TaxTMI 
TaxTMI 
TaxTMI 
2023 (11) TMI 1387
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....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 claimed to be the tenant of the property in question, ....
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....een 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 dismissed by the Impugned Judgment. 11. Learned counsel pointed out t....
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....tes 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 the Magistrate, the Magistrate has to satisfy himself that he has been supplied the necessary do....
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.... 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 evidence is recorded under Section 244(1) CrPC, which seems to be the established law, particularly in view of the decision in Cricket Assn. of Be....
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....ons 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 instead of adverting to and confining its attention to the documents referred to in Sections 239 and 240 CrPC the High Court has dealt with the rival contentions of t....
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....i), (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 explained the Court will be fully justified in framing a charge and proceeding with the trial. (3) The test to determine a prima facie case would naturally depend upon the facts of each case a....
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....n 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 accused has no right to produce any material and call upon the court to examine the same. No provision in the Code grants any right to the accused to file any material or document at the stage of framing of charge. The trial cour....
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....n 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 prosecution, and from unnecessarily being put through the rigours of an eventual trial.' [Priyanka Mishra v State of Uttar Pradesh, 2023 INSC 729 | 2023 SCC OnLine SC 978] The protection against vexatious and unwanted prosecution and from being unnecessarily drag....
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....n 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.- Whoever commits house-trespass shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both. [4] 454. Lurking house-trespass or house-breaking in order to commit offence punishable with imprisonment.- Whoever commits lurking hou....
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....ection 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, either in person or by pleader and showing cause against the order; and if the Magistrate or the State Government, as the case may be, re - jects the application wholly or in part, he or it shall record in writing the reasons for so doing. [7] 482. Saving of inherent powers of High Court.- Nothing in this Code shall be deemed to limit or affect t....