Dismissed

Ajeet Kumar v. State of U.P. and Another

Allahabad HC10 Oct 2023CRLP/22909/2013

Case brief

AI extract

What is this about?

Court dismissed a writ petition challenging an order dismissing a discharge application and a subsequent criminal revision. The Court held the petitioner filed a discharge application prematurely at the magistrate level for an exclusively triable case and failed to approach the session court under the correct section.

What did the court decide?

Writ petition dismissed; quashing of impugned orders denied.

Ajeet Kumar Vs State of U.P. and Another — Civil Procedure and Limitation | Allahabad HC (2023)

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Court No. - 80

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Case :- CRIMINAL MISC. WRIT PETITION No. - 22909 of 2013

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Petitioner :- Ajeet Kumar Respondent :- State of U.P. and Another Counsel for Petitioner :- Ali Hasan,Ishtiyaq Ali Counsel for Respondent :- Govt. Advocate,Anand Kumar Tiwari,K.C. Kishan Srivastava

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Hon'ble Subhash Chandra Sharma,J.

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List revised. None appeared for the respondent even in the revised call.

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Heard learned counsel for the petitioner as well as learned A.G.A. for the State and perused the material on record.

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The preset writ petition under Article 226 of the Constitution of India has been moved with prayer to issue a writ, order or direction in the nature of ceritorari quashing the judgment and order dated 18.09.2013 passed by learned Additional Sessions Judge, Court No.4, Jaunpur in Criminal Revision No.209 of 2011 (Ajeet Kumar vs. State of U.P. and another) as well as order dated 05.03.2011 passed by learned Additional Civil Judge (Senior Division) I/Additional Chief Judicial Magistrate, Court No.9, Jaunpur in Criminal Case No.5547 of 2009 (State vs. Indrajeet) under Section 498-A, 307, 323, 504, 506 I.P.C., Police Station Newariya, District Jaunpur and cognizance order dated 24.08.2009 passed by learned Additional Chief Judicial Magistrate -I, Jaunpur.

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It is submitted by learned counsel for the petitioner that in this case discharge application was moved by him before the court of learned A.C.J.M.-II, Jaunpur in relation to Crime No.380 of 2009, under Sections 498-A, 307, 323, 504, 506 I.P.C. & Section 3/4 D.P. Act, Police Station Newariya, District Jaunpur in which after investigation charge sheet was filed by the I.O. against the petitioner and other members of his family. The discharge application u/s 239 Cr.P.C. was rejected by the court concerned by order dated 05.03.2011 against which criminal revision was also filed before the learned court of Session as Criminal Revision No.209 of 2011 which was also dismissed on 18.09.2013 against which this petition has been preferred before this Court.

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It is also submitted by learned counsel for the petitioner that there

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was no sufficient material on record collected during the investigation of the case against the petitioner even though charge sheet was filed by the I.O. After taking cognizance of the offences summoning order was made by the learned Magistrate. Further submitted that an application u/s 239 Cr.P.C. for discharge was moved but it was dismissed mechanically without going through the material on record. No case u/s 307 I.P.C. was made out against the petitioner even though there was charge sheet. It is also submitted that learned Magistrate dismissed the application after considering the fact that discharge application was to be moved before the learned court of Session u/s 227 Cr.P.C. which cannot be said to be correct. Learned revisional court also did not consider this fact and position of law but dismissed the revision, therefore, requested to allow the petition and set aside the orders passed by the learned Magistrate as well as learned revisional court.

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Learned A.G.A. opposed the prayer as aforesaid and contended that in this case after investigation charge sheet was filed by the I.O. u/s 498A, 307, 323, 504, 506 I.P.C. & Section 3/4 D.P. Act. The case u/s 307 I.P.C. was exclusively triable by the learned court of Session and trial was to be conducted by the learned Sessions Court in accordance with the provisions as containned under Section 225 Cr.P.C. to 237 Cr.P.C. As the provisions relating to discharge of the accused was given in Section 227 Cr.P.C. the learned Magistrate had no jurisdiction in this regard but he was only to commit the case before the learned court of Session. Then during the course of proceedings before the learned trial court i.e. the Session Court, the petitioner was to move an application for discharge u/s 227 Cr.P.C. which was not done. Keeping in view the legal position as aforesaid the application for discharge moved u/s 239 Cr.P.C. was rejected, therefore, it cannot be said to be unlawful and inappropriate likewise the learned revisional court also dismissed the criminal revision. In this way, there was no any illegality or impropriety in the orders passed by the learned courts below but this petition being devoid of merit is liable to be dismissed.

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Considering the facts and circumstances of the case, submissions made by learned counsel for the petitioner as well as learned A.G.A., perusal of orders passed by learned Magistrate as well as the revisional court, it appears that the case was exclusively triable by the learned court of Session and provisions relating to discharge have been given u/s 227 Cr.P.C. but the petitioner moved an application u/s 239 Cr.P.C. before the learned Magistrate before the commencement of trial which could not be entertained by the

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learned Magistrate, therefore, he rejected the application as aforesaid in view of provisions as contained u/s 239 and 227 Cr.P.C. likewise learned revisional court also dismissed the revision against the aforesaid order. The petitioner was to move an application u/s 227 Cr.P.C. for discharge before the learned trial court which was not done by him but moved an application at premature stage. In this way, the orders passed by learned Magistrate as well as by the learned court of Session cannot be said to be illegal or inappropriate but this petition being devoid of merit is liable to be dismissed.

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Accordingly, this writ petition is dismissed.

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Order Date :- 10.10.2023 Ashok Gupta

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Digitally signed by :- ASHOK KUMAR GUPTA High Court of Judicature at Allahabad

Ajeet Kumar v. State of U.P. and Another

Case brief

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Ajeet Kumar v. State of U.P. and Another

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