Salim Khan And Others vs State Of U.P. & Another
2012 Latest Caselaw 2180 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

											A.F.R.
 
Court No. - 52
 

 
Case :- CRIMINAL REVISION No. - 4924 of 2010
 

 
Petitioner :- Salim Khan And Others
 
Respondent :- State Of U.P. & Another
 
Petitioner Counsel :- C.K.Parekh
 
Respondent Counsel :- Govt. Advocate
 

 
Hon'ble Surendra Kumar,J.

Heard Sri C.K. Parekh, learned counsel for the revisionists, Sri A.K. Maurya, learned counsel for the opposite party no. 2 and learned A.G.A. and perused the material available on record.

The instant revision has been preferred by the accused persons, who are revisionists herein, against the order dated 23.10.2010 passed by the IIIrd Additional Chief Judicial Magistrate, Varanasi in Complaint Case No. 372 of 2009-Mohd. Nazir Vs. Salim Khan and others, under Sections 323, 504, 506, 452, 406 I.P.C., Police Station Sigra, District Varanasi, whereby the application of the revisionists praying for their discharge under the aforesaid offences has been rejected. Thus, the impugned order of dismissal of the application of the revisionists praying for discharge is under challenge in this revision.

The relevant facts are that the complainant Mohd. Nazir Khan, who is opposite party no. 2 herein, filed the said complaint in the aforesaid court. Original number of complaint was 3588 of 2009 which was renumbered as 372 of 2009 with certain allegations. The learned trial court after recording the statements under Section 200 and 202 Cr.P.C. of the relevant witnesses, summoned the revisionists under the aforesaid offences, on finding prima facie evidence against them. It was just thereafter that the accused persons appeared in the trial court and then moved the application for discharge which was dismissed by the trial court vide order dated 19.1.2010. The order dated 19.1.2010 was challenged by the revisionists in this Court by way of filing an application under Section 482 Cr.P.C. vide Criminal Misc. Application No. 4009 of 2010 and this Court vide order dated 10.2.2010 passed the following order:-

"Considering the facts, circumstances of the case and submission made by the learned counsel for the applicants and the learned A.G.A., it is directed that in case the applicants move a discharge application before the court concerned, through their counsel within 30 days from today, the same shall be heard and disposed of expeditiously in accordance with the provisions of law.

Till the disposal of the discharge application, bailable warrant/N.B.W., if any, issued against the applicants shall be kept in abeyance."

With the above direction, this application is finally disposed of."

Thereafter the revisionists moved the application praying for their discharge under the aforesaid offences stating that there is no prima facie evidence or case against them for framing charge. The complainant, who is opposite party no. 2 herein, filed objections against the discharge application saying that there is sufficient and prima facie evidence for framing charge against the accused persons. The learned trial court by the impugned order dated 23.10.2010, after hearing both sides and going through evidence on record, rejected the said application with the observation that the accused persons were summoned under the aforesaid offences on finding a prima facie case against them and right of the complainant to lead his evidence under Section 244 Cr.P.C. has not started till now. The learned trial court by the impugned order again found that there is sufficient material and evidence against the revisionists to frame charge and there is no evidence for discharging them.

The main submission of the learned counsel for the revisionists is that the revisionists have right under Section 245(2) Cr.P.C. to move application at any time praying for their discharge and the Magistrate can allow the application for discharge after recording reasons, if he considers the charge to be groundless. It is true that the Magistrate is competent to discharge any person, if he considers the charge to be groundless.

Learned counsel for the opposite party no. 2 has submitted that after appearance of the accused persons in the trial court, the trial has not been proceeded at the instance of the accused persons and they are insisting upon their discharge again and again.

Section 245 (1) Cr.P.C. provides as under:-

"245. When accused shall be discharged- (1) If, upon taking all the evidence referred to in Section 244, the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him."

It is clear from the aforesaid provisions that if upon taking all the evidence referred to in Section 244 Cr.P.C., the Magistrate considers that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him. Thus, the stage under Section 245 Cr.P.C. reaches after recording evidence of the complainant under Section 244 Cr.P.C. In the case in hand, the evidence of the complainant or his witnesses under Section 244 Cr.P.C. has not been recorded as yet. Thus, it is evident from the material on record that before reaching the stage of Section 245 Cr.P.C. the accused persons are insisting for discharge, which is not permissible under law.

The Hon'ble Apex Court in the case of Sayeeda Farhara Shamin Vs. State of Bihar, (2008) 8 SCC 218 has observed that the power of the Magistrate should not be fettered either under Section 244 or under section 246(6) and full latitude should be given to the Magistrate to exercise the discretion to entertain a supplementary list of witnesses.

Learned counsel for the revisionists has relied upon a decision of the Hon'ble Apex Court in the case of Ajoy Kumar Ghose Vs. State of Jharkhand and another, AIR 2009 SC 2282, in which it has been provided that the complainant gets two opportunities to lead evidence, firstly, before the charge is framed and secondly, after the charge. Right of cross examination is a very salutary right and the accused would have to be given an opportunity to cross-examine the witnesses and before that stage, framing of charge is premature. Thus, in the reported judgment, prior to reaching of the case under Section 246(1) Cr.P.C. the charge was framed. In the case in hand, situation is quite reversed. The instant case has not been allowed to reach to the stage of Section 246(2) Cr.P.C. under which the evidence of the complainant has to be recorded.

One more submission of the learned counsel for the revisionists is that it is a dispute between two real brothers regarding some house for which a civil suit is pending and the complainant has roped in all the family members of his real brother.

Simply on such ground discharge application can not legally be allowed because after recording evidence of both the parties at the final stage, these facts will be considered by the trial court.

Learned trial court after going through discharge application of the accused persons, clearly given a finding that there is no sufficient evidence to discharge the accused persons. From the material on record, it is evident that there is prima facie evidence to frame charge against the revisionists. The impugned order is perfectly just and legal and based on correct approach of law. The same suffers from no illegality or any kind of perversity. The revision is devoid of merits and is accordingly dismissed. The interim order, if any, passed by this Court stands discharged.

The learned trial court is directed to proceed with the case in accordance with law because the complaint case is pending before the trial court since the year 2009 without any progress. If the accused persons would not cooperate then coercive measure shall be taken against them and the trial court shall proceed with the trial without any further delay.

Let a copy of this order be sent to the court concerned for compliance.

Order Date :- 25.5.2012

Rmk.