Allahabad High Court
Satyendra Kumar Upadhyay And 2 Ors vs State Of U.P. And Another on 11 December, 2019
Equivalent citations: AIRONLINE 2019 ALL 2414
Author: Manju Rani Chauhan
Bench: Manju Rani Chauhan
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 76 Case :- APPLICATION U/S 482 No. - 45590 of 2019 Applicant :- Satyendra Kumar Upadhyay And 2 Ors Opposite Party :- State of U.P. and Another Counsel for Applicant :- Ashish Kumar Gupta Counsel for Opposite Party :- G.A. Hon'ble Mrs. Manju Rani Chauhan,J.
Heard Mr. Ashish Kumar Gupta, learned counsel for the applicant and the learned Additional Government Advocate for the State as well as perused the material available on record.
This application under Section 482 Cr.P.C. has been filed to quash the order dated 12th July, 2019 passed by the Sessions Judge, Varanasi in Criminal Revision No. 108 of 2019 (Bhawani Shankar Upadhayay Vs. State of U.P. & Others), order dated 15th March, 2019 passed by the Additional Chief Judicial Magistrate, Court No.10, Varanasi in Case No. 1119 of 2016, arising out of Case Crime No. 217 of 2015, under Sections 323, 354, 504 and 506 I.P.C., Police Station-Jansa, District-Varanasi as well as the entire proceedings of the aforesaid criminal case no. 1119 of 2016 pending in the Court of Additional Chief Judicial Magistrate, Court No.10, Varanasi.
Under the order dated 15th March, 2019, the application made by the applicants under Section 239 Cr.P.C. for seeking discharge in Criminal Case No. 1119 of 2016 has been rejected by the Additional Chief Judicial Magistrate, Court No.10, Varanasi. Feeling aggrieved by the said order, the applicants filed Criminal Revision No. 108 of 2019 and the same has also been dismissed under the impugned order dated 12th July, 2019 passed by the Sessions Judge, Varanasi.
Learned counsel for the applicant submits that the opposite party no.2 has lodged a first information report against the applicants on 21st November, 2015 for the incident dated 28th September, 2015, which has been registered as Case Crime No. 217 of 2015. Against the said first information report, the applicants have filed Criminal Misc. Writ Petition No. 28705 of 2015 before the High Court. The said writ petition has been disposed of by the Writ Court directing the applicants/petitioners to appear before the concerned court within 30 days and apply for bail. The Court concerned inturn directed to decide the same in accordance with law. Pursuant to the said order, the applicants surrendered before the court below and have been granted bail. After investigation, the Investigating Officer has submitted charge-sheet against the applicants under Sections 323, 354, 504 and 506 I.P.C. vide charge-sheet dated 19th December, 2015. Before acceptance of the said charge-sheet, applicant no.2 has moved an application under Section 173 (8) Cr.P.C. before the Senior Superintendent of Police, Varanasi for further investigation. On the aforesaid application moved by applicant no.2, the Senior Superintendent of Police directed the Station House Officer concerned to conduct further investigation in Case crime No. 217 of 2015. After further investigation, the Investigating Officer has confirmed the earlier charge-sheet dated 19th December, 2015 and concluded the further investigation on 24th August, 2016 and has submitted the earlier charge-sheet dated 19th December, 2015 before the Court concerned on which the Court has taken cognisance vide order dated 3rd March, 2016 and directed to register the case, which has been registered as Case No. 119 of 2016 (State Vs. Bhawani Shankar Upadhayay & Others). Thereafter the applicants have filed an application for seeking discharge under Section 239 Cr.P.C., which has been dismissed by the Additional Chief Judicial Magistrate, Court No.10, Varanasi vide order dated 15th March, 2019. Against the said order, applicants have filed Criminal Revision, which has also been dismissed by the Sessions Judge, Varanasi vide order dated 12th July, 2019. It is against these two orders that the present application has been filed. Learned counsel for the applicants submits that both the impugned orders are totally illegal, arbitrary and against the provisions of the Code. He next submits that in the discharge application as well as on the memo of revision, applications have categorically stated that no such incident has taken place as alleged by opposite party no.2. The applicants have also stated that there is civil dispute pending between the parties and in order to harass the applicants, opposite party no.2 unnecessary dragged the applicants in the present criminal case. The facts and grounds taken by the applicants have not been taken into consideration by both the courts below in passing the impugned orders. Therefore, both orders are perverse and liable to be set aside.
Per contra, learned A.G.A. for the State has opposed the submission made by the learned counsel for the applicant by submitting that the impugned orders passed by both the courts below are based on correct finding of fact and prima facie they had strong suspicion to initiate criminal proceedings against the applicant. Therefore, the impugned order is not liable to be set aside.
I have considered the submissions made by the learned counsel for the applicant and learned A.G.A. for the State as well as have gone through the records of the present application along with the impugned order.
It shall be advantageous to refer to the observations made by the Hon'ble Apex Court in the case of State of Bihar vs. Ramesh Singh reported in 1977 (4) SCC 39 which are as follows :-
"4. Under S. 226 of the Code while opening the case for the prosecution the prosecutor has got to describe the charge against the accused and State by what evidence he proposes to prove the guilt of the accused. Thereafter, comes at the initial stage, the duty of the Court 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. If ?the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing?, so enjoined by s. 227. If, on the other hand, ?the Judge is of opinion that there is ground for presuming that the accused has committed an offence which ?...................................
(b) in exclusively triable by the court, he shall frame in writing a charge against the accused,? as provided in S. 228.
Reading the two provisions together in juxtaposition, as they have got to be, it would be clear 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. The presumption of the guilt of the accused which is to be drawn at the initial stage is not in the sense of the law governing the trial of criminal cases in France where the accused is presumed to be guilty unless the contrary is proved. But it is only for the purpose of deciding prima facie whether the court should proceed with the trial or not. If the evidence which the Prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebutted by the defence, if any, cannot show that the accused committed the offence, there will be no sufficient ground for proceeding with the trial. An exhaustive list of the 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 and not under S. 227."
Aforesaid case was again referred to in another Apex Court's decision Superintendent and Remembrancer of Legal Affairs, West Bengal Versus Anil Kumar Bhunja reported in AIR 1980 (SC) 52 and the Apex Court proceeded to observe as follows:
?18. It may be remembered that the case was at the stage of framing charges; the prosecution evidence had not yet commenced. The Magistrate had, therefore, to consider the above question on a general consideration of the materials placed before him by the investigating police officer. At this stage, as was pointed out by this Court in State of Bihar v. Ramesh Singh, AIR 1977 SC 2018, the truth, veracity and effect of the evidence which the prosecutor 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 the stage of Section 227 or 228 of the Code of Criminal Procedure, 1973. 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 against the accused in respect of the commission of that offence."
In yet another case of Palwinder Singh Vs. Balvinder Singh reported in AIR 2009 SC 887 the Apex Court had the occasion to reflect upon the scope of adjudication and its ambit at the time of framing of the charge and also about the scope to consider the material produced by the accused at that stage. Following extract may be profitably quoted to clarify the situation:
?12. Having heard learned counsel for the parties, we are of the opinion that the High Court committed a serious error in passing the impugned judgment insofar as it entered into the realm of appreciation of evidence at the stage of the framing of the charges itself. The jurisdiction of the learned Sessions Judge while exercising power under Section 227 of the Code of Criminal Procedure is limited. Charges can be framed also on the basis of strong suspicion. Marshalling and appreciation of evidence is not in the domain of the Court at that point of time. This aspect of the matter has been considered by this Court in state of Orissa v. Debendra Nath Padhi, (2005) 1 SCC 568 wherein it was held as under:
?23. As a result of the aforesaid discussion, in our view, clearly the law is that at the time of framing charge or taking cognizance the accused has no right to produce any material. Satish Mehra's Case holding that the trial Court has powers to consider even materials which the accused may produce at the stage of Section 227 of the Code has not been correctly decided.?
The following observations made by the Hon'ble Supreme Court in the case of Sanghi Brothers (Indore) Pvt. Ltd. v. Sanjay Choudhary reported in AIR 2009 SC 9 also reiterated the same position of law :-
?10. After analyzing the terminology used in the three pairs of sections it was held that despite the differences there is no scope for doubt that at the stage at which the Court is required to consider the question of framing of charge, the test of a prima facie case to be applied.
11. The present case is not one where the High Court ought to have interfered with the order of framing the charge. As rightly submitted by learned counsel for the appellant, even if there is a strong suspicion about the commission of offence and the involvement of the accused, it is sufficient for the Court to frame a charge. At that stage, there is no necessity of formulating the opinion about the prospect of conviction. That being so, the impugned order of the High Court cannot be sustained and is set aside. The appeal is allowed."
In fact while exercising the inherent jurisdiction under Section 482 Cr.P.C. or while wielding the powers under Section 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 reported in AIR 1960 SC 866 and State of Haryana Vs. Bhajan Lal reported in 1992 SCC(Cr.) 426 make the position of law in this regard clear recognizing certain categories by way of illustration which may justify the quashing of a complaint or charge sheet.
Illumined by the case law referred to herein above, this Court has adverted to the entire record of the case.
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 F.I.R. and the material collected by the Investigating Officer on the basis of which the charge sheet has been submitted 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 orders 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.
The prayer for quashing or setting aside the impugned orders 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.
The present applicant lacks merit and is accordingly rejected.
(Manju Rani Chauhan, J.) Order Date :- 11.12.2019 Sushil/-