Allahabad High Court
Ram Kishore vs State Of U.P. on 20 November, 2019
Author: Dinesh Kumar Singh
Bench: Dinesh Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 13 Case :- U/S 482/378/407 No. - 2731 of 2009 Applicant :- Ram Kishore Opposite Party :- State of U.P. Counsel for Applicant :- B.K.Singh Counsel for Opposite Party :- G.A.,D.K.Mishra,Surendra Singh Hon'ble Dinesh Kumar Singh,J.
The present petition under Section 482 Cr.P.C. has been filed against the judgement and order dated 6.5.2009 passed by the Sessions Judge, Gonda in Criminal Revision No.57 of 2009.
From the fats as emerged from the record, it appears that the petitioner, who was given lease of land of plot no.06/0.53 acres and was also in possession, was not allowed to plough the land by the respondents. In view of the aforesaid fact, the petitioner filed an application before the Special Magistrate/Sub-Divisional Magistrate, Tarabganj, Gonda. On the basis of the report of the lekhpal, an FIR at Case Crime No.25 of 2004, under Section 198A of the U.P.Z.A. & L.R. Act was registered at Police Station Nawabganj, District Gonda. After completing the investigation, the Investigation Officer filed the charge sheet against six accused.
Learned Magistrate summoned the accused to face trial. The accused appeared before the trial court and moved an application for discharge. The trial court, however, rejected their application for discharge vide order dated 20.8.2008. Against the said rejection of their application for discharge, the accused filed revision before the revisional court. The revisional court was of the view that the accused had right to move an application under Section 251 Cr.P.C. and, if they move such an application, the Magistrate would decide the same in accordance with law. After the order of the revisional court, the accused moved an application purportedly under Section 245(2) Cr.P.C. The Special Magistrate/Sub-Divisional Magistrate, Tarabganj, Gonda after hearing the parties, had passed the order dated 7.1.2009, whereby he discharged the accused.
Against the aforesaid order dated 7.1.2009, the petitioner as well as State filed two revisions being Criminal Revision Nos.57 of 2009 and, 66 of 2009 respectively. The revisional court held that since the punishment was upto to three years, and, as defined under the Cr.P.C., the case was a summon case and was required to be tried summarily. Section 251 Cr.P.C. provides that when the accused in pursuance of the summon appears or is brought before the Magistrate, the particulars of the offence of which he is accused shall be stated to him, and he shall be asked whether he pleads guilty or has any defence to make, but framing of the charge is not a formal requirement in summon case. The revisional court was of the view that framing of the charge could not have been fatal to summary trial, but asking the accused persons to make defence was essential. It was obligatory on the part of the Magistrate trying a case before him to consider and decide the application for discharge before proceeding further. The revisional court also held that from perusal of the order dated 7.1.2009 passed by the learned Magistrate, the Magistrate considered the defence of the accused and discharged them. The revisional court was also of the view that this was not the stand of the complainant or the Investigation Officer as he did not said before the Investigation Officer nor in the FIR that the accused were in possession of the land and in pursuance of the lease executed in favour of the complainant, they were evicted or they re-occupied the land. The revisional court was, therefore, of the view that substance of the allegations would not establish the commission of the offence under Section 198A of the U.P.Z.A. & L.R. Act against the accused and, therefore, was of the view that the order passed by the learned Magistrate discharging the accused, did not suffer from any infirmity. In respect of the application under Section 245(2) Cr.P.C., the revisional court held that it was a mere clerical error and, it was not fatal. The application would have been moved under Section 251 Cr.P.C. Wrong mentioning of the provision does not make the order illegal or fatal if the authority/court is otherwise competent to pass the order. It was also held that Section 251 Cr.P.C. applies and makes provisions for defence at the initial stage. Framing of charge is inconsequential in summary trial and, therefore, there was no error in the order passed by the learned Magistrate. In view thereof, the revisions filed by the petitioner and by the State were dismissed vide impugned judgement and order dated 6.5.2009.
Heard Sri B.K. Singh, learned counsel for the petitioner and the Sri S.P. Tewari, learned AGA.
Once the charge was framed by the trial court even in summary trial, the application for discharge, thereafter, cannot be entertained particularly when the Magistrate had already dismissed that application for discharge before framing the charge. The revisional court finding that on the basis of the stand of the complainant in the FIR as well as before the Investigation Officer, the offence under Section 198A of the U.P.Z.A. & L.R. Act is not made out, does not appear to be correct. After charge is framed, the trial should have proceeded and after taking evidence only, it could have been said that the charge is proved or not proved. At the threshold, neither the learned Magistrate nor the revisional court should have discharged the accused particularly when an application for discharge had already been rejected.
In view thereof, the petition is allowed and the judgement and order dated 6.5.2009 passed by the Sessions Judge, Gonda is hereby set aside. The trial court is directed to proceed with the trial and conclude the same expeditiously.
From the report submitted before this Court, it appears that the trial court file is missing. The same should be traced out and, if it is not traceable, then the record should be constructed by taking help from the complainant and the accused and, then proceed with the trial.
Order Date :- 20.11.2019 Rao/-