Discarded defense during investigation cannot be considered at the time of framing charges, and only documents of sterling and unimpeachable quality can be considered at that stage.

Kanwaljit Singh Ahluwalia, J.

The present petition has been filed under Section 482 Cr.P.C. praying that the order dated 13.4.2017 passed by the Special Judge, Sessions Court, Prevention of Anti Corruption Act, No.1, Jaipur in Case No. 3/2016 be set aside.

2. Learned counsel for the petitioner has submitted that a grave error was committed by the court below not to consider the documents seized by the investigating agency during the course of investigation, wherein petitioner had projected his defence to explain possession of 2,27,000/-, which as per investigating agency is disproportionate asset of the petitioner. The learned counsel for the petitioner has submitted that the investigating agency recovered Rs. 2,27,000/- from the petitioner. The petitioner during investigation raised a defence that one Ganga Prasad Gupta gave him Rs. 2,27,000/- with the request that same be handed over to property dealer Hemant Chopra, who had struck a bargain on behalf of Ganga Prasad Gupta, for purchase of the property.

3. It is settled legal proposition that the defence raised during the investigation which has been discarded by the investigating officer cannot be considered at the time of framing of charges. The right course for the petitioner is to prove the fact asserted by leading defence evidence by examining witnesses and proving the documents relied.

4. Suffice it to say, the investigating officer has come to conclusion that the documents given by the petitioner are neither authentic nor reliable. Therefore, the opinion of the investigating officer at the stage of investigation has to prevail. It will be travesty of the justice if the defence version considered and rejected by the investigating officer is projected at the time of framing of charges. At the time of framing of charges presumptive opinion is to be formulated by the trial court.

5. The documents given by the petitioner during the course of investigation cannot be considered at the time of framing of charges.

6. At this stage, the learned counsel for the petitioner insisted that the judgments relied by him be dealt with by this Court.

7. The learned counsel for the petitioner has relied upon the judgment in the case of Davendra Kumar vs. State of Rajasthan, 1990 2 RajLR 629. In that case, it was held that if some record is with the prosecution and if the prosecution hold back the said record from the court, the court is duty bound to insist that such record be produced. This judgment nowhere says that documents produced by the accused during investigation should be considered. The judgment specifically stated that if the document is gathered by the investigating agency which is regarding innocence of the accused, and same is withheld by the prosecution, same cannot be kept back. Hence, this judgment is not applicable.

8. Learned counsel for the petitioner has also relied upon the judgment rendered in the case of Jagnandan Singh vs. State of Rajasthan, 2008 1 CrLR 8 (Raj.). This judgment is regarding statements recorded under Section 161 Cr.P.C., which were not relied by the prosecution. Again at the cost of repetition, it is observed that the defence version of the accused noted and discarded cannot be put in the prosecution case and cannot be considered at the stage of framing of charge.

9. The above argument if upheld, will go contrary to the ratio and spirit of the judgment rendered by the Supreme Court State of Orissa vs. Debendra Nath Padhi, (2005) 1 SCC 568, wherein it is held that the documents given by the accused cannot be considered by the court framing charges. The case of the petitioner is worse if the documents given by the accused cannot be considered by the court at the time of framing charges, then the documents given by the accused during investigation cannot get any precedence or prominence. Therefore, the argument being misconceived is rejected.

10. The learned counsel for the petitioner has submitted that recently Supreme Court in Nitya Dharmananda @ K.