TaxTMI 
TaxTMI 
2023 (11) TMI 1387
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....ief, the allegations are that the Complainant/Respondent No. 2 (hereinafter referred to as "R2") was a tenant of a shop situated in the house of one Hari Narayan Shukla. On 29.06.2011, the appellants, along with others, locked the door of R2's shop from inside, broke the wall and looted wheat (APL), sale money, about INR 21,000 worth of kerosene oil, goods in stock, all the registers of the shop, documents and a two-wheeler bearing Registration Number UP32BX2356 which led to R2 filing of the Hazratganj P.S. Case No. 341 of 2011 dated 01.07.2011 (hereinafter referred to as the "FIR") under Sections 448, 454 and 380 of the Indian Penal Code, 1860 (hereinafter referred to as the "IPC"). SUBMISSIONS BY THE APPELLANTS: 4. The learned counsel for the appellants submitted that FIR itself would show that the allegation(s) is/are frivolous in nature and levelled with a view only to frustrate the appellants from enjoying their property, as admittedly, Appellant No. 2 (hereinafter referred to as "A2") is the owner of the shop referred to supra, being the bona fide purchaser through a registered Sale Deed. 5. Learned counsel for the appellants submitted that R2, who cla....
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...., prima facie found that offence under Section 463^[8], IPC had been committed by R2 and directed initiation of proceedings against him. 9. Furthermore, it was pointed out that in terms of the High Court's Order dated 10.04.2014, the appellants on 16.01.2016 filed application for discharge before the Chief Judicial Magistrate, Lucknow, in Case Crime No. 368 of 2011, wherein one of the grounds taken was the order dated 18.12.2014 passed by the Civil Judge (Junior Division), South, Lucknow. 10. Learned counsel submitted that Order dated 18.12.2014 was a clear-cut finding by a Court of Law that the entire suit was premised on forged and fabricated document(s). He submitted that once the same has been established, the contention of R2 to be in possession of the property in question does not arise and clearly the FIR itself was a misuse and abuse of the process of law. Learned counsel submitted that despite there being sufficient material for discharge, the Trial Court by order dated 02.06.2017 rejected the application on vague grounds and thus, the appellants had to move the High Court under Section 482, CrPC in Case U/S 482/378/407 Cr.P.C. No. 4929 of 2017, which was d....
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....w. 15. Although the instant case pertains to Trial of Warrant-Cases by Magistrates and is a case instituted on a police report, meaning Sections 239- 240^[9], CrPC are relevant, we also propose to glance at Section 245^[10], CrPC (concerning trial of warrantcases by Magistrates apropos cases instituted otherwise than on police report), as also Sections 227-228^[11], CrPC, which pertain to Trial before a Court of Session. 16. The extent of scrutiny permissible when an application for discharge is being considered has attracted this Court's attention on a number of occasions. It is appropriate to take note of the leading precedents on the subject. Insofar as Section 245, CrPC is concerned, the decision of this Court in Ajoy Kumar Ghose v State of Jharkhand, (2009) 14 SCC 115 is instructive: '19. The essential difference of procedure in the trial of warrant case on the basis of a police report and that instituted otherwise than on the police report is particularly marked in Sections 238 and 239 CrPC on one side and Sections 244 and 245 CrPC on the other. Under Section 238, when in a warrant case, instituted on a police report, the accused appears or is brought before th....
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....f the evidence led by the prosecution before him under Section 244 and he has to consider whether if the evidence remains unrebutted, the conviction of the accused would be warranted. If there is no discernible incriminating material in the evidence, then the Magistrate proceeds to discharge the accused under Section 245(1) CrPC. 25. The situation under Section 245(2) CrPC is, however, different. There, under subsection (2), the Magistrate has the power of discharging the accused at any previous stage of the case i.e. even before such evidence is led. However, for discharging an accused under Section 245(2) CrPC, the Magistrate has to come to a finding that the charge is groundless. There is no question of any consideration of evidence at that stage, because there is none. The Magistrate can take this decision before the accused appears or is brought before the court or the evidence is led under Section 244 CrPC. The words appearing in Section 245(2) CrPC "at any previous stage of the case", clearly bring out this position. Xxx 36. The Magistrate has the power to discharge the accused under Section 245(2) CrPC at any previous stage i.e. before the evidenc....
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....e out - as has been done in the instant case - the person arraigned may, if he feels aggrieved, invoke the revisional jurisdiction of the High Court or the Sessions Judge to contend that the chargesheet submitted under Section 173 CrPC and documents sent with it did not disclose any ground to presume that he had committed any offence for which he is charged and the revisional court if so satisfied can quash the charges framed against him. To put it differently, once charges are framed under Section 240 CrPC the High Court in its revisional jurisdiction would not be justified in relying upon documents other than those referred to in Sections 239 and 240 CrPC; nor would it be justified in invoking its inherent jurisdiction under Section 482 CrPC to quash the same except in those rare cases where forensic exigencies and formidable compulsions justify such a course. We hasten to add even in such exceptional cases the High Court can look into only those documents which are unimpeachable and can be legally translated into relevant evidence. 8. Apart from the infirmity in the approach of the High Court in dealing with the matter which we have already noticed, we further find that....
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....ingh Karam Singh Punjabi v Jitendra B Bijjaya, (1990) 4 SCC 76; Dilawar B Kurane v State of Maharashtra, (2002) 2 SCC 135; Chitresh K Chopra v State (Government of NCT of Delhi), (2009) 16 SCC 605; Amit Kapoor v Ramesh Chander, (2012) 9 SCC 460; Dinesh Tiwari v State of Uttar Pradesh, (2014) 13 SCC 137; Dipakbhai Jagdishchandra Patel v State of Gujarat, (2019) 16 SCC 547; and State (NCT of Delhi) v Shiv Charan Bansal, (2020) 2 SCC 290. We need only refer to some, starting with Prafulla K Samal (supra), where, after considering Ramesh Singh (supra), K P Raghavan v M H Abbas, AIR 1967 SC 740 and Almohan Das v State of West Bengal, (1969) 2 SCR 520, it was laid down as under: '10. Thus, on a consideration of the authorities mentioned above, the following principles emerge: (1) That the Judge while considering the question of framing the charges under Section 227 of the Code 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. (2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly e....
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....necessary to determine whether a case has been made out by the prosecution for proceeding with trial and it would not be necessary to dwell into the pros and cons of the matter by examining the defence of the accused when an application for discharge is filed. At that stage, the trial judge has to merely examine the evidence placed by the prosecution in order to determine whether or not the grounds are sufficient to proceed against the accused on basis of charge sheet material. The nature of the evidence recorded or collected by the investigating agency or the documents produced in which prima facie it reveals that there are suspicious circumstances against the accused, so as to frame a charge would suffice and such material would be taken into account for the purposes of framing the charge. If there is no sufficient ground for proceeding against the accused necessarily, the accused would be discharged, but if the court is of the opinion, after such consideration of the material there are grounds for presuming that accused has committed the offence which is triable, then necessarily charge has to be framed. 8. At the time of framing of the charge and taking cognizance the ....
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.... Soni, (2000) 6 SCC 338 has held the nature of evaluation to be made by the court at the stage of framing of the charge is to test the existence of prima-facie case. It is also held at the stage of framing of charge, the court has to form a presumptive opinion to the existence of factual ingredients constituting the offence alleged and it is not expected to go deep into probative value of the material on record and to check whether the material on record would certainly lead to conviction at the conclusion of trial.' (emphasis supplied) 23. On a careful conspectus of the legal spectrum, juxtaposed with our view on the facts and merits expressed hereinbefore, we are satisfied that there is no suspicion, much less strong or grave suspicion that the appellants are guilty of the offence alleged. It would be unjustified to make the appellants face a full-fledged criminal trial in this backdrop. In an appeal dealing with the refusal of the High Court to quash an FIR under Section 482, CrPC albeit, this Court, while setting aside the judgment impugned therein and quashing that FIR, took the view that '...the Appellants are to be protected against vexatious and unwarranted criminal p....
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....f the first class having jurisdiction; (d) take sufficient security for the appearance of the accused before such Magistrate, or if the alleged offence is non-bailable and the Court thinks it necessary so to do, send the accused in custody to such Magistrate; and (e) bind over any person to appear and give evidence before such Magistrate. (2) The power conferred on a Court by sub-section (1) in respect of an offence may, in any case where that Court has neither made a complaint under sub-section (1) in respect of that offence nor rejected an application for the making of such complaint, be exercised by the Court to which such former Court is subordinate within the meaning of sub-section (4) of Section 195. (3) A complaint made under this section shall be signed,- (a) where the Court making the complaint is a High Court, by such officer of the Court as the Court may appoint; (b) in any other case, by the presiding officer of the Court or by such officer of the Court as the Court may authorise in writing in this behalf. (4) In this section, "Court" has the same meaning as in Section 195. [3] 448. Punishment for house-trespass.- Wh....
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....No order under this section shall remain in force for more than two months from the making thereof: Provided that, if the State Government considers it necessary so to do for preventing danger to human life, health or safety or for preventing a riot or any affray, it may, by notification, direct that an order made by a Magistrate under this section shall remain in force for such further period not exceeding six months from the date on which the order made by the Magistrate would have, but for such order, expired, as it may specify in the said notification. (5) Any Magistrate may, either on his own motion or on the application of any person aggrieved, rescind or alter any order made under this section, by himself or any Magistrate subordinate to him or by his predecessor-in-office. (6) The State Government may, either on its own motion or on the application of any person aggrieved, rescind or alter any order made by it under the proviso to sub-section (4). (7) Where an application under sub-section (5) or sub-section (6) is received, the Magistrate, or the State Government, as the case may be, shall afford to the applicant an early opportunity of appearing before him or it,....