Allahabad High Court
Shyamdhani Gupta And 2 Others vs State Of U.P. And Another on 12 September, 2019
Equivalent citations: AIRONLINE 2019 ALL 1467, (2019) 109 ALLCRIC 296, (2019) 203 ALLINDCAS 877, (2019) 9 ADJ 654 (ALL)
Author: Rajiv Joshi
Bench: Rajiv Joshi
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved Court No. - 72 Case :- APPLICATION U/S 482 No. - 38531 of 2018 Applicant :- Shyamdhani Gupta And 2 Others Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Kameshwar Singh, ,Rajesh Kumar,Vijay Bhan Counsel for Opposite Party :- G.A.,Rajesh Kumar,Vijay Bhan Singh Hon'ble Rajiv Joshi,J.
Heard Sri Kameshwar Singh and Sri Rajesh Kumar, learned counsel for the applicants, Sri Vijay Bhan Singh, learned counsel for the opposite party no.2 and learned AGA for the State.
The present application under Section 482 Cr.P.C. has been filed for quashing the order dated 19.5.2018 passed by Additional Chief Judicial Magistrate, Court No. 9, Varanasi in Case No. 4009 of 2016 (Bithula Devi Vs. Awadhesh Kumar Kaushik and others) under Sections 452, 323, 504, 506 IPC as well as the order dated 17.9.2018 passed by IVth Additional Sessions Judge, Varanasi in Criminal Revision No. 147 of 2018 (Awadhesh Kumar Kaushik and others Vs. Smt. Bithula Devi and others), whereby the revision filed by the applicants was dismissed affirming the order of Additional Chief Judicial Magistrate dated 19.5.2018, rejecting the application for discharge of the accused-applicants.
Relevant facts for the consideration of the present case are that opposite party no.2 filed a complaint, registered as Case No. 1557 of 2016 on 5.3.2016 alleging that there was some dispute between the complainant and the applicants; that on 20.2.2016 at 3.00 pm, the accused-applicants entered into the road side food stall (dhaba) run and owned by the family of the complainant; that they used abusive language for the husband and son of the complainant and also slapped her husband, whereupon the persons, who were present there, namely Pintoo, Shankar, Raju and Vijay, anyhow saved the husband of the complainant. After filing of the complaint, statement of the complainant was recorded on 11.3.2016 under Section 200 Cr.P.C., while the statements of her two witnesses, namely Bhagwan Das and Pintoo were recorded under Section 202 Cr.P.C. on 5.4.2016 and 14.4.2016 respectively. The Magistrate concerned after considering the statements of the complainant as well as her witnesses, summoned the accused-applicants under Section 204 Cr.P.C. for facing the trial for the offence under Sections 452, 323, 504, 506 IPC vide summoning order dated 30.11.2016.
Challenging the said summoning order, an application under Section 482 Cr.P.C. being Application No. 2238 of 2017 was filed by the applicants for quashing the entire proceedings pursuant to the said order dated 30.11.2016, which was rejected by this Court vide order dated 23.1.2017 with the observation that prima facie a case for the offences under Sections 452, 323, 504, 506 IPC is made out against the applicants and no ground existed for quashing the entire proceedings as well as the summoning order. However, considering the facts and circumstances of the case, this Court observed that in case the applicants appear before the court concerned within thirty days from the date of the order and apply for bail, the same shall be heard and disposed of in accordance with law expeditiously. It is also on the record that the accused-applicants simultaneously filed a revision against the summoning order dated 30.11.2016 before the Additional Sessions Judge, Court No. 14, Varanasi, under Section 397 Cr.P.C., registered as Revision No. 17 of 2017, which too was finally dismissed on 25.7.2017.
The accused-applicants instead of appearing before the Magistrate concerned for bail, filed another application under Section 245 (2) Cr.P.C through counsel on 30.6.2017 for their discharge, which was rejected by the IXth Additional Chief Judicial Magistrate, Varanasi vide order dated 19.5.2018. The accused-applicants challenged the said order by means of filing Criminal Revision No. 147 of 2018 before the Sessions Judge, Varanasi, which was later on transferred to the court of Vth Additional Session Judge, Varanasi, who dismissed the same vide order dated 17.9.2018.
Both these orders i.e. order dated 19.5.2018 passed by the Magistrate as well as the revisional order dated 17.9.2018 passed by the Additional Sessions Judge, Varanasi are impugned in the present application.
Contention of learned counsel for the applicants is that the entire prosecution is false and malicious and no case against the accused-applicants is made out, and therefore, the applicants be discharged in view of Section 245 (2) of Cr.P.C. It is further contended by learned counsel for the applicants that a civil litigation between the parties is already pending and they have been falsely implicated in the present case.
Learned counsel for the applicants in support of his arguments has placed reliance on paragraph 23 of the judgment of the Apex Court in the case of Rajiv Thapar & Ors vs. Madan Lal Kapoor, 2013 LawSuit (SC) 69.
On the other hand, learned counsel for the opposite party no.2 as well as learned AGA while supporting the impugned orders, submitted that earlier the accused-applicants challenged the summoning order dated 30.11.2017 before this Court in an application under Section 482 Cr.P.C, which was dismissed on 23.1.2017 recording a finding that prima facie against the applicants for the offence in question was made out and the accused-applicants failed to comply with the direction of this Court in the said 482 application as they did not appear before the court concerned and apply for bail before the court concerned and therefore, the provisions of Section 245 Cr.P.C. are not attracted at all and both the courts below have rightly passed the impugned orders rejecting their prayer for discharge by the orders impugned.
I have considered the rival submissions so raised by learned counsel for the parties and perused the record.
Before considering the argument so raised by learned counsel for the applicants, it would be appropriate to have a look upon the provisions of Section 244 Cr.P.C, which deal with the cases instituted otherwise than on a police report. Section 244 Cr.P.C. reads thus:
"244. Evidence for prosecution.
(1) When, in any warrant- case instituted otherwise than on a police report, the accused appears or is brought before a Magistrate, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution.
(2) The Magistrate may, on the application of the prosecution, issue a summons to any of its witnesses directing him to attend or to produce any document or other thing."
From a reading of Section 244 Cr.P.C, it is apparent that first stage towards start of warrant trial is the appearance of the accused before the Magistrate concerned, as the clear mandate of Section 244 is "when accused appears or is brought before the Magistrate". Section 245 Cr.P.C. comes after Section 244 Cr.P.C., which is quoted hereunder:
"245. When accused shall be discharged.
(1) If, upon taking all the evidence referred to in section 244, the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him.
(2) Nothing in this section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless."
From the aforesaid Sections, it is apparent that Magistrate after fulfilling the requirements of Section 244 Cr.P.C. shall proceed further to consider the prosecution case taking into consideration all such evidence as may be produced by prosecution in support of its case. Section 245 Cr.P.C. has two parts. First part relates to when evidence under Section 244 Cr.P.C. has been recorded and the second part relates to the power of Magistrate to discharge any accused at any previous stage of the case if for reasons to be recorded, he considers the charge to be groundless. The power of the Magistrate to discharge the accused undisputedly could be invoked during the trial. To reach the stage of Section 245 Cr.P.C, it is necessary that trial must begin in view of Section 244 Cr.P.C, when the accused appears or is brought before the Magistrate.
How the accused shall appear or brought before the Magistrate is to be considered in the light of provisions contained in Code of Criminal Procedure. But the fact remains that in spite of clear direction issued by this Court in their application under Section 482 Cr.P.C. No.2238 of 2017 vide order dated 23.01.2017, the accused-applicants failed to appear before the Court.
It is true that in view of Section 245 (2) Cr.P.C. the Magistrate is empowered to pass the order of discharge for the reasons to be recorded after appearance of the accused and before the evidence Section 244 Cr.P.C. or during the course of the day proceedings for recording the evidence under Section 244 Cr.P.C, but the Magistrate is not empowered to entertain any application under Section 245 (2) Cr.P.C. unless the accused has appeared or is brought before the court in terms of Section 244 Cr.P.C. Therefore, it cannot be said that accused without putting his appearance before the court may participate in any proceedings or trial pending before a competent court.
All these sections make it mandatory that the trial could only begin when the accused appears or is brought before the court in pursuance of the order passed under Section 204 Cr.P.C. and it is the part of the procedure relating to the trial of warrant cases as is clear from the heading of Chapter XIX of Cr.P.C itself. Therefore, this Court is of the firm view that the accused cannot invoke the jurisdiction under Section 245 (2) Cr.P.C. unless he appears or is brought before the Magistrate.
This Court in the cases of Arvind Kejriwal Vs. State of U.P. & Ors, 2015 LawSuit (AII) 3281 and Ajai Pal Vs. State of U.P. and another, 2013 LawSuit (AII) 531 has also taken the same view.
Paragraph 23 of the judgment of the Apex Court in the case of Rajiv Thapar (supra) relied upon by the learned counsel for the applicant, is quoted hereunder:
"23. Based on the factors canvassed in the foregoing paragraphs, we would delineate the following steps to determine the veracity of a prayer for quashing, raised by an accused by invoking the power vested in the High Court under Section 482 of the Cr.P.C.:-
(i) Step one, whether the material relied upon by the accused is sound, reasonable, and indubitable, i.e., the material is of sterling and impeccable quality?
(ii) Step two, whether the material relied upon by the accused, would rule out the assertions contained in the charges levelled against the accused, i.e., the material is sufficient to reject and overrule the factual assertions contained in the complaint, i.e., the material is such, as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false.
(iii) Step three, whether the material relied upon by the accused, has not been refuted by the prosecution/complainant; and/or the material is such, that it cannot be justifiably refuted by the prosecution/complainant?
(iv) Step four, whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice?
If the answer to all the steps is in the affirmative, judicial conscience of the High Court should persuade it to quash such criminal proceedings, in exercise of power vested in it under Section 482 of the Cr.P.C. Such exercise of power, besides doing justice to the accused, would save precious court time, which would otherwise be wasted in holding such a trial (as well as, proceedings arising therefrom) specially when, it is clear that the same would not conclude in the conviction of the accused."
The guidelines issued by the Apex Court in the aforesaid judgment are with regard to the steps to determine the veracity of prayer for quashing, raised by an accused by invoking the power vested in this Court under Section 482 Cr.P.C. There is no dispute with regard to the aforesaid proposition of law as laid down by the Apex Court.
Here in the present case, the order of Magistrate as well as the revisional order is under challenge, whereby the discharge application of the accused was rejected as not maintainable which was affirmed by the revisional court.
So far as the contention of learned counsel for the applicants that since civil proceeding is pending, the entire prosecution is vitiated, is concerned, the same has no substance. Mere pendency of civil litigation between the parties cannot be a ground to allow the discharge application of the accused. There is no such proposition of law that if the civil proceeding is pending between the parties, then on the same ground, the criminal proceeding between them shall be taken as groundless. Thus, the argument so raised, has no force and therefore repelled.
Earlier, this Court while rejecting the accused-applicants petition under section 482,Cr.P.C. vide order dated 23.1.2017, had observed that in case the applicants appear before the court within thirty days and apply for bail, their prayer for bail shall be considered in accordance with law expeditiously. Instead of appearing before the court concerned in compliance of the said direction, the accused applicants through counsel filed the application under section 245(2),Cr.P.C. for discharge. The stage of section 245 will come into play after the stage of section 244, Cr.P.C. When the accused has not appeared or not brought before the Magistrate, the question of discharge does not arise at all. The accused-applicants will have to adhere to the provisions of law as provided in the Code of Criminal Procedure.
Taking into account the entire facts and circumstances of the case and upon perusal of the record, there appears to be no illegality or infirmity in the orders impugned passed by the courts below and no ground is made out warranting interference under section 482,Cr.P.C.
In view of the above, the present application lacks merit and is, accordingly, rejected.
Order Date :-12.9.2019 Noman