Allahabad High Court
Lalman & Another vs State Of U.P. & Another on 18 February, 2021
Equivalent citations: AIRONLINE 2021 ALL 404
Author: Vikas Kunvar Srivastav
Bench: Vikas Kunvar Srivastav
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Court No. - 30 [CASE :- U/S 482/378/407 NO. - 776 OF 2021] Applicant :- Lalman & Another Opposite Party :- State Of U.P. & Another Counsel for Applicant :- Nijam Ahamad Counsel for Opposite Party :- G.A. Hon'ble Vikas Kunvar Srivastav,J.
1. The case is called out.
2. The present application under Section 482 Cr.P.C. pressed before the Court by learned counsel for the applicants, Sri Nijam Ahmad, on behalf of the applicants - Lalman and Durga Prasad. A copy of the application has already been served in the office of learned G.A., pursuant thereto learned A.G.A. appear to protest the same.
3. Heard learned counsel for the parties and perused the materials available on record, the prayer made in the application, invoking the inherent jurisdiction of the court under Section 482 Cr.P.C. is to the effect, to quash the order dated 16.12.2020 passed by learned Sessions Judge, Ambedkar Nagar in Criminal Revision No.30/2020 (Umesh Vishwakarma & Ors. Vs. State of U.P.) and order dated 21.1.2020 passed by learned Judicial Magistrate, Ambedkar Nagar in Criminal Case No.4265/2019 (State Vs. Sabha Narayan & Ors.) arising out of Case Crime No.30/2019 under Sections 420, 467, 468, 471 of I.P.C., registered at Police Station- Jalalpur, District- Ambedkar Nagar.
The Factual Matrix
4. The materials available on record reveals that the applicant nos.1 and 2 are amongst the accused involved in Case Crime No.30/2019 referred hereinabove, registered under Sections 420, 467, 468 and 471 I.P.C. The impugned order is passed by the learned Judicial Magistrate, Ambedkar Nagar on 21.1.2020 on an application of the present applicants along with the other co-accused Umesh Vishwakarma and Narendra Dev moved on 7.12.2019 under Section 239 Cr.P.C. for their discharge.
5. Learned counsel for the applicants submitted that, the said application for discharge was moved before the court, pursuant to the order of this Court passed over application under Section 482 Cr.P.C. seeking quashing of the impugned charge sheet dated 10.6.2019 filed in Case Crime No.30/2019 under Sections 420, 467, 468 and 471 I.P.C., the relevant portion of the said order is reproduced hereinunder:-
"After arguing the matter up to some length, learned counsel for the applicants submit that he does not want to press this application on merit and he confines his prayer only to the extent that applicants may be permitted to move discharge application through counsel and suitable directions may be issued for expeditious disposal of the same.
Learned A.G.A. has no objection in grant of aforesaid prayer.
In view of above, it is provided that applicants permitted to move their discharge application(s) through counsel within four weeks' from today and in case any such application(s) are being filed, same shall be heard and decided expeditiously after hearing the parties, in accordance with law, by means of a reasoned and speaking order.
Till the aforesaid period of four weeks' and during pendency of discharge application, no coercive steps shall be taken against the applicants in the aforesaid case."
Discharge application on the ground of sameness of matter in two FIRs.
6. Pursuant to the above order of this Court, discharge application dated 7.1.2019 under Section 239 Cr.P.C. (Annexure No.7), was moved before the Court of Magistrate, Ambedkar Nagar, where the case was pending. The applicants set forth, before the court, the grounds and reasons for their discharge that there is a crime case no.371/2016 registered under Section 420 and 465 I.P.C. already lodged in respect of the 'sale deed dated 3.11.2016' by one Gaurav Kumar on 26.12.2016 against the same accused (present accused-applicants) with the other co-accused persons in same Police Station- Jalalpur, District - Ambedkar Nagar. After due investigation, charge-sheet was filed therein under Section 420 and 465 I.P.C. which is pending in the Court of Civil Judge (Senior Division)/Fast Track/A.C.J.M., State Vs. Umesh Vishwakarma & Ors., bearing Criminal Case No.192/2018. The said criminal case is at the stage of evidence. In the said criminal case, the charge-sheet filed by the investigating officer contains the name of 'Meda Devi' in the column of witnesses, alongwith her statement recorded by the Investigating Officer under Section 161 Cr.P.C.
7. Despite the pendency of aforesaid criminal case, Meda Devi, the complainant of the present case, on 2.2.2019 has filed another criminal case in relation to the said sale deed in question dated 3.11.2016 against the applicants and other co-accused Sabha Narayan, Umesh Vishwakarma, Mahendra Yadav, Narendra Dev bearing Case Crime No.30/2019 under Section 420, 467, 468, 471 I.P.C. in Police Station-Jalalpur, District- Ambedkar Ngar. The investigating officer submitted charge-sheet dated 10.6.2019 in the court after investigation.
8. The present applicants took another ground in their application for discharge dated 7.1.2019 that Section 300 Cr.P.C. provisions, no one can be punished twice for the same offence and one cannot be tried twice for the same offence. Moreover, the Sections 219 and 220 Cr.P.C. provides that if an offence is committed in the same manner within one year, then for all such offences only one charge should be framed by the Court.
9. The said application for discharge under Section 239 Cr.P.C. moved by the present applicants through their counsel was entertained by the Court of Judicial Magistrate, Ambedkar Nagar and disposed of vide a reasoned and elaborated order on 21.1.2020 (impugned in this application). Learned Judicial Magistrate has held that under Section 239 Cr.P.C. at the stage of framing the charge, the court is required to consider the plea of accused for discharge in the light of materials available on record. The court is required to hear prosecution as well as accused. If it finds the charges to be groundless against the accused, shall discharge him recording reasons for doing so. Learned Judicial Magistrate further held that when police files a final report under Section 173 Cr.P.C., it means that charge sheet contains essential allegations coupled with prima facie evidence which, if proved, will constitute a punishable offence. Learned Magistrate did not find the charge-sheet groundless. He has further held that at the stage of cognizance or framing of charge, the prosecution is not burdened to prove the evidences sufficient to convict the accused, and only this much is sufficient for the prosecution that there is prima facie evidence against the accused persons on record. Learned court of Magistrate further observed that in this case at the stage of cognizance, the court has already found prima facie evidences against the present accused-applicants for trial and thus have summoned them under Section 420, 467, 468 and 471 I.P.C.
10. The aforesaid order of the Judicial Magistrate, Ambedkar Nagar dated 21.1.2020, challenged in revision before the Court of Sessions Judge, Ambedkar Nagar who finally decided the same vide order dated 16.12.2020, (impugned in this application). The impugned order dated 16.12.2020 is a reasoned and speaking order on the issue of discharge of accused-applicants. Learned Sessions Judge in his order dated 16.12.2020 has elaborately discussed the scope and ambit of the Section 239 Cr.P.C. and the extent to which the Magistrate is required under the law in deciding the issue of discharge. He relied on the cases Prabhunath Yadav Vs. State of U.P. reported in 2008 (60) ACC 59, Ramesh Singh Vs. State of Bihar reported in AIR 1977 (SC) 2018, Rajbeer Singh Vs. State of U.P. & Anr. reported in 2006 (55) ACC 318 (SC), Haresh & Ors. Vs State of Chattisgarh reported in 2009 Cr.L.J. 1383 and State of Rajasthan Vs. Fateh Karan Mehdu reported in AIR 2017 SC 796 and concluded that in a criminal case charge can be framed even on the basis of serious suspicion against the accused and while framing of charge, the Court is required to consider only the evidences collected by the prosecution, whether they are sufficient to raise suspicion against the accused that, the offence is committed by him. Learned Sessions Judge in para-9 of the impugned order has discussed the case of prosecution, in present Case Crime No.30/2019 lodged by Meda Devi, (the opposite party no.2). The said opposite party no.2, Meda Devi, who is the complainant of the case, has reported to the police that the land comprising Gata No.470 of area 0.003 hectare and Gata No.471 of area 0.003 hectare was purchased by her through sale deed, executed on 31.3.1980 by Sabha Narayan, the co-accused. On the said land, the opposite party no.2, is in possession and use by constructing her residential house and resides there with family. Since mutation proceeding was not concluded, the accused Sabha Narayan, Umesh Vishwakarma, Lalman, Durga Prasad, Mahendra Yadav and Narendra Dev in collusion with each other alienated the same land again through sale deed on 3.11.2016 deceitfully, and thus affected the right title and interest of the complaint. Learned Sessions Judge agreeing from the findings of Judicial Magistrate, Ambedkar Nagar in his order dated 21.1.2020, observed that at this stage, atleast the statement of complainant of the case stands unrebutted as well as the two sale deeds of same property in question also stand unrebutted, therefore, the facts, materials and the circumstances of the present Criminal Case No.30-2019, prima facie stands triable against the revisionist accused separately than that of the criminal case lodged by Gaurav Kumar in Case Crime No.371/2016.
Whether the impugned orders of court below suffer from any vice.
11. On the above discussion, learned court of revision found that there are strong ground to frame charges against the accused persons. Both the impugned orders dated 21.1.2020 passed by learned court of Judicial Magistrate, Ambedkar Nagar and that passed in revision by the Court of Sessions Judge, Ambedkar Nagar on 16.12.2020 are well reasoned and speaking orders, in conformity with the requirement of law as provisioned under Section 239 Cr.P.C. Section 239 Cr.P.C. runs as under:-
"239. When accused shall be discharged. If, upon considering the police report and the documents sent with it under section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing."
12. The present case instituted on the basis of police report, therefore, the trial is to run under the provision of Criminal Procedure Code, 1973 from Section 238 to 243 Cr.P.C. Section 239 of the Cr.P.C. provides that before framing of charges against the accused person, he can be discharged under Section 239 Cr.P.C. From its bare reading, the essential ingredients for discharge are obviously as follows:-
The court have to consider the charge sheet and documents appended thereto by the police under Section 173 Cr.P.C.
The Magistrate may if deems fit examine the accused, thereafter, the arguments of both the sides namely the prosecution and the accused should be heard. If the court finds the ground against the accused are baseless and there is no evidence available against the accused. In other words the court considers prima facie case against the accused then the accused.
13. In the present case, the application under Section 239 Cr.P.C. was placed before the Court of Magistrate on 7.1.2019, by the present accused applicants alongwith other co-accused, they availed opportunity of hearing, they had not proposed any evidence in their favour. However, the only ground set-forth for their discharge is that one crime case bearing no.371/2016 lodged by Gaurav Kumar in relation with the same sale deed dated 3.11.2016 has again been made subject matter of the present Case Crime No.30/2019 lodged by the opposite party no.2, Meda Devi. The application itself made it clear that by virtue of execution of sale deed dated 3.11.2016 which is forged and deceitful as alleged by Gaurav Kumar, because the boundary of land comprising his shops sold to him earlier in the year 1980, is also included in the subsequent sale deed dated 3.11.2016. Likewise, Meda Devi also is aggrieved independently, from the sale deed dated 3.11.2016 as the land, purchased by her from the accused, Sabha Narayan in the year 1980 through a duly registered sale deed, has again been included in the sale deed 3.11.2016. As such Gaurav Kumar and Meda Devi both are aggrieved from the deceitful execution of sale deed dated 3.11.2016 by the accused Sabha Narayan, independently and, they have their independent, separate and individual right to protect their property, vested in them, against the criminal act of execution of sale deed dated 3.11.2016 deceitfully by the accused-applicants. In the case of Gaurav Kumar, charge sheet has already been submitted, the accused have put their appearance in that case, which is being posted at the stage of evidence. The Case Crime No.30/2019 lodged by the opposite party no.2, Meda Devi is also an independent case, the charge sheet has been submitted after due investigation and the courts below have concurrently found sufficient ground for framing of charges, so as to commence the trial. They have committed no wrong, there is no illegality. The two criminal cases against the same execution of same sale deed dated 3.11.2016 and charge sheet submitted in both the cases are not suffering from the vice of sameness.
14. In a case having similar circumstance, 'Surender Kaushik & Ors. Vs. State of U.P. & Ors.' reported in 2013 (5) SCC 148, Hon'ble the Supreme Court in its para-25 observed as under:-
"25. In the case at hand, the appellants lodged the FIR No. 274 of 2012 against four accused persons alleging that they had prepared fake and fraudulent documents. The second FIR came to be registered on the basis of the direction issued by the learned Additional Chief Judicial Magistrate in exercise of power under Section 156(3) of the Code at the instance of another person alleging, inter alia, that he was neither present in the meetings nor had he signed any of the resolutions of the meetings and the accused persons, five in number, including the appellant No. 1 herein, had fabricated documents and filed the same before the competent authority. FIR No. 442 of 2012 (which gave rise to Crime No. 491 of 2012) was registered because of an order passed by the learned Magistrate. Be it noted, the complaint was filed by another member of the Governing Body of the Society and the allegation was that the accused persons, twelve in number, had entered into a conspiracy and prepared forged documents relating to the meetings held on different dates. There was allegation of fabrication of the signatures of the members and filing of forged documents before the Registrar of Societies with the common intention to grab the property/funds of the Society. If the involvement of the number of accused persons and the nature of the allegations are scrutinized, it becomes crystal clear that every FIR has a different spectrum. The allegations made are distinct and separate. It may be regarded as a counter complaint and cannot be stated that an effort has been made to improve the allegations that find place in the first FIR. It is well-nigh impossible to say that the principle of sameness gets attracted. We are inclined to think so, for if the said principle is made applicable to the case at hand and the investigation is scuttled by quashing the FIRs, the complainants in the other two FIRs would be deprived of justice. The appellants have lodged the FIR making the allegations against certain persons, but that does not debar the other aggrieved persons to move the court for direction of registration of an FIR as there have been other accused persons including the complainant in the first FIR involved in the forgery and fabrication of documents and getting benefits from the statutory authority. In the ultimate eventuate, how the trial would commence and be concluded is up to the concerned court. The appellants or any of the other complainants or the accused persons may move the appropriate court for a trial in one court. That is another aspect altogether. But to say that it is a second FIR relating to the same cause of action and the same incident and there is sameness of occurrence and an attempt has been made to improvise the case is not correct. Hence, we conclude and hold that the submission that the FIR lodged by the fourth respondent is a second FIR and is, therefore, liable to be quashed, does not merit acceptance."
15. The learned counsel for the applicants could not succeed in bringing the impugned orders in the ambit of abuse of power or suffering from any legal bar so as to invoke the extraordinary inherent power of the High Court under Section 482 Cr.P.C.
16. The Hon'ble Apex Court in the case of Inder Mohan Goswami and Another Vs. State of Uttaranchal and Ors. reported in (2007) 12 SCC 1, in paragraph nos.26 and 27 held as under:-
26. "In R.P. Kapur Vs. State of Punjab reported in AIR 1960 SC 866, this Court summarized some categories of cases where inherent power can and should be exercised to quash the proceedings:-
(i) where it manifestly appears that there is a legal bar against the institution or continuance of the proceedings;
(ii) where the allegations in the first information report or complaint taken at their fact value and accepted in their entirety do not constitute the offence alleged.
(iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge."
27. The powers possessed by the High Court under section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. The court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court should normally refrain from giving a prima facie decision in a case where all the facts are incomplete and hazy; more so, when the evidence has not been collected and produced before the court and the issues involved, whether factual or legal, are of such magnitude that they cannot be seen in their true perspective without sufficient material. Of course, no hard and fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceedings at any stage."
17. On the discussions made hereinabove, when the learned counsel for the applicants has not shown the instance of abuse of power or error of law particularly as to the lack of allegations which constituted an offence committed by the applicants against the opposite party no.2, the complainant of the Case Crime No.30/2019, there is no reason to interfere in both the impugned order dated 21.1.2020 and 16.12.2020 passed by the court's below under Section 239 of the Cr.P.C.
18. The applicants wants only to stifle the proceeding of the case genuinely filed and legally running, therefore, the extraordinary inherent power of the court under Section 482 Cr.P.C. cannot be exercised to fulfill his purpose, the application is therefore, REJECTED and disposed of finally.
19. The Deputy Registrar (Criminal) is directed to communicate the order of Court immediately through e-mail to the trial court through the District and Session Judge, Ambedkar Nagar in addition to ordinary course of communication forthwith.
Order Date :- 18.2.2021 Gaurav/-
[Vikas Kunvar Srivastav,J.]