Court No. - 38
Case :- APPLICATION U/S 482 No. - 16377 of 2019 Applicant :- Smt. Shalini Sharma Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Rajiv Shukla,Pratibha Ojha Counsel for Opposite Party :- G.A.
Hon'ble Virendra Kumar Srivastava,J.
Supplementary affidavit filed by the learned counsel for the applicant, which is taken on record.
By means of the present application, the applicant has filed this application with a prayer to quash the order dated 25.3.2019 passed by A.C.J.M-II Bulandshahar in Crl. Case No.2143 of 2017, case crime No.256 of 2015, under sections 325, 323, 504 and 452 I.P.C.
Heard Sri Rajiv Shukla, learned counsel for the applicant and learned A.G.A for the State and perused the record.
The applicant Shalini Sharma had lodged the first information report against the opposite party No.2 and others, with the allegation that they hurled abuses to her husband and thrown him from IInd floor of her building. On her information F.I.R under section 147, 307 and 504 I.P.C was registered but after investigation a charge sheet under sections 323,325, 504 and 506 I.P.C was filed by the investigating officer and cognizance was taken thereupon. At the time of framing of charge, the opposite party No.2 filed an application with the submission that sufficient material is available for framing the charge under sections 307/147 I.P.C. Hence, the charge under sections 147 and 307 I.P.C also be framed. The learned Magistrate considering the argument advanced by both the parties and the fact and material available on record found that prima facie offence under sections 147 and 307 I.P.C is not made out and dismissed.
Learned counsel for the applicant submits that there are sufficient material available on record to frame the charge under sections 147 and 307 I.P.C along with other offences mentioned in the charge sheet submitted by the investigating officer. The learned Magistrate without perusing the evidence and material available on record has passed the impugned order which is liable to be quashed.
Learned A.G.A has vehemently opposed the submission made by the learned counsel for the applicant and submitted that there is no illegality in the order passed by the learned Magistrate. Cognizance has been taken on the police report filed under section 173(2) Cr.P.C by the investigating officer. Hence the charge is also required to be framed only on the fact and material produced by the investigating officer.
Chapter XIX of Code of Criminal Procedure 1973 (Code) deals with trial of warrant cases by Magistrates.
This Chapter has been divided in three parts. Part-A deals with cases instituted on a police report. Part-B deals with cases instituted otherwise than on police report and Part-C deals with the conclusion of trial. Part-A of this Chapter contains from Section 238 to Section 243 of the Code but sections 238, 239 and Section 240 of the Code are relevant to the issue involved in this revision.
Section 238 of the Code deals with the compliance of section 207 of the Code, section 239 of the Code provides when accused shall be discharged and section 240 of the Code deals with framing of charge. Sections 238,239 and 240 reads as under:-
Section 238- When, in any warrant-case instituted on a police report, the accused appears or is brought before a Magistrate at the commencement of the trial, the Magistrate shall satisfy himself that he has complied with the provisions of section 207.
Section 239. When accused shall be discharged. 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 (1) If, upon such consideration, examination, if any, and hearing, the Magistrate is of opinion that there is ground 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.
(ii) 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.
Thus, the combine result of the above mentioned provision is that at the time of framing of charge, the Magistrate is required to ensure the compliance of Section 207 Cr.P.C. The object of this section is that the accused must know the incriminating documentary as well as oral evidence filed against him so that he can come with the preparation to defend himself properly at the stage of discharge or framing of charge.
Section 239 specifically provides that the Magistrate has to consider only the police report and the documents sent with it under section 173 and make such examination of the accused if he thinks necessary and after giving opportunity for hearing both the parties i.e. prosecution and the accused if he considers that charges against the accused to be groundless, he shall discharge the accused, and record his reasons for doing so.
Section 240 come into play when the accused is not discharged. It provides that if, upon such consideration i.e the consideration of police report and documents sent with it under section 173 and examination of accused, if any, after hearing both parties, the Magistrate is of the opinion that the accused has committed an offence triable as a warrant case by the Magistrate for which he is competent to try and to punish, he shall frame charges against the accused. Nowhere in section 239 and section 240, it has been mentioned for consideration of any other document or evidence other than the document and evidence filed by the investigating officer along with police report.
Record shows that after the cognizance of the case, the informant- applicant filed some documents before the learned Magistrate and thereafter filed an application an application on 30.9.2016 for framing of charge u/ss 147/307 I.P.C. In that application it was stated that a serious injury was caused to her husband Yatendra Kumar, F.I.R was lodged under sections 307/147 I.P.C also but the charge sheet was not submitted under sections 307/147 P.C and whereas it was submitted only under sections 323, 325, 452 and 504 I.P.C by the investigating officer, hence a charge under section 307 and 147 I.P.C is also required to be framed in the interest of justice.
The learned Magistrate after hearing both parties including the counsel of applicant Smt. Salini Sharma, dismissed the said application on the ground that the documents filed in support of the application dated 30.9.2016 were not made as a part of the police report filed by the investigating officer u/s 173 Cr.P.C whereas it was filed by the applicant after taking cognizance of the said offence. It was further held that by the learned Magistrate that no offence u/ss 147/307 I.P.C is prima facie made out from the material available on record.
It is settled principle of law that at the time of framing of charge or considering the discharge application the Magistrate has only to see whether any prima facie case is made out or not upon the consideration of police report filed under sections 173 Cr.P.C along with document which has been made part of the police report. At this stage any additional evidence filed by either informant or accused can not be considered.
In view of the above, I am of the view that the learned Magistrate has not committed any illegality, impropriety or perversity in passing the impugned order.
The revision lacks merit and is dismissed and the aforesaid impugned order is hereby confirmed.
Order Date :- 29.4.2019 G.S