Court No. - 44
Case :- APPLICATION U/S 482 No. - 27809 of 2018 Applicant :- Harendra Singh And 2 Others Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Arun Kumar Rana,Rajesh K.S. Chaudhary Counsel for Opposite Party :- G.A.
Hon'ble Rajeev Misra,J.
Heard Mr. Rajesh K. S. Chaudhary, learned counsel for the applicants and the learned A.G.A. for the State.
This application under Section 482 Cr.P.C. has been filed challenging the order dated 23.05.2015 passed by the Judicial Magistrate, Atrauli, Aligarh in Complaint Case No. 603 of 2013 (Smt. Saroj Devi Vs. Harendra and others) under Sections 420, 421, 468, 471 and 120-B I.P.C., Police Station-Atrauli, District- Aligarh whereby the application (paper no. 18A) filed by the applicants in terms of Section 245 (2) Cr.P.C. has been rejected. The applicants have also challenged the order dated 07.12.2017 passed by the Additional District and Sessions Judge, Court no. 11, Aligarh in Criminal Revision No. 492 of 2017 (Harendra Singh and another Vs. State of U.P. and another) whereby the aforesaid criminal revision preferred against the order dated 23.05.2015 has been dismissed.
From the record, it appears that the opposite party no.2 filed a complaint giving rise to complaint Case No. 603 of 2013 (Smt. Saroj Devi Vs. Harendra and others) under Sections 420, 421, 468, 471 and 120-B I.P.C., Police Station-Atrauli, District- Aligarh. The applicants were summoned in the above mentioned complaint case vide summoning order dated 22.01.2014. Feeling aggrieved by the aforesaid summoning order dated 22.01.2014, the applicants filed a criminal revision which was dismissed vide order dated 22.11.2014 passed by the Additional Sessions Judge, Court no. 9, Aligarh. Consequently, the applicants filed Criminal Misc. Writ Petition No. 2468 of 2015, which was decided vide order dated 02.02.2015. For ready reference the order dated 02.02.2015 is reproduced herein-under:
"This writ petition has been filed seeking the quashing of the summoning order dated 20.1.2014 passed by Judicial Magistrate, Atrauli, Aligarh, as well as revisional order dated 21.1.2014 in Criminal Case No. 218 of 2014 (in Complaint Case No.603 of 2013). u/s 420, 421, 468, 471, 120-B IPC., P.S. Atrauli, District Aligarh.
Heard petitioners' counsel as well as learned A.G.A. Entire record has been perused.
All the contentions raised by the petitioners' 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 counsel. The veracity and credibility of material furnished on behalf of the prosecution has been questioned and false implication has been pleaded. The submissions made by the petitioners' 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.
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. In the case of Chandra Deo Singh Vs. Prokash Chandra Bose AIR 1963 SC 1430 the Apex Court had observed as follows:
"The courts have also pointed out in these cases that what the magistrate has to see is whether there is evidence in support of the allegations of the complainant and not whether the evidence is sufficient to warrant a conviction. The learned Judges is some of these cases have been at pains to observe that an enquiry under Section 202 is not to be likened to a trial which can only take place after process is issued, and that there can be only one trial. No doubt, as stated in sub-section (1) of Section 202 itself, the object of the enquiry is to ascertain the truth or falsehood of the complaint, but the magistrate making the enquiry has to do this only with reference to the intrinsic quality of the statements made before him at the enquiry which would naturally mean the complaint itself, the statement on oath made by the complainant and the statements made before him by persons examined at the instance of the complainant."
In the yet another case of Vadilal Panchal Vs. Dattatraya Dulaji Ghadigaonker AIR 1960 SC 1113 the Hon'ble Supreme Court had expressed the views in the following terms:
"Section 202 says that the magistrate may, if he things fit, for reasons to be recorded in writing, postpone the issue of process for compelling the attendance of the person complained against and direct an inquiry for the purpose of ascertaining the truth or falsehood of the complaint; in other words, the scope of an inquiry under the section is limited to find out the truth or falsehood of the complaint in order to determine the question of the issue of process. The inquiry is for the purpose of ascertaining the truth or falsehood of the complaint; that is, for ascertaining whether there is evidence in support of the complaint so as to justify the issue of process and commencement of proceedings against the person concerned. The section does not say that a regular trial for adjudging the guilt or otherwise of the person complained against should take place at the stage; for the person complained against can be legally called upon to answer the accusation made against him only when a process has issued and he is put on trial."
In the case of Smt. Nagawwa Vs. Veeranna Shivalingappa Konjalgi 1976 3 SCC 736 the Hon'ble Apex Court had held as follows:
"The magistrate has been given an undoubted discretion in the matter and the discretion has to be judicially exercised by him. Once the magistrate has exercised his discretion it is not for the High Court, or even this Court, to substitute its own discretion for that of the magistrate or to examine the case on merits with a view to find out whether or not the allegations in the complaint, if proved, would ultimately end in conviction of the accused. These considerations, in our opinion, are totally foreign to the scope and ambit of an inquiry under Section 202 of the Code of Criminal Procedure which culminates into an order under Section 204 of the Code. Thus it may be safely held that in the following cases an order of the magistrate issuing process against the accused can be quashed or set aside:
(1) where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused;
(2) where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused;
(3) Where the discretion exercised by the magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and
(4) where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like.
The cases mentioned by us are purely illustrative and provide sufficient guidelines to indicate contingencies where the High Court can quash proceedings."
The ambit and scope of interference in the exercise of revisional jurisdiction has its own constraints and limitations. In fact even 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 also 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. It was observed by the Hon'ble Apex Court in Bhajan Lal's Case as follows :
"The following categories can be stated by way of illustration wherein the extra-ordinary power under Article 226 or the inherent powers under Section 482 of the Code of Criminal Procedure can be exercised by the High Court either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised:
(1) where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3) where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7) where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
Illumined by the case law referred to herein above, this Court has adverted to the entire record of the case.
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 petitioner 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.
The counsel has strenuously urged before the Court to grant permission to avail the provisions which entitle the accused to seek discharge u/s 245 (2) Cr.P.C. A liberty has also been sought to appear through counsel and place before the trial court the submissions which according to the counsel may be sufficient to discharge the accused.
The summoning court has been vested with sufficient powers to discharge the accused even before the stage to frame the charges comes, if for reasons to be recorded it considers the charge to be groundless.
In the peculiar facts and circumstances of the case, as requested, the permission to appear before the concerned lower court within a month from today through the representing counsel and move an application claiming discharge is granted to the accused. The concerned court shall after hearing the counsel decide the application on merits in accordance with law within a period which shall not exceed a period of four months from today.
No coercive measures shall be adopted against the accused, in the aforesaid period of four months or till disposal of the discharge application, whichever is earlier.
If the concerned court after hearing the counsel for the accused feels persuaded to have the view that the accused ought not to have been summoned and the charge is groundless it shall not abstain from discharging the accused only on the ground that the material available at the time of summoning was the same which is available on record at the time of hearing the discharge application u/s 245(2) Cr.P.C. On the other hand if the lower court even after hearing the counsel for accused holds the view that the accused has been rightly summoned and the material produced by the complainant does not indicate the charges to be groundless it shall make an order to that effect and proceed further in the matter in accordance with law and shall also be free to adopt such measures to procure the attendance of the accused as the law permits.
It is clarified that if this order is not availed by the accused within the stipulated period of time no application for extension of time shall be entertained.
It is further clarified that for the present this order has been passed only with regard to the accused on behalf of whom this writ petition has been filed in this Court.
With the above observations, this writ petition stands disposed off. "
Pursuant to the aforesaid order, the applicant filed an application dated 19.02.2015, which was registered as Paper No. 18A in terms of Section 245 (2) Cr.P.C. seeking discharge in the above mentioned complaint case. The said application came to be dismissed by the Judicial Magistrate, Atrauli Aligarh vide order dated 23.05.2015. Feeling aggrieved by the order dated 23.05.2015, the applicants filed criminal revision no. 492 of 2015 (Harendra Singh and another Vs. State of U.P. and another) which was also dismissed vide order dated 07.12.2017. Consequently, the applicants have now approached this Court by means of the present application under Section 482 Cr.P.C.
The controversy involved in the present application centres around Section 245 Cr.P.C. As such, Section 245 Cr.P.C. is quoted 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."
The discharge application was filed by the applicants in terms of Section 245(2) Cr.P.C. The said Section enables the Magistrate to discharge the accused persons at the previous stage of the proceedings provided the charge alleged against the accused persons is found to be groundless. Therefore, the condition precedent for exercise of jurisdiction in terms of Section 245 Cr.P.C. is that the charge which is alleged against the accused persons only when found to be groundless can the Magistrate dischargre the accused persons.
From the perusal of the order dated 23.05.2015 passed by the Judicial Magistrate, it is apparent that the Magistrate upon consideration of the metarial on the record has recorded a categorical finding that the charge alleged against the applicants cannot be said to be groundless.
A perusal of the said order 23.05.2015 further shows that the Magistrate has not acted like a rubber stamp but has considered the evidence of the complainant and his witnesses as recorded in terms of Section 200 and 202 Cr.P.C.
The revisional court upon independent examination of the order dated 23.05.2015 found that the conclusion drawn by the Magistrate as noted herein above was in consonance with the material on the record. As such, no perversity was found in the order of the Magistrate. However, the revisional court being conscious of the jurisdiction vested in it in terms of Section 397 Cr.P.C. examined the impugned order of the Magistrate in the light of the proposition as to whether the facts considered by the magistrate which were jurisdictional facts have rightly been considered or not and whether on such jurisdictional facts the conclusion as drawn by the Magistrate could be sustained. Thus the revisional court independently examined the record and upon critical and analytical evaluation of the same concurred with the conclusion drawn by the Magistrate. In arriving at the said conclusion the revisional court has given certain additional findings also.
Learned counsel for the applicants could not point out that the findings recorded by the magistrate are illegal perverse or erroneous. Similar is the situation in respect of the order passed by the revisional court.
The Court has itself examined the impugned orders. Both the courts below have concurrently held that the charge alleged against the applicants cannot be said to be groundless at this stage. Consequently, no illegality was committed by the Magistrate in rejecting the discharge application or by the revisional court in dismissing the revision.
For the reasons as mentioned herein above, no case for interference is made out. The application fails and is accordingly dismissed.
Order Date :- 23.8.2018 YK