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2019 DIGILAW 319 (AP)

John Raju Junjunuri v. State of Andhra Pradesh

2019-11-12

CHEEKATI MANAVENDRANATH ROY

body2019
JUDGMENT : Cheekati Manavendranath Roy, J. 1. This revision is directed against the order dated 27.4.2019 passed in Crl. M.P. No. 4410 of 2018 in CC No. 350 of 2016 on the file of the Additional Judicial Magistrate of First Class, Nandigama, Krishna District, whereby the petition filed under Section 245(2) of Cr.P.C. to discharge the petitioner, who is accused No. 3 in the above case, was dismissed. 2. Facts of the case lie in a narrow compass and may be stated as follows: (a) The de facto complainant by name V. Venkateswara Sastry initially lodged a report with the police alleging that his Service Register was tampered with by the accused Nos. 1 to 6. The said report was referred by the police on the ground that the dispute is of civil in nature. The Additional Judicial Magistrate of First Class, Nandigama, did not accept the said final report referring the case as of civil in nature and by his order dated 17.6.2016, he has taken cognizance of the case for the offences punishable under Sections 465 and 471 read with Section 120-B of IPC against accused Nos. 1 to 6 and he has registered the said complaint as CC No. 350 of 2016 and issued summons to accused Nos. 1 to 6. (b) Thereafter, the petitioner herein, who is accused No. 3, filed a petition under Section 245(2) of Cr.P.C. to discharge him in the said case. The learned Magistrate by the impugned order dated 27.4.2019 dismissed the said petition on the ground that it was filed at a premature stage. (c) Aggrieved thereby, the petitioner who is accused No. 3 preferred the present revision to this Court. 3. Heard Smt. S. Pranathi, learned Counsel for the petitioner and Sri S. Syamsunder Rao, learned Counsel for the 2nd respondent. 4. Learned Counsel for the petitioner while relying on the judgment of the Apex Court in the case of Ajoy Kumar Ghose v. State of Jharkhand, Crl. M.P. No. 485/2009, dated 18.3.2019, would contend that the finding of the learned Magistrate that the petition is premature is erroneous and she would contend that in a private warrant-case, the Magistrate is empowered to discharge the accused at any stage of the proceedings under Section 245(2) of Cr.P.C. Therefore, she prayed to allow the revision and set aside the impugned order. 5. 5. Per contra, the learned Counsel for the 2nd respondent would contend that since the Magistrate has taken cognizance of the case under Sections 465 and 471 read with Section 120-B of IPC, they are not the offences triable as per procedure prescribed for trial of warrant-cases so as to frame any charge or to entertain any petition to discharge as these offences are triable as per procedure prescribed for trial of summons-cases and as such the question of framing charge or to consider a petition for discharge does not arise. So, he would contend that the very petition filed by the petitioner under Section 245(2) of Cr.P.C., to discharge him in the case is itself not maintainable and thereby prayed for dismissal of the revision petition. 6. Perused the record. 7. As can be seen from the material placed on record, after the police referred the case as of civil nature, the learned Magistrate by his order dated 17.6.2016 did not accept the said final report and he has taken cognizance of the case for the offences under Sections 465 and 471 read with Section 120-B of IPC against all the accused i.e., accused Nos. 1 to 6 and registered the said case as CC No. 350 of 2016 and issued summons to the accused. 8. Now it is to be seen whether the case involving offences punishable under Sections 465 and 471 read with Section 120-B of IPC is a warrant-case or summons-case and whether framing of charge is required or not. 9. Warrant-case is defined under Section 2(x) of Cr.P.C. and it reads as under: "Warrant-case" means a case relating to an offence punishable with death, imprisonment for life or imprisonment for a term exceeding two years." 10. Section 2(w) of Cr.P.C., defines a summons-case and it reads as under: "Summons-case" means a case relating to an offence, and not being a warrant-case." 11. Therefore, from a plain reading of the aforesaid definitions of Warrant-case and Summons-case as defined under Section 2(x) and 2(w) of Cr.P.C., it is clear that an offence which is punishable with death or imprisonment for life or imprisonment for a term exceeding two years is only to be tried as a warrant-case. A case not falling within the definition of the warrant-case is to be construed as a summons-case. A case not falling within the definition of the warrant-case is to be construed as a summons-case. Therefore, it is manifest that the punishment prescribed for a particular offence determines whether the said case is to be tried as per the procedure prescribed for a warrant-case or a summons-case. Since the cognizance of the case is taken for the offences under Sections 465 and 471 read with Section 120-B of IPC, it is expedient to notice the punishment prescribed for the said offences to ascertain whether the case is triable as a warrant-case or a summons-case to resolve the controversy involved in this revision. 12. Section 465 of IPC reads as follows: "Punishment for forgery: Whoever commits forgery shall be punished with imprisonment for either description for a term which may extend to two years or with fine or with both." Section 471 of IPC reads as follows: "471. Using as genuine a forged document or electronic record.-Whoever fraudulently or dishonestly uses as genuine any document or electronic record which he knows or has reason to believe to be a forged document or electronic record, shall be punished in the same manner as if he had forged such document or electronic record." Section 120-B of IPC reads as follows: "120-B. Punishment of criminal conspiracy.-(1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence. (2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both." 13. Therefore, it is clear from a reading of the above sections that the punishment prescribed for the offence under Section 465 of IPC is only upto two years. It is not more than two years or exceeding two years. Therefore, it is clear from a reading of the above sections that the punishment prescribed for the offence under Section 465 of IPC is only upto two years. It is not more than two years or exceeding two years. Section 471 of IPC envisages that whoever fraudulently or dishonestly uses as genuine any document which he knows or has reason to believe to be forged shall be punished in the same manner as if he has forged such document, which means that the prescribed punishment under Section 471 of IPC is also the same punishment as prescribed under Section 465 of IPC i.e.,' imprisonment for a term which may extend to two years or with fine or with both. Under Section 120-B of IPC when the alleged criminal conspiracy is to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards and where no express provision is made in the Code for punishment of such conspiracy, one is liable for punishment in the same manner as if he has abetted such offence. Since the offences under Sections 465 and 471 of IPC are punishable upto two years, the punishment for the offence under Section 120-B of IPC in this case is also the same punishment as prescribed for the offences under Sections 465 and 471 of IPC. 14. So, the prescribed punishment for both the offences under Section 465 of IPC and Section 471 of IPC is not more than two years. Punishment for Section 120-B of IPC is also the same as if the person has abetted such offence. So, none of the offences i.e., Sections 465, 471 and 120-B of IPC are punishable for more than two years' period to hold that they are to be tried as per the procedure prescribed for trial of a warrant-case. Therefore, as a corollary it is to be held that aforesaid offences are triable as a summons-case. 15. As per law, charges would be framed in a criminal case only when the offences are triable as per the procedure prescribed for trial of a warrant-case or as per the procedure prescribed for trial of sessions cases. The question of framing charge in a summons-case does not arise at all. When there is no need to frame any charge in a summons-case, the question of discharge also does not arise. 16. The question of framing charge in a summons-case does not arise at all. When there is no need to frame any charge in a summons-case, the question of discharge also does not arise. 16. To drive home the point, it is expedient to examine the relevant provisions relating to trial of cases in the scheme of the Code of Criminal Procedure. In the scheme of the Code, there are four types of trials-(1) Sessions trial, (2) Trial of Warrant-cases, (3) Summons trial and (4) Summary trials. Chapter-XVIII deals with Sessions trials. It contains Sections 225 to 237. Section 227 thereof deals with discharge of the accused and Section 228 deals with framing of charge. Chapter-XIX deals with trial of Warrant-cases. It is in two parts. The First Part relates to trial of Warrant-cases instituted on a police report and the Second Part relates to trial of Warrant-cases instituted otherwise than on police report i.e., by way of filing private complaints. Sections 238 to 242 relate to trial of Warrant-cases instituted on a police report. Section 239 thereof deals with discharge of the accused and Section 240 relates to framing of charge. Sections 244 to 250 deal with trial of cases instituted otherwise than on a police report i.e., by way of filing private complaints. Section 245 thereof deals with discharge of the accused and Section 246 relates to framing of charge. Chapter-XX deals with trial of Summons-cases and it consists of Sections 251 to 259 and Chapter-XXI deals with Summary trials and it consists of Sections 260 to 265. In contrast to Chapters-XVIII and XIX which contain provisions for discharge of the accused and framing of charges as noticed supra, no such procedure for framing of charge or for discharge of the accused is prescribed in Chapters-XX and XXI relating, to trial of Summons-cases and Summary trials. Therefore, in the scheme of the Code, the need to frame charge or to discharge accused is contemplated only in Chapters-XVIII and XIX relating to Sessions trials and trial of Warrant-cases both instituted on police report and instituted otherwise than on police report as detailed supra. Framing of charge or discharge of accused is absolutely not contemplated in Summons-cases and Summary trials in Chapters-XX and XXI of the Code. Framing of charge or discharge of accused is absolutely not contemplated in Summons-cases and Summary trials in Chapters-XX and XXI of the Code. Therefore, petition to discharge the accused can be entertained only under Section 227 of Cr.P.C. in Sessions trials and under Section 239 of Cr.P.C. in Warrant-cases instituted on a police report and under Section 245(1) and (2) of Cr.P.C. in Warrant-cases instituted otherwise than on police report. Petition for discharge of the accused is not maintainable in Summons-cases and Summary trials as there is no provision to entertain any such petition in Chapters-XX and XXI of the Code. 17. Since the offences in this case under Sections 465, 471 and 120-B of IPC are triable as a summons-case, as rightly contended by the learned Counsel for the 2nd respondent, the question of framing charge does not arise at all. Consequently, the question of discharge also does not arise. The trial of the said case is covered by Chapter-XX of the Code which does not contemplate discharge of accused in Summons-cases. Therefore, the petition filed under Section 245(2) of Cr.P.C. to discharge the accused is misconceived and it is not maintainable. 18. The legal position in this regard has been settled by the three-Judge Bench of the Apex Court in the case of Subramanium Sethuraman v. State of Maharashtra, 2005 (1) ALD (Crl.) 124 (SC) : (2004) 13 SCC 324 , wherein the Apex Court held as follows: "The case involving a summons-case is covered by Chapter-XX of the Code which does not contemplate a stage of discharge like Section 239 of Cr.P.C. which provides for a discharge in a warrant-case. Therefore, in our opinion, the High Court was correct in coming to the conclusion that once the plea of the accused is recorded under Section 252 of the Code, the procedure contemplated under Chapter-XX has to be followed which is to take the trial to its logical conclusion." 19. In the light of the ratio laid down in the aforesaid decision of the Apex Court and the relevant provisions in the Code of Criminal Procedure, as discussed supra, if the case on hand is considered, since the offences in the case are triable as per summons procedure under Chapter-XX of the Code, the petition filed under Section 245(2) of Cr.P.C., to discharge the petitioner is misconceived and not maintainable. However, it is made clear that this Court is not expressing any opinion on the merits of the case and this petition is being disposed of only on the ground of maintainability of the petition filed under Section 245(2) of Cr.P.C., to discharge the accused in a summons-case. 20. In view of the above discussion, the revision case is dismissed. Pending applications, if any, shall stand closed.