Jharkhand High Court
Aziz Fatima @ Aziz Fatma vs The State Of Jharkhand on 10 April, 2024
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 509 of 2022
Aziz Fatima @ Aziz Fatma, aged about 48 years, wife of Akhtarul
Imam, daughter of Md. Shabbir Ansari, resident of Road No. 15, Palm
Street, Cross "C", Jawaharnagar, Mango, P.O. & P.S.- Mango, Town-
Jamshedpur, Dist.-East Singhbhum
.... Petitioner
Versus
1. The State of Jharkhand
2. Akhtarul Imam, son of Md. Hussain, resident of Road No. 15, Palm
Street, Cross "C", Jawaharnagar, Mango, P.O. & P.S.- Mango,
Town-Jamshedpur, Dist.-East Singhbhum
.... Opp. Parties
PRESENT
HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
.....
For the Petitioners : Mr. Vikas Kumar, Advocate
: Mr. P.S. Bajaj, Advocate
For the State : Mr. V.K. Vashistha, Spl. P.P.
: Mr. A.K. Tiwari, Addl. P.P.
For O.P. No.2 : Mrs. Vani Kumari, Advocate
.....
By the Court:-
1. Heard the parties.
2. This criminal miscellaneous petition has been filed invoking the jurisdiction of this Court under Section 482 Cr.P.C. with a prayer to quash the order dated 01.10.2021 passed by the learned Sessions Judge, East Singhbhum, Jamshedpur in Criminal Revision No. 98 of 2021 whereby and where under, the revision application preferred by the petitioner against the order dated 30.06.2021 passed by the Cr.M.P. No.509 of 2022 1 learned Judicial Magistrate 1st Class, Jamshedpur in connection with C/1 Case No. 2568 of 2017; by which the opposite party no.2 has been discharged under Section 245 Cr.P.C. has been dismissed and a second prayer has also been made for quashing the order dated 30.06.2021 passed by the learned Judicial Magistrate 1st Class, Jamshedpur in connection with C/1 Case No. 2568 of 2017 by which the opposite party no.2 has been discharged under Section 245 Cr.P.C. .
3. The brief fact of the case is that the opposite party no.2 was summoned to appear in C/1 Case No. 2568 of 2017 involving the offences punishable under Section 498A, 120B and 379 of Indian Penal Code. After appearance of the opposite party no.2, the case was fixed for before charge evidence or pre-charge evidence under Section 244 Cr.P.C. on 09.10.2018, 23.01.2019, 24.01.2019, 19.02.2019, 26.03.2019, 03.07.2019, 24.09.2019, 16.01.2020, 27.02.2020, 16.03.2020 but in-spite of being given several opportunities, the complainant did not seek any adjournment to produce pre-charge evidence and ultimately the trial court closed the pre-charge evidence and after considering the materials in the record as there was no sufficient material to frame charge against the accused as no evidence came under Section 244 of Code of Criminal Procedure, the learned Judicial Magistrate 1st Class, Jamshedpur discharged the opposite party no.2 who was the accused person of the said Complaint Case No. 2568 of 2017 vide order dated 30.06.2021; upon the prayer for the same being made by the opposite party no.2.
Cr.M.P. No.509 of 2022 2
4. It is submitted by the learned counsel for the petitioner that there was a settlement agreement between the petitioner and the opposite party no.2 and as per the terms and condition of the settlement agreement, the petitioner did not appear before the learned Judicial Magistrate 1st Class, Jamshedpur in Complaint Case No. 2568 of 2017 resulting in before charge evidence being closed. It is then submitted by the learned counsel for the petitioner that such impugned orders passed by the Sessions Judge, East Singhbhum, Jamshedpur and the learned Judicial Magistrate 1st Class, Jamshedpur is not sustainable in law and for the purpose of discharge, the court need not examine the veracity of the allegations levelled against the accused nor the court should enter into a roving enquiry but all that is to be seen by the court is that whether, if the allegation are taken to be true, prima facie case is made out against the accused on the basis of the materials brought on record. It is next submitted by the learned counsel for the petitioner that the complainant although is duty bound but is not obligated to lead pre-charge evidence and not leading pre-charge evidence will not necessarily absolve the accused of the offences alleged in the complaint, the statement on solemn affirmation of the complainant and the statement of the inquiry witnesses. It is further submitted by the learned counsel for the petitioner that Section 245 (1) Cr.P.C. is invoked only after the stage of pre-charge evidence and the trial court is duty bound to consider pre-charge evidence if it exercises the jurisdiction under Section 245 (1) Cr.P.C. but if the court exercises the power under Section 245 (2) Cr.P.C. to discharge the accused then the court has to record reasons Cr.M.P. No.509 of 2022 3 for the same that the charges levelled against the accused persons of the case are groundless.
5. The learned counsel for the petitioner relies upon the judgment of Hon'ble Supreme Court of India in the case of Ajoy Kumar Ghose vs. State of Jharkhand & Anr. reported in 2009 0 Supreme (SC) 497, paragraph nos. 16, 17 and 18 of which reads as under:-
"16. xxxx xxxx xxxx xxxx Under Section 245(1), the Magistrate has the advantage of the evidence led by the prosecution before him under Section 244 and he has to consider whether if the evidence remains unrebutted,the conviction of the accused would be warranted. If there is no discernible incriminating material in the evidence, then the Magistrate proceeds to discharge the accused under Section 245(1) Cr.P.C.
xxxx xxxx xxxx xxxx.
17. xxxx xxxx xxxx xxxx
There, under sub-Section (2), the Magistrate has the power of discharging the accused at any previous stage of the case, i.e., even before such evidence is led. However, for discharging an accused under Section 245 (2) Cr.P.C., the Magistrate has to come to a finding that the charge is groundless. There is no question of any consideration of evidence at that stage, because there is none. The Magistrate can take this decision before the accused appears or is brought before the Court or the evidence is led under Section 244 Cr.P.C. The words appearing in Section 245(2) Cr.P.C. "at any previous stage of the case", clearly bring out this position. It will be better to see what is that "previous stage".
18. The previous stage would obviously be before the evidence of the prosecution under Section 244(1) Cr.P.C. is completed or any stage prior to that. Such stages would be under Section 200 Cr.P.C. to Section 204 Cr.P.C.
xxxx xxxx xxxx xxxx".
(Emphasis supplied)
and submitted that the said judgement supports his contention.
6. It is next submitted by the learned counsel for the petitioner that Section 245 (1) of Code of Criminal Procedure is a provision enabling and empowering and imposing a burden on the trial court to Cr.M.P. No.509 of 2022 4 consider pre-charge evidence before discharging the accused persons. Hence, the learned Magistrate has committed grave error by passing impugned order.
7. Learned counsel for the petitioner next relied upon the judgment of Hon'ble Andhra Pradesh High Court in the case of Yeduruparthi Kamakshamma vs. T. Taranadh reported in 1979 0 Supreme (AP) 99, wherein in the facts of that case when the complainant filed a petition for adjournment to lead pre-charge evidence but the court in that case dismissed the petition of adjournment and went on to hold that the complainant has no evidence and the prosecution was therefore closed and as there is no evidence, the accused was discharged under Section 245 of Code of Criminal Procedure, the Andhra Pradesh High Court observed that the Code of Criminal Procedure does not contemplate that the court has the power to close the prosecution evidence against the will of the complainant; who was prepared to proceed with the prosecution by giving evidence and also examining the witnesses.
8. Learned counsel for the petitioner next relied upon the judgment of a coordinate Bench of this court in the case of Chintamani Pandey vs State of Bihar (Now Jharkhand) reported in 2007 0 Supreme (Jhk) 413, paragraph no.6 of which reads as under:-
"6. Section 245 of the Code of Criminal Procedure, no doubt, enables the accused to invoke the powers of the trial court for his discharge from the trial. However, the scope of the powers under Section 245 Cr.P.C. is limited. Prayer for discharge can be allowed only if the entire evidence even if it remains un-rebutted, no offence whatsoever is made out.
xxxx xxxx xxxx xxxx."Cr.M.P. No.509 of 2022 5
and submits that prayer for discharge can be allowed only if the entire evidence even if it remains un-rebutted no offence whatsoever is made out.
9. Hence, it is submitted that the prayer as made in this criminal miscellaneous petition be allowed.
10. Learned Special Public Prosecutor and the learned counsel for the opposite party no.2 on the other hand opposes the prayer made by the petitioner. It is submitted by the learned Spl. P.P. and the learned counsel for the opposite party no.2 that the petitioner has not whispered even a single word as to why the order passed by the learned Sessions Judge, East Singhbhum, Jamshedpur in Criminal Revision No. 98 of 2021 suffers from any illegality and in the absence of any illegality in the order dated 01.10.2021 passed by the learned Sessions Judge, East Singbhum, Jamshedpur there is no rhyme or reason to set aside the same. It is next submitted by the learned Spl. P.P. and the learned counsel for the opposite party no.2 that before charge evidence of the petitioner was closed much prior to 30.06.2021; as in fact the same was closed on 24.09.2019. The said order dated 24.09.2019 by which before charge evidence of the petitioner- who was the complainant before the learned Judicial Magistrate 1st Class, Jamshedpur in Complaint Case No. 2568 of 2017; was closed is not under challenge. It is not the case of the petitioner, unlike the case of Yeduruparthi Kamakshamma vs. T. Taranadh (supra) that the complainant wanted to adduce some before charge evidence but he was denied that opportunity and on any date from 24.09.2019 to on or before 30.06.2021, the complainant Cr.M.P. No.509 of 2022 6 did not express desire to adduce any before charge evidence. The order dated 30.06.2021 was passed consequent upon the discharge petition under Section 245 Cr.P.C. being filed by the opposite party no.2 -who was the accused person of the case and it is not that the complainant was not present before the trial court, when the trial passed the order on the discharge petition under Section 245 Cr.P.C. being filed by the opposite party no.2. It is then submitted that the complainant was very much aware about the discharge petition and even filed reply to the same but even then the complainant never expressed her wish to adduce any before charge evidence because the case was a frivolous one and the complainant did not have any evidence against the opposite party no.2 and certainly in the absence of any offence having ever committed by the opposite party no.2 the complainant obviously could not take any risk of getting any false evidence adduced under oath by any of her witnesses; to save them from the prosecution for perjury. It is then submitted by the learned Spl. P.P. and the learned counsel for the opposite party no.2 that the ground for not producing the before charge evidence was never agitated before the trial court or even the revisional court and for the first time as an afterthought it was introduced in this criminal miscellaneous petition but that ground is also falsified and not sustainable in law because it is a settled principle of law that the parties to a litigation have no right to stall the judicial proceeding by a court by mutual agreement between them. It is further submitted by the learned Spl. P.P. and the learned counsel for the opposite party no.2 that as the complainant deliberately did not produce any Cr.M.P. No.509 of 2022 7 evidence knowing pretty well that for not adducing of any evidence the accused has filed a petition for discharge; certainly the petitioner cannot take the plea that the stage under Section 244 (1) of Code of Criminal Procedure has not been completed. It is submitted that the stage under Section 244 (1) of Code of Criminal Procedure cannot go endlessly when no prayer for adjournment or any expression of desire to adduce any pre-charge evidence is made by the complainant and the consequence is that after closure of the pre- charge evidence, there is absolutely no pre-charge evidence in the record. It is next submitted by the learned Spl. P.P. and the learned counsel for the opposite party no.2 that it is not the case of the petitioner that there was any material in the record, which could have constituted any of offence, which the trial court fails to take note of. But what the petitioner intends to do is to beat around the bush by trying to make out some procedural error on the part of the trial court which in fact does not exist at all. Hence, it is submitted that this criminal miscellaneous petition being without any merit be dismissed.
11. Having heard the submissions made at the Bar and after going through the materials in the record, it is pertinent to refer to Section 244 and 245 of Code of Criminal Procedure which reads as under:-
"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.Cr.M.P. No.509 of 2022 8
(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.
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."
12. The question that arises before this Court is when the evidence of the prosecution under Section 244 (1) Cr.P.C. is completed.
13. The plain reading of Section 244 and 245 Cr.P.C. makes it abundantly clear that the stage of Section 245 comes only after the stage of Section 244 comes to an end. This Court has no hesitation in holding that certainly the stage of Section 244 of Code of Criminal Procedure cannot go endlessly. If the complainant did not express any intention to produce any evidence in support of the prosecution; after giving a reasonable opportunity the Magistrate concerned has every right to close the before charge evidence and once such express order closing the before charge evidence is passed by the Magistrate, the stage under Section 244 (1) of Code of Criminal Procedure comes to an end whether or not the evidence as envisaged under Section 244 of Code of Criminal Procedure is produced by the complainant or not.
14. Now coming to the facts of this case, it is not the case of the petitioner who was the complainant before the learned court below Cr.M.P. No.509 of 2022 9 that adequate opportunity was not given to her to produce evidence. It is not the case that she wanted to produce some before charge evidence but the court did not give any opportunity. Even after the before charge evidence was closed and a petition for discharge was filed by the opposite party no.2 and the petitioner participated in that proceeding of discharge petition by filing a reply to the discharge petition but nowhere, she expressed any desire to adduce any before charge evidence nor it is the case of the petitioner herein that she wanted to adduce some before charge evidence, which was not allowed.
15. Under such circumstances, this Court does not find any illegality having been committed by the learned Judicial Magistrate 1st Class, Jamshedpur in closing the before charge evidence and after it found that there is no sufficient material to frame charge against the accused as no evidence has come under Section 244 of Code of Criminal Procedure, no illegality has been committed by the learned Judicial Magistrate by discharging the opposite party no.2.
16. So far as the contention of the learned counsel for the petitioner regarding distinction between Section 245 (1) and Section 245 (2) Cr.P.C. is concerned, the same is no more res intergra.
17. In the case of Ajoy Kumar Ghose vs. State of Jharkhand & Anr.
(supra) the same has already been answered by the Hon'ble Supreme Court of India in paragraph no. 18 as already indicated above.
18. The power vested under Section 245 (2) of Code of Criminal Procedure can be exercised at any previous stage of the case which Cr.M.P. No.509 of 2022 10 means before the evidence of the prosecution under Section 244 (1) of Code of Criminal Procedure is completed or at any stage prior to that and such stage would be under Section 200 to Section 204 of Code of Criminal Procedure. When the Magistrate exercises the power under Section 245 (2) of Code of Criminal Procedure, the Magistrate has to come to a finding that the charge is groundless but when the evidence of the prosecution under Section 244 (1) of Code of Criminal Procedure is complete either by after producing evidence by the complainant or the complainant withholding itself to produce any evidence by choice then the power under Section 245 (1) of Code of Criminal Procedure can be exercised by the Magistrate as has rightly been done in this case.
19. It is rightly submitted by the learned Spl. P.P. and the learned counsel for the opposite party no.2 that it is not the case of the petitioner that there was sufficient material to frame charge for any particular offence. Nowhere in this criminal miscellaneous petition there is whisper of any such case having been made out from the materials in the record. So in the absence of that, the learned Magistrate has rightly discharged the opposite party no.2, hence this Court does not find merit in this criminal miscellaneous petition so far with it relates to the prayer of quashing the order passed by the learned Magistrate is concerned.
20. So far as the prayer for setting aside the order passed by the learned Sessions Judge in the criminal revision is concerned, as already indicated above as there is no illegality in the order passed by the learned Magistrate obviously there is no illegality either in the Cr.M.P. No.509 of 2022 11 order passed by the learned Sessions Judge in criminal revision more so when even the petitioner for the reasons best known to her chose not to agitate any ground for quashing the same in this criminal miscellaneous petition. Thus this Court finds that no illegality has been committed by the learned Magistrate in passing the order dated 30.06.2021.
21. Under such circumstances, this criminal miscellaneous petition being without any merit is dismissed.
(Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 10th April, 2024 AFR/Sonu-Gunjan/-
Cr.M.P. No.509 of 2022 12