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2010 DIGILAW 3477 (ALL)

Sri Shyam Om Kinkar v. State Of U. P.

2010-11-11

RAJ MANI CHAUHAN

body2010
JUDGMENT: Raj Mani Chauhan, J. Heard Sri Nagendra Mohan, learned counsel for the revisionist, Sri Murli Manohar Srivastava for the complainant-opposite party No.2 as well as Sri Rajendra Kumar Dwivedi, learned A.G.A. for the State. This criminal revision under Section 397 (1)/401 of the Code of Criminal Procedure (hereinafter referred to as 'Code') has been filed by the accused revisionist Shyam Om Kinkar, son of Sri Mahadev Prasad, resident of Khurshed Bage, Police Station Naka, District Lucknow, presently residing at J-59, Aashiyana, Lucknow against the order dated 25.5.2005, passed by the then learned Chief Judicial Magistrate, Lucknow in Criminal Case No. 288 of 2004 (Crime No. 3 of 2000), State Vs. Lalit Mohan and others, under Sections 498-A, 323, 506 I.P.C. and ¾ Dowry Prohibition Act, Police Station Mahila Thana, District Lucknow, whereby the learned Chief Judicial Magistrate has rejected the application moved by the accused revisionist for his discharge. The relevant facts giving rise to the present revision may be summarized as under:- 2. The opposite party No.2 Prem Kusum Asthana, daughter of Sri Chhavi Nandan Lal Asthana, resident of House No. 291-A, Kailash Puri, Alambagh, Lucknow on 24.12.1999 moved an application under Section 156 (3) of the Code before the learned Judicial Magistrate, Lucknow against the accused with the allegation that her father had married her with Lalit Mohan, son of Late. Sri Uma Kant Srivastava, resident of MIG B-1/28, State Bank Nagar, Sitapur Road Scheme, Police Station Aliganj, Lucknow on 7.12.1999. Her father had presented Maruti Car as well as the other presents of domestic use etc. to Lalit Mohan at the time of her marriage. He had spent about Rs. 8 to 9 lakhs on her marriage excluding Maruti Car. When she went to her marital home following her marriage, her husband Lalit Mohan, her mother-in-law Smt. Vimla Srivastava and her maternal father-in-law (Mama) Shyam Mohan Kinkar called her in drawing room after two days of her marriage at her marital home. They complained her that her father had not given any amount in cash at the time of Bidai. They made demand of Rs. 2 lakhs in cash in the form of dowry. She informed this fact to her father and brothers who approached to the accused but she could not know about the conversation between them. Later on, they started to harass and torture her. They used to beat her too. They made demand of Rs. 2 lakhs in cash in the form of dowry. She informed this fact to her father and brothers who approached to the accused but she could not know about the conversation between them. Later on, they started to harass and torture her. They used to beat her too. She approached the police but the police did not lodge any report. She, therefore, prayed that the S.O. of concerned Police Station be directed to register and investigate the case against the accused. The application was allowed by the learned Judicial Magistrate and in pursuance of the order passed by the learned Judicial Magistrate, the police of Police Station Mahila Thana, Lucknow on 7.1.2000, registered a case under Sections 498-A, 323, 506 I.P.C. and ¾ Dowry Prohibition Act, at Crime No. 3 of 2000 against the accused for investigation. 3. The investigation of the case was taken over by the Circle Officer, Bazar Khala but before he could conclude the investigation, the investigation was transferred by the Senior Superintendent of Police, Lucknow to Circle Officer, Gomti Nagar for investigation. The Circle Officer, Gomti Nagar concluded the investigation. He did not find evidence in support of the commission of the alleged offences, consequently, he concluded the investigation with the filing of the final report in favour of the accused. The complainant thereafter filed protest petition before the concerned Magistrate against the final report. The learned Judicial Magistrate, Pollution, Lucknow, vide order dated 20.1.2001 allowed the protest petition and set aside the final report. He summoned the accused to face trial under sections 498-A, 323, 506 I.P.C. and Section ¾ Dowry Prohibition Act. Thereafter, the accused challenged the summoning order dated 20.1.2001, passed by the learned Magistrate by filing petition under Section 482 of the Code before this Court, which gave rise to the Criminal Misc. Case No. 359 of 2001; Smt. Vimla Srivastava and others Vs. State of U.P. and another. This petition was disposed of by this court, vide order dated 20.8.2004 in the following terms:- " I have gone through the order and without commenting on the merit of the case the petitioners are directed to appear before the competent court. The personal appearance of the applicants will be exempted and they shall be at liberty to appear through counsel. However, relying upon the decision of Supreme Court in the case of Bodhisatwa Gautam Vs. The personal appearance of the applicants will be exempted and they shall be at liberty to appear through counsel. However, relying upon the decision of Supreme Court in the case of Bodhisatwa Gautam Vs. Subhra Chakraborty, reported in (1996) 1 Supreme Court Cases 490, the petitioners are directed to deposit a sum of Rs. 1,000/- per month before the competent court till the conclusion of the trial as amount of compensation to the opposite party No.2 Smt. Prem Kusum Asthana. The opposite party No.2 Smt. Prem Kusum Asthana shall be entitled to withdraw the above amount deposited by the petitioners each month on making an application in this regard. The petitioners shall not be arrested and no harassment should be caused to them during the proceedings. Trial Court is directed to expedite the matter" 4. Thereafter, the accused revisionist moved an application for his discharge on the ground that the case was initially investigated by the Circle Officer, Bazar Khala, who had recorded the statement of the complainant Prem Kusum Asthana and other witnesses under Section 161 of the Code but later on, the Senior Superintendent of Police, Lucknow directed the Circle Officer, Gomti Nagar, Lucknow for re-investigation of the Case. The Circle Officer, Gomti Nagar after investigation of the case found no evidence in support of the commission of the alleged offences. Therefore, he submitted final report in favour of the accused. The complainant filed protest petition against the final report submitted by the Investigating Officer. The protest petition was allowed by the learned Judicial Magistrate on 20.1.2001and the accused were summoned. The learned Magistrate had summoned the accused without any evidence, therefore, no charges could be framed against him. Therefore, he be discharged. The application moved by the accused revisionist was rejected by the learned Chief Judicial Magistrate, Lucknow, vide order dated 25.5.2005 before whom the trial was pending at that time. 5. The only submission of the learned counsel for the accused revisionist is that the learned Chief Judicial Magistrate, Lucknow while rejecting the application moved by the accused revisionist for his discharge, did not go through the provisions contained under Sections 239 and 240 of the Code relating to discharge and framing of the charges against the accused respectively. 5. The only submission of the learned counsel for the accused revisionist is that the learned Chief Judicial Magistrate, Lucknow while rejecting the application moved by the accused revisionist for his discharge, did not go through the provisions contained under Sections 239 and 240 of the Code relating to discharge and framing of the charges against the accused respectively. Learned counsel submits that Section 239 of the code provides that the learned Magistrate before framing the charge against the accused, shall consider the police report and the documents submitted by the Investigating Officer under Section 173 of the Code and after making such examination, if any, of the accused and after giving prosecution and the accused an opportunity of hearing shall consider as to whether there is no evidence against the accused and the charges levelled by the investigating officer for which he has been charge sheeted are ground-less, then he shall discharge him. If he after considering the statements of the witnesses, documents submitted by the Investigating Officer along with police report and after hearing the prosecution and the accused finds that there is, prima-facie, evidence to presume that accused had committed an offence/offences, then he shall frame charge/charges against him. In this case, from a perusal of the impugned order, it appears that the learned Magistrate did not bother to go through the provisions contained under Sections 239 and 240 of the Code before passing the impugned order to frame the charges against the accused petitioners. Moreover, from a perusal of the impugned order, it appears that the learned Magistrate has not even observed that there is prima-facie evidence on record to presume that the accused had committed offence even then he by the impugned order has ordered to frame charges against the accused. The impugned order passed by the learned Chief Judicial Magistrate is, therefore, illegal and is liable to be quashed. 6. The learned A.G.A. as well as learned counsel for the complainant-opposite party No.2 although opposed the revision and supported the impugned order passed by the learned Chief Judicial Magistrate but fairly accept that the impugned order as it stands does not satisfy the requirement of Sections 239 and 240 of the Code. 6. The learned A.G.A. as well as learned counsel for the complainant-opposite party No.2 although opposed the revision and supported the impugned order passed by the learned Chief Judicial Magistrate but fairly accept that the impugned order as it stands does not satisfy the requirement of Sections 239 and 240 of the Code. I have given thoughtful consideration to the submissions advanced by the learned counsel for the accused revisionist, learned A.G.A. and learned counsel for the opposite party No.2 as well as perused the impugned order passed by the learned Chief Judicial Magistrate. At this stage, it will be very relevant to mention the provisions dealing with the discharge of the accused as well as framing of the charge against him as provided under Sections 239 and 240 of the Code. These provisions are being extracted herebelow:- "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. 240.- Framing of charge.- (1) If, upon such consideration, examination, if any, and hearing, the Magistrate is of 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. (2)The charge shall then be read and explained to the accused, and he shall be asked whether he pleads guilty of the offence charged or claims to be tried." 7. From joint reading of both sections referred above, it appears that before framing the charge against the accused or before his discharge, the learned Magistrate shall consider the evidence i.e. statements of the witnesses and documentary evidence submitted by the prosecution. He shall hear the prosecution and the accused in this regard and if he finds that there is prima-facie evidence against the accused in support of the commission of the offences, then he shall frame the charge/charges against him. He shall hear the prosecution and the accused in this regard and if he finds that there is prima-facie evidence against the accused in support of the commission of the offences, then he shall frame the charge/charges against him. In case he finds that there is no, prima-facie, evidence against him in support of the commission of the offences, then he shall discharge him. At this stage, the trial court is not expected to mention the details of the evidence available against the accused but he is expected to go through the evidence submitted by the prosecution, hear the prosecution and defence in this regard and if he finds that there is prima-facie evidence against the accused to presume that he has committed the offence, he shall frame charge/charges against him. In this case, the accused revisionist in his application for discharge has specifically mentioned that the Circle Officer, Gomti Nagar who had conducted the re-investigation of the case did not find any evidence against him in support of the commission of the offence as alleged by the complainant. Therefore, he had submitted final report. The complainant had filed protest petition against the final report submitted by the Investigating Officer. The learned Magistrate allowed the protest petition and set aside the final report and summoned the accused but he did not mention in his order on the basis of what evidence he had summoned the accused. On the application of the accused revisionist, the learned Magistrate was expected to go through the evidence collected by the Investigating Officer and if he was of the opinion that there was prima-facie, evidence to presume that the accused had committed offence, then he could order for framing of charge against him but from a perusal of the impugned order, it appears that the learned Magistrate has observed only this much that it will not be proper to discharge the accused without trial. This could not be a ground to reject the application moved by the accused for his discharge; rather the application of the accused could be rejected in light of the provisions laid down under Section 239 and 240 of the Code as referred above. This could not be a ground to reject the application moved by the accused for his discharge; rather the application of the accused could be rejected in light of the provisions laid down under Section 239 and 240 of the Code as referred above. The application of the accused revisionist could not be rejected only on the ground that without trial accused could not be discharged while the provisions contained under Section 239 of the Code as referred above specifically provides for discharge. From a perusal of the impugned order, it appears that the learned Chief Judicial Magistrate while considering the application of the accused for his discharge did not go through the provisions contained under Sections 239 and 240 of the Code otherwise, he could have passed reasoned order satisfying the requirement of Section 239 and 240 of the Code. The impugned order passed by the learned Chief Judicial Magistrate is baseless and is, therefore, liable to be quashed. The matter deserves to be remanded back to the learned Chief Judicial Magistrate, Lucknow to decide the application moved by the accused revisionist afresh in light of the provisions contained under Sections 239 and 240 of the Code as well as the observations made hereinabove. 8. The criminal revision is, therefore, allowed. The impugned order dated 25.5.2005, passed by the learned Chief Judicial Magistrate, Lucknow in Case No. 280 of 2004, Case Crime No. 3 of 2000, under Sections 498-A, 323, 506 I.P.C. and ¾ Dowry Prohibition Act, Police Station Mahila Thana, District Lucknow is hereby quashed. The matter is remanded back to the learned Chief Judicial Magistrate, Lucknow with the direction to dispose of the application moved by the accused revisionist for his discharge afresh keeping in view the observations made hereinabove.