Suryabhan v. Jitendra), under Sections
Case Details
Neutral Citation No. - 2025:AHC:87592 Court No. - 71 Case :- APPLICATION U/S 528 BNSS No. - 17390 of 2025 Applicant :- Jitendra Kumar Opposite Party :- State of U.P. and Another Counsel for Applicant :- Jitendra Kumar Srivastava Counsel for Opposite Party :- G.A. Hon'ble Raj Beer Singh,J.
Legal Reasoning
1. Heard learned counsel for the applicant and learned A.G.A. for the State. 2. This application under Section 528 Bharatiya Nagarik Suraksha Sanhita (hereinafter referred to as BNSS) has been preferred against order dated 25.04.2025, passed by A.C.J.M.-IInd, Basti in Criminal Misc. Case No.1571 of 2023 (New Case No.9087 of 2025) (Suryabhan Vs. Jitendra), under Sections 323, 504, 506 I.P.C., Police Station- Purani Basti, District- Basti, whereby discharge application filed by applicant has been rejected. 3. It has been submitted by learned counsel for the applicant that impugned order is against facts and law. Both the parties are brothers and there was property related dispute between the parties and civil suit is pending. In his statement recorded under Section 200 Cr.P.C., the complainant has not mentioned name of any witness and summoning order was passed without calling a report from police. The provisions of Section 197 Cr.P.C. have not been considered in correct perspective. The witnesses examined under Section 202 Cr.P.C. are interested witness. Referring to statement of complainant and of witnesses, it was submitted that no prima-facie case is made out and that learned trial Court has committed error by rejecting discharge application of applicant
Decision
and thus, the impugned order is liable to be quashed. 4. Learned A.G.A. has opposed the application and submitted that there is no illegality or perversity in the impugned order. 5. I have considered the rival submissions and perused the record. 6. The provisions of Section 245(2) Cr.P.C. provide that nothing shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless. Thus, these provisions deal with cases where complaint against accused is found to be groundless. In case of Ajoy Kumar Ghose Vs. State of Jharkhand (Criminal Appeal No.485 of 2009), decided on 18.03.2009, Hon'ble Apex Court held as under:- "15. Essentially, the applicable Sections are Section 244 and 245 Cr.P.C., since this is a warrant trial instituted otherwise than on police report. There had to be an opportunity for the prosecution to lead evidence under Section 244(1) Cr.P.C. or to summon its witnesses under Section 244(2) Cr.P.C. This did not happen and instead, the accused proceeded to file an application under Section 245(2) Cr.P.C., on the ground that the charge was groundless. 16. Now, there is a clear difference in Sections 245(1) and 245(2) of the Cr.P.C. Under Section 245(1), the Magistrate has the advantage of the evidence led by the prosecution before him under Section 244 and he has to consider whether if the evidence remains 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) Cr.P.C. 17. The situation under Section 245(2) Cr.P.C. is, however, different. There, under sub-Section (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) Cr.P.C., 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 Cr.P.C. The words appearing in Section 245(2) Cr.P.C."at any previous stage of the case", clearly bring out this position. It will be better to see what is that "previous stage". 18. The previous stage would obviously be before the evidence of the prosecution under Section 244(1) Cr.P.C. is completed or any stage prior to that. Such stages would be under Section 200 Cr.P.C. to Section 204 Cr.P.C. Under Section 200, after taking cognizance, the Magistrate examines the complainant or such other witnesses, who are present. Such examination of the complainant and his witnesses is not necessary, where the complaint has been made by a public servant in discharge of his official duties or where a Court has made the complaint or further, if the Magistrate makes over the case for inquiry or trial to another Magistrate under Section 192 Cr.P.C. Under Section 201 Cr.P.C., if the Magistrate is not competent to take the cognizance of the case, he would return the complaint for presentation to the proper Court or direct the complainant to a proper Court. Section 202 Cr.P.C. deals with the postponement of issue of process. Under sub-Section (1), he may direct the investigation to be made by the Police officer or by such other person, as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding. Under Section 202(1)(a) Cr.P.C., the Magistrate cannot given such a direction for such an investigation, where he finds that offence complained of is triable exclusively by the Court of sessions. Under Section 202(1)(b) Cr.P.C., no such direction can be given, where the complaint has been made by the Court. Under Section 203 Cr.P.C., the Magistrate, after recording the statements on oath of the complainant and of the witnesses or the result of the inquiry or investigation ordered under Section 202 Cr.P.C., can dismiss the complaint if he finds that there is no sufficient ground for proceeding. On the other hand, if he comes to the conclusion that there is sufficient ground for proceeding, he can issue the process under Section 204 Cr.P.C. He can issue summons for the attendance of the accused and in a warrant-case, he may issue a warrant, or if he thinks fit, a summons, for securing the attendance of the accused. Sub-Sections (2), (3), (4) and (5) of Section 204 Cr.P.C. are not relevant for our purpose. It is in fact here, that the previous stage referred to under Section 245 Cr.P.C. normally comes to an end, because the next stage is only the appearance of the accused before the Magistrate in a warrant- case under Section 244 Cr.P.C. Under Section 244, on the appearance of the accused, the Magistrate proceeds to hear the prosecution and take all such evidence, as may be produced in support of the prosecution. He may, at that stage, even issue summons to any of the witnesses on the application made by the prosecution. Thereafter comes the stage of Section 245(1) Cr.P.C., where the Magistrate takes up the task of considering on all the evidence taken under Section 244(1) Cr.P.C., and if he comes to the conclusion that no case against the accused has been made out, which, if unrebutted, would warrant the conviction of the accused, the Magistrate proceeds to discharge him. The situation under Section 245(2) Cr.P.C., however, is different, as has already been pointed out earlier. The Magistrate thereunder, has the power to discharge the accused at any previous stage of the case. We have already shown earlier that that previous stage could be from Sections 200 to 204 Cr.P.C. and till the completion of the evidence of prosecution under Section 244 Cr.P.C. Thus, the Magistrate can discharge the accused even when the accused appears, in pursuance of the summons or a warrant and even before the evidence is led under Section 244 Cr.P.C., makes an application for discharge." 7. Thus, it appears that the scope of discharge under Section 245(2) Cr.P.C. is extremely limited and under this provision accused may be discharged only if the charge brought by complainant against accused is found to be groundless. 8. In the instant matter, perusal of record shows that both the parties are brothers and that the opposite party no.2 / complainant has made allegation in the complaint that applicant is working in police and he always comes at his home in police uniform. It was alleged that on 08.07.2023 at about 07:00 PM applicant has abused the complainant and threatened him to vacate the residential premises by saying that he is in police and he would kill him with gun. It was further alleged that applicant ran towards complainant to assault him with shoe. The version of complainant is supported by the witnesses examined under Section 202 Cr.P.C. Learned Magistrate has considered entire facts of the matter and also held that provisions of Section 197 Cr.P.C. are not attracted. It is not the case of applicant that at the time of alleged incident he was discharging any official duty or function or he was on official duty. No material illegality or perversity could be pointed out in the impugned order. There is nothing to show that there has been any abuse of the process of court or miscarriage of justice, so as to require any interference by this Court by invoking extraordinary powers under Section 528 BNSS. The application under Section 528 BNSS lacks merits and thus, liable to be dismissed. 9. Accordingly, the application u/s 528 BNSS is dismissed. Order Date :- 23.5.2025 'SP'/- Digitally signed by :- SANDEEP PAL High Court of Judicature at Allahabad