Allahabad High Court
Tiji Devi And Another vs State Of U.P. And Another on 6 December, 2019
Author: Ram Krishna Gautam
Bench: Ram Krishna Gautam
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 77 Case :- APPLICATION U/S 482 No. - 43325 of 2019 Applicant :- Tiji Devi And Another Opposite Party :- State of U.P. and Another Counsel for Applicant :- Ishan Deo Giri Counsel for Opposite Party :- G.A. Hon'ble Ram Krishna Gautam,J.
Heard learned counsel for the applicants and learned A.G.A. representing the State. Perused the records.
This application under Section 482 Cr.P.C. has been filed by applicants Tiji Devi and Kalawati Devi against State of U.P. and Kanhaiya Singh with prayer to quash order dated 14.2.2019 passed by Sessions Judge, Deoria, in Criminal Revision No. 141 of 2018 as well as order dated 17.9.2015 passed by J.M. Court No. 20, Deoria, whereby discharge application u/s 245(2) Cr.P.C. against the summoning order dated 14.2.2012 was rejected by court below.
Learned counsel for the applicants argued that the impugned order was passed by Magistrate without applying judicial mind and merely on the basis of statements of complainant and his two witnesses recorded u/s 200 and 202 Cr.P.C. passed order for summoning of applicants for offence punishable u/s 406 I.P.C. This order was challenged by co-accused Poonam before revisional court, wherein summoning order was quashed against her. Subsequently, rest of accused persons moved an application u/s 245(1) Cr.P.C. for their discharge because no case was made out, even then summoning order was passed. This application was heard and by impugned order it was rejected. This order of Magistrate was challenged in revision before Sessions Judge, Deoria, in Criminal Revision No. 141 of 2018, wherein Sessions Judge failed to appreciate the facts and law placed before it and passed impugned order of dismissal of revision. The main ground for dismissal of discharge application was that no evidence u/s 244 Cr.P.C. was there, except the evidence, which was collected u/s 200 and 202 Cr.P.C. and on the basis of which impugned summoning order was passed. Whereas Apex Court In 2009 Law Suit (SC) 415, Ajoy Kumar Ghose Vs. State of Jharkhand and another, has categorically held in paragraph no. 17 of the judgment that provisions of section 245(1) Cr.P.C. is a different part. Section 245(2) Cr.P.C. is different than section 245(1) Cr.P.C. U/s 245(1) Cr.P.C. the Magistrate has the power to discharge the accused at any previous stage of the case i.e. before the evidence is laid u/s 244 Cr.P.C. However, for discharging an accused u/s 245(2) Cr.P.C. the Magistrate has to come to conclusion that the charge is groundless. There is no other consideration. The Magistrate can take his decision when the accused appears or brought before the Court or evidence is laid u/s 244 Cr.P.C. Hence this discharge application u/s 245(2) Cr.P.C. was moved by the accused persons under above provision. It permits for discharge at any stage before recording evidence u/s 244 Cr.P.C. But the Magistrate has rejected the application. Hence this application with above prayer.
Learned A.G.A. has vehemently opposed.
From the very perusal of impugned summoning order as well as the order passed by Sessions Judge in Criminal Revision No. 141 of 2018, it is apparent that a complaint was filed by complainant, wherein Magistrate has taken cognizance by way of entertaining the application u/s 156(3) Cr.P.C. as a complaint case vide order dated 11.10.2011. This application was filed against Dharmendra Singh, Manager Singh, Smt. Tiji Devi, Smt. Kalawati Devi and Smt. Poonam. Statement of complainant Kanhaiya Singh was recorded u/s 200 Cr.P.C. The Magistrate did not pass an order of summoning u/s 204 Cr.P.C. and proceeded to record statements of witnesses and recorded statements of CW1 Satyadev Tiwari and CW2 Akshaywar Tiwari u/s 202 Cr.P.C. then after having found sufficient ground of prima-facie existence of evidence for offence punishable u/s 406 I.P.C., impugned summoning order was passed against accused Dharmenda Singh, Manager Singh, Tiji Devi, Kalawati Devi and Poonam for offence punishable u/s 406 I.P.C. This order was not challenged in revision except by accused Poonam, wherein criminal revision was allowed vide order passed in Criminal Revision No. 130 of 2012, Poonam Devi State of U.P. and another. The summoning order against Poonam was quashed. Dharmendra Singh, Manager Singh, Tiji Devi and Kalawati Devi did not prefer any revision nor there was alteration of order of summoning against them, hence trial proceeded. In between an application u/s 245(2) Cr.P.C. was moved for discharge of accused persons. Vide impugned order, the Magistrate rejected the same on the ground that no evidence u/s 244 Cr.P.C. was recorded and nothing more than enquiry, was on record, on the basis of which summoning order was passed. Hence on the basis that evidence and as no new evidence was on record, the application was rejected. The order was challenged before Sessions Judge, Deoria, wherein the revision was dismissed by saying that the Magistrate is expected to see as to whether prima-facie case for summoning was existing on the basis of enquiry made by him by way of recording statements u/s 200 and 202 Cr.P.C.. He was not expected to make analytical analysis of version of other side. He has to see only prima-facie evidence for passing summoning order u/s 204 Cr.P.C. This order was passed by the Magistrate and for which there was sufficient prima-facie evidence on record. Hence there was no illegality in rejection of application u/s 245(2) Cr.P.C. No further evidence was on record, except the evidence on the basis of which summoning order was passed.
This court in exercise of inherent jurisdiction u/s 482 Cr.P.C. is not expected to embark upon the factual question because the same is matter of trial to be seen by the trial court during trial. There are evidence on record and the Magistrate having found sufficient prima-facie case has passed the impugned summoning order and on the basis of same evidence, discharge application was moved and it was with no force. Hence rejected. Against which a criminal revision was filed and it was rejected because there no misexercise of jurisdiction or apparent error on the face of record committed by the Magistrate. It was neither misuse of law nor frustration of justice. Accordingly, this application merits dismissal.
The application u/s 482 Cr.P.C. is dismissed.
However, the Magistrate will be at liberty to make consideration as to whether any charge is made out for further proceeding or not after recording evidence u/s 244 Cr.P.C.
Order Date :- 6.12.2019 Pcl