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Allahabad High Court · body

2017 DIGILAW 769 (ALL)

RAJESH KUMAR TRIPATHI v. STATE OF U. P.

2017-03-10

SUDHIR AGARWAL

body2017
ORDER : SUDHIR AGARWAL, J. 1. Heard Sri Indra Mani Tripathi, Advocate, for revisionist and learned A.G.A. for respondents. 2. This criminal revision under Section 401 read with Section 397 Cr.P.C. has been filed aggrieved by order dated 05.08.2008 passed by Additional Chief Judicial Magistrate, Court No. 2, Allahabad rejecting discharge application of revisionist in Case No. 1401 of 2007 under Sections 420, 467, 468, 471, 457, 427, 506 I.P.C. and fixing date for framing charge. 3. Facts in brief are that a first information report was lodged on 13.11.2006 at Police Station George town, Allahabad vide Case Crime No. 222 of 2006 under Sections 420, 467, 468, 471, 457, 427, 506 I.P.C. stating therein that applicant, Prabhunath Pandey, a resident of 274A-274B/92, Tularam Bagh, Allahabad, had constructed room wherein he often resides and medicines worth eighty five thousand rupees and some other items were kept. Rakesh Kumar Mishra, son of Dharmraj Mihsra, resident of Talab Nawal Rai, New Bairahna and his acquaintances tried to take possession thereon by constructing a wall on egress and breaking open the wall of their petrol pump. Upon resistance, Rakesh Kumar Mishra and his acquaintances arrived at informant's house no. 1-0/4A , Tilaknagar, Allahpur, Allahabad at 6:30 PM on 25.09.2006 and gave him death threats while firing bullets and hurling bombs. They warned informant not to go to 274A.274B/92, Tularam Bagh and also threatened to kill him in broad daylight if he tries to report this incident to the police, saying: "None can dare to lay a hand on me. I have taken possession of so many plots like this one." He did this act on being aided and abetted by Rajesh Kumar Tiwari, son of Late Adya Prasad Tiwari and his acquaintances. This Rajesh Kumar Tiwari by using different names, sometimes, as Rajesh and, sometimes, as Raju and by showing different addresses, sometimes, as 20 Liddle Road and, sometimes, as Pannalal Road, indulges in sale and purchase of plots and entangles other people by executing fake registries. Showing himself an attorney of Smt. Gayatri Devi, wife of Late Omkar Nath Awasthi, he has executed a fake saledeed in respect of plot situated at 274 Tularam Bagh, concerning which a case is instituted in Court and construction work is on hold. He has also executed fake registries in favour of 1. Vidyasagar, son of Mangilal 2. Manikchand, son of Late Biharilal 3. He has also executed fake registries in favour of 1. Vidyasagar, son of Mangilal 2. Manikchand, son of Late Biharilal 3. Umapati Pandey, son of Late Radheyshyam Pandey 4. Dharmraj, son of Late Indrajeet Mishra 5. Santosh Kumar Jaiswal, son of Moolchandra Jaiswal 6. Smt Kanchan Mishra, wife of Rajesh Mihsra, despite the fact that many cases are pending with the Court and there is a stay order on the whole plot. Case No. 634 of 2004 thereof is sub-judice. In this way, despite the stay order, the plot and shop registered in the name of his (the applicant's) son is being encroached upon and occupied by misdeeds of Rajesh Kumar Tiwari with the aid of his henchmen. The mandate of law and justice is being shredded; the applicant is being frequently threatened to be killed by Rajesh Kumar Tiwari and his accomplice and the room is being attempted to be encroached upon by throwing out valuable medicines worth over fifty thousand rupees stored therein. Request was accordingly made to ensure immediate action. 4. Usual investigation followed and police submitted charge sheet on 23.04.2007 against the accused-revisionist. Accused-revisionist thereafter moved discharge application on 10.06.2008 which has been rejected by Additional Chief Judicial magistrate, Court No. 2, Allahabad vide impugned order dated 05.08.2008. Being aggrieved, revisionist has filed present revision. 5. Learned counsel for revisionist submitted that since Civil Suits No. 294 of 1989 and 85 of 2006 for cancellation sale-deeds executed by revisionist are already pending and opposite party-2 has also filed a Complaint Case No. 5306 of 2004 under Section 138 of Negotiable Instruments Act, 1881 (hereinafter referred to as "Act, 1881"), Court below erred in taking cognizance of offences under Sections 420, 467, 468, 471, 457, 427, 506 and the impugned order is patently illegal and liable to be set aside. 6. However, I find no force in the submission. 7. Police after making investigation has collected material and filed charge-sheet which has been perused and thereafter Magistrate has taken cognizance. At this stage, while considering discharge application filed by accused, no otherwise material is available before Magistrate, constituting evidence on the part of accused since that stage has yet to come and material available before Magistrate justifying cognizance on the charge-sheet submitted by Police on the basis of material collected by Police has not been shown to be based on no material at all. Entire argument is basically in respect of defence in respect whereto evidence has yet to be led by revisionist-accused in defence. The allegations contained in the report, if taken to be true on its face value, it cannot be said that offences under sections, in which, Police has submitted charge-sheet are not made out but whether those allegations are correct or not, has yet to be examined in the light of evidence adduced by parties. Under Section 239 Cr.P.C. Magistrate can order for discharge of an accused when he finds that charges against the accused are groundless. There is nothing on record to show that material collected by Police is not sufficient to constitute a prima facie offence under the aforesaid Sections against accused-revisionist and, therefore, it cannot be said that Magistrate has committed any error. 8. In State of Himachal Pradesh v. Krishan Lal Pardhan AIR 1987 SC 773, Court said that what all is required at the stage of framing of charge is as to whether a prima facie case regarding commission of certain offences is made out. The question whether the charges will eventually stand proved or not, can be determined only after evidence is recorded in the case. 9. In Arun Vyas and another v. Anita Vyas 1999 (4) SCC 690 Court observed that if the Magistrate finds a person liable for discharge at the stage of Section 239 Cr.P.C. he has to record a finding that the charge is groundless. 10. In Nikhil Merchant v. Central Bureau of Investigation and another 2008 (9) SCC 677 and Central Bureau of Investigation v. Duncans Agro Industries Ltd. 1996 (5) SCC 591 Court observed that in a given case, civil and criminal proceedings can go on simultaneously. If in connection with obtaining certain loan a criminal offence has been committed, criminal proceeding can be maintained while simultaneously the Bank can also proceed to recover its loan from debtor. Similar view was taken in Central Bureau of Investigation v. A. Ravishankar Prasad and others 2009 (6) SCC 351 . 11. In Ajay Kumar Ghosh v. State of Jharkhand 2010 SCC (Cri) 1301 Court said that at the stage of discharge under Section 239, Magistrate has to consider the Police report and the document sent along with it, under Section 173 Cr.P.C. and if necessary, has to examine the accused and has to hear the prosecution. 11. In Ajay Kumar Ghosh v. State of Jharkhand 2010 SCC (Cri) 1301 Court said that at the stage of discharge under Section 239, Magistrate has to consider the Police report and the document sent along with it, under Section 173 Cr.P.C. and if necessary, has to examine the accused and has to hear the prosecution. If on such examination and hearing, Magistrate considers the charge to be groundless, he would discharge the accused and record his reasons therefor. Prosecution at that stage is not required to lead evidence. If, on examination of aforementioned documents, he comes to prima facie conclusion that there is a ground for proceeding with the trial, he shall proceed to frame charge. For framing charge, he does not have to pass a separate order. 12. In State of Tamilnadu v. N. Suresh Ranjan 2014 (84) ACC 656, Court observed that Section 239 provides for discharge before recording evidence on the basis of Police Report, the documents sent along with it and examination of accused after giving an opportunity to parties to be heard. Under Section 245, the stage of discharge comes only after evidence referred in Section 244 has been taken. Supreme Court observed that despite difference in language in these provisions, whichever provision may be applicable, Court is required to see that there is a prima face case for proceeding against accused. In this regard, it also relied on its observations made in R.S. Nayak v. Antulay 1986 (2) SCC 716 wherein also Court said that test of prima face case has to be applied, The Court said, legal position is that if the Trial court is satisfied that a prima facie case is made out, charge has to be framed. At this stage, Court is not required to shift material for the purpose of finding out whether or nor there is sufficient ground for proceedings against accused and whether that would result in a conviction. It is not a stage where Court should have appraised the evidence and discharged the accused as if it was passing an order of acquittal. Even, defect in investigation itself cannot be a ground for discharge. With regard to civil suit pending in the matter of cancellation of sale-deed, it is now well settled that civil liability stand on a different footing than criminal activities and there is no bar in proceeding with the two simultaneously. 13. Even, defect in investigation itself cannot be a ground for discharge. With regard to civil suit pending in the matter of cancellation of sale-deed, it is now well settled that civil liability stand on a different footing than criminal activities and there is no bar in proceeding with the two simultaneously. 13. In the present case, Magistrate has examined the entire material collected by Police and submitted along with charge-sheet, of which, cognizance was taken on 23.04.2007 and summons were issued. Noting has been placed before us to show that the said material is not sufficient to show that offences charged are not made out or groundless. If that be so, at this stage, it cannot be said that Magistrate has committed any such illegality so as to warrant interference in criminal revision. In view thereof, I find no reason to interfere. 14. The revision lacks merits. Dismissed. 15. Interim order, if any, stands vacated. 16. Certify this judgment to the lower Court immediately.