Court No. - 44
Reserved on 21.08.2018 Delivered on 31.08.2018
Case :- MATTERS UNDER ARTICLE 227 No. - 5084 of 2018 Petitioner :- Aflaque Ahmad Khan Respondent :- State Of U.P. And Another Counsel for Petitioner :- Adya Prasad Tewari,Shahnawaz Khan Counsel for Respondent :- G.A.
Hon'ble Rajeev Misra,J.
1. This petition under Article 227 of the Constitution of India has been filed challenging the order dated 07.11.2017 passed by the Chief Judicial Magistrate, Maharajganj in Complaint Case No. 2562 of 2016 (Naimuddin Vs. Aflaque Ahmad and others) under Section 419, 420, 467, 468, 471, 409 I.P.C., Police Station, Shyamdeurwa District-Maharajganj as well as the order dated 11.04.2018 passed by the Session Judge, Maharajganj in Criminal Revision No. 169 of 2017 (Aflaque Ahmad Khan Vs. State of U.P. and another) whereby the aforesaid criminal revision preferred by the petitioner against the order dated 07.11.2017 has been dismissed.
2. I have heard Mr. Adya Prasad Tewari, learned counsel for the petitioner, learned A.G.A. for the State and Mr. Krishna Nand Yadav, learned counsel appearing for the opposite party no.2.
3. From the record, it appears that the opposite party no.2 filed an application dated 22.09.2016 in terms of Section 156 (3) Cr.P.C. alleging himself to be the President of the Committee of Management of the Society, namely, Madarsa Ahle Sunnat Niwas Samsul Uloom, Laxmipur, Near Harpur Chowk, District- Maharajganj. It was further alleged in the aforesaid application that the petitioner and others have committed serious illegalities and irregularities which have penal consequences. Thereafter, the Magistrate vide order dated 24.10.2016 directed that the said application filed the petitioner shall be treated as a complaint and accordingly, tried as a complaint case. Consequently, the statement of the complainant was recorded on 05.12.2016 in terms of Section 200 Cr.P.C.. Thereafter, on 13.01.2017, the statement of the witnesses, namely, Rauf and Sazid Ali were recorded in terms of Section 202 Cr.P.C. Upon consideration of the allegations made in the application dated 22.09.2016, the statement of the complainant and that of his witnesses, the Magistrate summoned the petitioner and three others by means of the summoning order dated 27.02.2017.
4. Feeling aggrieved by the aforesaid summoning order dated 27.02.2017, the accused persons filed a Criminal Revision before the District and Sessions Judge, Maharajganj. The same was registered as Criminal Revision No. 64 of 2017 (Aflaque Ahmad Khan and others vs. State of U.P. and another), which came to be dismissed vide order dated 04.07.2017 passed by the Additional District and Sessions Judge, Court no.4, Maharajganj. Feeling aggrieved by the summoning order dated 27.02.2017 passed by the Chief Judicial Magistrate, Maharajganj in Complaint Case No. 2562 of 2016 (Naimuddin Vs. Aflaque Ahmad Khan) as well as the order dated 04.07.2017 passed by the Additional District and Sessions Judge, Court No. 4, Maharajganj in Criminal Revision No. 64 of 2017 and the proceedings of the aforesaid complaint case, the petitioner alongwith three others filed Criminal Misc. Application No. 22975 of 2017 (Aflaque Ahamad Khan and 3 others Vs. State of U.P. and another) before this Court. This criminal misc. application came to be decided by this Court vide order dated 21.08.2017.
5. For ready reference, the order dated 21.08.2017 is quoted hereunder:-
“Short counter affidavit filed by Sri Krishna Nand Yadav, learned counsel for opposite party no.2 is taken on record.
This application u/s 482 Cr.P.C. has been filed seeking the quashing of the summoning order dated 28.2.2017 passed by the Chief Judicial Magistrate,Mahrajganj and revisional order dated 4.7.2017 passed by the Addl. District & Sessions Judge, Court No.4, Mahrajganj in Criminal Revision No. 64 of 2017, Aflaque Ahmad versus State of U.P. and another as well as the entire proceedings arising out of Complaint Case No. 2562 of 2017, Naimuddin versus Aflaque Ahmad and others, u/ss 419, 420, 467,468, 471 and 409 IPC, P.S. Shyam Deorwa, District Mahrajganj.
Heard applicants' counsel, learned counsel for opposite party no.2 as well as learned A.G.A.
Entire record has been perused.
All the contentions raised by the applicants' counsel relate to disputed questions of fact. The court has also been called upon to adjudge the testimonial worth of prosecution evidence and evaluate the same on the basis of various intricacies of factual details which have been touched upon by the learned counsel. The veracity and credibility of material furnished on behalf of the prosecution has been questioned and false implication has been pleaded.
The law regarding sufficiency of material which may justify the summoning of accused and also the court's decision to proceed against him in a given case is well settled. The court has to eschew itself from embarking upon a roving enquiry into the last details of the case. It is also not advisable to adjudge whether the case shall ultimately end in conviction or not. Only a prima facie satisfaction of the court about the existence of sufficient ground to proceed in the matter is required.
Through a catena of decisions given by Hon'ble Apex Court this legal aspect has been expatiated upon at length and the law that has evolved over a period of several decades is too well settled. The cases of (1) Chandra Deo Singh Vs. Prokash Chandra Bose AIR 1963 SC 1430 , (2) Vadilal Panchal Vs. Dattatraya Dulaji Ghadigaonker AIR 1960 SC 1113 and (3) Smt. Nagawwa Vs. Veeranna Shivalingappa Konjalgi 1976 3 SCC 736 may be usefully referred to in this regard.
In fact while exercising the inherent jurisdiction under Section 482 Cr.P.C. or while wielding the powers under Section 226 of the Constitution of India the quashing of the complaint can be done only if it does not disclose any offence or if there is any legal bar which prohibits the proceedings on its basis. The Apex Court decisions in R.P. Kapur Vs. State of Punjab AIR 1960 SC 866 and State of Haryana Vs. Bhajan Lal 1992 SCC(Cr.) 426 make the position of law in this regard clear recognizing certain categories by way of illustration which may justify the quashing of a complaint or charge sheet. Some of them are akin to the illustrative examples given in the above referred case of Smt. Nagawwa vs. Veeranna Shivalingappa Konjalgi 1976 3 SCC 736. The cases where the allegations made against the accused or the evidence collected by the Investigating Officer do not constitute any offence or where the allegations are absurd or extremely improbable impossible to believe or where prosecution is legally barred or where criminal proceeding is malicious and malafide instituted with ulterior motive of grudge and vengeance alone may be the fit cases for the High Court in which the criminal proceedings may be quashed. Hon'ble Apex Court in Bhajan Lal's case has recognized certain categories in which Section-482 of Cr.P.C. or Article-226 of the Constitution may be successfully invoked.
Illumined by the case law referred to herein above, this Court has adverted to the entire record of the case.
The submissions made by the applicants' counsel call for adjudication on pure questions of fact which may be adequately adjudicated upon only by the trial court and while doing so even the submissions made on points of law can also be more appropriately gone into by the trial court in this case. This Court does not deem it proper, and therefore cannot be persuaded to have a pre-trial before the actual trial begins. A threadbare discussion of various facts and circumstances, as they emerge from the allegations made against the accused, is being purposely avoided by the Court for the reason, lest the same might cause any prejudice to either side during trial. But it shall suffice to observe that the perusal of the complaint, and also the material available on record make out a prima facie case against the accused at this stage and there appear to be sufficient ground for proceeding against the accused. I do not find any justification to quash the complaint or the summoning order or the proceedings against the applicants arising out of them as the case does not fall in any of the categories recognized by the Apex Court which may justify their quashing.
The order passed by revisional court also does not suffer from any such infirmity or illegality which may call for any interference by this court as the same is well substantiated with sound reasonings.
The prayer for quashing the same is refused as I do not see any illegality, impropriety and incorrectness in the impugned orders or the proceedings under challenge. There is no abuse of court's process either.
However, it is observed that if the bail has not been obtained as yet, the accused may appear before the court below and apply for bail within two months from today. The court below shall make an endeavour to decide the bail application on the same day, if possible, keeping in view the observations made by the Court in the Full Bench decision of Amrawati and another Vs. State of U.P. 2004 (57) ALR 290 and also in view of the decision given by the Hon'ble Supreme Court in the case of Lal Kamlendra Pratap Singh Vs. State of U.P. 2009 (3) ADJ 322 (SC).
In the aforesaid period or till the date of appearance of the accused in the court below, whichever is earlier, no coercive measures shall be taken or given effect to.
With the aforesaid observations this application is finally disposed off.”
6. From the perusal of the aforesaid order, it is explicitly clear that the relief prayed for in the aforesaid application was refused by this Court. However, a direction was issued that the applicants therein, i.e., the petitioner also may appear before the court below with further direction that if the applicants therein appear before the court below and apply for bail within two months from today, i.e., 21.08.2017 then the court below shall decide their bail application on the same day, in the light of the observations made by the Court in the Full Bench decision of Amrawati and another Vs. State of U.P. 2004 (57) ALR 290 and also in view of the decision given by the Hon'ble Supreme Court in the case of Lal Kamlendra Pratap Singh Vs. State of U.P. 2009 (3) ADJ 322 (SC). An interim protection was also extended for the aforesaid period or till the date of appearance of the accused before the court below whichever is earlier by providing that no coercive action shall be taken or given effect to.
7. However, without availing the liberty granted by this Court as detailed herein above, the petitioner filed a discharge application dated 23.09.2017 in terms of Section 245 (2) Cr.P.C. This discharge application was hotly contested by the complainant-opposite party no.2. Ultimately, the Magistrate by means of the order dated 07.11.2017 rejected the discharge application filed by the petitioner. The Magistrate, recorded a categorical finding that the petitioner has not complied with the order dated 21.08.2017 passed by the High Court and secondly, without obtaining bail in the aforesaid complaint case the petitioner has filed a discharge application which is otherwise not maintainable. The Magistrate, further referred to the judgement of this Court in the case of Vishwa Nath Jiloka And Ors. vs Ist Munsif Bahraich Lower Court reported in 1989 CRLJ 2082 and on the basis thereof held that discharge can be granted to an accused provided any of the following contingencies exist:
a. there is a legal defect in the summoning order,
b. there is a technical defect in the complaint,
c. no prior sanction has been obtained prior to the lodging of the complaint,
d. no case is made out against the accused persons as per the statements recorded under Sections 200 and 202 Cr.P.C,
e. the prosecution story as alleged is impossible, and
f. there is a bar in taking cognizance upon the complaint.
8. In the light of the aforesaid, the Magistrate proceeded to examine the veracity of the discharge application filed by the petitioner on the touch stone of Section 245 (2) Cr.P.C. The Magistrate came to the conclusion that the discharge application filed by the petitioner cannot be allowed in terms of Section 245 (2) Cr.P.C. as the charge levelled against the petitioner cannot be termed as groundless.
9. Feeling aggrieved, the petitioner preferred a criminal revision before the Sessions Judge, Maharajganj. The same was registered as Criminal Revision No. 69 of 2017 (Aflaque Ahmad Khan Vs. State of U.P. and another). The revisional court recorded a finding by placing reliance upon the judgement of Apex Court in the Case of Mahanth Abhay Vs. Gurdiyal Singh, AIR 1971 SC 834 and held that if prima facie case is made out then discharge cannot be granted. The revisional court in the light of the facts and circumstances of the case and upon perusal of the material on record as well as the submission made before it came to the conclusion that the findings recorded by the Magistrate in his order dated 07.11.2017 cannot be termed as illegal perverse and erroneous. The revisional court further examined the issues independently and also came to the same conclusion as concluded by the Magistrate that in the facts and circumstances of the case the discharge prayed for by the petitioner cannot be granted. Feeling aggrieved by the order dated 11.04.2018 passed by the revisional court and the order dated 07.11.2017 passed by the C. J. M., Maharajganj, the petitioner has now approached this Court by means of the present petition under Article 227 of the Constitution of India.
10. At the very outset, a preliminary objection was raised by Mr. Krishana Nand Yadav, learned counsel for the respondent no.2 regarding maintainability of the present petition. He submits that this Court vide order dated 21.08.2017 in Criminal Misc. Application No. 22975 of 2017 had categorically directed that the applicants may appear before the court below within a period of two months and apply for bail and till such time interim protection was granted to the applicants. However, without applying for bail, the applicants in derogation of the order dated 21.08.2017 filed the discharge application in terms of Section 245 (2) Cr.P.C. He further submits that the discharge application cannot be filed by an accused till the accused has appeared in the criminal case and admitted to bail or otherwise.
11. Mr. A. P. Tewari, while countering the aforesaid preliminary objection, could not place any such provision contained in the Code of Criminal Procedure on the basis of which it can be concluded that an accused can file a discharge application before appearing in a criminal case and being admitted to bail or otherwise. Consequently, the preliminary objection raised by the learned counsel for the opposite party no.2 has substance and is liable to be accepted. Therefore, the Court has no hesitation in concluding that the discharge application filed by the petitioner without being admitted to bail or otherwise was not liable to be considered till the accused appeared/surrendered before the court.
12. However, as the court below has not only dismissed the discharge application on the aforesaid ground but also upon consideration of the merits of the discharge application, it is obligatory to consider the merits of the submissions urged by the learned counsel for the petitioner in support of the discharge claimed by the petitioner and vice versa in challenge to the impugned orders.
13. Mr. A. P. Tewari, learned counsel for the petitioner has reiterated the same submissions as urged before the court below. He has further invited the attention of the court to the pleadings raised in the petition and on the basis thereof an attempt was made to challenge the locus of the opposite party no.2 in filing the complaint as President of the Committee of Management of the Society. This submission urged by the learned counsel for the petitioner touches the defence of the petitioner and not the fulfillment of the condition precedent for discharging an accused in terms of Section 245 (2) Cr.P.C. that the charge levelled against the petitioner is groundless. It may also be noted that on the same material, i.e, the allegation made in the complaint, the statement of the complainant and that of his witnesses, the petitioner was summoned which order was affirmed by the revisional court and thereafter by the High Court. Therefore, once the summoning of the petitioner on the material, which were the same at the time of discharge has been upheld by this Court, it would be paradoxical to imagine that the Magistrate or the court below could or can take a contrary view on the same material.
14. On the strength of the facts, as noted herein above, the inescapable conclusion is that the charge levelled against the petitioner could not be dislodged as being groundless before this Court or before the courts below. Therefore, the condition precedent for discharge in terms of Section 245 (2) Cr.P.C. is not satisfied in the present case. Consequently, no illegality can be said to be committed by the Magistrate in rejecting the discharge application filed by the petitioner or by the revisional court in affirming the order of the Magistrate.
15. For all the reasons given herein above, this Court does not find any good ground to entertain the present petition.
16. The present petition fails and is accordingly dismissed.
Order Date :- 31.8.2018 YK