ALLAHABAD HIGH COURT
Neutral Citation No. – 2024:AHC-LKO:37766
RESERVED ON 26.4.2024
DELIVERED ON 17.5.2024
Court No. – 15
Case :- CRIMINAL REVISION No. – 429 of 2024
Revisionist :- Kaleem Ahmad, Mohd. Jeeshan Ahmad and Rizwana
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko. And Another
Counsel for Revisionist :- Amar Singh,Jai Vardhan Srivastava
Counsel for Opposite Party :- G.A.,Deo Prakash Srivastava
Hon’ble Karunesh Singh Pawar,J.
1.The petition has been filed under Section 482 CrPC for setting aside impugned order dated 3.4.2024 passed by Chief Judicial Magistrate, District Gonda in Criminal Complaint No.108 of 2021 Rajesh Kumar versus Kaleem Ahmad and others under sections 304, 342, 418 I.P.C., P.S. Colonelganj, district Gonda, whereby the learned Magistrate has rejected the application for discharge filed by the revisionists vide order contained in Annexure no.1, with a further prayer to discharge the revisionists 1 and 2 under sections 304, 342 I.P.C. and revisionist No.3 under sections 304, 342, 418 I.P.C., P.S. Colonelganj, district Gonda.
2.Heard learned counsel for the petitioners, learned counsel for respondent No.2 and learned A.G.A. for the State.
3.Learned counsel for the revisionists submits that earlier, the revisionists had approached this Court by filing an application under section 482 CrPC No.8774 of 2023 in which they had challenged summoning order dated 15.7.2023, passed in Complaint Case No.108 of 2021 (supra) as also the entire proceedings. The revisionists have not pressed the petition on its merit and sought permission to move discharge application through counsel.
A coordinate Bench of this Court vide order dated 19.9.2023 has granted liberty to the revisionists to move discharge application through counsel within six weeks from the date of the order, i.e. 19.9.2023. It was directed that till the said application is disposed of, no coercive steps shall be taken against the revisionists.
The revisionists have filed the discharge application which has been rejected vide impugned order dated 3.4.2024 (supra). It is submitted that the impugned order dated 3.4.2024 (supra) is in violation of the order passed by this Court. After the order to decide the discharge application was passed, it was incumbent upon the learned Magistrate to consider the discharge application, in the light of the order passed by this Court. It is further submitted that learned Magistrate has failed to appreciate the fact that the case has been investigated four times and on all the time, no offence has been found against the revisionists. It is submitted that all the witnesses who have given their statement under section 202 CrPC are the interested witnesses and they are not the eye witnesses. The learned Magistrate has passed the order of summoning dated 15.7.2023 without applying his judicious mind.
It is next submitted that despite the order passed by this Court earlier, coercive steps have been taken against the revisionists by issuing process.
4.Learned Additional Government Advocate has opposed the contention and submitted that this court while disposing of the petition vide order dated 19.9.2023 (supra) has given liberty to the revisionists for certain period to move discharge application and the court concerned was also directed to decide the said application within prescribed period and it was further directed that till then, no coercive steps shall be taken against the revisionists. It is submitted that until and unless the revisionists surrender before the court concerned and move an application for bail if he so chooses, the learned Magistrate cannot proceed with the case with compliance of provisions of sections 207 or 208, and 209 CrPC. He further submits that in the order dated 19.9.2023 (supra), this Court had provided that the revisionists may move discharge application through counsel within six weeks from the date of the order, which shall be heard and decided expeditiously, as per law. It is submitted that the discharge application has been decided by the learned Magistrate in terms of the order of this Court and no illegality or irregularity has been committed by the learned Magistrate and as such, the revision is liable to be dismissed. 5.Having considered the submission advanced on behalf of the parties and gone through the record, I find that the revisionists have approached this Court by filing an application under section 482 CrPC No.8774 of 2023 challenging the order of summoning dated 15.5.2023 passed by Chief Judicial Magistrate, Gonda. This Court vide order dated 19.9.2023 (Annexure-19) while disposing of the petition passed the following order :
1.Supplementary affidavit filed by the learned counsel for the applicants is taken on record.
2. Heard learned counsel for the applicants, learned A.G.A. for the State and perused the material available on record.
3. This application has been filed for quashing the summoning order dated 15.07.2023 passed in Complaint Case No. 108 of 2021, under Sections 304, 342, 418 I.P.C. as well as its entire proceedings.
4. After arguing the matter up to some length, learned counsel for the applicants submits that he does not want to press this application on merit and he confines his prayer only to the extent that applicants may be permitted to move discharge application through counsel and suitable directions may be issued for expeditious disposal of the same.
5. Learned A.G.A. has no objection in grant of aforesaid prayer.
6. In view of above, it is provided that applicants may move their discharge application through counsel within six weeks from today and, in case, any such application is filed, same shall be heard and decided expeditiously after hearing the parties in accordance with law, by means of a reasoned and speaking order.
7. Till the aforesaid period of six weeks and during pendency of discharge application, no coercive steps shall be taken against the applicants in the aforesaid case.
8. With above directions this application is disposed of.”
6.Consequent to the order, above extracted, the revisionists preferred a discharge application dated 30.9.2023 before the learned Chief Judicial Magistrate, Gonda. The discharge application has, however, been rejected vide impugned order dated 3.4.2024, inter alia on the grounds that the revisionists have not been admitted on bail; the case is triable by Court of Sessions; the Court has no jurisdiction to entertain discharge application and the grounds so relied by the revisionists in the discharge application can only be ascertained after the evidence.
7.A perusal of the record shows that the learned Magistrate has passed the summoning order dated 15.5.2023 post recording statement of the complainant under section 200 CrPC and examining the witnesses under section 202 CrPC on the Criminal complaint case No.108 of 2021(supra). Four times, investigation/further investigation was conducted and on all occasions, final report(s) have been filed.
On the final report dated 12.8.2022, a protest petition was preferred which was treated as a complaint and the final report dated 12.8.2022 along with the earlier three final reports was rejected. The learned Magistrate after taking cognizance issued summoning order dated 15.5.2023 (supra) which has been assailed by filing an application under section 482 CrPC, as noticed above, in which the order quoted above has been passed by a Coordinate Bench of this Court.
From the record, it is also evident that the learned Magistrate in view of the order passed by this Court dated 19.9.2023 (supra) after going through the entire facts and circumstances and the legal provisions has come to the conclusion that the discharge application in a case which is exclusively triable by Sessions is not maintainable in the court of Magistrate. The criminal complaint was registered under sections 304, 342, 418 I.P.C. The prayer made by the revisionists in the petition under section 482 CrPC No.8774 of 2023 for quashing the summoning order has not been pressed by learned counsel for the revisionists on its merit and accordingly, necessary corollary would be that the said prayer in the petition would be deemed to be rejected as not pressed, although in the order, not so worded in specific terms. 8.Now, the only question remains for consideration is as to whether the accused revisionists are entitled to move discharge application taking recourse to the provisions of Section 227 CrPC before the Court of Sessions directly through counsel without ensuring their presence by surrendering before the Magistrate concerned where the case of the present revisionists is pending and the process has been issued against the revisionists. As per provisions of Section 209 and 226 CrPC, firstly, the revisionists have to surrender before the Magistrate concerned and then the case shall be committed to the Court of Sessions. On such committal, the Sessions Judge would be empowered to entertain the discharge application to be moved by the revisionists.
Admittedly, the revisionists have not surrendered nor sought bail either anticipatory or regular, and they are trying to misinterpret the directions of this Court with the prayer for quashing the order impugned, whereby the learned Magistrate has dismissed the discharge application as not maintainable. A perusal of the order dated 19.9.2023 (supra) passed by this Court reveals that the revisionists were granted liberty to file a discharge application before the concerned court, naturally in conformity with the provisions of Code of Criminal Procedure and not in violation of the provisions of Code. While passing the order dated 19.9.2023 (supra), the Court was fully conscious of the provisions of Section 209 CrPC. There is no such direction of this Court that the revisionists may approach the court concerned with a prayer to move discharge application in violation of the provisions of Section 209 CrPC.
It appears that under the protection granted by this Court, the revisionist have not appeared before the Court concerned and consequently, the case could not be committed to the Court of Sessions. They appear to bypass the provisions of Section 209 CrPC as also Section 226 CrPC. There is no doubt that the discharge application through counsel under section 227 CrPC could only be moved before the Court of Sessions after complying the provisions of Sections 209 and 226 CrPC. Thus, I find that the process issued against the revisionists cannot be termed to be illegal.
9.In view of what has been discussed herein above and considering the legal provisions, I find no illegality or infirmity in the impugned order. The learned Magistrate has rightly observed that since the case is exclusively triable by Sessions, the discharge application filed by the revisionists is not maintainable. It further does not seem to have committed any error in rejecting the discharge application vide order impugned. It is, however, provided that the revisionists shall appear/surrender before the court of Chief Judicial Magistrate, Gonda within 15 days from today. On their surrender before it, learned Magistrate shall proceed in accordance with law. It is open for the revisionists to move appropriate application for bail which, if filed, shall be considered and disposed of by the learned Magistrate in accordance with law on the same day, also keeping in view that four times, final reports have been submitted after investigation/further investigation on the direction of the Circle Officer as also by the Court.
On appearance of the revisionists before the Court of Magistrate, the case may be committed to the Court of Sessions expeditiously, as per law. In that eventuality, it would be open for the revisionists to move appropriate application for discharge under Section 227 CrPC before the Court of Sessions.
Needless to say that in case the revisionists so desire, they can move anticipatory bail application before appropriate Court. Interim protection granted by this Court vide order dated 19.9.2023 (supra) shall remain in vogue for a further period of one month from today, however, subject to the condition that the revisionists shall surrender/appear before the concerned Court as directed above, within 15 days from today.
10.The petition is accordingly disposed of.
Order Date :- 17.5.2024 kkb/