Allahabad High Court
Vinay Kumar vs State Of U.P. And Another on 8 January, 2025
Author: Raj Beer Singh
Bench: Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2025:AHC:3660 Court No. - 73 Case :- APPLICATION U/S 482 No. - 21729 of 2024 Applicant :- Vinay Kumar Opposite Party :- State of U.P. and Another Counsel for Applicant :- Shailendra Kumar Yadav Counsel for Opposite Party :- G.A. Hon'ble Raj Beer Singh,J.
1. Heard learned counsel for the applicant, learned A.G.A. for the State and perused the material available on record.
2. This application under Section 482 Cr.P.C. has been preferred against order dated 03.06.2024, passed by Additional Civil Judge (J.D.), New Court No.11/Judicial Magistrate, Jaunpur in Complaint Case No. 101 of 2014 (Awantika Vs. Narendra Singh and Others), under Sections - 417, 419, 420, 467, 468, 471 I.P.C., Police Station - Line Bazar, District - Jaunpur, whereby the discharge application filed by the applicant under Section - 245 (2) Cr.P.C. has been rejected.
3. Learned counsel for the applicant submitted that applicant is innocent and no prima facie case is made out against him. Applicant is a visually impaired person and that he has been falsely implicated in this case. There is no specific allegation against applicant. Only the signatures of applicant were obtained on some papers by co-accused Narendra Singh and applicant has not committed any cheating or forgery. The trial court has not applied its judicial mind to the facts of the matter and rejected the application of discharge in an arbitrary manner. Learned counsel has referred contents of complaint and facts of the mater and submitted that no prima facie case is made out against applicant and thus, the impugned order is liable to be set aside.
4. Learned A.G.A. has opposed the application and submitted that there is no illegality or perversity in the impugned summoning order.
5. I have considered the rival submissions and perused the record.
6. The provisions of Section 245(2) Cr.P.C. provide that nothing 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. Thus, these provisions deal with cases where complaint against accused is found to be groundless. In case of Ajoy Kumar Ghose Vs. State of Jharkhand (Criminal Appeal No.485 of 2009), decided on 18.03.2009, Hon'ble Apex Court held as under:-
"15. 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. or 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.
16. Now, there is a clear difference in Sections 245(1) and 245(2) of the 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.
17. The situation under Section 245(2) Cr.P.C. is, however, different. There, under sub-Section (2), the Magistrate has the power of discharging the accused at any previous stage of the case, i.e., even before such evidence is led. However, for discharging an accused under Section 245 (2) Cr.P.C., the Magistrate has to come to a finding that the charge is groundless. There is no question of any consideration of evidence at that stage, because there is none. The Magistrate can take this decision before the accused appears or is brought before the Court or the evidence is led under Section 244 Cr.P.C. The words appearing in Section 245(2) Cr.P.C."at any previous stage of the case", clearly bring out this position. It will be better to see what is that "previous stage".
18. The previous stage would obviously be before the evidence of the prosecution under Section 244(1) Cr.P.C. is completed or any stage prior to that. Such stages would be under Section 200 Cr.P.C. to Section 204 Cr.P.C. Under Section 200, after taking cognizance, the Magistrate examines the complainant or such other witnesses, who are present. Such examination of the complainant and his witnesses is not necessary, where the complaint has been made by a public servant in discharge of his official duties or where a Court has made the complaint or further, if the Magistrate makes over the case for inquiry or trial to another Magistrate under Section 192 Cr.P.C. Under Section 201 Cr.P.C., if the Magistrate is not competent to take the cognizance of the case, he would return the complaint for presentation to the proper Court or direct the complainant to a proper Court. Section 202 Cr.P.C. deals with the postponement of issue of process. Under sub-Section (1), he may direct the investigation to be made by the Police officer or by such other person, as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding. Under Section 202(1)(a) Cr.P.C., the Magistrate cannot given such a direction for such an investigation, where he finds that offence complained of is triable exclusively by the Court of sessions. Under Section 202(1)(b) Cr.P.C., no such direction can be given, where the complaint has been made by the Court. Under Section 203 Cr.P.C., the Magistrate, after recording the statements on oath of the complainant and of the witnesses or the result of the inquiry or investigation ordered under Section 202 Cr.P.C., can dismiss the complaint if he finds that there is no sufficient ground for proceeding. On the other hand, if he comes to the conclusion that there is sufficient ground for proceeding, he can issue the process under Section 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 if he thinks fit, a summons, for securing the attendance of the accused. Sub-Sections (2), (3), (4) and (5) of Section 204 Cr.P.C. are not relevant for our purpose. It is in fact here, that the previous stage referred to under Section 245 Cr.P.C. normally comes to an end, because the next stage is only the appearance of the accused before the Magistrate in a warrant- case under Section 244 Cr.P.C. Under Section 244, on the appearance of the accused, the Magistrate proceeds to hear the prosecution and take all such evidence, as may be produced in support of the prosecution. He may, at that stage, even issue summons to any of the witnesses on the application made by the prosecution. Thereafter comes the stage of Section 245(1) Cr.P.C., where the Magistrate takes up the task of considering on all the evidence taken under Section 244(1) Cr.P.C., and if he comes to the conclusion that no case against the accused has been made out, which, if unrebutted, would warrant the conviction of the accused, the Magistrate proceeds to discharge him. The situation under Section 245(2) Cr.P.C., however, is different, as has already been pointed out earlier. The Magistrate thereunder, has the power to discharge the accused at any previous stage of the case. We have already shown earlier that that previous stage could be from Sections 200 to 204 Cr.P.C. and till the completion of the evidence of prosecution under Section 244 Cr.P.C. Thus, the Magistrate can discharge the accused even when the accused appears, in pursuance of the summons or a warrant and even before the evidence is led under Section 244 Cr.P.C., makes an application for discharge."
7. Thus, it appears that the scope of discharge under Section 245(2) Cr.P.C. is extremely limited and under this provision accused may be discharged only if the charge brought by complainant against accused is found to be groundless.
8. In the instant matter, perusal of record shows that the complainant has made allegations that complainant wanted to purchase some property and in that regard co-accused Narendra Singh, who is working as property dealer, has shown a land to her by stating that the same belongs to applicant and accordingly an amount of Rs. One lakh was given as part payment and that on 30.04.2012 sale deed of property (Arazi No. 22/1) was executed but later on, it was revealed that the said land was public land and complainant was cheated in a calculated manner. In view of allegations made in the complaint and statements of witnesses recorded under Section - 202 Cr.P.C., it cannot be said that the impugned order, by which discharge application of applicant has been rejected, is suffering from any such material illegality or abuse of the process, so as to require any interference by this Court by invoking extraordinary powers under Section - 482 Cr.P.C.. Hence, the prayer sought by applicant is refused.
9. However, considering facts of the matter and also the fact that applicant is stated to be a visually impaired person, it is directed that in case applicant appears / surrenders before the Trial Court concerned within a period of four weeks from today and applies for bail, his bail application shall be considered and decided expeditiously in accordance with settled law. For a period of four weeks from today or till the applicant appears / surrenders before the court below, whichever is earlier, no coercive action shall be taken against the applicant in the aforesaid case.
10. The application u/s 482 Cr.P.C. is finally disposed of in above terms.
Order Date :- 8.1.2025 S Rawat