Allowed

Smt. Deepa and Another v. State of U.P. and Another

Allahabad HC21 Sept 2023CRLR/3203/2023

Case brief

AI extract

What is this about?

The High Court allowed the criminal revision holding that the trial court erred in rejecting the discharge application without considering the record and evidence as required under Section 227 Cr.P.C. The impugned order setting aside the cognizance was quashed.

What did the court decide?

The impugned order dated 11.04.2023 set aside; trial court directed to dispose of Section 227/239 Cr.P.C. application after hearing both parties and pass order per law.

Smt. Deepa and Another Vs State of U.P. and… — Criminal Trial and Appeal | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC:183758

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Court No. - 85

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Case :- CRIMINAL REVISION No. - 3203 of 2023

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Revisionist :- Smt. Deepa And Another Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Chandranshu Gour,Divyanshu Nandan Tripathi,Lakshman Tripathi,Mukesh Kumar,Sarvesh Kumar Dubey,Utkarsh Khanna,Utkarshni Singh

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Counsel for Opposite Party :- G.A.,Ajay Kumar Pandey

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Hon'ble Mayank Kumar Jain,J.

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This revision is preferred against the order dated 11.04.2023 passed by learned Additional Sessions Judge, Fast Track Court No.2, Baghpat passed in Sessions Trial No.515 of 2022 (State of U.P. Vs. Chanchal and others) arising out of Case Crime No.940 of 2020, under Sections 366, 376, 323, 328, 504, 506, 419, 467, 468, 471, 494 and 120B of IPC, Police Station Baghpat, District Baghpat whereby learned trial Court has rejected the application of the revisionist moved under Section 227, 228 of Cr.P.C.

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The brief facts of the case as per the first information report are that on 23.12.2020 one Sachin Tyagi, Advocate lodged first information report that his cousin Jyoti aged 20 years left her house at 10.00 for her college having her mobile number 7466868543 with her. At around 3.00 pm he received a call that his cousin met with an accident. The caller did not disclose her identity and informed that she was moving to Delhi along with the sister of the informant. The informant had suspicion that some untoward incident happened with his sister and she might be enticed away by some persons.

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On the basis of the aforesaid FIR the prosecution was set to motion and the statement of victim was recorded under Section 161 Cr.P.C. in which she stated that she was a major girl and was studying in B.Com final on 23.12.2020. She left her house and accompanied with Sanjeev at her own accord since she was having love affair with him. On 15.12.2020 she performed Court marriage with him at Palval. She had apprehension from her parents.

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The victim refused to undergo for her internal or external medical examination. Thereafter her statement under Section 164 Cr.P.C. was recorded in which she reiterated her earlier statement. In addition to that she stated that Sanjeev had informed her that he was a married person having four children. His first wife was not divorced by him. She returned to her parents since an FIR was lodged against Sanjeev. She did not want to take any action against him.

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On the basis of the aforesaid evidence the Investigating Officer submitted final report under Section 173 Cr.P.C. Thereafter on the application of the prosecutrix her second statement under Section 164 Cr.P.C. was recorded.

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The prosecutrix made allegations of committing rape by co-accused Sanjeev and the involvement of present appellant and some police personnels. She has also stated that before recording of her earlier statement under Section 164 Cr.P.C. she was put on threat by police personnels and by accused persons including revisionist no.2. After investigation a charge sheet came to be filed against present revisionists under Sections 366, 376, 323, 328, 504, 506, 419, 467, 468, 471, 494 read with Section 120B of IPC. The revisionist preferred an application under Section 482 Cr.P.C. No.334/2023 (Deepa and Anr. Vs. State of U.P.) which was disposed off by this Court on 09.01.2023 directing the petitioners to invoke proper remedy moving discharge application under Section 227/239 Cr.P.C. before the court concerned. Pursuant to this order the revisionist moved an application before the trial court which was rejected by the impugned order.

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It is submitted by learned counsel for the revisionist that the impugned order is passed by the learned trial Cort against the material available on record and fact of the case. The learned trial court completely ignored the earlier statement of the prosecutrix recorded under Section 161 and 164 Cr.P.C and merely on the basis of the subsequent statement under Section 164 Cr.P.C. the charge sheet came to be filed against the revisionists. The learned trial court rejected the application moved by the revisionists merely on the ground that in their application the revisionists have only mentioned facts relating to co-accused Sanjeev and no ground is taken by them on which the revisionists should be discharged. The cognizance order was still effective. It reflects that the learned trial Court has completely ignored the fact and evidence available on record and thus, committed illegality in passing the impugned order. It is also submitted that main accused Sanjeev preferred an application under Section 482 Cr.P.C. No.32479/2022 and he has been granted protection by this Court vide order dated 12.10.2022.

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Per-contra, learned AGA as well as learned counsel for the respondent no.2 submitted that learned trial Court has considered all the aspects of the matter and the material available on record and has passed the order in accordance with law on the basis of the statement of the prosecutrix recorded under Section 164 Cr.P.C. and other evidence available on record. Charge sheet came to be filed against the revisionist.

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I have heard both the parties and perused the record.

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The provision contained in Section 227 Cr.P.C. is as under:

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"227. Discharge. If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he

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shall discharge the accused and record his reasons for so doing."

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The Hon'ble Apex Court in Kanchan Kumar Vs. State of Bihar (2022) 9 SCC 577 has observed that :

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"13. The threshold of scrutiny required to adjudicate an application under Section 227 of the Cr.P.C., is to consider the broad probabilities of the case and the total effect of the material on record, including examination of any infirmities appearing in the case. In Prafulla Kumar Samal (supra), it was noted that:

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"10. Thus, on a consideration of the authorities mentioned above, the following principles emerge:

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(1) That the Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out.

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(2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial.

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(3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.

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(4) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced court cannot act merely as a Post Office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial."

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In Sajjan Kumar v. Central Bureau of Investigation (2010) 9 SCC 368 , the Court cautioned against accepting every document produced by the prosecution on face value, and noted that it was important to sift the evidence produced before the Court. It observed that:

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"21. On consideration of the authorities about the scope of Sections 227 and 228 of the Code, the following principles emerge: ...

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(v) At the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing a charge the court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible.

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(vi) At the stage of Sections 227 and 228, the court is required to evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients

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constituting the alleged offence. For this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case..."

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Summarising the principles on discharge under Section 227 of the Cr.P.C, in Dipakbhai Jagdishchandra Patel v. State of Gujarat,11 this Court recapitulated:

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"23. At the stage of framing the charge in accordance with the principles which have been laid down by this Court, what the court is expected to do is, it does not act as a mere post office. The court must indeed sift the material before it. The material to be sifted would be the material which is produced and relied upon by the prosecution. The sifting is not to be meticulous in the sense that the court dons the mantle of the trial Judge hearing arguments after the entire evidence has been adduced after a fullfledged trial and the question is not whether the prosecution has made out the case for the conviction of the accused. All that is required is, the court must be satisfied that with the materials available, a case is made out for the accused to stand trial. A strong suspicion suffices. However, a strong suspicion must be founded on some material. The material must be such as can be translated into evidence at the stage of trial. The strong suspicion cannot be the pure subjective satisfaction based on the moral notions of the Judge that here is a case where it is possible that the accused has committed the offence. Strong suspicion must be the suspicion which is premised on some material which commends itself to the court as sufficient to entertain the prima facie view that the accused has committed the offence."

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In the present case the perusal of the record goes to show that learned trial court does not consider the evidence available on record while passing the impugned order. The learned trial Court while rejecting the application moved by the revisionist opined thus:

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" ्ቚस्त त ु उन्ममोचन ्ቚቚኋररनቚኋ प्ቔ अभभियतु्ሹगण ददीपቚኋ व ्ቚददीप उरर ममोननू ककी ओर ससे ्ቚस्त त ु भकयቚኋ गयቚኋ हहै परन्ततु उन्ममोचन ्ቚቚኋररनቚኋ प्ቔ मसे समस्त करन अभभियतु्ሹ ससंजदीव कसे सम्बन्ध मम भकयसे गयसे हह , जजसककी ओर ससे उन्ममोचन्ቚ ቚኋररनቚኋ प्ቔ ्ቚस्त त ु नहीሻ हहै , न हदी मቚኋननदीय उच्च न्यቚኋयቚኋलय नसे उ्ሹ सम्बन्ध मसे कमोई आदसेश आवसेदन असंतगरत धቚኋरቚኋ 482 दसं०्ቚ० ससं० ससंख्यቚኋ 334/2023 मम भकयቚኋ हहै। उन्ममोचन ्ቚቚኋररनቚኋ प्ቔ मम इन अभभियतु्ሹगण ददीपቚኋ व ्ቚददीप उरर ममोननू कसे सम्बन्ध मम कमोई करन नहीሻ हहै भक भकस आधቚኋर पर उन्हम उन्ममोभचत भकयቚኋ जቚኋयसे। अततः ऐसदी सस्रभत मम जबभक्ቚ ससंज्ढቚኋन आदसेश आज भिदी ्ቚभिቚኋवदी हहै , कमोई नयቚኋ आधቚኋर / सቚኋቌኚय प्ቔቚኋवलदी पर इन अभभियतु्ሹगण ददीपቚኋ व ्ቚददीप उरर ममोननू ककी ओर ससे ्ቚस्त त ु नहीሻ हहै अततः उन्ममोचन ्ቚቚኋररनቚኋ प्ቔ उपरमो्ሹ भववसेचनቚኋ कसे आलमोक मम भनरस्त भकयसे जቚኋनसे यमोग्य हहै। "

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Perusal of the above observation of the court concerned indicates that merely on the ground that revisionists did not mentioned any of the ground on which they should be discharged, in the application moved by them under Section 227/239 Cr.P.C. has been rejected and it was also observed that the cognizance order against the revisionist was effective. It shows that learned trial court did not consider the evidence available on record while it is the basic requirement of the provision contained under Section 227 of Cr.P.C. that "upon consideration of the record of the

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case and the document submitted therewith and after hearing the submissions of the accused and the prosecution if the courts consider that there is no sufficient ground for proceedings against the accused, he shall discharge the accused and record his reasoning for passing such order." The learned trial court overlooked the relevant available on record of the case and the documents submitted by the prosecution against the revisionists. It appears that learned trial Court also did not consider the arguments advanced by the learned counsel for the revisionists while disposing the application for discharge moved by the revisionist.

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In view of above observations made by the Hon'ble Apex Court in Kanchan Kumar (supra) I am of the opinion that the application under Section 227/239 Cr.P.C. of revisionists requires to be considered in view of the provisions contained under Section 227 Cr.P.C. and the observation made by Hon'ble Apex Court. Resultantly, the present Criminal Revision deserves to be allowed.

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Order

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The Criminal Revision is allowed. The impugned order passed by learned trial Court dated 11.04.2023 is set aside.

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Learned trial Court is directed to dispose off the application moved by the revisionists under Section 227/239 Cr.P.C. after affording the opportunity of hearing to the prosecution and the revisionists and pass the order in accordance with law.

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Order Date :- 21.9.2023 Mohit

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Digitally signed by :- MOHIT KUMAR KUSHWAHA High Court of Judicature at Allahabad

Smt. Deepa and Another v. State of U.P. and Another

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Smt. Deepa and Another v. State of U.P. and Another

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