Court No. - 49
Case :- CRIMINAL REVISION No. - 2782 of 2018 Revisionist :- Manoj Kumar Opposite Party :- State Of U.P. And Another Counsel for Revisionist :- Anirudh Kumar Upadhyay,Arvind Agrawal Counsel for Opposite Party :- G.A.
Hon'ble Saumitra Dayal Singh,J.
Heard learned counsel for the applicant and learned A.G.A. for the State.
The present criminal revision has been filed to quash the order dated 02.08.2018 passed by the learned Addl. Session Judge/Fast Track Court, Basti in Session Trial No. 102 of 2018 (State Vs. Manoj Kumar), arising out of Case Crime No. 305 of 2017, under Sections- 376, 506 I.P.C., Police Station- Chhawni, District- Basti by which the learned court below has rejected the discharge application filed by the applicant for the reason that at this stage, it did not appear to the learned court below that there exist any material on the prosecution file on the basis of which the applicant may be discharged.
Learned counsel for the applicant submits that the learned court below has completely misread the judgment of this Court in the case of Raj Kumar Agrawal @ Raju Garg Vs. State Of U.P. And Anr. reported in 2016 (96) ALLCC 403. It is submitted that the ratio of that judgment would be that the defence material or evidence may not be considered at the stage of discharge but it is not the law that the defence is not to be heard at the stage of discharge as has been observed by the learned Court below.
Learned AGA on the other hand submits that while the observation made by the learned Court below, as worded, as to the ratio of the aforesaid judgment in the case of Raj Kumar Agrawal @ Raju Garg Vs. State Of U.P. And Anr. (supra) does appear to be a little incorrect, however, that does not appear to be the reason for rejection of the discharge application inasmuch as while the deciding the discharge application, the learned Court below has specifically observed that at this stage, there is no material on the basis of which the applicant may be discharged.
Having considered the arguments so advanced by learned counsel for the parties, in the first place, there can be no doubt that the defence has right to claim discharge though it may not bring in any fresh material in support of such plea.
Then, as to the reason given by the learned Court below, it does not appear that the learned Court below has gone through/sifted through case diary material and thereafter reach its conclusions. In fact it appears that the learned Court below has merely reasoned that in view of the material relied upon by the prosecution, it does not appear that there exists any good ground to grant discharge. Therefore, the order passed by the learned Court below does appear to be erroneous or incomplete in reasoning.
Once the discharge had been claimed by the defence which is statutory right, the learned Court below was obliged to decide the same, strictly in accordance with law. It had to sift through the entire case diary material and record its prima facie satisfaction whether the accused was liable to be charged for any offence as may be proposed in the charge sheet. Such application of mind is not restricted to material that the prosecution relies upon but also the other material that may exist on the prosecution file.
Accordingly, the order dated 02.08.2018 passed by the learned Addl. Session Judge/Fast Track Court, Basti is set aside and the matter is remitted to the learned Court below to pass a fresh order as expeditiously as possible, preferably within a period of two months from the date of production of a certified copy of this order. The applicant further undertakes not to take any undue or long adjournment.
With the aforesaid observation, the present criminal revision is
disposed of.
Order Date :- 23.8.2018 Abhilash