Allahabad High Court
Brajandan Sharma vs State Of U.P. And Anohters on 22 February, 2021
Equivalent citations: AIRONLINE 2021 ALL 628
Author: Raj Beer Singh
Bench: Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD RESERVED Court No. - 64 Case :- CRIMINAL REVISION No. - 1230 of 2020 Revisionist :- Brajandan Sharma Opposite Party :- State Of U.P. And Anohters Counsel for Revisionist :- Ashwini Kumar Ojha Counsel for Opposite Party :- G.A.,Fakhruzzaman Hon'ble Raj Beer Singh,J.
1. This application under Section 482 Cr.P.C. has been filed for quashing the impugned order dated 17.02.2020 passed by the Judicial Magistrate, Court No.1, Jhansi in Case No. 2100874 of 2013 (Ranjana Verma Vs. Brajnandan Sharma) under Sections 323, 504, 506 of IPC, Police Station Nawabad, District Jhansi, whereby the application filed by the revisionist for discharge has been rejected.
2. Heard learned counsel for revisionist and learned AGA for State and perused the record. None appeared on behalf of opposite party no.2.
3. It has been argued by learned counsel for revisionist that at the relevant time revisionist was working as Office Superintendent in Medical College, Jhansi and that the respondent no.2 was working as routine OTS in the said medical college and that she (o.p.no.2) has filed the complaint against revisionist and co-accused persons making false and baseless allegations and that no prima facie case is made out. It was submitted that earlier the revisionist has challenged the proceedings of the said complaint, lodged by opposite party no.2, before this Court by filing application under Section 482 Cr.P.C. No. 7613 of 2018, which was disposed off by order dated 08.03.2018 with observation that revisionist may take all his contentions at the time of hearing of the discharge application under Section 245(2) Cr.P.C. In pursuance to said order revisionist has moved an application for discharge but said application has been rejected vide impugned order dated 17.02.2020 without considering the matter in correct perspective. Learned counsel submitted that in the impugned complaint the allegations were made against co-accused persons, who were also working in the said medical college, that on 08.03.2013 they have abused and assaulted the complainant and subjected her to mental exploitation and they have also made forgery in her attendance register and when the complainant had objected they have threatened to kill her. Learned counsel submitted that revisionist has not been shown involved in the alleged incident dated 08.03.2013 and that mere allegation against revisionist is that revisionist and co-accused were hatching a conspiracy to impair her service record and that they have also made forgery in her attendance register but she has not been specified that what specific forgery has been committed and which of the accused was involved in the said forgery. Learned counsel submitted that in her statement under Section 200 Cr.P.C. also a mere vague allegation has been made. Learned counsel submitted that ingredients of offence under Sections 323, 504, 506 of IPC are not made out against revisionist and thus, it was a fit case for discharge but the application of revisionist seeking discharge was rejected by the impugned order dated 17.02.2020.
4. Learned AGA has opposed the application and argued that in view of allegations made by complainant and material on record, it cannot be said that no prima facie case is made out.
5. I have considered the rival submissions of learned counsel for the parties and perused the material on record.
6. Before proceeding further, it would be appropriate to quote the provisions of Section 245 Cr.P.C. which reads as follows :-
"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"
7. It is apparent that while considering an application under Section 245 (2) Cr.P.C. the Magistrate can discharge a person at any stage if he considers charges to be groundless. While under Section 245 (1) Cr.P.C. Magistrate has the advantage of evidence led by prosecution before him under Section 244 Cr.P.C. and he has to consider if the evidence remains un-rebutted, the conviction of accused would be warranted. If there is no discernible incriminating material in evidence, the Magistrate may discharge the accused under Section 245 (1) Cr.P.C. The situation under Section 245(2) Cr.P.C. is, however, different. 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. 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.
8. That Hon'ble Apex Court in the case of Ajoy Kumar Ghose versus State of Jharkhand and another, Criminal Appeal No. 485 of 2008 (arising out of SLP (CRL.) No. 5296 of 2006), decided on 18.3.2009, has dealt with the identical question. The Apex Court has held that:
"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. Under Section 200, after taking cognizance, the Magistrate examines the complainant or such other witnesses, who are present. Such examination of the complainant and his witnesses is not necessary, where the complaint has been made by a public servant in discharge of his official duties or where a Court has made the complaint or further, if the Magistrate makes over the case for inquiry or trial to another Magistrate under Section 192 Cr.P.C. Under Section 201 Cr.P.C., if the Magistrate is not competent to take the cognizance of the case, he would return the complaint for presentation to the proper Court or direct the complainant to a proper Court. Section 202 Cr.P.C. deals with the postponement of issue of process. Under sub-Section (1), he may direct the investigation to be made by the Police officer or by such other person, as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding. Under Section 202(1)(a) Cr.P.C., the Magistrate cannot given such a direction for such an investigation, where he finds that offence complained of is triable exclusively by the Court of sessions. Under Section 202(1)(b) Cr.P.C., no such direction can be given, where the complaint has been made by the Court. Under Section 203 Cr.P.C., the Magistrate, after recording the statements on oath of the complainant and of the witnesses or the result of the inquiry or investigation ordered under Section 202 Cr.P.C., can dismiss the complaint if he finds that there is no sufficient ground for proceeding. On the other hand, if he comes to the conclusion that there is sufficient ground for proceeding, he can issue the process under Section 204Cr.P.C. He can issue summons for the attendance of the accused and in a warrant-case, he may issue a warrant, or if he thinks fit, a summons, for securing the attendance of the accused. Sub-Sections (2), (3), (4) and (5) of Section 204 Cr.P.C. are not relevant for our purpose. It is in fact here, that the previous stage referred to under Section 245 Cr.P.C. normally comes to an end, because the next stage is only the appearance of the accused before the Magistrate in a warrant- case under Section 244Cr.P.C. Under Section 244, on the appearance of the accused, the Magistrate proceeds to hear the prosecution and take all such evidence, as may be produced in support of the prosecution. He may, at that stage, even issue summons to any of the witnesses on the application made by the prosecution. Thereafter comes the stage of Section 245(1) Cr.P.C., where the Magistrate takes up the task of considering on all the evidence taken under Section 244(1)Cr.P.C., and if he comes to the conclusion that no case against the accused has been made out, which, if unrebutted, would warrant the conviction of the accused, the Magistrate proceeds to discharge him. The situation under Section 245(2) Cr.P.C., however, is different, as has already been pointed out earlier. The Magistrate thereunder, has the power to discharge the accused at any previous stage of the case. We have already shown earlier that that previous stage could be from Sections 200 to 204 Cr.P.C. and till the completion of the evidence of prosecution under Section 244 Cr.P.C. Thus, the Magistrate can discharge the accused even when the accused appears, in pursuance of the summons or a warrant and even before the evidence is led under Section 244 Cr.P.C., makes an application for discharge."
9. The scheme of Cr.P.C makes it clear that when the accused appears or is brought before a Magistrate in pursuance of the process issued under section 204 of the Code, the first requirement is that the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the complaint. This requirement of law has been provided in section 244 of the Code. If a prayer for summoning any witness is made by the complainant, the Magistrate may summon the witness either to give evidence or to produce a document or thing. Section 245 (1) of the Code empowers the Magistrate to discharge the accused and that power is exercisable only after taking all the evidence referred to in section 244 of the Code. If upon considering such evidence the Magistrate considers that no case against the accused has been made out which, if unrebutted, would warrant of conviction of the accused, he shall discharge the accused. In other words, the accused has to be discharged in a case where the evidence collected under section 244 of the Code, if unrebutted, makes out no case against the accused and his conviction would not be possible on that evidence. Therefore, the discharge of the accused under section 245 (1) of the Code can be passed only after taking all the evidence referred to in section 244 of the Code and not before that. As such before discharging the accused under section 245 (1) of the Code, it is obligatory for the Magistrate to take all such evidence as may be produced by the complainant in support of the prosecution. However, there is an exception to this general principle and that is contained in section 245 (2) of the Code, which provides that the Magistrate may discharge an accused at any previous stage of the case if he considers the charge to be groundless. In other words, the discharge of the accused under section 245 (2) of the Code can be made only when the Magistrate finds the charge to be groundless at any previous stage of the case, i.e. before conclusion of the evidence under section 244 of the Code.
10. Coming back to the facts of present case, it emerges from record that the opposite party no.2 was working as routine O.T.S. in Medical College Jhansi and that the revisionist was working as Office Superintendent in the said Medical College. The allegations of the opposite party no.2 that the accused persons have harassed, abused and assaulted her are against co-accused persons and not against revisionists. Mere allegation against revisionist is that revisionist and the co-accused persons were hatching a conspiracy to tamper/impair her service record and her annual confidential remarks. In statement of complainant under Section 200 Cr.P.C., the mere allegation against the revisionist is that he along with co-accused persons was involved in hatching a conspiracy to impair/tamper the service record and annual confidential remarks of the opposite party no.2. Except that no other allegation has been made by the opposite party no.2 in her statement recorded under Section 200 Cr.P.C against the revisionist. The revisionist has been summoned for the offence under Section 323, 504, 506 I.P.C. The allegations regarding assault, abusing and criminal intimidation are against the co-accused persons and not against the revisionists.
11. Considering the material on record, it can safely be stated that mere allegation against the revisionist is that he was involved in conspiracy with the co-accused persons to tamper/impair the service record and annual confidential remarks of the opposite party no.2 and that would hardly constitutes any prima facie offence. In view of the fact of the matter, the allegations of opposite party no.2 are insufficient on its face and material is deficient for framing charge against the revisionist. The ingredients of the alleged substantive offences in which revisionist has been summoned are not satisfied on the material available on record and that the same lacks material facts to constitutes the ingredients of the alleged offence and it appears that the intention of opposite party no.2 is take revenge from the revisionist. Even if the allegations of opposite party no.2 remains uncontroverted, it would not entail conviction of the revisionist. In view of these facts and circumstances of the case, the charge against the revisionist can safely be termed as groundless. However, it appears that the application filed by the revisionist under Section 245 (2) Cr.P.C. has been rejected by the Court below in a cursory manner without considering whether the ingredients of alleged offences in respect of the revisionist are made out or not. The Court below also failed to consider the scope of Section 245 (2) Cr.P.C.
12. In view of aforesaid, the impugned order dated 17.02.2020 passed by the Judicial Magistrate, Court No.1 Jhansi in Case No. 2100874 of 2013 (Ranjana Verma Vs. Brajnandan Sharma) under Sections 323, 504, 506 I.P.C. Police Station Nawabad, District Jhansi, is not sustainable and thus accordingly, it is set aside and the matter is remitted to the concerned Court below to pass an order on the application of the revisionist filed under Section 245 (2) Cr.P.C. afresh, in accordance with law.
14. Revision is allowed in above terms.
Order Date :- 22.2.2021 Mohit/S.Ali