Court No. - 41
Case :- CRIMINAL MISC. WRIT PETITION No. - 7588 of 2005 Petitioner :- Nanak Saran And Others Respondent :- State Of U.P. And Others Counsel for Petitioner :- K.K. Tripathi,Neeraj Dubey,Shaktidhar Dubey Counsel for Respondent :- Govt. Advocate,M.P. Srivastava,Vijay Singh Gour
Hon'ble Aniruddha Singh,J.
1- Heard learned counsel for the petitioner, Sri M.P. Srivastava, learned counsel for respondent no.2 and learned A.G.A. for the State and perused the record.
2- This criminal writ petition has been filed by the petitioners challenging the orders dated 28.2.2004, 16.8.2004 and 20.4.2005 in criminal Case no. 3174 of 2003 whereby the petitioners were summoned under Sections 498, 109, 406B and 120 I.P.C. and application under Section 245 Cr.P.C. for discharge of the petitioners was dismissed and criminal revision no. 361 of 2004 filed by the petitioners was also dismissed vide order dated 20.4.2005 by Sessions Judge, Kanpur Nagar.
3- Learned counsel for the petitioners submitted that the impugned order was passed against fact and law, illegal and arbitrary and without application of mind.
4- Learned A.G.A. supported the order passed by the court concerned is legal and after considering the evidence on record.
5- In nutshell, the facts of the case are that complainant Smt. Hema Tripathi was married with Krishan Tripathi on 26.5.1994 and one son Shubham was born out of their wedlock. During the life time and without divorce, Krishna Kumar Tripathi solemnized second marriage with Sunita @ Radha with co- operation of other co-accused. Complainant had lodged first information report registered as Case Crime No.356 of 1999, under Sections 323, 498, 504 I.P.C., Police Raipura, District Kanpur Nagar. Krishna Kumar filed a case under Section 13 of the Hindu Marriage Act and 25 of Guardian and Wards Act in the Family Coourt is also pending between the parties without her consent.
6- After hearing the parties and considering the material available on record the petitioners were summoned and moved discharged application and that was rejected. Against which, the petitioners filed criminal revision which was also dismissed by the court concerned. Hence this petition.
7- On the point of facts, both the courts below have given concurrent finding and the view taken by the said courts are plausible view. Hence no interference is called for in writ petition.
8- It is pertinent to mention Section 239 Cr.P.C. and Section 240 Cr.P.C. which are as follows:-
"Section 239 Cr.P.C. If, upon considering the police report and the documents sent with it under Section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing.
Section 240 Cr.P.C.(1) If, upon such consideration, examination, if any, for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try and which, in his opinion, could be adequately punished by him, he shall frame in writing a charge against the accused.
(2) The charge shall then be read and explained to the accused, and he shall be asked whether he pleads guilty of the offence charged or claims to be tried."
9- According to Section 239 Cr.P.C., if the Magistrate is of the opinion that accused is liable to be discharged from the charge levelled against him, then he is duty bound to record reasons for discharging the accused. According to Section 240 Cr.P.C., if the Magistrate is competent to try and is of the opinion that accused could be punished by him, he shall frame charge against the accused.
10- In the case of State of Maharashtra v. Som Nath Thapa (1996) 4 SCC 659, where a three-Judge Bench of the Apex Court, after noting three pairs of sections viz. (i) Sections 227 and 228 insofar as sessions trial is concerned; (ii) Sections 239 and 240 relatable to trial of warrant cases; and (iii) Sections 245(1) and (2) qua trial of summons cases, which dealt with the question of framing of charge or discharge, stated thus:
"if on the basis of materials on record, a court could come to the conclusion that commission of the offence is a probable consequence, a case for framing of charge exists. To put it differently, if the court were to think that the accused might have committed the offence it can frame the charge, though for conviction the conclusion is required to be that the accused has committed the offence. It is apparent that at the stage of framing of a charge, probative value of the materials on record cannot be gone into; the materials brought on record by the prosecution has to be accepted as true at that stage."
11- It has been held by Division Bench of Delhi High Court in the case of Bhiku Ram vs. Delhi Municipality, 1977 CRLJ, 1955 that framing of charge cannot be said to be finally determining the matter in issue, setting at rest the controversy between the parties. In framing a charge Magistrate only specifies the accusation against an accused person and communicates the same to him. Therefore they are interlocutory being a procedural step and does not determine the principal matter in dispute. Thus, in the present case, the Magistrate has committed no error in framing charges.
12- In the case of Munna Devi vs. State of Rajasthan & another Appeal(Crl.) No. 1138 of 2001 decided on 6.11.2001, Hon'ble Supreme Court has held that the revisional power under the Code of Criminal Procedure cannot be exercised in a routine and casual manner. While exercising such powers the High Court has no authority to appreciate the evidence in the manner as the trial and the appellate courts are required to do. Revisional powers could be exercised only when it is shown that there is a legal bar against the continuance of the criminal proceedings or the framing of charge or the facts as stated in the First Information Report even if they are taken at the face value and accepted in their entirety do not constitute the offence for which the accused has been charged.
13- In the case of Nemichand Jain vs. Roshanlal and others reported in (2004) 13 SCC 461 Hon'ble Supreme Court has held that at the Stage of framing charges, the High Court should not have considered the whole evidence and then concluded that there were no materials to frame charges under Section 304-B and 498-A IPC. The Supreme Court set aside the order passed by the High Court and directed the Sessions Judge to proceed with the case on the basis of the charges framed by Sessions Court under Sections 304-B and 498-A IPC.
15- A perusal of record shows that charges against the petitioner has already been framed. On this ground also, the petition is liable to be dismissed. This Court finds no illegality, impropriety, material irregularity or jurisdictional error in the impugned order. The present petition lacks merit and is liable to be dismissed. Hence dismissed. Interim order, if any, stands vacated.
16- However, if the petitioners are not on bail, they will surrender before the court concerned within 30 days from today and apply for bail, the same shall be considered and disposed of expeditiously in accordance with law. Till then, no coercive action shall be taken against the petitioners.
17- The record of lower Court be returned to the Court concerned immediately with copy of this order.
Order Date :- 5.9.2018 OP