Allahabad High Court
Keshav Chandra vs State Of U.P. And Another on 9 July, 2024
Author: Samit Gopal
Bench: Samit Gopal
HIGH COURT OF JUDICATURE AT ALLAHABAD ? Neutral Citation No. - 2024:AHC:111274 Court No. - 77 Case :- APPLICATION U/S 482 No. - 12519 of 2024 Applicant :- Keshav Chandra Opposite Party :- State of U.P. and Another Counsel for Applicant :- Amit Kumar Srivastava Counsel for Opposite Party :- G.A. Hon'ble Samit Gopal,J.
1. List revised.
2. Heard Sri Amit Kumar Srivastava, learned counsel for the applicant and Sri Ajay Singh, learned A.G.A.-I for the State and perused the material on record.
3. This application under Section 482 Cr.P.C. has been filed by the applicant- Keshav Chandra, with the prayer to allow this application and set-aside the impugned order dated 07.11.2023 in Criminal Case No. 3307 of 2015 (State Vs. Neeraj and others) arising out of Case Crime No. 221 of 2011, under Sections 420, 120-B I.P.C., Police Station Aliganj, District Bareilly, pending in the court of Judicial Magistrate-II, Aonla, Bareilly, with a further prayer that proceeding of the aforesaid case be stayed during the pendency of the present application.
4. The facts in the present case are that a first information report was lodged on 31.03.2011 by Smt. Shayama Devi the opposite party no.2 against Neeraj, Sooraj, wife of Rakshpal, daughter of Rakshpal and Keshav Chandra under Sections 420, 323, 506 I.P.C. as Case Crime No. 221 of 2011, Police Station Aliganj, District Bareilly.
5. The matter was investigated and a charge-sheet No. 144 of 2011 dated 17.09.2011 was submitted against Neeraj for offences under Sections 420, 323, 506 I.P.C. and against Sooraj and Smt. Kiran Devi wife of Rakshpal for offences under Sections 323, 506 I.P.C. In so far as the remaining two accused namely daughter of Rakshpal and Keshav Chandra are concerned, they were exonerated in the investigation. The court concerned took cognizance upon the said charge-sheet vide order dated 01.02.2012 and summoned the accused persons.
6. The trial started in which the statement of the informant was recorded as P.W.-1. Subsequently an application dated 07.09.2015 under Section 319 Cr.P.C. was moved by the informant with the prayer that Keshav Chandra the then Branch Manager and cashier be summoned. The court concerned considered the said application under Section 319 Cr.P.C. and vide order dated 12.05.2016 summoned the Bank Manager Keshav Chandra for offences under Sections 420, 120-B I.P.C. along with the then cashier also for the said offences.
7. Kuwar Pal an accused summoned under Section 319 Cr.P.C. by the said order preferred a revision being Criminal Revision No. 2272 of 2016 (Kuwar Pal Vs. State of U.P. and Another) before this Court in which an interim order was passed in his favour. The said revision is pending till date before this Court.
8. Keshav Chandra the other accused summoned under Section 319 Cr.P.C. challenged the summoning order dated 12.05.2016 passed on the application under Section 319 Cr.P.C. before this Court in Criminal Revision Defective No. 513 of 2016 (Keshav Chandra Vs. State of U.P. and Another). The delay in filing of the revision was condoned vide order dated 07.02.2017 and finally the said revision was disposed off on the said date itself on the prayer on behalf of the revisionist for a direction to the court concerned to consider and decide the bail prayer which was allowed and directions were issued for decision of the bail application. The order dated 07.02.2017 passed in Criminal Revision Defective No. 513 of 2016 (Keshav Chandra Vs. State of U.P. and Another) was challenged by the said accused before the Apex Court in SLP (Crl.) No. 4611 of 2017 and the said appeal was disposed of vide order dated 14.07.2017 observing that there is no ground to interfere with the impugned order, however, the petitioner therein was granted bail with the liberty to apply for exemption from personal appearance before the trial court. Subsequently the accused Keshav Chandra was granted bail by the court concerned vide order dated 05.09.2017.
9. An application dated 07.02.2022 was filed on 15.03.2022 by the accused Keshav Chandra before the trial court as objections against framing of charge on his behalf with the following prayer:-
"Under the circumstances and grounds mentioned herein above it is most respectfully prayed that the Hon'ble Court may graciously be pleased not to frame any charges against the applicant/accused as otherwise the applicant is likely to suffer gross injustice and irreparable loss."
10. The said application came to be rejected vide order dated 07.11.2023 passed by the Judicial Magistrate-II, Aonla, Bareilly. The said order is impugned herein.
11. Learned counsel for the applicant submitted that the court concerned committed an error in rejecting the application dated 07.02.2022 / 15.03.2022 of the accused-applicant in as much as the objections taken by him subsequent to his summoning under Section 319 Cr.P.C. ought to have been considered by the said court before framing of charge. It is submitted that the prosecution story in its entirety is false and frivolous and the applicant has been falsely implicated in the present matter. It is further submitted that the applicant has not committed any offence and despite the same with ulterior motive and malafide intention the present first information report has been lodged just to blackmail him. It is submitted that the prosecution of the applicant has been initiated on the basis of false and incorrect facts. Learned counsel submits that the view of the trial court in not considering the application of objections prior to framing of charge on its merits is totally arbitrary and illegal in as much as the applicant who is an accused and has been summoned under Section 319 Cr.P.C. has a right to raise his objections at this stage before the court prior to framing of charge since the applicant was named as an accused in the matter but was exonerated by the investigating agency during investigation. It is submitted that as such the present petition be allowed, the prayers made therein be also allowed and the applicant be discharged in the present matter.
12. Per contra, learned counsel for the State has been heard.
13. After hearing the learned counsel for the parties and perusing the records, it is evident that the applicant was a named accused in the first information report who was exonerated during investigation. Subsequently he was summoned under Section 319 Cr.P.C. The order summoning him was although challenged but was not pressed on merits which subsequently attained finality. The applicant then moved an application in the nature of objections against framing of charge before the court concerned prior to framing of charge. The said application has been rejected by the order impugned. The facts of the case are not being dilated herein since the same have no relevance at this stage. The only question to be decided at this stage is whether an accused summoned under Section 319 Cr.P.C. has a right to move an application in the nature of objections before framing of charge or not. In so far as the nature of the application is concerned, the same is in the nature of an application for discharge. The issue whether an accused can move an application for discharge once he is summoned under Section 319 Cr.P.C. is no more res integra. The Apex Court in the case of Yashodhan Singh and others vs. State of Uttar Pradesh and Another: (2023) 9 SCC 108 has held that a person summoned under Section 319 Cr.P.C. as an additional accused cannot avail the remedy of discharge. Paragraph 24 and 34 of the said judgement reads as under:-
"24. Further, when a person is summoned as an accused under Section 319 CrPC which is based on the satisfaction recorded by the trial court on the evidence that has emerged during the course of trial so as to try the person summoned as an accused along with the other accused, the summoned accused cannot seek discharge. It is necessary to state that discharge as contemplated under Section 227 CrPC is at a stage prior to the commencement of the trial and immediately after framing of charge but when power is exercised under Section 319 CrPC to summon a person to be added as an accused in the trial to be tried along with other accused, such a person cannot seek discharge as the court would have exercised the power under Section 319 CrPC based on a satisfaction derived from the evidence that has emerged during the evidence recorded in the course of trial and such satisfaction is of a higher degree than the satisfaction which is derived by the court at the time of framing of charge.
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34. In para 13 of Jogendra Yadav [Jogendra Yadav v. State of Bihar, (2015) 9 SCC 244 : (2015) 3 SCC (Cri) 756], it has been observed that the exercise of power under Section 319 CrPC must be placed on a higher pedestal. Needless to say, the accused summoned under Section 319 CrPC are entitled to invoke the remedy under law against an illegal or improper exercise of power under Section 319 CrPC but that cannot have the effect of the order being undone by seeking a discharge under Section 227 CrPC. Therefore, this Court categorically held that a person, who is summoned under Section 319 CrPC cannot avail the remedy of discharge under Section 227 CrPC. In that context, this Court, as already noted, discussed the difference between Sections 227 and 319 CrPC, as extracted above."
14. From the facts of the case, it is apparent that the said application given title as objections against framing of charge is having the same effect as that of discharge. An accused summoned under Section 319 Cr.P.C. cannot avail the said remedy.
15. The present petition thus lacks merit and is accordingly, dismissed.
Order Date :- 9.7.2024 AS Rathore (Samit Gopal,J.)