Court No. - 82

Case :- CRIMINAL REVISION No. - 1871 of 2021

Revisionist :- Dr.Deepak Saha

Opposite Party :- State of U.P. and Another

Counsel for Revisionist :- M J Akhtar,Sr. Advocate(Shri V.M.

Zaidi)

Counsel for Opposite Party :- G.A.

Hon'ble Ajai Kumar Srivastava-I,J.

The instant criminal revision has been filed by the revisionist

for setting aside the impugned judgment and order dated

25.01.2021 passed by the learned Additional Chief Judicial

Magistrate, Court No.3, Varanasi.

The brief facts are that the first information report No.0555 of

2016 dated 26.10.2016, under Section 66e of the Information

Technology (Amendment) Act, 2008 (hereinafter referred to as

the "Act") was lodged against the revisionist on the basis of

written complaint given by the opposite party No.2. After

conclusion of investigation, charge sheet dated 30.03.2017,

under Section 66e of the Act has also been filed against the

revisionist. The revisionist, thereafter, moved an application

dated 20.12.2018, under Section 239 Cr.P.C. claiming discharge

which came to be rejected vide impugned order dated

25.01.2021.

Learned Senior Advocate for the revisionist has submitted that

from the perusal of first information report and even from

perusal of evidence collected during the investigation, offence

under Section 66e of the Act is not made out against the

revisionist.

Learned Senior Advocate for the revisionist has also submitted

that the impugned order rejecting the application dated

20.12.2018, under Section 239 Cr.P.C. claiming discharge, has

caused miscarriage of justice insofar as no offence, whatsoever,

is made out against the revisionist, therefore, no charge can be

framed against the revisionist.

Learned Senior Advocate for the revisionist has further

submitted that the impugned order is, thus, patently illegal and

an instance of non-application of judicial mind, which deserves

to be quashed.

His further submission is that the right of accused to claim

discharge is a valuable right, therefore, the learned trial court

while considering discharge application, cannot act as a post

office; rather the learned trial court is obliged to sift through

evidence in order to find out whether there is sufficient ground

to try the suspect. Reliance in this regard has been placed upon

a judgment rendered by the Hon'ble Supreme Court in Sanjay

Kumar Rai vs. State of U.P. and another reported in 2021

SCC OnLine SC 367.

Per contra, learned A.G.A. for the State and opposite party No.2

appearing in person have vehemently opposed the aforesaid

submissions made by learned counsel for the revisionist and

they have submitted that for framing charge in such matter, the

legal requirement is that charge can be framed even on the basis

of suspicion. There is nothing on record to show which may

suggest that the charge is groundless. The application of

discharge under Section 239 Cr.P.C. has rightly been rejected by

learned trial court. Therefore, no interference is warranted with

the same.

Heard Sri V.M. Zaidi, learned Senior Advocate for the

revisionist, learned A.G.A. for the State, Sri Jaydeep

Chakrawati, opposite party No.2 appearing in person.

Provision of Section 239 Cr.P.C. being relevant, is quoted

herein below:-

"239. When accused shall be discharged.—If, upon considering the

police report and the documents sent with it under Section 173 and

making such examination, if any, of the accused as the Magistrate thinks

necessary and after giving the prosecution and the accused an opportunity

of being heard, the Magistrate considers the charge against the accused to

be groundless, he shall discharge the accused, and record his reasons for

so doing."

Section 239 Cr.P.C., thus, requires a consideration of police

report and the documents sent with it under Section 173 Cr.P.C.,

examination of accused, if any, and after giving an opportunity

to the prosecution and the accused of being