Allahabad High Court
Pramod Pandey And 5 Others vs State Of U.P. And Another on 31 May, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
Reserved on 23.05.2024
Delivered on 31.05.2024
Neutral Citation No. - 2024:AHC:100446
Court No. - 78
Case :- CRIMINAL APPEAL No. - 2759 of 2020
Appellant :- Pramod Pandey And 5 Others
Respondent :- State of U.P. and Another
Counsel for Appellant :- Kamlesh Singh
Counsel for Respondent :- Avanindra Kumar Mishra,G.A.
Hon'ble Manoj Bajaj,J.
1. Appellants-Accused have filed this appeal under Section 14A(1) Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 for setting aside the impugned order dated 21.9.2019 passed by the Special Judge (SC/ST Act), Deoria in Sessions Trial No. 50 of 2016; titled Raj Bahadur Chamar vs. Pramod Pandey, arising out of Case Crime No. 99 of 2012, under Sections 323, 504, 506 IPC and 3(1)X Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, Police Station Lar, District Deoria, whereby their application under Section 245(2) Cr.P.C. for discharge has been dismissed.
2. The facts in brief leading to the appeal are that the opposite party no. 2-Raj Bahadur Chamar filed an application under Section 156(3) Cr.P.C. dated 1st December, 2011 before the Judicial Magistrate, Deoria for registration of FIR and investigation, whereupon vide order dated 8th February, 2012, a direction was issued and a Case Crime No. 99 of 2012 was registered against the accused persons (appellants) under sections 376, 511, 452, 504, 506 IPC and Section 3(1)X Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, at Police Station Lar, District Deoria. As per the allegations, on 29th March, 2011, when the complainant left his house around 10:00 am for work in his agricultural fields, his wife Usha Devi was alone at home. The co-villagers of the complainant namely Pramod Pandey and Sandeep entered his house with an intention to do wrong act with his wife, and they gagged her mouth and attempted to undress her, but his wife shouted and gave them kick and fist blows, whereupon the accused fled away. Pursuant to the information given to the Police Station Lar, the place of occurrence was visited by the police officially.
3. On 1st April, 2011 at around 5:30 pm, Pramod Pandey, Ashok Pandey both sons of Indrasan Pandey, Vinit @ Ankur Pandey s/o Pramod Pandey, Sandeep Pandey, Mukesh both sons of Ramesh Pandey, Anil s/o Jagarnath Pandey and Rupesh s/o Umesh Pandey entered the house of the complainant and started giving kicks, fists and sticks blows to his wife Usha Devi, and when the complainant intervened to save her, he too was given beatings. The complainant and his wife got themselves medically examined at Primary Health Centre, Lar, and also gave information to S.H.O. for registration of the case, but no action was taken upon his complaint, so, he filed the application.
4. After registration of the case, the investigation was carried out and upon conclusion, a final report under Section 173(2) Cr.P.C. dated 12th March, 2012 was submitted before the court of competent jurisdiction, thereby exonerating the accused persons.
5. Aggrieved against this final report, the complainant preferred a protest application dated 6th June, 2012 and the Judicial Magistrate, Deoria entertained the same as a complaint case to follow the procedure enshrined under Chapter XV Code of Criminal Procedure. Thereafter, the statement of the complainant was recorded under Section 200 Cr.P.C. on 12.1.2015, and further in support of his case, the complainant examined his wife Usha Devi (PW-1) and Lakshmina (PW-2).
6. During the pendency of the proceedings, the SC/ST Act was amended and by virtue of Section 14 SC/ST Act, the Special Court was empowered to directly take cognizance of such offence, therefore, the case was sent before the Special Court (SC/ST Act), Deoria. Upon examining the protest petition as well as pre-summoning evidence adduced by the complainant, the process against the accused was issued vide order dated 12.01.2017 by the Special Court, Deoria.
7. It seems that pursuant to the summoning order, the accused did not appear before the Special Court, Deoria and vide order dated 28th September, 2018, non-bailable warrants were issued against the accused to secure their presence. The said order was challenged by accused before this Court through application under Section 482 Cr.P.C. bearing No. 46289 of 2018; titled Mukesh Pandey and another vs. State of U.P. and another, wherein this Court vide order dated 21.12.2018 refused to interfere with the impugned order issuing non-bailable warrants, but granted liberty to the accused to move an application under Section 245(2) Cr.P.C. subject to their putting in appearance before the trial court within a period of two weeks. Further a direction was also issued that the said application be decided expeditiously. In compliance of the order dated 21.12.2018, the accused persons moved an application dated 22.1.2019 and prayed for discharge in the criminal case.
8. The Special Court (SC/ST) Act, Deoria vide order dated 21.09.2019 dismissed the said application and fixed the case for framing of charges against the accused persons. Hence this appeal.
9. Vide order dated 24.08.2020, this Court had issued the notice to the opposite parties, and they filed their respective counter affidavits dated 8.12.2020 and 4.1.2021 to contest the appeal.
10. The reply by the State of U.P. is formal in nature, wherein it is pleaded that the complainant had given a false complaint, which was thoroughly investigated, and since, nothing incriminating was found against the accused, therefore, the report exonerating the accused was submitted. Lastly, it is pleaded that the impugned order dated 21.09.2019 is a reasoned order, which does not suffer from any illegality and prayer has been made to dismiss the appeal.
11. The response by the complainant has denied the grounds raised by the appellants, who pleaded that the investigation in the case was not conducted properly and the final report under Section 173(2) Cr.P.C. was filed to favour the accused, and it compelled the complainant to move a protest petition, whereupon sufficient evidence has been adduced to prima facie show commission of the alleged offences, therefore, the trial court not only rightly issued the process against the accused, but justifiably dismissed the application for discharge vide impugned order dated 21.09.2019. In the end, it is prayed that the appeal be dismissed.
12. Learned counsel for the appellants has argued that the case filed by the complainant is without any foundation, but the trial court had erroneously summoned the accused by ignoring the fact that the allegations contained in the FIR by the complainant were thoroughly investigated, wherein the statements of various witnesses were recorded, but nothing incriminating was found against the accused, therefore, the police filed the final report in favour of the accused. Learned counsel has argued that the witnesses are closely related to the complainant, therefore, their evidence alone would not be sufficient to prosecute the appellants, particularly, when the allegations of beatings are not supported by any cogent evidence. He submits that as per the medical report dated 1st April, 2011, no external injury was found on the person of Usha Devi, whereas the injury allegedly suffered by Raj Bahadur are artificial. He submits that the medical evidence does not match with the ocular version given by the complainant, therefore, it is evident that the version of the complainant is false.
13. According to the learned counsel, the Special Court (SC/SC Act), Deoria has not appreciated the facts and circumstances of the case carefully while dismissing their application under Section 245(2) Cr.P.C. for discharge through the impugned order dated 21.9.2019, and the said order deserves to be set aside. He prays that the impugned order dated 21.9.2019 be set aside and the appellants be discharged.
14. The prayer is opposed by the learned counsel for the complainant-opposite party no. 2, who has argued that the material on record sufficiently makes out a case for initiating the trial proceedings against the accused persons, and the evidence of the complainant is also supported with the medical evidence. Learned counsel for the opposite party no. 2 argued that at the stage of framing the charges, the trial court is required to find out, if, the evidence sought to be adduced by the prosecution makes out a prima facie case for commission of alleged offences, and if, it is so, the accused cannot be discharged. He submits that the trial court has given valid reasons while passing the impugned order, therefore, the said order does not call for any interference by this Court.
15. Learned counsel for the parties have been heard and with their assistance, the case file has been perused carefully.
16. Framing of charges against an accused marks commencement of criminal trial in respect of the alleged offences, and at this crucial stage, it is mandatory for the trial court to not only examine the record of the case relied upon by the prosecution, but also to afford an opportunity of hearing to the accused. Based upon the classification of offences, the penal offences are either triable before the Court of Sessions or the Magistrate and the procedure in this regard is contained in Chapter XVIII and Chapter XIX, respectively of the Code of Criminal Procedure. In a trial before the Sessions Court, the relevant provisions are Sections 227 and 228 Cr.P.C., whereas in respect of the magisterial trial, the relevant sections would be Sections 239 and 240 Cr.P.C. These sections deal with the trial based upon a police report, whereas the procedure based upon a complaint case is slightly different, if, the trial is before the Magistrate and the said procedure is contained in Sections 244 and 245 Cr.P.C. onwards.
17. At this juncture, it would be relevant to note that in a sessions trial, even if, the prosecution of accused is arising from a complaint case, after appearance of the accused before the Court of Sessions either after committal of the case or otherwise, the proceedings take place as a State case. On the contrary, if, the trial is before the Magistrate, the procedure is different, wherein after appearance of accused pre-charge evidence is recorded under Section 244 Cr.P.C., and thereafter, considering the same, either the accused is discharged under Section 245(1) Cr.P.C. or charges are framed under Section 246 Cr.P.C. Of course, as per Section 245(2), the Magistrate has power to discharge the accused at any previous stage also. Thus, it is evident that even if, the initial process against the accused was issued by the trial court (Sessions Court) on the basis of the complaint and pre-summoning evidence, but thereafter, from the stage of discharge of the accused or framing of charges, it becomes a State case as contemplated by sections 225 and 226 Cr.P.C., and the proceedings are opened by the public prosecutor. Since, the present case also contains an offence punishable under Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, which is triable by Special Court (Sessions Court), therefore, the Special Court is required to follow the procedure envisaged under Chapter XVIII Cr.P.C.
18. Here, this Court deems it appropriate to examine the relevant provisions pertaining to discharge and framing of charge and the sections 227 and 228 Cr.P.C. read as under:-
"Section 227. Discharge.- If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing.
Section 228. Framing of Charge.- (1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which-
(a) is not exclusively triable by the Court of Session, he may, frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate, 1[or any other Judicial Magistrate of the first class and direct the accused to appear before the Chief Judicial Magistrate, or, as the case may be, the Judicial Magistrate of the first class, on such date as he deems fit, and thereupon such Magistrate] shall try the offence in accordance with the procedure for the trial of warrant-cases instituted on a police report;
(b) is exclusively triable by the Court, he shall frame in writing a charge against the accused.
(2) Where the Judge frames any charge under clause (b) of sub-section (1), the charge shall be read and explained to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried."
19. A bare reading of the above provisions would reveal that while entering in the exercise of discharge or framing of charges, the trial court is only required to consider the record of the case including the documents relied upon by the prosecution, and, if, sufficient grounds exist for proceeding against the accused, the charge in respect of the alleged offence(s) has to be framed. And if, the trial court is of the opinion that no sufficient ground exists for proceeding against the accused, it shall discharge the accused in terms of Section 227 Cr.P.C. At this stage, the participation of the accused is mandatory and the only exception to the general rule is contained in Section 317 Cr.P.C., when the trial court may conduct proceedings in the absence of the accused subject to fulfilling certain conditions contained in the said provision. It is trite law that at the stage of considering the material on record for the purposes of discharge or framing of charges, the proposed defence of the accused is not to be analyzed. As a result, it is absolutely clear that the trial court is to pass an order either under Section 227 Cr.P.C. or under Section 228 Cr.P.c. In other words, the trial court is not required to pass two orders under the above two sections, i.e. firstly giving reasons for not discharging the accused and followed by another order relating to the framing of charges.
20. Here, it will be useful to refer the decision of the Hon'ble Supreme Court in State of Bihar vs. Ramesh Singh1. The relevant observations by the Apex Court read as under:-
"4. Under section 226 of the Code while opening the case for the prosecution the Prosecutor has got to describe the charge against the accused and state by what evidence he proposes to prove the guilt of the accused. Thereafter comes at the initial stage the duty of the Court to consider the record of the case and the documents submitted therewith and to hear the submissions of the accused and the prosecution in that behalf. 'The Judge has to pass thereafter an order either under section 227 or section 228 of the Code. If "the Judge consider that there is not. sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing", as enjoined by section 227. If, on the other hand, "the Judge is of opinion that there, is ground for presuming. that the accused has committed an offence which-
. . . . . (b) is exclusively triable by the Court, he shall frame in writing a charge against the accused'-', as provided in section 228. Reading the two provisions together in juxta position, as they have got to be, it would be clear that at the beginning and the initial stage of the trial the truth, veracity and effect of the evidence which the Prosecutor proposes to adduce are not to be meticulously judged. .............xxx xxxxx.............."
21. Notably, the Section 227 Cr.P.C. was inserted only in the Code of Criminal Procedure, 1973, and no such provision existed in the old Code of 1898. The procedure provided under the old Code, relating to the committal proceedings under Section 207-A before the Magistrate used to be exhaustive, being in the nature of an enquiry, and it required recording of evidence of prosecution witnesses, as well as their cross-examination by defence. After completion of this procedure, the Magistrate would ascertain by recording satisfaction, if, the alleged offences triable by Sessions Court are worth committal for the trial or not. If, the Magistrate would commit the accused for trial before Sessions Court. But, in order to expedite the criminal proceedings against the accused, certain amendments were carried out thereby omitting Section 207-A to shorten the committal proceedings, by further introducing Section 227 Cr.P.C. for discharge.
22. Thus, in view of the above discussion, it emerges that at the stage of considering the prosecution case either for discharge of the accused or for framing charges, the court is to examine the material relied upon by prosecution alone, and since, the proposed defence of the accused cannot be considered, who is to be only afforded an opportunity of hearing, therefore, there is even no necessity to file an application for discharge by the accused.
23. Concededly, the case in hand relates to the offences which are triable by the Special Court (Sessions Court), therefore, the application moved by the appellants under Section 245(2) Cr.P.C. was not at all maintainable. No doubt, this Court had granted liberty to the accused to move such an application vide order dated 21.12.2018, but even then, the application by the appellants could not have been entertained on merits, particularly, when the order issuing process against the accused-appellants in the complaint was never assailed by them. That apart, the order dated 21.12.2018 granting liberty to the accused to move an application for discharge was conditional, who were required to comply with the pre condition by submitting themselves before the Special Court, Deoria in order to maintain their plea of discharge, but during the course of hearing, it is not disputed by the learned counsel for the appellants that the accused did not comply with the said condition, who were only represented by their counsel. Further, learned counsel fairly states that the accused are yet to put in appearance before the Special Court, Deoria. Since, nothing has been shown to this Court that the personal appearance of the accused was ever exempted, therefore, the application moved by the appellants ought to have been rejected straight away on multiple grounds of maintainability.
24. Now, while examining the case of the appellants on merits as well, this Court finds that even the application for discharge moved by the complainant contains reference to the medical reports of the injured couple, therefore, the ground for discharge with a pleading that the medical record does not match with the ocular version is erroneous at this stage. By now, it is well settled that at the stage of framing of charges, the trial court is not to sift and weigh the record of the case, for the purposes of building an opinion that it would lead to the conviction of the accused, as for the purposes of framing of charges against the accused suspicion alone relating to alleged commission of offence is enough.
25. Before parting with this judgment, this Court deems it necessary to observe that in many cases, such applications are filed by the accused before the trial courts and the such applications are decided by passing a separate order, which otherwise is incomplete in the absence of order framing charges, and the consolidated statutory exercise under sections 227 and 228 Cr.P.C. is split in two parts, thereby not only the trial courts are over burdened, but it also causes delay in conclusion of trial. Consequently, it is directed that the trial courts shall decide the prosecution case for the purposes of framing of charges by passing one common order, i.e either discharging the accused or framing charges against the accused by strictly complying with the statutory provisions contained in the Code of Criminal Procedure or any other applicable special statute.
26. Resultantly, in view of the above discussion, this Court has no hesitation in holding that the appeal is without any merit and the same is hereby dismissed.
27. Let a copy of this order be sent to all the District and Sessions Judges in the State of U.P. for further forwarding it to the Judicial Officers in their respective divisions.
(Manoj Bajaj, J.)
Order Date :- 31.5.2024
Brijesh/P.S. Parihar
