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2023 DIGILAW 1547 (ALL)

Irshad Khan v. State Of U. P.

2023-07-03

RAM MANOHAR NARAYAN MISHRA

body2023
JUDGMENT : 1. Heard learned counsel for the revisionists and learned AGA for the State. None appeared on behalf of respondent no. 2 to contest this criminal revision today. 2. Counter affidavit has already been filed by respondent no. 2 in this case. Learned counsel for the revisionists has submitted that he is not inclined to file rejoinder affidavit and prayed for hearing the matter on merits. 3. The present criminal revision is filed against the order dated 4.11.2022 passed by learned C.J.M., Jalaun at Orai in Misc. Case no. 327 of 2019 (State vs. Irshad Khan and others) arising out of Case Crime no. 162 of 2018 under Sections 147, 148, 149, 307, 336, 332, 353, 420, 447, 504, 506 IPC and Section 7 of Criminal Law Amendment Act, P.S. Kotwali Kalpi, District Jalaun. By the impugned order, learned C.J.M. has dismissed the discharge application 24 kha moved by the accused persons and issued bailable warrant against absentee accused Nausad. 4. The brief facts of the case is that the informant lodged an FIR on the basis of written report on 18.7.2018 stating that he is Lekhpal of Kasba Kalpi and plot no. 38/4 area 0.170 and plot no. 38/6 area 0.210 hectare, total area 0.380 hectare come under his area (Halka) and are recorded in the column of Banjar in the revenue record, out of which, some portion has been encroached by Irshad Khan and others without any authority regarding which a report has been given to SDM Kalpi on 18.7.2018; Upziladhikari and other officials of the department accompanied by SHO concerned visited the spot with police force and tried to remove the illegal encroachment by JCB Machine. In the meanwhile at 12:00 hours said Irsad and others, who had encroached a portion of land, engaged in abusing and marpeet with the official team and engaged in brick bating in which some persons received injuries. Inasmuch as Irshad exhorted his wife to tear her clothes so that he could implicate the persons, who had come to remove the encroachment in false case of molestation. Inasmuch as Irshad exhorted his wife to tear her clothes so that he could implicate the persons, who had come to remove the encroachment in false case of molestation. The accused persons Irshad and four persons filed an application under Section 482 No. 4289 of 2021 before this Court with prayer to quash the charge-sheet filed by the IO in aforesaid sections which was disposed of by this Court vide order dated 23.3.2021 with observation that Court did not find any grounds to quash the charge-sheet and cognizance taking order passed by the learned Magistrate, therefore, prayer for quashing the same is refused. However, if the applicants appear and move an application under Section 239 Cr.P.C. for discharge through counsel before the court below within two weeks from the date of receipt of certified copy of the order then the application for discharge shall be considered and decided within a period of three months from the date of filing of application in accordance with law. No coercive action shall be taken against the applicants till disposal of said application or for a period of four months from the date of receipt of the order or whichever is earlier; applicants were permitted to file discharge application through counsel. 5. In compliance of the order of this Court, accused persons filed discharge application before the court of first instance, which was dismissed by the impugned order passed by learned C.J.M. with observation that on the basis of evidence collected by the I.O. during investigation, charges under Sections 147, 148, 149, 307, 336, 332, 353, 420, 447, 504, 506 IPC and Section 7 of Criminal Law Amendment Act are made out against the applicants accused for which charge-sheet has been filed and cognizance has already been taken by the court in said criminal case on the basis of charge-sheet. As the matter is triable by the court of session, this court did not have jurisdiction to hear the discharge application, therefore, the said discharge application 24kha is dismissed, case was fixed for committal / appearance of the accused persons. 6. The accused persons have filed present revision feeling aggrieved by the aforesaid order passed by the learned C.J.M. under Section 397/401 Cr.P.C. 7. 6. The accused persons have filed present revision feeling aggrieved by the aforesaid order passed by the learned C.J.M. under Section 397/401 Cr.P.C. 7. Learned counsel for the revisionists submitted that on 6.4.2021 revisionist has filed discharge application in the court below in pursuance of the order of this Court and a copy of said application is filed as annexure-12 to the revision on the ground that civil suit no. 62 of 2018 has been filed before the Civil Judge, Jalaun at Orai with regard to the plot in question with prayer to issue a prohibitory injunction against the defendants from interfering in possession of the applicant no. 1 and his three brothers and the court below passed the order for maintaining status quo over the plot in question vide order dated 26.4.2019. However, on 8.4.2018 applicant nos. 1 and 3 others, who were challaned by local police under sections 107, 116, 151 Cr.P.C. and challan report was submitted by him before the court of SDM, Kalpi and on the same day, SDM concerned passed an order with regard to issuance of notice under section 111 Cr.P.C. against the applicant nos. 1 and 3 others with observations that there was apprehension to commit breach of peace and disturbance of public tranquility, they must be sent to jail; they were directed to execute two sureties, which are to be verified by the Tehsildar Kalpi but they were sent to jail due to pending verification of surety bond. 8. The revisionists filed a application under section 482 No. 13535 of 2018 before this Court in which interim order was passed on 20.4.2018 and notices were issued to SDM and Tehsildar Kalpi on 4.5.2018 and SDM was directed to comply with the order dated 20.4.2018 to appear in person before the Court on the next date. In view of passing the order dated 20.4.2018 by this Court the SDM and Tehsildar, Kalpi had became inimical to the revisionists and at their behest, the present FIR has been lodged by Lekhpal Pramod Kumar Dubey on false and fabricated facts; the petitioner's shop was not constructed over the plot no. 38/4 and 38/6 as alleged in the FIR but same was constructed over the plot no. 38/1 and 17/1 and thus the SDM and Tehsildar had got said shop demolished only to take revenge from the revisionists and iron scrap worth of Rs. 38/4 and 38/6 as alleged in the FIR but same was constructed over the plot no. 38/1 and 17/1 and thus the SDM and Tehsildar had got said shop demolished only to take revenge from the revisionists and iron scrap worth of Rs. 50 lakhs was removed by them with help of police personnel. 9. No notice was served on revisionists regarding alleged unauthorized occupation; the revisionists had not interfered in the work of government officials, therefore no offence under section 353 IPC is made out against them; plot no. 38/4 and 38/6 are away about 300 metre from the plot no. 38/1 and 17/1 Mauza Alampur, Kalpi but false allegation is made in the FIR that the applicants had occupied plot no. 38/4 and 38/6; revisionists had never caused any unlawful assembly or any use of force or violation; they had not caused any obstruction in performance of public duty of public servant. He further submitted that impugned order passed by learned C.J.M. is manifestly error on the face of record and deserves to be set aside by this Court as the impugned order is devoid of any reasoning and finding and has been passed in mechanical routine manner without application of judicial mind. On the basis of materials on record, no offence as alleged in the charge-sheet, is made out against the applicants, who has committed no offence; all the proceedings in this case, were initiated at the behest of SDM and Tehsildar, therefore, it is prayed for that this revision be allowed and impugned order passed by learned C.J.M. be set aside. 10. Per contra, learned AGA submitted that as in penal sections in the case include inter-alia charge under section 307 IPC which is triable by the court of session therefore learned Magistrate was not empowered to discharge the accused applicant in such case and only course open to him was that to commit case before the court of session where discharge application could be legally moved. 11. For the purposes of deciding present revision, certain provisions of Criminal Procedure Code are relevant to be reproduced hereinunder:- Section 193-Cognizance of offences by Courts of Session. 11. For the purposes of deciding present revision, certain provisions of Criminal Procedure Code are relevant to be reproduced hereinunder:- Section 193-Cognizance of offences by Courts of Session. Except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under this Code.. 207. Supply to the accused of copy of police report and other documents. In any case where the proceeding has been instituted on a police report, the Magistrate shall without delay furnish to the accused, free of cost, a copy of each of the following:- (i) the police report; (ii) the first information report recorded under section 154; (iii) the statements recorded under sub-section (3) of section 161 of all persons whom the prosecution proposes to examine as its witnesses, excluding therefrom any part in regard to which a request for such exclusion has been made by the police officer under sub- section (6) of section 173; (iv) the confessions and statements, if any, recorded under section 164; (v) any other document or relevant extract thereof forwarded to the Magistrate with the police report under sub-section (5) of section 173: Provided that the Magistrate may, after perusing any such part of a statement as is referred to in clause (iii) and considering the reasons given by the police officer for the request, direct that a copy of that part of the statement or of such portion thereof as the Magistrate thinks proper, shall be furnished to the accused: Provided further that if the Magistrate is satisfied that any document referred to in clause (v) is voluminous, he shall, instead of furnishing the accused with a copy thereof, direct that he will only be allowed to inspect it either personally or through pleader in Court. 209. Commitment of case to Court of Session when offence is triable exclusively by it. 209. Commitment of case to Court of Session when offence is triable exclusively by it. When in a case instituted on a police report or otherwise, the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall- (a) 1 commit, after complying with the provisions of section 207 or section 208, as the case may be, the case to the Court of Session, and subject to the provisions of this Code relating to bail, remand the accused to custody until such commitment has been made;] (b) subject to the provisions of this Code relating to bail, remand the accused to custody during, and until the conclusion of, the trial; (c) send to that Court the record of the case and the documents and articles, if any, which are to be produced in evidence; (d) notify the Public Prosecutor of the commitment of the case to the Court of Session. 12. From the perusal of above provisions, it is obvious that in cases triable by court of session as provided in schedule of the Code, the Magistrate has no power to try the case and he is required to commit the case before the court of session where trial may take place. However, Magistrate is empowered to take cognizance of any offence unless otherwise provided including the offence exclusively triable by the court of sessions. 13. In Dharampal vs. State of Haryana reported in (2014) 3 SC 306, the Hon'ble Apex Court has held that cognizance under Section 193 Cr.P.C. has been related to cognizance of offence and not to commitment order passed by the Magistrate. For offence exclusively triable by the court of session; the court of session is competent for arraignment of such persons as accused from and during cognizance as such itself under section 193 (upon committal of Magistrate) and then during course of inquiry and trial, under section 319 Cr.P.C. 14. This Court in Sukhbir Singh vs. State of U.P. and another in application under Section 482 No. 21859 of 2021 decided on 22.7.2022 held that in view of Section 209 Cr.P.C. there is no ambiguity that "who is trial court". In the present case, since the offence is triable by the Session court, the trial court is session court. This Court in Sukhbir Singh vs. State of U.P. and another in application under Section 482 No. 21859 of 2021 decided on 22.7.2022 held that in view of Section 209 Cr.P.C. there is no ambiguity that "who is trial court". In the present case, since the offence is triable by the Session court, the trial court is session court. While hearing the application of discharge, the Magistrate committed error by assuming the jurisdiction of session court. The session court has to apply its mind whether applicant is liable to be discharged or whether application is liable to be rejected. The Magisterial court committed error by deciding the case itself. 15. In present case learned Magistrate has committed legal error while dismissing the discharge application moved by the accused revisionists on assumption of jurisdiction, although it has not decided the discharge application on merits and observed that court has no jurisdiction to hear the case as the case was triable by the court of session. 16. From perusal of the record it appears that discharge application was filed by the revisionists pursuant to order of this court passed in application u/s 482 No. 4289 of 2021 where they were given liberty to move an application of discharge before the court below under section 239 Cr.P.C. and permitted to appear through counsel before the court below or till disposal of the discharge application or for a period of four months from the date of passing of order whichever is earlier. 17. In session triable of cases the discharge application is maintainable under section 227 Cr.P.C. which provides that in a trial before the court of session, if upon considering record of the case and documents submitted therewith and after hearing the submission of accused and prosecution in this behalf, the Judge considers that there is no sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for doing so. 18. 18. In view of the aforesaid factual and legal discussions, I am of the opinion that learned Magistrate committed legal error while deciding the discharge application moved by the accused persons inter-alia under section 307 IPC, which is triable by the court of session; the proper course before the learned Magistrate was to commit the case before the court of session after quoting the orders of this Court passed in application u/s 482 as stated aforesaid, through counsel as accused persons were given liberty to appear before the court below for filing discharge application. On committal of case by learned Magistrate through counsel, without insisting personal appearance of the accused persons as they are not enlarged on bail as yet, the discharge application was liable to be decided by the court of session and all pleas taken in discharge application were to be taken before the court of session. 19. Consequently present revision is allowed. The impugned order passed by learned Magistrate dated 4.11.2022 dismissing discharge application 24kh moved by the accused persons is set aside. 20. Learned Magistrate court is directed to commit the case before the court of session after ensuring compliance of provision under section 207 Cr.P.C. and discharge application moved by the accused persons before the court below in pursuance of the direction of this Court will be taken up by the court of session as if filed under section 227 Cr.P.C. and same will be disposed of after giving opportunity of hearing to accused applicants as well as prosecution side. 21. Keeping in view of the delay already occasioned in the case learned Magistrate will commit the case as for as possible within one month from the date of production of certified copy of this order and after committal of the case learned session court will hear and decide the said discharge application in the light of the above observations within a period of three months provided there is no legal impediment. If the discharge application is dismissed then accused revisionists will be directed to surrender and will be taken into custody and their bail application will be decided in accordance with law.