no escape from the conclusion that before the trial starts there must be a proper accusation based upon legal permissible grounds. This is what appears to be the mandate of Section 240 of the Criminal Procedure Code which provides that there must be grounds for presuming that the accused has committed an offence. In the instant case the complainant has not cared to file the original documents or certified copies there of and produced his evidence in very casual manner as if the production of evidence before framing of charge is a formality and the framing of charge is a mechanical function. It is surprising that the learned Munsif and Judicial Magistrate did not think it proper to ask the complainant to produce the documents which are alleged to have been forged by the petitioner. In these circumstances framing of charge against the petitioner would amount to abuse of the process of the Court and in my humble opinion it is a fit case in which the order passed by the learned Munsif and Judicial Magistrate should be quashed in the interest of justice and I order accordingly.
10. The proceedings, however, do not come to an end with the quashing of the order dated 4th May, 1988. It would be in the interest of justice that the complainant non-petitioner is given an opportunity to produce all such evidence which may be in his possession and power and on which he intends to place reliance before the lower Court on a date to be fixed in the case. If the complainant would fail to produce evidence on that day without any sufficient cause the lower Court would be within its right to proceed to decide the question whether the charge should or should not be frame after hearing both the parties. A copy of this order be sent to the lower Court with the original record within 15 days.