Court No. - 44
Case :- APPLICATION U/S 482 No. - 25539 of 2018 Applicant :- Atar Singh Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Abhay Singh Yadav,Mahender Pal Singh Yadav Counsel for Opposite Party :- G.A.
Hon'ble Rajeev Misra,J.
Heard Mr. Mahender Pal Singh Yadav, learned counsel for the applicant and the learned A.G.A. for the State.
This application under Section 482 Cr.P.C. has been filed challenging the order dated 28.06.2018 passed by the Civil Judge (Senior Division)/Fast Track Court, Rampur in Complaint Case No. 307 of 2010 (Rajveer Singh Vs. Atar Singh) under Sections 406 and 420 I.P.C., Police Station- Shahzad Nagar, District-Rampur as well as the entire proceedings of the above mentioned complaint case whereby the discharge application filed by the applicant has been rejected.
From the record it appears that feeling aggrieved by the summoning order as well as the entire proceedings of the above mentioned complaint case, the applicants have approached this Court by means of Application under Section 482 Cr.P.C. No. 2563 of 2017 (Atar Singh Vs. State of U.P. and another) which was disposed of finally vide order dated 31.01.2017.
Fro ready reference the order dated 31.01.2017 is quoted herein below:
"Heard Sri Abhay Singh Yadav, counsel for the applicant.
The present application under Section 482 Cr.P.C. has been filed for quashing the summoning order dated 12.11.2014 passed by Additional Chief Judicial Magistrate, Court no. 3, Rampur in complaint case no. 307 of 2010 (Rajveer Singh vs. Atar Singh), under Section 406 and 420 I.P.C. P.S. Shahzad Nagar District Rampur as well as order dated 19.10.2016 passed by Civil Judge (Senior Division)/F.T.C., Court no. 9, Rampur.
It has been stated by counsel for the applicant that the applicant and opposite party no. 2 had purchased a jeep in partnership having equal share in it. On the allegation that the applicant has not abided by the term and condition of the partnership, a civil suit being suit no. 153 of 2006 has been filed. In this suit, the court appointed receiver for taking custody of the jeep, however, the applicant has came with the case that jeep has already been stolen and thus the order of receiver could not complied with. Subsequently, the parties have entered into the compromise on 07.11.2006. In pursuance of the compromise, the applicant has paid Rs. 60,000/- to opposite party no. 2 as the cost of jeep which was share of the opposite party no. 2. Then, the dispute between the parties has already been settled by way of compromise on 07.11.2006.
Now, after about four years, the opposite party no. 2 has filed present complaint case in which compromise dated 07.11.2006 has been totally concealed. By concealing material fact, the order of summoning has been obtained from the court below on 12.11.2014 as the applicant has no notice, as such, he could not complied the order dated 12.11.2014, the court below issued non bailable warrant against him on 19.10.2016. He submits that the civil suit is already pending and during penedency of the civil suit, the dispute has been compromised. In view of the compromise, no criminal prosecution is required and the proceeding in this respect is abuse of process of law.
I have considered the argument of counsel for the applicant. Since, entering into the compromise is an issue between the parties, whether opposite party no. 2 admits the compromise or not, it is a question of fact.
In such circumstances, the applicant is given liberty to file a discharge application before the court below through his counsel within a period of three weeks and he may file all relevant papers along with the discharge application. In case, discharge application is filed, then a suitable order be passed on it by the court below after hearing the parties within a period of two months thereafter.
For a period of three weeks, no coercive action be taken against the applicant.
In view of the aforesaid, the application under Section 482 Cr.P.C. is disposed of. "
Pursuant to the aforesaid order dated 31.01.2017, the applicant filed discharge application dated 13.02.2017 before the court below. By means of the impugned order dated 28.06.2018, the Magistrate has rejected the discharge application filed by the applicant on the ground that since entire evidence has not yet been recorded under Section 244 Cr.P.C., therefore, it is impossible to conclude whether there is any charge against the applicant or whether the applicant is liable to be discharged. The reasoning recorded by the Magistrate is wholly incorrect. Section 245 Cr.P.C. which is relevant for the controversy in hand, is reproduced herein below:
"245. When accused shall be discharged.
(1) If, upon taking all the evidence referred to in section 244, the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him.
(2) Nothing in this section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless."
Admittedly, the discharge was claimed by the applicant in terms of Section 245 (2) Cr.P.C. Under the said provisions, a Magistrate can discharge the accused at previous stage of the proceedings if on the material on record, the charge against the applicant can be said to be groundless. However there is no recital to this effect in the order impugned. Thus, the Magistrate has failed to exercise the jurisdiction vested in him. In view of the aforesaid, order dated 28.06.2018 passed by the Civil Judge (Senior Division)/Fast Track Court, Rampur, cannot be sustained. It is accordingly quashed.
The present application is allowed.
The matter is remanded to the Magistrate concerned to decide the matter afresh in the light of the observations made herein above. Such exercise shall be completed within a period of two months from the date of production of the certified copy of this order.
Interim protection granted earlier to the applicant by this Court vide order dated 31.01.2017 shall stands extended till the disposal of the discharge application.
Order Date :- 31.7.2018 YK