Bhuleyram vs State Of U.P. And Another
2023 Latest Caselaw 13087 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 81
 

 
Case :- CRIMINAL APPEAL No. - 9557 of 2022
 

 
Appellant :- Bhuleyram
 
Respondent :- State of U.P. and Another
 
Counsel for Appellant :- Sunil Vashisth
 
Counsel for Respondent :- G.A.,Sundeep Shukla
 

 
Hon'ble Mohd. Faiz Alam Khan,J.

Heard Shri Sunil Vashisth, learned counsel for the appellant as well as learned Additional Government Advocate for the State, Shri Sundeep Shukla, learned counsel for the respondent no.2 and perused the record.

The instant criminal appeal under Section 14(A)(2) S.C./S.T. Act has been filed by the appellant namely Bhuleyram with the prayer to set-aside the impugned orders dated 29.09.2022 as well as 12.05.2022 passed by learned Special Judge (S.C./S.T. Act), Meerut in Sessions Trial No.451 of 2020 (State Vs. Bhuley Ram), arising out of Case Crime No.523 of 2019, under Sections 420/34, 465, 468, 471, 506 I.P.C. & Section 3(2)5a of the S.C./S.T. Act, Police Station Jani, District Meerut and entire proceedings of the above mentioned case.

Learned counsel for the appellant while referring to the para-16 of the appeal submits that even if the case of the prosecution is taken on its face, no offence, wherein charges have been framed by the special court are emerging against the appellant. It is also submitted that since the offence under S.C./S.T. Act are not emerging from the case of the prosecution, the appellant if tried by the special court would be prejudiced as his right to appeal to court of session shall be curtailed.

To elaborate further, it is submitted that had the case been tried by the court of magistrate, the appellant in case of the conviction may file the appeal to the forum of Sessions court, while this right would not be available to the appellant in the case of his conviction by the special court as the appeal Section 14(A) of the S.C./S.T. Act could only be filed before the High Court.

It is also submitted that the offences, under which the charge sheet has been filed, have been introduced in the Statue by Amendment dated 26.01.2016 and the same may not be invoked retrospectively, thus the trial court has not considered these finer points in right perspective and has passed the impugned order dated 12.05.2022 illegally and the same is liable to be set aside.

Learned A.G.A., however, opposes the submissions made on behalf of the appellant.

Shri Sundeep Shukla, learned counsel for the respondent no.2 vehemently submits that at the stage of framing of charge meticulous exercise of appreciating the evidence is not required, as only sufficiency of material/evidence to proceed further in the trial is to be ascertained by trial court and for the purpose of framing of charge, the evidence/material available in the case diary must not be so conclusive as is required for conviction, thus there is no illegality in the order passed by the trial court, whereby charge under relevant penal section have been framed against the appellant.

Having heard learned counsel for the parties and having perused the record, it is evident that the F.I.R. of the instant case has been lodged by the respondent no.2 containing allegations that the accused persons named therein have defrauded the victims by obtaining loan from the bank in their names and when recovery certificate was issued against them, they came to know of the fact that by using their names and documents, the loan has been taken by the accused persons and when they approached the accused persons, they did not pay any heed and thereafter they had written applications on 10.07.2018 and 30.07.2018 to public authorities, but the F.I.R. was not lodged and thereafter when application was given to the Chief Minister of the State, the instant F.I.R. could be lodged. The allegations of the F.I.R. has been investigated and finding sufficiency in the allegations the investigating officer has submitted charge sheet and trial court after application of judicial mind has taken cognizance and issued process against the appellant and other accused persons and it is informed by learned counsel for the appellant that the instant appellant has also secured bail in the instant case.

The law with regard to the framing of charge and discharge of accused person is now no more res integra and the same has been set at rest by catena of judgement of Hon'ble Supreme Court.

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."

Perusal of the above placed legal position would reveal that at the stage of framing of charge, the trial court is not obliged to do meticulous exercise in order to assess as to whether there is sufficient material/evidence for the purpose of conviction. The duty of the trial court is only to assess if there is sufficient material/evidence available in the case diary, which has been collected by the investigating officer on the basis of which the accused persons may be put on trial, charges can be framed.

The submissions, which have been made on behalf of the appellant pertaining to the retrospective application of the penal law, which has been introduced in the Statute in the year 2016, is not a pure question of law as the same involves factual aspect of the case also and the same could only be ascertained by the trial court at an appropriate stage after the evidence on behalf of the parties is led before the trial court, therefore, in the considered opinion of this Court, on the point of retrospectivity of the applicability of the penal law, the impugned order passed by trial court could not be termed as illegal or absurd.

Coming to the second leg of submission advanced by learned counsel for the appellant pertaining to the fact that the appellant shall be deprived of his right to challenge his conviction in case the appellant is tried by the special court is concerned, the same is also not having any force having regard to the conclusion drawn while considering the first submission of learned counsel for the appellant as a fact, which is a mixed question of fact and law, could only be decided in the trial and in fact the purpose of the criminal trial is to know as to what had happened at the particular time and date as asserted by the prosecution.

Thus for the reasons aforesaid, I do not find any illegality or to say any irregularity so far as the impugned order dated 12.05.2022 is concerned. Resultantly the appeal preferred by the appellant appears to be devoid of merits and is hereby dismissed.

Order Date :- 27.4.2023

Anupam S/-