Suleman And 5 Ors. vs State Of U.P. And Another
2013 Latest Caselaw 6144 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 44
 

 
Case :- APPLICATION U/S 482 No. - 34350 of 2013
 

 
Applicant :- Suleman And 5 Ors.
 
Opposite Party :- State Of U.P. And Another
 
Counsel for Applicant :- Manish Yadav
 
Counsel for Opposite Party :- Govt. Advocate
 

 
Hon'ble Karuna Nand Bajpayee,J.

This application u/s 482 Cr.P.C. has been filed for quashing the order dated 16.4.2013 passed by A.C.J.M., Agra in Case No.220 of 2012 (Har Narayan Vs. Suleman) u/s 323, 504, 448 and 506 I.P.C., P.S. Sikandara, District Agra, whereby the application seeking discharge u/s 245(2) Cr.P.C. was rejected after holding the same to be not-maintainable.

It appears that even on a former occasion the applicants had approached this court seeking redressal with the prayer not very different in substance. The record reveals that another bench of this court vide its order dated 28.08.2012 had disposed of that application with the direction that the applicants may move an application under Section-245(2) Cr.P.C. before the lower court and seek their discharge. The court concerned was thereupon directed to pass appropriate order on the discharge application in accordance with law. It seems that the applicants, armed with the direction of High Court, moved an application seeking discharge before the court concerned but the submissions placed on behalf of the applicants did not find favour with the court and the discharge application was rejected. Aggrieved with the aforesaid rejection the applicants have once again approached this court with manifold grievances.

Heard the learned counsel for the applicants and learned A.G.A. for the State. I have also perused the record along with the impugned order passed by the lower court on the discharge application moved u/s 245(2) Cr.P.C.

The counsel for the applicants has laid maximum stress on the point and on that part of the order where the learned Magistrate has held that the discharge application moved on behalf of the applicants runs afoul of law and is not maintainable. The reasoning which seems to have prompted the lower court to give such a finding appears to be this, that the application seeking discharge had been moved even before any evidence u/s 244 Cr.P.C. could be produced by the complainant or recorded by the court after summoning of the accused. As the material produced by the complainant against the accused/ applicants is the same on the basis of which they were summoned by the court, no application claiming discharge can be maintainable on the same set of existing facts or material. Any discharge application may be maintainable only after some new material or evidence has been produced by the complainant u/s 244 Cr.P.C. Such seems to be the concept of law which ostensibly has led the lower court to hold the discharge application not maintainable. The contention is that such a view is not only in the teeth of settled law laid down by the Apex Court but is also a reflection of Judicial indiscipline displayed by the learned Magistrate. According to the counsel the application u/s 245(2) Cr.P.C. was got moved on behalf of the applicant in compliance with the High Court's direction and the expression given by the lower court about its non-maintainability smacks of judicial insubordination and impropriety both. The learned Magistrate must have decided the application on merits in the light of the submissions made on behalf of the applicants. But as the same has not been done the impugned order refusing the discharge deserves to be quashed on this ground alone and the matter should be remanded back for reconsideration of discharge application afresh.

Learned A.G.A. in rebuttal has been fair enough to concede that the view adopted by the lower court is not in consonance with the view expressed by the Hon'ble Supreme Court and also that once in exercise of its inherent jurisdiction a direction was given by this court the learned Magistrate was bound to hear the application on merits regardless of the contrary concept of law which he might have conjured up in his mind. But the learned A.G.A. has made a faint attempt to defend the impugned order on the ground that practically speaking there existed scarcely any ground which might have procured any kind of relief in the form of discharge of the applicants and the result would have been no very different even if the lower court would have entertained the discharge application on merit instead of calling it not maintainable. It is more a matter of mere legal semantics which shall not yield any fruitful result and therefore there is no need to remand the matter back or to set aside the order dated 16.04.2013 whereby the application moved u/s 245(2) Cr.P.C. has been rejected.

I have cogitated upon the rival submissions made before the court in the light of the available records and also the case law cited by the applicant's counsel.

I eschew from making any strong comment upon the Judicial approach adopted by the lower court, lest it might imply some adverse reflection upon him or his competence. I am of the view that the finding of the lower court calling the application not maintainable was not an act of intentional indiscipline nor was it a deliberate act of judicial insubordination. The expression of non-maintainability seems to have emanated from a misconception of law alone rather than from any undesirable judicial arrogance.

A more vigilant judicial officer with higher awareness would have certainly eschewed from calling the application not maintainable for the very obvious reason that the same was moved under the express direction of this court. It is hoped that the learned Magistrate in future shall keep it in mind that this court in the exercise of its inherent jurisdiction and in order to meet the ends of justice may issue any suitable direction in its wisdom, even when there may not be any express statutory provision to redress the given situation or malady. In fact the inherent jurisdiction is more justifiably exercised to meet out situations where the statutory scheme falls short or unequal to the afflicting malady which calls for amelioration in order to arrive at the ends of justice. There could not have been a better reason to hold the discharge application maintainable than the very fact that the same was moved on the strength of the express direction given by this court. Rejecting the discharge application on merits is elementally different from rejecting it on the ground of non-maintainability. Calling an application maintainable does not imply that it has to be allowed also. It only implies that the same is to be entertained on merits in the light of the facts and circumstances of the case or the matters involved therein. If an application is not maintainable, there is no question to entertain it. It was this error committed by the lower court which has resulted into the present application u/s 482 Cr.P.C. again.

Now it may be necessary to discuss the relevant law involved in this matter at some length.

First of all it shall be apt to reproduce the relevant sections of Cr.P.C. herein below:-

244. Evidence for prosecution.-

(1) When, in any warrant- case instituted otherwise than on a police report, the accused appears or is brought before a Magistrate, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution.

(2) The Magistrate may, on the application of the prosecution, issue a summons to any of its witnesses directing him to attend or to produce any document or other thing.

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.

(2) Nothing in this section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless.

A bare reading of Section245(1) of Cr.P.C. would reveal that it contemplates the discharge of the accused after recording all the evidence which may be produced u/s 245 Cr.P.C. on behalf of the complainant only if such evidence does not make out any such case against the accused, which if unrebutted, would entail his conviction. But Section 245 (2) carves out an exception to the preceding sub-section(1) of Section 245 and contemplates the discharge of the accused at any previous stage of the case also, if the charge against the accused is considered to be groundless by the courts. Section-245(1) of the Code should not act as a trammel on the judicial ankles of the Court, and if, there are circumstances which justify or call forth the discharge of the accused, the Magistrate should not feel any constraint or to be under any procedural compulsion to carry on the proceedings against the accused even though, for reasons to be recorded, he has come to the conclusion that the charge is groundless. The circumstances which may impel the court to have such an opinion may be several and it is not possible to given an exhaustive list of the same but for the purposes of illustration it may be said that there may be a case where a legal sanction is required before a court may proceed to take cognizance of the case. If there is a case like that then simply because the court has already summoned the accused u/s 204 Cr.P.C. in the ignorance of the fact of any such illegal requirement the court should not carry on with the illegality and should not feel the compulsion to still continue and perpetuate the proceedings which are non-est in the eyes of law in the absence of the requisite sanction or which may be called a nullity in the judicial estimate. There may also be a case where an accused has already been acquitted under the same charge and because of malice or mischief or may be due to clerical inadvertence he has again been made to face the criminal trial under the same charge or for having committed the same offence for which he has already been tried and adjudicated upon by a court of competent jurisdiction. Shall it not then be very much within the rights of the accused to raise the same objection and bring on record the judicial judgment passed in his favour in an earlier proceedings for having committed the same offence against the same person at the same point of time and place! If the earlier judgment has already attained finality or if the earlier proceedings have also been lawfully conducted by a competent court can an accused be tried and prosecuted for the same offence twice ? And if such a fact is brought forth to the notice of the court who has summoned the same accused u/s 204 Cr.P.C. should the Magistrate be still under compulsion to go on with the proceedings and complete the process of recording all the evidence which the complainant may choose to produce u/s 245 Cr.P.C. and should subject the accused to continue with the ordeal of the trial till the stage of discharge u/s 245(1) of the Code arrives even though the entire proceedings going on against him are in the teeth of statutory prohibition enacted by legislation! There may be many more situations of the same or similar kind. There may be cases where after summoning of the accused it is brought to the notice of the court that some Apex Court's decision or judgment either with regard to a similar matter has been pronounced or some judicial verdict by the High Court or the Hon'ble Apex Court has been given with regard to the issues involved in the proceedings in question which are of conclusive nature. Shall it not be the bounden duty of the trial court to show deference to the higher court's decision and give a relook to the validity of the summoning order passed by itself which has lost the ground of its legitimacy in the wake of the conclusive adjudication done by the higher court. In fact there may be many such situations where the cause of justice will call forth a second look to be given to the summoning order already passed by the court and it is in order to prove equal to such exigencies and situations that Section-245(2) Cr.P.C. has been enacted. If an accused, once summoned, must wait for his discharge till the stage to seek discharge u/s 245(1) Cr.P.C. arrives and the complainant has exhausted his opportunity to produce all the evidence which he may chose to produce u/s 244 of the Code then the very introduction or enactment of 245(2) of the Code will become almost redundant. It is true that the probability or the chances or the situations which may justify the discharge u/s 245(2) Cr.P.C. soon after summoning of the accused u/s 204 Cr.P.C. without any further evidence being recorded are not very great or wide and the chances of the accused to succeed in getting discharged are often not much but the degree of unlikelihood to get discharged under Section-245(2) Cr.P.C. has nothing to do with the legal maintainability of such an application which seeks discharge under the same section. If an application can be moved under law it is maintainable; whether it is to be allowed or not is a different question. If an application is not maintainable it means it does not lie and the applicant has no legal right to move the same or the court may not have the legal right to entertain the same. Innumerable applications are disallowed every day not because they are not maintainable but because there are no good grounds to allow them.

With regard to the scope and ambit of Section-245(2) Cr.P.C. it shall be apt to recall the Apex Court's decision given in Cricket Association Bengal and others Vs. State of West Bengal and others 1971 (3) SCC 239. That was a case in which after summoning the accused under certain sections the matter had reached the High Court and certain observations and directions were also given by the High Court in the order which it passed. Later on some such developments took place that the discharge was sought in the trial court even before the stage of 245(1) Cr.P.C. had arrived. The trial court of the Magistrate discharged the accused under 253(2) Cr.P.C. (old Code). A Division Bench of the High Court after having come to know the fact of discharge took cognizance of the matter suo moto and then set aside the order of discharge as, apart from other grounds, it was also held by the High Court that the orders discharging the accused u/s 253(2) of Cr.P.C. was not justified as the offence involved was relating to a warrant case. Thereafter, the matter came up before the Hon'ble Supreme Court. The Apex Court after expatiating upon the law on the point took a view that it was very much within the powers of the Magistrate to discharge an accused at any previous stage of the case i.e. to say any state prior to the stage contemplated u/s 245(1) of Cr.P.C. The relevant extract from the Apex Court's decision may be quoted herein below:-

"..........................It is this serious mistake committed by the Division Bench that has resulted in the passing of the order under attack. The legality of the orders passed by the Chief Presidency Magistrate can be considered from two points of view. Assuming that the Chief Presidency Magistrate has still to proceed with the trial for offences under ss. 337 and 338, I.P.C. it is no doubt true that he has to follow the warrant case procedure. Even under such circumstances, the Magistrate has got ample jurisdiction to discharge the accused under s. 253(2) Cr.P.C. Section 253 deals with the discharge of accused. Subsection (1) deals with the discharge of an accused when the Magistrate after taking all evidence referred to in s. 252 Cr.P.C. and making such examination of the accused, if any, as may be found necessary, finds that no case against the accused has been made out, which if unrebutted, would warrant his conviction. Subsection (2) of s. 253 is to the following effect :

"253(2) Nothing in this section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded by Magistrate, he considers the charge to be groundless."

This sub-section gives ample jurisdiction to the Magistrate to discharge an accused in the circumstances mentioned therein and the order of discharge can be passed at any previous stage of the case. Sub-section (1) under those circumstances will not operate as a bar to the exercise of jurisdiction by the Magistrate under sub-section (2). It is under sub-section (2) of s. 253 that the Magistrate has discharged the accused. He has given good reasons in the order for discharging the accused.

Assuming that the Division Bench is right in holding that the discharge under s. 204(3) Cr P.C. is not justified, we will proceed on the basis that the said order is one of discharge under s. 253(2). We have already referred earlier to the reasons given by the complainant in his application seeking permission to withdraw the complaint as well as to the reasons given by the Magistrate for discharging the accused. There is no controversy that at the material time, the Sen Commission was inquiring into the identical matter which was the subject of the criminal complaint. Under those circumstances, it cannot be said that the discharge of the accused by the Magistrate is either illegal or not justified."

Later on in a different case of Ajoy Kumar Ghose Vs. State of Jharkhand and another (2009) 14 SCC 115 the Apex Court had the occasion to observe in Paragraph nos.36 and 37 as follows:-

"36. The Magistrate has the power to discharge the accused under Section 245(2) Cr.P.C. at any previous stage i. e. before the evidence is recorded under Section 244(1) Cr.P.C., which seems to be the established law, particularly in view of the decision in Cricket Association of Bengal & Ors. Vs. State of West Bengal & Ors. reported in 1971 (3) SCC 239, as also the subsequent decision of the Bombay High Court in Luis de Piedade Lobo Vs. Mahadev Vishwanath Parulekar reported in 1984 Criminal Law Journal 513. The same decision was followed by Kerala High Court in Manmohan Malhotra Vs. P.M. Abdul Salam & Anr. reported in 1994 Criminal Law Journal 1555 and Hon'ble Justice K.T. Thomas, as the Learned Judge then was, accepted the proposition that the Magistrate has the power under Section 245(2) Cr.P.C. to discharge the accused at any previous stage. The Hon'ble Judge relied on a decision of the Madras High Court in Mohammed Sheriff Sahib Vs. Abdul Karim Sahib reported in AIR 1928 Madras 129 (1), as also the judgment of Himachal Pradesh High Court in Gopal Chauhan Vs. Smt. Satya reported in 1979 Criminal Law Journal 446.

37. We are convinced that under Section 245(2) Cr.P.C., the Magistrate can discharge the accused at any previous stage i.e. even before any evidence is recorded under Section 244(1) Cr.P.C. In that view, the accused could have made the application. It is obvious that the application has been rejected by the Magistrate. So far, there is no difficulty."

(emphasis supplied)

It shall also not be out of place to further refer to paragraph nos.48 and 49 of the judgment whereby the Apex Court has pointed out an error of observation made by the High Court in the decision of P. Ugender Rao Vs. J. Sampoorna 1990 Cri.L.J. 762 with regard to the view which was taken by the Supreme Court in the above referred case of Cricket Association of Bengal about the powers of the Magistrate to discharge the accused at any previous stage. The Apex Court has proceeded to observe as follows :-

"48. In the last mentioned case of P. Ugender Rao & Ors. Vs. J. Sampoorna & Ors. reported in 1990 Criminal Law Journal 762 (AP), there is one incorrect observation in respect of a decision of this Court in Cricket Association of Bengal & Ors. Vs. State of West Bengal & Ors. reported in 1971 (3) SCC 239 to the effect that the Magistrate cannot discharge the accused before recording any evidence, whatsoever, under Section 244 Cr.P.C. We have not been able to find out such an expression in the aforementioned case of Cricket Association of Bengal & Ors. Vs. State of West Bengal & Ors.. That was a case under old Section 253(2), which is in pari materia to the present Section 245(1). On the other hand, the Court has very specifically stated therein that Section 253(2) gives ample jurisdiction to the Magistrate to discharge the accused in the circumstances mentioned therein and the order of discharge can be passed at any previous stage of the case. It is further stated in Para 13 that sub-Section (1) under those circumstances will not operate as a bar to the exercise of jurisdiction by the Magistrate under sub-Section (2). Since we have found error in the above mentioned judgment, we have mentioned so.

49. However, the ruling in Cricket Association of Bengal & Ors. Vs. State of West Bengal & Ors. also supports our earlier finding that the Magistrate has the power to discharge the accused, even before any evidence is recorded and thus, an application for discharge at that stage is perfectly justifiable. However, insofar as Section 246(1) Cr.P.C. is concerned, we are of the clear opinion that some evidence would have to be there for framing the charge."

The view expressed by the Hon'ble Apex Court leaves no room of doubt in the court's mind that the Magistrate does have the power to discharge the accused even before recording any further evidence after summoning of the accused to face the trial. As has already been said that it will depend upon case to case and the varying facts and circumstances of each case as to when such an application seeking discharge may be allowed and when not. It is for the Magistrate to see in each case, whenever an application seeking discharge under Section-245(2) Cr.P.C. is moved before the court, whether there is any such ground or feature existing that even without recording any further evidence after summoning of the accused, the accused may be discharged or not. If in the opinion of the Magistrate there is no such ground existing which may justify or which may persuade the court to have a different view than what it held at the time of summoning it must disallow the application and proceed further in accordance with law.

In the light of the law referred to above and the observations made therein the present application is allowed and the impugned order is hereby quashed. The court below shall hear the discharge application moved by the applicant afresh on the basis of its merits and then pass appropriate orders in accordance with law.

It is clarified that the observations made in this order are strictly confined to the legal controversy embroiled in the matter and must not be construed to have any reflection upon the factual merits of the case in favour of or to the prejudice of either party.

It is further observed that the coercive process, if any, issued against the accused shall not be given effect to till the disposal of the discharge application u/s 245(2) Cr.P.C. afresh and the accused shall have the permission to appear through counsel in the court till such adjudication.

In case the court below even after considering the merits of the case and hearing the objections raised on behalf of the accused does not allow the application, it shall proceed in accordance with law thereafter, and shall be at liberty to take necessary steps to ensure the appearance of the accused before the court.

Order Date :- 30.9.2013

M. Kumar