R. N. Aggarwal,j. (oral)

( 1 ) ON 21st September 1975 Vasheshar Nath filed a complaint at the Police Station, original Road, alleging that before going to west Bengal he left his motor-cycle bearing registration No. HRG, 3248 with his friend Aytar Kishan, resident of Joshi Road, Karol Bagh, New Delhi, that the accused Ranjit Kumar who is a relative of his and was residing in Ballabhgarh, District Gurgaon went to Avtar Kishan and obtained possession of the motor cycle by misrepresenting that the motor-cycle was required by him (complainant) at Faridabad, that on 10th September 1975, he came to know about the above fact and on that he went to the accused and asked for the motor-cycle but he refused to give the motor cycle.

( 2 ) ON the above report the police registered a case under Sections 400 and 420 of the Indian penal Code against Ranjit Kumar.

( 3 ) ON 18th March, 1978 Ranjit Kumar made an application to the Court alleging therein that the motor cycle in question was attached by the Assistant Collector of Revenue, Ballabhgarh in June, 1974 in execution of a warrant of attachment against Vasheshar Nath and the motor cycle was given to his (accused s) father on superdari and that the motor cycle was seized by the police from the house of his father on a false report made by Avtar Kishan. The accused prayed that the file from the office of the District Revenue Authority be summoned to arrive at the truth.

( 4 ) ON the above application the Chief Matropolitan Magistrate (predecessor of Shri P. K. Jain) passed an order for summoning the record from the ofiice of the District Revenue Authority. It is stated at the bar that while hearing the arguments at the charge stage the Chief Metropolitan Magistrate thought it necessary for the just decision of the case to examine Naranjan Dev, Head Clerk of Tehsil Ballabhgarh, Vasheshar Nath, complainant and Aytar Kishan Sharma and exemine the file pertaining to the inquiry against Dewan Chand, Clerk, Tehsil Ballabhgarh and accordingly summoned the above said witnesses and the file. The Court examined Naranjan Dev, Avtar Kishan Sharma and Dewan Chand.

( 5 ) ON 24th October, 1977 the complainant filed an application stating there in that before framing of the charge the Court could not examine the witnesses and their statements cannot be taken into consideration for the purpose of framing the charge. Shri P. K. Jain, Chief Metropolitan Magistrate, who succeeded Shri Mohd. Shamjm, Chief Metropolitan Magistrate, accepted the contention of the complainant and held that the evidence of C. W. I to C. W. 4 shall be ignored for the purposes of framing to the charge. He also held that the complainant cannot be examined as a Court witness at that stage. The relevant portion of the Chief Metropolitan Magistrate s order reads as follows:

"for the reasons mentioned above, I hold that the evidence of the 4 witnesses recorded by my learned predecessor is in violation of the express provisions of the Code of Criminal Procedure and cannot be taken into consideration at all for deciding the question whether a charge should or should not be framed against the accused, nor the complainant can and should be examined at this stage. It may be clarified that the file summoned from the Revenue and Industrial Departments, Ballabhgarh are the documents summoned under the powers conferred upon the Court by Sec. 91 of the Code of Criminal Procedure and the said record can definitely be taken into consideration for deciding the question of charge at this stage. Therefore, I accept this application and hold that the complainant cannot be examined as a court witness at this stage. The evidence of CW 1 to CW 4 will be ignored in deciding the question of charge. However, the summoned documents will be taken into consideration for deciding the said question". Against the above order the accused has filed this petition.

( 6 ) SECTION 311 of the Code of Criminal Procedure, which finds place in Chapter XXIV under the heading "gen

Click Here to Read the rest of this document