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2021 DIGILAW 136 (ALL)

Mahendra Kumar v. State Of U. P. Thru Secy.

2021-01-25

YOGENDRA KUMAR SRIVASTAVA

body2021
JUDGMENT : 1. Heard learned counsel for the petitioners and Sri Arvind Kumar, learned A.G.A. appearing for the State respondent. 2. The present petition under Article 226 of the Constitution of India was filed seeking a writ of certiorari for quashing of the orders dated 15.2.2014 and 11.12.2014 passed by the 1st Additional Chief Judicial Magistrate Varanasi and the Additional Sessions Judge, Court No. 8, Varanasi respectively, in terms of which the application of the petitioner seeking discharge was rejected and the revision filed thereagainst was also dismissed. 3. Upon the matter being taken up, on 06.02.2015, the parties were referred to mediation. The order sheet indicates that as per the report received from the mediation centre dated 09.08.2019, the mediation was completed but no agreement could be arrived at between the parties. 4. With the consent of counsel for the parties, the petition is taken up for final disposal. 5. Upon an order passed on an application under Section 156 (3) Cr.P.C., filed by the respondent no. 2, a first information report was registered on 16.09.2006 as Case Crime No. C-33/06 under Sections 498-A, 323, 504 I.P.C. and 3/4 Dowry Prohibition Act against the petitioners. The investigation was concluded and a final report dated 05.11.2006 was submitted. The respondent no. 2 submitted a protest petition on 12.09.2008 whereupon the learned Magistrate rejected the final report and registered Case No. 112 of 2012. The complainant and the witnesses were examined under Sections 200 and 202 and the petitioners were summoned to face the trial. 6. An application for discharge under Section 245 Cr.P.C. was moved which was rejected by the Additional Chief Judicial Magistrate Varanasi vide order dated 15.02.2014. The revision filed thereagainst was also dismissed by the Additional Sessions Judge in terms of judgment and order dated 11.12.2014. Aggrieved with the aforesaid orders the present petition has been filed. 7. The principal ground raised in the petition is that the evidence on record does not disclose that any offence is made out against the petitioners and the courts below have failed to consider the facts of the case and the material evidence while rejecting the discharge application moved by the petitioners. It is further submitted that the petitioners have been falsely implicated and that the entire proceedings are aimed at causing harassment to them. 8. It is further submitted that the petitioners have been falsely implicated and that the entire proceedings are aimed at causing harassment to them. 8. The aforementioned contentions have been controverted by the learned A.G.A. appearing for the State respondent and the counsel for the respondent no. 2 by submitting that at the stage of proceedings under Section 245 the Magistrate is only required to consider the evidence prima facie and is not required to go into the evidence in full details. It is submitted that the order passed by the courts below do not suffer from any error or illegality and that the present petition is liable to be dismissed. 9. In order to appreciate the rival contentions the relevant statutory provision may be adverted to. For ease of reference Section 245 is being reproduced below:- "245. When accused shall be discharged.- (1) If, upon taking all the evidence referred to in section 244, the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him. (2) Nothing in this section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless." 10. In a warrant case instituted otherwise than on a police report, the Magistrate may under Section 244 take all such evidence as may be produced in support of the prosecution. It is at this stage, upon taking all the evidence referred to in Section 244, if the Magistrate considers, for reasons to be recorded that no case against the accused has been made which, if unrebutted, would warrant his convocation, the Magistrate shall discharge him. 11. The Magistrate, at this stage, is only required to consider the evidence prima facie with a view as to whether the evidence, if unrebutted, would result in conviction. 12. The nature of evaluation to be made by the court at the stage of framing of charge came up for consideration in Onkar Nath Mishra and others Vs. State (NCT of Delhi) and another, and referring to the earlier decisions in State of Maharashtra Vs. Som Nath Thapa, and State of M.P. Vs. 12. The nature of evaluation to be made by the court at the stage of framing of charge came up for consideration in Onkar Nath Mishra and others Vs. State (NCT of Delhi) and another, and referring to the earlier decisions in State of Maharashtra Vs. Som Nath Thapa, and State of M.P. Vs. Mohanlal Soni, it was held that at that stage the Court has to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged and it is not expected to go deep into the probative value of the material on record. The relevant observations made in the judgment are as follows :- "11. It is trite that at the stage of framing of charge the court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom, taken at their face value, disclosed the existence of all the ingredients constituting the alleged offence. At that stage, the court is not expected to go deep into the probative value of the material on record. What needs to be considered is whether there is a ground for presuming that the offence has been committed and not a ground for convicting the accused has been made out. At that stage, even strong suspicion founded on material which leads the court to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged would justify the framing of charge against the accused in respect of the commission of that offence. Xxx 13. Then again in State of Maharashtra Vs. Som Nath Thapa, a three-Judge Bench of this Court, after noting three pairs of sections viz. (i) Sections 227 and 228 insofar as sessions trial is concerned; (ii) Sections 239 and 240 relatable to trial of warrant cases; and (iii) Sections 245(1) and (2) qua trial of summons cases, which dealt with the question of framing of charge or discharge, stated thus: (SCC p. 671, para 32) "32...if on the basis of materials on record, a court could come to the conclusion that commission of the offence is a probable consequence, a case for framing of charge exists. To put it differently, if the court were to think that the accused might have committed the offence it can frame the charge, though for conviction the conclusion is required to be that the accused has committed the offence. It is apparent that at the stage of framing of a charge, probative value of the materials on record cannot be gone into; the materials brought on record by the prosecution has to be accepted as true at that stage." 14. In a later decision in State of M.P. Vs. Mohanlal Soni, this Court, referring to several previous decisions held that: (SCC p. 342, para 7) "7. The crystallised judicial view is that at the stage of framing charge, the court has to prima facie consider whether there is sufficient ground for proceeding against the accused. The court is not required to appreciate evidence to conclude whether the materials produced are sufficient or not for convicting the accused." 13. Reiterating a similar view in Sheoraj Singh Ahlawat and others Vs. State of Uttar Pradesh and another, it was held that the Court trying the case can direct discharge only for reasons to be recorded by it and only if it considers the charge against the accused to be groundless. 14. The scope of the exercise of power and jurisdiction with regard to discharge again came up for consideration in State of Tamil Nadu Vs. N. Suresh Rajan and others, and it was held that no mini trial is contemplated at the stage of considering the discharge application and only probative value of the materials has to be gone into to see if there is a prima facie case for proceeding against the accused. The observations made in the judgment in this regard are as follows :- "29...It is trite that at the stage of consideration of an application for discharge, the Court has to proceed with an assumption that the materials brought on record by the prosecution are true and evaluate the said materials and documents with a view to find out whether the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. At this stage, probative value of the materials has to be gone into and the court is not expected to go deep into the matter and hold that the materials would not warrant a conviction. At this stage, probative value of the materials has to be gone into and the court is not expected to go deep into the matter and hold that the materials would not warrant a conviction. In our opinion, what needs to be considered is whether there is a ground for presuming that the offence has been committed and not whether a ground for convicting the accused has been made out. To put it differently, if the Court thinks that the accused might have committed the offence on the basis of the materials on record on its probative value, it can frame the charge; though for conviction, the court has to come to the conclusion that the accused has committed the offence. The law does not permit a mini trial at this stage. " 15. The scope of powers under Section 245 Cr.P.C. is therefore limited and the prayer for discharge can be allowed only if the entire evidence, even if it remains unrebutted, no offence whatsoever is made out. For the applicability of Section 245 (1) what is required is that all evidence that may be produced is taken and not that all evidence that the complainant intends to produce in the case has been taken. The discretion of the Magistrate under Section 245 (1) is to discharge the accused without affording further opportunity to the complainant to summon witnesses he is yet to produce. 16. Sections 245 and 246 are supplemental to each other and before drawing the presumption under Section 246 and framing of charge, the test of prima facie case is required to be applied which would mean a case established by prima facie evidence. 17. Section 245 (2) empowers the Magistrate to discharge the accused at any previous stage of the case, if for reasons to be recorded, he considers the charge to be groundless. In order to exercise jurisdiction under sub-section (2), there must be sufficient ground or material on record for coming to the conclusion that the charge is groundless and where a prima facie case is made out discharge of the accused under sub-section (2) would not be proper. 18. At this stage of consideration of an application for discharge, only probative value of the material has to be gone into and the Court is not expected to go deep into the matter. 18. At this stage of consideration of an application for discharge, only probative value of the material has to be gone into and the Court is not expected to go deep into the matter. The scope of consideration by the Court would be as to whether there is ground for presuming that the offence has been committed and not whether a ground for convicting the accused has been made out. 19. In the case at hand, the Additional Chief Judicial Magistrate while considering the application filed under Section 245 (2) Cr.P.C. has duly taken note of the evidence recorded in support of the prosecution under Section 244 to record a conclusion with regard to the sufficiency of material for framing of charge taking into note that at this stage only a prima facie case is required to be seen. The Magistrate has held that on the basis of the material on record it cannot be said that no case is made out against the accused and accordingly, has proceeded to reject the application seeking discharge. 20. The revisional court has duly taken note of the fact that the Magistrate upon duly looking into the material on record has come to the conclusion that there is sufficient material to proceed for framing of charge and has rejected the discharge application for the reason that only a prima facie case was required to be seen at that stage. Taking into consideration the aforesaid, the Additional Sessions Judge exercising revisional powers has held that there is no material irregularity or jurisdictional error in the order passed by the Magistrate and accordingly has rejected the revision. 21. Counsel for the petitioner has not been able to point out any material error, irregularity or perversity in the orders passed by the courts below so as to warrant interference. 22. The contention sought to be put forward that the petitioners have been falsely implicated or that on the basis of the evidence on record no offence is made out against them, cannot be considered at this stage of the proceedings where only the test of a prima facie has to be applied to consider the evidence with a view as to whether the evidence, if unrebutted, would result in conviction. 23. For the reasons aforestated, this Court is not inclined to exercise its extraordinary jurisdiction in the matter. 24. The petition stands accordingly dismissed.