Allahabad High Court
Asha Devi vs State Of U.P. And Another on 25 February, 2025
Author: Raj Beer Singh
Bench: Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Reserved Neutral Citation No. - 2025:AHC:26595 Court No. - 73 Case :- APPLICATION U/S 482 No. - 19565 of 2024 Applicant :- Asha Devi Opposite Party :- State of U.P. and Another Counsel for Applicant :- Ankur Jaiswal,Sangam Singh Counsel for Opposite Party :- Ashutosh Tiwari,G.A. Hon'ble Raj Beer Singh,J.
1. Heard learned counsel for the applicant and learned A.G.A. for the State.
2. This application under Section 482 Cr.P.C. has been preferred against the order dated 14.05.2024, passed by learned A.C.J.M., Court No.10, Azamgarh, in Complaint Case No.11 of 2022 (Sarita Devi Vs. Asha Devi), under Section 420 I.P.C., Police Station- Deogaon, District- Azamgarh, whereby the application filed by the applicant seeking discharge has been rejected.
3. It has been submitted by learned counsel for the applicant that impugned order is against facts and law and thus liable to be set aside. It is a complaint case and in complaint case application for discharge filed on behalf of accused has to be decided under Section 245 Cr.P.C., whereas the learned trial court has decided the discharge application of the applicant under Section 239 Cr.P.C. It is further submitted that the dispute between the parties is purely civil in nature and no prima-facie case under Section 420 IPC is made out and that applicant was liable to be discharged but learned Magistrate has not considered facts and law in correct perspective and committed error by rejecting that application under Section 239 Cr.P.C. Learned counsel for the applicant has referred case of Ajoy Kumar Ghose Vs. State of Jharkhand & Another 2009 0 Supreme (SC) 497 and Sunil Mehta & Another Vs. State of Gujarat & Another 2013 0 Supreme (SC) 177, and submitted that impugned order is liable to be set aside.
4. Learned counsel for the opposite party no.2 submitted that earlier the applicant has filed an application under Section 482 Cr.P.C. before this Court for quashing of proceedings of the aforesaid case, wherein the said prayer was refused and the applicant was given liberty to move discharge application before the trial Court concerned. The applicant has filed discharge application and in that application there was no such averment as to under which provision the said application is being filed. That application has been decided by the learned trial Court by a reasoned order, considering entire facts of the matter. It is further submitted that merely because in the impugned order the trial Court has mentioned section 239 Cr.P.C., it would not affect the merits of the matter as nomenclature of application is not material. It was submitted that there is no illegality or perversity in the impugned order.
5. I have considered the rival submissions and perused the record.
6. In case of Ajoy Kumar Ghose (supra), the Hon'ble Apex Court has considered provisions of Sections 239 as well as 244 and 245 Cr.P.C. and held as under:
"13. The essential difference of procedure in the trial of warrant case on the basis of a police report and that instituted otherwise than on the police report, is particularly marked in Sections 238 and 239 Cr.P.C. on one side and Sections 244 and 245 Cr.P.C., on the other. Under Section 238, when in a warrant case, instituted on a police report, the accused appears or is brought before the Magistrate, the Magistrate has to satisfy himself that he has been supplied the necessary documents like police report, FIR, statements recorded under sub-Section (3) of Section 161 Cr.P.C. of all the witnesses proposed to be examined by the prosecution, as also the confessions and statements recorded under Section 164 and any other documents, which have been forwarded by the prosecuting agency to the Court. After that, comes the stage of discharge, for which it is provided in Section 239 Cr.P.C. that the Magistrate has to consider the police report and the documents sent with it under Section 173 Cr.P.C. and if necessary, has to examine the accused and has to hear the prosecution of the accused, and if on such examination and hearing, the Magistrate considers the charge to be groundless, he would discharge the accused and record his reasons for so doing. The prosecution at that stage is not required to lead evidence. If, on examination of aforementioned documents, he comes to the prima facie conclusion that there is a ground for proceeding with the trial, he proceeds to frame the charge. For framing the charge, he does not have to pass a separate order. It is then that the charge is framed under Section 240 Cr.P.C. and the trial proceeds for recording the evidence. Thus, in such trial prosecution has only one opportunity to lead evidence and that too comes only after the charge is framed.
14. However, in a warrant trial instituted otherwise than on a police report, when the accused appears or is brought before the Magistrate under Section 244(1) Cr.P.C., the Magistrate has to hear the prosecution and take all such evidence, as may be produced in support of the prosecution. In this, the Magistrate may issue summons to the witnesses also under Section 244(2) Cr.P.C. on the application by prosecution. All this evidence is evidence before charge. It is after all this, evidence is taken, then the Magistrate has to consider under Section 245(1) Cr.P.C., whether any case against the accused is made out, which, if unrebutted, would warrant his conviction, and if the Magistrate comes to the conclusion that there is no such case made out against the accused, the Magistrate proceeds to discharge him. On the other hand, if he is satisfied about the prima facie case against the accused, the Magistrate would frame a charge under Section 246(1) Cr.P.C. The complainant then gets the second opportunity to lead evidence in support of the charge unlike a warrant trial on police report, where there is only one opportunity. 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.
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. In case of Sunil Mehta & Another (supra), Hon'ble Apex Court has relied upon the aforesaid case of Ajoy Kumar Ghose (supra) and in Para no.19 has held as under:-
"19. We are supported in the view taken by us by the decision of this Court in Ajoy Kumar Ghose (supra). That was a case where the trial Court had framed charges against the accused without the prosecution having any evidence whatsoever in terms of Section 244 of the Cr.P.C. This Court held that the procedure adopted by the trial Court was not correct because the language of Section 246(1) Cr.P.C. itself sufficiently indicated that charges have to be framed against the accused on the basis of some evidence offered by the complainant at the stage of Section 244(1)."
8. It is apparent from aforesaid pronouncements that in warrant trial cases instituted otherwise than on a police report, Magistrate has to take evidence under Section 244 Cr.P.C. before charge and then has to consider Section 245(1) Cr.P.C. whether any case against accused is made out, which, if remain unrebutted, would warrant his conviction. If the Magistrate comes to the conclusion that there is no such case made out against the accused, the Magistrate proceeds to discharge him. There is clear difference in Section 245(1) and 245(2) of Cr.P.C. in as much under Section 245(1) the Magistrate has advantage of the evidence led by the prosecution/complainant before him under Section 244 Cr.P.C. and has to consider whether if evidence remains unrebutted, conviction of accused would be warranted, whereas, under Section 245(2) Cr.P.C. the Magistrate has power of discharging the accused at any stage of the case, even before such evidence is led, however for discharging an accused under Section 245(2) Cr.P.C., the Magistrate has come to a finding that charges are groundless. There is no question of any consideration of evidence at that stage because there is none.
9. In the instant matter, it is apparent that proceedings of the warrant trial case were instituted otherwise than on police report. Applicant has filed an application for discharge however it was not mentioned therein whether the said application was filed under Section 245(1) or 245(2) Cr.P.C. It appears from impugned order that the said application has been rejected by the learned trial Court by mainly considering the contradictions in discharge application vis-a-vis complaint and the matter was posted for framing of charges. It is apparent from aforesaid case laws that in warrant trial cases instituted otherwise than on police report, before framing of charge the complainant has to led evidence under Section 244 Cr.P.C. The provisions of Section 239 Cr.P.C. are not applicable in the matter and thus, learned Magistrate was not right to consider the said application under Section 239 Cr.P.C. Even if no provision was mentioned in the said discharge application, the same was required to be considered in accordance with provisions of Section 245 Cr.P.C. It appears that learned Magistrate has not examined the matter at touchstone of the provisions of Section 245 Cr.P.C., and thus impugned order is liable to be set aside.
10. It may be added here that as no provision was mentioned in the discharge application, thus if the evidence under Section 244 Cr.P.C. has already been led before the Magistrate, the said application shall be decided by considering the provisions of Section 245(1) Cr.P.C. In case no evidence under Section 244(1) Cr.P.C. has been led by the applicant/complainant so far, the said discharge application shall be considered to be filed under Section 245(2) Cr.P.C. and same would be decided accordingly.
11. In view of aforesaid, the impugned order dated dated 14.05.2024 is set aside. The matter is remanded back to the learned Magistrate concerned to pass an order on discharge application afresh in accordance with law.
12. The Application under Section 482 Cr.P.C. is disposed of in above terms.
Order Date :- 25.2.2025 'SP'/-