HIGH COURT OF JUDICATURE AT ALLAHABAD
Order reserved on :16.12.2019.
Order delivered on :08.01.2020.
Case :- APPLICATION U/S 482 No. – 32910 of 2019
Applicant :- Annu @ Smt. Anuradha And 2 Others
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Sanjay Kumar Srivastava, Nirvikar Gupta
Counsel for Opposite Party :- G.A.,Birendra Singh Khokher
Hon’ble Om Prakash-VII,J.
This application under Sectionsection 482 Cr.P.C. has been filed by the applicants with the prayer to set-aside the impugned order dated 19.8.2019 passed by Additional Chief Judicial Magistrate, Court No.3, Ghaziabad in Criminal Case No.8703 of 2016 (State Vs. Suraj and others) arising out of case crime no.717 of 2016 under Sectionsections 498-A, Section323, Section326, Section307 IPC, Police Station Sihani Gate, District Ghaziabad. Further prayer has been made to direct the court concerned to commit the case of the applicants to the Sessions Court, Ghaziabad through counsel and grant further protection to the applicants against any coercive measure which may be taken by the court concerned.
Heard Sri Nirvikar Gupta, learned counsel for the applicants and Sri Birendra Singh Khokher, learned counsel for the opposite party no.2 as well as learned A.G.A. for the State.
It was submitted by the learned counsel appearing for the applicants that applicants approached this Court invoking jurisdiction under Sectionsection 482 Cr.P.C. against the order taking cognizance in the matter and the applications were disposed of vide order dated 11.4.2018 extending liberty to the applicants to move discharge application under Sectionsection 239 Cr.P.C. within 15 days. Court below was directed to decide the discharge application within 30 days thereafter. It was also directed that till then no coercive action shall be taken against the applicants. In compliance of the direction given by this Court on 11.4.2018 in the applications under Sectionsection 482 Cr.P.C., applicants moved discharge application before the Magistrate concerned, which was rejected on the ground that offences levelled in the matter were exclusively triable by the Court of Session. It was further submitted that applicants again approached this Court against the order dated 5.7.2018 passed by the Magistrate concerned, but this Court dismissed the application under Sectionsection 482 Cr.P.C. on 25.7.2018. It was next submitted that feeling aggrieved, applicants filed Special Leave to Appeal (Criminal) No.7652 of 2018 before the Hon’ble Supreme Court, but the Hon’ble Supreme Court did not interfere in the order dated 25.7.2018 passed by this Court in application under Sectionsection 482 Cr.P.C., but liberty was granted to the applicants to move discharge application under Sectionsection 227 Cr.P.C. before the Sessions Court vide order dated 30.11.2018. Protection was also granted to the applicants for three months in terms of order dated 11.4.2018 passed in the first applications moved under Sectionsection 482 Cr.P.C. by the applicants before this Court. It was further argued that again application was moved by the applicants before the court concerned in compliance of the directions given by the Hon’ble Supreme Court to commit the case through counsel, but the Magistrate concerned rejected the application of the applicants observing that case could only be committed to the Sessions Court for trial when provisions of Sections 207 and Section209 Cr.P.C. have been complied with. It was also observed that since applicants have not surrendered before the court concerned, therefore, case could not be committed. Referring to the application dated 24.6.2019 moved by the applicants before the court of Magistrate concerned, it was further argued that non-bailable warrant order dated 22.7.2019 issued against the applicants is illegal and without applying judicial mind. It was next argued that against the order dated 22.7.2019, application u/s 482 No. – 28933 of 2019 moved by the applicants was disposed of again vide order dated 26.7.2019 staying the effect and operation of order dated 22.7.2019. Thus, it was further argued that since specific direction had been given by the Hon’ble Supreme Court extending protection to the applicants for three months, the Magistrate concerned ought to have committed the case through counsel to the Court of Session so that applicants can move discharge application under Sectionsection 227 Cr.P.C. It was next contended that again an application was moved on 17.8.2019 before the Magistrate concerned stating all the facts, but no order was passed for committal of the case, instead, on 19.8.2019, the court below invited objection on the application and fixed the date i.e. 30.8.2019. Referring to the aforesaid facts and documents annexed with the present application, it was next argued that the court below is not complying with the directions given by the Hon’ble Supreme Court. There is no necessity to surrender before the court concerned by the applicants for committal of the case, as case was to be committed to the Court of Session through counsel in compliance of the direction given by this Court in the first application moved under Sectionsection 482 Cr.P.C. as well as directions given by the Hon’ble Supreme Court in aforesaid Special Leave to Appeal (Criminal). Thus, prayer was made to set-aside the order dated 19.8.2019 and to direct the court below to commit the case at an earliest to the Court of Session.
On the other hand, learned A.G.A. as well as learned counsel for the opposite party no.2 argued that applications moved under Sectionsection 482 Cr.P.C. at initial stage by the applicants before this Court were disposed of finding prima facie case against the applicants. Only liberty was given for certain period to move discharge application and the court below was also directed to decide the said application within the prescribed period and it was directed that till then no coercive action shall be taken against the applicants. Order passed by the Magistrate concerned on the discharge application moved by the applicants was affirmed by this Court in the application under Sectionsection 482 Cr.P.C. again moved by the applicants, which was also upheld / affirmed by the Hon’ble Supreme Court. Referring to the order passed by this Court as well as by Hon’ble Supreme Court and the order dated 11.4.2018 passed in the first application under Sectionsection 482 Cr.P.C. moved by the applicants before this Court, it is next contended that until and unless applicants surrender before the court concerned and provisions of Sections 207 and Section209 Cr.P.C. have been complied with, case cannot be committed to the Court of Session. No direction was given by this Court in the order dated 11.4.2018 or by the Hon’ble Supreme Court in the order dated 30.11.2018 to move discharge application through counsel. Only protection was granted from coercive process issued against the applicants. There is no illegality, infirmity or perversity in the impugned order as well as order issuing non-bailable warrant against the applicants. Application, having no substance, is not liable to be allowed.
I have considered the rival contentions raised by learned counsel for the parties and have gone through the entire record including the affidavits exchanged between the parties.
In this matter, applicants have approached this Court against the cognizance order passed by the Magistrate concerned by filing applications u/s 482 No. – 37503 of 2016 and 32265 of 2017 before this Court. Both these applications were disposed of by the coordinate Bench vide order dated 11.4.2018, which is quoted as under.
“Both the above 482 SectionCr.P.C. applications on behalf of the applicants have come up before this Court with the following prayer :-
“CRL. MISC. APPLICATION U/S 482 No.37503 of 2016 :- To quash the impugned charge sheet dated 3.11.2016 as well as the order taking cognizance dated 16.11.2016 passed by A.C.J.M. (Court No.3), Ghaziabad in Criminal Case No.8703 of 2016 (State Vs. Suraj Tomar others) in connection with Case Crime No.717 of 2016, under Sections 498A, Section323, Section326, Section307 I.P.C., Police Station Sihani Gate, District Ghaziabad. Further prayer has been made to stay the proceedings in Criminal Case No.8703 of 2016.”
“CRL. MISC. APPLICATION U/S 482 No.32265 of 2017 :- To quash the impugned charge sheet dated 17.11.2016 as well as the order of taking cognizance dated 13.1.2017, passed by Civil Judge (JD)/ Judicial Magistrate, Gautam Budh Nagar in connection with Case Crime No.635 of 2016 (State Vs. Suraj Tomar Ors.) under Sections 341, Section504, Section506, Section147, Section427 I.P.C., Police Station Kasna, District Gautam Budh Nagar (connected Criminal Case No.285 of 2017).”
Perusal of the order sheet reveals that vide order dated 24.10.2017 application u/s 482 SectionCr.P.C. No.32265 of 2017 was ordered to be connected with Application u/s 482 SectionCr.P.C. No.37503 of 2016. Hence, both the applications are being decided by the common judgment.
It is contended on behalf of learned counsel for the applicants that marriage of Smt. Kiran Tomar – opposite party no.2 (in Application No.37503 of 2016) took place with Suraj Tomar on 5.12.2003 according to Hindu rites and out of the said wedlock two daughters, namely, Km. Himadri and Km. Darshna were born on 11.9.2005 and 23.10.2007 respectively. Applicant no.1 (in Application No.37503 of 2016) is the wife of Sri Kishan Pal Tomar (who happens to be father of Suraj Tomar) and father-in-law of Smt. Kiran Tomar. Applicant no.2 Anu @ Smt. Anuradha (in Application No.37503 of 2016) is elder daughter of Sri Kishan Pal Tomar. She was married on 21.11.1999 and has been residing with her husband and children at Neem Ka Gate, Old Bus Stand, Bharatpur, Rajasthan. Applicant no.3 Puja @ Smt. Pushpanjali (in Application No.37503 of 2016) is the younger daughter of applicant no.1 and was married on 17.02.2010 and has been living with her husband, children and family members at Jam Nagar, Gujrat.
It is next contended that for the last about 13 years there was no dispute or any allegation of commission of any type of cruelty or harassment of Smt. Kiran Tomar. It is next contended that husband of applicant no.1 Kishan Pal Tomar duly executed a registered will on 12.5.2015 in favour of his daughters, i.e. applicant nos.2 and 3, namely, Smt. Anuradha @ Anu and Pushpanjali @ Puja and the same was duly registered at the office of Sub-Registrar, Ghaziabad on 12.05.2015. When this fact came into the knowledge of opposite party no.2 she started claiming that the same be got cancelled as no property should be given to the married daughters and further that a separate sale deed of other properties owned by her father-in-law be executed in her favour to which K.P. Tomar was not ready which was the bone of contention and displeasure of opposite party no.2. It is next contended that because of the displeasure and the attitude of opposite party no.2 she started misbehaving with her husband and other family members. A written complaint dated 01.06.2016 was filed by K.P. Tomar at Police Station Sihani Gate, District Ghaziabad and as a counterblast opposite party no.2 had also lodged an FIR dated 04.06.2016 against all the accused persons on the basis of absolutely false and concocted allegations and false story of commission of offence under Section 498-A, Section323 I.P.C. which was registered at Police Station Sihani Gate, Ghaziabad against all the applicants and in order to give colour to false and concocted FIR, preparation of false injury report was manipulated in the District Hospital (M.M.G. Hospital), Ghaziabad. It is further contended that the FIR lodged by opposite party no.2 was got scribed by her brother and it was a counterblast to harass and pressurise the applicants. Prima facie, offence under Section 498-A, Section323 I.P.C. against the applicants is not made out. The alleged injury report is false and manipulated with the help of the police to harass the applicants. It is further contended that reconciliation in mediation had failed and the reconciliation proceedings had been dropped. It is next contended that opposite party no.2 wrongly prepared false medical examination report of subsequent dates from various doctors of private hospitals and obtained another injury report from doctor Pradeep Singh on 05.06.2016 and 17.07.2016. Further opposite party no.2 managed the preparation of false treatment papers and report dated 10.6.2016 from hospital at Sanjay Nagar, Ghaziabad alleging some pain in neck and change of voice and got herself referred to LLRM, Medical College, Meerut. It is next contended that from the very beginning the behaviour of opposite party no.2 against the applicants and her husband was very rude, cruel and harassing. It is next contended that Suraj Tomar (husband) had to file an application under Section 7(1) of Guardian and SectionWards Act, 1860. It is next contended that as per prosecution, statement of Smt. Kiran Tomar could not be recorded without any reason for a longer period and was lastly recorded on 22.08.2016 much after the expiry of a period of two and half months under Section 161 Cr.P.C. by the Investigating Officer wherein a developed and new version was added in her statement. Statement of doctor who first attended Smt. Kiran in the District Hospital, Ghaziabad was also recorded on 22.08.2016, wherein simple, superficial and very ordinary injuries stated to have sustained by opposite party no.2. It is further contended that statement of Dr. Pradeep Singh under Section 161 Cr.P.C. was recorded on 22.08.2016 in support of the supplementary/subsequent treatment reports on the basis of which Sections 326 and Section307 I.P.C. were enhanced by the new Investigating Officer on 22.08.2016. It is next contended that all the proceedings in the case diary were prepared on a single date by the Investigating Officer. It is next contended that without making any fair and independent investigation acting in illegal and malafide manner the Investigating Officer has submitted impugned charge sheet on 03.11.2016 and the learned Magistrate without applying judicial mind to the fact and circumstances of the case passed summoning order in a mechanical manner, as fact of the matter, applicants no.2 and 3 were not even present at Ghaziabad and the Investigating Officer did not allege to have ever visited Bharatpur, Rajasthan and Jam Nagar, Gujrat. The entire parchas of the case diary had been prepared in one stroke by manipulation. It is next contended that entire prosecution story is manipulated, mischievous, concocted against the applicant. FIR did not disclose the commission of a cognizable offence and was not supported by any convincing, cogent or reliable evidence. Opposite party no.2 did not sustain any injury so as to attract the commission of any offence under Section 326 I.P.C. Prima facie, there is no ingredient, material or evidence to show the commission of any offence under Sections 323, Section498-A or 307 SectionI.P.C. or any other cognizable offence against the applicants. Subsequent medical prescriptions are all procured and manipulated with the help of police and brothers of opposite party no.2. Investigating Officer has submitted charge sheet under Sections 498-A, 323 by wrongly enhancing Sections 326 and 307 I.P.C.
The family members of the husband were forced to file an application on 1.6.2016 for their protection to the SHO, Police Station Sihani Gate and later on filed applications to National Commission for Women, New Delhi on the basis of which proceedings were started by the authorities. It is further contended that having come to know the steps being taken by the parents of the applicant and as a counterblast Smt. Kiran filed a false report dated 4.6.2016 against the entire family members of the applicant fabricating false and concocted story and roped the applicants along with sisters as well as aged mother in a false case crime no.717 of 2016, under Sections 498-A, Section323 I.P.C. and after manipulation got a charge sheet filed in this case under Sections 498-A, Section323, Section326 and Section307 I.P.C. It is next contended that against the FIR this court stayed the arrest and use of coercive measures against the mother and both sisters vide order dated 27.7.2016 passed in Crl. Misc. Writ Petition No.17091 of 2016 and the applicant husband was got arrested and sought bail and was accordingly granted bail vide order dated 14.9.2016 passed by learned Sessions Judge, Ghaziabad.
Further to harass the husband and his family members, Smt. Kiran with the planning of her brother filed number of litigations, details of which are given as under :-
(i) Case Crime No.717 of 2016, now pending as Crl. Case No.8703 of 2016, State Vs. Suraj Tomar others, under Section 498-A, 323, 326, 307 I.P.C.
(ii) A frivolous petition under Section 7(1) of Guardianship and SectionWards Act being Misc. Case No.28 of 2016, Smt. Kiran Tomar Vs. Suraj Tomar was filed on 09.09.2016 before the Principal Judge, Family Court, Gautam Budh Nagar.
(iii) Another application u/s 125 SectionCr.P.C. being Misc. Case No.197 of 2016 on 5.7.2016; Smt. Kiran Tomar Vs. Suraj Tomar was filed before the Principal Judge, Family Court, Gautam Budh Nagar, which is pending disposal.
(iv) Suraj Tomar has filed a divorce petition on 29.8.2016/1.9.2016 under Section 13 of Hindu Marriage Act being divorce case no.1332 of 2016 (Suraj Tomar Vs. Smt. Kiran Tomar) in the court of Family Court, Ghaziabad, which is also pending disposal.
(v) In the divorce case no.1332 of 2016, opposite party no.3 in order to stall the proceedings of that case, filed an application under Section 24 of Hindu Marriage Act on 13.12.2016 again claiming huge sums to the tune of Rs.55,000/- per month under false grounds which was registered as Misc. Case No.219 of 2016; (Smt. Kiran Tomar Vs. Suraj Tomar) and is also pending disposal.
(vi) Husband had also filed a separate application on 6.8.2016, being Misc. Case No.49 of 2016 (Suraj Tomar Vs. Smt. Kiran Tomar) which is pending in the Court of Principal Judge, Family Court, Ghaziabad.
It is next contended that opposite party no.2 Smt. Kiran without any right or authority had wrongly and illegally taken both the daughters with her and also got their schools changed. The father (Suraj Tomar) was even not permitted to see or meet them and when on 2.9.2016 Suraj Tomar had gone to see his daughters in Pragyan School, Smt. Kiran with the help of her advisers got lodged a false FIR registered against her husband as well as against Gajendra Tomar, real uncle of her husband and also roping some other persons as not named. It is next contended that Gajendra Tomar is real brother of K.P. Tomar and younger father-in-law of Smt. Kiran Tomar and was also the attesting witness of registered will dated 12.05.2015. It is next contended that FIR of the incident was lodged with much delay on 3.9.2016. The presence of witness Anuj Yadav was scribed with full consultation keeping the false story with concocted facts on the basis of Tahrir under Sections 341, Section504, Section506, Section147, Section427 I.P.C. at Police Station Kasna, District Gautam Budh Nagar against the applicants and four unnamed persons. It is next contended that without doing any fair investigation, the Investigating Officer has filed impugned charge sheet in the matter on 17.11.2016 and the cognizance was taken on 13.01.2017 which is quite wrong, illegal and clear abuse of process of law. It is lastly contended that impugned charge sheet has been filed without conducting any fair and independent investigation. The submission of charge sheet is based on tainted investigation; Investigating Officer never recorded the statement of witnesses. The statement of applicant no.2 is wrongly shown to have been recorded at a far away distance. The Investigating Officer has committed serious error of law, practice and procedure, while not examining personally the informant, on the contents of the FIR, and instead of it directed her to prepare a written statement contrary to provision of Section 161 Cr.P.C. Investigating Officer had neither contacted nor asked any questions to the alleged witness Anuj Yadav and not inspected the spot in the presence of the informant, hence entire investigation is tainted and conducted under the influence and pressure of opposite party no.2. The impugned order passed by the learned Magistrate on 13.01.2017 is without application of mind and in a routine and mechanical manner. The essential ingredients of alleged sections of SectionI.P.C. prima facie do not exist; neither from the contents of the FIR nor from the case diary and the applicants could not be summoned under Sections 341, Section504, Section506, Section147 and Section427 I.P.C. The essential ingredients required for the commission of offence under Sections 341, Section504, Section506, Section427 I.P.C. are missing.
Per contra, learned counsel for the opposite party submits that submissions advanced by the learned counsel for the applicants are totally wrong as no complaint was filed by the father-in-law on 1.6.2017. In support of this argument he has filed information provided under Right to SectionInformation Act which is annexed as Annexure-4 to the affidavit filed in support of the application filed by opposite party. It is next contended that submission as raised by learned counsel for the applicants is disputed defence which is not to be seen at this stage. All questions are to be decided by adducing evidence by both the parties during trial. It is next contended that the charge sheet has been filed on the basis of materials collected during investigation. The statement of the guard as well as staff of the school in which the daughters of Smt. Kiran are studying has been collected during investigation. Further statements of the minor daughters including the guard of the school have already been taken by the Investigating Officer. So far as challenge to the medical records are concerned, on the basis of statements of the doctors, who attended the victim, recorded during investigation and on the basis of material, prima facie, charge sheet has been submitted and the Judicial Magistrate has already taken the cognizance and summoned the accused for further trial. All the discrepancies or inconsistencies with regard to the investigation as raised by the learned counsel for the applicants are not to be decided in petition filed under Section 482 Cr.P.C.
Having considered all the facts and circumstances of the case as also submissions advanced by the learned counsel for the parties, I find that all the submissions made at the bar relate to the disputed question of fact, which cannot be adjudicated upon by this Court under Section 482 Cr.P.C. At this stage only prima facie cae is to be seen in the light of the law laid down by Hon’ble the Supreme Court in the cases of R.P. Kapur Vs. State of Punjab, A.I.R. 1960 S.C. 866, State of Haryana Vs. Bhajan Lal, 1992 SCC (Crl.) 426, State of Bihar Vs. P.P. Sharma, 1992 SCC (Crl.) 192 and Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq and another (Para 10) 2005 SCC (Crl.) 283. The disputed defence cannot be considered at this stage. Moreover, the applicants have got a right of discharge under Section 239 Cr.P.C. through a proper application for the said purpose and they are free to take all the submissions in the said discharge application before the trial court.
However, under the facts and circumstances of the case, if discharge application is moved before court below within 15 days, the court shall decide the discharge application within 30 days thereafter. Till then no coercive action shall be taken against the applicants.
With the aforesaid observations, both the applications are hereby dismissed.
Order Date :- 11.04.2018.”
It appears that applicants moved discharge application before the court concerned, which was rejected vide order dated 5.7.2018 observing that offences levelled against the applicants are exclusively triable by the Court of Session, hence provision of Section 239 Cr.P.C. cannot be invoked. It further appears that against the order dated 5.7.2018 passed by the Magistrate concerned, applicants again approached this Court invoking jurisdiction under Sectionsection 482 Cr.P.C. through application u/s 482 No. 24948 of 2018 and a coordinate Bench of this Court passed the following order on 25.7.2018 :
“Heard learned counsel for the applicants and learned A.G.A. for the State.
This application under Section 482 Cr.P.C. has been filed for quashing the impugned order dated 05.07.2018 passed by Additional Chief Judicial Magistrate, Court No.3, Ghaziabad in Crl. Case No. 8703 of 2016 (connected with Case Crime No. 717/2016) u/ss. 498A, 323, 326, 307 SectionIPC, PS. Sihani Gate, Ghaziabad.
After having heard learned counsel for the parties present and perused the impugned ordes as well as the material brought on record, I am of the view that the impugned order is based upon relevant considerations and supported by cogent reasons, hence requires no interference by this Court in its inherent power under Section 482 Cr.P.C.
The application lacks merits and is accordingly dismissed.
Order Date :- 25.7.2018″
It further appears that applicants approached the Hon’ble Supreme Court challenging the order dated 25.7.2018 passed by this Court in the aforesaid application under Sectionsection 482 Cr.P.C. through Special Leave to Appeal (Criminal) No.7652 of 2018 and the Hon’ble Supreme Court vide order dated 30.11.2018 refused to accept the prayer of the applicants and granted liberty to the applicants to move discharge application under Section 227 Cr.P.C. before the Sessions Court extending the protection granted on 16.4.2018 for further three months.
It is also evident from the record that against the order issuing non-bailable warrant against the applicants on 22.7.2019, applicants had also approached this Court invoking jurisdiction under Sectionsection 482 Cr.P.C. through Application u/s 482 No. – 28933 of 2019 and a coordinate Bench of this Court passed the following order on 26.7.2019 :
“Vakalatnama filed by Sri Nirvikar Gupta, Advocate, on behalf of applicants and vakalatnama filed by Birendra Singh Khokher, Advocate, on behalf of opposite party no.2 are taken on record.
Supplementary affidavit dated 26.07.2019 filed on the applicants, is taken on record.
Heard Sri Nirvikar Gupta, learned counsel for the applicants, learned Additional Government Advocate for the State/opposite party no.1, Sri Birendra Singh Khokher, learned counsel for the opposite party no.2 and perused the record with the assistance of leaned counsel for the parties.
This application under Section 482 Cr.P.C. has been filed by the applicants with a prayer to quash the non-bailable warrant dated 22.07.2019 as well as criminal proceedings of Case No.8703 of 2016 (SectionState vs. Suraj and others) arising out of Case Crime No.717 of 2016, under Sectionsections 498A, Section323, Section326, Section307 IPC, Police Station Sihani Gate, District- Ghaziabad, pending in the court of Additional Chief Judicial Magistrate, Court No.3, Ghaziabad.
This case has checkered history of litigation. The learned counsel for the applicants after advancing his arguments at some length, gave up his challenge to the aforesaid impugned non-bailable warrant dated 22.07.2019 and impugned criminal proceedings against the applicants and requested to grant some protection against non-bailable warrant dated 22.07.2019, so that applicants may seek appropriate remedy available to them. The learned counsel for the applicants further stated at the Bar that he is not pressing any other prayer made in this application.
The aforesaid last prayer made by the learned counsel for the applicants does not oppose by the learned counsel appearing for the opposite party no.2.
In view of above, the relief so claimed in the application is hereby refused. However, considering the last submission of learned counsel for the applicants, it is hereby directed that operation and effect of the non-bailable warrant dated 22.07.2019 shall remain stayed for a period of 30 days from today.
With the above observations, this application under Section 482 Cr.P.C. is disposed of.
Order Date :- 26.7.2019″
In the present application, first prayer of the applicants is to set-aside the order dated 19.8.2019 whereby the learned court below has invited objection on the application moved by the applicants to commit the case to the Court of Session through counsel. Second prayer is to direct the court below to commit the case through counsel. Third prayer is to protect the applicants from coercive process said to be issued by the court below, if any.
Provisions of Sections 209 and Section226 Cr.P.C. are also quoted below.
Section 209 Cr.P.C.:- 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) commit, after complying with the provisions of Sectionsection 207 or Sectionsection 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.
Section 226 Cr.P.C.:- Opening case for prosecution. When the accused appears or is brought before the Court in pursuance of a commitment of the case under Sectionsection 209, the prosecutor shall open his case by describing the charge brought against the accused and stating by what evidence he proposes to prove the guilt of the accused.
In the instant case, as is evident from the record, cognizance was taken by the court concerned on the charge-sheet submitted against accused for the offence under Sections 498-A, Section323, Section326, Section307 IPC. Prayer made by the applicants in the applications u/s 482 No. – 37503 of 2016 and 32265 of 2017 for quashing the order taking cognizance has been refused. Prayer made by the applicants before the Magistrate concerned for their discharge taking recourse to the provisions of Section 239 Cr.P.C. was also dismissed, which was affirmed by this Court in Application u/s 482 No. 24848 of 2018. Order passed by this Court in the aforesaid application was also affirmed by the Hon’ble Supreme Court in the aforesaid Special Leave to Appeal (Criminal). Only question remains for consideration is as to whether accused are entitled to move discharge application taking recourse to the provisions of Section 227 Cr.P.C. before the Court of Session directly through counsel without ensuring their presence by surrendering before the Magistrate concerned where the case of the present applicants is pending as on date. If the submissions raised by learned counsel for the applicants are taken into consideration in light of the provisions of Section 209 Cr.P.C. as well as Section 226 Cr.P.C., applicants have to surrender before the Magistrate concerned at first and thereafter case shall be committed to the Court of Session and then and then only Sessions Court will be empowered to entertain the discharge application said to be moved by the applicants. So far as the protection granted by the Hon’ble Supreme Court in the aforesaid Special Leave to Appeal (Criminal) as well as protection granted by this Court vide order dated 11.4.2018 in the aforesaid applications are concerned, this Court vide order dated 11.4.2018 in the aforesaid applications granted protection to the applicants against the coercive process issued against them only. Similarly, liberty granted by the Hon’ble Supreme Court for three months was also only against coercive process issued against the applicants. It also appears that liberty granted by the Hon’ble Supreme Court has not been availed by the applicants, instead they are moving one application or the other on frivolous grounds to commit the case through counsel without ensuring their personal appearance before the Magistrate concerned. No liberty was granted by the Apex Court to the applicants to move discharge application through counsel directly to the Sessions Court. Applicants are trying to bypass the provisions of Section 209 Cr.P.C. as well as Section 226 Cr.P.C. Discharge application through counsel under Sectionsection 227 Cr.P.C. could only be moved before the Court of Session after complying the provisions of Sections 209 Section226 Cr.P.C. Thus coercive process issued against them in the present matter cannot be termed to be illegal. It is also clarified that although order dated 19.8.2019 passed by the court below, which is under challenge, is related to inviting objection on the application moved by the applicants, yet there was no occasion to make prayer by the applicants before the Magistrate concerned for committing the case through counsel without ensuring their personal appearance. Thus, application having no substance is not liable to be allowed.
With the aforesaid observations, the application under section 482 Cr.P.C. stands disposed of.
However, applicants are hereby directed to surrender before the court below immediately so that case may be committed to the Court of Session expeditiously in accordance with law by the learned Magistrate and in that situation provisions of Section 227 Cr.P.C. will be available to the applicants to move discharge application before the Sessions Court.
Order dated :- 08.01.2020 / ss
