Jitendra and others vs State of U.P. and another

Shri Kant Tripathi, J.—Heard Mr. Rajeev Nayan Singh for the applicants, Mr. Brijesh Yadav for the respondent No. 2 and learned A.G.A. for respondent No. 1 and perused the record.

Mr. Rajeev Nayan Singh for the applicants submitted that the applicants had moved an application for discharge u/s 245 (2). Cr.P.C. and the learned Additional Chief Judicial Magistrate rejected the application on the ground that the discharge application was not maintainable without taking evidence u/s 244, Cr.P.C. The learned counsel further submitted that a single Judge of this Court in the case of Girish Chandra Gupta and others v. State of U. P. and others, 2004 (II) UPCrR 539 : 2005 (1) ACR 427, has very specifically held that accused may claim discharge u/s 245 (2), Cr.P.C. immediately on his appearance and even before the evidence u/s 244, Cr.P.C. This proposition has been laid down on the basis of the terms ''at any previous stage of the case'' used in Section 245 (2), Cr.P.C. The learned counsel for the applicants further submitted that the learned Magistrate instead of following the verdict of this Court laid down in the case of Girish Chandra Gupta (supra) placed reliance on Adalat Prasad v. Roop Lal Jindal 2004 (3) Cri 350 (SC), and Subrahmaniam Sethuraman v. State of Maharashtra. 2005 SCC (Cri) 242 : 2004 (3) ACR 2704 (SC), in which the Apex Court has held that the Magistrate has no power to recall, review or modify the summoning order and the only course available to the accused is to file a petition u/s 482, Cr.P.C.

Learned A.G.A., on the other hand, submitted that there was no other material except the materials considered u/s 204, Cr.P.C., therefore, the prayer for discharge was nothing except a prayer for review of the summoning order and the learned Magistrate was justified in refusing to discharge the applicants and the view of the learned Magistrate finds support from the verdict of the Apex Court in the cases of Adalat Prasad (supra) and Subrahmaniam Seturaman (supra). Learned A.G.A. further submitted that the discharge application has been rejected not only on the technical ground but also on merit.

In my opinion, it is not proper for this Court to enter into the question whether or not the power u/s 245 (2), Cr.P.C. could be invoked before taking evidence u/s 244, Cr.P.C. because the application for discharge has been rejected not only on the aforesaid technical ground but also on merit. The applicants claimed their discharge on the basis of the materials of the cross case. It was stated by them that on 24.6.2004 at about 7.00 a.m. the respondent No. 2 and others came to their house and assaulted them and also caused damage to their house. Learned Magistrate refused to discharge the applicants on the ground that the defence version/materials could not be taken into consideration at the stage of discharge. The view of the learned Magistrate seems to be perfectly correct. At the stage of framing charge or considering an application for discharge the material as produced by the prosecution alone is relevant and not the materials produced by the accused, therefore, the learned Magistrate was perfectly justified in not considering the defence version.

A Three Judges Bench of the Apex Court in the case of State of Orissa Vs. Debendra Nath Padhi, , has very specifically held in paras 16 and 18 as follows :

All the decisions, when they hold that there can only be limited evaluation of materials and documents on record and sifting of evidence to prima facie find out whether sufficient ground exists or not for the purpose of proceeding further with the trial, have so held with reference to materials and documents produced by the prosecution and not the accused. The decisions proceed on the basis of settled legal position-that the material as produced by the prosecution alone is to be considered and not the one produced by the accused. The latter aspect relating to the accused though has not been specifically stated, yet it is implicit in the decisions. It seems to have not been specifically so stated as it was taken to be well settled proposition. This aspect, however, has been adverted to in State Anti-Corruption Bureau, Hyderabad and another v. P. Suryaprakasam, 1999 SCC (Cri) 373, where considering the scope of Sections 239 and 240 of the Code it was held that at the time of framing of charge, what the trial court is required to, and can consider are only the police report referred to u/s 173 of the Code and the documents sent with it. The only right the accused has at that stage is of being heard and nothing beyond that

(Emphasis supplied).

18.... It only means hearing the submissions of the accused on the record of the case as filed by the prosecution and documents submitted therewith and nothing more. The expression ''hearing the submissions of the accused'' cannot mean opportunity to file material to be granted to the accused and thereby changing the settled law. At the stage of framing of charge hearing the submissions of the accused has to be confined to the material produced by the police.

(Emphasis supplied).

In view of the aforesaid principles, the finding of the learned Magistrate, which is based on the materials placed in support of the complaint, is perfectly correct and requires no interference. Whatever allegations were made by the applicants by way of counter version for claiming their discharge, they were not relevant at all.

The materials on which basis the applicants have been summoned make out a prima facie case, therefore, the prayer for discharge has correctly been refused.

The petition u/s 482. Cr.P.C. has no merit and is accordingly dismissed.