Swatantra Bahadur Singh And Others vs State Of Uttarakhand And Another

Sharad Kumar Sharma, J

The genesis of the proceedings as has been initiated by the registration of an FIR, being FIR No. 194 of 2014, registered under Sections 420, 467, 468, 471, 504 and 506 IPC at Police Station, Rudrapur, District, Udham Singh Nagar, on 3rd May 2014. In relation to the set of allegation, which have been levelled in the FIR, it would not be out of place to mention that prior to it, there was an initiation of the proceedings by the respondent under Section 156(3) of Cr.P.C. seeking for registration of the FIR, and for a direction to the police authorities to do the needful by registration of the FIR under Section 154 of Code of Criminal Procedure.

The argument of the learned Senior Counsel for the revisionists is to the effect that in the set of allegations, as levelled in the application under Section 156(3) of Cr.P.C., filed by the complainant before the Chief Judicial Magistrate, District, Udham Singh Nagar, which was registered as Misc. Case No. 56 of 2014, Smt. Prabhawati Devi v. Prem Prakash Singh and others, it is argued by the learned Senior Counsel for the revisionists that on going through the contents of the allegations, as levelled in the application under Section 156(3) of Cr.P.C., there was no set of allegations which was ever remarked or levelled against the present revisionistsm hence until and unless the allegations with regards to the commission of offence in relation to the provisions of law as mentioned above is made out in the application under Section 156(3) of Cr.P.C., they ought not to have been charged by the learned trial Court for the same offences when the allegations were not existing at the time of initiation of 156 Application. However, for the purposes of brevity, it is mentioned that the application as preferred under Section 156(3) of Cr.P.C. was rejected by the Court of Chief Judicial Magistrate by an order dated 25th February 2014, which also subsequently stood affirmed by the dismissal of the revision by the Sessions Court by an order dated 30th April 2014 rendered in Revision No. 77 of 2014, Smt. Prabhawati Devi v. Prem Prakash Singh and others.

A question, which has emerged for consideration for this Court would be as to what would be the impact of the rejection of 156(3) application under Cr.P.C. of the application which was concurrently rejected by the learned trial Court, as well as, by the revisional Court on the registration of a subsequent FIR, which was registered on 3rd May 2014 as FIR No. 194 of 2014 on 03.05.2014. The said question is not in debate for the reason that the said issues stand settled by a judgement rendered by this Court as rendered in Criminal Misc. Application No. 873 of 2016, Smt. Nidhi Singh and others v. State of Uttarakhand and another, whereby in the bunch of cases was decided and in the said judgement, it has been laid down by the co-ordinate Bench of this Court that mere rejection of an application under Section 156(3) of Cr.P.C. of Cr.P.C. will not result into a situation where an FIR subsequent to it cannot be registered. A reference to the said provision as settled by the said judgement dated 3rd August 2016 is quoted hereunder:

"11. Section 156(3) of Cr.P.C. Cr.P..C. empowers the police officer to investigate the cognizable offence. In the instant case, the application under Section 156(3) of Cr.P.C. Cr.P.C. was rejected. A criminal writ petition was preferred against the same, which too met the same fate as was met by application under Section 156(3) of Cr.P.C. Cr. P.C. Thereafter, an application was addressed to DIG, who directed the SO concerned to investigate the case. Learned Deputy Advocate General submitted that the contents of application under Section 156(3) of Cr.P.C. are not exactly the same as was complained and addressed to the DIG. Some additional facts were introduced in the same. Moreover, it is a settled law that if an application under section 156(3) of Cr.P.C. Cr.P.C. is dismissed, It is always open to the complainant to file a criminal complaint case, which is provided in Chapter XV of the Code. It will be useful to quote the language of Section 156 of the Code herein below:

"156. Police officer's power to investigate cognizable case.

(1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII. (2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate.

(3) Any Magistrate empowered under section 190 may order such an investigation as abovementioned."

On conducting an investigation in pursuance to the registration of the FIR on 03.05.2014, it is yet again argued by the learned Senior Counsel for the revisionists that if the set of allegations, which have been levelled in the FIR for the commission of aforesaid offence alleged, is taken into consideration, in precision, then as a matter of fact, none of the allegations or the nature of offence contained thereof are said to have been levelled or are made out as against the present revisionists. Hence, in the light of the aforesaid two contentions are that with the effect of rejection of 156(3) of Cr.P.C. application and its confirmation by rejection of criminal revision, which did not contained any allegation against the present revisionists, too coupled with the fact that in the FIR, there was no allegation yet again levelled against the revisionists regarding commission of any offence, hence they cannot be charged with the offences by invoking the provisions contained under Section 240 of the Cr.P.C.

Apparently, the argument which has been extended by the learned counsel for the revisionists is that in order to charge an accused person under Section 240 of Cr.P.C. for commission of an offence, there has had to be a prima facie set of allegations, which is required to be established before the Court while considering the application under Section 156(3) of Cr.P.C. or at the time of levelling an allegation by the complainant in the FIR.

The contention, which has been tried to be conveyed and prayed by the revisionists' counsel is that in such an eventuality where 156 (3) of the Cr.P.C. has been concurrently stand rejected and once in the FIR, there is no allegation made out against the revisionists, they ought not to be charged by the trial Court for the commission of aforesaid offences alleged against them. But the fact which is revealed from the records is that on the registration of the FIR, an investigation was conducted and on the conclusion of the investigation, a Chargesheet was submitted by the Investigating Officer against the revisinist, being Chargesheet No. 121/16 dated 11th May 2016, and it was for the first time that in the said Chargesheet as registered by the Investigating Officer before the Magistrate concerned, the names of the present revisionists are shown as to be disclosed as an accused for the commission of offence, as their names are shown to have been reflected in the chargesheet at serial number 7, 8 and 9 respectively. It is based on the said inclusion of the names of the present revisionists in the chargesheet, the Court below had taken cognizance of the matter and the proceedings have been initiated by the learned trial Court by way of Criminal Case No. 2934 of 2014, State v. Prem Prakash and others which is pending consideration at present after framing of charge by the impugned order dated 29th January 2018.

What is relevant at this stage to be considered and to be precise in drawing an inference with regard to the propriety of a challenge given to the charge as framed by the learned trial Court by the impugned order in question i.e. dated 29th January 2018, is that this Court cannot be oblivious of the fact that during the pendency of the trial, the accused persons, which included the revisionist, they have filed an application for discharge under Section 239 of Cr.P.C. before the learned trial Court and the learned trial Court, by a composite order dated 27th March 2017, had rejected the application under Section 239 for discharge in relation to all the accused persons, who have been named in the chargesheet.

As against the rejection of their discharge by an order dated 27th March 2017, since the said order was subjected to a revisional jurisdiction, where it could be challenged and the power of revision being concurrent jurisdiction which is vested with the High Court, as well as, with the Sessions Court, the accused persons, for example; namely, Prem Prakash Singh, Nagma Tiwari, Prem Nath Singh, Smt. Nidhi Singh, Smt. Manju Lata had preferred a revision before this Court, questioning the propriety of an order of rejection of their application under Section 239 for discharge by filing a revision being Revision No. 161 of 2017, Prem Prakash Singh v. State of Uttarakhand, which was dismissed by this Court by an order dated 10th January 2018.

The other set of aggrieved accused person namely the revisionist herein also had preferred the revision before the District and Sessions Judge, challenging the order of rejection of the discharge dated 27.03.2017 and their revision as filed before the Sessions Judge is pending consideration without grant of an interim order. Consequently, as a result of filing of the Criminal Revision before this Court against an order of rejection of the discharge by other co accused persons whose application under Section 239 was compositely rejected by an order dated 27th March 2017, their revisions against an order dated 27th March 2017 rejecting discharge under Section 239 of Cr.P.C. was rejected by this Court on 10th January 2018, the relevant paragraphs of the said judgement is quoted hereunder:-

"12. It was only the stage of discharge before the trial court. All the court has to examine was whether a trial can actually proceed on the strength of the evidence which were there before the court. The evidence has not to be evaluated in detail nor arguments have to be heard at this stage. On the validity of the evidence or on the strength of the evidence, all the court has to see is whether a criminal trial case continue or not. The first and foremost purpose of the Court in a trial is to reach to the truth of the matter. The order dated 27.03.2017 is a detailed order which has dealt with each and every aspect of the matter, where a categorical finding has come that there is enough evidence placed by the prosecution for the trial to continue.

In view of the aforesaid, no interference is called for by this Court in the matter.

Consequently, the criminal revisions fail and are hereby dismissed. Interim orders, if any, stand vacated.

However, considering the nature of the case and the plea made by the parties, it is directed that the trial shall continue as a continuous trial preferably on a day-to-day basis without granting any unnecessary adjournments to any of the parties."

The said order was put to challenge before the Hon'ble Apex Court and the Hon'ble Apex Court too had dismissed the SLP as withdrawn, having rendered infructuous by an order dated 4th September 2018.

Be that as it may. The effect of rejection of an application of discharge on 27th March 2017 and its confirmation by Revisional Judgement dated 10th January 2018, may be a fact that the SLP preferred before the Hon'ble Apex Court too was dismissed as withdrawn but the fact remains that the order of rejection of discharge under Section 239 Cr.P.C. as passed by the Chief Judicial Magistrate on 27th March 2017, it is an admitted fact by both the parties that the said order has attained finally because of the rejection of the revision by this Court so far it relates to the persons who have preferred the revision against the rejection of discharge before this Court.

The distinction, which is being sought to be carved out by the present revisionists is to the effect that the dismissal of revision on 10th January 2018, as against the rejection of discharge by this Court by an order dated 10th January 2018, it will have no bearing as far as the present revisionists are concerned, for the reason that against the rejection of their discharge their revision before the District and Sessions Court is still pending consideration without any interim order, hence the argument is their rejection of discharge by order dated 27.03.2014 cannot be treated to have attained finality due to pendency of their revision before the Sessions Court.

The fact which is reflected from the above observation, one aspect which is quite apparent is that as far as the order of rejection of discharge under Section 239 Cr.P.C. by an order dated 27th March 2017 is concerned, that would be treated to have been judicially scrutinized by the Superior Court which has resulted into rejection of revision by High Court by an order dated 10th January 2018 and consequential dismissal of the SLP as withdrawn by some of the co-accused persons by the Hon'ble Apex Court, who have approached this Court. The resultant effect of the order dated 10th January 2018, passed by the co-ordinate Bench of this Court would be that it would be an order which was assigning an affirmation to the order dated 27th March 2017 rejecting the discharge, by a Superior Court, in such an eventuality, the effect of the order dated 10th January 2018, as well as the order of the Hon'ble Apex Court dated 4th September 2018, will obviously have a bearing as far as it relates to the challenge given by the present revisionists to the order dated 27th March 2018 by way of a revision which was filed before the District and Sessions Judge, because under no set of circumstances, when the basis of formulation of grounds for seeking a discharge by the accused persons was commonly agitated before the Court which was rejected by a common order dated 27th March 2017, then at least, now at this stage after dismissal of the revision by an order dated 10th January 2018 rendered by the co-ordinate Bench of this Court would obviously cannot be overridden by a revisional Court which is concurrently exercising revisional jurisdiction, which is subordinate to the Superior revisional Court, which has already decided the revision as against the order of rejection of discharge dated 27th March 2017 rendered under Section 239 Cr.P.C.

Cutting short the controversy, there are various versions and counter versions which have come across the board and at this stage when after submission of the chargesheet the learned Sessions Court has taken cognizance of the matter and admittedly the trial has reached upto the stage of proceedings under Section 313, and the present revisionists have already actively participated in the proceedings and have answered the questions placed before them in the trial proceedings and rather they have further stepped forward by praying to the trial Court for summoning of two additional witnesses in order to substantiate their defence before the Court below, that in itself could also be inferred that as far as revisionists are concerned, they have, by their active participation in the proceedings of the trial had submitted to the order of framing of the charge which is impugned in the present revision.

The distinction which has been sought to be carved out by the learned counsel for the revisionists is that for the purposes of invocation of the provisions contained under Section 240 of the Code of Criminal Procedure, for framing of a charge, there has had to be a material before the Court in order to come to a logical conclusion based on the consideration of the materials as to whether at all the persons who have been named in the chargesheet to have been involved in the commission of offence and as to whether at all they are required to be charged to be tried as a consequence to it.

In the case at hand after considering the chargesheet, when the revisionists were summoned, they had participated in the proceedings and now at the time and stage when the revisionists are questioning the order of framing of a charge on the ground that no role has been assigned to them in their application under Section 156(3) of Cr.P.C., which has been rejected and when there was no role assigned to them in the FIR, which has been registered against them by the complainant, in such an eventuality, when the allegations are not settled against them in the 156(3) of Cr.P.C. proceedings or in the FIR then they ought not to be charged for the offences under Section 240 of the Cr.P.C. That may be a case to be considered.

But this Court cannot be oblivious of the fact that if at all this contention is accepted, it would amount to sitting over an unassailed and final order passed by the co-ordinate Bench of this Court, where their discharge has already been rejected by the judgement of this Court dated 10th January 2018. The consequential effect of rejection of a discharge this Court is of the view that the next stage, which is automatically to be followed is that of framing of a charge while exercising the power under Section 240 of the Code of Criminal Procedure and that is what is being done in the instant case which is impugned in the present revision. If at all the argument as it has been raised by the learned counsel for the revisionists pertaining to that effect that when there is no allegation proved against the revisionists, they ought not to be charged, cannot be accepted, for the reason that as soon as the composite order of rejection of discharge which has been affirmed by the co-ordinate Bench of this Court and has also been affirmed by the dismissal of SLP as withdrawn by the Hon'ble Apex Court by its order dated 4th September 2018, at this stage, if at all this Court while exercising its power under Section 397 to be read with Section 401 of the Code of Criminal Procedure, if at all is asked or called upon to interfere in the order of framing of a charge which is impugned in the present revision, it would amount to taking over or drawing opinion contrary to the order of rejection of discharge by an order passed by this Court on 10th January 2018 and its subsequent affirmation by the Hon'ble Apex Court.

In such an eventuality, this Court is of the view that as soon as the application for discharge stand rejected of an accused person, and if the accused person whose application of discharge has been put to challenge in a revision, and if the Revisional Court has not interfered by granting any interim order, or if a revision preferred by other co-accused persons before a Superior Court has been affirmed by dismissal of a revision, or the dismissal of the revision against the rejection of discharge by Superior Court has been affirmed by the Hon'ble Apex Court by the dismissal of SLP as withdrawn if the revisional power is invoked for questioning the charge framed under Section 240 Cr.P.C, which is a consequential action, it would amount to taking a contrary view there to the order dated 10th January 2018, as well as, the order dated 4th September 2018, by virtue of which the SLP was dismissed.

This Court is of the view that the issue could also be further answered from the viewpoint that the revisionists themselves have rather participated in the proceedings by recording their statements under Section 313 of Cr.P.C. that in itself will tantamount to stepping into participation in the trial and the stage of framing of a charge and calling upon the persons thus charged by the Court under Section 240 is over as soon as the accused persons start participating in the proceedings before the trial Court.

There is another logic behind it; this Court is refraining itself to exercise its revisional powers vested under Section 379 to be read with Section 401 Cr.PC on the ground that if at all this Court exercises its powers based on the ground which has been argued by the learned counsel for the revisionists, that no set of allegations had been apparently made out in the proceedings under Section 156 (3) or in the FIR that will amount to sitting over an order passed by the Hon'ble Apex Court, where their discharge stood rejected. If a discharge of an accused person has been rejected by a Superior Court, then mere pendency of a revision before a concurrent subordinate revisional Courts which is inferior to it, will have no bearing and hence a contrary view cannot be taken by this Court so far it relates to the discharge which has been made by the Court because if at all the Court interferes in the order of framing of a charge, it will be contrary to rejection of their application for discharge by the order dated 27th March 2017 and affirmed by this Court by the judgement dated 10th January 2018, hence this revision lacks merit and is accordingly dismissed.

However, there would be no order as to cost.