Divyam S/O Sanjay Agrawal vs State Of Mha. Thr. Pso Ambazari ...
2022 Latest Caselaw 12075 Bom

                                     1                                19 APL1431.22 (J).odt


     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
              : NAGPUR BENCH : NAGPUR.


         CRIMINAL APPLICATION (APL) NO. 1431 OF 2022


APPLICANT                  : Divyam S/o Sanjay Agrawal,
                             Aged about 26 years, Occu. Business,
                             R/o Bhagwaghar Layout,
                             Dharampeth, Nagpur.

                                           VERSUS

NON-APPLICANT               : State of Maharashtra,
                              Through Police Station Officer,
                              Police Station, Ambazari,
                              Nagpur.

----------------------------------------------------------------------------------------------
          Mr. Sahil S. Dewani, Advocate for the applicant
          Mr. H. D. Dubey, A.P.P. for the non-applicant/State
----------------------------------------------------------------------------------------------

                        CORAM : G. A. SANAP, J.

DATE : NOVEMBER 24, 2022.

ORAL JUDGMENT

1. RULE. Rule made returnable forthwith. Heard finally by

consent of the learned advocates for the parties.

2. In this application, filed under Section 482 of the Code of

Criminal Procedure read with Article 227 of the Constitution of India,

challenge is to the order dated 13.09.2022, passed by the learned Additional 2 19 APL1431.22 (J).odt

Sessions Judge-16, Nagpur, whereby the learned Judge dismissed the

revision application bearing No. 186/2022 filed by the applicant and

confirmed the order dated 30.05.2022, passed by the learned Judicial

Magistrate, First Class, Court No.1, Nagpur in Summary Criminal Case No.

10363/2021. Learned Magistrate by the said order had rejected the

application (Exh.7) made by the applicant/accused for his discharge under

Section 258 of the Code of Criminal Procedure.

3. The applicant/accused is facing prosecution for the offence

punishable under Section 279 of the Indian Penal Code and under Sections

177 and 134 of the Motor Vehicles Act, 1988. After filing of the charge-

sheet, the applicant made the application (Exh.7) under Section 258 of the

Cr.P.C. It is the case of the applicant that there is no evidence compiled in

the charge-sheet to prove that the act done by him was a result of rash and

negligent driving. It is his case that there is no iota of evidence to

substantiate the prosecution and ultimately continue the prosecution.

4. The application was opposed by the prosecution. It is the case

of the prosecution that ample material has been placed on record to justify

initiation of criminal prosecution against the applicant. It is the further case 3 19 APL1431.22 (J).odt

of the prosecution that without granting an opportunity to the prosecution

to lead evidence, the criminal prosecution by invoking Section 258 of the

Cr.P.C. cannot be terminated midway.

5. Learned Magistrate, by the impugned order opined that the

case was not of the category to invoke the provisions of Section 258 of the

Cr.P.C. and stop the proceedings midway. Learned Magistrate with this

observation rejected the application (Exh.7). The revision preferred by the

applicant against this order came to be dismissed vide impugned order dated

13.09.2022 by the learned Additional Sessions Judge-16, Nagpur. Being

aggrieved by this order, the applicant/accused is before this Court.

6. I have heard Mr. Sahil Dewani, learned advocate for the

applicant and Mr. H.D. Dubey, learned Additional Public Prosecutor for the

non-applicant/State. Perused the record and proceedings.

7. Learned advocate for the applicant/accused submitted that the

learned Magistrate rejected the application without recording the reasons.

Learned advocate submitted that the order passed by the learned Magistrate

does not refer to any evidence compiled in the charge-sheet and available 4 19 APL1431.22 (J).odt

against the applicant/accused to continue with the prosecution. Learned

advocate submitted that there is no iota of evidence compiled in the charge-

sheet and therefore, by invoking the provisions of Section 258 of the Cr.P.C.,

the learned Magistrate ought to have discharged the applicant. Learned

advocate submitted that all these aspects have not been taken into

consideration by the learned Additional Sessions Judge.

8. Learned Additional Public Prosecutor for the State submitted

that the learned Magistrate is not without power to stop the proceedings,

however, in the submission of the learned APP the case on hand is not the

one, which could be stopped by the learned Magistrate. Learned APP

submitted that the learned Magistrate is not required to make threadbare

analysis of the evidence while dealing with the application made under

Section 258 of the Cr.P.C. for stoppage of the criminal prosecution.

9. It is to be noted that the criminal case was instituted on the

basis of police report. The learned Magistrate took cognizance of the offence

against the applicant. In the application made under Section 258 of the

Cr.P.C., the applicant has categorically stated that there is no iota of evidence

against him to continue prosecution against him. It is his case that the

evidence available on record is not sufficient to continue prosecution against 5 19 APL1431.22 (J).odt

him. Perusal of the order passed by the learned Magistrate would show that

the learned Magistrate has not made reference to the available evidence on

record against the accused. I am conscious of the fact that while deciding an

application made by the accused under Section 258 of the Cr.P.C.,

threadbare analysis or appreciation of the evidence is not warranted.

However, when a right is asserted by the accused under Section 258 of the

Cr.P.C. for discharge or for stoppage of the proceedings and learned

Magistrate is not inclined to grant the application, then in that event,

learned Magistrate while rejecting such application was required to briefly

refer to the clinching evidence against the applicant to continue prosecution.

10. It is seen on a perusal of the impugned order passed by the

learned Magistrate that in paragraph 10 of the order, the learned Magistrate

has observed that on the basis of the available record, the case in question

was not a fit case to allow the prayer. It is to be noted that in this case,

nobody had sustained injury. It is also not the case of the prosecution that

when the incident occurred in the midnight, some passers-by were present

on the spot. In my view, in the backdrop of this position, the learned

Magistrate was required to briefly elaborate the available material on record

and to record a prima facie satisfaction, which the learned Magistrate has not

done.

6 19 APL1431.22 (J).odt

11. The legality of this order was challenged in the revision before

the learned Additional Sessions Judge. It is seen on a perusal of the order

passed by the learned Additional Sessions Judge that the learned Judge did

not notice this illegality. It is to be noted that the accused has no right to get

discharge under Section 258 of the Cr.P.C., if the evidence is available on

record. Perusal of Section 258 of Cr.P.C. in entirety would show that the

prosecution can be stopped midway without recording evidence, if the Court

is satisfied that the material and evidence is not sufficient to continue with

the prosecution against the accused. The legal position on this point is now

well settled. In my view, therefore, there is a mistake committed by the

learned Magistrate, which would be required to be rectified. In absence of

analysis of the material on record by the learned Magistrate, it would not be

possible for this Court to deal with the aspects which have not at all been

dealt with by the learned Magistrate. In the facts and circumstances,

therefore, the order passed by both the Courts below would be required to

be set aside and the application (Exh.7) made by the applicant/accused for

his discharge under Section 258 of the Cr.P.C. would required to be restored

to the file of the learned Magistrate for deciding the same afresh.

7 19 APL1431.22 (J).odt

12. Accordingly, the revision application is partly allowed

i) The order dated 13.09.2022, passed by the learned Additional

Sessions Judge-16, Nagpur, in Criminal Revision Application No. 186/2022

and the order dated 30.05.2022 passed by the learned Judicial Magistrate,

First Class, Court No.1, Nagpur in Summary Criminal Case No.

10363/2022, rejecting application (Exh.7), are set aside.

ii) The application (Exh.7) made by the applicant/accused

seeking discharge is restored to the file of learned Judicial Magistrate, First

Class, Court No.1, Nagpur, for decision on the same application afresh in the

light of the observations made by this Court.

iii) The application stands disposed of.

( G. A. SANAP, J. )

Diwale

Digitally signed byPARAG PRABHAKARRAO DIWALE Signing Date:25.11.2022 17:42