Allahabad High Court
Smt.Shila Devi vs State Of U.P And Another on 16 March, 2022
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved on : 4.3.2022 Delivered on 16.3.2022 Court No. - 92 Case :- APPLICATION U/S 482 No. - 16386 of 2021 Applicant :- Smt.Shila Devi Opposite Party :- State Of U.P And Another Counsel for Applicant :- Kumar Ankit Srivastava,C.K.Parekh(Senior Adv.) Counsel for Opposite Party :- G.A.,Anil Pathak Hon'ble Brij Raj Singh,J.
1. Heard Sri C.K.Parekh, learned Senior Advocate assisted by Sri Kumar Ankit Srivastava, learned counsel for the applicant, and Sri Sageer Ahmad, learned Senior Advocate assisted by Sri Anil Pathak, learned counsel for opposite party No. 2, learned A.G.A. for the State and perused material on record.
2. This application under Section 482 Cr.P.C. has been filed to set-aside the order dated 16.3.2021 passed by Sessions Judge, Chandauli in Criminal Revision No. 27 of 2020, arising out of judgment and order dated 21.9.2019 passed by Judicial Magistrate, Chakia, District- Chandauli in Criminal Case No. 340 of 2019 (State Vs. Asharani and others) arising out of Case Crime No. 0153 of 2018 under Sections 419, 420, 465, 466, 467, 468 and 472 I.P.C., Police Station- Chakia, District- Chandauli, pending in the Court of Judicial Magistrate, Chakia, Chandauli as well as allow the discharge application filed by the applicant before the court below. A further prayer has also been made to stay the further proceedings of the aforesaid case.
3. The applicants Shila Devi Purchased property sold by recorded by owner Asharani Shukla wife of Shivendra Dutt Shukla vide sale deed dated 9.7.2018.
4. The FIR was lodged on 11.7.2018 in case Crime No. 153 of 2018 under Sections 419, 420, 465, 466 I.P.C., Police Station Chakia, District- Chandauli by Ramendra Kumar Shukla against three persons namely, Asha Rani and her husband Shrivendra Dutt Shukla (real brother of informant) and Shila Devi.
5. In the said FIR dated 11.7.2018 the informant made allegations that his father Vidyasagar Shukla gifted the Benami Property to him on 1.6.2018 and the said property has been sold by Asha Rani Shukla (Bhabhi of the complainant) fradulently.
6. The police collected the material and charge sheet was filed against the applicant and the applicant had challenge the charge sheet by filing Crl. Misc. Case No. 24708 of 2019 and this Court directed that applicant is permitted to move discharge application through counsel vide order dated 28.6.2019. In pursuance of the direction issued by this Court the applicant preferred discharge application which was decided by the Judicial Magistrate Chakia, District Chandauli on 21.9.2019 and the said discharge application was dismissed. Thereafter, the revision was preferred which too was dismissed on 16.3.2021 passed by the Sessions Judge, Chandauli in Criminal Revision No. 27 of 2020. The applicant being aggrieved has filed application U/s. 482 before this Court
7. Submission of counsel for applicant:
A. That before the Magistrate, applicant relied on the judgment i.e. 2013 Vol. I ACR 591 (S.C.) Satish Mehra Vs. State of N.C.T. of Delhi & another relating to quashing of charges. It was arising out of Criminal Petition under Section 482 Cr.P.C. decided by Delhi High Court. Paragraphs 20 to 22. It is stated that charges under sections 420, 467, 468, 471 and 12B of I.P.C. are quashed by High Court against one of the Accused S.K. Khosala and Apex Court has held that High Court had not committed any error in quashing the charges against the accused.
B. That another judgment referred by trial court as cited by applicant is 2009 Volume VIII SCC 741 M. Ibrahim Vs. State of Bihar. It is again related to quashing of criminal proceeding/ complaint case after framing charge and Apex Court examined the matter under Sections 420, 467, 471 and 504 I.P.C. and held that sale deed executed by accused do not forge a document, hence held in paragraph 12 of said judgment that there is no forgery, hence Section 467/471 I.P.C. is concern, it has been held that since ingredient of cheating as per section 415 I.P.C. are not found and therefore, offence is made out. It was also found that there is no deceit or fraud committed by accused person of that case and ultimately conclusion had been arrived by Apex Court that charges framed under those sections are also quashed.
C. That the two judgments, State Vs. Daraswmami and others, reported in AIR 2019 S.C. 1518 and another judgment State of Tamilnadu Vs. N. Suresh Rajan reported in 2104 (84) AC 656. These two judgments referred by trial court/Magistrate; but the learned Magistrate did not consider these two judgment which were cited by informant before the Magistrate relates the matter under Prevention of Corruption Act and accordingly these two judgments are not at all relevant for the prepose of present case. However also otherwise these two judgments are not relevant case I as much relating to principles laid down in Yogesh @ Sachendra Jagdish Joshi Vs. State of Maharashtra reported in 2008 Vol. X SC 394. Apex Court in this judgment held that High Court wrongly acted as appellate court against the order of Special Court. Approached was wrongly adopted by High Court and therefore, Supreme Court interfered with the judgment. It is submitted that these judgments are not applicable because those were cases under prevention of Corruption Case and High Court had exceeded its power in interfering in trial.
D. That as regard to Order dated 16/3/2021 passed in Criminal Revision 27 of 2020 by Session Judge Chandauli, there is error committed in not dealing with merit of the Prosecution Case as to ascertain whether any offence is made out. In fact as evident from the FIR and evidence collected in investigation, it is simple case of civil dispute of title as well as boundary. The Revision Court further committed though several judgments of Apex court and High Court have been cited or referred in the order by revisional court. However, two judgments Vikram Jauhar Vs. State of U.P. reported in AIR 2019 S.C. 2109, the Hon'ble Supreme Court considered the fact and law, regarding disposal of discharge application. In that matter, trial court rejected discharge application then matter again came up before the Hon;bel High Court who rejected revision and ultimately, Apex Court quash the charges and allowed the Appeal of accused persons.
E. Another case as reported in 2003 Vol. II SCC 711 Paragarah 11, State of Orrisa Vs. Devendra Nath Padhi, this judgment relates to Prevention of Corruption Act and not applicable although paragraphs No.11 of the said judgment of quoted below:-
Para11:" From the above judgments referred to by the learned counsel for the appellant, it is clear that all the court has to do a the time of framing a charge is to consider the question of sufficiency of ground for proceeding against the accused on a general consideration of the material placed before it by the investigating agency. There is no requirement in law that the court at that stage shroud either give an opportunity to the accused to produce evidence in defence or consider such evidence the defence may produced at that stage".
F. Further the following case laws are being cited by applicant before the Hon'ble Court in support of case including in reply to the preliminary objections raised by opposite party regarding non maintainability of Present Petition/Application under Section 482 Cr.P.C.
G. That in the case of Jaswant Sing Vs. State of Punjab, reported in 2021(6) JKJ 93 SC (20) as well as in the matter of Randheer Singh Vs. State of U.P., 2021 (5) JKJ 386 SC (31-33) the matter arising out of pure civil matter and therefore, Criminal proceedings have been set-aside and quashed.
H. That as regard to case of Superintendent & Remembrance Vs. Mohan Singh, reported in AIR 1975 SC 1002, paragraph No. 2 holding that Section 482 Cr.P.C. for quashing proceeding is maintainable and this judgment followed in the recent case by Apex Court in the case of Vinod Kumar Vs. UOI reported in 2021(4) CTC 495. Paragraph No.4 and again held that second application under Section 482 Cr.P.C. is maintainable.
I. That as regard to case of Union of India Vs. Praful Kumar Samal, reported in 1979 (3) SCC 4, relevant paragraph are paragraph No. 7, 23, 24, and 25. The details of exercising power of Discharge is given under Section 227 Cr.P.C. in absence of any legal evidence there is no sufficient evidence found against the accused in execution of the sale deed.
J. That in case relied by Applicant, Krishnan and others Vs. Krishna Veni and others, reported in 1997(4) SCC 241, the relevant paragraph are 3, 12 and 14. It is pertinent to mention here that the Case Law Dharampal case (AIR 1993 SC 1361) which has been relied by respondent i.e. has been over ruled by Full Bench of Hon'ble Apex Court. Furthermore case of Dharampal and others Vs. Ramshri and others, AIR 1993 SC 1361 is concerned and paragraph No. 12 of said judgment of Krishnan and others Vs. Krishnan Veni 1997(4) SCC 241, it is held that heh said judgment of Dharampal case was only related to exercise of power to issue of order of attachment under Section 146 Cr.P.C. and in that respect it was held that inherent power under Section 482 Cr.P.C. was prohibited. It is further held in Krishnan case that view taken by Apex Court in Dharampal case is not correct. Therefore, no reliance could be placed by opposite party/informant upon overruled case of Dharampal.
K. The applicant has further relied upon case of Prabhu Chawala Vs. State of Rajasthan, reported n AIR 2016 SC 4245 (6) wherein, the Apex Court held in paragraph no.6 as follows: which are relevant.
"6.In our considered view any attempt to explain the law further as regards the issue relating to inherent power of High Court under Section 482 Cr.P.C. is unwarranted. We would simply reiterate that Section 482 begins with a non-obstante Clause to state; "Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any court or otherwise to secure the ends of justice." A fortiori, there can be no total ban on the exercise of such wholesome jurisdiction where, in the words of Krishna Iyer, J. ''abuse of the process of the Court or other extraordinary situation excites the court's jurisdiction. The limitation is self-restraint, nothing more'. We venture to add a further reason in support. Since Section 397 Cr.P.C. is attracted against all orders other than interlocutory, a contrary view would limit the availability of inherent powers under Section 482 Cr.P.C. only to petty interlocutory orders! A situation wholly unwarranted and undesirable."
L. That applicant has further relied upon judgment of Vinu Bhai Hari Bhai Malviya Vs. State of Gujarat, reported in 2019(17) SC 1. The relevant paragraphs is paragraph no. 16 & 17 of the said judgment.
M. That the applicant has relied upon recent detail judgment on section 227 Cr.P.C. which is akin to 2398 Cr.P.C. It is pointed out the respondent counsel made an attempt that the principle governing to 227 Cr.P.C. would not apply to Section 239 Cr.P.C. in case of Asim Sarif Vs. National Investigating Agency, reported in 2019 (7) SCC 148 (16, 17 & 19), the most relevant paragraph is paragraph no. 19 of the said judgement.
"Taking not of the exposition of law on the subject laid down by this Court, it is settled that the judge while considering the question of framing charge under Section 227 Cr.P.C. in sessions cases (which is akin to section 239 Cr.P.C. pertaining to warrant cases) 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: where the material placed before the court discloses grave suspicion against the accused which has not been properly explained, the court will be fully justified in framing the charge; by and large if two views are possible and one of them giving rise to suspicion only as distinguish from grave suspicion against the accused the trial judge will be justified in discharging him. It is thus clear that while examining the discharge application filed under Section 227 Cr.P.C., it is expected from the trial judge to exercise its judicial mind to determine as to whether a case for trial has been made out or not. It is true that in such proceedings, the court is not supposed to hold a mini trial by marshalling the evidence on record.
8. Submission of counsel for opposite party :-
A. In the case at hand, instant case has been filed against the impugned order, dated 16.3.2021 and 21.9.2019, passed by the learned court of Sessions Judge Chandauli and learned Judicial Magistrate Chakiya, Chandauli, the impugned order, dated 16.3.2021 as well as also 21.9.2019, reveals entire ordeal, both the learned court below by passing such type of impugned order have not committed any error of and in as much as also miscarriage of justice.
B. It is well settled law, inherent power u/s 482 Cr.P.C., must be exercise sparingly only in order to secure the end of justice. It is further submitted, in the case at hand, the applicant has been completely failed to make out any case either any error of law or miscarriage of justice have been committed by the learned courts below by passing such type of impugned orders. Therefore, the applicant has been completely failed to make-out the case to be interfere by the Hon'ble Court in order to exercise inherent power. So as such, the instant case is devoid of merit and liable to dismissed out rightly.
C. It is also well settled law, in order to dealt and decide the discharge application filed u/s 239 Cr.P.C., only those evidence shall be taken into consideration, which are the part of the case diary not otherwise. It is further submitted, at that very stage, the defence of the accused cannot be taken into consideration. It is further submitted, in order to decide discharge application meticulous in detail reference of evidence does not require in order to decide discharge application. At least, discharge rejection order must reveal, there is application of judicial mind and the learned Judicial Magistrate has carefully gone through the evidence available before him. It is further submitted, in the case at hand, that the impugned orders passed by the learned Session Judge, Chandauli and learned Judicial Magistrate, Chakiya, Chandauli reveals there is application of mind. So as such, both the orders, dated 16.3.2021 and 21.9.2019 are just, proper and legal. Therefore, do not require any interference by the Hon'ble Court under Section 482 Cr.P.C.
D. In fact, under the garb of the instant case, the applicant (Smt. Shila Devi) want to create an obstruction in the administration of justice, needles multiple of procedure unnecessary delay in trial and protraction of proceeding. Whereas, the object of criminal trial is rendered public justice, to punish the criminal and to see i.e. trial is concluded expeditiously before the memory of the witnesses fades out. Meaning thereby, the instant case, is nothing else but it is only abuse of process and multiplicity of the litigation. Therefore, aforesaid case is liable to be dismissed, accordingly, in the interest of justice, so the justice may be done.
Reference of citations by opposite party :-
1. Three Hon'ble Judges Judgment of Apex Court, passed in the matter of Krishnan and others vs Krishnaveni and Others, (1997) 4 SCC 241, relevant para No. 10 & 12
2. Three Hon'ble Judge judgment of the Allahabad High Court passed in the matter of H.K. Raval Vs. Nidhi Prakash, 1989 (0) JIC 540 relevant para no. 19.
3. Three Hon'ble Judges judgment of Apex Court passed in the matter of State of Orissa Vs. Debendra Nath Padhi, AIR 2005 SC 359, relevant para no. 23.
Finding of the Court :-
9. Prabhu Chawla Vs. State of Rajasthan AIR 2016 SC 4245 (6) has been dealt exhaustively and the scope of 482 Cr.P.C. has been dealt. The Hon'ble Supreme Court has observed that High Court has got inherent power under Section 482 Cr.P.C., and nothing in the course shall be deemed to limit over the inherent power of the High Court to make such orders as may be necessary to give effect to any order under the Court, or to prevent abuse of the process of any Court or otherwise to secure the end of justice. The Supreme Court has further enunciated that 397 is attracted against all orders other than interlocutory and 482 Cr.P.C. power cannot be limited by curtailing inherent powers.
10. The counsel for opposite party has relied the judgment of Full Bench of Hon'ble Supreme Court Dharampal and others Vs. Ramshri and others, AIR 1993 SC 1361. Learned counsel for opposite party No. 2 submitted that in view of law laid down in Dharampal Case 482 is not maintainable against the revisional order. So far as the case of Dharampal and others Vs. Ramshri and others (Supra) is concerned, the said judgment of Krishnan and others Vs. Krishna Veni and others, reported in 1997(4) SCC 241, it is held that the said judgment of Dharamapal case was only related to exercise of power to issue of order of attachment under Section 146 Cr.P.C. and in that respect I was held that inherent power under Section 482 Cr.P.C. was prohibited. It is further held in Krishnan and others Vs. Krishna Veni and others case that the view taken by Apex Court in Dharampal Case is not correct. The reliance of Dharampal case placed by opposite party No. 2 is overruled.
11. Legal submission regarding the maintainability of the 482 application by learned counsel for opposite party No. 2 is not sustainable and it is held that against the revisional order of the Sessions Court 482 is maintainable.
12. In view of the aforesaid discussion, now I have to see whether the order passed by the court below is against law or whether the court below discussed merit of the case by applying its mind. I have gone through the judgment of lower court and there is no discussion of the evidences on record and material which are placed before the court below are not discussed. Once the court below is forming opinion for deciding the discharge application, it has to discuss the material of the charge sheet available before him but bare perusal of the order of the court below would indicate that case laws has been discussed and the facts narrated by the parties have been recorded but while taking the decision courts below have not taken note of the facts and material available on record. The said aspect is dealt in various judgment of Hon'ble Supreme Court. The Supreme Court has held in State of Karanataka Vs. Muniswamy and others (1997) 2 SCC 699 that court while deciding discharge application has to record its reasons while rejecting the discharge application perusal of record and reasons to be recorded are must. Para 7 of the aforesaid judgment is herein under :
"The second limb of Mr. Mookerjee's argument is that I any event the High Court could not take upon itself the task of assessing or appreciating the weight of material on the record in order to find whether any charges could be legitimately framed against the respondents. So long as there is sme material on the record to connect the accused with the crime, says the learned counsel, the case must go on and the High Court has no jurisdiction to put a precipitate or premature end to the proceedings on the belief that the prosecution is not lively to succeed. This, in our opinion, is too broad a proposition to accept. Section 227 of the Code of Criminal Procedure, 2 of 1974, provides that :
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, the shall discharge the accused and record his reasons for so doing.
This section is contained in Chapter XVII called "Trial Before a Court of Session". It is clear from the provision that the record and hearing the parties he comes to the conclusion, for reasons to be recorded, that there is not sufficient ground for proceeding against the accused. The object of the provision which requires the Sessions Judge to record his reasons is to enable the superior court to examine the correctness of the reasons for which the Sessions Judge has held that there is or is not sufficient ground for proceeding against the accused. The High Court therefore is entitled to go into the reasons given by the Sessions Judge in support of his order and to determine for itself whether the order is justified by the facts and circumstances of the case. Section 482 of New Code, which corresponds to Section 561-A of the Code of 1898, provides that :
Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.
In the exercise of this wholesome power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. The saving of the High Court's inherent powers, both in civil and criminal matters, is designed to achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice. The ends of justice are higher than the ends of mere law though justice has got to be administered according to laws made by the legislature. The compelling necessity for making these observations is that without a proper realisation of the object and purpose of the provision which seeks to save the inherent powers of the High Court to do justice between the State and its subjects, it would be impossible to appreciate the width and contours of that salient jurisdiction."
13. Hon'ble Supreme Court has again discussed the scope of 227 and 228 Cr.P.C. in Sunil Kumar Jha and Others Vs. State of Bihar in Crl. Misc. Case No. 22050 of 1996 decided on 5.2.1997. Para 6 is herein under :
"From bare perusal and comparison of the aforesaid two provisions it appears that while in the case of discharge of an accused under Section 227 of the Code it is obligatory for the Judge to record his reasons for doing so. But while framing charge under Section 228 of the Code the provision does not say in a very specific word that the Court msut record reasons. Nevertheless Section 228 provides that while framing charge, the Court must be of the opinion that there is ground for presuming that the accused has committed an offence. In other words, there must be valid reasons and foundation for framing an opinion that the accused has committed an offence."
14. The case decided by Allahabad High Court in Smt. Kalawati Vs. State of U.P. decided on 11.7.1990 passed in Crl. Revision No. 1012 of 1990 wherein it has been held that though the full statements of the witnesses need not be discussed but prima facie case should be briefly indicated. Para 3 is herein under :
"It is true that for determining prima facie case court need not weigh or sift the evidence or make roving enquiry. It need not give full statements of the witnesses. Evidently for a judicial speaking order it is necessary that the evidence constituting prima facie case should be briefly indicated and should not be substituted by vague words or by conclusion alone."
15. The court has to see whether the material placed before the court have been properly explained. If there are two views emerging then the court has to examine discharge application filed under Section 227 Cr.P.C. by discussing the evidences on record and then forming the opinion to pass order on the application. Both courts below have not discussed the evidences and material available before them and reasons have not been recorded. The order passed by the Sessions Court dated 16.3.2021 in Crl. Case No. 340 of 2019 (State Vs. Asha Rani and others) in Crl. Revision No. 27 of 2020 and the judgment and order dated 21.9.2019 passed by Judicial Magistrate, Chakia, District- Chandauli are set-aside.
16. The matter is remitted back to Judicial Magistrate, Chakia, District- Chandauli to take fresh decision in view of the observation made above within a period of three months. The applicant will furnish the copy of the order passed by this Court before the court below within two weeks from today.
17. The application is accordingly, allowed.
Order Date :- 16.3.2022 Md Faisal