This court dismissed a petition under Article 227 challenging a Magistrate's order rejecting a discharge application. The court held that since the prosecution case was not groundless based on protest materials, the lower courts correctly refused discharge.
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Court No. - 44
Case :- MATTERS UNDER ARTICLE 227 No. - 3129 of 2018
Petitioner :- Padam Chandra Goyal And 7 Others Respondent :- State Of U.P. And Another Counsel for Petitioner :- Vashishtha Tiwari Counsel for Respondent :- G.A.
Hon'ble Rajeev Misra,J.
Heard Mr. Vashishtha Tiwari, learned counsel for the petitioners and the learned A.G.A. for the State.
This petition under Article 227 of the Constitution of India has been filed challenging the order dated 19.1.2017, passed by the Judicial Magistrate, Court No. 1, Agra, in Complaint Case No. 537 of 2011 (Subhash Chandra Vs. Padam Chand Goyal), P.S. Fatehpur Sikri, District Agra, as well as the order dated 4.4.2018, passed by the Additional Session Judge, Court No. 8, Agra in Criminal Revision No. 97 of 2017(Sumesh Chandra and another Vs. State of U.P and Another) along with Criminal Revision No. 164 of 2017 ( Smt. Manju Goyal and Another Vs. State of U.P. and Another) and Criminal Revision No. 165 of 2017( Padam Chand Goyal and others Vs. State of U.P. and Another).
From the record, it appears that the respondent no.2 Subhas Chandra, filed a complaint dated 7.7.2011, alleging criminality against the respondents. The Magistrate, after complying the provisions of Section 200 and 202 Cr.P.C. summoned the petitioners vide summoning order dated 16.11.2011. Aggrieved by the summoning order dated 16.11.2011, as well as the proceedings of the complaint case referred to above, the petitioners filed Criminal Misc. Application No. 14457 of 2012 (Smt. Manju Goel and Others Vs. State of U.P. and Another), which was disposed of finally vide order dated 30.4.2012. For ready reference the order dated 30.4.2012 is reproduced herein under:-
"Supplementary affidavit filed today be kept on record.
Heard learned counsel for the applicants and learned AGA.
The applicants, through the present application under Section 482 Cr.P.C., have invoked the inherent jurisdiction of this Court with a prayer that the prosecution of the applicants in Complaint Case No.537 of 2011, under Section 420 I.P.C., Police Station Fatehpur Sikri, District Agra be quashed.
Learned counsel for the applicants submitted that from the perusal of the sale deed which was executed by the applicants vendor in favour of the mother of the opposite party no.2 it is clearly established that their vendors had transferred only their 1/4th share in the disputed property and some portion of the same property was sold by them to the applicants.
He further submitted that on the basis of the aforesaid allegation no offence against the applicants is disclosed as neither their is any assertion of inducement of dishonesty is made out and although no offence against the applicants is disclosed from the material on record, yet the court below has summoned the applicants in a mechanical manner.
He further submitted that since the prosecution of the applicants is manifestly attended with mala fides the same is liable to be quashed.
In reply to the above contention, it is submitted by the learned AGA that such plea may be taken by the applicants before the court concerned by moving an application under section 245(2) Cr.P.C.
Considering the facts and circumstances of the case and submissions made by the learned counsel for the applicants and the learned AGA, it is directed that in case the applicants move an application under section 245(2) Cr.P.C. before the court concerned, through their counsel within 30 days from today, the same shall be heard and disposed of expeditiously in accordance with the provisions of law. Till the disposal of that application, no coercive steps shall be taken against the applicants.
With the above direction, this application is finally disposed of. "
In compliance of the order dated 30.4.2012, the petitioners filed an application dated 28.5.2012 in terms of Section 245 (2) Cr.P.C. praying for discharge on the ground mentioned in the application. This application came to be rejected by the Magistrate vide order dated 19.1.2017. Feeling aggrieved by the order dated 19.1.2017, three criminal revisions, as mentioned above, were filed. All the criminal revisions were decided by a common order dated 4.4.2018, by which the same were dismissed.
Feeling aggrieved by the order dated 19.1.2017, passed by the Judicial Magistrate, Court No. 1, Agra as well as the order dated 4.4.2018, passed by the the Additional Session Judge, Court No. 8, Agra , the petitioners have now approached this court by means of the present petition under Article 227 of the Constitution of India.
Before proceeding to consider the submissions made by the learned counsel for the petitioners, it will be convenient to reproduce the provisions of Section 245 Cr.P.C:-
" 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."
Learned counsel for the petitioners submits that the Court below has committed an illegality in rejecting the discharge application filed by the petitioners. Elaborating his submission, learned counsel for the petitioners submits that so far the right title and interest of the opposite party no.2/complainant is concerned in the land in dispute, the same itself is doubtful as C.M.W.P. No. 17600 of 2004(Smt. Ram Katori Vs. State of U.P. and Others) is still pending before this Court, wherein the notice dated 17.12.1988 issued by the Collector, Agra under the provisions of U.P. Public Premises (Eviction of Unauthorized Occupant) Act has been challenged. He next submits that a family settlement had already taken place in the year 1969, which was acted upon, and therefore, the right title and interest and share of the parties in the ancestrol property has already been defined and demarcated. In the light of the aforesaid facts, the submission urged before the court below was that a wholly false complaint case has been filed against the petitioners.
A perusal of the order dated 19.1.2017, passed by the Magistrate will go to show that the discharge application filed by the petitioners was rejected on the grounds that on the basis of the material available at the time of the summoning of the petitioners i.e. the averments made in the complaint, the statement of the complainant under Section 200 Cr.P.C. and that of his witnesses under Section 202 Cr.P.C. prima facie, a case was found against the petitioners and accordingly, they were summoned. The issues raised by the petitioners in the discharge application are questions of facts which cannot be decided without there being a full fledged trial or in the absence of the evidence of the parties. Therefore, in short the conclusion drawn by the Magistrate was that the charge alleged against the petitioners, cannot be said to be groundless. On these findings, the Magistrate rejected the discharge application.
The Revisional Court upheld the order passed by the Magistrate with the finding that on the same set of evidence on the basis of which the revisionist were summoned, cannot be a ground to discharge the revisionist. In support of the aforesaid proposition reliance was placed upon the judgement of the Bombay High Court in the case of Luis De Piedade Lobo vs. Mahadev Vishwanath Parulekar and Ors, reported in 1984
Cri LJ 513 . The Revisional Court recorded a further finding that in fact the petitioners have preempted the entire exercise by filing the application under Section 245 (3) Cr.P.C., inasmuch as once the charge alleged against the petitioners cannot be said to be groundless, they the court was to take for the recording of the evidence of the prosecution witnesses in terms of Section 244 Cr.P.C.
On the strength of the aforesaid findings, the revisional court dismissed the revision.
Learned counsel for the petitioners, challenging the findings recorded by the Court below, has urged that once from the record, it is established that the entire prosecution case is false and has been initiated only to harass the petitioners, the criminal proceedings initiated by the opposite party no. 2 are not only malicious but also amount to an abuse of the process of the Court. He further submits that this Court in exercise of its jurisdiction under Article 227 of the Constitution of the India can certainly quash such proceedings in the interest of justice. The power of this court to quash the criminal proceedings, no doubt, are wide and discretionary, but the same is circumferenced by the well established parameters settled by this court, as well as the Apex Court. Therefore, to urge that the proceedings are liable to be quashed on the basis of the defence of the accused in misconceived. The general proposition canvassed by the learned counsel for the petitioners, does not carry much weight. As already noted herein above, the charge alleged against the petitioners cannot be said to be groundless. Once it is and established fact then the Magistrate had no jurisdiction to discharge the petitioners under Section 245 (2) Cr.P.C.
In view of the above, no case for interference is made out. The present petition fails and is liable to be dismissed. It is, accordingly dismissed.
Order Date :- 20.7.2018 Arshad
2 issues framed by the court
Whether a petition under Article 227 can interfere to quash criminal proceedings where the lower court found a prima facie case based on protest materials.
Whether a Magistrate has the jurisdiction to discharge the accused under Section 245 Cr.P.C. when the charge is not found to be groundless.
Colour shows how this judgement treated each authority
Smt. Ram Katori Vs. State of U.P. and OthersReferred¶24
C.M.W.P. No. 17600 of 2004 (Smt. Ram Katori Vs. State of U.P. and Others)
Luis De Piedade Lobo vs. Mahadev Vishwanath Parulekar and OrsApplied¶26
Luis De Piedade Lobo vs. Mahadev Vishwanath Parulekar and Ors, 1984 Cri LJ 513 · Who else cites this
4 provisions across 2 enactments
Padam Chandra Goyal And 7 Others
State Of U.P. And Another
Rajeev Misra
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
