Shubham and Others v. State of U.P. and Another) on several other grounds, inter alia, specifically on

Petitioner :- Shubham And 2 Others Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Shubham Srivastava,Sunil Kumar Srivastava Counsel for Respondent :- G.A.,Nikhil Srivastava Hon'ble Saurabh Srivastava,J.

1. Heard Sri Sunil Kumar Srivastava, learned counsel for the petitioners, Sri Nikhil Srivastava, learned counsel for the respondent no. 3 and learned AGA for the State.

2. The instant petition has been preferred for challenging order dated 14.02.2023 passed by learned Court of Judicial Magistrate- Ist, Saharanpur over an application preferred at the behest of the petitioners under section 245(2) Cr.P.C. through which the grounds taken up for seeking discharge of the petitioners have been rejected. Being aggrieved with the order dated 14.02.2023, the petitioners preferred Criminal Revision No. 117 of 2023 (Shubham and Others vs. State of U.P. and Another) on several other grounds, inter alia, specifically on the ground that at the time of incident, petitioner nos. 1 and 3 were rendering their services before the Government Department and the relevant documents have been shown before the learned court concerned but the same has been ignored while passing order dated 14.02.2023, but no credence has been extended by learned revisional court and admittedly criminal revision preferred at the behest of the petitioners has also been dismissed vide order dated 08.11.2024 passed by learned Special Judge, POCSO Act/Additional District and Session Judge, Room No. 15, Saharanpur which impugned the present petition.

3. Learned counsel for the petitioners submitted that the simpliciter verification was ought to be made or conducted by learned concerned court if the relevant documents have been preferred which were complete denial of the presence of petitioner nos. 1 and 3 over the place of incident but the same has been negated with the finding that no mini trial can be conducted by the learned concerned court and the documents whatsoever has been produced by the petitioners will be examined at the time of leading evidences and cross-examination.

4. Learned counsel for the petitioners also indicated apparent error of law which is available on face of records available in the order dated 08.11.2024, wherein learned revisional court returned with the finding that the evidences whatsoever has been led either by the prosecution or by the defence can be examined during trial only.

5. Learned counsel for the petitioners submitted that being the government servant, the petitioner nos. 1 and 3 cannot be dragged into unwarranted criminal litigation and the relevant documents which have been produced before the learned court concerned can only be verified by the same department if required, but learned concerned court held that being the photocopy of the documents, the same cannot be relied upon and the relevance of the documents can only be determined during trial at the time of leading evidences and the plea of 'alibi' cannot be taken at this stage. Per contra, Sri Nikhil Srivastava, learned counsel for 6. respondent no. 3 and learned AGA for the State vehemently opposed the prayer as made in the instant petition and rebutted the stand taken up by learned counsel for the petitioners by way of justifying the orders which impugned the present petition, in advance, learned counsel for respondent no. 3 submitted that the reasoning and finding returned with the learned revisional court by way of upholding the order dated 14.02.2023 passed by learned Court of Judicial Magistrate-Ist, Saharanpur is perfectly correct in the eye of law, the plea of 'alibi' cannot be taken at the stage of preferring discharge application and the same has been negated which was having no infirmity available and as such the writ petition preferred at the behest of the petitioners is not at all maintainable in all corners of the findings recorded by both the learned courts.

7. After having the rival submissions extended by learned counsel for the parties, one thing is crystal clear that propriety of law demands that no innocent person can be put to trial for any offences if he has been implicated and the same has been found at the preliminary stage itself and as such the legislation has given the right in favour of the person who has been falsely implicated and summoned by the learned court of law for preferring an application under section 245(2) Cr.P.C. for proving his discharge to be entertained by learned court of law in case of proceedings initiated under sections 200 and 202 Cr.P.C.

8. The plea taken up by learned counsel for respondent no. 3 that the plea of 'alibi' which has been returned with the finding recorded by learned court concerned is not for complete culmination of the trial but only to the extent that verification of the document to be done by the learned concerned court which prima facie shows non-involvement of the applicants in the incident as narrated in the information itself, whereupon although thorough investigation has been culminated into final chargesheet but if the 'alibi' is in the shape of certificate issued by some Government Department, the same must be given credence by the learned concerned court.

9. In the instant matter if the photocopy has been submitted by learned counsel for the petitioner nos. 1 and 3, the simple way out to adjudicate the application preferred for discharging the petitioner nos. 1 and 3 was to ascertain from concerned department which might be in the interest of justice, but the same has not been done by the learned concerned court.

10. The procedure of law is not meant for dazzling the provisions available but is to simplify the situation and position if required in favour of any of the parties.

11. In view of aforementioned facts and circumstances, the order dated 14.02.2023 passed by learned Court of Judicial Magistrate- Ist, Saharanpur as well as the order dated 08.11.2024 passed by learned Special Judge, POCSO Act/Additional District and Session Judge, Room No. 15, Saharanpur are hereby set-aside. Matter is remanded back to the learned concerned court for deciding the application preferred at the behest of the petitioner nos. 1 and 3, specifically preferred under section 245(2) Cr.P.C. a fresh by way of conducting proper verification of the records which has been put-forward in shape of photocopy which might be in the nature for non-involvement of petitioner nos. 1 and 3 in the alleged incident, since it has been submitted by learned counsel for the petitioners that they were rendering their services at Balrampur and Bahraich respectively whereas the incident occurred at District Saharanpur which is far away from the place where the certificates denotes.

12. The entire exercise in respect of deciding the application after proper verification of the documents shall be completed within stipulated period of 4 months from the date of production of certified copy of this order.

13. During pendency of the application, the petitioner nos. 1 and 3 may not be compelled in any manner whatsoever for putting their appearance before the learned court concerned.

14. However, it is made clear that the petitioner no. 2 is hereby directed to surrender before the learned court concerned within a period of one month from today in pursuance to summoning order issued by learned concerned court.

15. The writ petition stands partly allowed accordingly. Order Date :- 19.2.2025 #Vik/- VIKRAM GUPTA High Court of Judicature at Allahabad

Petitioner :- Shubham And 2 Others Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Shubham Srivastava,Sunil Kumar Srivastava Counsel for Respondent :- G.A.,Nikhil Srivastava Hon'ble Saurabh Srivastava,J.

1. Heard Sri Sunil Kumar Srivastava, learned counsel for the petitioners, Sri Nikhil Srivastava, learned counsel for the respondent no. 3 and learned AGA for the State.

2. The instant petition has been preferred for challenging order dated 14.02.2023 passed by learned Court of Judicial Magistrate- Ist, Saharanpur over an application preferred at the behest of the petitioners under section 245(2) Cr.P.C. through which the grounds taken up for seeking discharge of the petitioners have been rejected. Being aggrieved with the order dated 14.02.2023, the petitioners preferred Criminal Revision No. 117 of 2023 (Shubham and Others vs. State of U.P. and Another) on several other grounds, inter alia, specifically on the ground that at the time of incident, petitioner nos. 1 and 3 were rendering their services before the Government Department and the relevant documents have been shown before the learned court concerned but the same has been ignored while passing order dated 14.02.2023, but no credence has been extended by learned revisional court and admittedly criminal revision preferred at the behest of the petitioners has also been dismissed vide order dated 08.11.2024 passed by learned Special Judge, POCSO Act/Additional District and Session Judge, Room No. 15, Saharanpur which impugned the present petition.

3. Learned counsel for the petitioners submitted that the simpliciter verification was ought to be made or conducted by learned concerned court if the relevant documents have been preferred which were complete denial of the presence of petitioner nos. 1 and 3 over the place of incident but the same has been negated with the finding that no mini trial can be conducted by the learned concerned court and the documents whatsoever has been produced by the petitioners will be examined at the time of leading evidences and cross-examination.

4. Learned counsel for the petitioners also indicated apparent error of law which is available on face of records available in the order dated 08.11.2024, wherein learned revisional court returned with the finding that the evidences whatsoever has been led either by the prosecution or by the defence can be examined during trial only.

5. Learned counsel for the petitioners submitted that being the government servant, the petitioner nos. 1 and 3 cannot be dragged into unwarranted criminal litigation and the relevant documents which have been produced before the learned court concerned can only be verified by the same department if required, but learned concerned court held that being the photocopy of the documents, the same cannot be relied upon and the relevance of the documents can only be determined during trial at the time of leading evidences and the plea of 'alibi' cannot be taken at this stage. Per contra, Sri Nikhil Srivastava, learned counsel for 6. respondent no. 3 and learned AGA for the State vehemently opposed the prayer as made in the instant petition and rebutted the stand taken up by learned counsel for the petitioners by way of justifying the orders which impugned the present petition, in advance, learned counsel for respondent no. 3 submitted that the reasoning and finding returned with the learned revisional court by way of upholding the order dated 14.02.2023 passed by learned Court of Judicial Magistrate-Ist, Saharanpur is perfectly correct in the eye of law, the plea of 'alibi' cannot be taken at the stage of preferring discharge application and the same has been negated which was having no infirmity available and as such the writ petition preferred at the behest of the petitioners is not at all maintainable in all corners of the findings recorded by both the learned courts.

7. After having the rival submissions extended by learned counsel for the parties, one thing is crystal clear that propriety of law demands that no innocent person can be put to trial for any offences if he has been implicated and the same has been found at the preliminary stage itself and as such the legislation has given the right in favour of the person who has been falsely implicated and summoned by the learned court of law for preferring an application under section 245(2) Cr.P.C. for proving his discharge to be entertained by learned court of law in case of proceedings initiated under sections 200 and 202 Cr.P.C.

8. The plea taken up by learned counsel for respondent no. 3 that the plea of 'alibi' which has been returned with the finding recorded by learned court concerned is not for complete culmination of the trial but only to the extent that verification of the document to be done by the learned concerned court which prima facie shows non-involvement of the applicants in the incident as narrated in the information itself, whereupon although thorough investigation has been culminated into final chargesheet but if the 'alibi' is in the shape of certificate issued by some Government Department, the same must be given credence by the learned concerned court.

9. In the instant matter if the photocopy has been submitted by learned counsel for the petitioner nos. 1 and 3, the simple way out to adjudicate the application preferred for discharging the petitioner nos. 1 and 3 was to ascertain from concerned department which might be in the interest of justice, but the same has not been done by the learned concerned court.

10. The procedure of law is not meant for dazzling the provisions available but is to simplify the situation and position if required in favour of any of the parties.

11. In view of aforementioned facts and circumstances, the order dated 14.02.2023 passed by learned Court of Judicial Magistrate- Ist, Saharanpur as well as the order dated 08.11.2024 passed by learned Special Judge, POCSO Act/Additional District and Session Judge, Room No. 15, Saharanpur are hereby set-aside. Matter is remanded back to the learned concerned court for deciding the application preferred at the behest of the petitioner nos. 1 and 3, specifically preferred under section 245(2) Cr.P.C. a fresh by way of conducting proper verification of the records which has been put-forward in shape of photocopy which might be in the nature for non-involvement of petitioner nos. 1 and 3 in the alleged incident, since it has been submitted by learned counsel for the petitioners that they were rendering their services at Balrampur and Bahraich respectively whereas the incident occurred at District Saharanpur which is far away from the place where the certificates denotes.

12. The entire exercise in respect of deciding the application after proper verification of the documents shall be completed within stipulated period of 4 months from the date of production of certified copy of this order.

13. During pendency of the application, the petitioner nos. 1 and 3 may not be compelled in any manner whatsoever for putting their appearance before the learned court concerned.

14. However, it is made clear that the petitioner no. 2 is hereby directed to surrender before the learned court concerned within a period of one month from today in pursuance to summoning order issued by learned concerned court.

15. The writ petition stands partly allowed accordingly. Order Date :- 19.2.2025 #Vik/- VIKRAM GUPTA High Court of Judicature at Allahabad