Court No. - 49
Case :- APPLICATION U/S 482 No. - 32428 of 2018 Applicant :- Hemant Gupta Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Anil Kumar Srivastava,Anil Kumar Verma Counsel for Opposite Party :- G.A.
Hon'ble Jayant Banerji,J.
Heard Shri Anil Kumar Srivastava and Shri Anil Kumar Verma, learned counsel for the applicant and Shri Vikas Goswami, learned AGA for the State.
By means of this application, the applicant prays for quashing of the order dated 13 August 2018 passed by the Additional Chief Judicial Magistrate, Eastern Railway, Varanasi, a certified copy of which has been annexed as Annexure-9 to the affidavit filed in support of the application. The applicant has also prayed that he may be discharged from Criminal Case No.4075 of 2017 (State vs. Mohd. Guddu & Ors.) arising out of Case Crime No.03 of 2016 under Sections 380, 413, 201 IPC read with Section 4 R.P. (Unlawful Possession) U.P. Act, Police Station-
R.P.F. Maduadeeh, District Varanasi pending in the Court of Additional Chief Judicial Magistrate, (NER), Varanasi It is the contention of the learned counsel for the applicant that the applicant had earlier approached this Court by filing Application u/s 482 No.17474 of 2018 in which, by means of an order dated 18 May 2018, this Court permitted the applicant to appear before the concerned court within one month from that date through his counsel and move an application claiming his discharge and the concerned court was directed to decide the application on merits in accordance with law. It is contended that the impugned order dated 13 August 2018 has been passed without considering the spirit of the order of this Court passed in the earlier application and without examining the case on its merit.
Learned AGA states that there is no illegality in the impugned order which may call for interference by this Court.
The court below has proceeded to reject the application for discharge of the applicant on the ground that evidence under Section 244 of the Cr.P.C. has not been recorded as yet and the applicant was summoned since there was, prima facie, material on record for conducting the trial. The admitted case of the applicant that his trial has been ordered in warrant case which is instituted otherwise than on a police report. That being so, Part- B of Chapter XIX of the Cr.P.C. would be applicable, Section 245 of which is as follows:
"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."
Thus, a pre-condition for discharging of an accused under Section 245(1), Cr.P.C. is that evidence under Section 244 of the Cr.P.C. must have been recorded. However, under sub- section (2) of Section 245 Cr.P.C., the Magistrate can also discharge an accused at any previous stage of the case, if he considers the charges to be groundless.
A perusal of the order impugned reveals that firstly, evidence under Section 244 of the Cr.P.C. has not been recorded. This fact, fairly, has not been disputed by the learned counsel for the applicant. Secondly, the Magistrate has also considered the facts of the case and has come to a conclusion that, prima facie, a case is made out for trail and has, therefore, proceeded to summon the accused.
In view of the above, the Court finds that there is no illegality or infirmity in the order passed by the Magistrate dated 13 August 2018 rejecting the application for discharge.
The application is lacking merit and is, accordingly, rejected.
However, it is provided that in case the applicant moves an application for bail before the court below within a period of fifteen days from today, the same shall be considered expeditiously and strictly in accordance with law, provided there is no legal impediment. For a period of forty five days from today or till the disposal of the application, whichever is earlier, no coercive steps shall be taken against the applicant in the aforesaid case.
Order Date :- 27.10.2018 SK (Jayant Banerji, J.)