Ravi Shanker Mishra vs State Of U.P. Trhu. Prin. Secy. ...
2023 Latest Caselaw 7936 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 15
 

 
Case :- APPLICATION U/S 482 No. - 2543 of 2023
 
Applicant :- Ravi Shanker Mishra
 
Opposite Party :- State Of U.P. Trhu. Prin. Secy. Home Deptt., Lko. And Another
 
Counsel for Applicant :- Vineet Kumar Mishra
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Ajai Kumar Srivastava-I,J.

Heard Sri Vineet Kumar Mishra, learned counsel for the applicant, Sri Alok Saran, learned A.G.A. for the State and perused the entire record.

In view of the order, which is proposed to be passed today, notice to opposite party No.2 is hereby dispensed with.

The instant application under Section 482 Cr.P.C. has been filed by the accused/ applicant, Ravi Shanker Mishra for quashing the impugned order dated 23.02.2023 passed by the learned Special Judge P.C. Act First, Lucknow arising out of Case Crime No.137 of 1993, under Sections 498A, 304B I.P.C., Police Station Aliganj, District Lucknow as well as consequential proceedings with regard to summoning order dated 04.04.2001 passed by the learned Additional Sessions Judge-II, Lucknow.

Learned counsel for the applicant has submitted that initially, a first information report came to be lodged against as many as six named accused persons, namely, Kavi Shanker Mishra, Ravi Shanker Mishra, Smt. Katyayni, Smt. Geeta, Smt. Santosh and Ramesh Pandey. However, a charge sheet came to be laid against the accused persons, namely, Kavi Shanker Mishra and Smt. Katyayni, who are the husband and mother-in-law of the deceased respectively.

His further submission is that the accused/ applicant was not charge sheeted because no credible evidence in respect of alleged offence under Sections 498A and 304B I.P.C. could be collected during investigation against the accused/ applicant. However, he submits that during the trial of Sessions Trial No.388 of 1993, the accused/ applicant came to be summoned under Section 319 Cr.P.C. to stand trial.

His next submission is that the accused/ applicant moved an application bearing Application U/s 482 No.578 of 2023 titled as Ravi Shanker Mishra vs. State of U.P. for quashing of entire proceedings against the accused/ applicant, which emanated as Sessions Trial No.388 of 1993, which came to be disposed of by a coordinate Bench of this Court vide order dated 23.01.2023 with a direction to the accused/ applicant to move an application claiming discharge. A copy of the same is annexed as annexure No.9 to the instant application.

Pursuant to aforesaid order dated 23.01.2023, learned counsel for the accused/ applicant has submitted that the accused/ applicant moved an application for discharge under Section 227 Cr.P.C, which is annexed as annexure No.10 to the instant application, taking therein all the pleas to the effect that there is nothing on record to show that the deceased died in an unnatural manner and also that any demand of dowry by the present accused/ applicant. Therefore, his submission is that by no stretch of imagination, the presumption as envisaged under Section 113B Indian Evidence Act could not have been raised against the accused/ applicant. However, his application under Section 227 Cr.P.C. has not been allowed by the learned trial court.

His next submission with vehemence is that the provisions contained in Section 227 Cr.P.C. in respect of discharge in sessions trial and Section 239 Cr.P.C. regarding discharge in warrant trial, are substantially similar. This fact has been reiterated by the Hon'ble Apex Court in Asim Shariff vs. National Investigation Agency reported in (2019) 7 SCC 148 in para-18. Therefore, having regard to this settled legal position, the learned trial court was bound to sift evidence in limited manner to ascertain as to whether any offence is made out against the applicant or not.

Learned counsel for the accused/ applicant has drawn attention of this Court with vehemence to the fact that the accused persons, namely, Kavi Shanker Mishra and Smt. Katyayni, who are the husband and mother-in-law respectively, against whom a charge sheet was laid initially, have been acquitted vide judgment and order dated 27.04.2007 passed by the learned Additional Sessions Judge, Court No.1, Lucknow in Sessions Trial No.388 of 1993 titled as State vs. Kavi Shanker Mishra and another arising out of Crime No.137 of 1993, under Sections 498-A, 304-B I.P.C., Police Station Aliganj, District Lucknow, which is annexed as annexure No.8 to the instant application, wherein there is a specific finding of fact that the deceased did not die in an unnatural manner and also there was no demand of dowry by the accused persons.

His next submission is that the learned trial Court, while passing the impugned orders, has failed to appreciate that the learned trial court was competent to sift evidence for a limited purpose of ascertaining as to whether any offence, prima facie, is made out against the applicant or not. Therefore, the impugned orders are liable to be quashed.

Per contra, learned A.G.A. has vehemently opposed the prayer. However, he has very fairly submitted that it was, at least, incumbent on learned trial court to have, prima facie, examined the material so as to come to conclusion that what offence(s) is made out against the applicant on the basis of prosecution evidence collected during the investigation.

Having heard learned counsel for the applicant, learned A.G.A. for the State and upon perusal of the record, it transpires that initially, a first information report came to be lodged against as many as six named accused persons, namely, Kavi Shanker Mishra, Ravi Shanker Mishra, Smt. Katyayni, Smt. Geeta, Smt. Santosh and Ramesh Pandey. However, a charge sheet came to be laid against the accused persons, namely, Kavi Shanker Mishra and Smt. Katyayni, who are the husband and mother-in-law of the deceased respectively. The accused/ applicant was not charge sheeted because no credible evidence in respect of alleged offence under Sections 498A and 304B I.P.C. could be collected during investigation against the accused/ applicant. However, during the trial of Sessions Trial No.388 of 1993, the accused/ applicant came to be summoned under Section 319 Cr.P.C. to stand trial. The accused persons, namely, Kavi Shanker Mishra and Smt. Katyayni, who are the husband and mother-in-law respectively, against whom the charge sheet was laid initially, have been acquitted vide impugned judgment and order dated 27.04.2007 passed by the learned Additional Sessions Judge, Court No.1, Lucknow in Sessions Trial No.388 of 1993 titled as State vs. Kavi Shanker Mishra and another arising out of Crime No.137 of 1993, under Sections 498-A, 304-B I.P.C., Police Station Aliganj, District Lucknow, which is annexed as annexure No.8 to the instant application. The accused/ applicant moved an application for discharge under Section 227 Cr.P.C, which is annexed as annexure No.10, which has been rejected by the learned trial court vide impugned order dated 23.02.2023 with a direction to frame the charges against the accused/ applicant.

Thus, it is not disputed that the present accused/ applicant has come to be summoned under Section 319 Cr.P.C. Therefore, the accused/ applicant was not entitled to seek discharge by means of moving an application under Section 227 Cr.P.C. This finds support from a judgment rendered by the Hon'ble Supreme Court in Jogendra Yadav and others vs. State of Bihar and another reported in (2015) 9 SCC 244 wherein the Hon'ble Supreme Court has held that the remedy provided under Section 227 Cr.P.C. seeking discharge shall not be available to a person/ accused, who has been summoned by invoking provisions contained in Section 319 Cr.P.C.

Since the remedy of seeking discharge under Section 227 Cr.P.C. by such accused, who came to be summoned under Section 319 Cr.P.C., was not available in view of the aforesaid judgment rendered by the Hon'ble Supreme Court in Jogendra Yadav's case (supra), therefore, the learned trial court was justified in rejecting the application moved by the present accused/ applicant seeking discharge under Section 227 Cr.P.C.

Thus, on the basis of the aforesaid discussion, this Court does not find any illegality or infirmity in the impugned order under challenge. There is no abuse of process of this Court either.

Having held as above, this Court is also mindful of the fact that the co-accused persons, namely, Kavi Shanker Mishra and Smt. Katyayni, who are the husband and mother-in-law respectively, against whom the charge sheet was laid initially, have been acquitted vide impugned judgment and order dated 27.04.2007 passed by the learned Additional Sessions Judge, Court No.1, Lucknow in Sessions Trial No.388 of 1993 titled as State vs. Kavi Shanker Mishra and another arising out of Crime No.137 of 1993, under Sections 498-A, 304-B I.P.C., Police Station Aliganj, District Lucknow, on the premise that the marriage of the deceased with co-accused, Kavi Shanker Mishra was not solemnized within seven years and also there was no evidence of demand of dowry and treating the deceased with cruelty.

In view of aforesaid, in case, the present accused/ applicant, who has been summoned under Section 319 Cr.P.C., moves an application for seeking bail/ anticipatory bail, the same shall be disposed of by the learned court concerned with utmost expedition and having regard to the fact that the co-accused persons, namely, Kavi Shanker Mishra and Smt. Katyayni, who are the husband and mother-in-law respectively, against whom the charge sheet was laid initially, have already been acquitted vide impugned judgment and order dated 27.04.2007 passed by the learned Additional Sessions Judge, Court No.1, Lucknow in Sessions Trial No.388 of 1993 titled as State vs. Kavi Shanker Mishra and another arising out of Crime No.137 of 1993, under Sections 498-A, 304-B I.P.C., Police Station Aliganj, District Lucknow.

With the aforesaid observations/ directions, the instant application under Section 482 Cr.P.C. stands finally disposed of.

(Ajai Kumar Srivastava-I, J.)

Order Date :- 20.3.2023

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