Court No. - 49
Case :- APPLICATION U/S 482 No. - 16098 of 2018 Applicant :- Brijesh Kumar Singh Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Ajeet Kumar Shukla,Anil Kumar Chaurasia Counsel for Opposite Party :- G.A.,Dr. Shiv Bahadur Singh,Rajendra Singh
Hon'ble Saumitra Dayal Singh,J.
Heard Sri Pramod Bhardwaj and Sri Ajeet Kumar Shukla, learned counsel for the applicant and Sri Shiv Bahadur Singh, learned counsel for the opposite party no.2.
This application under Section 482 Cr.P.C. has been filed to quash the order dated 15.11.2017 passed by Chief Judicial Magistrate, Chandauli in Criminal Case No.4857 of 2015 (State Vs. Manoj Kumar Singh and others) in Case Crime No. 60 of 2015, under Sections 419, 420, 467, 468, 471, 120B IPC, Police Station Chandauli, District Chandauli.
Learned counsel for the applicants submits that while the Naib Tahsildar had passed the order to record mutation entries in favour of the applicant on 20.2.2014, subsequently another order came to be passed on 16.6.2014 by the said authority. It was made subject matter of challenge before the Board of Revenue where the revision filed by the present applicants was dismissed. Arising there from Writ-B No. 9356 of 2015 is pending before this Court and interim order has been passed on 22.4.2015 to stay the order dated 16.6.2014 passed by the Naib Tahsildar. An extract of the writ petition has been filed with the supplementary affidavit wherein the applicants had stated that the Naib Tahsildar had decided the issue in favour of the applicants on 20.2.2014.
It is therefore submitted that the essential matter in dispute is still sub-judice writ petition and once it is established that the Naib Tahsildar had decided the proceeding on 20.2.2014. no criminal prosecution would lie against the applicants.
In view of the pendency of the main dispute in civil proceeding, no prosecution may be continued.
Learned counsel for the opposite party no.2 submits that the present applications are not maintainable in view of the fact that upon submission of the charge sheet the applicant Manoj Kumar and other accused including Dinesh Kumar Singh had filed individual/separate discharge applications.
The discharge application filed by the applicant Manoj Kumar came to be rejected by the order dated 5.10.2017 passed by the C.J.M., Chandauli. Also, similar discharge application filed by the co-accused Dinesh Kumar Singh came to be similarly rejected by the CJ.M., Chandauli by his order dated 3.10.2016.
The applicant Manoj Kumar did not challenge the order dated 5.10.2017.
Against the order dated 3.10.2016 the co-accused Dinesh Kumar Singh preferred criminal revision before the District and Sessions Judge, Chandauli being Criminal Revision No. 60 of 2016. The same was also rejected by order dated 5.10.2017. Dinesh Kumar Singh then approached this Court by means of 482 Cr.P.C. Application No. 38171 of 2017. It was dismissed as not pressed by the order dated 16.11.2017, with a further liberty to file a fresh petition with proper particular. However, it is not disputed that the said co-accused did not file any further 482 Cr.P.C. application.
In the above factual background, it has been submitted that the rejection of the discharge application has attained finality. The present applicant Manoj Kumar has not challenged the order dated 5.10.2017 though the same has been annexed with the affidavit.
Learned counsel for the opposite party no. 2 submits, the order rejecting the discharge application and the order framing charges are two aspects of the same opinion of the Magistrate, expressed at the same stage of proceedings.
In this regard, reliance has been placed on the decision of the Supreme Court in the case of Dinesh Vs. State of U.P. and Another reported in 2014 (13) SCC 137 as also on the decisions of the Supreme Court in the case of R.S. Mishra Vs. State of Orrisa and Others reported in 2011 (2) SCC 689 and Amit Kapoor Vs. Ramesh Chandra reported in (2012) 9 SCC 460.
It is thus submitted that the discharge application of the applicant having been rejected and that order having not been challenged, there does not exist any ground for interference with the order framing charges.
It has also been submitted that in any case the rejection of the discharge application of the co-accused has been confirmed in revision (by the District and Sessions Judge) and for that reason also there is no ground available to the applicant to seek for any interference at this stage.
Having considered the argument so advanced by learned counsel for the parties, it is first seen the discharge application filed by the applicant was rejected on 5.10.2017 and the order framing charges was passed thereafter on 15.11.2017. However, the present application has been filed by the applicant only against the order dated 15.11.2017 by which charges have been framed.
The order on the discharge application must necessarily precede the order of framing charge. This flows from scheme of the Code where under upon submission of a charge sheet, the learned Magistrate is first required to apply his mind to the material available on the prosecution file to examine whether no offence is made out against the accused. If he opines that no offence is made out against the accused, he has no option but to pass an order and discharge the accused, at that stage itself.
However, if the learned Magistrate were to form a opinion that the accused does not deserve to be discharged at that stage, then, it necessarily follows, in logical sequence, that charges be framed against the accused, at that point itself.
The application of mind; the material to which the learned Magistrate has to apply is mind and the opinion formed, remain the same and one. It is the conclusion that he draws on such application of mind that may result either in accused being discharged - for reasons to be recorded, at that stage or being charged of any specific offence/s.
In the instant case it does appear that in the case of co-accused facing similar charges on same fact allegations, the order rejecting the discharge application has also been confirmed in revision and that order has also attained finality.
Thus, there is no doubt that the discharge application filed by the applicant and the other co-accused have been dismissed and those orders have attained finality.
In absence of any challenge to the order rejecting the discharge application, at this stage, there can be no challenge raised to the order framing charges as it appears to be only logical consequence of the rejection of the discharge application filed by the applicant.
Consequently, the present application lacks merit and is accordingly dismissed. Interim order granted earlier stands vacated.
Order Date :- 28.5.2018 A. Singh