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Umesh Kumar Pandey vs State Of U.P. & Another on 15 November, 2019

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

Court No. – 11

Case :- CRIMINAL REVISION No. – 1497 of 2019

Revisionist :- Umesh Kumar Pandey

Opposite Party :- State Of U.P. Another

Counsel for Revisionist :- Sumit Kumar Srivastava

Counsel for Opposite Party :- Govt. Advocate

Hon’ble Rajeev Singh,J.

Heard learned counsel for the revisionist and the learned A.G.A. for the State.

This revision has been filed by the revision for quashing the order dated 15.10.2019 passed by Judicial Magistrate, Lalganj, Pratapgarh in Case No. 31 of 2016 (Gyanendra Kumar Vs. Umesh Pandey Anr.), under Sections 409, Section420, Section506 I.P.C., P.S. Lalganj, District Pratapgarh as well as discharging the revisionist from all the charges levelled against him.

Learned counsel for the revisionist has submitted that it is undisputed fact that the revisionist and respondent no. 2 were the partners in M/s. Laxmi Bricksfield. It has further been submitted that there was a dispute in relation to the accounts of the partnership firm, as a result, aforesaid complaint case was lodged by respondent no. 2 only to create pressure on the revisionist. It has further submitted that till today, final audit of partnership firm has not been conducted and, thus, it cannot be said that any offence has been committed by the revisionist. He has also submitted that no offence under Sections 409, Section420, Section506 is made out, but the court below failed to consider the facts of the case and merely on the basis of presumption, vide impugned order dated 15.10.2019 rejected the application of the revisionist for discharge, which was moved in pursuance to the order dated 02.08.2019 passed by this Court.

Learned A.G.A. while opposing the prayer of the revisionist has submitted that the court below while passing the impugned order, had considered the arguments of learned counsel for the revisionist as also the provisions of Sections 409, Section420, Section502 I.P.C. and there is no illegality in the same. He has further submitted that the revisionist may appear before the court below and apprise all the facts and defence version at the appropriate stage.

Considering the arguments advanced by the learned counsel for the parties and going through the record, it is evident that challenging the summoning order dated 13.03.2019 passed by the court below, revisionist approached this Court by means of Criminal Case u/s 482 SectionCr.P.C. No. 5536 of 2019. Considering the fact that the applicant did not want to press the prayer for quashing of the summoning order and only prayed for permission to move discharge application before the court below through counsel, this Court disposed of the said petition vide order dated 2nd August, 2019.

It is also evident that the court below has rejected the discharge application moved by the revisionist after considering the statements under Sections 200 and Section202 Cr.P.C. and there appears no illegality or infirmity in the same.

The principles for framing of charge and discharge under Sections 227, Section228, Section238 and Section239 Cr.P.C. have been summarized by the Supreme Court in its judgment SectionState v. S. Selvi, (2018) 13 SCC 455. It has been held that if on the basis of material on record, the Court prima facie forms an opinion that the accused may have committed the offence, it can frame charges. At the time of framing of charge, the Court is required to proceed on presumption that the material produced by the prosecution is true. At that stage, the Court is not expected to go deep into the matter and hold that the material produced does not warrant conviction.

Paras 6 and 7 of the aforesaid report read as under:-

“6. It is well settled by this Court in a catena of judgments including SectionUnion of India v. Prafulla Kumar Samal [Union of India v. Prafulla Kumar Samal, (1979) 3 SCC 4 : 1979 SCC (Cri) 609] , Dilawar Balu Kurane v. State of Maharashtra [Dilawar Balu Kurane v. State of Maharashtra, (2002) 2 SCC 135 : 2002 SCC (Cri) 310] , SectionSajjan Kumar v. CBI [Sajjan Kumar v. CBI, (2010) 9 SCC 368 : (2010) 3 SCC (Cri) 1371] , SectionState v. A. Arun Kumar [State v. A. Arun Kumar, (2015) 2 SCC 417 : (2015) 2 SCC (Cri) 96 : (2015) 1 SCC (LS) 505] , SectionSonu Gupta v. Deepak Gupta [Sonu Gupta v. Deepak Gupta, (2015) 3 SCC 424 : (2015) 2 SCC (Cri) 265] , SectionState of Orissa v. Debendra Nath Padhi [State of Orissa v. Debendra Nath Padhi, (2003) 2 SCC 711 : 2003 SCC (Cri) 688] , Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijjaya [Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijjaya, (1990) 4 SCC 76 : 1991 SCC (Cri) 47] and Supt. SectionRemembrancer of Legal Affairs v. Anil Kumar Bhunja [Supt. SectionRemembrancer of Legal Affairs v. Anil Kumar Bhunja, (1979) 4 SCC 274 : 1979 SCC (Cri) 1038] that the Judge while considering the question of framing charge under Section 227 of the Code in sessions cases (which is akin to Section 239 CrPC pertaining to warrant cases) 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; where the material placed before the court discloses grave suspicion against the accused which has not been properly explained, the court will be fully justified in framing the charge; by and large 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 rights to discharge the accused. The Judge 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 statements 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 materials as if he was conducting a trial.

7. SectionIn Sajjan Kumar v. CBI [Sajjan Kumar v. CBI, (2010) 9 SCC 368 : (2010) 3 SCC (Cri) 1371] , this Court on consideration of the various decisions about the scope of Sections 227 and Section228 of the Code, laid down the following principles: (SCC pp. 376-77, para 21)

“(i) The Judge while considering the question of framing the charges under Section 227 CrPC 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. The test to determine prima facie case would depend upon the facts of each case.

(ii) 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.

(iii) The 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, etc. However, at this stage, there cannot be a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.

(iv) If on the basis of the material on record, the court could form an opinion that the accused might have committed offence, it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence.

(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.

(vi) At the stage of Sections 227 and Section228, 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 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.

(vii) If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage, he is not to see whether the trial will end in conviction or acquittal.”

The Supreme Court further in the case of SectionAsim Shariff v. NIA, (2019) 7 SCC 148 has dealt with the scope of Section 227 of the Cr.P.C. for discharge of an accused. In the aforesaid judgment, it has been held that in exercise of the power under Section 227, Section228 Cr.P.C. in the Sessions Court (Section 239 Cr.P.C. pertaining to warned cases), the Trial Court has 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. If the material placed before the Court discloses grave suspicion against the accused which has not been properly explained, the Court is justified in framing the charge. It has also been held that if two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspension, the trial Judge would be empowered to discharge the accused. The trial judge is expected to exercise his judicial mind to determine as to whether the case of trial is made out or not.

Para 18 of the said report is extracted hereinbelow:-

“18. Taking note of the exposition of law on the subject laid down by this Court, it is settled that the Judge while considering the question of framing charge under Section 227 CrPC in sessions cases (which is akin to Section 239 CrPC pertaining to warrant cases) 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; where the material placed before the court discloses grave suspicion against the accused which has not been properly explained, the court will be fully justified in framing the charge; by and large if two views are possible and one of them giving rise to suspicion only, as distinguished from grave suspicion against the accused, the trial Judge will be justified in discharging him. It is thus clear that while examining the discharge application filed under Section 227 CrPC, it is expected from the trial Judge to exercise its judicial mind to determine as to whether a case for trial has been made out or not. It is true that in such proceedings, the court is not supposed to hold a mini trial by marshalling the evidence on record.”

The Supreme Court again in the case of Tarun Jit Tejpal versus State of Goa and other: 2019 SCC OnLine SC 1053 has taken note of case law in detail while explaining the powers under Sections 227/Section228 Cr.P.C. and reiterated the principle as enumerated in SectionState v. S. Selvi (supra) and Sajjan Kumar versus C.B.I.: (2010) 9 SCC 368. In para 32 it has been held as under:-

“32. Applying the law laid down by this Court in the aforesaid decisions and considering the scope of enquiry at the stage of framing of the charge under Section 227/Section228 if the SectionCrPC, we are of the opinion that the submissions made by the learned Counsel appearing on behalf of the appellant on merits, at this stage, are not required to be considered. Whatever submissions are made by the learned Counsel appearing on behalf of the appellant are on merits are required to be dealt with and considered at an appropriate stage during the course of the trial. Some of the submissions may be considered to be the defence of the accused. Some of the submissions made by the learned Counsel appearing on behalf of the appellant on the conduct of the victim/prosecutrix are required to be dealt with and considered at an appropriate stage during the trial. The same are not required to be considered at this stage of framing of the charge. On considering the material on record, we are of the opinion that there is more than a prima facie case against the accused for which he is required to be tried. There is sufficient ample material against the accused and therefore the learned Trial Court has rightly framed the charge against the accused and the same is rightly confirmed by the High Court. No interference of this Court is called for.”

The revision is, accordingly, dismissed.

At this stage, learned counsel for the revisionist has submitted that the revisionist may be permitted to surrender and move bail application before the court concerned and suitable directions may be issued that the same may be heard and decided expeditiously, in accordance to law.

Learned A.G.A. has no objection in grant of aforesaid prayer.

In view of above, it is provided that if the revisionist surrenders before the courts below within thirty days from today and applies for bail, his application for bail shall be considered and decided by the court below in view of the settled law laid down by the Full Bench of this Court in the case of Amrawati Another Vs. State of U.P. reported in 2004 (57) ALR 290, as affirmed by Hon’ble Apex Court in the case of Lal Kamlendra Pratap Singh Vs. State of U.P. reported in 2009 (3) ADJ 322 (SC).

It is made clear that this order shall not be treated as an implied direction of this Court to grant bail to the revisionist and the court concerned shall be at liberty to pass appropriate order in accordance to law.

Till the aforesaid period of thirty days, no coercive measures shall be taken against the revisionist in the aforesaid case.

In case, revisionist fails to surrender before the Courts below within the stipulated period of thirty days, he will not get benefit of this order.

Order Date :- 15.11.2019

VKS

 

 

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