Heard learned counsel for the petitioners and learned A.G.A. for the State.
With the consent of the learned counsel for the petitioners and learned A.G.A. for the state this writ petition is being finally disposed of at this stage without calling for any counter affidavit. It appears that the respondent no. 2 filed an application under section 156(3) Cr.P.C. before the Magistrate which was allowed and pursuant to the order of the Magistrate, first information report dated 7.9.2008 was lodged on the basis of which case crime no. 347 of 2008 under sections 420, 406 and 504 I.P.C. was registered against the petitioner with P.S. Mau Darwaja, District Farrukahabad. The Investigating Officer after investigating the matter submitted police report against the petitioners unders sections 420, 406, and 504 I.P.C. which was challenged by the petitioners before this court in Criminal Misc. Application no. 11523 of 2009 which was finally disposed of by this court by order dated 25.5.2009, by which although this court refused to quash the police report but liberty was given to the petitioners to move a discharge application before the trial and pursuant to the order of this court the petitioners filed a discharge application before the A.C.J.M. Farrukhabad, which was rejected by him by his order dated 20.7.2009, copy whereof has been filed as Annexure-8 to the writ petition. The petitioner challenged the order of the C.J.M. before the Sessions Judge in criminal revision no. 220 of 2009 which was dismissed by him by his order dated 17.8.2009, copy whereof has been annexed as Annexure no. 10 to the writ petition.
By means of this writ petition a prayer has been made by the petitioner for quashing the order dated 17.8.2009 passed in criminal revision no. 220 of 20009 Ramedra and another Vs. State of U.P. and the order dated 20.7.2009 passed by C.J.M. Farrukhabad rejecting the petitioners' discharge application.
Learned counsel for the petitioner submitted that Section 227 of the Code of Criminal Procedure provides that if, upon considerataion of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the court considers that there is no sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing. However, in the present case the discharge application has been rejected by C.J.M. Farrukahabad without even adverting to the submissions made on behalf of the petitioner which rendered the order passed by the C.J.M. Farrukhabad totally unsustainable in the eyes of law and the failure of the revisional court to redeem the illegality committed by the C.J.M. Farrukhabad has vitiated the order of the revisional court also. Learned counsel for the petitioner further submitted that it was specifically argued before both the courts that neither the statements of the witnesses recorded under section 161 Cr.P.C. nor the material collected during investigation disclose the ingredients of any offence against the petitioner but the arguments/submissions advanced on behalf of the petitioners before the courts below do not find any mention in the impugned orders.
Learned A.G.A. appearing for the state/respondent made his submissions in support of the impugned order.
I have heard learned counsel for the petitioner, learned A.G.A. for the State and perused the impugned order.
A careful reading of the impugned orders shows that neither the Magistrate nor the revisional court have even adverted to the submissions advanced on behalf of the petitioners in support of their claim for discharge. This averments on the part of the courts below has rendered their orders totally unsustainable at law and liable to be set-aside. The learned Magistrate had totally failed to decide the petitioners' discharge application in accordance with Section 227 Cr.P.C. and the revisional court also fell into the same error in rejecting the petitioners' revision.
For the aforesaid reasons the writ petition is allowed. The orders dated 17.8.2009 and 20.7.2009 passed by the Sessions Judge Farrukhabad and A.C.J.M. Farrukhabad, respectively are hereby quashed.
The case is remitted back to A.C.J.M. Farrukhabad to consider and decide the discharge application of the petitioners afresh strictly in accordance with law within a period of one month from the date of the production of the certified copy of this order before him.
Order Date :- 13.1.2010 R.C.