Allahabad High Court
Sudhir Kumar Jain And Another vs State Of U.P. And Another on 7 February, 2018
Equivalent citations: AIRONLINE 2018 ALL 1085
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Judgment reserved on 19.01.2018 Judgment delivered on 07.02.2018 Court No. - 17 Case :- APPLICATION U/S 482 No. - 137 of 2018 Applicant :- Sudhir Kumar Jain And Another Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Akhilesh Chandra Shukla Counsel for Opposite Party :- G.A.,Mr Pramod Kumar Dwivedi Hon'ble Dinesh Kumar Singh-I,J.
1. This application under section 482 Cr. P.C. has been moved with a prayer to quash the order dated 11/12/2017 passed by the Sessions Judge in Criminal Revision No. nil of 2017 and order dated 27/11/2017 passed by the Chief Judicial Magistrate Baghpat upon the discharge application filed by the applicants in Case Crime No. 132 of 2017 under Sections 323, 452, 354-B, 376/511, 504, 506 IPC, PS Baraut, District Baghpat, pending in the Court of Chief Judicial Magistrate. It is further prayed that the charge sheet dated 26/3/2017 be quashed along with the order dated 8/3/2017 passed by the Circle Officer, Baraut and order dated 24/3/2017 passed by the Superintendent of Police, Baghpat and the entire proceedings of Crime No. 132 of 2017 under sections 323, 452, 354-B, 376/511, 504, 506 IPC, PS Baraut, District Baghpat.
2. The learned Counsel for the applicants contended that the opposite party No. 2, Neenu Jain lodged an F.I.R. on 1/2/2017 against applicants No. 1 and 2 that on 27/1/2017 at about 4:30 PM the applicants along with one person entered into the house of the opposite party No. 2 armed with 'lathis' and 'dandas' and started abusing her and threatened that they would see as to how she lives in that house and that they would not leave her in a position to show her face. Saying this, her clothes were pulled which resulted in her blouse getting torn. During the occurrence she received injuries on her forehead and hands and thereafter they pulled her down with an intention to outrage her modesty. When her son and servant came down from the upper story, the applicant No. 2 started beating both of them with 'Danda' which resulted in causing injuries to them. When the applicant No. 1 saw them coming, he tried to strangulate her. Her son, Prayas Jain started screaming, hearing which people assembled there of the locality. Both the assailants/applicants fled from there stating that they would set their house on fire and destroy them. Her son informed the police on 100 number. The applicants challenged the said F.I.R. before High Court by filing writ petition No. 2187 of 2017, in which interim protection was granted to the applicants vide order dated 9/02/2017. Feeling annoyed by the stay of arrest of the applicants, the respondents No. 2 to 9 tried to create false evidence against the applicants. The Investigating Officer recorded the statement of the victim, her son, who did not state about attempt to rape inside the house as alleged in the F.I.R.. After collecting evidence and considering all the facts and circumstances, the Investigating Officer found the offences under section 376/511, 452 and 354 B not made out, rather the case was found made out only under sections 323, 504 and 506 IPC and the charge sheet was submitted under those sections on 27/02/2017, which was forwarded by SHO Baraut to the Circle Officer, Baraut for filing the same in Court for initiating trial. When the Circle Officer saw the charge- sheet under only sections 323, 504, 506 IPC, he ordered re-investigation of the matter, which was handed over to the different police officer of the same police station on 8/3/2017. The SP Baghpat cancelled the previous charge- sheet No. 55/17 dated 27/02/2017 vide order dated 24/3/2070 without assigning any reason which could not have been cancelled by the SP, Baghpat. Further it is mentioned that he could only direct further investigation and not re-investigation, therefore order dated 8/3/2017 passed by the Circle Officer, Baraut and the order dated 24/3/2017 passed by SP, Baghpat were illegal and liable to be quashed. Application under Section 482 Cr.P.C. No.12272 of 2017 (Sudhir Kumar Jain and another vs. State of U.P. And another) was filed by the applicants praying for quashing the order dated 08.0.3.2017 and 24.3.2017. The High Court after hearing the learned counsel for the opposite party No. 2 passed order on 13/7/2017 and finding substance in the submissions of the applicants, it was directed that they could raise all the objections including legal objections under section 227 Cr.P.C. in the court, moving discharge application, which shall be decided by the Court concerned within 5 months and till then no coercive action would be taken against the applicants. The discharge application was directed to be decided within 5 months. In pursuance of the Court's order, the applicants filed discharge application before the Court of Chief Judicial Magistrate, Baghpat, since direction was to file the same within 3 weeks, but the case was not committed by him to the Court of Sessions under section 209 Cr.P.C. and he himself had no right to hear the discharge application. Therefore, the applicants filed an application before the Court of C.J.M to commit the case to the Court of Sessions for consideration of the discharge application of the applicants.. On 26/9/2017 the Chief Judicial Magistrate rejected the said application saying that since the applicants had not got themselves released on bail before moving application for committal of the case, the same deserved to be dismissed. The case was listed before C.J.M. on 27/11/2017 whereon he heard himself on the discharge application and reserved the order which was delivered on 5/12/2017, but the date of judgment has been shown as 27/11/2017 (delivered on back date) dismissing the same, stating that the High Court in its order dated 13/11/2017 had directed the applicants to file discharge application within one month and the same was to be decided within 5 months, but after filing the discharge application the applicants did not argue on the application. The learned CJM did not touch upon the legal objections. Thereafter, after obtaining copy of the order dated 27/11/2017, revision was filed before the revisional court, who was initially satisfied, but later on called for lower Court record from the Court of C.J.M and fixed 11/12/2017 as date for hearing the revision. Even he held vide order dated 11.12.2017 that the revision was not maintainable and passed the order without hearing the counsel for the applicants. He was of the view that the revision ought to have been filed against order dated 20/9/2017 by which the application for committal of the case to the Court of Sessions had been rejected and did not find any illegality in the said order dated 27/11/2017.
3. Learned counsel for the opposite party no.2 Sri Pramod Kumar Dwivedi has put in appearance and has argued in rebuttal that the reliance placed by the learned counsel for the applicants on the case of Vinay Tyagi v. Irshad Ali @ Deepak & Ors., 2013 CrLJ 754 is not applicable in the present case due to facts being different, in which it was held in paragraph no. 48 that "once a report under section 173 (2) of the Code has been filed, it can only be cancelled, proceeded further or case closed by the court of competent jurisdiction and that too in accordance with law. Neither the Police nor a specialised investigating agency has any right to cancel the said report." He further argued that in the present matter the applicants had already filed an application under Section 482 Cr.P.C. No.12272 of 2017 with a prayer to quash the order dated 08.03.2017 passed by the Circle Officer, Baraut and order dated 24.03.2017 passed by the Superintendent of Police, Baghpat and also to quash the charge sheets dated 27.02.2017 and 26.03.2017 alongwith cognizance order dated 01.04.2017 passed by Chief Judicial Magistrate, Baghpat in Case Crime No.132 of 2017 under sections 323, 452, 354B, 376/511, 504, 506 IPC PS Baraut, District Baghpat whereon after consideration, the same was disposed of finally by this Court on 13.7.2017 with a direction that the applicants would move appropriate application for discharge through counsel before the concerned court below within a period of one month from the date of order which was directed to be considered expeditiously in accordance with law by the concerned court preferably within a period of four months. Therefore, the said application was to be disposed of within five months from the date i.e. on 13.7.2017 and in the meantime, coercive action against the applicants was restrained. Therefore, the second application under Section 482 Cr.P.C, that is the present one, would not be maintainable for the same relief because in earlier application also quashing of the charge sheet was prayed. It is further argued that in this case first charge sheet no. 55/17 under sections 323, 504, 506 IPC was submitted on 27.2.2017 which was cancelled by the S.P. Baghpat vide order dated 24.3.2017 in his administrative capacity before the said charge sheet could be filed in Court, ordered re-investigation in this matter. After re-investigation, subsequent charge-sheet no.379/17 under sections 323, 504, 506, 452, 354B, 376, 511 IPC was filed on 27.02.2017 on which cognizance was taken by the Chief Judicial Magistrate Baghpat on 01.04.2017 and after considering both the charge-sheets, this Court has passed an order on the application filed under section 482 Cr.P.C. No.12272 of 2017 on 13.07.2017 and it was not considered proper to quash them, hence this Court may not consider again to quash all those orders in the present application rather special costs should be imposed against the applicants for moving this application for the same prayer. Next, it is argued that another application under Section 482 Cr.P.C. No.33177 of 2017 (Sudhir Kumar Jain and another vs. State of U.P. and another) was moved by the applicants with a prayer to quash the order dated 26.09.2017 passed by Chief Judicial Magistrate, Baghpat in case Crime No.132 of 2017 under sections 323, 452, 354B, 376/511, 504, 506 IPC, P.S. Baraut, District Baghpat and a direction be issued to Chief Judicial Magistrate, Baghpat to commit the aforesaid case to the court of Sessions for hearing. During its consideration, it was argued before this Court that the learned Magistrate had rejected the said application for committal of the case only on the ground that the applicants had neither appeared before the Court nor had they obtained bail, hence their case could not be committed. It was submitted that the applicants had appeared before the Court through counsel as they had moved an application with a prayer to commit the case to the court of Sessions, therefore, it could not be said that they never appeared before the court of Magistrate. Further, it was argued before the Court that it was not mandatory for the applicants to obtain bail as there was no such provision making it mandatory on the part of the accused to first obtain bail. Committal proceedings were procedural in nature which had to be complied with by the court below, therefore, the Magistrate was not right in rejecting the application for committal. It was further contended by the learned counsel for the opposite party no.2 that this Court vide order dated 13.7.2017 had not granted an exemption to the applicants from compliance of section 209 Cr.P.C. which was a mandatory provision. After having considered both the contentions, this Court vide order dated 23.10.2017 had directed the applicants to move a clarification application in this regard before the Bench of this Court which had passed the order dated 13.7.2017 on the application under Section 482 Cr.P.C. No.12272 of 2017 and had directed the office to place the matter before Hon'ble the Chief Justice for nomination. It is contended that in the light of that order of this Court dated 23.10.2017 it was incumbent upon the applicants to seek clarification from the same Bench of this Court as to whether for getting the case committed to the court of Sessions, they needed to appear before court in person and seek bail from the Court of Chief Judicial Magistrate or their presence before the Chief Judicial Magistrate through counsel could be taken as appearance sufficient under law for their case to be committed. The applicants have not sought this clarification from the said Bench of this Court and hence now at this stage, they cannot raise this issue before this Court by filing the present application. He also hammered this point that provisions under sections 207 to 209 Cr.P.C. are mandatory in nature. Section 209-A Cr.P.C. clearly stipulates that the commitment of case to the court of Sessions can be done only after complying with the provisions of sections 207 or 208Cr.P.C., as the case may be and subject to the provisions of the court relating to bail.
4. Thereafter, learned counsel for the applicants again gave reply to the arguments of the learned counsel for the opposite party no.2 that the earlier application under Section 482 Cr.P.C. No.12272 of 2017 was filed for quashing of only three orders i.e. order dated 08.03.2017 passed by Circle Officer, Baraut, order dated 24.03.2017 passed by Superintendent of Police, Baghpat, charge-sheets dated 27.02.2017 and cognizance taken thereon dated 01.04.2017 while the present application under Section 482 Cr.P.C. has been filed for additional cause arisen because of rejection of discharge application by the Chief Judicial Magistrate, hence it cannot be said that this application under Section 482 Cr.P.C. could not have been moved. Secondly, he argued that he did not seek clarification in compliance with the order passed in earlier application under Section 482 Cr.P.C. No.33177 of 2017 dated 23.10.2017 as to whether for getting the case committed to the court of Sessions the applicants needed to be bailed out first by the Magistrate's court, because the discharge application which was pending with the Magistrate till then has now been finally disposed of, hence no purpose would be served in seeking clarification as directed above. Further, he argued that the orders of Circle Officer and Superintendent of Police cannot be treated to be administrative orders because provision under which further investigation can be ordered, has been provided under Section 173 (8) of the Code which reads as under:
"Report of police officer on completion of investigation.
. . . . .
173 (8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub-section(2) has been forwarded to the Magistrate and, whereupon such investigation, the officer-in-charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub-sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub-section (2)."
In view of above provision there could be no direction for re-investigation of the case issued by the Superintended of Police but that of only further investigation hence the said order of re-investigation was against law. Further, he has relied upon the judgment of Supreme Court passed in Criminal Appeal NO.1496 of 2012 (Ajay Kumar Parmar v. Stte of Rajasthan delivered on 27.9.2012, in which following is held in paragraph nos. 9 to 13.
"9. Thus, it is evident from the aforesaid judgment that when an offence is cognizable by the Sessions court, the Magistrate cannot probe into the matter and discharge the accused. It is not permissible for him to do so, even after considering the evidence on record, as he has no jurisdiction to probe or look into the matter at all. His concern should be to see what provisions of the Penal statute have been mentioned and in case an offence triable by the Sessions Court has been mentioned, he must commit the case to the Sessions Court and do nothing else.
10. Thus, we are of the considered opinion that the Magistrate had no business to discharge the appellant. In fact, Section 207-A in the old Cr.P.C., empowered the Magistrate to exercise such a power. However, in the Cr.P.C. 1973, there is no provision analogous to the said Section 207-A. He was bound under law, to commit the case to the Sessions Court, where such application for discharge would be considered. The order of discharge is therefore, a nullity, being without jurisdiction.
11. More so, it was not permissible for the Judicial Magistrate, Sheoganj, to take into consideration the evidence in defence produced by the appellant as it has consistently been held by this Court that at the time of framing the charge, the only documents which are required to be considered are the documents submitted by the investigating agency alongwith the charge-sheet. Any document which the accused want to rely upon cannot be read as evidence. If such evidence is to be considered, there would be a mini trial at the stage of framing of charge. That would defeat the object of the Code. The provision about hearing the submissions of the accused as postulated by Section 227 means hearing the submissions of the accused on the record of the case as filed by the prosecution and documents submitted therewith and nothing more. Even if, in a rare case it is permissible to consider the defence evidence, if such material convincingly establishes that the whole prosecution version is totally absurd, preposterous or concocted, the instant case does not fall in that category. (Vide: State of Orissa v. Debendra Nath Padhi, AIR 2003 SC 1512; State of Orissa v. Debendra Nath Padhi, AIR 2005 SC 359; S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla & Anr., AIR 2005 SC 3512; Bharat Parikh v. C.B.I. & Anr., (2008) 10 SCC 109; and Rukmini Narvekar v. Vijaya Satardekar & Ors., AIR 2009 SC 1013).
12. The court should not pass an order of acquittal by resorting to a course of not taking cognizance, where prima facie case is made out by the Investigating Agency. More so, it is the duty of the court to safeguard the right and interests of the victim, who does not participate in discharge proceedings. At the stage of application of Section 227, the court has to sift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused. Thus, appreciation of evidence at this stage, is not permissible. (Vide: P. Vijayan v. State of Kerala & Anr., AIR 2010 SC 663; and R.S. Mishra v. State of Orissa & Ors., AIR 2011 SC 1103).
13. The scheme of the Code, particularly, the provisions of Sections 207 to 209 Cr.P.C., mandate the Magistrate to commit the case to the Court of Sessions, when the charge-sheet is filed. A conjoint reading of these provisions make it crystal clear that the committal of a case exclusively triable by the Court of Sessions, in a case instituted by the police is mandatory."
5. In the light of the above position of law, he stressed on the point that the Magistrate's court had no power to dispose of the discharge application of the applicants as the power lay with the Sessions Judge only under the provisions of amended Cr.P.C. In view of this position of law, the impugned orders deserve to be set aside because by by that it has disposed of the discharge application of the applicants.
6. After having heard rival contentions of the parties, following points emerged for consideration.
i) Whether cognizance taken by the Chief Judicial Magistrate vide order dated 01.04.2017 is against law because first charge sheet no. 55/17 dated 27.02.2017 was illegally cancelled by the Superintended of Police vide order dated 24.03.2017 and order of re-investigation was issued where-after charge sheet no. 143/17 was filed on 27.03.2017 itself whereon cognizance had been taken?
ii) Whether the Chief Judicial Magistrate, Baghpat could have committed the case of the applicants to the court of Sessions Judge even if applicants accused had put in their appearance through counsel and not in person by seeking bail, so as to facilitate the applicants to move discharge application before the court of Sessions, in compliance with the order of this Court dated 13.07.2017 passed in application under Section 482 Cr.P.C. No.12272 of 2017?
iii) Whether the Chief Judicial Magistrate was empowered to dispose of the discharge application of the accused-applicants on his own, in view of applicants-accused not appearing before it in person for committal of the case? Or
iv) Whether he had any alternative cause available to him?
7. As regards the point no. 1 mentioned above, it is apparent that this point was raised before this Court in application under section 482 Cr.P.C. No.12272 of 2017 but no substance was found in the argument of the learned counsel for the applicants and accordingly, the application was disposed of with a direction that the accused-applicants should move discharge application before the concerned court within the time period for its disposal, hence it would not be appropriate for this court to reconsider this point.
8. As regards point no. 2 mentioned above, this fact is very important to mention that the applicants had moved an application under Section 482Cr.P.C No.33177 of 2017 before this Court seeking quashing of the order of Chief Judicial Magistrate dated 26.09.2017 whereby the application for committal of the case to the court of Sessions Judge was rejected on the ground that the applicants had not got themselves bailed out, hence it would not be held that they appeared before the court concerned, which deprived the Court to commit their case to Sessions Judge for want of compliance of mandatory provisions under sections 207 to 209 Cr.P.C. Upon consideration, the court had already directed, as recorded above, that the applicants ought to have sought clarification from the concerned Bench as to whether, for getting their cases committed, they needed to be bailed out first or not by appearing before the Court of Chief Judicial Magistrate in person and seek bail. But the applicants on their own did not seek the said clarification and kept the matter pending. It cannot be held that if they had tried to press the matter to be laid before the said Bench, the same would not be directed to be placed before the said Bench. The reply of the learned counsel for the applicants in this regard is that now because of the discharge application which was meant to be heard by the Sessions Court only, having been dismissed illegally by the learned Chief Judicial Magistrate there was no requirement left to seek clarification, as a new ground has arisen which necessitated moving this application under Section 482Cr.P.C. This Court is not convinced with the said argument of the learned counsel for the applicants because the said question is still very much required to be considered. There is no doubt that the Chief Judicial Magistrate has no power to hear the discharge application in the present case it being triable by Sessions court exclusively, as under the amended Cr.P.C., Magistrate has no option but to commit the case to the court of Sessions without exercising his mind as to whether any offence triable by Court of Sessions is made out or not because that would be the domain of Sessions Court. The learned court of Chief Judicial Magistrate found that he was deprived from committing the case to the court of Sessions for want of compliance of sections 207, 209 Cr.P.C. which provided delivering the copies of document of incriminating evidence, relied upon by the prosecution, to the accused because of their non-appearance before it. Section 209 (a) Cr.P.C. cited above clearly mentions that the said provision is mandatory and the commitment of case needs compliance of provisions of sections 207, 208 Cr.P.C. subject to the provisions of bail under the Code. Therefore, the accused-applicants may not be given benefit of their own fault of not appearing before the court below for moving an application for committal after appearing in person and getting themselves bailed out. From the law cited above, nowhere it emerges to be the position of law that the accused may get their case committed without following the provisions of bail.
9. Now this Court comes to the last point for consideration, that is, whether the Chief Judicial Magistrate was empowered to dispose of the discharge application. [Answer would be in the negative, because in the light of position of law cited above, Chief Judicial Magistrate being a Magisterial court has no power to consider the discharge application in a case which is exclusively triable by the court of Session. If the court below was not able to procure the attendance of the applicants-accused and the period of protection granted to the accused by this Court vide order dated 13.7.2017 on Application under section 482 Cr.P.C. No.12272 of 2017 had expired, it was well within the power to secure their presence by issuing non-bailable warrants against them and by resorting to other coercive methods provided under law and thereafter commit the case to the court of Sessions Judge, but it could not have decided the discharge application at his end.
10. The impugned order would indicate that, in it, it has been mentioned by the learned Magistrate that the learned counsel for the applicants had moved an application under section 239 Cr.P.C. on 11.8.2017 and thereafter another application was moved on 20.9.2017 to the effect that on the basis of the reasons mentioned by them in application moved under Section 239 Cr.P.C. and in the light of orders passed by the High Court dated 8.6.2017, file of this case should be committed to the court of Sessions Judge for trial. Further, it is mentioned in the said order that this fact would be worth mentioning that this application was moved against the order dated 27.11.2017 and the application relating to commitment of the case to the Court of Session was moved on 20.9.2017, which was rejected by the court below on 26.9.2017. Against that order no revision was preferred, rather the revision was preferred against the order dated 27.11.2017 which pertains to discharge of the accused-applicants. In the said order dated 27.11.2017 no legal lacuna was found and hence at the stage of admission itself, learned District Judge dismissed the revision vide order dated 11.12.2017 filed against the order dated 27.11.2017 passed by the Chief Judicial Magistrate.
11. A perusal of order dated 27.11.2017 passed by Chief Judicial Magistrate, Baghpat would indicate that the said court had no jurisdiction to dispose of application seeking discharge by the accused-applicants, but the accused-applicants had not got themselves bailed out and without being bailed out, on various other grounds they were moving different applications with a view to delaying the disposal of the said case, on the said basis, which it recorded that there was no substance in the ground to discharge the accused-applicants and accordingly dismissed the same.
12. It is apparent from the above impugned order that the learned Chief Judicial Magistrate, Baghpat has passed the impugned order dated 27.11.2017 out of desperation due to the fact that the accused-applicants were not appearing before the Court by getting themselves bailed out and moved an application for commitment of case in accordance with law to the Court of Sessions which compelled him to dismiss the application of discharge itself and which has been upheld by the revisional court vide order dated 11.12.2017. Both the orders are not within the purview of law and are in violation of the provisions of Cr.P.C., which mandates that no discharge application can be disposed of by a Magistrate court where the offences are exclusively triable by the Court of Sessions, hence both these orders deserve to be set aside.
13. This Application under section 482 Cr.P.C. deserves to be allowed and is accordingly allowed. The order of Chief Judicial Magistrate dated 27.11.2017 and that of the revisional order dated 11.12.2017 are set aside with a direction that the accused-applicants shall appear before the Chief Judicial Magistrate, Baghpat within one month from today and shall get themselves bailed out in accordance with the provisions of law and after their appearance before the court below, the Chief Judicial Magistrate, Baghpat shall commit the case forthwith to the Court of Session before which a discharge application may be moved by the applicants-accused to be decided by it in accordance with law.
Order Date:07.02.2018 AU