Allahabad High Court
Jaswant Lal vs State Of U.P. Thru. Prin. Secy. ... on 2 December, 2022
Bench: Mohd. Faiz Khan
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 12
Case :- APPLICATION U/S 482 No. - 8928 of 2022
Applicant :- Jaswant Lal
Opposite Party :- State Of U.P. Thru. Prin. Secy. Deptt. Of Home And Another
Counsel for Applicant :- Vijay Kumar Mishra
Counsel for Opposite Party :- G.A.
Hon'ble Mohd. Faiz Alam Khan,J.
Heard Shri Vijay Kumar Mishra, learned counsel for applicant as well as learned Additional Government Advocate for the State and perused the record.
The instant application has been filed by the applicant namely Jaswant Lal with the prayer to quash the impugned order dated 24.12.2019 passed by the Chief Judicial Magistrate, Gonda, whereby the trial court has rejected the discharge application of the applicant moved in Criminal Case No.1080 of 2017 (State Vs. Jaswant Lal and others), arising out of Case Crime No.172 of 2016, under Sections 419, 420 I.P.C., Police Station Kotwali Colonelganj, District Gonda.
Learned counsel for the applicant while drawing attention of this Court towards the impugned order dated 24.12.2019 submits that the trial court has committed patent illegality in rejecting the discharge application of the applicant while even if the case of the prosecution is taken on its face, offences under Sections 419, 420 I.P.C. were not attracted and therefore, patent illegality has been committed by the trial court.
Learned A.G.A. on the other hand submits that after passing a detailed order and considering the case of the prosecution and the material placed on record by the investigating officer, the trial court has rightly rejected the application for discharge moved by the applicant.
Having regard to the facts and circumstances of the case and keeping in view the order intended to be passed, issuance of notice to the opposite party no.2 is hereby dispensed with.
Perusal of the record would reveal that the allegation of manufacturing a forged 'will' in the name of deceased Ganga Prasad has been levelled in the F.I.R. as well as in the statement of the prosecution witnesses against applicant. The applicant had earlier approached this Court by filing Application U/s 482 Cr.P.C. No.2775 of 2019 and vide order dated 12.04.2019 the applicant and other accused persons were directed to move an application for discharge with consequential directions through counsel. It is in compliance of the said order, a discharge application was moved before the trial court and the same has been dismissed by passing the impugned order.
The law with regard to the framing of charge and discharge is well settled and the same is now no more res integra. It is well settled that at the stage of framing of charge, material which has been placed on record by the investigating officer with the report under Section 173(2) Cr.P.C. is to be considered and no foreign material apart from the material/evidence which has been submitted by the investigating officer would be taken into consideration, at that stage. It is also well settled that the defence of the accused persons is also not to be seen at the stage of framing of charge and at that point of time, the only right of the accused persons is to be only heard, however, he would not be in a position to place or tender any document/evidence etc. as the decision is to be taken by the trial court on the basis of existing material/evidence.
Hon'ble Supreme Court in the case of State of Tamil Nadu Vs. N. Suresh Rajan and others (2014) 11 SCC 709 has held as under:-
"The aforesaid decisions consider the provision of Section 227 of the Code and make it clear that at the stage of discharge the Court can not make a roving enquiry into the pros and cons of the matter and weigh the evidence as if it was conducting a trial. It is worth mentioning that the Code contemplates discharge of the accused by the Court of Sessions under Section 227 in a case triable by it; cases instituted upon a police report are covered by Section 239 and cases instituted otherwise than on a police report are dealt with in Section 245. From a reading of the aforesaid sections it is evident that they contain somewhat different provisions with regard to discharge of an accused.
31.1 Under Section 227 of the Code, the trial Court is required to discharge the accused if it "considers that there is not sufficient ground for proceeding against the accused". However, discharge under Section 239 can be ordered when "the Magistrate considers the charge against the accused to be groundless". The power to discharge is exercisable under Section 245(1) when, "the Magistrate considers, for reasons to be recorded that no case against the accused has been made out which, if not repudiated, would warrant his conviction".
31.2 Section 227 and 239 provide for discharge before the recording of evidence on the basis of the police report, the documents sent along with it and examination of the accused after giving an opportunity to the parties to be heard. However, the stage of discharge under Section 245, on the other hand, is reached only after the evidence referred in Section 244 has been taken.
31.3 Thus, there is difference in the language employed in these provisions. But, in our opinion, notwithstanding these differences, and whichever provision may be applicable, the Court is required at this stage to see that there is a prima facie case for proceeding against the accused. Reference in this connection can be made to a judgment of this Court in the case of R.S. Nayak v. A.R. Antulay MANU/SC/0198/1986 : (1986) 2 SCC 716. The same reads as follows:
43...Notwithstanding this difference in the position there is no scope for doubt that the stage at which the magistrate is required to consider the question of framing of charge under Section 245(1) is a preliminary one and the test of "prima facie" case has to be applied. In spite of the difference in the language of the three sections, the legal position is that if the Trial Court is satisfied that a prima facie case is made out, charge has to be framed."
Coming to the factual matrix of this case in the background of the aforesaid legal position, it would be evident that specific allegation of manufacturing forged 'will' by applicant has been levelled in the F.I.R. This allegation has been supported by the statement of prosecution witnesses, thus in the considered opinion of this Court, no illegality has been committed by the trial court in passing the impugned order moreover the impugned order has been passed on 24.12.2019 and the same has been challenged in the year 2022, there is no reason shown for such a delay and no order sheet has been placed on record so as to show as to whether any coercive process has been in operation against the applicant.
Thus, for the reasons aforesaid, I do not find any merit in the applicant and the same is dismissed as such.
Order Date :- 2.12.2022
Anupam S/-
