Ram Surat Verma vs State Of U.P. & Another
2021 Latest Caselaw 11404 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?A.F.R. 
 
Court No. - 14
 
Case :- U/S 482/378/407 No. - 4481 of 2021
 

 
Applicant :- Ram Surat Verma
 
Opposite Party :- State Of U.P. & Another
 
Counsel for Applicant :- Anshuman,Akash Dikshit
 
Counsel for Opposite Party :- G.A.,Prem Prakash Singh
 

 
Hon'ble Rajesh Singh Chauhan,J.

1. Heard Sri Akash Dikshit, learned counsel for the petitioner, Sri Aniruddh Kumar Singh, learned AGA-I for the State and Sri Ajmal Khan, learned counsel for opposite party no.2.

2. By means of this petition filed under Section 482 Cr.P.C., the petitioner has prayed for quashing the impugned order dated 24.12.2019 (Annexure No.1) passed by the learned Civil Judge (S.D.)/ A.C.J.M., Ambedkar Nagar rejecting the discharge application moved in Complaint Case No.5661 of 2018, under Section 420 IPC, Police Station Ahirauli, District Ambedkar Nagar and the order dated 25.10.2021 passed by the revisional court i.e. Sessions Judge, Ambedkar Nagar dismissing the revision of the petitioner.

3. On the request of learned counsel for the parties, the present matter is being decided finally at the admission stage.

4. While assailing the impugned order dated 24.12.2019 passed by the Civil Judge (S.D.)/ A.C.J.M., Ambedkar Nagar, learned counsel for the petitioner has submitted that the learned court below has rejected the application for discharge of the petitioner on the point that since the evidence under Section 244 Cr.P.C. is yet to come and the accused/ petitioner has not appeared and obtained bail, therefore, such application for discharge is rejected. Learned counsel for the petitioner has further submitted that in the aforesaid judgment, reference of the judgment of the Apex Court in re; Adalat Prasad vs. Rooplal Jindal & Others, (2004) 7 SCC 338, has been given by the learned Magistrate Court observing that once the Magistrate takes cognizance in any matter/ issue, he cannot recall or review such order. The impugned order further says that the learned Magistrate Court has already taken cognizance on 23.3.2019 summoning the petitioner to try the issue under Section 420 IPC and the revisional court while rejecting the revision of the petitioner has upheld the order of the Magistrate dated 24.12.2019.

5. Learned counsel for the petitioner has submitted that when the aforesaid rejection of discharge was assailed before the revisional court, learned revisional court vide order dated 25.10.2021 has rejected the revision of the petitioner upholding the order dated 24.12.2019 passed by the court of Magistrate.

6. Sri Akash Dikshit, learned counsel for the petitioner has submitted with vehemence that by means of discharge application, the petitioner had not prayed that the summoning order be recalled or reviewed, therefore, the dictum of the Hon'ble Apex Court in re; Adalat Prasad (supra) would not be attracted in the present case.

7. At this stage, learned counsel for the petitioner has drawn attention of this Court towards Section 245 Cr.P.C., which is being reproduced herein below:-

"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."

8. Learned counsel for the petitioner has drawn attention of this Court towards Sub Section (2) of Section 245 Cr.P.C., which categorically provides that 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. So as to strengthen the aforesaid submission, Sri Dikshit has drawn attention of this Court towards the decision of the Apex Court in re; Ajoy Kumar Ghose vs. State of Jharkhand and another, (2009) 14 SCC 115, referring paras 25, 36 & 37 thereof. For the convenience those paragraphs are being reproduced herein below:-

"25. The situation under Section 245(2) CrPC is, however, different. There, under sub-section (2), the Magistrate has the power of discharging the accused at any previous stage of the case i.e. even before such evidence is led. However, for discharging an accused under Section 245(2) CrPC, the Magistrate has to come to a finding that the charge is groundless. There is no question of any consideration of evidence at that stage, because there is none. The Magistrate can take this decision before the accused appears or is brought before the court or the evidence is led under Section 244 CrPC. The words appearing in Section 245(2) CrPC "at any previous stage of the case", clearly bring out this position.

36. The Magistrate has the power to discharge the accused under Section 245(2) CrPC at any previous stage i.e. before the evidence is recorded under Section 244(1) CrPC, which seems to be the established law, particularly in view of the decision in Cricket Assn. of Bengal v. State of W.B. [(1971) 3 SCC 239 : 1971 SCC (Cri) 446] , as also the subsequent decision of the Bombay High Court in Luis de Piedade Lobo v. Mahadev Vishwanath Parulekar [1984 Cri LJ 513 (Bom)] . The same decision was followed by Kerala High Court in Manmohan Malhotra v. P.M. Abdul Salam [1994 Cri LJ 1555 (Ker)] 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) CrPC to discharge the accused at any previous stage. The Hon'ble Judge relied on a decision of the Madras High Court in Mohd. Sheriff Sahib v. Abdul Karim Sahib [AIR 1928 Mad 129 (1)] , as also the judgment of the Himachal Pradesh High Court in Gopal Chauhan v. Satya [1979 Cri LJ 446 (HP)].

37. We are convinced that under Section 245(2) CrPC the Magistrate can discharge the accused at any previous stage i.e. even before any evidence is recorded under Section 244(1) CrPC. 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."

9. The Apex Court has clearly held in the aforesaid judgment 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.

10. Therefore, Sri Dikshit has submitted that the observation of learned Magistrate Court vide impugned order dated 24.12.2019 is unwarranted and uncalled for. Further the order dated 25.10.2021 passed by the revisional court upholding the order dated 24.12.2019 is also perverse and uncalled for.

11. Sri Dikshit has further drawn attention of this Court towards Annexure No.12 to the petition, which is an application dated 6.11.2019 filed by the petitioner before the court of Magistrate when his discharge application was pending wherein he had categorically requested from the learned court below to direct for proper enquiry/ investigation in respect of handicapped certificate, which is subject matter of the issue, to verify as to whether such handicapped certificate is forged or genuine. Sri Dikshit has submitted that since this application was filed on 6.11.2019, therefore, before rejecting the discharge application of the petitioner vide order dated 24.12.2019, any appropriate order on such application dated 6.11.2019 could have been passed by the Magistrate so as to set the controversy at rest but no such order has been passed before rejecting the discharge application of the petitioner.

12. He has also drawn attention of this Court towards a recent judgment of the Apex Court dated 7.5.2021 in re; Sanjay Kumar Rai vs. State of Uttar Pradesh & Anr., Criminal Appeal No.472 of 2021, referring para-16 thereof, which is being reproduced herein below:-

"16. Further, it is well settled that the trial court while considering the discharge application is not to act as a mere post office. The Court has to sift through the evidence in order to find out whether there are sufficient grounds to try the suspect. The court has to consider the broad probabilities, total effect of evidence and documents produced and the basic infirmities appearing in the case and so on. [Union of India v. Prafulla Kumar Samal, (1979) 3 SCC 4]. Likewise, the Court has sufficient discretion to order further investigation in appropriate cases, if need be."

13. Sri Dikshit has categorically submitted that it has been the view of the constitutional court that the trial court while considering the discharge application is not to act as a mere post office. The court has to sift through the evidence in order to find out whether there are sufficient grounds to try the suspect. The court has to consider the broad probabilities, total effect of evidence and documents produced and the basic infirmities appearing in the case and so on.

14. Per contra, Sri Ajmal Khan, learned counsel for opposite party no.2 has submitted that there is no infirmity or illegality in the order dated 24.12.2019 passed by the learned Magistrate Court inasmuch as in the complaint case, there is difference between the stage upto Sections 200 to 204 and 244 Cr.P.C. Further, as per him, unless the evidence under Section 244 Cr.P.C. is recorded, the discharge application in the complaint case should have not been considered otherwise it would frustrate the entire purpose of taking cognizance and summoning the prospective accused. He has also submitted that if without recording the statement under Section 244 Cr.P.C., the discharge application is allowed, the accusation on accused person would not come before the learned trial court and in that case, not only the complainant but the prosecution shall suffer, therefore, this petition may be dismissed.

15. Learned AGA has also submitted that so far as the judgment of the Apex Court in re; Adalat Prasad (supra) is concerned, there may not be any dispute on the observation and proposition of law of the Apex Court but it would be upto the court to see as to whether the judgment in re; Adalat Prasad (supra) may be applicable at the stage which has been discussed by the Magistrate while rejecting the discharge application vide order dated 24.12.2019 inasmuch as this Court while invoking its power under Section 482 Cr.P.C. has got vast power, rather inherent power, to cure abuse of the process of the law, if any.

16. Having heard learned counsel for the parties and having perused the material available on record, I am of the considered opinion and also in agreement with the judgment of the Apex Court in re; Ajoy Kumar Ghose (supra) and Sanjay Kumar Rai (supra) to the effect that the trial court has to sift through the evidence in order to find out whether there are sufficient grounds to try the suspect. The court has to consider the broad probabilities, total effect of evidence and documents produced and the basic infirmities appearing in the case. In the present case, since the present petitioner had himself filed an application on 6.11.2019 before the learned Magistrate with the request that appropriate direction to investigate/ enquire the handicapped certificate in question, which is subject matter, be issued so as to verify as to whether such certificate was forged or genuine, therefore, it was incumbent upon the Magistrate before passing any final order on discharge application to direct for investigation to verify the genuineness of the handicapped certificate so that the issue in question may likely be set at rest. Learned court of Magistrate should not show undue haste in deciding the discharge application without verifying the genuineness of the handicapped certificate. I am also of the view that the discharge application should not be disposed of in a cursory manner inasmuch as if such application is decided in a cursory manner, then it may likely to cause prejudice, not only to the side of the applicant or complainant but also to the prosecution. Therefore, before disposing of the discharge application, all possible efforts, due care and precaution should have been taken by the learned court below to ensure that the prospective accused or suspect is not scot free. At the same time, if the prima facie material available with the learned court below is sufficient to pass order of discharge, there should not be any hesitation for the learned court below to pass such order. In any case, the subjective satisfaction of the learned court below on the basis of material available on record should be paramount.

17. So far as the observation of the learned court below regarding Section 244 Cr.P.C. is concerned, I find that such observation is perverse inasmuch as the law is trite that the term 'at any previous stage of the case' includes any stage meaning thereby even before any evidence is recorded under Section 244 Cr.P.C., the discharge application under Section 245 (2) Cr.P.C. may be considered and disposed of.

18. Therefore, in the light of the facts and circumstances and the case laws so discussed above, I hereby set aside/ quash the order dated 24.12.2019 (Annexure No.1) passed by the learned Civil Judge (S.D.)/ A.C.J.M., Ambedkar Nagar and the order dated 25.10.2021 passed by the Sessions Judge, Ambedkar Nagar (Annexure No.14).

19. However, the matter is relegated back to the learned court of Magistrate to pass a fresh order on discharge application strictly in accordance with law and considering all relevant materials available and ensure that proper justice is made in favour of the parties, be it the petitioner, the private opposite party or the prosecution. Such order shall be passed within a period of two months from the date of receipt of certified copy of this order, by affording an opportunity of hearing to the parties concerned, if it is so required under the law.

20. Liberty is given to the petitioner to produce certified copy of this order before the court of Magistrate through counsel and the discharge application through counsel shall be decided in terms of earlier order dated 1.11.2019.

21. Accordingly, the petition is allowed.

22. No order as to costs.

[Rajesh Singh Chauhan,J.]

Order Date :- 30.11.2021

RBS/-