# Gyan Chand & Ors. Revisionists v. State of U.P. & Anr

- **Citation:** (2020) 1 ILRA 244
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-12-20
- **Case number:** Criminal Revision No. 4893 of 2019
- **Bench:** Ram Krishna Gautam
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/gyan-chand-ors-revisionists-v-state-of-u-p-anr-45034
- **Pages:** 4

## Headnote

Criminal Procedure Code, 1973 - Section
245 (2) - Discharge - Appearance of the
accused at the time of considering his
prayer for discharge - if stages u/s 200 to
202 Cr.P.C have ended & reached stage of
section
244
Cr.P.C
-
appearance
necessary.

Magistrate rejected discharge application u/s
245(2) Cr.P.C - on the ground that revisionistsaccused not surrendered and not taken bail -
Held - Admittedly, stage from 200 to 204
Cr.P.C. has been passed - It was the stage of
recording of statement under Section 244
Cr.P.C. - proceedings u/s 244 begins with the
appearance of the accused, therefore, in a case
where the stages provided in sections 200 to
202 of the Code have already come to an end
and the case reaches the stage of section 244 -
the discharge prayer, in such situation under
1 All. Gyan Chand & Ors. Vs. State of U.P. & Anr.
245
section 245 (2) of the Code cannot be
entertained without the appearance of the
accused - magistrate rightly rejected discharge
application. (Para 6 & 7)

Criminal Revision dismissed. (E-5)
List of cases cited: -

## Text

244 INDIAN LAW REPORTS ALLAHABAD SERIES
to proceed against others not arrayed as
accused in the circumstances set out by
this Section. It is a salutary power enabling
the discharge of a court's obligation to the
society to bring to book all those guilty of
a crime.

22. The facts of the present case are
very alarming and grevious in nature
inasmuch as a minor girl aged about 15
years has not only given detailed version
of ordeal faced by her in the statement
recorded u/s 164 Cr.P.C. but PW-3 victim
has narrated that for a month she was
confined in a room by the revisionists and
two
other
co-accused
and
was
continuously gang raped by them. The trial
court while considering the entire evidence
onceagain after being remanded by this
Court has recorded finding that the plea of
alibi
of
the
revisionists
cannot
be
examined inasmuch as the revisionist no. 1
was merely working in the office of Chief
Fire Brigade Officer, Bulandshahar and
the revisionist no. 2 was present in the
Ashram of his Guru and location of his
mobile was found continously at that place
and both plea cannot be examined by him
while exercising power u/s 319 Cr.P.C.
The plea of both the revisionists as noted
cannot be examined at this stage and
besides it, as the prosecutrix was kept
under illegal detention for a month and
was continously raped by the accused
including the revisionists the location of
their mobile and certificate of Chief Fire
Brigade Officer has no relevance at this
stage, which at best can be scanned and
examined when the revisionists lead
defence evidence and prove the aforesaid
documents in accordance with law.

23. In the light of aforesaid, the
present revision is bereft of merit. The
impugned order passed by trial judge is
perfectly justified and well within the
guidelines/ parameters laid down by
Constitution Bench decision of Hon'ble
Apex Court in the case of Hardeep Singh.

24. The revision is accordingly,
dismissed.
----------
(2020)1ILR 244

REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 20.12.2019

BEFORE
THE HON'BLE RAM KRISHNA GAUTAM, J.

Criminal Revision No. 4893 of 2019

Gyan Chand & Ors. ...Revisionists
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionists:
Sri Amresh Kumar Tiwari, Sri Dharmendra
Dhar Dubey

Counsel for the Opposite Parties:
A.G.A.

Criminal Procedure Code, 1973 - Section
245 (2) - Discharge - Appearance of the
accused at the time of considering his
prayer for discharge - if stages u/s 200 to
202 Cr.P.C have ended & reached stage of
section
244
Cr.P.C
-
appearance
necessary.

Magistrate rejected discharge application u/s
245(2) Cr.P.C - on the ground that revisionistsaccused not surrendered and not taken bail -
Held - Admittedly, stage from 200 to 204
Cr.P.C. has been passed - It was the stage of
recording of statement under Section 244
Cr.P.C. - proceedings u/s 244 begins with the
appearance of the accused, therefore, in a case
where the stages provided in sections 200 to
202 of the Code have already come to an end
and the case reaches the stage of section 244 -
the discharge prayer, in such situation under
1 All. Gyan Chand & Ors. Vs. State of U.P. & Anr.
245
section 245 (2) of the Code cannot be
entertained without the appearance of the
accused - magistrate rightly rejected discharge
application. (Para 6 & 7)

Criminal Revision dismissed. (E-5)
List of cases cited: -

1. Nanhe Lal & Ors Vs St. of UP & anr 2014 1
ACR 726

2. Sheoshankar & 2 ors Vs St. of UP & anr 2018
Law Suit (All) 759

3. Ajai (sic) Kumar Ghose Vs St. of Jhr & anr
2010 1 SCC (Cri) 1301

(Delivered by Hon'ble Ram Krishna
Gautam, J.)

1. This criminal revision under
Section 397/401 Cr.P.C. has been with a
prayer for quashing the order dated
03.10.2019, passed by learned Chief
Judicial Magistrate, Court No. 17, Deoria,
on application filed under Section 245(2)
Cr.P.C. as well as the proceeding of
Complaint Case No. 872 of 2019 (Old No.
225 of 2014), under Sections 323, 354,
380, 427, 504, 506 I.P.C., Awinash Versus
Gyan Chand and others, pending before
learned Chief Judicial Magistrate, Deoria.

2. Heard Sri Dharmendra Dhar
Dubey, Advocate, holding brief of Sri
Amresh Kumar Tiwari, learned counsel for
revisionists and learned A.G.A. for State.

3. Learned counsel for revisionists
argued that initially date and time of
occurrence was said to be different.
Subsequently, by tempering, the same was
changed from 23.04.2014 at 5 P.M. to
23.11.2014 at 3.10 P.M. and this was with
intention to keep pace with medico legal
report. This apparent tempering was
challenged in a proceeding under Section
340 Cr.P.C., but no cognizance was taken.
Hence, a proceeding under Section 482
Cr.P.C. was filed before this Court,
wherein a direction was made for time
bound disposal of above application
moved
under
Section
340
Cr.P.C.
Thereafter, Magistrate registered above
application as a complaint case and
decided to proceed further as complaint
case. It has not yet been decided and the
same is lingering for its disposal, whereas
revisionists have been summoned for
above offences under Sections 323, 354,
380, 427, 504, 506 I.P.C.. Though,
accusation was for offences punishable
under
S.C./S.T.
Act
also,
but
no
summoning for this offence was there.
Thereafter, complainant moved a revision
before Court of Sessions for this nonsummoning,
which
was
rejected.
Ultimately, with a malice, civil suit was
filed,
wherein
ad-interim
injunction
application 6C was rejected on merit.
Again another complaint by brother of
present complainant was filed with the
same sequence of occurrence and offences,
wherein proceeding was there. Hence, all
these facts were raised in an application
moved under Section 245(2) Cr.P.C., but
learned Magistrate has passed impugned
order, rejecting application on the ground
that revisionists have yet not surrendered
before above court and have not taken bail,
hence discharge application was not
maintainable. It was in utter defiance of
provision of Section 245(2) Cr.P.C.
because there was no mandate for
appearance of revisionists for disposal of
application, moved under Section 245(2)
Cr.P.C. The law propounded by this Court
in Nanhe Lal and others Vs. State of
U.P. and another; 2014 1 ACR 726
(Criminal Revision No. 3640 of 2013,
decided on 16th January, 2014) as well as
Sheoshankar and 2 others Vs. State of
246 INDIAN LAW REPORTS ALLAHABAD SERIES
U.P. and another; 2018 Law Suit (All)
759 has been pressed. Hence, this revision
with above prayer.

4. Learned A.G.A. has vehemently
opposed the revision.

5. A proceeding under Section 340
Cr.P.C. is pending, wherein application
was considered as a complaint case, but
trial could not be concluded. Present
accusation
and
inquiry
made
by
Magistrate, resulted passing of impugned
order, for offence punishable, as above.
This summoning order was challenged
before court of revision, wherein revision
was dismissed. Now, discharge application
under Section 245(2) Cr.P.C. was moved,
which was rejected by impugned order.
Admittedly, stage from 200 to 204 Cr.P.C.
has been passed. It was the stage of
recording of statement under Section 244
Cr.P.C., but the same has yet not been
recorded. Nothing more than complaint is
there on record and on the basis of prima
facie substance, summoning order was
passed. Now, as per Section 245(2)
Cr.P.C., Magistrate is empowered to make
discharge at any time before discharge
under Section 245(2) Cr.P.C., provided he
will have to give the reason of such
discharge i.e. law does not prohibit for any
discharge under Section 245(2) Cr.P.C.,
but it is till proceeding up to Section 204
Cr.P.C. Regarding proceeding at the stage
of 244 Cr.P.C., mandate of personal
appearance is there and on the basis it,
circular
letter
of
this
Court
in
administrative side has also been issued to
all the subordinate Courts as C.L. No.
2386/Admin, 'G-II' Dated: Allahabad
19.02.2013, wherein principle laid down in
Dr. Gulzar Vs. State of U.P. was reiterated
as "The essential feature of the Court
discussion is that the accused is bound to
furnish bond that he will appear before the
Court during the trial, unless otherwise
directed by the Court. He cannot file any
application in the proceedings unless he
binds himself to appear before the trial.
The application entrained by the trial
Court
without
seeking
bond
is
unwarranted...........Till the accused are
bound by the Court and have not
surrendered before the Court they have no
Locus to file any application before the
Court where the trial is going on." The
same principle has been propounded in
Sheoshankar and 2 others Vs. State of
U.P. and another (Supra).

6. Hon'ble apex court in Ajai Kumar
Ghose Vs. State of Jharkhand and
another; 2010 1 SCC (Cri) 1301 in para 9
has held as under:-

"9. Mr. Nandit Srivastva tried to
submit that the Apex Court, in the
aforesaid case of Ajai Kumar Ghose
(supra) has very clearly held that the
power under section 245 (2) of the Code
can
be
exercised
even
before
the
appearance of the accused, therefore,
learned Magistrate as well as the
revisional Court could not be said to be
justified in requiring the petitioner to
appear in person in Court at the time of
considering his prayer for discharge under
section 245 (2) of the Code. It is no doubt
true that the Apex Court has held in the
aforesaid case that the discharge prayer
under section 245 (2) can be entertained
even before appearance of the accused in
the Court but that proposition seems to
have been laid down in different context. It
appears that the Apex Court bifurcated the
expression "previous stage of the case" in
two categories. The first category is the
stage of the case under section 202 to 204
of the Code, and the other category is the
1 All. Suresh Singh Bhadoria & Ors. Vs. State of U.P. & Ors.
247
stage of evidence on appearance of the
accused under section 244 of the Code. In
the first category of the case, the Apex
Court opined that the discharge prayer
can be considered before appearance of
the accused but in the second category of
the case presence of the accused has been
held necessary because the proceedings
under section 244 begins with the
appearance of the accused, therefore, in a
case where the stages provided in sections
200 to 202 of the Code have already come
to an end and the case reaches the stage of
section 244 of the Code on appearance of
the accused, the discharge prayer, in such
situation under section 245 (2) of the Code
cannot
be
entertained
without
the
appearance
of
the
accused.
This
conclusion
finds
support
from
the
observations of the Apex Court made in
para 29 of the judgment in Ajai Kumar
Ghose case. In that paragraph the Apex
Court held "If the Magistrate comes to the
conclusion that there is sufficient ground
for proceeding, he can issue process under
section 204 of the Code?. It is in fact here
that previous stage referred to in Section
245 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 of the
Code." To put it otherwise, as and when
any process issued to the accused, the
previous stage referred to in section 245
(2) of the Code ordinarily comes to an end
but there may be Cases were discharge
prayer is made on appearance of the
accused but before the start of prosecution
evidence
or
during
the
course
of
prosecution
evidence
but
before
its
conclusion. In the subsequent situation,
the personnel presence of the accused, if
not already exempted under section 205 of
the Code, is necessary. In this view of the
matter, the submission of the learned
counsel for the petitioner that after issuing
the process under section 204 of the Code
the
Magistrate
could
consider
the
discharge prayer of the petitioner under
section 245 (2) of the Code without
personal appearance of the petitioner in
the Court, does not appear to be correct."

7. Hence, it was necessary to begin
proceeding under Section 244 Cr.P.C. with
appearance of accused. In present case
revisionists have not surrendered and have
not executed bonds for their appearance.
Hence,
Magistrate
was
well
within
jurisdiction and with reasons supported by
above precedents for passing impugned
order. There was neither exceeding of
jurisdiction nor misuse of jurisdiction or
error apparent on the face of record.

8. Hence, this revision merits its
dismissal. The revision is dismissed as such.
----------
(2020)1ILR 247

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.11.2019

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.
THE HON'BLE RAJEEV MISRA, J.

Criminal Misc. Writ Petition No. 18131 of 2018

Suresh Singh Bhadoria & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Rajneesh Tripathi, Sri Anil Kumar Yadav

Counsel for the Respondents:
A.G.A., Sri Narendra Singh

A. Constitution of India - Art. 226 -
Criminal
Writ
petition
-
Interim