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2019 DIGILAW 2846 (ALL)

Gyan Chand v. State of U. P.

2019-12-20

RAM KRISHNA GAUTAM

body2019
JUDGMENT : Ram Krishna Gautam, J. 1. This criminal revision under section 397/401 Cr.P.C. has been with a prayer for quashing the order dated 3.10.2019, passed by learned Chief Judicial Magistrate, Court No. 17, Deoria, on application filed under section 245(2) Cr.P.C. as well as the proceeding of Complaint Case No. 872 of 2019 (Old No. 225 of 2014), under sections 323, 354, 380, 427, 504, 506 I.P.C., Awinash v. Gyan Chand and others, pending before learned Chief Judicial Magistrate, Deoria. 2. Heard Sri Dharmendra Dhar Dubey, Advocate, holding brief of Sri Amresh Kumar Tiwari, learned Counsel for revisionists and learned A.G.A. for State. 3. Learned Counsel for revisionists argued that initially date and time of occurrence was said to be different. Subsequently, by tampering, the same was changed from 23.4.2014 at 5 P.M. to 23.11.2014 at 3.10 P.M. and this was with intention to keep pace with medico legal report. This apparent tampering was challenged in a proceeding under section 340 Cr.P.C., but no cognizance was taken. Hence, a proceeding under section 482 Cr.P.C. was filed before this Court, wherein a direction was made for time bound disposal of above application moved under section 340 Cr.P.C. Thereafter, Magistrate registered above application as a complaint case and decided to proceed further as complaint case. It has not yet been decided and the same is lingering for its disposal, whereas revisionists have been summoned for above offences under sections 323, 354, 380, 427, 504 and 506 I.P.C. Though, accusation was for offences punishable under S.C/S.T. Act also, but no summoning for this offence was there. Thereafter, complainant moved a revision before Court of Sessions for this non-summoning, which was rejected. Ultimately, with a malice, civil suit was filed, wherein ad-interim injunction application 6-C was rejected on merit. Again another complaint by brother of present complainant was filed with the same sequence of occurrence and offences, wherein proceeding was there. Hence, all these facts were raised in an application moved under section 245(2) Cr.P.C., but learned Magistrate has passed impugned order, rejecting application on the ground that revisionists have yet not surrendered before above Court and have not taken bail, hence discharge application was not maintainable. Hence, all these facts were raised in an application moved under section 245(2) Cr.P.C., but learned Magistrate has passed impugned order, rejecting application on the ground that revisionists have yet not surrendered before above Court and have not taken bail, hence discharge application was not maintainable. It was in utter defiance of provision of section 245(2) Cr.P.C. because there was no mandate for appearance of revisionists for disposal of application, moved under section 245(2) Cr.P.C. The law propounded by this Court in Nanhe Lal and others v. State of U.P. and another, 2014 1 ACR 726 , (Criminal Revision No. 3640 of 2013, decided on 16th January, 2014) as well as Sheoshankar and others v. State of U.P. and another, 2018 Law Suit (All) 759, has been pressed. Hence, this revision with above prayer. 4. Learned A.G.A. has vehemently opposed the revision. 5. A proceeding under section 340 Cr.P.C. is pending, wherein application was considered as a complaint case, but trial could not be concluded. Present accusation and inquiry made by Magistrate, resulted passing of impugned order, for offence punishable, as above. This summoning order was challenged before Court of revision, wherein revision was dismissed. Now, discharge application under section 245(2) Cr.P.C. was moved, which was rejected by impugned order. Admittedly, stage from 200 to 204 Cr.P.C. has been passed. It was the stage of recording of statement under section 244 Cr.P.C., but the same has yet not been recorded. Nothing more than complaint is there on record and on the basis of prima facie substance, summoning order was passed. Now, as per section 245(2) Cr.P.C., Magistrate is empowered to make discharge at any time before discharge under section 245(2) Cr.P.C., provided he will have to give the reason of such discharge i.e. law does not prohibit for any discharge under section 245(2) Cr.P.C., but it is till proceeding up to section 204 Cr.P.C. Regarding proceeding at the stage of 244 Cr.P.C., mandate of personal appearance is there and on the basis of it, circular letter of this Court in administrative side has also been issued to all the subordinate Courts as CL. No. 2386/Admin, 'G-II' Dated: Allahabad 19.2.2013, wherein principle laid down in Dr. No. 2386/Admin, 'G-II' Dated: Allahabad 19.2.2013, wherein principle laid down in Dr. Gulzar v. State of U.P. was reiterated as "The essential feature of the Court discussion is that the accused is bound to furnish bond that he will appear before the Court during the trial, unless otherwise directed by the Court. He cannot file any application in the proceedings unless he binds himself to appear before the trial. The application entrained by the Trial Court without seeking bond is unwarranted...........Till the accused are bound by the Court and have not surrendered before the Court they have no Locus to file any application before the Court where the trial is going on." The same principle has been propounded in Sheoshankar and 2 others v. State of U.P. and another (supra). 6. Hon'ble Apex Court in Ajai Kumar Ghose v. State of Jharkhand and another, 2010 1 SCC (Cri) 1301; in para 9 has held as under:-- "9. Mr. Nandit Srivastava tried to submit that the Apex Court, in the aforesaid case of Ajai Kumar Ghose (supra) has very clearly held that the power under section 245(2) of the Code can be exercised even before the appearance of the accused, therefore, learned Magistrate as well as the Revisional Court could not be said to be justified in requiring the petitioner to appear in person in Court at the time of considering his prayer for discharge under section 245(2) of the Code. It is no doubt true that the Apex Court has held in the aforesaid case that the discharge prayer under section 245(2) can be entertained even before appearance of the accused in the Court but that proposition seems to have been laid down in different context. It appears that the Apex Court bifurcated the expression "previous stage of the case" in two categories. The first category is the stage of the case under sections 202 to 204 of the Code, and the other category is the stage of evidence on appearance of the accused under section 244 of the Code. It appears that the Apex Court bifurcated the expression "previous stage of the case" in two categories. The first category is the stage of the case under sections 202 to 204 of the Code, and the other category is the stage of evidence on appearance of the accused under section 244 of the Code. In the first category of the case, the Apex Court opined that the discharge prayer can be considered before appearance of the accused but in the second category of the case presence of the accused has been held necessary because the proceedings under section 244 begins with the appearance of the accused, therefore, in a case where the stages provided in sections 200 to 202 of the Code have already come to an end and the case reaches the stage of section 244 of the Code on appearance of the accused, the discharge prayer, in such situation under section 245 (2) of the Code cannot be entertained without the appearance of the accused. This conclusion finds support from the observations of the Apex Court made in para 29 of the judgment in Ajai Kumar Ghose case. In that paragraph the Apex Court held "If the Magistrate comes to the conclusion that there is sufficient ground for proceeding, he can issue process under section 204 of the Code.....It is in fact here that previous stage referred to in section 245 normally comes to an end because the next stage is only the appearance of the accused before the Magistrate in a warrant case under section 244 of the Code." To put it otherwise, as and when any process issued to the accused, the previous stage referred to in section 245(2) of the Code ordinarily comes to an end but there may be Cases were discharge prayer is made on appearance of the accused but before the start of prosecution evidence or during the course of prosecution evidence but before its conclusion. In the subsequent situation, the personal presence of the accused, if not already exempted under section 205 of the Code, is necessary. In the subsequent situation, the personal presence of the accused, if not already exempted under section 205 of the Code, is necessary. In this view of the matter, the submission of the learned Counsel for the petitioner that after issuing the process under section 204 of the Code the Magistrate could consider the discharge prayer of the petitioner under section 245(2) of the Code without personal appearance of the petitioner in the Court, does not appear to be correct." 7. Hence, it was necessary to begin proceeding under section 244 Cr.P.C. with appearance of accused. In present case revisionists have not surrendered and have not executed bonds for their appearance. Hence, Magistrate was well within jurisdiction and with reasons supported by above precedents for passing impugned order. There was neither exceeding of jurisdiction nor misuse of jurisdiction or error apparent on the face of record. 8. Hence, this revision merits its dismissal. The revision is dismissed as such.