Allahabad High Court
Shiv Shankar Prajapati vs State Of U.P. And Another on 20 May, 2025
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2025:AHC:84015
Court No. - 87
Case :- APPLICATION U/S 482 No. - 29026 of 2024
Applicant :- Shiv Shankar Prajapati
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Lalit Kumar,Ram Raj Prajapati
Counsel for Opposite Party :- G.A.
Hon'ble Prashant Kumar,J.
1. Heard Sri Dinesh Kumar Maurya, Advocate holding brief of Sri Lalit Kumar, learned counsel for the applicant, Sri Jyoti Kumar Singh, learned A.G.A. for the State-O.P. no.1 and perused the record.
2. The present application under Section 482 Cr.P.C. has been filed by the applicant praying for quashing impugned order dated 12.08.2024 passed by Additional Sessions Judge, Court No.2, Gorakhpur in Criminal Revision No.45 of 2017 (Shiv Shankar Prajapati and others vs. State of U.P. and others) and order dated 03.12.2016 passed by Additional Chief Judicial Magistrate, 1st Gorakhpur in Complaint Case No.762 of 2011 (Sunita vs. Deep Shankar) u/s 323, 504, 506, 494 IPC, P.S. Khorabar, District-Gorakhpur.
3. An application u/s 156(3) Cr.P.C. was filed by O.P. no.2, who is wife of brother of the present applicant, on 12.09.2011, which was treated as complaint case. Thereafter, after conducting a preliminary enquiry and adducing evidence, the court below has passed summoning order dated 10.07.2012. The aforesaid order was challenged before this Court in Application u/s 482 No.33354 of 2014 which was disposed of vide order dated 22.08.2014 and the matter was sent Mediation Centre. However, mediation has failed and thereafter the applicants have moved an application for their discharge u/s 245(2) Cr.P.C. which was rejected by the court below vide order dated 03.12.2016. The applicants thereafter preferred Criminal Revision No.45 of 2017, which has been dismissed vide order dated 12.08.2024. The applicants have challenged both the aforesaid orders by means of present application.
4. Learned counsel for the applicant submits that the applicants are innocent and have not committed any offence as alleged in the complaint. He next submitted that no case u/s 494 IPC is made out against the applicant. He further submitted that the court below while rejecting the application u/s 245 (2) Cr.P.C. has not considered the grounds taken by the applicant. He further submitted that the revisional court has rejected the discharge application without properly appreciating the facts and legal aspect of the case. He further submitted that no offence against the applicant is disclosed and the court below has utterly failed to consider that no prima facie case is made out against the applicants. He also pointed out certain documents in support of his contention.
5. Per contra, learned AGA submits that during conducting enquiry and recording evidence of complainant and other witnesses u/s 200 and 202 Cr.P.C., sufficient material with regard to involvement of the applicant was found, on the basis of which the Court below has summoned the applicant. He further submitted that as far as the impugned order passed on the discharge application is concerned, it is settled principle of law that the Court has to look into and consider the material placed before the Court for considering the accused for discharge. To buttress his argument, learned AGA has relied on the judgment of the Hon'ble Apex Court in the matter of State of Orissa Vs Devendra Nath Padhi, (2005) 1 SCC 568, in which the Hon'ble Supreme Court had observed that for framing of charge and discharge it is only the material produced by the prosecution alone, which is to be considered for framing of charge or discharge.
6. Heard learned counsel for the parties and perused the record.
7. The Hon'ble Supreme Court in the matter of Union of India vs. Prafulla Kumar Samal and another, (1979) 3 SCC 4 has held as follows:-
"10. Thus, on a consideration of the authorities mentioned above, the following principles emerge:
(1) That the Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out.
(2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial.
(3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however If two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.
(4) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced court cannot act merely as a Post Office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This how ever does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial."
8. This ratio was again followed by the Hon'ble Supreme Court in the matter of Kanchan Kumar Vs State of Bihar, 2022 (9) SCC 577 in which the ratio laid down in the matter of Prafulla Kumar Samal (supra) was upheld.
9. The Hon'ble Supreme Court in the matter of Captain Manjeet Singh Virdi (Retd) Vs Hussain Mohammed Shattaf and others, 2023 (7) SCC 633, has observed that the law on the issue of discharge is well settled that, at the time of charge the entire evidence produced by the prosecution is to be believed and in case no offence is made out in the light of evidence produced by the prosecution then only the accused can be discharged.
10. In the instant case, the trial court while rejecting the discharge application has come to a finding that after perusing the oral evidence of the witnesses, prima facie case is made out against the accused, and the accused cannot be discharged. The court below has further observed that the allegations of second marriage can only be proved after adducing the evidence. It has also been mentioned in the order that all the arguments raised by learned counsel for the accused-applicant can be raised at the time of framing of charges.
11. In view of the law laid down by the Hon'ble Supreme Court in the above mentioned judgments, I see no illegality in the impugned impugned order dated 12.08.2024 passed by Additional Sessions Judge, Court No.2, Gorakhpur in Criminal Revision No.45 of 2017 (Shiv Shankar Prajapati and others vs. State of U.P. and others) and order dated 03.12.2016 passed by Additional Chief Judicial Magistrate, 1st Gorakhpur in Complaint Case No.762 of 2011 (Sunita vs. Deep Shankar) u/s 323, 504, 506, 494 IPC, P.S. Khorabar, District-Gorakhpur and the instant application under Section 482 Cr.P.C. is accordingly, dismissed.
Order Date :- 20.5.2025
Manish Himwan
