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2021 DIGILAW 1506 (ALL)

Siyaram @ Shiva Ram v. State Of U. P.

2021-12-07

RAJESH SINGH CHAUHAN

body2021
JUDGMENT : 1. Heard Sri Jai Pal Singh, learned counsel for the revisionist, Sri Aniruddh Kumar Singh, learned AGA-I for the State and Sri Vijay Kumar, learned counsel for opposite party no.2. 2. By means of this criminal revision, the revisionist has prayed for setting aside/quashing the order dated 17.8.2021 passed by the Additional Sessions Judge, Room No.4, Sultanpur in S.T. No.145 of 2019 (State Vs. Atma Ram and Others) whereby the discharge application of the revisionist has been rejected. 3. Learned counsel for the revisionist has submitted that as per opposite party no.2, her husband was kidnapped by the petitioner on 25.9.2000. The opposite party no.2 has filed an application under Section 156 (3) Cr.P.C. on 9.10.2012 when her grievance was not redressed by the police concerned. Sri Jai Pal Singh has submitted that the opposite party no.2 has not explained the delay of more than 12 years in approaching the court filing application under Section 156 (3) Cr.P.C. However, on such application, an FIR was lodged on 19.1.2013 against the petitioner. The investigating agency carried out investigation and after recording the statements of various persons, some of them were family members and some of them were independent witnesses, submitted a final report on 4.4.2013 (Annexure No.12). Against such final report dated 4.4.2013, opposite party no.2 has filed protest petition on 9.12.2014 (Annexure No.13), therefore, Sri Jai Pal Singh has submitted that even the protest petition has been filed after more than 1 year and 8 months. Such protest petition was allowed by the learned court below on 17.9.2015 (Annexure No.14) and pursuant to the order dated 17.9.2015, further investigation was conducted and the final report was filed in favour of the revisionist. 4. Sri Jai Pal Singh has submitted that actually the issue in question is relating to property dispute within the family and opposite party no.2 has filed an application under Section 156 (3) Cr.P.C. having apprehension that the part of property, which belongs to her husband, might have been usurped by the revisionist and other family members as her husband is missing. Sri Jai Pal Singh has further submitted that the revisionist has already appeared before the court below and obtained bail. After obtaining bail order, he filed discharge application, which has been enclosed as Annexure No.16 to the revision. Sri Jai Pal Singh has further submitted that the revisionist has already appeared before the court below and obtained bail. After obtaining bail order, he filed discharge application, which has been enclosed as Annexure No.16 to the revision. In the discharge application, the revisionist has categorically indicated that he has not kidnapped the husband of opposite party no.2. He has further submitted that there is no evidence against the revisionist to suggest that he had kidnapped the husband of opposite party no.2. He has categorically submitted that opposite party no.2 has not approached the court for more than 12 years. He has referred some cases being lodged by opposite party no.2 against her husband and he has also submitted that the revisionist is living separately, therefore, he may not be held liable for the kidnapping of the husband of opposite party no.2. 5. Therefore, Sri Singh has submitted that while disposing of the discharge application, learned court below vide impugned order dated 17.8.2021 did not consider any of the submissions and contentions of the discharge application and rejected said application observing that since the husband of opposite party no.2 is missing and specific allegation has been levelled against the revisionist, therefore, prima facie, the case in question is liable to be tried against him. 6. Per contra, Sri Vijay Kumar, learned counsel for opposite party no.2 has also drawn attention of this Court towards Annexure No.1 to the counter affidavit, which is an order dated 15.12.2017 passed by the learned court below summoning the revisionist to face trial under Sections 364/120-B IPC. He has submitted that in the aforesaid order dated 15.12.2017, the learned court below has considered each and every facts in detail. Therefore, Sri Vijay Kumar has submitted that when the learned court below has taken cognizance on 15.12.2017 against the revisionist, the defence so taken by the revisionist can be taken at the stage of trial and while disposing of the discharge application, such evidences may not be appreciated in view of the settled law. Therefore, Sri Vijay Kumar has submitted that when the learned court below has taken cognizance on 15.12.2017 against the revisionist, the defence so taken by the revisionist can be taken at the stage of trial and while disposing of the discharge application, such evidences may not be appreciated in view of the settled law. Sri Vijay Kumar has drawn attention of this Court towards the decision of the Apex Court in re; M.E. Shivalingamurthy vs. Central Bureau of Investigation, AIR 2020 SC 331 , referring para-15 thereof, whereby the Apex Court has observed as under:- "15.The defence of the accused is not to be looked into at the stage when the accused seeks to be discharged under Section 227 CrPC (see State of J&K v. Sudershan Chakkar and another, AIR 1995 SC 1954 ). The expression, "the record of the case", used in Section 227 CrPC, is to be understood as the documents and the articles, if any, produced by the prosecution. The Code does not give any right to the accused to produce any document at the stage of framing of the charge. At the stage of framing of the charge, the submission of the accused is to be confined to the material produced by the police (see State of Orissa v. Debendra Nath Padhi, AIR 2005 SC 359 )." 7. Therefore, as per Sri Vijay Kumar, the instant revision may be dismissed. 8. Learned AGA has also submitted that while disposing of the discharge application, defence of the accused may not be looked into. However, looking to the facts and circumstances of the issue in question, any appropriate order may be passed. 9. Sri Jai Pal Singh in his rejoinder argument has cited the recent decision of the Apex Court in re; Sanjay Kumar Rai vs. State of Uttar Pradesh, AIR Online 2021 SC 239, referring paras 15, 16 & 18, which reads as under:- "15. The correct position of law as laid down in Madhu Limaye v. State of Maharashtra, (1977) 4 SCC 551 , thus, is that orders framing charges or refusing discharge are neither interlocutory nor final in nature and are therefore not affected by the bar of Section 397 (2) of CrPC. The correct position of law as laid down in Madhu Limaye v. State of Maharashtra, (1977) 4 SCC 551 , thus, is that orders framing charges or refusing discharge are neither interlocutory nor final in nature and are therefore not affected by the bar of Section 397 (2) of CrPC. That apart, this Court in the above-cited cases has unequivocally acknowledged that the High Court is imbued with inherent jurisdiction to prevent abuse of process or to secure ends of justice having regard to the facts and circumstance of individual cases. As a caveat it may be stated that the High Court, while exercising its afore-stated jurisdiction ought to be circumspect. The discretion vested in the High Court is to be invoked carefully and judiciously for effective and timely administration of criminal justice system. This Court, nonetheless, does not recommend a complete hands off approach. Albeit, there should be interference, may be, in exceptional cases, failing which there is likelihood of serious prejudice to the rights of a citizen. For example, when the contents of a complaint or the other purported material on record is a brazen attempt to persecute an innocent person, it becomes imperative upon the Court to prevent the abuse of process of law. 16. Further, it is well settled that the trial court while considering the discharge application is not to act as a mere post office. The Court has to sift through the evidence in order to find out whether there are sufficient grounds to try the suspect. The court has to consider the broad probabilities, total effect of evidence and documents produced and the basic infirmities appearing in the case and so on. [Union of India v. Prafulla Kumar Samal]. Likewise, the Court has sufficient discretion to order further investigation in appropriate cases, if need be. 18. The High Court has committed jurisdictional error by not entertaining the revision petition on merits and overlooking the fact that 'discharge' is a valuable right provided to the accused. In line with the fact that the High Court and the court below have not examined the fairness of criminal investigation in this case and other related aspects concerning improvement of witness statements, it is necessary for the High Court to reconsider the entire matter and decide the revision petition afresh. In line with the fact that the High Court and the court below have not examined the fairness of criminal investigation in this case and other related aspects concerning improvement of witness statements, it is necessary for the High Court to reconsider the entire matter and decide the revision petition afresh. Accordingly, we set aside the impugned order dated 28.11.2018 and remand the case back to the High Court for its reconsideration in accordance with law." 10. On the basis of aforesaid decision, Sri Jai Pal Singh has submitted that there is no dispute on such proposition that in the discharge application, the defence of the accused person may not be looked into by the learned court below but it is also true and settled that while disposing of the discharge application, the court has to consider the broad probabilities, total effect of evidence and documents produced and the basic infirmities appearing in the case in question. 11. Having heard learned counsel for the parties and having perused the material available on record as well as the case laws so cited by the learned counsel for the parties, I am of the firm view that while disposing of the discharge application, the court below may not appreciate the defence of the accused as the same should be appreciated at the stage of trial. At the same time, it is also incumbent upon the learned court below to consider and dispose of the contents and contentions of the discharge application and peruse the material available on record as produced by the Investigating Officer. 12. The material available on record e.g. statements of various persons recorded under Section 161 Cr.P.C. etc. should have been considered by the court below carefully inasmuch as the accused person has got legal right to file discharge application and such legal right must be addressed and disposed of by speaking and reasoned order within the four corners of the law. 13. Further, if any specific plea has been taken in the discharge application, which is not directly affecting the trial or if it is at all affecting the trial, the learned court below must consider such contention and address the same by speaking and reasoned order. Learned court below may accept such contentions so raised in the discharge application or may reject the same but both the things should be clear and unambiguous. Learned court below may accept such contentions so raised in the discharge application or may reject the same but both the things should be clear and unambiguous. At least, it should be seen that the learned court below has applied its judicious mind. While disposing of the discharge application, application of mind should be reflected inasmuch as per trite law, the learned trial court while considering the discharge application is not to act as a mere post office. 14. In view of the above, I find that while disposing of the discharge application vide order dated 17.8.2021, the learned court below has not considered each and every relevant contentions of the discharge application and rejected the same in a cursory manner, therefore, I feel that a fresh order should be passed by the learned court below on the discharge application. 15. Accordingly, the revision is allowed. The order dated 17.8.2021 is hereby quashed/set aside. 16. The learned court below is directed to pass a fresh order on the discharge application of the revisionist by speaking and reasoned order, strictly in accordance with law, by affording an opportunity of hearing to the parties, if it is so required under the law, with expedition, preferably within a period of one month from the date of production of certified copy of this order. 17. No order as to costs.