Allahabad High Court
Sheoshankar And 2 Others vs State Of U.P. And Anr. on 20 April, 2018
HIGH COURT OF JUDICATURE AT ALLAHABAD A. F. R. Judgement reserved on 28.3.2018 Judgment delivered on 20.04.2018 In Chamber Case :- CRIMINAL REVISION No. - 679 of 2014 Revisionist :- Sheoshankar And 2 Others Opposite Party :- State Of U.P. And Anr. Counsel for Revisionist :- Amar Nath Tiwari,Ramendra Nath Tiwari Counsel for Opposite Party :- Govt. Advocate,Ashok Kumar Hon'ble Dinesh Kumar Singh-I,J.
1. This criminal revision has been preferred against order dated 07/02/2014 passed by the learned Judicial Magistrate-II, Varansi in Complaint Case No. 502/2012, Vipat vs Sauraybali and another under sections 420, 467, 468 IPC, PS Manduadih, whereby application for discharge of the accused-revisionists dated 30/11/2013 has been dismissed.
2. Heard the arguments of the learned counsel for the revisionist Sri Ramendra Nath Tiwari and learned Counsel for opposite party no.2 Sri Ashok Kumar and learned A.G.A.
3. In brief, the facts of the case are as follows. Opposite party No. 2 had filed a complaint stating therein that complainant and his younger brother had ¼ share in Arazi No.36 area 6 ½ D. In the same Arazi Bodam had 1/16 share and after his death his legal heirs have been mutated. In his lifetime, Bodam executed a sale deed on 18/9/1984 of 6 ½ D. share in favour of Shashi Kapoor and Subhash; of one biswa in favour of Nirahu on 24/0 4/85; of 2283 square feets in favour of Smt. Basanti Devi on 25/5/1995; of 4 ½ D. i.e. 1957 ½ square feet in favour of Krishna Lal Talwar on 25/07/1995; 1826 square feet in favour of Mishri Lal on 29/0 6/1999; of 1/2 biswa i.e. 2040 square feet in favour of Fuldor Tirki; of 2881 square feet i.e. 267.7 5 square meter in favour of Jyoti Tirki on 25/04/2006. Thus he sold land of Arazi No. 36 beyond his share. His legal heirs namely, Surybali , Shiv Shankar, Hari Shankar and Kaushalya Devi had full knowledge about this fact, even then they filed a written statement dated 04/04/2007 in case No. 16 of 2004 Jhunki Devi and others vs Bodam and others in the Court of Civil Judge (Junior Division), Hawali Varanasi stating that Bodam had not executed any sale deed of any part of the Arazi No. 36 in favour of any person nor any family settlement had taken place. To derive benefit out of the wrong information given in written statement in the above case, the above-mentioned legal heirs of Bodam executed sale deed dated 18/11/2008 of 1360 square feet land of Arazi No. 36 belonging to the share of complainant and his brothers, again to Fuldor Tirki. Even the purchasers had this knowledge that Bodam had sold land beyond his share high-handedly with a view to causing harm to the complainant and his brothers in collusion with the purchasers. The complainant and his brothers had sold 2556.8 square feet of land of Arazi No. 19/1 which fell in their share. The revisionist- opposite parties had filed objection in the mutation proceedings of Arazi No. 90/1 and the legal heirs of Bodam had got the case filed in the Court of ACM 1st Varanasi under section 145 Cr.P.C. stating therein that the said land was received in family partition. In this complaint the date of occurrence is mentioned 18/9/1984, 25/4/1985, 22/5/1995, 25/7/1995, 29/6/1999, 6/5/2003, 25/4/2006, 18/11/2008 and 19/8/2011.
4. This complaint was registered as complaint case No.502 of 2012, Vipat vs Surybali and others and in the summoning order dated 22/12/2012, the learned Judicial Magistrate, Court No.-2, Varanasi has written the facts of the case mentioned above adding therein that on 19/08/2011 the revisionists Surybali, Shiv Shankar and Hari Shankar came to Arazi No. 36 along with the purchasers, against which police was approached by moving an application but no action was taken. It is further mentioned in the order that the complainant had stated under section 200 Cr. P.C. that the revisionists had sold land beyond their share. A small piece of land of Arazi No. 36 was in possession of the complainant-O P No. 2. In a statement under section 202 Cr.P.C. Chhotey Lal and Ishwar Prasad were produced, who had supported the complainant's version. From the side of the complainant-O P No. 2 certified copies of the sale deeds executed by Bodam during his lifetime and of the sale deed dated 18/11/2008 executed by the revisionists were presented. It became clear from the perusal of khatauni and other documents given from the side of complainant that whatever sale deeds were executed by the revisionists and their father Bodam, no no-objection had been obtained regarding them from the complainant and his brothers. It was established principle of law that in joint property each shareholder has equal right on the entire land till such property is got partitioned, therefore, the same could not be transferred/alienated. Thus on the basis of the documentary evidence prima-facie case under section 420, 467 and 468 was found made out against the opposite parties-revisionists and accordingly they were summoned to face trial.
5. The said summoning order dated 22/12/2012 was challenged by filing an application under section 482 Cr.P.C. registered as Application No. 38440 of 2013, Suryabali three others vs State of U.P. and another, in which the applicants-revisionists were permitted to appear before the concerned Court within a month from the date of order i.e. 8/11/2013 through their counsel for getting discharged and direction was issued for not taking coercive steps against them for a period of 3 months from the date of order or till the disposal of the discharge application, whichever was earlier. It was further mentioned in the said order that if the concerned Court, after hearing the counsel for the accused felt persuaded to have the view that the accused ought not to have been summoned and that the charge was groundless, it should not abstain from discharging them only on the ground that material available at the time of summoning was the same which was available on record at the time of hearing the discharge application under section 245 (2) Cr. P.C.. On the other hand, if the lower Court even after hearing the counsel for the accused holds review that the accused were rightly summoned and the material produced by the complainant does not indicate the charges to be groundless, it shall make an order to that effect and proceed further in the matter in accordance with law and shall be free to adopt such measures to procure the attendance of the accused as the law permits.
6. In pursuance of the said order the revisionists moved the application for discharge on which the impugned order has been passed. It is recorded in the said order that objection dated 27/01/2014 was presented by the complainant- O.P. No. 2. The main argument placed before the learned trial Court was that the case was of Civil nature. In opposition, the complainant stated that the father of the opposite parties -revisionists, Bodam had 1/6 share in Arazi No. 36, situated in Mauja Nathupur, Paragana Dehat Amanat , Tehsil and District Varansi, who had already sold more share of that Arazi in his lifetime than he was owner of, and this fact was in the knowledge of the opposite parties. Despite that, the opposite parties with a view to causing harm to the complainant, in collusion with the purchaser sold 1360 square feet of land of said Arazi on 18/11/2008 by executing a sale deed. The opposite parties have denied to have sold any piece of land of said Arazi either by them or by their father in the Court of Civil Judge Junior Division, Hawali, Varansi in case No. 16 of 2004, Jhunki Devi vs Bodam and also denied any family partition to have taken place. When the complainant and his brothers sold their share in Arazi No. 90/1 of 2556 square feet, the opposite parties started proceedings under section 145 Cr.P.C.. Again on 19/0 8/2011 the opposite parties had ascended the land for selling the land forcibly regarding which police was approached to take action but to no avail hence complaint had to be filed in Court. Alleging as above, prayer was made for rejecting the discharge application. It is also recorded that the complainant had brought on record the statement of Shiv Shankar in case No. 576/12 Kaushalya Devi vs Vipat and in case No. 770 of 2012 Hari Shankar vs Ishwar Prasad and also of Hari Shanker in case No. 13/2012 in the Court of Additional City Magistrate, under section 145 Cr. P.C. in support of his case. It is recorded in the impugned order that at the stage of framing of charge, only prima-facie case has to be seen and on the basis of the evidence oral and the documentary on record, there was sufficient evidence against the opposite parties. Further it is mentioned that it was argued that the case was of Civil nature, in this regard reliance was placed by the learned counsel for the accused persons- revisionists on Ramesh Chandra Bhatia vs. State of U.P., 2012 Pra. Ni. Patra.776 (Cr.). But, the learned lower Court relying upon Kamla Devi vs State of West Bengal and another, 2002 All JIC 118 Supreme Court, opined that even in such a case where matter is of Civil nature, but the criminal liability is also made out, both type of cases could run side-by-side. Accordingly the application was dismissed and it was further directed that the accused should appear before Court on 30/3/2014 for getting themselves bailed out and that processes be issued against them.
7. The learned counsel for the revisionist has submitted that a perusal of the contents of the complaint would indicate that the occurrence is shown to have taken place on various dates beginning from 18/9/1984 to 19/8/2011 on as many as nine dates of various years while under section 219 of the Criminal Procedure Code only three offences of same kind within one year may be charged together. Next, it was argued that the Arazi in dispute is admittedly a joint property as no legal partition has taken place between the two sides, hence, the private opposite party ought to have sought relief before civil court and not before a criminal court.
8. Reliance has been placed by the learned counsel of the revisionist upon Ram Biraji Devi vs Umesh Kumar Singh, Laws (SC)-2006-5-42, in which the facts were that the complainant was willing to purchase a plot, therefore he orally agreed that he would pay a sum of Rs. 4 lakh to the appellants as a price of the plot and on payment of the said amount, the appellants would transfer the plot in his favour. It was further alleged that a sum of his 80,000/- was paid to the appellants by way of consideration amount of the sale price on different dates between 15/02/2002 and 15/12/2002. It was further alleged that the appellants had promised the complainant that they would execute a written agreement in favour of the complainant on 15/1/2003. When the appellants failed to execute the agreement till 20/1/2003, the complainant along with three other persons approached the appellants to know about the cause of delay, whereon they flatly denied to have taken Rs. 80,000/- and refused to either refund the said amount or transfer the plot. Therefore the criminal complaint was filed in the Court of C.J.M, Gaya and after recording the statements of complainant and the witnesses, the cognizance was taken under sections 406, 419, 420 and 120 B of IPC against the appellants. It was held by the Hon'ble Apex Court that there was not a whisper of allegation constituting an offence of aforesaid sections because on the one hand an oral agreement was said to have taken place to sell the plot in July 2002, while it was alleged that the complainant had started paying the consideration amount between 15/7/2000 and 15/12/2002, which was self-contradictory version of the complainant. Further it was held that even if the version of the complainant be taken to be true as it is, no offence of criminal breach of trust would be found to have made out as there was no guilty intention attributable to them nor was there any intention to deceive the complainant. The said facts at the most would amount to civil liability inter-se the parties and no criminal liability could be attributed to the appellants. Further it was held that this was a case in which the High Court ought to have exercised its inherent jurisdiction and powers to set aside the unwarranted and unjustified order of the Magistrate impugned before it by the appellants. Citing the above case law it was strongly contended by the learned counsel for the revisionist that in the present case as well there was at the most a Civil dispute between the parties which has been given colour of criminal case. Most of the land of the disputed property had already been sold by father of the accused as far back as 18/09/1984 and thereafter on several dates and then no protest was made against those sales nor any suit for cancellation of sale deeds appears to have been filed, which would be proper course in the case at hand. Even if the present revisionists - accused had sold any portion of the agricultural land beyond their share without any forgery, a prayer could have been made on the Civil side to get the said sale deed cancelled instead of initiating criminal proceedings. There is no element of forgery which is a sine qua non for constituting an offence under sections 420, 467 and 468 IPC.
9. Apart from the above arguments the other most important argument which has been raised by the learned counsel for the revisionist is that while passing the impugned order dated 07/02/2014, the learned Magistrate has ignored the command issued by this Court vide order dated 08/11/2013 which has been to the following effect: "No coercive measures shall be adopted against the applicants for a period of three months from today or till disposal of the discharge application, whichever is earlier. If the concerned Court after hearing the counsel for the accused feels persuaded to have the view that accused ought not to have been summoned and the charge is groundless it shall not abstain from discharging the accused only on the ground that the material available at the time of summoning was the same which is available on record at the time of hearing of the discharge application u/s 245 (2) Cr. P.C.. On the other hand if the lower Court even after hearing the counsel for accused holds the view that the accused have been rightly summoned and the material produced by the complainant does not indicate charges to be groundless it shall make an order to that effect and proceed further in the matter in accordance with law and shall also be free to adopt such measures to procure the attendance of the accused as the law permits."
10. It is evident from the impugned order that the Court below had found that there was sufficient evidence on record for framing charge, because at the stage of charge the Court has to see as to whether prima-facie case is made out or not on the basis of the documentary as well as oral evidence on record and that in the present case there was sufficient evidence to frame charges against the accused- revisionists. Accordingly, it directed the accused to appear before Court and get themselves bailed out. Under section 245 (2) it is provided that "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." Therefore it is clear that even before taking further evidence of the prosecution under section 244 of the Code, the Magistrate is within its jurisdiction to discharge the accused. A very meticulous analysis has been made by this Court in Criminal Misc. Appeal No. 26567 of 2011, Manoj Dalmia vs State of U.P. and Another, Manu/U.P./3799/2011 in which relying upon the judgment of the Hon'ble Apex Court in Ajai Kumar Ghose vs State Jharkhand and another, (2010) 1 SCC (Cri.) 1301 following has been held:
"9. Mr. Nandit Srivastva tried to submit that the Apex Court, in the aforesaid case of Ajai Kumar Ghose (supra) has very clearly held that the power under section 245 (2) of the Code can be exercised even before the appearance of the accused, therefore, learned Magistrate as well as the revisional Court could not be said to be justified in requiring the petitioner to appear in person in Court at the time of considering his prayer for discharge under section 245 (2) of the Code. It is no doubt true that the Apex Court has held in the aforesaid case that the discharge prayer under section 245 (2) can be entertained even before appearance of the accused in the Court but that proposition seems to have been laid down in different context. It appears that the Apex Court bifurcated the expression "previous stage of the case" in two categories. The first category is the stage of the case under section 202 to 204 of the Code, and the other category is the stage of evidence on appearance of the accused under section 244 of the Code. In the first category of the case, the Apex Court opined that the discharge prayer can be considered before appearance of the accused but in the second category of the case presence of the accused has been held necessary because the proceedings under section 244 begins with the appearance of the accused, therefore, in a case where the stages provided in sections 200 to 202 of the Code have already come to an end and the case reaches the stage of section 244 of the Code on appearance of the accused, the discharge prayer, in such situation under section 245 (2) of the Code cannot be entertained without the appearance of the accused. This conclusion finds support from the observations of the Apex Court made in para 29 of the judgment in Ajai Kumar Ghose case. In that paragraph the Apex Court held "If the Magistrate comes to the conclusion that there is sufficient ground for proceeding, he can issue process under section 204 of the Code.... It is in fact here that previous stage referred to in Section 245 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 244 of the Code." To put it otherwise, as and when any process issued to the accused, the previous stage referred to in section 245 (2) of the Code ordinarily comes to an end but there may be Cases were discharge prayer is made on appearance of the accused but before the start of prosecution evidence or during the course of prosecution evidence but before its conclusion. In the subsequent situation, the personnel presence of the accused, if not already exempted under section 205 of the Code, is necessary. In this view of the matter, the submission of the learned counsel for the petitioner that after issuing the process under section 204 of the Code the Magistrate could consider the discharge prayer of the petitioner under section 245 (2) of the Code without personal appearance of the petitioner in the Court, does not appear to be correct.
10. Mr Nandit Srivastva lastly submitted that the format of the summons provided in Form No. 1 of the Schedule II to the Code prescribes a requirement of the presence of accused in person or through counsel, therefore, it was not obligatory on the part of petitioner to appear in person and he could appear even through counsel.
11. The aforesaid submission has some substance in a case where Magistrate invokes the provision of section 205 of the Code at the time of issuing process to the accused and permits the accused to appear through counsel. In other words, the power under section 205 of the Code can be exercised by the Magistrate even in the very initial stage of issuing process to the accused under section 204 of the Code and at that stage the Magistrate may require the accused to appear in person or through counsel. If the personal attendance of the accused in the Court has not been exempted by the Magistrate under section 205 of the Code or he has not been permitted to appear through counsel after granting such exemption, the accused cannot deny to appear in person in the Court in the garb of the format prescribed for summons. In criminal trials, presence of the accused in the Court is a must. No proceeding in criminal trials can take place in absence of the accused except if the case is covered by section 299 of the Code or the Cases in which section 205 of the Code has been invoked and accused has been exempted from personally appearing in the Court. Whether the personal attendance of the accused is to be exempted or not is the question for consideration of the Magistrate."
11. In the case at hand it is apparent that the Magistrate had not exempted the personal appearance of the accused persons under section 205 of the Code, however this Court had granted them liberty to appear before the Court below through counsel and move discharge application on the basis of whatever evidence was there on record, which would fall the consideration of discharge of the accused persons under section 245 (2) of the Code. Now this Court has to see as to whether the Court below was justified in recording that only prima-facie case was required to be seen at the stage of charge and whether it was justified in finding the prima-facie case made out on the basis of evidence on record.
12. Though not argued by the learned counsel for the private opposite party or the learned AGA that there is no requirement under the law that if Magistrate decides to frame charge then for framing charge he has to record reasons for doing so. But in Crl. Revision No. 744 of 2003,Shabra Khatoon and others vs State of Jharkhand and Anr. decided on 20/04/2005, MANU/JS/0330/2005 following is held :
"17. When the trial Court has passed an appropriate order in excise of powers conferred under section 227, or 239 or 245 Cr. P.C. then he has to pass reasoned order but when the trial Court framed charge in exercise of powers conferred under sections 228 , 240 or 246 then no reasons are required to be made in the order framing charge.
18. In the case of the State of Karnataka vs L. Muniswamy reported in MANU/SC/0143/1977: 1977 Cri. Law Journal 1125, the Supreme Court while dealing with case and the provisions of section 227 of the Cr. P.C., i.e. , in a case triable by Court of sessions, has held that the object of provisions which require the Sessions Judge to record its reason is to enable the superior Court to examine the correctness of the reasons for which the Sessions Judge has held that there is or is not sufficient ground for proceeding against the accused. High Court, therefore, is entitled to go into the reasons given by the Sessions Judge in support of his order and to determine for itself whether the order is justified by the facts and circumstances of the case.
19. In my view, the same analogy would apply in a case covered under sections 239 and 245. Therefore, relying on the aforesaid decision of the Supreme Court in the case of State of Karnataka vs L. Muniswamy (supra) I find from the impugned order that no reason at all has been assigned by the trial Court for refusing to discharge the accused persons and, as such, it suffers from serious infirmity."
13. Therefore, in the case at hand the Court below was regarded to give reasons why it found the discharge application moved by the revisionist liable to be rejected. The sole reason which has been mentioned by it is that only prima-facie case is required to be seen to be made out on the basis of evidence on record and it found that there was sufficient evidence on record hence a case was found to be made out under sections 420, 467 and 468 IPC. Relying upon Kamla Devi vs State of West Bengal and others, 2002 All JIC 118 SC it has also been mentioned in the impugned order that if criminal liability is also made out even though matter is of Civil nature, both the Civil as well as criminal proceedings may run side-by-side.
14. This Court is not in agreement with the view expressed by the learned lower Court, because in a case under sections 420, 467 and 468 IPC, the learned Court below ought to have seen as to whether the ingredients which constitute offence under those sections were found to be there in the evidence adduced from the side of the complainant. Though it is evident from the perusal of record that at this stage when the impugned order has been passed, the Court below did not have opportunity to take on record the evidence under section 244 Cr.P.C. which could be led by the complainant side, which could be tested on the touchstone of cross examination by the accused side, whereafter under section 245 (1) Cr.P.C., the Court below could have better opportunity to form opinion, but that apart, even at this stage the Court could have seen the ingredients of the aforementioned sections as to whether they were found consisted in the evidence on record. It would not be out of place to bring on record the ingredients which are necessary to be seen under the aforementioned sections. For constituting an offence under section 420 IPC, the Court below was required to see: (i) there must be deception i.e. the accused must have deceived someone; (ii) that by the said deception the accused must induce a person, (a) to deliver any property or (b) to make, alter or destroy the whole or part of the valuable security or anything which is signed or sealed and which is capable of being converted into a valuable property; (iii) that the accused did so dishonestly. For an offence under section 467 IPC the learned Court below ought to have seen: (i) that the accused committed forgery; (ii) that such forgery was committed in relation to a document which purports to be, (a) a valuable security; or (b) a will; or (c) an authority to adopt a son; or (d) which purports to give authority to any person to make or transfer any valuable security; or (e) to receive the principal, interest or dividends thereon; or (f) to receive or deliver any money movable property or valuable security or any document purporting to be an acquittance or receipt acknowledging the payment of money; or (g) and acquittance or receipt for delivery of any movable property or valuable security. For an offence under section 468 IPC it ought to have seen: (i) that the accused committed forgery; (ii) that he did so intending that the document or electronic record forged shall be used for the purpose of cheating.
15. The other important argument made by the learned counsel for the revisionist is that the present dispute was purely of Civil nature and not of criminal nature, hence the Court below committed an error in not discharging the accused- revisionists. In impugned order no such consideration appears to have been made. This Court has gone through the complaint moved by the private opposite party and finds that it is admitted to both the sides that the disputed property was yet to be partitioned and that without any official partition having been made, the father (deceased long back) had already executed several sale deeds out of the said property in excess of his share starting from the year 1984 onwards, but no opposition was made from the side of the private opposite party by either filing a civil case or a criminal case earlier, and yet the cause of action is being shown since the year 1984 onwards till the year 2011, i.e. the period during which various sale deeds are alleged to have been executed not only by father of the revisionists but one sale deed by the revisionists as well beyond their share. It is interesting to note that even the private opposite party has not disclosed in the complaint as to how much land in excess of the actual share which was falling in the share of the revisionists and their father was sold by the sale deed executed by the present revisionists, which was very essential to be specified while bringing a case against them that they sold deceitfully certain share out of the land which belonged to the private opposite party. It is true that till the property remains a joint property, the co-owners thereof have no right to alienate any specific share till the same is decided by meets and bounds as to which particular co-owner has what particular share in the said property. It is also evident that if the court below was of the view that the property was a joint one, how could it reach the conclusion that there was evidence on record that the revisionist had exceeded their share while executing the sale deed, encroaching upon the land of the private opposite party. It is also obvious that if any such partition was required to be done prior to seeing whether any land was sold in excess of right on the said land of a party, said partition was possible only before the competent Court, i.e. if agricultural land is involved then by a revenue Court and if abadi land is involved, the Civil Court. It appears that a purely civil dispute has been given colour of the criminal nature. If the Court below were to find that without determining as to how much land had been sold in excess of the actual right, how could it be possible to determine as to what wrongful gain had been made by the revisionists and what wrongful loss had been caused to the private opposite party and what deceit was involved in the present case against the private opposite party. In absence of that an appropriate order of discharge could have been passed. It was also argued by the learned counsel for the revisionist that in respect of another Arazi which is also a joint holding, the private opposite party had alienated the land despite the fact that the revisionist had share in that property, but looking to the fact that the same was a civil dispute, no criminal proceeding was initiated by them against the opposite party.
16. Another important argument which was raised by the learned counsel for the revisionist is that cause of action has been shown in the complaint beginning from 18/09/1984 till 19/8/2011 i.e. on as many as nine dates, therefore the said dates on which it is alleged that not only the deceased father of the present revisionists had executed sale deeds beyond his share in the impugned land but also the last sale deed was made by the revisionists as well knowing fully well that the land which was being sold through the said sale deed was much in excess to the land falling in their share in the impugned Arazi. It was vehemently argued by the learned counsel of the revisionist that section 219 of the Criminal Procedure Code would hit framing of charge against the revisionists for the same kind of offence which are alleged to have been committed over a period of 26 years on 11 different dates. It is alleged that only three offences of the same kind committed within one year could be tried together in a single trial. The accused may be tried separately for other offences. This argument appears to have not been raised before the Court below and that is probably the reason why the learned Court below has omitted to notice this flaw in the present case as no finding has been recorded in this regard. The contention of the learned counsel for the revisionist holds force and this point also needs to be taken into consideration by the learned lower Court while deciding as to whether the accused - revisionists deserve to be discharged.
17. This Court realises that the Court below could find it incumbent either on its own or at the request of the complainant to record additional evidence of prosecution under Section 244 Cr.P.C. to convince itself that there was sufficient evidence on record to frame charges under the aforementioned sections against the revisionists. For that if the complainant would adduce evidence under section 244 Cr. P.C., thereafter the learned counsel for the revisionists could cross examine those witnesses if required to repel their contention. In a complaint case which is a warrant trial, the procedure has been laid down in Cr. P.C. and the same was interpreted also by the Hon'ble Supreme Court in Ajoy Kumar Ghose's case which is as follows contained in Paras 22 to 38 and 53 of the judgment:
"22. In the warrant trial instituted otherwise than the police report, the complainant gets two opportunities to lead evidence, firstly, before the charge is framed and secondly, after the charge of course, under section 245 (2) Cr.P.C., a Magistrate can discharge the accused at any previous stage of the case, if he finds the charge to be groundless.
23. Essentially, the applicable sections are section 244 and 245 Cr. P.C., since this is a warrant trial instituted otherwise than on police report. There had to be an opportunity for the prosecution to lead evidence under section 244 (1) Cr. P.C. to summon its witnesses under section 244 (2) Cr. P.C.. This did not happen and instead, the accused proceeded to file an application under section 245 (2) Cr. P.C. on the ground that the charge was groundless.
24. Now, there is a clear difference in section 245 (1) and 245 (2) of Cr. P.C. 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.
25. 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 brings out this position.
26. It will be better to see what is that "previously stage". 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 enquiry or trial to another Magistrate under section 192 Cr. P.C. Under section 201 Cr. P.C., 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.
27. Section 202 Cr.P.C. deals with the postponement of issue of process. Under sub-section (1), he may direct investigation to be made by the police officer or by such other person, as it thinks fit, for the police of deciding whether or not there is sufficient ground for proceeding. Under section 202 (1) (a) Cr. P.C., the Magistrate cannot give such a direction for such an investigation, where he finds that offence complained of triable excessively by the Court of Sessions. Under section 202 (1) (b) Cr. P.C., no such direction can be given were the complaint has been made by the Court.
28. 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 enquiry or investigation ordered under section 202 Cr. P.C., can dismiss the complaint if he finds that there is no sufficient ground for proceeding.
29. On the other hand, if the Magistrate comes to the conclusion that there is sufficient ground for proceeding, he can issue the process under section 204 Cr. P.C.. He can issue summons for the attendance of the accused and in a warrant case, he may issue a warrant, or it thinks fit, a summons, securing the attendance of the accused. Subsections (2), (3), (4) and (5) of section 204 Cr. P.C. are not relevant for our purpose. It is in fact here, that the previously 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 244 Cr. P.C..
30. Under section 244, on the appearance of the accused, the Magistrate proceeds to hear the prosecution and takes 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.
31. 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 to discharge the accused even when the accused appears, in pursuance of the summons or warrant and even before the evidence is led under section 244 Cr. P.C., and makes an application for discharge.
32. In the present case, the Magistrate did not dismiss the complaint under section 203 Cr. P.C. however, since this was a complaint made by the Court, there was no question of examining the complainant or any of his witnesses under section 200 Cr. P.C.. Further there was no question of even issuing any direction for investigation under section 202 Cr. P.C., since the complaint was made by the Court. This is clear from the wordings of section 202 (1) Cr. P.C.. It is as under:
"202. Postponement of issue of process. - (1) *** Provided that no such direction for investigation shall be made -
(a)
(b) Where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under section 200."
33. We have already pointed out that since this was a complaint made by the Court, therefore, there would be no question of there being any examination of the complainant or his witnesses on oath. As has already been stated earlier, the Magistrate simply issued process under section 204 Cr. P.C.
34. When the accused appeared in pursuance to the summons sent to him under section 244 Cr. P.C., the defence came out with an application. There can be no difficulty that the discharge application was perfectly in order at that stage. Therefore, what was available, before the Magistrate besides this discharge application was bare complaint. There was absolutely nothing beyond the complaint available, for the Magistrate to consider the framing of charge. The Magistrate could, undoubtedly, have proceeded under section 245 (2) Cr. P.C., on the basis of the discharge application and discharge him. However, he would have been required to give reasons for discharging at that stage, when no evidence or no material, whatsoever, was available with him, excepting a bare complaint.
35. The Magistrate, in this case, not only dismissed the application, but also proceeded to frame the charge, which order was also in challenge in the writ petition filed before the Division Bench. We have now to see as to whether the Magistrate was justified in dismissing the discharge application and then straightaway to frame a charge under section 246 (1) Cr. P.C.. If under section 245 (2) Cr. P.C., there could be discharge at any previously stage which we have discussed about, there is a necessary sequel, an application could also be made at that stage.
36. The Magistrate has the power to discharge the accused under section 245 (2) Cr. P.C. at any previous stage i.e. before the evidences recorded under section 244 (1) Cr. P.C., which seems to be established law, particularly in view of the decision in Cricket Association of Bengal vs State of West Bengal (1971) 3 SCC 239, as also the subsequent decision of Bombay High Court in Luis de Piedade Lobo vs Mahadev Visvanath Parulekar, 1984 Criminal Law Journal 513 (Bombay). The same decision was followed by Kerala High Court in Manmohan Malhotra vs PM Abdul Salam, 1994 Cr LJ 1555 (Ker.) and Hon'ble Justice K.T. Thomas as the learned Judge then was, accepted the proposition that the Magistrate has the power under section 245 (2) Cr. P.C. to discharge the accused at any previous stage. The Hon'ble Judge relied on a decision of the Madras High Court in Mohd. Sheriff Sahib vs Abdul Karim Sahib, AIR 1928 Madras 129 (1), as also the judgment of the Himachal Pradesh High Court in Gopal Chauhan vs Satya, 1979 Cr LJ 446 (H.P.).
37. We are convinced that under section 245 (2) Cr. P.C. the Magistrate can discharge the accused at any previous stage i.e. even before any evidence is recorded under section 244 (1) Cr. P.C.. In that view, the accused could have made the application. It is obvious that the application has been rejected by the Magistrate. So far, there is no difficulty.
38. However, the real difficulty arises in the trial court's proceeding to frame the charge under section 246 Cr. P.C. it is obvious that at that stage of framing charge in this case, no material, whatsoever, was available with the trial Court, excepting the complaint, which was also not supported by any statement on oath by the complainant or any of his witnesses, which ordinarily are recorded at the stage of section 200 Cr. P.C. In this case, since the complaint was by the Court, no such statement came to be recorded, of the complainant or any of his witnesses present. Here also, the trial Court has committed no mistake. Again, the trial Court has also not made any mistake in issuing the process. If the trial Court felt that there was a ground for proceeding. The real question which comes, however, is as to how after rejecting the application made by the accused under section 245 (2) Cr. P.C., the trial Court has straightaway proceeded to frame the charge.
39. The change is framed under section 246 (1 Cr. P.C. which runs as under:
"246. Procedure where accused is not discharged. - (1) 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, would be adequately punished by him, he shall frame in writing a charge against the accused."
The language of the section clearly suggests that it is on the basis of evidence offered by the complainant at the stage of section 244 (1) Cr. P.C. that the charge is to be framed, if the Magistrate is of the opinion that there is any ground for presuming that the accused has committed an offence triable under this Chapter. Therefore, ordinarily, when the evidence is offered under section 244 Cr. P.C. by the prosecution, the Magistrate has to consider the same, and if he is convinced, the Magistrate can frame the charge."
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53. Now, coming to the facts of this case, it is clear that the opportunity to the accused to cross-examine the witness is lost as the trial Court has straightaway proceeded to frame the charge. In that view, we would have to quash the order, framing the charge. It is accordingly quashed. The matter will now go back before the trial Court where prosecution may offer the witnesses under section 244 (1) Cr. P.C. and the opportunity to cross-examine would be offered to the accused. It is only thereafter, that the trial Court could proceed to decide as to whether the charge is to be framed or not. The charge framed in this case is clearly premature, in view of the reasons given by us. The order framing the charge would, therefore, have to be set aside."
18. From the above position of law, it is absolutely clear that the Court below had full power to discharge the accused under section 245 (2) Cr. P.C. in case it was found by it that on the basis of material available at that stage, i.e. , the complaint as well as the statement of complainant and his witnesses recorded, if any, under section 200 and 202 Cr. P.C., when the accused appeared through counsel (as the liberty was given by this Court in proceedings under section 482 Cr. P.C.), but the Court below has opined that there was sufficient material to frame the charge against the accused - revisionist. This Court has found infirmity in the approach of the Court below as regards non-observance of the ingredients of the aforementioned sections as to whether the evidence till that the stage on record did contain primafacie credible evidence to satisfy those ingredients. The said order has been found to be a non-speaking order, therefore the same deserves to be set aside, with direction to the Court below that it shall consider the matter afresh in the light of above observations and shall pass an speaking order after giving opportunity of hearing to both the sides, and also, if required, after recording evidence under section 244 Cr. P.C. and giving opportunity of cross-examination to the revisionists. It is also made clear that the revisionists have not appeared in person before the Court below. For every criminal trial, the presence of accused before the Court is mandatory, therefore the accused-revisionists are also directed to appear before Court within 30 days from the date of order positively and seek bail. In case he revisionists appear before the trial Court within 30 days from today with a certified copy of this order and apply for bail, their bail application shall be decided in accordance with the law laid down by this Court in the case of Amrawati and another Vs. State of U.P. reported in 2004 (57) ALR 290 as well as judgment passed by Hon'ble Apex Court reported in 2009 (3) ADJ 322 (SC) Lal Kamlendra Pratap Singh Vs. State of U.P. The learned lower Court shall decide discharge application of the revisionists within 30 days thereafter, either on the basis of existing evidence or in case it is found necessary by the Court below or the learned counsel for the private opposite party to adduce evidence under section 244 Cr. P.C. to clarify the facts of the case, after taking into consideration the said evidence and providing opportunity of cross-examination to the accused side.
19. Accordingly this revision is allowed. The impugned order is set aside. Let a copy of this order be transmitted to the court below for immediate compliance.
Order Date:20.04.2018 AU/h