Allahabad High Court
Vinod Kumar Bhatnagar vs State Of U.P. And Another on 20 February, 2018
Author: Karuna Nand Bajpayee
Bench: Karuna Nand Bajpayee
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 48 Case :- APPLICATION U/S 482 No. - 4276 of 2018 Applicant :- Vinod Kumar Bhatnagar Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Rajesh Kumar Srivastava, Virendra Kumar Srivastava Counsel for Opposite Party :- G.A. Hon'ble Karuna Nand Bajpayee,J.
This application u/s 482 Cr.P.C. has been filed against the order dated 07.01.2017 passed by the Additional District and Sessions Judge, Court No.8, District-Agra in Criminal Revision No.113 of 2015 (Shankar Singh vs. State of U.P. and others), whereby the order dated 27.04.2015 passed by the Additional Chief Judicial Magistrate, Court No.8, Agra u/s 245(2) Cr.P.C. in respect of Case No.23 of 2013 (Shankar Singh vs. Vinod Kumar Bhagnagar and others) u/s 420, 467, 468, 471, 406, 120-B I.P.C. has been set aside and aforesaid criminal revision has been allowed.
Heard applicants' counsel as well as learned A.G.A.
Entire record has been perused.
To appreciate the controversy involved in the present case, it is necessary to have a look over the facts of the case in brief, according to which the opposite party no.2 Shankar singh filed one application u/s 156(3) Cr.P.C. before the court of Magistrate, which was treated as complaint case vide order dated 15.01.2013 and thereafter statement of complainant u/s 200 Cr.P.C. and the statements of witnesses u/s 202 Cr.P.C. were recorded and subsequently summoning order dated 23.07.2013 was passed by the court of Magistrate, whereby the present applicant and one another person Govind Bhargava were summoned to face trial for offences u/s 420, 467, 468, 471, 406, 120-B I.P.C. The applicant and co-accused challenged that summoning order before this Court by means of Criminal Misc. Application (u/s 482 Cr.P.C.) No.32058 of 2014, which was disposed off vide order dated 14.8.2014 with direction that in case the accused-applicants file objection/discharge application before the concerned court below within 30 days through counsel, the court below concerned will consider and decide the same on merits by speaking and reasoned order at appropriate stage in accordance with law on the basis of evidence adduced by the parties and till the disposal of such application by the concerned court below at an appropriate stage, no coercive steps shall be taken against the accused-applicants. This Court had further directed that in case such application is rejected, the accused will appear before the concerned court below within 30 days and will apply for bail. In continuation to the said order dated 14.8.2014 passed by this Court, the present applicant along with co-accused preferred one discharge application u/s 245(2) Cr.P.C. on 5.9.2014 and the complainant/opposite party no.2 submitted his objection on the discharge application and after providing opportunity of hearing to the parties, the court of Magistrate vide order dated 27.04.2015 accepted the discharge application of accused persons and discharged them in the proceedings of complaint case for offence u/s 420, 467, 468, 471, 406, 120-B I.P.C.
The record reveals that against the order of discharge dated 27.4.2015, the complainant preferred Criminal Revision No.113 of 2015 before Sessions Court, which after due opportunity to the parties was allowed by the Additional District and Sessions Judge, Court No.8, Agra vide order dated 30.4.2016 and the order of discharge u/s 245(2) Cr.P.C. was set aside. Thereafter against this revisional court's order dated 30.4.2016, the accused-applicant and his co-accused preferred one Criminal Misc. Application (u/s 482 Cr.P.C.) No.18195 of 2016 which was allowed by means of order dated 31.5.2016 passed by this Court and the revisional court's order dated 30.4.2016 was set aside and the matter was remitted back to the revisional court to decide afresh as per law. In compliance to the order of this Court dated 31.05.2016, the proceedings of criminal Revision No.113 of 2015 again commenced afresh and after providing opportunity of hearing to the parties, the lower revisional court has passed the order dated 07.01.2017 which is impugned herein before this Court.
Submission on behalf of applicant is that he being the Secretary of the Society at the relevant point of time has executed the sale deed of property in dispute in favour of opposite party no.2 and the physical possession thereof was also handed over to opposite party no.2 and since then 10 years have elapsed during which the opposite party no.2 has not reported any grievance regarding possession of plot. However, after lapse of such a long period and after dissolution of society in question, the opposite party no.2 instituted criminal proceedings in question with malicious and malafide intention, which is apparent from the material available on record but the learned revisional court did not appreciate the same and passed the impugned order. Further submission is that in respect of plot in question, one proceeding for deficiency of stamp duty was initiated by the stamp authority against opposite party no.2 and in this respect even the spot inspection of the plot was also conducted by the concerned authority and in that proceedings of stamp duty, the opposite party no.2 has deposited Rs.27080/- as deficiency of stamp on 20.10.2012 all of which demonstrates that the allegation of opposite party no.2 regarding non handing over the physical possession of the plot to him is absolutely baseless and false. Submission is that the lower revisional court has completely misread the material available on record and the contentions raised on behalf of applicant and has incorrectly interfered with the order dated 27.4.2015 passed by the court of concerned Magistrate u/s 245(2) of Cr.P.C.
Learned A.G.A. has refuted the contentions made on behalf of applicant and has submitted that the material placed on record before the concerned courts below, which finds place in various orders appended with this application, goes to show that the opposite party no.2 is an innocent purchaser of plot in question who became the Member of Vinayak Sahkari Awas Samiti and deposited necessary amounts relating to development expenses up to 12.03.2003 and the accused-applicant in the capacity of the Secretary of the co-operative Society executed one sale-deed in the month of March, 2003 in respect of Plot No.217 admeasuring 403 sq. yard said to be situated in Mauja Babatpur, Tehsil and District Agra and the sale deed was registered on 27.03.2003 in the office of Sub-Registrar-Ist, District-Agra. Further submission is that the statements recorded by the court of concerned Magistrate reveal that there is positive assertion about non handing over the possession of plot in question by the accused persons to the opposite party no.2 and in such manner the opposite party no.2 has been duped and cheated and a wrongful loss has been caused to him as he could not get the possession of plot in question, despite making payments of all necessary dues and sale consideration. Submission is that the lower revisional court in its order dated 07.01.2017 has recorded various facts in relation to controversy involved in the case and has given specific reason that even grave suspicion is sufficient to proceed with the criminal case for the purpose of framing charges. Further submission is that the lower revisional court vide its order dated 07.01.2017 has rightly considered the error committed by the court of concerned Magistrate while passing order dated 27.4.2015 for the purpose of discharge of accused persons and hence the order impugned herein is well reasoned and does not call for any interference by this Court.
Before proceeding to adjudge the validity of the impugned order it may be useful to cast a fleeting glance to some of the representative cases decided by the Hon'ble Supreme Court which have expatiated upon the legal approach to be adopted at the time of framing of the charge or at the time of deciding whether the accused ought to be discharged. In the case of State of Bihar vs. Ramesh Singh 1977 (4) SCC 39, the Hon'ble Supreme Court discussed the implication and scope of section 226, 227 and 228 and observed that at the initial stage, the duty of the Court is to consider the record of the case and the documents submitted therewith and to hear the submissions of the accused and the prosecution in that behalf. The Judge has to pass thereafter an order either u/s. 227 or u/s. 228 of the Code.
It was further observed that at the beginning and the initial stage of the trial the truth, veracity and effect of the evidence which the prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defence of the accused. It is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at this stage of deciding the matter under s. 227 and 228 of the Code. At that stage the court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a strong suspicion which leads the court to think that there is ground for presuming that the accused has committed an offence then it is not open to the court to say that there is no sufficient ground for proceeding against the accused.
Although Ramesh Singh's case (supra) was primarily concerned with the scope of Section 227 or 228 of Cr.P.C., however, in a subsequent judgement of Hon'ble Supreme Court in the case of R.S. Nayak vs. A.R. Antulay and another, (1986) 2 SCC 716, the Ramesh Singh's case (supra) was not only considered but was also followed authoritatively while considering the scope of Section 245 of Cr.P.C., which is meant for complaint case proceedings under Chapter XIX (Part-B- cases instituted otherwise than on police report) of Cr.P.C.
In the case of R.S. Nayak (supra) the factual controversy arose on the basis of complaint filed before the Magistrate under Chapter XV of Cr.P.C. alleging therein commission of offences punishable under Sections 161, 165, 384 and 420 read with section 120 B I.P.C. as also Section 5 (2) read with Section 5 (1)(d) of the Prevention of Corruption Act, 1947, which was registered as Special Case and was transferred to the High Court of Bombay for trial under an order made by a Constitutional Bench of Hon'ble Supreme Court. When the said trial of Special case proceeded and quite a large number of prosecution witnesses were examined, the trial judge was invited to consider framing of several charges proposed by the prosecution. The trial judge framed few charges only and refused to frame remaining charges proposed by the prosecution and made an order of discharge in respect of those charges. This order of discharge under Section 245 Cr.P.C. was assailed before Hon'ble Supreme Court. It is this factual controversy, in which Hon'ble Supreme Court proceeded to consider the scope of Sections 244, 245 and 246 of Cr.P.C. and it shall be advantageous to refer to the observations made by the Hon'ble Apex Court, which are being quoted hereinbelow:
"44. As pointed out by the Constitution Bench in the judgment to which reference has been made, the relevant sections of the Code of Criminal Procedure ('Code' for short) for the trial of a case of this type are sections 244, 245 and 246. Section 245(1) provides :
"If upon taking of the evidence referred to in S. 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."
While section 246 (1), on the other hand, requires :
"If when such evidence has been taken or at any previous stage of the case the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter which such Magistrate is competent to try and which in his opinion should be adequately punished by him, he shall frame in writing a charge against the accused."
The Code contemplates discharge of the accused by the Court of Sessions under s. 227 in a case triable by it; cases instituted upon a police report are covered by s. 239 and cases instituted otherwise than on police report are dealt with in s. 245. The three sections contain some what different provisions in regard to discharge of the accused. Under s. 227, the trial Judge is required to discharge the accused if he 'considers that there is not sufficient ground for proceeding against the accused.' Obligation to discharge the accused under s. 239 arises when "the Magistrate considers the charge against the accused to be groundless." The power to discharge is exercisable under s. 245(1) when "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..." It is a fact that ss. 227 and 239 provide for discharge being ordered before the recording of evidence and the consideration as to whether charge has to be framed or not is required to be made on the basis of the record of the case, including documents and oral hearing of the accused and the prosecution or the police report, the documents sent along with it and examination of the accused and after affording an opportunity to the two parties to be heard. The stage for discharge under s. 245, on the other hand, is reached only after the evidence referred to in s. 244 has been taken. Not-withstanding this difference in the position there is no scope for doubt that the stage at which the Magistrate is required to consider the question of framing of charge under s. 245(1) is a preliminary one and the test of "prima facie" case has to be applied. In spite of the difference in the language of the three sections, the legal position is that if the trial Court is satisfied that a prima facie case is made out, charge has to be framed.
45. In Mahant Abhey Dass v. S. Gurdial Singh & Ors., A.I.R. 1971 S.C. 834, this Court in case instituted on complaint applied the prima facie test. In State of Bihar v. Ramesh Singh, [1978] 1 S.C.R. 257, this Court again pointed out that the standard of test and judgment which is to be finally applied before recording a finding regarding guilt or otherwise of the accused, is not to be applied at the stage of deciding the matter under s. 227. It was further observed :
"If the evidence which the prosecution proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in crossexamination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial. An exhaustive list of circumstances to indicate as to what will lead to one conclusion or the other is neither possible nor advisable. We may just illustrate the difference of the law by one more example. If the scales of pan as to the guilt or innocence of the accused are something like even at the conclusion of the trial, then, on the theory of benefit of doubt the case is to end in his acquittal. But, if on the other hand, it is so at the initial stage of making an order under s. 227 or s. 228, then in such a situation ordinarily and generally, the order which will have to be made will be one under s. 228 (charge to be framed) and not under s. 227 (of discharge)".
Untwalia, J. who spoke for the Court in that case, quoted with approval the view expressed by Shelat, J. in Nirmaljit Singh Hoon v. State of West Bengal & Anr., [1973] 2 S.C.R. 66, and what had been said in yet another earlier decision of the Court in Chandra Deo Singh v. Prakash Chandra Bose, [1964] 3 S.C.R. 629. In the case of Union of India v. Prafulla Kumar Samal & Anr., [1979] 2 S.C.R. 229, (a decision to which the trial Court referred), this Court was dealing with a case involving allegations relating to offences punishable under s. 5(2) read with s.5(1)(d) of the Act and s. 120-B, IPC as here. Fazal Ali, J. indicated that the Court has power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. In Superintendent and Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhunia & Ors.,[1979] 4 S.C.C. 274, a three Judge Bench of this Court said:
"At this stage, as was pointed out by this Court in State of Bihar v. Ramesh Singh, (supra), the truth, veracity and the effect of the evidence which the prosecution proposes to adduce are not to be meticulously judged. The standard of test, proof and judgment which is to be applied finally before finding the accused guilty or otherwise is not exactly to be applied. At this stage, even a very strong suspicion founded upon materials before the Magistrate which leads him to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged may justify the framing of charge.. "
The language of sub-s. (1) of s. 245 also places the matter beyond dispute by using the same test as suggested by Untwalia, J., in the case of Ramesh Singh, (supra)."
Useful reference in this context may also be made to the cases of Superintendent and Remembrancer of Legal Affairs, West Bengal Versus Anil Kumar Bhunja AIR 1980 (SC) 52 and Sanghi Brothers (Indore) Pvt. Ltd. v. Sanjay Choudhary AIR 2009 SC 9, wherein the law as enunciated in the cases quoted herein before finds its reaffirmation.
In fact while exercising the inherent jurisdiction under Section 482 Cr.P.C. or while wielding the powers under Article 226 of the Constitution of India the quashing of the complaint can be done only if it does not disclose any offence or if there is any legal bar which prohibits the proceedings on its basis. The Apex Court decisions in R.P. Kapur Vs. State of Punjab AIR 1960 SC 866 and State of Haryana Vs. Bhajan Lal 1992 SCC(Cr.) 426 make the position of law in this regard clear recognizing only certain categories by way of illustration which may justify the quashing of a complaint or charge sheet.
It goes without saying that the scope to discharge the accused u/s 245(2) Cr.P.C. is even more extremely limited. There are only exceptional circumstances which may justify such discharge after passing of the summoning order without any further evidence of such a nature being produced which may completely absolve or exonerate the accused and the charge against them may appear to be groundless. There may also be such circumstances which may be brought to the notice of the court like the absence of legally required sanction or any such legal embargo which prohibits the continuation of proceedings against accused. Ordinarily it is indeed very hard to succeed in obtaining a discharge successfully on the basis of same set of evidence which was found sufficient by the court for the purpose of summoning the accused to face the trial but because the possibility, however limited it be, does exist to get a discharge even without recording any evidence after summoning that the applications u/s 245(2) Cr.P.C. are moved and are, as they should be, entertained by the courts.
Illumined by the case law referred to herein above, this Court has adverted to the entire record of the case.
Perusal of record in the light of submissions advanced on behalf of parties reveals that the accused persons being connected with the affairs of co-operative society in question had caused execution of sale-deed dated 27.03.2003 pursuant to which the opposite party no.2 has serious grievance about non handing over the possession of plot in question and he along with his witnesses has made various allegations of cheating and fraud by contending that he has been caused wrongful loss by the accused persons and despite making payments of necessary dues and the sale consideration, he has been bluffed by the accused persons for the purpose of actual possession of plot in question and despite his repeated requests and notices, the accused persons have not handed over the possession of plot in question to him and have misappropriated the amount paid by the opposite party no.2 in respect of necessary dues and sale consideration.
The submissions made by the applicants' learned counsel call for adjudication on pure questions of fact which may be adequately adjudicated upon only by the trial court and while doing so even the submissions made on points of law can also be more appropriately gone into by the trial court in this case. This Court does not deem it proper, and therefore cannot be persuaded to have a pre-trial before the actual trial begins. A threadbare discussion of various facts and circumstances, as they emerge from the allegations made against the accused, is being purposely avoided by the Court for the reason, lest the same might cause any prejudice to either side during trial. But it shall suffice to observe that the perusal of the complaint, the summoning order and also all other the material available on record makes out a prima facie case against the accused at this stage and this Court does not find any justifiable ground to set aside the impugned order refusing the discharge of the accused. This court has not been able to persuade itself to hold that no case against the accused has been made out or to hold that the charge is groundless.
So far as earlier order dated 31.05.2016 passed by this Court is concerned, it is useful to note that this Court at earlier occasion did not advert to the facts of the case and the order dated 31.5.2016 was confined only to the position of law, which is apparent from the observation made in the order dated 31.5.2016 to the effect that "the facts are not of much relevance, what is relevant is as to whether the concerned revisional court was justified in passing the impugned order."
While observing so, this court concluded in following manner :
"Having considered the statement of law, the facts of the case would reveal that the revisional court has merely set aside the order passed by the learned Magistrate under Section 245(2) Cr.P.C. for the reason that the accused were not before the Court under Section 244 Cr.P.C. and the evidence was yet to be led by the complainant.
In my opinion, the revisional court has committed an error in applying the law as the scope for entertaining an application under Section 245(2) Cr.P.C. is limited and is to be confined to the evidence as is available on record before the accused is brought before the court under Section 244 Cr.P.C. The revisional order dated 30 April 2016 passed by the Additional District and Sessions Judge, Court No. 8, Agra, is, therefore, set aside. The matter is remitted to the revisional court/Additional District and Sessions Judge, Court No. 8, Agra to decide afresh as per law.
Subject to the above, the petition is allowed."
So far as order impugned in the present petition is concerned, the same is well within the boundaries observed by this Court in its earlier order dated 31.05.2016.
In the light of aforesaid discussion, the order passed by the lower revisional court does not call for any interference. The prayer for quashing or setting aside the impugned order is refused as I do not see any illegality, impropriety and incorrectness in the impugned order or the proceedings under challenge. There is absolutely no abuse of court's process perceptible in the same. The present matter also does not fall in any of the categories recognized by the Supreme Court which might justify interference by this Court in order to upset or quash them.
However, it is observed that if the bail has not been obtained as yet, the accused may appear before the court below and apply for bail within two months from today. The court below shall make an endeavour to decide the bail application, keeping in view the observations made by the Court in the Full Bench decision of Amrawati and another Vs. State of U.P. 2004 (57) ALR 290 and also in view of the decision given by the Hon'ble Supreme Court in the case of Lal Kamlendra Pratap Singh Vs. State of U.P. 2009 (3) ADJ 322 (SC).
In the aforesaid period or till the date of appearance of the accused in the court below, whichever is earlier, no coercive measures shall be taken or given effect to.
It is further clarified that this order has been passed only with regard to the accused on behalf of whom this application u/s 482 Cr.P.C. has been moved in this Court.
With the aforesaid observations this application is finally disposed off.
Order Date :- 20.2.2018/M. Kumar