Court No. - 49
Case :- APPLICATION U/S 482 No. - 19081 of 2018 Applicant :- Ashok Singh And Another Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Ashok Kumar Nigam Counsel for Opposite Party :- G.A.
Hon'ble Saumitra Dayal Singh,J.
Heard learned counsel for the applicants and learned A.G.A. for the State.
The present 482 Cr.P.C. application has been filed to quash the order dated 15.03.2018 as well as the entire proceedings of Case No. 107 of 2018, arising out of Case Crime No. 138 of 2015, under Sections- 420, 465, 466, 467, 468, 471, 114, 120-B I.P.C., Police Station- New Agra, District- Agra, pending in the court of Special C.J.M., Agra.
Learned counsel for the applicants submits that while it was mandatory on part of the learned Magistrate to have first considered the police report and the documents sent with it under Section 173 Cr.P.C., it was further mandatory for the learned Magistrate to have given the applicants an opportunity of being heard and to consider whether the charge mentioned against the applicants in the charge sheet is groundless and to discharge the applicants, if it were so. The charge could have been framed only thereafter, if there was any ground existing with the learned Magistrate, he having first rejected the plea of discharge made by the applicants.
It is submitted that instead of following such procedure, the learned Magistrate appears to have only ensured the copies of the documents are given to the applicants and he proceeded to frame charges on 15.03.2018.
In support of such submission, learned counsel for the applicants has relied on the order sheet entry dated 15.03.2018. Perusal of the same does appear to support the submission advanced by learned counsel for the applicants that the learned Magistrate had not given the applicants any opportunity to be heard on discharge.
It is then submitted that the applicants' vital right has been impaired inasmuch as the applicants do not have a second right to seek discharge at any later stage. Unless the plea of discharge is considered at this stage, the applicants are likely to suffer the entire length of trial before he may be acquitted.
As to the claim of discharge made by the applicants, it is stated that there does not exist any material on the prosecution file as may implicate the applicants with the offence of cheating or forgery as have been levelled in the charge sheet. However, no opinion can be expressed on the second argument advanced by learned counsel for the applicants inasmuch as it is not for this Court to examine that issue to any extent.
Learned AGA on the other hand states that the fact that the applicants were present on the date when charges were framed and further fact that copies of the prosecution documents had been made available to them clearly indicates that the learned Magistrate had heard the applicants on discharge and thereafter framed charges.
In the state of order sheet as it exists, it is difficult to hold that the learned Magistrate has heard the applicants on discharge inasmuch as there is no recital to that effect.
Considering the above, no useful purpose would be served in keeping the present application pending any further. The order dated 15.03.2018 is set aside and the matter is remitted to the learned Magistrate to decide the matter afresh, in accordance with law.
It is further provided that the applicants shall file specific application claiming discharge, within a period of two weeks from today along with a certified copy of this order. If such an application is filed by the applicants, the learned Magistrate shall proceed to decide the application, in accordance with law and in the event, the learned Magistrate finds that the discharge application be rejected, charges may be framed against the applicants, thereafter.
The present application is disposed of with the aforesaid observation.
Order Date :- 29.5.2018 A. Singh