The duty of the prosecution to prove the charge before calling upon the accused to produce evidence in defense is a mandatory provision under the Code of Criminal Procedure.

( 1 ) IT appears that Shri S. N. Dhingra, Addl. Sessions Judge has scant regard for the judgments of this Court and sticks to the procedure of trial of complaint cases under section 138 of the Negotiable Instruments act invented by him and not the one prescribed under the Code of Criminal procedure. Vide impugned order dated 1. 5. 2003, the learned ASJ has after recording the statement of the complainant put the evidence of issuance of cheque by the petitioner against the liability towards complainant and dishonouring of the same and after eliciting the statement of the petitioner that he had no liability towards complainant as the cheque was obtained forcibly from him and in this regard he has made a complaint to the SHO, straightaway called upon the accused to produce his evidence in defence taking the case of the complainant having been proved without trial.

( 2 ) THE illegality, harshness and judicial tyranny is writ large on the impugned order as the learned ASJ imposed a cost of Rs. 15,000/- upon the petitioner-accused for not producing the evidence in his defence on the first date of hearing by ignoring the fact that the counsel for the accused had made an application that he wanted to call Dealing clerk of Registrar High Court Delhi and Record keeper of Police Station, Chitranjan Park by observing that such an application should have been made well in time.

( 3 ) THIS Court vide judgment dated 17. 1. 2003 in Crl. Revision Nos. 593/2002 and 594/2002, set aside the order passed by Sh. S. N. Dhingra, learned ASJ calling upon the accused to straight away produce the defence evidence on entering his plea of non guilty, by holding that this procedure was wholly illegal and against the mandatory procedure of trial with the following observations: -

2. A novel procedure has been adopted and invented by Mr. S. N. Dhingra, learned Additional Sessions Judge while trying the petitioner in a complaint case filed under Section 138 of the negotiable Instruments Act. The learned ASJ has given a complete go bye to the procedure of trial of summons case provided in Chapter XX of Code of criminal Procedure, 1973. After recording the plea of non-guilty and petitioner s explanation that at the relevant time he was not the Director of the Company nor was he responsible to the conduct of day to day affairs of the company nor did the cheque bear his signature, the learned ASJ called upon the petitioner to produce his evidence as if he had taken the case of complaint duly proved at the stage of giving notice for the offence and asked the accused why he should not be punished.

3. Every Criminal Court including that of magistrates and Sessions Judges is a creature of Code of Criminal Procedure and cannot rise above it nor is over it. It has to remain with the precincts of this code and cannot be permitted to traverse beyond its arena by resorting to or evolving a procedure of trial of its own.

10. As is apparent from the aforesaid provisions relating to procedure of trial, section 254 mandates that if the magistrate does not convict the accused under Section 252 or Section 253, the magistrate shall proceed to hear the prosecution i. e in the instant case the complainant and take all such evidence as may be produced in support of the prosecution and also hear the accused and take all such evidence as he wishes to produce in his defence. However, the Magistrate has the option to issue the summons to any witness either on the application of prosecution or accused directing him to attend or produce any document or any other thing.

11. The procedure adopted by learned asj was as if he had taken the case of the complainant proved against the petitioner and therefore called upon the petitioner to produce the evidence in his defence. The procedure adopted by the learned ASJ militates against the rudimentary principle and procedure of trial in a criminal case. The first and foremost duty to prove the charge or a case is that of the complainant