Court No. - 41
Case :- CRIMINAL MISC. WRIT PETITION No. - 12419 of 2005 Petitioner :- Shailesh Kumar Kaushal Respondent :- State Of U.P. & Others Counsel for Petitioner :- Sanjiv Kumar Pandey,Rajeev Kumar Pandey Counsel for Respondent :- Govt. Advocate
Hon'ble Aniruddha Singh,J.
1- None is present on behalf of the petitioner to prosecute this case even in the revised list/call.
2- Heard learned A.G.A. and perused the record and the case is being decided in the absence of learned counsel for the petitioner on merit.
3- This criminal writ petition has been preferred by the petitioner- Shailesh Kumar Kaushal against the order dated 5.5.2005 passed by the Additional C.M.M. IIIrd Kanpur Nagar whereby the discharge application of the petitioner was rejected. Against that order, the petitioner filed Criminal Revision No.293 of 2005, which was also dismissed by the Additional Sessions Judge, Court No.13, Kanpur Nagar vide order dated 7.11.2005.
4- From perusal of the record, it transpires that petitioner had taken plea that on the basis of Maruti Car, bearing registration No. U.P.-30B-1646, 800 C.C., the case was registered and charge-sheet was submitted under Sections 420, 467, 468, 471, 120-B and 411 I.P.C., Police Station Chhavani, District Kanpur Nagar and that vehicle was sold by the petitioner to Anita Gupat; hence the petitioner is liable to be discharged, but the court below rejected his application.
5- On the information of the informer, two vehicles Maruti Car, bearing registration No. U.P.-30B-1646, 800 C.C. and Maruti Van, bearing registration no. U.P.-38-0005 were recovered and during investigation, it was found that on the forged documents, the vehicles were transferred from one person to another person and charge-sheet was submitted against Anita Gupta and Shailesh Kumar Kaushal (petitioner). Cognizance was taken and after that discharge application was moved, which was rejected. Against the order of rejection, the petitioner filed revision, which was also dismissed. Hence this writ petition.
6- Learned A.G.A. supported the order passed by the courts below.
7- 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."
8- 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.
9- 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."
10- 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.
11- In that case there had been a written compromise, hence criminal proceedings could have been quashed, but in the instant case neither written compromise was filed before the trial Court nor accepted or verified by it. Hence, revisionists are not entitled to be discharged from the charges levelled against them.
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.
14- It is also pertinent to mention here that petitioner will have opportunity to produce his evidence before the Court below at the defence stage, after statement of the accused under Section 313 Cr.P.C..
15- A perusal of record shows that charges against the petitioner have already been framed on 5.5.2005. 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- Copy of the order be transmitted to the court concerned to proceed in accordance with law.
Order Date :- 31.8.2018 OP