Cr.P.C. cannot be considered. The Apex Court in the case of State of Gujarat v. Dilipsingh Kishorsinh Rao

1. Heard Sri Mahadeo Singh Chandel, learned counsel for the applicant, Sri Padmakar Rai, learned A.G.A for the State and perused the record.

2. The instant application has been filed for quashing the impugned order dated 12.12.2024 passed by Additional Chief Judicial Magistrate, Court No.-I, Banda as well as stay the further proceeding of Case No.29 of 2024, arising out of Case Crime No.295 of 2017, under Sections 498A, 323, 504, 506 IPC and 3/4 D.P. Act, Police Station- Bisanda, District Banda.

3. Contention of learned counsel for the applicant is that opposite party no.2 lodged the FIR against the applicant for harassment and demand of dowry on 14.12.2017 in Case Crime No. 295 of 2017, under Sections 498A, 323, 504, 506 IPC and 3/4 D.P. Act. After investigation, the police submitted charge sheet on 08.01.2024 and before the trial court, the applicant filed discharge application under Section 239 Cr.P.C. raising the ground that the applicant never married to opposite party no.2 and the order dated 13.01.2023 passed under Section 9 of Hindu Marriage Act in Case No. 79 of 2017, clearly shows that the opposite party no.2 could not prove her marriage. Therefore, the applicant should be discharged. However, the court below vide order dated 12.12.2024 rejected the aforesaid discharge application, on the ground that at the time of framing of charge only material collected by the police and available on record, can be considered, and subsequent evidence cannot be considered at the time of framing of charge. Counsel for the applicant further submitted that the impugned order dated 12.12.2024 passed by the court below is absolutely erroneous as court can take into account subsequent material even if that material was not collected by the police during investigation.

4. Per contra, learned AGA for the State opposed the prayer on the ground that at the time of framing of charge only material available on record can be considered.

5. After hearing the submission of learned counsel for the parties and perusal of record, it appears that the opposite party no.2 as well as other witnesses stated during investigation that the applicant had married to opposite party no.2 in temple. Subsequently, a notary affidavit was also executed on 16.07.2012 wherein a photograph of applicant and opposite party no.2 was pasted. Question arises, when an application for discharge of accused under Section 239 Cr.P.C. is filed, which material should be taken into account by the court below. For ready reference Section 239 Cr.P.C. is being quoted as under:- "Section 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."

6. From perusal of Section 239 Cr.P.C., it is clear that the accused can be discharged after considering the police report and documents sent with it under Section 173 Cr.P.C. and making such examination, if any, of the accused. The above fact shows that material which was filed by the police at the time of filing charge sheet under Section 173 Cr.P.C. cannot be considered. The Apex Court in the case of State of Gujarat vs. Dilipsingh Kishorsinh Rao; (2023) 17 SCC 688 has considered this issue and observed in para 8, 9, 10 and 12, which is as under; "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 court has to apply its judicial mind to the facts of the case as may be necessary to determine whether a case has been made out by the prosecution for trial on the basis of charge-sheet material only.

9. If the accused is able to demonstrate from the charge-sheet material at the stage of framing the charge which might drastically affect the very sustainability of the case, it is unfair to suggest that such material should not be considered or ignored by the court at that stage. The main intention of granting a chance to the accused of making submissions as envisaged under Section 227CrPC is to assist the court to determine whether it is required to proceed to conduct the trial. Nothing in the Code limits the ambit of such hearing, to oral hearing and oral arguments only and therefore, the trial court can consider the material produced by the accused before the IO.

10. It is settled principle of law that at the stage of considering an application for discharge the court must proceed on an assumption that the material which has been brought on record by the prosecution is true and evaluate said material in order to determine whether the facts emerging from the material taken on its face value, disclose the existence of the ingredients necessary of the offence alleged.

12. The defence of the accused is not to be looked into at the stage when the accused seeks to be discharged. The expression "the record of the case" used in Section 227 CrPC is to be understood as the documents and articles, if any, produced by the prosecution. The Code does not give any right to the accused to produce any document at the stage of framing of the charge. The submission of the accused is to be confined to the material produced by the investigating agency."

7. In the present case, the charge sheet was filed in the year 2018 and basis of filing of discharge application by the applicant is judgement dated 13.01.2023 of family court under Section 9 of Hindu Marriage Act which is not permissible. Charge sheet is, admittedly, not the part of material submitted by police under Section 173 Cr.P.C., therefore, cannot be considered at the time of consideration of the discharge application under Section 239 Cr.P.C.

8. In view of above, this Court does not find any illegality and infirmity in the impugned order passed by the court below. Therefore, the present application is dismissed. Order Date :- 7.4.2025 A.Kr. AJAY KUMAR High Court of Judicature at Allahabad

1. Heard Sri Mahadeo Singh Chandel, learned counsel for the applicant, Sri Padmakar Rai, learned A.G.A for the State and perused the record.

2. The instant application has been filed for quashing the impugned order dated 12.12.2024 passed by Additional Chief Judicial Magistrate, Court No.-I, Banda as well as stay the further proceeding of Case No.29 of 2024, arising out of Case Crime No.295 of 2017, under Sections 498A, 323, 504, 506 IPC and 3/4 D.P. Act, Police Station- Bisanda, District Banda.

3. Contention of learned counsel for the applicant is that opposite party no.2 lodged the FIR against the applicant for harassment and demand of dowry on 14.12.2017 in Case Crime No. 295 of 2017, under Sections 498A, 323, 504, 506 IPC and 3/4 D.P. Act. After investigation, the police submitted charge sheet on 08.01.2024 and before the trial court, the applicant filed discharge application under Section 239 Cr.P.C. raising the ground that the applicant never married to opposite party no.2 and the order dated 13.01.2023 passed under Section 9 of Hindu Marriage Act in Case No. 79 of 2017, clearly shows that the opposite party no.2 could not prove her marriage. Therefore, the applicant should be discharged. However, the court below vide order dated 12.12.2024 rejected the aforesaid discharge application, on the ground that at the time of framing of charge only material collected by the police and available on record, can be considered, and subsequent evidence cannot be considered at the time of framing of charge. Counsel for the applicant further submitted that the impugned order dated 12.12.2024 passed by the court below is absolutely erroneous as court can take into account subsequent material even if that material was not collected by the police during investigation.

4. Per contra, learned AGA for the State opposed the prayer on the ground that at the time of framing of charge only material available on record can be considered.

5. After hearing the submission of learned counsel for the parties and perusal of record, it appears that the opposite party no.2 as well as other witnesses stated during investigation that the applicant had married to opposite party no.2 in temple. Subsequently, a notary affidavit was also executed on 16.07.2012 wherein a photograph of applicant and opposite party no.2 was pasted. Question arises, when an application for discharge of accused under Section 239 Cr.P.C. is filed, which material should be taken into account by the court below. For ready reference Section 239 Cr.P.C. is being quoted as under:- "Section 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."

6. From perusal of Section 239 Cr.P.C., it is clear that the accused can be discharged after considering the police report and documents sent with it under Section 173 Cr.P.C. and making such examination, if any, of the accused. The above fact shows that material which was filed by the police at the time of filing charge sheet under Section 173 Cr.P.C. cannot be considered. The Apex Court in the case of State of Gujarat vs. Dilipsingh Kishorsinh Rao; (2023) 17 SCC 688 has considered this issue and observed in para 8, 9, 10 and 12, which is as under; "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 court has to apply its judicial mind to the facts of the case as may be necessary to determine whether a case has been made out by the prosecution for trial on the basis of charge-sheet material only.

9. If the accused is able to demonstrate from the charge-sheet material at the stage of framing the charge which might drastically affect the very sustainability of the case, it is unfair to suggest that such material should not be considered or ignored by the court at that stage. The main intention of granting a chance to the accused of making submissions as envisaged under Section 227CrPC is to assist the court to determine whether it is required to proceed to conduct the trial. Nothing in the Code limits the ambit of such hearing, to oral hearing and oral arguments only and therefore, the trial court can consider the material produced by the accused before the IO.

10. It is settled principle of law that at the stage of considering an application for discharge the court must proceed on an assumption that the material which has been brought on record by the prosecution is true and evaluate said material in order to determine whether the facts emerging from the material taken on its face value, disclose the existence of the ingredients necessary of the offence alleged.

12. The defence of the accused is not to be looked into at the stage when the accused seeks to be discharged. The expression "the record of the case" used in Section 227 CrPC is to be understood as the documents and articles, if any, produced by the prosecution. The Code does not give any right to the accused to produce any document at the stage of framing of the charge. The submission of the accused is to be confined to the material produced by the investigating agency."

7. In the present case, the charge sheet was filed in the year 2018 and basis of filing of discharge application by the applicant is judgement dated 13.01.2023 of family court under Section 9 of Hindu Marriage Act which is not permissible. Charge sheet is, admittedly, not the part of material submitted by police under Section 173 Cr.P.C., therefore, cannot be considered at the time of consideration of the discharge application under Section 239 Cr.P.C.

8. In view of above, this Court does not find any illegality and infirmity in the impugned order passed by the court below. Therefore, the present application is dismissed. Order Date :- 7.4.2025 A.Kr. AJAY KUMAR High Court of Judicature at Allahabad