Maqbool And 2 Others vs State Of U.P. Thru. Secy. Home Lko. ...
2023 Latest Caselaw 12661 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 15
 

 
Case :- CRIMINAL REVISION No. - 433 of 2023
 

 
Revisionist :- Maqbool And 2 Others
 
Opposite Party :- State Of U.P. Thru. Secy. Home Lko. And Another
 
Counsel for Revisionist :- Surya Kumar,Atma Ram Verma
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Ajai Kumar Srivastava-I,J.

1. Heard Sri Surya Kumar, learned counsel for the revisionist, Sri Veer Raghav Chaubey, learned A.G.A. for the State and perused the entire record.

2. The instant criminal revision has been filed by the revisionist for setting aside the order dated 17.02.2023 passed in Complaint Case No.202/ 20 /2019, under Sections 420, 467, 468, 471 read with Section 120(B) I.P.C., Police Station Pachperwa, District Balrampur whereby the learned Judicial Magistrate/ First Additional Civil Judge (J.D.), Room No.13, Balrampur rejected the application for discharge under Section 245(2) Cr.P.C.

3. Learned counsel for the revisionists has submitted that the impugned order dated 17.02.2023 is illegal and the same has been passed without due application of judicial mind by the learned trial court warranting interference by this Court.

4. His further submission is that on the basis of material available before the learned trial court, no charge could be framed against the revisionists under Sections 420, 467, 468, 471 read with Section 120(B) I.P.C. Despite this fact, the learned trial court has rejected the application moved by the revisionists under Section 245(2) Cr.P.C. claiming discharge vide impugned order dated 17.02.2023. He has also submitted that the impugned order dated 17.02.2023 is dehors any reason, therefore, the same is also unsustainable which deserves to be set aside.

5. Per contra, learned A.G.A. has vehemently opposed the prayer by submitting that the impugned order dated 17.02.2023 is well discussed and reasoned order wherein no interference by this Court in exercise of revisional jurisdiction is expected. It is also submitted that the revisional jurisdiction is available to correct any gross illegality only. The revisional court is not expected to undertake evaluation of evidence and cannot substitute its own view insofar as the finding of facts and concerned.

6. Having heard the learned counsel for the revisionists, learned A.G.A. for the State and upon perusal of record, it transpires that initially an application under Section 156(3) Cr.P.C. came to be moved against the revisionists. It also transpires that the same was treated to be a complaint by the learned trial court. The complainant got himself examined under Section 200 Cr.P.C. and his witnesses under Section 202 Cr.P.C. which led to summoning order dated 17.08.2022 being passed against so many persons including the present revisionists. It also transpires from perusal of record that an application claiming discharge under Section 245(2) Cr.P.C. came to be filed by the revisionists, which came to be dismissed by the learned trial court by means of impugned order dated 17.02.2023.

7. The Hon'ble Supreme Court in State through Deputy Superintendent of Police vs. R. Soundirarasu etc. reported in 2022 SCC OnLine SC 1150 in paragraphs No.57, 58, 59, 61, 62, 63, 68, 71, 72, 73, 74, 75, 76 has held as under:-

"57. The nature of evaluation to be made by the court at the stage of framing of charge came up for consideration of this Court in Onkar Nath Mishra v. State (NCT of Delhi), (2008) 2 SCC 561, and referring to its earlier decisions in the State of Maharashtra v. Som Nath Thapa, (1996) 4 SCC 659, and the State of M.P. v. Mohanlal Soni, (2000) 6 SCC 338, it was held that at that stage, the Court has to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged and it is not expected to go deep into the probative value of the materials on record. The relevant observations made in the judgment are as follows:?

"11. It is trite that at the stage of framing of charge the court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom, taken at their face value, disclosed the existence of all the ingredients constituting the alleged offence. At that stage, the court is not expected to go deep into the probative value of the material on record. What needs to be considered is whether there is a ground for presuming that the offence has been committed and not a ground for convicting the accused has been made out. At that stage, even strong suspicion founded on material which leads the court to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged would justify the framing of charge against the accused in respect of the commission of that offence."

58. Then again in the case of Som Nath Thapa (supra), a three-Judge Bench of this Court, after noting the three pairs of Sections i.e. (i) Sections 227 and 228 resply in so far as the sessions trial is concerned; (ii) Sections 239 and 240 resply relatable to the trial of warrant cases; and (iii) Sections 245(1) and (2) qua the trial of summons cases, which dealt with the question of framing of charge or discharge, stated thus : (SCC p. 671, para 32).

"32?if on the basis of materials on record, a court could come to the conclusion that commission of the offence is a probable consequence, a case for framing of charge exists. To put it differently, if the court were to think that the accused might have committed the offence it can frame the charge, though for conviction the conclusion is required to be that the accused has committed the offence. It is apparent that at the stage of framing of a charge, probative value of the materials on record cannot be gone into; the materials brought on record by the prosecution has to be accepted as true at that stage."

59. In a later decision in Mohanlal Soni (supra), this Court, referring to several of its previous decisions, held that : (SCC p. 342, para 7)

"7. The crystallised judicial view is that at the stage of framing charge, the court has to prima facie consider whether there is sufficient ground for proceeding against the accused. The court is not required to appreciate evidence to conclude whether the materials produced are sufficient or not for convicting the accused."

61. In the context of trial of a warrant case, instituted on a police report, the provisions for discharge are to be governed as per the terms of Section 239 which provide that a direction for discharge can be made only for reasons to be recorded by the court where it considers the charge against the accused to be groundless. It would, therefore, follow that as per the provisions under Section 239 what needs to be considered is whether there is a ground for presuming that the offence has been committed and not that a ground for convicting the accused has been made out. At that stage, even strong suspicion founded on material which leads the Court to form a presumptive opinion as to the existence of the factual ingredients constituting the offences alleged would justify the framing of charge against the accused in respect of that offence, and it is only in a case where the Magistrate considers the charge to be groundless, he is to discharge the accused after recording his reasons for doing so.

62. Section 239 envisages a careful and objective consideration of the question whether the charge against the accused is groundless or whether there is ground for presuming that he has committed an offence. What Section 239 prescribes is not, therefore, an empty or routine formality. It is a valuable provision to the advantage of the accused, and its breach is not permissible under the law. But if the Judge, upon considering the record, including the examination, if any, and the hearing, is of the opinion that there is "ground for presuming" that the accused has committed the offence triable under the chapter, he is required by Section 240 to frame in writing a charge against the accused. The order for the framing of the charge is also not an empty or routine formality. It is of a far-reaching nature, and it amounts to a decision that the accused is not entitled to discharge under Section 239, that there is, on the other hand, ground for presuming that he has committed an offence triable under Chapter XIX and that he should be called upon to plead guilty to it and be convicted and sentenced on that plea, or face the trial. (See : V.C. Shukla v. State through CBI, 1980 Supp SCC 92 : AIR 1980 SC 962).

63. Section 239 of the CrPC lays down that if the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused. The word 'groundless', in our opinion, means that there must be no ground for presuming that the accused has committed the offence. The word 'groundless' used in Section 239 of the CrPC means that the materials placed before the Court do not make out or are not sufficient to make out a prima facie case against the accused.

68. Thus the word 'groundless', as interpreted by this Court, means that there is no ground for presuming that the accused has committed an offence.

71. Section 239 has to be read along with Section 240 of the CrPC. If the Magistrate finds that there is prima facie evidence or the material against the accused in support of the charge (allegations), he may frame charge in accordance with Section 240 of the CrPC. But if he finds that the charge (the allegations or imputations) made against the accused does not make out a prima facie case and does not furnish basis for framing charge, it will be a case of charge being groundless, so he has no option but to discharge the accused. Where the Magistrate finds that taking cognizance of the offence itself was contrary to any provision of law, like Section 468 of the CrPC, the complaint being barred by limitation, so he cannot frame the charge, he has to discharge the accused. Indeed, in a case where the Magistrate takes cognizance of an offence without taking note of Section 468 of the CrPC, the most appropriate stage at which the accused can plead for his discharge is the stage of framing the charge. He need not wait till completion of trial. The Magistrate will be committing no illegality in considering that question and discharging the accused at the stage of framing charge if the facts so justify.

72. The real test for determining whether the charge should be considered groundless under Section 239 of the CrPC is that whether the materials are such that even if unrebutted make out no case whatsoever, the accused should be discharged under Section 239 of the CrPC. The trial court will have to consider, whether the materials relied upon by the prosecution against the applicant herein for the purpose of framing of the charge, if unrebutted, make out any case at all.

73. The provisions of discharge under Section 239 of the CrPC fell for consideration of this Court in K. Ramakrishna v. State of Bihar, (2000) 8 SCC 547, and it was held that the questions regarding the sufficiency or reliability of the evidence to proceed further are not required to be considered by the trial court under Section 239 and the High Court under Section 482. It was observed as follows:?

"4. The trial court under Section 239 and the High Court under Section 482 of the Code of Criminal Procedure is not called upon to embark upon an inquiry as to whether evidence in question is reliable or not or evidence relied upon is sufficient to proceed further or not. However, if upon the admitted facts and the documents relied upon by the complainant or the prosecution and without weighing or sifting of evidence, no case is made out, the criminal proceedings instituted against the accused are required to be dropped or quashed. As observed by this Court in Rajesh Bajaj v. State NCT of Delhi, [(1999) 3 SCC 259] the High Court or the Magistrate are also not supposed to adopt a strict hypertechnical approach to sieve the complaint through a colander of finest gauzes for testing the ingredients of offence with which the accused is charge. Such an endeavour may be justified during trial but not during the initial stage."

74. In the case of State by Karnataka Lokayukta, Police Station, Bengaluru v. M.R. Hiremath, (2019) 7 SCC 515, this Court observed and held in paragraph 25 as under:?

"25. 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 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 State of T.N. v. N. Suresh Rajan [State of T.N. v. N. Suresh Rajan, (2014) 11 SCC 709, adverting to the earlier decisions on the subject, this Court held : (SCC pp. 721-22, para 29)

"29. ? At this stage, probative value of the materials has tobe 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 law does not permit a mini trial at this stage.""

75. The ambit and scope of exercise of power under Sections 239 and 240 of the CrPC, are therefore fairly well settled. The obligation to discharge the accused under Section 239 arises when the Magistrate considers the charge against the accused to be "groundless". The Section mandates that the Magistrate shall discharge the accused recording reasons, if after (i) considering the police report and the documents sent with it under Section 173, (ii) examining the accused, if necessary, and (iii) giving the prosecution and the accused an opportunity of being heard, he considers the charge against the accused to be groundless, i.e., either there is no legal evidence or that the facts are such that no offence is made out at all. No detailed evaluation of the materials or meticulous consideration of the possible defences need be undertaken at this stage nor any exercise of weighing materials in golden scales is to be undertaken at this stage - the only consideration at the stage of Section 239/240 is as to whether the allegation/charge is groundless.

76. This would not be the stage for weighing the pros and cons of all the implications of the materials, nor for sifting the materials placed by the prosecution-the exercise at this stage is to be confined to considering the police report and the documents to decide whether the allegations against the accused can be said to be "groundless"."

8. Thus, upon a close scrutiny of impugned order dated 17.02.2023 in the light of law laid down by the Hon'ble Supreme Court in R. Soundiraras's case (supra), there is nothing on record to show that no case against the revisionists is made out nor there is anything on record to show that the charge against them appears to be groundless. Therefore, the impugned order dated 17.02.2023 cannot be said to be illegal. There is no material irregularity either. Therefore, the instant criminal revision deserves to be dismissed and the same is hereby dismissed, accordingly.

(Ajai Kumar Srivastava-I, J.)

Order Date :- 25.4.2023

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