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2001 DIGILAW 602 (ALL)

ISHWAR SARAN SHUKLA v. STATE OF UTTAR PRADESH

2001-07-03

J.C.GUPTA

body2001
J. C. GUPTA, J. ( 1 ) HEARD Sri K. S. Jetley for the applicants in revision and the learned A. G. A. appearing for the State. ( 2 ) BY means of this revision-applicants have challenged the order dated 28-11-2000 of A. C. J. M. II, Saharanpur rejecting the objections raised on behalf of the applicants and thereby refusing to discharge the applicants. Subsequently the learned Magistrate has framed charge under S. 3 of the Railway Property (Unlawful Possession) Act (in short R. P. U. P. Act) by the order dated 15-12-2000. ( 3 ) IT has been submitted by learned counsel for the applicants that since in the present case property which is alleged to have been recovered from the possession of the applicants was not produced before the Court below, there was no possibility of the case resulting into conviction and in support of his submission reliance has been placed on a decision of a learned single Judge of Delhi High Court, Ms. Taposhi Chakervarti v. State, reported in 2001 (1) RCR (Criminal) 109. I have gone through the said decision. In peculiar facts and circumstances of that particular case the learned single Judge was of the opinion that the material placed on record of that case showed that accused would be acquitted and trial would be a futile exercise and an abuse of process of Court. The facts of the present case are entirely different. It has rightly been urged by learned A. G. A. that the occasion to produce case property would arise only when the prosecution witnesses are produced and further cross-examined. ( 4 ) IT is well settled that at the time of framing of charge the material and evidence collected against the accused is not to be weighed in golden scales. Procedure for trial of warrant cases instituted otherwise than on Police report is laid down in Chapter XIX, B Part from Section 244 onwards. Section 245 lays down that if, upon taking all the evidence referred to in Section 244, the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him. Section 245 lays down that if, upon taking all the evidence referred to in Section 244, the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him. While Section 246 lays down that where the Magistrate is of the opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try and which, in his opinion, could be adequately punished by him, he shall frame in writing a charge against the accused. It is true that while considering the question whether accused is to be charged or discharged the Magistrate is not to act merely as a Post-office or a mouth piece of the prosecuting agency and he has to apply his mind to the material placed on record in support of the accusation made against the accused. This, however, does not mean that the Magistrate should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. Accused can be discharged only when the Magistrate considers that no case against the accused has been made out which if rebutted would warrant his conviction. While considering the said question Magistrate is required to examine the evidence which the prosecutor proposes to prove the guilt of the accusedand if on taking the same at its face value no offence is made out the Magistrate would be justified in passing an order of discharge but where the Magistrate finds that there are sufficient grounds for presuming that the accused has committed an offence on the basis of the unrebutted evidence, he has to frame a charge and proceed with the trial in accordance with law. The truth, veracity and effect of the evidence are not to be meticulously judged at that stage nor any weight is to be attached to the probable defence of the accused. ( 5 ) THE learned Magistrate in the impugned order has dealt with in detail all the objections raised on behalf of applicants while rejecting their prayer for discharging the order. ( 5 ) THE learned Magistrate in the impugned order has dealt with in detail all the objections raised on behalf of applicants while rejecting their prayer for discharging the order. He has assigned cogent and valid reasons for coming to the conclusion that there were sufficient grounds to presume that the applicants have committed an offence punishable under Section 3 of the R. P. U. P. Act, and was fully justified in framing a charge under the said Section. Whether or not the said charge will result into acquittal or conviction that question has to be decided on the basis of entire evidence brought on record. ( 6 ) FOR the reasons stated above, this Court finds no sufficient reasons to make interference in the impugned orders of the trial Court. ( 7 ) THE present case was registered on 12-9-1989 and even after a lapse of about 12 years the trial is still pending. In the circumstances, the trial Court is directed to expedite and conclude the trial on priority and on day to day basis as expeditiously as possible, preferably within a period of three months from the date of communication of this order. ( 8 ) OFFICE is directed to communicate this order forthwith to A. C. J. M. (Court Room No. 19), Saharanpur for compliance. ( 9 ) REVISION is accordingly dismissed in limine. Petition dismissed. .