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2019 DIGILAW 1315 (ALL)

Dinesh Singh Yadav v. State of U. P.

2019-05-14

VIRENDRA KUMAR SRIVASTAVA

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JUDGMENT : 1. The instant revision has been filed against the order dated 17.1.2015 passed by Chief Judicial Magistrate, Ghazipur in Case Crime No. 374 of 2010, under Section 409 IPC at Police Station Suhwal, District Ghazipur in (State vs. Lalman and another) in Criminal Case No. 1156 of 2012 whereby the application for discharge filed by the revisionist-accused has been rejected by the learned Magistrate. 2. Heard Sri Santosh Kumar Jaiswal, learned counsel for the revisionist and learned A.G.A. for the State, despite notice, no one is present on behalf of opposite party no. 2. 3. Learned counsel for the revisionist has submitted that the accused-revisionist is innocent and has falsely been implicated. He has not embezzled any government money. Due to political rivalries, one Jhulan Singh Yadav had lodged a false F.I.R. against the accused-revisionist and Lal Man Singh. It has further been submitted that learned Magistrate has not considered the report of enquiry conducted under the direction of District Magistrate, Ghazipur and filed by the revisionist-accused. The order passed by the learned Magistrate is illegal and liable to be quashed. 4. Learned A.G.A. has vehemently opposed the submission made by the learned counsel for the revisionist contending that a sum of Rs.1,31,928/- has been embezzled by making irregular payment of government money. The F.I.R. has been lodged by District Panchayat Raj Officer (D.P.R.O.) and after due investigation, a charge-sheet has been filed against the revisionist-accused and one Lal Man Singh Yadav (village pradhan) under Section 409 Cr.P.C. There are sufficient material and evidence on record to constitute the offence U/s 409 IPC. There is no illegality in the impugned order passed by the learned Magistrate. 5. Section 239 and 240 of Cr.P.C. which deals with the provision of discharge as well as framing of charge against the accused are as under:- "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. 240. Framing of charge. (i) 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. (ii) 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." 6. Thus it is clear that the Magistrate may discharge the accused if after considering the police report and documents sent with it under Section 173 of the Code and, after examining the accused, if necessary and after hearing the arguments of both sides, if he finds that the charge against him is groundless. The word 'groundless' has not been defined in the Code but it means that there is no evidence or fact admissible in law whereby any offence is made out. This Section expressly empowers the Magistrate the use of only the statement of witnesses and materials collected by the investigating officer during the investigation for considering the question of discharge or framing of charge. Any material / evidence which has not been filed with the police report under Section 173 cannot be considered at this stage. 7. At this stage, the veracity or truthfulness of the fact and evidence available on record cannot be adjudicated. In State of Bihar vs. Ramesh Singh, AIR 1977 SC 2018 , Hon'ble Supreme Court while discussing the standard or test for discharging the accused has held as under:- "The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under section 227 or section 228 of the Code. At that stage the Court is not to 'see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. At that stage the Court is not to 'see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused." 8. Hon'ble Supreme Court in Superintendent and Remembrancer of Legal Affairs of West Bengal vs. Anil Kumar Bhunja and others, 1989 SCC (Cri.) 1038 has held as under:- "It may be remembered that the case was at the stage of framing charges; the prosecution evidence had not yet commenced. The Magistrate had therefore, to consider the above question on a general consideration of the materials placed before him by the investigating police officer. At this stage, as was pointed out by this Court in State of Bihar v. Ramesh Singh, the truth, veracity and effect of the evidence which the prosecutor proposes to adduce are not to be meticulously judged. The standard of test, proof and judgment which is to be applied finally before finding the accused guilty or otherwise, is not exactly to be applied at the stage of Section 227 or 228 of the Code of Criminal Procedure, 1973. At this stage, even a very strong suspicion founded upon materials before the Magistrate, which leads him to form a presumptive opinion as the existence of the factual ingredients constituting the offence alleged; may justify the framing of charge against the accused in respect of the commission of the offence." 9. In this case, accused-revisionist is named in the First Information Report (F.I.R.), before lodging F.I.R., a preliminary inquiry was also conducted by the District Panchayat Raj Adhikari. During investigation, sufficient material were found to frame the revisionist-accused into the offence of Section 409 IPC. From perusal of the material available on record, a prima-facie sufficient evidence is available for framing a charge against the accused-revisionist. During investigation, sufficient material were found to frame the revisionist-accused into the offence of Section 409 IPC. From perusal of the material available on record, a prima-facie sufficient evidence is available for framing a charge against the accused-revisionist. Learned Magistrate in impugned order has clearly mentioned that at the stage of framing of charge, meticulous examination of the prosecution evidence is not required. 10. In view of the above facts and circumstances as well as law propounded by the Hon'ble Supreme Court, I am of the view that the order passed by the learned Magistrate is legal and justified. There is no illegality, perversity or impropriety in the said order. 11. Revision has no force, and is accordingly dismissed.