Smt Anita And 6 Others v. State of U.P. and Another

Neutral Citation No. - 2024:AHC:141236

HIGH COURT OF JUDICATURE AT ALLAHABAD

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Court No. - 79 Case :- APPLICATION U/S 482 No. - 18186 of 2024

Applicant :- Smt Anita And 6 Others

Opposite Party :- State of U.P. and Another

Counsel for Applicant :- Gyan Singh,Sukhvir Singh

Counsel for Opposite Party :- Akshay Raghuvanshi,B.K.Singh Raghuvanshi,G.A.

Hon'ble Anish Kumar Gupta,J.

1. Heard Sri Sukhvir Singh, learned counsel for the applicants, Sri Akshay Raghuvanshi, learned counsel for the opposite party no.2 and Sri Rajeev Kumar Singh, learned A.G.A. for the State.

2. The instant application under Section 482 Cr.P.C. has been filed seeking quashing of the impugned order dated 18.05.2024 in Discharge Application dated 23.04.2024 in Complaint Case No. 881 of 2016 (Ramautar Yadav vs. Ranjeet Yadav and 6 Others), u/S 498A, 304B I.P.C. and 3/4 D.P. Act, P.S.- Jasrathpur, District- Etah, pending in the court of learned Chief Judicial Magistrate- Etah.

3. Learned counsel for the applicants submits that in the instant case after the death of the wife of the applicant no.3/Ranjeet, an F.I.R. was registered as per the direction of the Magistrate on an application under Section 156(3) Cr.P.C., for the offences under Sections 498A, 304B, 506 I.P.C. and 3/4 D.P. Act. Learned counsel for the applicants further submits that after the registration of the aforesaid F.I.R., the first final report was submitted by the Investigation Agency on 01.12.2013. On that final report, a protest application was moved on behalf of the opposite party no.2, whereupon the learned Magistrate has directed further investigation. After the further investigation carried out by the Investigation Agency, a final report was submitted on 20.11.2015. In both the aforesaid final reports categorical findings were arrived at by the Investigation Agency that the death of the deceased was caused due to the electrocution and not by any act on behalf of the applicants. Against the second final report submitted by the Investigation Agency, again a protest petition was filed on behalf of the opposite party no.2 on 28.05.2016. Vide order dated 28.05.2016, it was directed that the protest petition be treated as a complaint case. In the meantime, on the representations made by the opposite party no.2 to the National Human Rights Commission, the investigation of the case was directed to be carried out by the Crime Branch- Criminal Investigation Department (in short, 'the CB-CID'). The CB-CID also submitted its final report on 06.05.2018.

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Having found that the death of the deceased was caused due to electrocution and not having any role on the part of the the applicants as alleged in the F.I.R. and the CB-CID also recommended for an action to be taken against the opposite party no.2 under Section 182 I.P.C, learned counsel for the applicants submits that after the investigation was undertaken by the CB-CID, permission was obtained from the learned Magistrate on 01.07.2017 to carry out further investigation in the matter. Therefore, learned counsel for the applicants submits that once there are three concurrent final reports submitted by the Investigation Agency, the proceedings of the complaint case which was initiated on the basis of the protest petition filed by the opposite party no.2 herein, the said complaint case ought to have been stayed by the learned Magistrate in view of Section 210 Cr.P.C. However, the Magistrate in spite of staying the proceedings of the complaint case, has proceeded to record statement of witnesses under Section 200 and 202 Cr.P.C. and vide order dated 01.03.2023 has summoned the applicants herein for trial without adverting to the last and third final report submitted by the CB-CID. Against the summoning order dated 01.03.2023, the applicants had approached to this Court by filing an Application under Section

482 No. 12413 of 2023 (Smt. Anita and 6 Other vs. State of U.P. and Another), which was disposed of by this court vide order dated 04.04.2024 with the following directions:

"Heard learned counsel for the applicants and learned A.G.A. for the State. The present application under Section 482 Cr.P.C. has been preferred to quash the order of summoning dated 01.03.2023 passed by Chief Judicial Magistrate, Etah against the applicants in Complaint Case No.881 of 2016 (Ramautar Yadav v. Ranjeet Yadav and others) under Sections 498A, 304B I.P.C. and 3/4 D.P. Act which is pending before the Chief Judicial Magistrate, Etah. From the perusal of the material on record and looking into the facts of the case, at this stage it cannot be said that no offence is made out against the applicants. All the submissions made at the bar relate to the disputed questions of fact, which cannot be adjudicated upon by this Court under Section 482 Cr.P.C. Only in cases where the Court finds that there has been failure of justice or misuse of judicial mechanism or procedure, sentence or order was not correct, this power may be exercised to prevent the abuse of process of miscarriage of justice. Accordingly, prayer of the applicants is refused.

However, in view of the submissions, it is provided that in case the applicants move an application for discharge through counsel within three weeks, the same shall be disposed of by the trial court by a reasoned and speaking order in accordance with law within three weeks thereafter.

Till the disposal of the discharge application, no coercive action shall be taken against the applicants.

With the aforesaid direction, this application is disposed of."

4. Therefore, from the perusal of the aforesaid order passed by the Co-ordinate Bench of this Court it is apparent that this Court has refused the prayer for quashing of the summoning order. However, the liberty was granted to the

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applicants herein to move a discharge application before the trial court concerned through counsel within three weeks from the date of order and till the disposal of such discharge application, this Court has directed that no coercive steps shall be taken against the applicants herein. Learned counsel for the applicants submits that in compliance of the aforesaid order, the applicants have moved the discharge application on 23.04.2024 before the learned Magistrate, however, by impugned order dated 18.05.2024, the learned Chief Judicial Magistrate, Etah, has rejected the discharge application as not maintainable, holding that the case has not yet been committed to the Sessions Court and the Magistrate has held that it is not the trial court where discharge application was directed to be filed by the applicants herein. It is further submitted by learned counsel for the applicants that since in the instant case, in view of the categorical provisions of Section 210 Cr.P.C., the proceeding of the complaint case are not sustainable and the summoning order passed against the applicants is also not sustainable in law, as the proceeding of the complaint case ought to have been stayed in view of the final report submitted by the CB-CID. Learned counsel for the applicant further submits that since the discharge application was filed through counsel in terms of the directions issued by this Court, therefore, the Magistrate has wrongly dismissed the discharge application, therefore, he has prayed for quashing of the order dated 18.05.2024.

5. Per contra, learned counsel for the opposite party no.2 relying upon the provisions of Section 209 Cr.P.C. submits that in a case triable by the Sessions Court, unless the accused appears before the trial court the case cannot be committed for the Sessions Court where the discharge application can be filed by the applicant herein. Therefore, the precondition of committal of the case to the Sessions Court is that the applicants herein are required to surrender before the learned Magistrate and only then the case can be committed for trial to the Sessions Court. Since, the applicants have not yet appeared/surrendered before the Magistrate, the case could not be committed, therefore, the discharge application filed by the applicants was a premature application and has rightly been rejected by the Magistrate, holding that it is not the competent trial court to decide the same. Therefore, there is no illegality in the order dated 18.05.2024, passed by the learned Magistrate.

6. Learned counsel for the opposite party no.2 has relied upon the judgement of the Coordinate Bench of this Court in Criminal Revision No. 429 of 2024

(Kaleem Ahmad, Mohd. Jeeshan Ahmad and Rizwana vs. State of U.P. through Principal Secretary, Home Lucknow and Another passed) dated 17.05.2024, wherein the Coordinate Bench of this Court has held as under:

"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

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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."

7. Learned A.G.A for State though supports the investigation carried out by the Investigation Agency, submits that in view of Section 209 Cr.P.C., the case

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cannot be committed unless the accused appears/surrender before the Magistrate concerned and the case can be committed on such appearance/surrender by the applicant herein and the discharge application was a premature application as it would have been filed only before the Sessions Court, which is the trial court concerned in the instant case and not before the Magistrate.

8. Having heard the rival submissions made by learned counsel for the parties this Court has carefully gone through the record of the case. Since, the prayer for quashing of the summoning order was already rejected by the Coordinate Bench of this court in application under Section 482 No. 12413 of 2024, vide order dated 04.04.2024, therefore, this Court cannot open the aforesaid aspect of the matter. However, the Co-ordinate of this Court has already granted an interim protection to the applicant herein till the filing of the discharge application in view of the three final reports submitted in favour of the applicants. In view thereof, though the applicants have filed the discharge application before the Magistrate, however, the Magistrate has rightly held that it was not a competent trial court to deal with the discharge application and unless the case is committed, the trial could not be said to have been commenced and the cognizance could not be said to have been taken by the trial court concerned.

9. In view thereof, the instant application is disposed of with a direction to the applicants herein to appear/surrender before the Magistrate within a period of three weeks from today. On such appearance of the applicants herein, the Magistrate shall commit the case to the trial court concerned within two weeks thereafter and from the date of committal of the case to the Sessions Court, the applicants are at liberty to file the discharge application within further period of four weeks from the date of committal to the Sessions Court and thereafter the sessions court shall decide the discharge application moved by the applicant on its own merit. Till the entire process of appearance of the applicants, committal of case, filing of discharge application and disposal of discharge application the applicants herein shall not be arrested and no coercive steps shall be taken against them till the discharge application filed in pursuance to this order is disposed of.

10. In the meantime, liberty is also given to the applicants herein to move an application under Section 210 Cr.P.C., which shall also be decided by the Sessions Court in accordance with law.

Order Date :- 2.9.2024 Shubham Arya

(Anish Kumar Gupta, J.)

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