Court No. - 42
Case :- APPLICATION U/S 482 No. - 23313 of 2019 Applicant :- Mahendra Kumar Alias Mahendra Kumar Dubey Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Amar Nath Mishra,Neeraj Mishra Counsel for Opposite Party :- G.A.
Hon'ble Siddharth,J.
Heard learned counsel for the applicant and learned A.G.A for the State.
The applicant has approached this Court against the impugned order dated 27.4.2019 whereby the discharge application of the applicant has been rejected by a non-speaking order. Learned counsel for the applicant has pointed out that the learned court below has discussed the facts of the case for discharge and thereafter the submission made by the learned A.D.G.C. (Crl.) and in three lines has stated that from the material available on record the alleged offence is made out against applicant and there is sufficient ground for framing of charges under Sections 498A, 304B IPC and alternative charge under Section 302 IPC and 4 Dowry Prohibition Act.
Learned counsel for the applicant has stated that the order dated 27.4.2019 is a non-speaking order and despite the order passed by this Court earlier, in Criminal Misc. Application u/s 482 No. 4027 of 1997, on 10.04.2013, the impugned order has again been passed without application of judicial mind.
Learned A.G.A has submitted that at the stage of considering the discharge application, the court below is not required to go into the entire evidence on record and record its findings regarding the veracity of the evidence collected by the Investigating Officer. There is no illegality and infirmity in the impugned order.
After hearing the rival contentions, this Court finds that it is true that the trial court is not required to consider each and every evidence collected by the I.O. at the time of consideration of discharge application, however, while considering the discharge application at least the grounds raised in the discharge application are required to be addressed by the trial court before rejecting the application or allowing the same. In the present case no application of judicial mind is discernible from the order impugned.
Accordingly the order dated 27.04.2019 passed by the Sessions Judge, Lalitpur in S.T. No. 167 of 1996 (Mahendra Kumar Dubey) is hereby set aside.
The courts below is directed to pass afresh order on discharge application in accordance with law within a period of three months from the date of production of a certified copy of this order.
The learned counsel for the applicant has expressed his apprehension that once the impugned order has been passed by the learned Sessions Judge, he may be prejudiced and even after remand he may pass the same order and therefore it would be in fitness of things to transfer the case to some other Additional Sessions Judge for hearing again.
This Court feels that the learned Sessions Judge is competent enough to consider this aspect of submission made, learned Sessions Judge shall consider whether he should hear the case again or assign it to some other court of competent jurisdiction and state his reasons accordingly in the order .
The application stands allowed.
Order Date :- 25.6.2019 Manish Tripathi