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Allahabad High Court · body

2017 DIGILAW 1580 (ALL)

AMAR DEEP v. STATE OF U. P.

2017-07-03

SURYA PRAKASH KESARWANI

body2017
JUDGMENT : Surya Prakash Kesarwani, J. 1. Heard learned counsel for the revisionist, learned A.G.A. for opposite party no. 1 and Sri Manish Kumar Tripathi, learned counsel for opposite party no. 2. 2. This revision has been filed praying to quash the order dated 20.04.2017 in Complaint Case No. 715 of 2015 (Neha Vs. Amar Deep), under Section 406 IPC, passed by the Additional Chief Judicial Magistrate, Meerut. By the impugned order, the application of the revisionist/ accused, raising objection to the evidence filed by the opposite party no. 2/ complainant, has been rejected, observing that the documents filed as per list dated 08.07.2016 may be relevant and helpful in effective disposal of the case. It was also observed that the charges have not been framed as yet and therefore, the revisionist/ accused have an opportunity to rebut the evidences by filing documentary evidences as also opportunity of cross examination under Section 246 Cr.P.C. Submissions: 3. Learned counsel for the revisionist submits that once the court below has completed the evidence under Section 244 Cr.P.C., it was not open for it to take the evidences on record which have been filed by the complainant/ opposite party no. 2 vide list dated 08.07.2016. He relies upon the decisions of Hon'ble Supreme Court in the case of Ajoy Kumar Ghose Vs. State of Jharkhand & Anr (2009) 14 SCC 115 (para 19), Sunil Mehta & Anr Vs. State of Gujarat & Anr 2013 (81) ACR 295 (SC) (para 12) and a judgment of Calcutta High Court in the case of Saktipada Dolui & Anr Vs. Sm. Madhabi Dolui & Ors 2003 CriLJ 328 (para 4). 4. Learned counsel for opposite party no. 2 supports the impugned order and states that after passing of the impugned order dated 20.04.2017, charges have also been framed. 5. Learned A.GA. submits that there is no bar to take evidence at a stage prior to the stage of section 246 Cr.P.C. He explains the provisions of Sections 244, 245, 246 Cr.P.C. with the help of law laid down by the Hon'ble Supreme Court in the Case of Ajoy Kumar Ghose (supra) (paras 21, 22, 25 & 40) and the law laid down in the case of Sunil Mehta (supra) (paras 16 to 20). Discussion and Findings: 6. Briefly stated facts of the present case are that the opposite party no. Discussion and Findings: 6. Briefly stated facts of the present case are that the opposite party no. 2/ complainant is the wife of the revisionist herein who were married on 25.02.2012. She had filed an application under Section 156(3) Cr.P.C. on 14.01.2013 before the First Additional Chief Judicial Magistrate, Meerut for alleged commission of offences under Sections 406, 420 IPC. The said application was treated as a complaint case by the learned Additional Chief Judicial Magistrate vide order dated 18.03.2013 being Complaint Case No. 713 of 2012. Her statement under Section 200 Cr.P.C. was recorded on 09.04.2013. The statement of witness was recorded on 01.05.2013 under Section 202 Cr.P.C. The Additional Chief Judicial Magistrate vide summoning order dated 20.06.2013 took cognizance and issued summons only to the parents of the revisionist namely Sri Virendra Singh and Smt. Manju under Section 406 IPC. 7. The aforesaid Virendra Singh and another (parents of the revisionist) challenged the summoning order dated 20.06.2013 as well as the proceedings of the complaint case no. 713 of 2012 by filing an application under Section 482 Cr.P.C. No. 5686 of 2014 (Virendra Singh and another Vs. State of U.P. And another) which was allowed by order dated 24.02.2014 and proceedings as well as summoning order against them were quashed. 8. On the other hand, aggrieved with not summoning the revisionist herein i.e. the husband, the opposite party no. 2 filed a Criminal Revision No. No. 314 of 2013 (Smt. Neha Vs. State of U.P. And another) before the Additional District and Session Judge, Court No. 1, Meerut which was allowed by order dated 12.03.2014 and the matter was remanded to the Magistrate concerned. By order dated 02.09.2014 passed in the aforesaid complaint case no. 713 of 2012 the revisionist herein was summoned under Section 406 IPC. This summoning order and the complaint proceedings were challenged by the revisionist herein by filing an application under Section 482 Cr.P.C. No. 6061 of 2015 (Amar Deep Vs. State of U.P. And Another) in which the prayer made was refused and the application was disposed of by order dated 27.02.2015. Thereafter, the statement of the opposite party no. 2 and the witness were recorded under Section 244 Cr.P.C. Since allegedly the revisionist herein was alleged delaying the disposal of the case and as such the opposite party no. State of U.P. And Another) in which the prayer made was refused and the application was disposed of by order dated 27.02.2015. Thereafter, the statement of the opposite party no. 2 and the witness were recorded under Section 244 Cr.P.C. Since allegedly the revisionist herein was alleged delaying the disposal of the case and as such the opposite party no. 2 filed an application under Section 482 Cr.P.C. No. 6819 of 2017 for speedy disposal of the trial. The said application was disposed of by order dated 02.03.2017 directing the concerned court below to proceed with the case and conclude the proceedings expeditiously, if possible within four months, without giving any unnecessary adjournment to either of the parties. 9. The opposite party no. 2 filed an application before the learned Additional Chief Judicial Magistrate, 10th, Meerut to take on record certain documents as per list filed on 08.07.2016. The revisionist herein filed an objection dated 18.04.2017 to the said application. The said application has been decided by the impugned order dated 20.04.2017 by the Additional Chief Judicial Magistrate, 10th, Meerut admitting the documents of the list dated 08.07.2016. Aggrieved with this order, the revisionist has filed the present revision. 10. In the impugned order the Additional Chief Judicial Magistrate has observed that the documents filed along with the list dated 08.07.2016 are the purchase bills of Sarees and other articles etc. which may be relevant and helpful in effective disposal of the case. The charges have not yet been framed. The accused (revisionist herein) shall have sufficient opportunity to rebut these documentary evidences. He has also opportunity to cross examine the complainant/opposite party no. 2 with respect to these documents. 11. Facts of the case, as briefly noted above, shows that it is undisputed that charges under Section 246 have not been framed as yet. Thus, the Magistrate may take all such evidences as may be produced in support of the prosecution. This legal position is clear from the very provisions of Section 244(1) Cr.P.C. which provides that when, in any warrant-case instituted otherwise than on a police report, the accused appears or is brought before a Magistrate, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution. Evidences so produced are to be considered by the Magistrate under Section 246(1) Cr.P.C. for the purposes of framing charges. Evidences so produced are to be considered by the Magistrate under Section 246(1) Cr.P.C. for the purposes of framing charges. The charges have not yet been framed in the complaint case in question. If the Magistrate finds on the basis of evidences produced by the prosecution or at any previous stage of the case that there is ground for presuming that the accused has committed a triable offence under Chapter XIX Part B Cr.P.C. 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. Thus, at this stage, it cannot be even said that the charges are necessarily to be framed or it may not be framed by the Magistrate concerned. 12. Under the circumstances, I do not find any legal infirmity in the impugned order passed by the concerned Additional Chief Judicial Magistrate to admit in evidence the documents of list dated 08.07.2016 under Section 244 Cr.P.C. 13. The judgments relied by learned counsel for the revisionist are distinguishable on the facts of the present case. The judgment of Hon'ble Supreme Court in the case of Ajoy Kumar Ghose (supra) involved challenge to the order dismissing the discharge application and the order framing charges. In the present set of facts, neither an order framing charges have been passed nor there is any order dismissing the discharge application. 14. In the case of Sunil Mehta & Anr (supra) Hon'ble Supreme Court was considering the question as to whether depositions of the complainant and his evidence recorded under Chapter XV Cr.P.C. before cognizance is taken by the Magistrate would constitute evidence for the Magistrate to frame charges against the accused under Part B of Chapter XIX of the Code. The present case does not involve any such question. 15. The judgment of Calcutta High Court in the case of Saktipada Dolui & Anr (supra) involved challenge to an order passed by the Magistrate concerned allowing a petition of the complainant under Section 246(6) Cr.P.C. to examine his remaining witness when the evidence of the prosecution had already been over and the case was fixed for examining the accused person under Section 313 Cr.P.C. 16. No such question is involved in the present case. No such question is involved in the present case. Thus, all the three judgments relied by the learned counsel for the revisionist are distinguishable and have no bearing on the facts of the present case. 17. In view of the above discussion, I hold that the impugned order dated 20.04.2017 passed in Complaint Case No. 715 of 2015 (Neha Vs. Amar Deep), does not suffer from any error of law or fact. Consequently, the revision is dismissed. ——————