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IN THE HIGH COURT OF ALLAHABAD
Yogendra Kumar Srivastava, J.
Kamlendra Bahadur Mishra and Others – Applicants
Versus
State of U.P. and Another – Opposite Parties
Application U/s 482 No. 6701 of 2021
Decided On : 08-07-2021
Criminal Procedure Code, 1973 - Section 482 – Indian Penal Code, 1860 - Sections 323, 342, 504, 506 - Framing of charges - Charge against accused - Only ground which has been sought to be canvassed to challenge order and also proceedings is that Special Judge before proceeding to frame charges against applicants did not provide opportunity to move discharge application and accordingly applicants have been denied their valuable right to claim discharge granted to an accused Section Code of Criminal Procedure – Held, Counsel for applicants has not disputed fact that applicants had earlier approached this Court in proceedings Section also by filing an earlier writ petition seeking quashing FIR and that relevant documents were available with accused applicants during earlier proceedings and said documents have also been made part of record having been appended along with affidavit in present application - It is therefore not open to applicants to raise plea that relevant documents were not available with them during course of pending proceedings - This together with fact that applicants had duly appeared before court below had due notice fact that next fixed for framing of charge sit was open to applicants to have filed an application for discharge if they so desired - Order was passed in presence of applicants and their counsel were duly heard on question of framing of charge - order does not in any manner indicate that any plea for discharge was raised on behalf of applicants - It was after hearing counsel for accused applicants that charge was framed in their presence and same was read and explained to accused applicants whereupon they claimed to be tried - Judgment sought to be relied upon on behalf of applicants would not be any help inasmuch as applicants did not seek discharge despite having opportunity for same – Order Criminal Procedure Code, 1973 - Section 482 – Indian Penal Code, 1860 - Sections 323, 342, 504, 506 - Framing of charges - Charge against accused - Only ground which has been sought to be canvassed to challenge order and also proceedings is that Special Judge before proceeding to frame charges against applicants did not provide opportunity to move discharge application and accordingly applicants have been denied their valuable right to claim discharge granted to an accused Section Code of Criminal Procedure – Held, Counsel for applicants has not disputed fact that applicants had earlier approached this Court in proceedings Section also by filing an earlier writ petition seeking quashing FIR and that relevant documents were available with accused applicants during earlier proceedings and said documents have also been made part of record having been appended along with affidavit in present application - It is therefore not open to applicants to raise plea that relevant documents were not available with them during course of pending proceedings - This together with fact that applicants had duly appeared before court below had due notice fact that next fixed for framing of charge sit was open to applicants to have filed an application for discharge if they so desired - Order was passed in presence of applicants and their counsel were duly heard on question of framing of charge - order does not in any manner indicate that any plea for discharge was raised on behalf of applicants - It was after hearing counsel for accused applicants that charge was framed in their presence and same was read and explained to accused applicants whereupon they claimed to be tried - Judgment sought to be relied upon on behalf of applicants would not be any help inasmuch as applicants did not seek discharge despite having opportunity for same – Order accordingly
JUDGMENT :
1. Heard Sri Ronak Chaturvedi, learned counsel for the applicants and Sri Pankaj Saxena, learned Additional Government Advocate-I appearing for the State-opposite party.
2. The present application under Section 482 Cr.P.C. has been filed seeking to quash the proceedings of Special Session Trial No. 75 of 2019 (State Vs. Kamlendra Bahadur Mishra and others) arising out of Case Crime No. 62 of 2019, under Sections 323, 342, 504, 506 I.P.C. read with 3 (2) (va) of S.C./S.T. Act, Police Station Bijpur, District Sonbhadra pending in the court of Special Judge S.C./S.T. Act, Sonbhadra and also the order dated 20.02.2020 framing charges.
3. The only ground which has been sought to be canvassed to challenge the order dated 20.02.2020 and also the proceedings is that the learned Special Judge before proceeding to frame charges against the applicants did not provide opportunity to move a discharge application and accordingly the applicants have been denied their valuable right to claim discharge granted to an accused under Section 227 of the Code of Criminal Procedure.
4. Counsel for the applicants has contended that the court below has proceeded to frame charges without permitting the applicants to move a discharge application and the applicants having thus been denied their valuable right to plead discharge have been seriously prejudiced.
5. Reliance has been placed upon the judgments in Sanjay Kumar Rai Vs. State of Uttar Pradesh and another, 2021 SCC Online SC 367 and Satish Chandra Ratan Lal Shah Vs. State of Gujarat and another, (2019) 9 SCC 148 for the proposition that discharge is a valuable right provided to an accused.
6. Per contra, learned A.G.A. appearing for the State opposite party has drawn attention of the Court to the fact that prior to passing of the order dated 20.02.2020, framing charges, the applicants were put to notice by the previous order dated 03.01.2020 in terms of which the subsequent date i.e. 20.02.2020 was fixed for framing of charges. It has also been pointed out that the applicants had approached this Court in proceedings under Section 482 Cr.P.C. (Application U/S 482 No. 42060 of 2019) and also filed a writ petition (Criminal Misc. Writ Petition No. 17716 of 2019) seeking quashing of the first information report dated 12.06.2019 lodged against them. It is submitted that the necessary documents were therefore available with the accused applicants during the earlier proceedings and also the present proceedings which is evident from the documents which have been appended along with the affidavit in support of the present application. It is contended that in addition the applicants were granted sufficient time by the court below by fixing 20.2.2020 as the date for framing of charges and in the event the applicants desired, they could have moved an appropriate discharge application in the interregnum. It is pointed out that subsequent to framing of charges on 20.02.2020, several dates have been fixed and the trial is at the stage of evidence and as such the claim sought to be raised by the accused applicants with regard to discharge cannot be entertained at this stage.
7. In order to appreciate rival contentions, the relevant statutory provisions may be adverted to.
8. The procedure for trial before a court of session is provided under Chapter XVIII of the Cr.P.C. and Sections 227 and 228 which relate to discharge and framing of charges are extracted below.
228. Framing of charge.—(1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which—
(a) is not exclusi
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