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2019 DIGILAW 1868 (ALL)

Hemant Kumar Mishra v. State Of U. P.

2019-08-02

MOHD FAIZ ALAM KHAN

body2019
JUDGMENT : Mohd. Faiz Alam Khan, J. Heard learned counsel for the appellants as well as Sri S.N. Tilhari, learned A.G.A. appearing for the State. 2. This criminal appeal has been preferred by the appellants to set aside the order dated 16.11.2018 passed by 2nd Additional Sessions Judge/ Special Judge, SC/ST Act, Balrampur in Complaint Case No. 56/2018 (Banshi Lal Vs. Hemant Kumar Mishra and others) under Section 323/ 504/ 506 I.P.C. and Section 3(1)(10) SC/ST Act, P.S. Kotwali Utraula, District Balrampur and allow the present criminal appeal and discharge the appellants from all offences. 3. Brief facts necessary for the disposal of this appeal are that an application under Section 156(3) Cr.P.C. was moved by respondent No.2 namely Banshilal against appellants before C.J.M., Balrampur alleging therein that on 27.05.2014 at about 8:00 P.M., appellants (accused persons) started abusing him in front of his house. Earlier also appellants had assaulted him and a criminal case pertaining to that incident was pending in the Court. The appellants were pressurizing the complainant to compromise in the above mentioned case. On the aforesaid day and time the appellants after entering his house started beating him, addressed him with castiest remarks and threatened him to make compromise in the aforesaid case or to face consequences. On a hue and cry made by him, Ram Abhilakh and Ram Kishore and other persons of the village came at the scene and save him from the appellants. On 28.05.2014 appellant -Hemant Kumar went back to Gorakhpur but rest of the appellants/ accused persons were continuously sitting in front of his house and consequently he could not go to the police station to lodge F.I.R. However, an application was given by him in the police station, Utraulla on 29.05.2014 and subsequently he also approached S.P. balrampur but no action was taken against the appellants. 4. The above mentioned application of the applicant/complainant was treated as complaint and after recording statement of the complainant under Section 200 Cr.P.C. and his witnesses namely Ram Abhilakh and Ram Kishore, the learned Special Judge summoned the appellants to face trial under Section 323, 504, 506 I.P.C. and Section 3(1)(10) SC/ST Act by order dated 21.08.2018. 4. The above mentioned application of the applicant/complainant was treated as complaint and after recording statement of the complainant under Section 200 Cr.P.C. and his witnesses namely Ram Abhilakh and Ram Kishore, the learned Special Judge summoned the appellants to face trial under Section 323, 504, 506 I.P.C. and Section 3(1)(10) SC/ST Act by order dated 21.08.2018. The appellants challenged the summoning order by preferring an Application under Section 482 Cr.P.C. No. 6439 of 2018 before this Court and vide order dated 10.10.2018 a Bench of this Court directed the appellants to approach the trial court and to file discharge application. The applicants, in compliance of the said order, filed a discharge application under Section 227 Cr.P.C. which was dismissed vide impugned order dated 16.11.2018. However, by the same order co-accused Abhay Kumar Mishra was discharged. 5. Learned counsel for the appellants while referring to the summoning order and order dated 16.11.2018, whereby the application of the appellants for discharge has been rejected, submits that the trial court has committed grave error in rejecting the application of discharge of the appellants and have passed the order in a cursory manner without taking into consideration the grounds taken by the appellants. It is further submitted that the Chief Judicial Magistrate was not empowered to take cognizance of the matter as the cognizance could only be taken by the Special Judge, SC/ST Act (Special Court), while this case was transferred to the Special Court on 16.05.2018. It is next submitted that the process has also been issued against the appellant without following the provisions as contained under Section 204(3) Cr.P.C. as no list of the witnesses had been filed. It is next submitted that alleged acts as alleged by the complainant will not attract Section 3(1)(10) of the SC/ST Act and in this process learned counsel for the appellants refer to a decision of Hon'ble Supreme Court pronounced on 09.05.2019 in Criminal Appeal No. 875 of 2019 (arising out of SLP (Crl.) No. 9053 of 2016) Birla Corporation Limited Vs. Adventz Investments and Holdings Limited & Others as well as another decision of Hon'ble Supreme Court passed in Criminal Appeal No. 56 of 2019 (arising out of SLP (Crl.) No. 8143 of 2018) Sri Suresh Kumar Goyal and others Vs. Adventz Investments and Holdings Limited & Others as well as another decision of Hon'ble Supreme Court passed in Criminal Appeal No. 56 of 2019 (arising out of SLP (Crl.) No. 8143 of 2018) Sri Suresh Kumar Goyal and others Vs. State of Uttar Pradesh and another decided on 11.01.2019 as well as Hon'ble Supreme Court decision in the case of Harbeer Singh Vs. Sheeshpal & Ors. And State of Rajasthan Vs. Sheeshpal & Ors, 2016 (3) JIC 847 (SC) in Criminal Appeal Nos. 1624-25 of 2013] as well as in the case of Mrs. Priyanka Srivastava and Another Vs. State of U.P. and Others passed in the Criminal Appeal No. 781 of 2012 as well as the cases of Hon'ble Allahabad High Court in the case of Naresh Vs. State of U.P. & Anr., 2011 (3) JIC 761 (All) and Chandra Lok Gramin Sahkari Awas Samiti & Others Vs. state of U.P. passed in Criminal Revision No.145 of 2006 as well as the case of Hon'ble Karnataka High Court in the case of Fakirappa Vs. Shiddalingappa and Anr., 2002 CrLJ 1926 , ILR 2002 KAR 181, 2002 (1) KarLJ 119 . 6. It is further submitted that in the year 1989 respondent No.2 lodged a false and concocted first information report against 24 persons due to village party bandi and political rivalry and during the course of investigation of that case, the allegations were found incorrect, but Investigating Officer filed a false charge-sheet under the influence of respondent No.2. However, during the course of the trial, respondent No.2 with the help of his Advocate committed forgery and consequently an application under Section 340 Cr.P.C. was filed against him, which was registered as miscellaneous case by order of the Judicial Magistrate. 7. It is next submitted that on 22.12.1991 respondent No.2 and his companions assaulted father of appellant No.1 namely Narsingh Narayan Mishra and in that case conviction has been recorded and an appeal is pending before this Court. It is further submitted that to take revenge of the conviction recorded to respondent No.2 in the above mentioned case, this false case has been cooked up while no such incident has actually taken place. It is further submitted that to take revenge of the conviction recorded to respondent No.2 in the above mentioned case, this false case has been cooked up while no such incident has actually taken place. Respondent No.2 is in a habit of making identical false complaints by misusing the provisions of SC/ST Act and in all the complaints filed by him, same witnesses have been cited, who are his pocket witnesses and their testimony could not be believed. There is glaring contradictions in the statement of the witnesses and it was also apparent on record that the complaint is nothing but a bundle of false facts as no application has been given to the concerned police station. It is requested that the summoning order as well as the order whereby the discharge application of the appellants have been rejected be set aside and the appellants be discharged in this case. 8. Learned counsel for the appellants further submits that the appellants have been summoned under Sections 323, 504, 506 I.P.C. and Section 3(1)(10) SC/ST Act, but these sections were not in existence at the time of commission of crime as the same has been introduced by an amendment, which was put into operation w.e.f. 26.01.2016. 9. Learned A.G.A. while controverting the arguments of learned counsel for the appellants submits that the trial court has not committed any illegality either in passing the order of summoning or in rejecting the discharge application of the appellants as the scope of analyzing and appreciating the evidence by the trial court at the stage of Section 204 and 227 Cr.P.C. is very narrow. 10. Though the service was sufficient on respondent No.2, but neither any objection has been filed nor any person appeared on his behalf. 11. Having heard learned counsel for the parties, perusal of record would reveal that so far as the submission of learned counsel for the appellants pertaining to the facts that the trial has vitiated as the cognizance of the offence has been taken by the C.J.M. is concerned, this argument of learned counsel for the appellants need not to be deliberated in depth as it has been provided in second Proviso of Sub-section 1 of Section 14 of the SC/ST Act itself, that the Courts so established under this Act shall have the power to directly take cognizance of offences under this Act. The language used by the legislature in this proviso makes it an enabling proviso and this power of taking cognizance by the Special Court is in addition to the power conferred by Section 190 of the Cr.P.C. 12. In Darshan Singh Ram Kishan v. State of Maharashtra, 1971 (2) SCC 654 it was held that the process of taking cognizance does not involve any formal action, but it occurs as soon as the Magistrate applies his mind to the allegations and thereafter takes judicial notice of the offence "8. As provided by Section 190 of the Code of Criminal Procedure, a Magistrate may take cognizance of an offence either, (a) upon receiving a complaint, or (b) upon a police report, or (c) upon information received from a person other than a police officer or even upon his own information or suspicion that such an offence has been committed. As has often been held, taking cognizance does not involve any formal action or indeed action of any kind but occurs as soon as a Magistrate applies his mind to the suspected commission of an offence. Cognizance, therefore, takes place at a point when a Magistrate first takes judicial notice of an offence. This is the position whether the Magistrate takes cognizance of an offence on a complaint, or on a police report, or upon information of a person other than a police officer. Therefore, when a Magistrate takes cognizance of an offence upon a police report, prima facie he does so of the offence or offences disclosed in such report." 13. In Kishun Singh and Ors. v. State of Bihar, 1993 (2) SCC 16 this Court reiterated the position that where, on application of mind, the allegations in the complaint, according to the Magistrate, if proved, would constitute an offence, cognizance is to be taken of the offence so as to proceed further against the accused. To quote: "7.....Even though the expression 'take cognizance' is not defined, it is well settled by a catena of decisions of this Court that when the Magistrate takes notice of the accusations and applies his mind to the allegations made in the complaint or police report or information and on being satisfied that the allegations, if proved, would constitute an offence decides to initiate judicial proceedings against the alleged offender he is said to have taken cognizance of the offence. It is essential to bearin mind the fact that cognizance is in regard to the offence and not the offender. Mere application of mind does not amount to taking cognizance unless the Magistrate does so for proceeding Under Sections 200/204 of the Code...." 14. In State of W.B. and Anr. v. Mohd. Khalid and Ors., 1995 (1) SCC 684 it has been held by this Court that while exercising power to take cognizance, a Magistrate has to see whether there is any basis for initiating judicial proceedings. At paragraph-43, it has been held as follows: "43....Section 190 of the Code talks of cognizance of offences by Magistrates. This expression has not been defined in the Code. In its broad and literal sense, it means taking notice of an offence. This would include the intention of initiating judicial proceedings against the offender in respect of that offence or taking steps to see whether there is any basis for initiating judicial proceedings or for other purposes. The word 'cognizance' indicates the point when a Magistrate or a Judge first takes judicial notice of an offence. It is entirely a different thing from initiation of proceedings; rather it is the condition precedent to the initiation of proceedings by the Magistrate or the Judge. Cognizance is taken of cases and not of persons." 15. In Kanti Bhadra Shah and Anr. v. State of W.B., 2000 (1) SCC 722 . this Court has taken the view that it is quite unnecessary to write detailed orders at the stage of issuing process. 16. In U.P. Pollution Control Board v. Mohan Meakins Limited and Ors., 2000 (3) SCC 745 , the position was further clarified that it was not necessary to pass a speaking order at the stage of taking cognizance. 17. In Deputy Chief Controller of Imports and Exports v. Roshanlal Agarwal and Ors., 2003 (4) SCC 139 , it was held that at the stage of issuing the process to the accused, Magistrate is not required to record reasons". 18. In Jagdish Ram v. State of Rajasthan and Anr., 2004 (4) SCC 432 , the law was restated, in the following way, holding that at the stage of issuing process to the accused, the Magistrateis not required to record reasons. 18. In Jagdish Ram v. State of Rajasthan and Anr., 2004 (4) SCC 432 , the law was restated, in the following way, holding that at the stage of issuing process to the accused, the Magistrateis not required to record reasons. However, he has to be satisfied that there is sufficient ground for proceeding and such satisfaction is not whether there is sufficient ground for conviction :- "10.....The taking of cognizance of the offence is an area exclusively within the domain of a Magistrate. At this stage, the Magistrate has to be satisfied whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction, can be determined only at the trial and not at the stage of inquiry. At the stage of issuing the process to the accused, the Magistrate is not required to record reasons." 19. In S.K. Sinha, Chief Enforcement Officer v. Videocon International Limited and Ors., 2008 (2) SCC 492 , it was held in the following paragraphs that taking cognizance in criminal law connotes that a judicial notice is taken of an offence, after application of mind :- "19. The expression "cognizance" has not been defined in the Code. But the word (cognizance) is of indefinite import. It has no esoteric or mystic significance in criminal law. It merely means "become aware of and when used with reference to a court or a Judge, it connotes "to take notice of judicially". It indicates the point when a court or a Magistrate takes judicial notice of an offence with a view to initiating proceedings in respect of such offence said to have been committed by someone. 20. "Taking cognizance" does not involve any formal action of any kind. It occurs as soon as a Magistrate applies his mind to the suspected commission of an offence. Cognizance is taken prior to commencement of criminal proceedings. Taking of cognizance is thus a sine qua non or condition precedent for holding a valid trial. Cognizance is taken of an offence and not of an offender. Whether or not a Magistrate has taken cognizance of an offence depends on the facts and circumstances of each case and no rule of universal application can be laid down as to when a Magistrate can be said to have taken cognizance." 20. Cognizance is taken of an offence and not of an offender. Whether or not a Magistrate has taken cognizance of an offence depends on the facts and circumstances of each case and no rule of universal application can be laid down as to when a Magistrate can be said to have taken cognizance." 20. The perusal of the case law mentioned herein above would clearly show that cognizance of an offence on complaint is taken for the purpose of issuing process to the accused. Since it is a process of taking judicial notice of certain facts which constitute an offence, there has to be application of mind as to whether the allegations in the complaint, when considered along with the statements recorded or the inquiry conducted thereon, would constitute violation of law so as to call a person to appear before the criminal court. It is not a mechanical process or matter of course. Section 460 of Cr.P.C. is also relevant at this stage, which is reproduced as under: Section 460: Irregularities which do not vitiate proceedings. If any Magistrate not empowered by law to do any of the following things, namely:- (a) to issue a search-warrant under section 94; (b) to order, under section 155, the police to investigate an offence; (c) to hold an inquest under section 176; (d) to issue process under Section 187, for the apprehension of a person within his local jurisdiction who has committed an offence out side the limits of such jurisdiction; (e) to take cognizance of an offence under clause (a) or clause (b) of sub-section (1) of section 190; (F) to make over a case under sub-section (2) of section 192; (g) to tender a pardon under section 306; (h) to recall a case and try it himself under section 410; or (i) to sell property under section 458 or section 459, erroneously in good faith does that thing, his proceedings shall not be set aside merely on the ground of his not being so empowered. (Emphasis Mine) 21. Sub section (e) of section 460 Cr.P.C is relevant here, which provides that if any Magistrate not empowered by law took cognizance of an offence under clause (a) or clause (b) of sub-section (1) of section 190, this Irregularity will not vitiate proceedings. (Emphasis Mine) 21. Sub section (e) of section 460 Cr.P.C is relevant here, which provides that if any Magistrate not empowered by law took cognizance of an offence under clause (a) or clause (b) of sub-section (1) of section 190, this Irregularity will not vitiate proceedings. Further Section 461(l) of the Cr.P.C. also provides that if any Magistrate not being empowered by law in this behalf tries an offender the proceedings shall be void, but it has to be recalled that the criminal trial starts after framing of the charge, therefore, subsection (l) of Section 461 Cr.P.C. also shall have no application in this case as no charge has yet been framed against the appellants and consequently no trial has begun. Conjoint reading of section 14 of the SC/ST Act, section 190,460 and 461 of Cr.P.C. would reveal that merely Cognizance of the offence has been taken by the Magistrate instead of the Special Court, the same will not render the proceedings illegal or void unless some prejudice has been caused to the appellants. There is nothing on record which may reflect that any prejudice has been caused to the appellants by the act of taking of cognizance by the Chief Judicial Magistrate instead of special Court. Therefore, I do not find any substance in this argument of learned counsel for the appellants. 22. Coming to the second submission of Learned Counsel for Appellants that the trial court has committed grave error in rejecting the application of discharge of the appellants and have passed the order in a cursory manner. The Law with regard to exercise of discretion by the Trial Court in summoning the proposed Accused persons is now well settled. 23. In G.H.C.L. Employees Stock Option Trust VS. India Infalin Ltd., 2013 (4) SCC 505 It was empasised by the Honble Supreme Court that "summoning of accused in a criminal case is a serious matter. Hence, criminal law cannot be set into motion as a matter of course. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. The Magistrate has to record his satisfaction with regard to the existence of a prima facie case on the basis of specific allegations made in the complaint supported by satisfactory evidence and other material on record." 24. The Magistrate has to record his satisfaction with regard to the existence of a prima facie case on the basis of specific allegations made in the complaint supported by satisfactory evidence and other material on record." 24. In M/s. Pepsi Foods Ltd. and another v. Special Judicial Magistrate and others, 1998 AIR(SC) 128, it was held as under:- "Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. Magistrate has to carefully scrutinize the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is primafacie committed by all or any of the accused." 25. In Bhushan Kumar and Anr v. State (NCT of Delhi) and Anr, 2012 AIR(SC) 1747 Honble Apex Court has held that "10. Section 204 of the Code does not mandate the Magistrate to explicitly state the reasons for issuance of summons. It clearly states that if in the opinion of a Magistrate taking cognizance of an offence, there is sufficient ground for proceeding, then the summons may be issued. This section mandates the Magistrate to form an opinion as to whether there exists a sufficient ground for summons to be issued but it is nowhere mentioned in the section that the explicit narration of the same is mandatory, meaning thereby that it is not a pre-requisite for deciding the validity of the summons issued." 26. This section mandates the Magistrate to form an opinion as to whether there exists a sufficient ground for summons to be issued but it is nowhere mentioned in the section that the explicit narration of the same is mandatory, meaning thereby that it is not a pre-requisite for deciding the validity of the summons issued." 26. In Smt. Nagawwa v/s Veeranna Shivalingappa Konjalgi & others, 1976 AIR(SC) 1947, It is held by The Apex Court that "It is well settled by a long catena of decisions of this Court that at the stage of issuing process the Magistrate is mainly concerned with the allegations made in the complaint or the evidence led in support of the same and he is only to be prima facie satisfied whether there are sufficient grounds for proceedings against the accused. It is not the province of the Magistrate to enter into a detailed discussion of the merit or de-merits of the case nor can the High Court go into this matter in its revisional jurisdiction which is a very limited one." "4.It would thus be clear from the two decisions of this Court that the scope of the inquiry under Section 202 of the Code of Criminal Procedure is extremely limited - limited only to the ascertainment of the truth or falsehood of the allegations made in the complaint - (i) on the materials placed by the complainant before the Court; (ii) for the limited purpose of finding out whether a prima facie case for issue of process has been made out; and (iii) for deciding the question purely from the point of view of the complainant without at all adverting to any defence that the accused may have. In fact it is well settled that in proceedings under Section 202 the accused has got absolutely no locus standi and is not entitled to be heard on the question whether the process should be issued against him or not." "It is true that in coming to a decision as to whether a process should be issued the Magistrate can take into consideration inherent improbabilities appearing on the face of the complaint or in the evidence led by the complainant in support of the allegations but there appears to be a very thin line of demarcation between a probability of conviction of the accused and establishment of a primafacie case against him. The Magistrate has been given an undoubted discretion in the matter and the discretion has to be judicially exercised by him. Once the Magistrate has exercised his discretion it is not for the High Court, or even the Supreme Court, to substitute its own discretion for that of the Magistrate or to examine the case on merits with a view to find out whether or not the allegations in the complaint, if proved, would ultimately end in conviction of the accused. These considerations are totally foreign to the scope and ambit of an inquiry under Section 202 which culminates into an order under Section 204. Thus in the following cases an order of the Magistrate issuing process against the accused can be quashed or set aside: (1) Where the allegations made in the complaint or the statement of the witness recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused; (2) where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused; (3) where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible and (4) where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like." 27. In Sunil Bharti Mittal v. Central Bureau of Investigation (Three Judges Bench), 2015 AIR(SC) 923, Hon'ble Apex Court held as under: "45. On the other hand, Section 204 of the Code deals with the issue of process, if in the opinion of the Magistrate taking cognizance of an offence, there is sufficient ground for proceeding. This Section relates to commencement of a criminal proceeding. On the other hand, Section 204 of the Code deals with the issue of process, if in the opinion of the Magistrate taking cognizance of an offence, there is sufficient ground for proceeding. This Section relates to commencement of a criminal proceeding. If the Magistrate taking cognizance of a case (it may be the Magistrate receiving the complaint or to whom it has been transferred under Section 192), upon a consideration of the materials before him (i.e., the complaint, examination of the complainant and his witnesses if present, or report of inquiry, if any), thinks that there is a prima facie case for proceeding in respect of an offence, he shall issue process against the accused. 46. A wide discretion has been given as to grant or refusal of process and it must be judicially exercised. A person ought not to be dragged into Court merely because a complaint has been filed. If a prima facie case has been made out, the Magistrate ought to issue process and it cannot be refused merely because he thinks that it is unlikely to result in a conviction. 47. However, the words "sufficient grounds for proceeding" appearing in the Section are of immense importance. It is these words which amply suggest that an opinion is to be formed only after due application of mind that there is sufficient basis for proceeding against the said accused and formation of such an opinion is to be stated in the order itself. The order is liable to be set aside if no reason is given therein while coming to the conclusion that there is prima facie case against accused, though the order need not contain detailed reasons. A fortiori, the order would be bad-in-law if the reason given turns out to be ex facie incorrect." 28. Perusal of the record in the back ground of the above noted case laws would reveal that there appears no illegality or irregularity in the order of the subordinate court so far as summoning of the appellants to face trial under relevant penal sections, wherein they have been summoned, is concerned. The Special Judge after applying his judicial mind has summoned the appellants. and keeping in view, the case laws mentioned herein above there appears no illegality so far as the summoning of the appellants to face trial is concerned. The Special Judge after applying his judicial mind has summoned the appellants. and keeping in view, the case laws mentioned herein above there appears no illegality so far as the summoning of the appellants to face trial is concerned. It is to be remembered that at the stage of summoning the Magistrate is mainly concerned with the allegations made in the complaint or the evidence led in support of the same and he is only to be prima facie satisfied whether there are sufficient grounds for proceedings against the accused. The Magistrate, at this stage is not obliged to enter into a detailed discussion of the merit or de-merits of the case nor can this Court go into this in Appellate jurisdiction 29. Coming to the next submission of learned Counsel for the appellant that the Court below has materially erred in rejecting the application of discharge moved in pursuance of the order of this Court, the facts of the instant case are required to be seen in the background of various submissions made by learned Counsel of the Appellant in the backdrop of settled law on this point. 30. In State of Bihar v. Ramesh Singh, 1977 CrLJ 1606 considering the scope of Sections 227 and 228 of the Code, it was held that at the stage of framing of charge it is not obligatory for the Judge to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. 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, at the initial stage of framing of charge, is sufficient to frame the charge and in that event it is not open to say that there is no sufficient ground for proceeding against the accused. 31. Hon'ble Supreme Court in the case of State- Anti Corruption Bureau, Hyderabad and another Vs. P. Suryaprakasam, 1999 SCC(Cri) 373 has held as under: "5. ...........we are constrained to say that the settled law is just the reverse of what the High Court has observed in the above-quoted passage as would be evident from even a cursory reading of Sections 239 and 240 Cr.P.C., which admittedly govern the case of the respondent. P. Suryaprakasam, 1999 SCC(Cri) 373 has held as under: "5. ...........we are constrained to say that the settled law is just the reverse of what the High Court has observed in the above-quoted passage as would be evident from even a cursory reading of Sections 239 and 240 Cr.P.C., which admittedly govern the case of the respondent. According to the above sections, at the time of framing of a charge what the trial court is required to, and can, consider are only the police report referred to under Section 173 Cr.P.C. and the documents sent with it. The only right the accused has at that stage is of being heard and nothing beyond that........" 32. Hon'Ble Supreme Court in the case of State of Delhi Vs. Gyan Devi and others, 2008 (8) SCC 239, held as under: "7. ........The legal position is well settled that at the stage of framing of charge the Trial Court is not to examine and assess in detail the material placed on record by the prosecution nor is it for the Court to consider the sufficiency of the materials to establish the offence alleged against the accused persons. At the stage of charge the Court is to examine the materials only with a view to be satisfied that a prima facie case of commission of offence alleged has been made out against the accused persons. It is also well settled that when the petition is filed by the accused under Section 482 Cr.P.C. seeking for the quashing of charge framed against them the Court should not interfere with the order unless there are strong reasons to hold that in the interest of justice and to avoid abuse of the process of the Court a charge framed against the accused needs to be quashed. Such an order can be passed only in exceptional cases and no rare occasions. It is to be kept in mind that once the Trial Court has framed a charge against an accused the trial must proceed without unnecessary interference by a superior court and the entire evidence from the prosecution side should be placed on record. Any attempt by an accused for quashing of a charge before the entire prosecution evidence has come on record should not be entertained sans exceptional cases." 33. Hon'Ble Supreme Court in the case of Sajjan Kumar Vs. Any attempt by an accused for quashing of a charge before the entire prosecution evidence has come on record should not be entertained sans exceptional cases." 33. Hon'Ble Supreme Court in the case of Sajjan Kumar Vs. Central Bureau of Investigation, 2010 (9) SCC 368 has held as under: 20. ...........It is also clear that in exercising jurisdiction under Section 227 of Cr.P.C., the Magistrate should not make roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. Exercise of jurisdiction under Sections 227 & 228 of Cr.P.C. 21. On consideration of the authorities about the scope of Section 227 and 228 of the Code, the following principles emerge: (i) The Judge while considering the question of framing the charges under Section 227 of the Cr.P.C. has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. The test to determine prima facie case would depend upon the facts of each case. (ii) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained, the Court will be fully justified in framing a charge and proceeding with the trial. (iii) The Court cannot act merely as a Post Office or a mouthpiece of the prosecution but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities etc. However, at this stage, there cannot be a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. (iv) If on the basis of the material on record, the Court could form an opinion that the accused might have committed offence, it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence. (v) At the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing a charge the Court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible. (v) At the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing a charge the Court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible. (vi) At the stage of Sections 227 and 228, the Court is required to evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken at their face value discloses the existence of all the ingredients constituting the alleged offence. For this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case. (vii) If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage, he is not to see whether the trial will end in conviction or acquittal. 34. Hon'Ble Supreme Court in the case of State of Orissa Vs. Debendra Nath Padhi, 2005 (1) SCC 568 has held as under: 6. At the stage of framing charge, the trial court is required to consider whether there are sufficient grounds to proceed against the accused. Section 227 of the Code provides for the eventuality when the accused shall be discharged. If not discharged, the charge against the accused is required to be framed under Section 228. .. 7. Similarly, in respect of warrant cases triable by Magistrates, instituted on a police report, Sections 239 and 240 of the Code are the relevant statutory provisions. Section 239 requires the Magistrate, to consider 'the police report and the documents sent with it under Section 173' and, if necessary, examine the accused and after giving accused an opportunity of being heard, if the Magistrate considers the charge against the accused to be groundless, the accused is liable to be discharged by recording reasons thereof. 8. What is to the meaning of the expression 'the record of the case' as used in Section 227 of the Code. 8. What is to the meaning of the expression 'the record of the case' as used in Section 227 of the Code. Though the word 'case' is not defined in the Code but Section 209 throws light on the interpretation to be placed on the said word. Section 209 which deals with the commitment of case to Court of Session when offence is triable exclusively by it, inter alia, provides that when it appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall commit 'the case' to the Court of Session and send to that court 'the record of the case' and the document and articles, if any, which are to be produced in evidence and notify the Public Prosecutor of the commitment of the case to the Court of Session. It is evident that the record of the case and documents submitted therewith as postulated in Section 227 relate to the case and the documents referred in Section 209. That is the plain meaning of Section 227 read with Section 209 of the Code, No provision in the Code grants to the accused any right to file any material or document at the stage of framing of charge. That right is granted only at the stage of the trial. 9. Further, the scheme of the Code when examined in the light of the provisions of the old code of 1898, makes the position more clear. In the old code, there was no provision similar to Section 227. Section 227 was incorporated in the Code with a view to save the accused from prolonged harassment which is a necessary concomitant of a protracted criminal trial. It is calculated to eliminate harassment to accused persons when the evidential materials gathered after investigation fall short of minimum legal requirements. If the evidence even if fully accepted cannot show that the accused committed the offence, the accused deserves to be discharged. In the old Code, the procedure as contained in Sections 207 and 207(a) was fairly lengthy. Section 207, inter alia, provided that the Magistrate, where the case is exclusively triable by a Court of Session in any proceedings instituted on a police report, shall follow the procedure specified in Section 207(a). In the old Code, the procedure as contained in Sections 207 and 207(a) was fairly lengthy. Section 207, inter alia, provided that the Magistrate, where the case is exclusively triable by a Court of Session in any proceedings instituted on a police report, shall follow the procedure specified in Section 207(a). Under Section 207(a) in any proceeding instituted on a police report the Magistrate was required to hold inquiry in terms provided under Sub-section (1), to take evidence as provided in Sub-section (4), the accused could cross-examine and the prosecution could re- examine the witnesses as provided in Sub-section (5), discharge the accused if in the opinion of the Magistrate the evidence and documents disclosed no grounds for committing him for trial, as provided in Sub-section (6) and to commit the accused for trial after framing of charge as provided in Sub-section (7), summon the witnesses of the accused to appear before the court to which he has been committed as provided in Sub-section (11) and send the record of the inquiry and any weapon or other thing which is to be produced in evidence, to the Court of Session as provided in Sub-section (14). The aforesaid Sections 207 and 207(a) have been omitted from the Code and a new Section 209 enacted on the recommendation of the Law Commission contained in its 41st Report. It was realised that the commitment inquiry under the old Code was resulting in inordinate delay and served no useful purpose. That inquiry has, therefore, been dispensed with in the Code with the object of expeditious disposal of cases. Instead of committal Magistrate framing the charge, it is now to be framed by Court of Session under Section 228 in case the accused is not discharged under Section 227. This change brought out in the code is also required to be kept in view while determining the question. Under the Code, the evidence can be taken only after framing of charge." 35. Thereafter Honble Apex Court by referring to the ratio laid down in State of Bihar v. Ramesh Singh, 1977 CrLJ 1606 , State of Delhi v. Gyan Devi and Ors., State of Madhya Pradesh v. S.B. Johari and Ors., 2000 CrLJ 944 : State of Maharashtra v. Priya Sharan Maharaj and Ors., 1997 CrLJ 2248 : and State Anti-Corruption Bureau, Hyderabad and Anr. v. P. Suryaprakasam, 1999 SCC(Cri) 373 wherein the Supreme Court reiterated that at the stage of framing of charge the trial court is not to examine and assess in detail the materials placed on record by the prosecution nor is it for the court to consider the sufficiency of the materials to establish the offence alleged against the accused persons and also held that the charge can be quashed if the evidence which the prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted, can not show that the accused committed the particular offence. In that case, there would be no sufficient ground for proceeding with the trial and at the stage of framing of charge there can only be limited evaluation of materials and documents on record and sifting of evidence to prima facie find out whether sufficient ground exists or not for the purpose of proceeding further with the trial, have so held with reference to materials and documents produced by the prosecution and not the accused. The above mentioned decisions proceed on the basis of settled legal position that the material as produced by the prosecution alone is to be considered and not the one produced by the accused. The latter aspect relating to the accused though has not been specifically stated, yet it is implicit in the decisions. It seems to have not been specifically so stated as it was taken to be well settled proposition. This aspect, however, has been adverted to in where considering the scope of Sections 239 and 240 of the Code it was held that at the time of framing of charge, what the trial court is required to, and can consider are only the police report referred to under Section 173 of the Code and the documents sent with it. The only right the accused has at that stage is of being heard and nothing beyond that. The Supreme Court further held that judgment of the High Court quashing the proceedings by looking into the documents filed by the accused in support of his claim that no case was made out against him even before the trial had commenced was reversed by the Supreme Court. 36. The Supreme Court further held that judgment of the High Court quashing the proceedings by looking into the documents filed by the accused in support of his claim that no case was made out against him even before the trial had commenced was reversed by the Supreme Court. 36. It was thus concluded that at Sections 227 and 228 stage the court is required to evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The court may, for this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case. 37. Hon'Ble Supreme Court in the case of State of Supt. And Remembrancer of Legal Affairs, West Bengal Vs. Anil Kumar Bhunja and others, 1979 4 SCC 274 has held as under:- "18. 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, 1977 CrLJ 1606 , 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 CrPC, 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." 13. Hon'ble Supreme Court in the case of State of Tamil Nadu Vs. Hon'ble Supreme Court in the case of State of Tamil Nadu Vs. N. Suresh Rajan and others, 2014 (11) SCC 709 has held as under:- "The aforesaid decisions consider the provision of Section 227 of the Code and make it clear that at the stage of discharge the Court can not make a roving enquiry into the pros and cons of the matter and weigh the evidence as if it was conducting a trial. It is worth mentioning that the Code contemplates discharge of the accused by the Court of Sessions under Section 227 in a case triable by it; cases instituted upon a police report are covered by Section 239 and cases instituted otherwise than on a police report are dealt with in Section 245. From a reading of the aforesaid sections it is evident that they contain somewhat different provisions with regard to discharge of an accused. 31.1 Under Section 227 of the Code, the trial Court is required to discharge the accused if it "considers that there is not sufficient ground for proceeding against the accused". However, discharge under Section 239 can be ordered when "the Magistrate considers the charge against the accused to be groundless". The power to discharge is exercisable under Section 245(1) when, "the Magistrate considers, for reasons to be recorded that no case against the accused has been made out which, if not repudiated, would warrant his conviction". 31.2 Section 227 and 239 provide for discharge before the recording of evidence on the basis of the police report, the documents sent along with it and examination of the accused after giving an opportunity to the parties to be heard. However, the stage of discharge under Section 245, on the other hand, is reached only after the evidence referred in Section 244 has been taken. 31.3 Thus, there is difference in the language employed in these provisions. But, in our opinion, notwithstanding these differences, and whichever provision may be applicable, the Court is required at this stage to see that there is a prima facie case for proceeding against the accused. Reference in this connection can be made to a judgment of this Court in the case of R.S. Nayak v. A.R. Antulay, 1986 (2) SCC 716 . Reference in this connection can be made to a judgment of this Court in the case of R.S. Nayak v. A.R. Antulay, 1986 (2) SCC 716 . The same reads as follows: 43....Notwithstanding this difference in the position there is no scope for doubt that the stage at which the magistrate is required to consider the question of framing of charge under Section 245(1) is a preliminary one and the test of "prima facie" case has to be applied. In spite of the difference in the language of the three sections, the legal position is that if the Trial Court is satisfied that a prima facie case is made out, charge has to be framed." 38. Keeping in view the above mentioned case laws on the subject if the facts of the present case are scrutinized within the permissible limits mentioned herein above it is apparent that though there appears that a criminal case was earlier instituted by the respondent against appellants and other persons and there was previous enmity in between the parties but that alone could not be the basis of discharging the accused-appellants. The material produced before this Court by the appellants may be used by them during the course of the trial to impeach the prosecution witnesses or to show during the course of the trial that the prosecution witnesses are inimical and appellants have been falsely implicated, but the same is not strong enough to discharge the appellants. Culmination of trial at the stage of framing of charge, requires very strong and cogent grounds and inherent weaknesses in the version of prosecution apparent on the face to demonstrate that trial will either result in failure of justice or will be a futile exercise or will operate as engines of oppression to the appellant or no ingredients of alleged penal offences are existing. 39. I have gone through the case laws relied on by learned counsel for the appellants. In Chandra Lok Gramin Sahkari Awas Samiti & Others Vs. State of U.P. (Supra) the cognizance taking order was quashed as no penal offence was emerging out of the facts of the case. While in the case of Naresh Vs. 39. I have gone through the case laws relied on by learned counsel for the appellants. In Chandra Lok Gramin Sahkari Awas Samiti & Others Vs. State of U.P. (Supra) the cognizance taking order was quashed as no penal offence was emerging out of the facts of the case. While in the case of Naresh Vs. State of U.P. and Another, 2011 (3) JIC 761 All, it was held that the Court is not to act as post office and be a mouth piece of the prosecution and if there is only a suspicion and not grave suspicion then charge should not be framed. Therefore, in these cases Hon'ble Allahabad High Court hold that on the basis of the grave suspicion also the charge could be framed. So no benefit of these case laws could be claimed by the appellants in the facts and circumstances of the case. The case of Priyanka Srivastava and Another (Supra) is related to Section 156(3) Cr.P.C and the case law of Harbeer Singh Vs. Sheeshpal and others (Supra) is related to the trial stage and is not related to the stage of framing of charge. While the case law of Birla Corporation Limited (Supra) and Sri Suresh Kumar Goyal and others (Supra) decided by Hon'ble Supreme Court are having different set of facts and circumstances as in Birla Corporation Limited there were number of litigations pending between the parties and in this backdrop Hon'ble Supreme Court hold that the continuation of criminal proceeding would be an abuse of the process of the Court, while in Suresh Kumar Goyal's case (Supra) there was no sufficient material before the Court, in the background of which Hon'ble Supreme Court hold that filing of a complaint is nothing but an attempt to wrack vengeance against accused persons and, therefore, is an abuse of the process of the Court. In the instant case the complainant of a criminal case was allegedly threatened, intimidated to do compromise in that case or to withdraw it. 40. I have gone through the whole record and have perused the material in depth including the material/ documents, which have been relied on by learned counsel for the appellants to show that they have been falsely implicated, but I am not inclined to accept the submission that there is no sufficient grounds in this case to proceed further. 40. I have gone through the whole record and have perused the material in depth including the material/ documents, which have been relied on by learned counsel for the appellants to show that they have been falsely implicated, but I am not inclined to accept the submission that there is no sufficient grounds in this case to proceed further. Needless to say that enmity is a double edged weapon and the falsehood or the truthfulness of the allegations can only be tested in the trial. The trial of a criminal case is nothing but a journey to unearth the truth and this course can only be disrupted when some strong, compelling grounds and material is available, which uproots the prosecution from its roots and nothing is left for the prosecution. Unfortunately that is not a case here. The other submissions that wrong section of SC/ST Act has been mentioned in the summoning order is also not strong enough to favor discharge of appellants as the same can be corrected at the stage of framing of charges against the appellants. No documentary evidence either produced which may establish that no list of witness is on record of trial court. 41. Therefore, keeping in view the above mentioned legal propositions and factual position, I am not inclined to accept the submissions of learned counsel for the appellants that the court below has erred in dismissing discharge application. The trial Court appears to have passed a reasoned and well discussed. Resultantly this criminal appeal filed by the appellants is not having force and the same is dismissed and the order of the subordinate court dated 16.11.2018 passed by Second Additional Sessions Judge/ Special Judge, Balrampur, passed in Complaint Case No. 56/2018 (Banshi Lal Vs. Hemant Kumar Mishra and others), under Sections 323/ 504/ 506 I.P.C. and Section 3(1) (10) of SC/ST Act, P.S. Kotwali Utraula, District Balrampur, whereby the discharge application of the appellants was rejected, is confirmed. 42. At this stage it is submitted by learned counsel for the appellants that it is apprehended that the moment they will surrender before the trial court they will be sent to prison and disposal of their bail applications may take time. 42. At this stage it is submitted by learned counsel for the appellants that it is apprehended that the moment they will surrender before the trial court they will be sent to prison and disposal of their bail applications may take time. Needless to say that disposal of bail applications in any case is the prerogative and discretion of the court concerned and the same can not be circumcised by passing any order in this regard. Suffice to say that since appellants are willing to participate in the trial, therefore, it is directed that in case the appellants appear and surrender before the court below within 30 days from today and apply for bail, their prayer for bail shall be considered and decided in view of the settled law laid by this Court in the case of Amrawati and another Vs. State of U.P., 2004 (57) AllLR 290 as well as judgement passed by Hon'ble Apex Court Lal Kamlendra Pratap Singh Vs. State of U.P., 2009 (3) ADJ 322 (SC) 43. For a period of 30 days from today or till surrender of applicants before trial court, whichever is earlier, no coercive steps shall be taken against the appellants in the above mentioned case.