Allahabad High Court
Pramod Kumar vs State Of U.P. And Another on 9 July, 2019
Bench: Sanjay Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 70
Case :- MATTERS UNDER ARTICLE 227 No. - 5127 of 2019
Petitioner :- Pramod Kumar
Respondent :- State Of U.P. And Another
Counsel for Petitioner :- Kamesh Kumar Arya
Counsel for Respondent :- G.A.
Hon'ble Sanjay Kumar Singh,J.
Heard learned counsel for the petitioner and learned Additional Government Advocate for the State/opposite party no.1 and perused the record with the assistance of learned counsel for the parties.
This petition under Article 227 has been filed by the petitioner with a prayer to stay the effect and operation of the order dated 23.12.2017, whereby discharge application dated 8.9.2017 of the petitioner has been rejected by A.C.J.M. Court no.5 Moradabad in case no. 1260 of 2017 (computer case no. 10231 of 2017) (State Vs. Pramod Kumar) arising out of case crime no.52 of 2017 as well as cognizance order dated 11.7.2017, under Sections 498A, 323, 506 IPC and Section 3/4 D.P. Act, Police Station Mahila Thana, District Moradabad.
It is submitted by the learned counsel for the petitioner that the FIR has been lodged by the respondent no.2 making general allegations. No specific role has been assigned to the petitioner. There is contradiction in the statement of respondent no.2 recorded under section 161 Cr.P.C. In this case respondent no.2 Babita was not medically examined.The Investigating Officer without conducting the fair investigation submitted the charge-sheet. The discharge application of the petitioner has been rejected by the court below without applying the judicial mind. The marriage of the petitioner was solemnized without any demand of dowry. Neither petitioner nor his family members have tortured or harassed the respondent no.2 in any manner. The FIR was lodged against the petitioner just to create the pressure by the opposite party no.2 to live separately. No offence under Sections 498A, 323, 506 IPC and Section 3/4 D.P. Act is made out against the petitioner.
Per contra, learned Additional Government Advocate for the State/opposite party no.1 submitted that there is no illegality in the impugned order dated 23.12.2017. It is next submitted that it is settled law that at the stage of discharge, the court below is required to see whether on uncontroverted allegations made in the prosecution case and the evidence relied in support of same discloses the commission of any offence against the accused or not. The disputed questions of facts and defence of the accused cannot be taken into consideration at the pre-trial stage. Considering the allegtions and material evidence on record, the prima facie offence against the accused/petitioner is made out, therefore, the application is liable to be dismissed.
I have gone through the entire record including the impugned order.
Having regard to the facts and circumstances of the case and considering the submissions advanced by the learned counsel for the parties, I find that the grounds taken by the petitioner are matter of evidence. The High Court has no jurisdiction to appreciate the evidence of proceedings under section 482 Cr.P.C. because whether there are contradiction or in consistence in the statement of the witnesses is essentially an issue relating to appreciation of evidence during trial that stage has to come in this case.
The Hon'ble Supreme Court recently on 01.05.2019 in State By Karnataka Lokayukta vs M. R. Hiremath 2019 SCC online SC 734 has held as under:
"23. The High Court ought to have been cognizant of the fact that the trial court was dealing with an application for discharge under the provisions of Section 239 of the CrPC. The parameters which govern the exercise of this jurisdiction have found expression in several decisions of this Court. It is a settled principle of law that at the stage of considering an application for discharge the court must proceed on the assumption that the material which has been brought on the record by the prosecution is true and evaluate the material in order to determine whether the facts emerging from the material, taken on its face value, disclose the existence of the ingredients necessary to constitute the offence. In the State of Tamil Nadu v N Suresh Rajan10, adverting to the earlier decisions on the subject; this Court held :
"29?At this stage, probative value of the materials has to be gone into and the court is not expected to go deep into the matter and hold that the materials would not warrant a conviction. In our opinion, what needs to be considered is whether there is a ground for presuming that the offence has been committed and not whether a ground for convicting the accused has been made out. To put it differently, if the court thinks that the accused might have committed the offence on the basis of the materials on record on its probative value, it can frame the charge; though for conviction, the court has to come to the conclusion that the accused has committed the offence. The law does not permit a mini trial at this stage."
In view of above, no case is made out to interfere with the impugned order. There is no illegality or infirmity in the impugned order. The court concerned while passing the impugned order has considered the relevant materials on record and decided the discharge application of the petitioner in the light of well settled principle of law.
The petitioner has a remedy under the law to raise all such plea in his defence before the concerned court below at appropriate stage. Hence, the prayer made in the application is refused.
At this stage, learned counsel for the petitioner submitted that in case some protection is granted by this Court, the petitioner will surrender before the concerned court below. The learned Additional Government Advocate for the State does not dispute such prayer of the applicant.
Considering the last prayer made by the learned counsel for the petitioner, it is directed that in case petitioner appears before the concerned court below within 45 days from today and applies for bail, the bail application of the petitioner shall be heard and disposed of expeditiously by the courts below in accordance with settled law by the Seven Judges' decision of this Court in the case of Amrawati and another Vs. State of U.P. reported in 2005 Criminal Law Journal 755 as well as judgement passed by Hon'ble Apex Court in (2009) 4 Supreme Court Cases, 437 Lal Kamlendra Pratap Singh Vs. State of U.P.
For the period of 45 days from today, no coercive action shall be taken against the petitioner.
With the aforesaid observations, the application stands disposed of.
Order Date :- 9.7.2019
AK Pandey
