Allahabad High Court
Kamal Tiwari vs State Of U.P. Thru. Secy. Home, ... on 6 February, 2023
Bench: Shree Prakash Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 27
Case :- APPLICATION U/S 482 No. - 1051 of 2023
Applicant :- Kamal Tiwari
Opposite Party :- State Of U.P. Thru. Secy. Home, Lko. And Another
Counsel for Applicant :- Sunil Dixit
Counsel for Opposite Party :- G.A.
Hon'ble Shree Prakash Singh,J.
Heard learned counsel for the applicant, Sri Girijesh Kumar Dwivedi, learned A.G.A.-I for the State and perused the material placed on record.
Instant application has been filed with the prayer to quash the order dated 24.1.2023 passed in Criminal Revision No.68 of 2022, Kamal Tiwari Vs. State of U.P. passed by Special Judge P.C. Act First Lucknow and order dated 4.12.2021 passed in Criminal Case No.73375 of 2021, State Vs. Kamal Tiwari, passed by the Chief Judicial Magistrate, Lucknow, arising out of Case Crime No.259 of 2021, under sections 406, 504, 506 IPC, Police station Hazratganj, District Lucknow. Further prayer is to stay the proceedings of the aforementioned criminal case, during the pendency of the instant application.
Learned counsel for the applicant submits that the applicant is innocent and he has falsely been implicated in the instant matter. He next added that matter pertains to a dispute of money transaction but the same has been given a colour of criminality. Further, the matter pertains to the year 2018 and the F.I.R. has been lodged in the year 2021. Except apart the factual dispute, the order dated 4.12.2021 passed by the Chief Judicial Magistrate, Lucknow assails perversity and illegality on the premise that, on the same day, proceedings of Section 207 Cr.P.C. was done by the Magistrate, and in the same order, proceeding of Section 240 of Cr.P.C. has also been complied with. Adding his arguments, he submits that in fact, no reasonable period of time was accorded to the applicant after providing the police report and other evidence to the applicant.
During the course of arguments, he has drawn attention of the Court towards page 27 of the application and added that in one stroke of pen, the Magistrate has provided the copy of the police report and evidences to the applicant and at the same time, he asked the applicant that certain charges are being framed against him and, thereafter, the charges have been framed. In fact, there is no such provision in Cr.P.C. that the opportunity of hearing is required at the stage of discharge but reasonable period of time should have been given to the applicant after providing the police report and evidences while complying the provisions of Section 207 of the Cr.P.C. He has added that applicant could not find any chance to go through the evidence, which was collected by the Investigating Officer during investigation and, thus, the charges framed against the applicant was unlawful and the same assail illegality.
Further he has placed reliance on para 18 of the Judgment dated 7.5.2021 of the Apex Court, rendered in Criminal Appeal No.472 of 2021 arising out of Special Leave Petition No.10157 of 2019, Sanjay Kumar Rai Vs. State of Uttar Pradesh and another. Para 18 of the aforesaid Judgement reads as under:-
"18. The High Court has committed jurisdictional error by not entertaining the revision petition on merits and overlooking the fact that 'discharge' is a valuable right provided to the accused. In line with the fact that the High Court and the court below have not examined the fairness of criminal investigation in this 5 (1979) 3 SCC 4 case and other related aspects concerning improvement of witness statements, it is necessary for the High Court to reconsider the entire matter and decide the revision petition afresh. Accordingly, we set aside the impugned order dated 28.11.2018 and remand the case back to the High Court for its reconsideration in accordance with law."
Referring the aforesaid Judgment, he submits that Hon'ble Apex Court has held that discharge is a valuable right provided to the accused in the Act and, thus, he submits that same could not have been skipped so hastily by the court below and thus, the orders impugned dated 24.1.2023 and 4.12.2021 passed by the trial court are not sustainable in the eyes of law and the same is liable to be set aside.
On the other hand, learned A.G.A. for the State has vehemently opposed the contention aforesaid and submits that charges levelled in the F.I.R. are serious and, after thorough investigation, it was found that the applicant was involved in committing the offence and thereafter, charge sheet was filed. In regard to the argument of the learned counsel for the applicant that opportunity should have been given to him when the charges were being framed by the trial court, he submitted that after completion of proceeding under Section 207 of the Cr.P.C., charges have been framed and, thus, there is no illegality or infirmity in the impugned orders aforesaid.
Considering the submissions of the learned counsel for the parties and after perusal of the record, it reveals that proceeding under Section 207 of Cr.P.C. by way of providing copy of the police report and evidence has been done by the trial court on 4.12.2021 and without affording time to the applicant to go through the police report, on the same day, the charges have been framed. From bare perusal of the order impugned dated 24.1.2023, it is apparent that no reasonable period of time was accorded so far as the charges have been framed against the applicant.
Contention of the learned counsel for the State is that there is no overt provision with respect to provide opportunity of hearing while proceedings of discharge under Section 239 Cr.P.C. but so far as the reasonable period of time is concerned, this Court is of the view that discharge is the valuable right of the accused and that has not been accorded and considered by the trial court and thus, it seems that the orders impugned dated 24.1.2023 and 4.12.2021 are not sustainable in the eyes of law and thus, the same are hereby set aside.
Matter is remitted back to the court concerned to pass fresh order while invoking jurisdiction under Section 239 and 240 of Cr.P.C. The matter is fixed on 16.2.2023 before trial court and the applicant is directed to remain present before the court concerned and shall file response accordingly. No adjournment shall be sought by the applicant.
With the aforesaid observations, instant application is allowed.
Order Date :- 6.2.2023
Ram Murti
