Allahabad High Court
Lalit Agarwal vs State Of U.P. And Another on 27 March, 2014
Bench: Manoj Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD
?AFR
Court No. - 44
Case :- APPLICATION U/S 482 No. - 10690 of 2013
Applicant :- Lalit Agarwal
Opposite Party :- State Of U.P. And Another
Counsel for Applicant :- Apurva Hajela,T. Islam
Counsel for Opposite Party :- Govt. Advocate
Hon'ble Manoj Misra,J.
Heard Sri T. Islam for the applicant, Sri Ajeet Srivastava for the opposite party No.2 and the learned A.G.A. for the State.
By the present application, the applicant has sought quashing of the order dated 11.01.2013 passed by the Additional Chief Judicial Magistrate, Court No.3, Ghaziabad in Case No. 1140 of 2011 by which the application dated 15.03.2012, filed by the applicant, under Section 240/259 Cr.P.C., has been rejected. The applicant has further prayed for a direction to the court below to frame charges against the opposite party No.2 under Sections 406, 408, 419, 420, 465, 468, 471 I.P.C. as also to proceed with the said case as a warrant's case.
Brief facts giving rise to the present application are that the applicant lodged a first information report against Pramod Goyal and others at P.S. Sihani Gate, District Ghaziabad, which was registered as Case Crime No. 188 of 2011, under Sections 408, 420, 465, 468, 470, 471 and 419 I.P.C. The police, thereafter, investigated the matter and submitted charge-sheet only against Pramod Goyal under Section 465 I.P.C. As section 465 I.P.C. is punishable with a sentence of up to two years, the matter was being tried as a summons case. After recording the statement of the informant, Lalit Agarwal, who is the applicant before this Court, filed an application before the Magistrate concerned to frame charges under Sections 406, 408, 419, 420, 465, 468 and 471 I.P.C., by placing reliance on the provisions of section 240 and 259 Cr.P.C. The said application has been rejected by the court of A.C.J.M., Court No.3, Ghaziabad by the impugned order dated 11.01.2013 on ground that the power under Section 240 of the Code of Criminal Procedure is available only in a case which is being tried as a warrant case and not to a case which is being tried as a summons case. The court below further observed that since in the application the applicant did not mention sufficient reason for converting the summons case into a warrant case, the case was not liable to be converted into a warrant case.
Challenging the impuged order, the learned counsel for the applicant submitted that to exercise power under Section 259 of the Code of Criminal Procedure, the learned Magistrate ought to have taken into consideration the statement of the witnesses recorded during the course of trial. If, from the statement of the witnesses recorded during the course of trial, it is made out that an offence triable as a warrant case is made out, then it is open to the Magistrate to exercise his power, under Section 259 of the Code and convert the summons case into a warrant case. It has been submitted that from the evidence led by the applicant before the court below, there was sufficient indication that an offence triable as a warrant case was made out against the accused, therefore, the learned Magistrate ought to have converted the summons case into a warrant case.
By order dated 10.03.2014, the opposite party No.2's counsel was provided a last opportunity to file counter-affidavit. Till date, no counter-affidavit has been filed. However, the learned counsel for the opposite party No.2 prayed for further time to file counter-affidavit.
Considering the order that is being passed, this court does not find it necessary to give further time to the opposite party No.2's counsel to file counter-affidavit.
Having considered the submission of the learned counsel for the applicant, this court finds that the learned Magistrate while rejecting the application of the applicant did not consider the statement of the applicant recorded during the course of trial so as to find out whether a prima facie case for trial of the case as a warrant case was made out or not. In the cases of this nature where, from the evidence, it appears that an offence triable as a warrant case is made out, it is always open to the Magistrate to convert a summons case into a warrant case. As the learned Magistrate has not considered the evidence led before him while rejecting the application, the order passed by the court below stands vitiated in law.
The application is, therefore, partly allowed. The order dated 11.01.2013 passed by the Additional Chief Judicial Magistrate, Court No.3, Ghaziabad in Case No. 1140 of 2011 rejecting the application of the applicant dated 15.03.2012, filed under Section 240 read with section 259 Cr.P.C., is set aside. The learned Magistrate is directed to pass a fresh order on the aforesaid application of the applicant, in accordance with law and in the light of the observations made in this order.
Order Date :- 27.3.2014/Sunil Kr Tiwari
