Shiv Ram and anr. Vs. the State of Rajasthan - Court Judgment

Excerpt:
arms act - section 3/25 and criminal procedure code--section 91--summoning of register--boxes not containing note of word 'usd'--entry made in register--held, summoning of register is relevent and desirable.;the learned trial court, in the present case, has not considered this aspect of the matter and has rejected the application merely on the ground that the boxes do not contain the note of the word/letters 'usd'. if in the register, an entry has been made with respect to the cartridges recovered from the petitioners then the whole prosecution case comes to the grouna. therefore, in my view, the production of the demolition register, sought to be called by the petitioners by their application dated january 5, 1989, is necessary and relevant for the purpose of the trial and it would be, therefore, desirable to summon that register.;petition allowed. - section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - appellant was arrested on 30.11.1998 when the 1986 act was in force and under clause (h) of section 2 a juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years - it is with the enactment of the juvenile justice act, 2000, that in section 2(k) a juvenile or child was defined to mean a child who had not completed eighteen years of a ge which was given prospective prospect - appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the juvenile justice act, 2000, came into force - juvenile act, of 2000 has been given retrospective effect by rule 12 of juvenile justice rule, 2007 - as such, accused has to be treated as juvenile under the said act. b.r. arora, j.1. this miscellaneous petition is directed against the order dated january 16, 1989, passed by the additional chief judicial magistrate no.3, jodhpur, by which the learned additional chief judicial magistrate rejected the application filed by the petitioners and refused to call the demolition register.2. the accused-petitioners are facing trial under section 3/25 of the indian arms act in the court of the additional chief judicial magistrate no. 3, jodhpur. according to the prosecution case, 1750 cartridges were recovered from the petitioner chatura ram and 750 cartridges were recovered from the petitioner shiv ram and as the accused-petitioners were not having any licence for keeping these cartridges with them, therefore, a case under section 3/25 of the indian arms act was registered against them and the police, after necessary investigation, presented the challan against them in the court of the additional chief judicial magistrate no. 3, jodhpur and the petitioner were charged for the offence under section 3/25 of the indian arms act. during the pendency of the trial the petitioners moved an application on january 5, 1989, under section 91 of the code of criminal procedure for summoning the demolition register kept in the office of a.t.a., 19 f.a.d.. it was mentioned in the application that the demolition register is necessary to be produced as the offence, for which the accused-petitioners have been charged, stands nullified from the entry made in that register. the alleged cartridges, which have been shown to be recovered from the petitioner, have been entered in the demolition register, as being destroyed prior to the date of the recovery thereof from the petitioners. it was, also, mentioned in the application that as on the box, carrying the recovered cartridges, a mark word red-ink has been made to the effect 'usd', which prima facie shows that the cartridges were destroyed after their expiry period. the learned assistant public prosecutor contested this application and filed written reply and the learned magistrate, by his order dated january 16, 1989, rejected the application filed by the petitioners and refused to summon the demolition register.3. i have heard the learned counsel for the petitioners and the learned public prosecutor and perused the record of the case.4. the learned magistrate, while rejecting the application of the petitioners merely observed that as there is no marking of the words 'usd' on the boxes, in which the cartridges were placed, therefore, there is no necessity of summoning the demolition register. he has further mentioned that if there would have been such marking then it would have been proper to call the register. while considering the application under section 91 of the code of criminal procedure for summoning a particular thing or document, the court has to see and satisfy itself: whether the documents, on which the accused wants to rely, have a bearing-upon or is relevant to the case or not and if the court forms an opinion that the document, sought to be summoned, is relevant to the case and has a material bearing upon the case, then the court may order for the summoning of the document. but if the document is irrelevant or has no bearing over the case then it is not necessary to summon these documents. as per the provisions of section 91, cr. p.c., the consideration in summoning the document, therefore, is whether the production of the document is necessary or relevant for the purpose of the trial. the learned trial court, in the present case, has not considered this aspect of the matter and has rejected the application merely on the ground that the boxes do not contain the note of the word/letters 'usd'. if in the register, an entry has been made with respect to the cartridges recovered from the petitioners then the whole prosecution case comes to the grouna. therefore, in my view, the production of the demolition register, sought to be called by the petitioners by their application dated january 5, 1989, is necessary and relevant for the purpose of the trial and it would be, therefore, desirable to summon that register. i am not unmindful of the fact: whether a particular document should be summoned or not, is essentially within the discretion of the trial court, but if the trial court, in exercise of this judicial discretion, does not apply its mind to the facts and the circumstances of the case and ignores the basic principle while considering the application, then the court in its inherent powers can exercise its discretion as not summoning the document will amount to abuse of the process of the court.5. the result is that this miscellaneous petition, filed by the petitioners, is allowed. the order dated january 16, 1989, passed by the learned additional chief judicial magistrate no. 3, jodhpur, is set-aside and the application dated january 5, 1989 filed by the petitioners, is allowed and the learned additional chief judicial magistrate no. 3, jodhpur, is directed to summon the demolition register, as prayed by the petitioners in their application dated january 5, 1989.