# Ram Surat Verma v. State of U.P. & Anr

- **Citation:** (2021) 11 ILRA 310
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-11-30
- **Case number:** Application U/S 482/378/407 No. 4481 of 2021
- **Bench:** Rajesh Singh Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-surat-verma-v-state-of-u-p-anr-46512
- **Pages:** 6

## Headnote

A. Criminal Law -Code of Criminal Procedure,
1973-Section 482 -Indian Penal Code, 1860Section
420-quashing
of-impugned
order
rejecting
the
discharge
application
and
dismissal order of the revision -applicant
requested to the court below to direct proper
enquiry/investigation
in
respect
of
handicapped certificate, which was subject-
11 All. Ram Surat Verma Vs. State of U.P. & Anr.
311
matter of the issue, to verify as to whether
such certificate is forged or genuine-learned
court below rejected the discharge application
in undue haste without verifying the sameobservation
is
perverse
because
'at
any
previous stage of the case' includes any stage
meaning thereby even before any evidence is
recorded u/s 244 Cr.P.C., the dischasrge
application
u/s
245(2)
Cr.P.C.
may
be
considered.(Para 1 to 21)

B. It is well settled that the trial court while
considering the discharge application is not to
act as a mere post office. The court has to sift
through the evidence in order to find out
whether there are sufficient grounds to try the
suspect. The court has to consider the broad
probabilities, total effect of evidence and
documents produced and the basic infirmities
appearing in the case and so on.(Para 12)

The application is allowed. (E-6)

List of Cases cited:

## Text

310 INDIAN LAW REPORTS ALLAHABAD SERIES
concerned should have applied its mind by
asking the Investigating Officer as to what
offence has been committed at Hardoi and also
as to why the F.I.R. was not lodged at Delhi
and as to what is explanation of delay of more
than ten days in lodging the F.I.R. Had this
exercise been carried out by the Magistrate at
Hardoi
while
taking
cognizance,
any
appropriate order would have been passed in
stead of taking cognizance. This cognizance
may not be said to be taken in good faith,
therefore, the protection of Section 460
Cr.P.C. may not be extended to such
cognizance
order.
Besides,
the
mere
allegations of F.I.R. itself creates some
confusion as discussed above, therefore, if the
proceedings are permitted to be continued at
Hardoi, it would cause failure of justice,
hence, such proceedings may not be saved by
virtue of Section 462 Cr.P.C.

25. The Apex Court in re: Y. Abraham
Ajith and others (supra) has categorically
held that cause of action consists of bundle of
facts and expression "cause of action" has
acquired a judicially settled meaning, which
means
the
circumstances
forming
the
infraction of the right or the immediate
occasion for the action.

26. In the aforesaid judgment, the Apex
Court has considered the term "cause of
action" from Halsbury Laws of England
(Fourth Edition), which says that "cause of
action" is simply a factual situation the
existence of which entitles one person to
obtain from the Court a remedy against
another aspect.

27. Therefore, in the present case, the
cause of action has accrued at Delhi where no
F.I.R. was lodged and for the cause of action
which accrued at Delhi the investigation has
been done at Hardoi, charge-sheet has been
filed at Hardoi and the cognizance has been
taken by the learned court below concerned at
Hardoi, which is not permissible in the eyes of
law.

28. In view of the above, I hereby allow
the present petition.

29. Since no cause of action has accrued at
Hardoi, therefore, the concerned Magistrate at
Hardoi had no jurisdiction to deal with the
matter. Accordingly, the proceedings of the
aforesaid criminal case are quashed. The
informant/ complainant would be at liberty to
take appropriate steps against the accused
persons, strictly in accordance with law, if he so
chooses to do so.

30. No order as to costs.
----------
(2021)12ILR A310
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 30.11.2021

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.

Application U/S 482/378/407 No. 4481 of 2021

Ram Surat Verma ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Anshuman, Akash Dikshit

Counsel for the Opposite Parties:
G.A., Prem Prakash Singh

A. Criminal Law -Code of Criminal Procedure,
1973-Section 482 -Indian Penal Code, 1860Section
420-quashing
of-impugned
order
rejecting
the
discharge
application
and
dismissal order of the revision -applicant
requested to the court below to direct proper
enquiry/investigation
in
respect
of
handicapped certificate, which was subject-
11 All. Ram Surat Verma Vs. State of U.P. & Anr.
311
matter of the issue, to verify as to whether
such certificate is forged or genuine-learned
court below rejected the discharge application
in undue haste without verifying the sameobservation
is
perverse
because
'at
any
previous stage of the case' includes any stage
meaning thereby even before any evidence is
recorded u/s 244 Cr.P.C., the dischasrge
application
u/s
245(2)
Cr.P.C.
may
be
considered.(Para 1 to 21)

B. It is well settled that the trial court while
considering the discharge application is not to
act as a mere post office. The court has to sift
through the evidence in order to find out
whether there are sufficient grounds to try the
suspect. The court has to consider the broad
probabilities, total effect of evidence and
documents produced and the basic infirmities
appearing in the case and so on.(Para 12)

The application is allowed. (E-6)

List of Cases cited:

1. Adalat Prasad Vs Rooplal Jindal & ors. (2004) 7
SCC 338

2. Ajoy Kumar Ghose Vs St. of Jharkhand & anr.
(2009) 14 SCC 115

3. Sanjay Kumar Rai Vs St. of U.P. & anr. CRLA No.
472 of 2021

(Delivered by Hon'ble Rajesh Singh Chauhan, J.)

1. Heard Sri Akash Dikshit, learned
counsel for the petitioner, Sri Aniruddh Kumar
Singh, learned AGA-I for the State and Sri
Ajmal Khan, learned counsel for opposite party
no.2.

2. By means of this petition filed under
Section 482 Cr.P.C., the petitioner has prayed
for
quashing
the
impugned
order
dated
24.12.2019 (Annexure No.1) passed by the
learned Civil Judge (S.D.)/ A.C.J.M., Ambedkar
Nagar rejecting the discharge application moved
in Complaint Case No.5661 of 2018, under
Section 420 IPC, Police Station Ahirauli,
District Ambedkar Nagar and the order dated
25.10.2021 passed by the revisional court i.e.
Sessions Judge, Ambedkar Nagar dismissing the
revision of the petitioner.

3. On the request of learned counsel for the
parties, the present matter is being decided
finally at the admission stage.

4. While assailing the impugned order
dated 24.12.2019 passed by the Civil Judge
(S.D.)/ A.C.J.M., Ambedkar Nagar, learned
counsel for the petitioner has submitted that the
learned court below has rejected the application
for discharge of the petitioner on the point that
since the evidence under Section 244 Cr.P.C. is
yet to come and the accused/ petitioner has not
appeared and obtained bail, therefore, such
application for discharge is rejected. Learned
counsel for the petitioner has further submitted
that in the aforesaid judgment, reference of the
judgment of the Apex Court in re; Adalat
Prasad vs. Rooplal Jindal & Others, (2004) 7
SCC 338, has been given by the learned
Magistrate Court observing that once the
Magistrate takes cognizance in any matter/ issue,
he cannot recall or review such order. The
impugned order further says that the learned
Magistrate Court has already taken cognizance
on 23.3.2019 summoning the petitioner to try
the issue under Section 420 IPC and the
revisional court while rejecting the revision of
the petitioner has upheld the order of the
Magistrate dated 24.12.2019.

5. Learned counsel for the petitioner has
submitted that when the aforesaid rejection of
discharge was assailed before the revisional
court, learned revisional court vide order dated
25.10.2021 has rejected the revision of the
petitioner upholding the order dated 24.12.2019
passed by the court of Magistrate.

6. Sri Akash Dikshit, learned counsel for
the petitioner has submitted with vehemence that
312 INDIAN LAW REPORTS ALLAHABAD SERIES
by means of discharge application, the petitioner
had not prayed that the summoning order be
recalled or reviewed, therefore, the dictum of the
Hon'ble Apex Court in re; Adalat Prasad
(supra) would not be attracted in the present
case.

7. At this stage, learned counsel for the
petitioner has drawn attention of this Court
towards Section 245 Cr.P.C., which is being
reproduced herein below:-

"245.
When
accused
shall
be
discharged.-- (1) If, upon taking all the evidence
referred to in section 244, the Magistrate
considers, for reasons to be recorded, that no
case against the accused has been made out
which, if unrebutted, would warrant his
conviction, the Magistrate shall discharge him.

(2) Nothing in this section 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."

8. Learned counsel for the petitioner has
drawn attention of this Court towards Sub
Section (2) of Section 245 Cr.P.C., which
categorically provides that nothing in this
section 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. So as to strengthen the
aforesaid submission, Sri Dikshit has drawn
attention of this Court towards the decision of
the Apex Court in re; Ajoy Kumar Ghose vs.
State of Jharkhand and another, (2009) 14
SCC 115, referring paras 25, 36 & 37 thereof.
For the convenience those paragraphs are being
reproduced herein below:-

"25. The situation under Section
245(2) CrPC 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) CrPC, 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 CrPC.
The words appearing in Section 245(2) CrPC
"at any previous stage of the case", clearly bring
out this position.

36. The Magistrate has the power to
discharge the accused under Section 245(2)
CrPC at any previous stage i.e. before the
evidence is recorded under Section 244(1)
CrPC, which seems to be the established law,
particularly in view of the decision in Cricket
Assn. of Bengal v. State of W.B. [(1971) 3 SCC
239 : 1971 SCC (Cri) 446] , as also the
subsequent decision of the Bombay High Court
in
Luis
de
Piedade
Lobo
v.
Mahadev
Vishwanath Parulekar [1984 Cri LJ 513 (Bom)]
. The same decision was followed by Kerala
High Court in Manmohan Malhotra v. P.M.
Abdul Salam [1994 Cri LJ 1555 (Ker)] and
Hon'ble Justice K.T. Thomas, as the learned
Judge then was, accepted the proposition that
the Magistrate has the power under Section
245(2) CrPC to discharge the accused at any
previous stage. The Hon'ble Judge relied on a
decision of the Madras High Court in Mohd.
Sheriff Sahib v. Abdul Karim Sahib [AIR 1928
Mad 129 (1)] , as also the judgment of the
Himachal Pradesh High Court in Gopal
Chauhan v. Satya [1979 Cri LJ 446 (HP)].

37. We are convinced that under
Section 245(2) CrPC the Magistrate can
discharge the accused at any previous stage i.e.
even before any evidence is recorded under
Section 244(1) CrPC. In that view, the accused
could have made the application. It is obvious
that the application has been rejected by the
Magistrate. So far, there is no difficulty."
11 All. Ram Surat Verma Vs. State of U.P. & Anr.
313

9. The Apex Court has clearly held in the
aforesaid judgment that under Section 245 (2)
Cr.P.C. the Magistrate can discharge the accused
at any previous stage i.e. even before any
evidence is recorded under Section 244 (1)
Cr.P.C.

10. Therefore, Sri Dikshit has submitted
that the observation of learned Magistrate Court
vide impugned order dated 24.12.2019 is
unwarranted and uncalled for. Further the order
dated 25.10.2021 passed by the revisional court
upholding the order dated 24.12.2019 is also
perverse and uncalled for.

11. Sri Dikshit has further drawn attention of
this Court towards Annexure No.12 to the petition,
which is an application dated 6.11.2019 filed by
the petitioner before the court of Magistrate when
his discharge application was pending wherein he
had categorically requested from the learned court
below to direct for proper enquiry/ investigation in
respect of handicapped certificate, which is subject
matter of the issue, to verify as to whether such
handicapped certificate is forged or genuine. Sri
Dikshit has submitted that since this application
was filed on 6.11.2019, therefore, before rejecting
the discharge application of the petitioner vide
order dated 24.12.2019, any appropriate order on
such application dated 6.11.2019 could have been
passed by the Magistrate so as to set the
controversy at rest but no such order has been
passed before rejecting the discharge application of
the petitioner.

12. He has also drawn attention of this Court
towards a recent judgment of the Apex Court dated
7.5.2021 in re; Sanjay Kumar Rai vs. State of
Uttar Pradesh & Anr., Criminal Appeal No.472
of 2021, referring para-16 thereof, which is being
reproduced herein below:-

"16. Further, it is well settled that the
trial court while considering the discharge
application is not to act as a mere post office. The
Court has to sift through the evidence in order to
find out whether there are sufficient grounds to try
the suspect. The court has to consider the broad
probabilities, total effect of evidence and
documents produced and the basic infirmities
appearing in the case and so on. [Union of India v.
Prafulla Kumar Samal, (1979) 3 SCC 4]. Likewise,
the Court has sufficient discretion to order further
investigation in appropriate cases, if need be."

13. Sri Dikshit has categorically submitted
that it has been the view of the constitutional court
that the trial court while considering the discharge
application is not to act as a mere post office. The
court has to sift through the evidence in order to
find out whether there are sufficient grounds to try
the suspect. The court has to consider the broad
probabilities, total effect of evidence and
documents produced and the basic infirmities
appearing in the case and so on.

14. Per contra, Sri Ajmal Khan, learned
counsel for opposite party no.2 has submitted that
there is no infirmity or illegality in the order dated
24.12.2019 passed by the learned Magistrate Court
inasmuch as in the complaint case, there is
difference between the stage upto Sections 200 to
204 and 244 Cr.P.C. Further, as per him, unless the
evidence under Section 244 Cr.P.C. is recorded,
the discharge application in the complaint case
should have not been considered otherwise it
would frustrate the entire purpose of taking
cognizance and summoning the prospective
accused. He has also submitted that if without
recording the statement under Section 244 Cr.P.C.,
the discharge application is allowed, the accusation
on accused person would not come before the
learned trial court and in that case, not only the
complainant but the prosecution shall suffer,
therefore, this petition may be dismissed.

15. Learned AGA has also submitted that
so far as the judgment of the Apex Court in re;
Adalat Prasad (supra) is concerned, there may
not be any dispute on the observation and
314 INDIAN LAW REPORTS ALLAHABAD SERIES
proposition of law of the Apex Court but it
would be upto the court to see as to whether the
judgment in re; Adalat Prasad (supra) may be
applicable at the stage which has been discussed
by the Magistrate while rejecting the discharge
application
vide
order
dated
24.12.2019
inasmuch as this Court while invoking its power
under Section 482 Cr.P.C. has got vast power,
rather inherent power, to cure abuse of the
process of the law, if any.

16. Having heard learned counsel for the
parties and having perused the material available
on record, I am of the considered opinion and also
in agreement with the judgment of the Apex Court
in re; Ajoy Kumar Ghose (supra) and Sanjay
Kumar Rai (supra) to the effect that the trial court
has to sift through the evidence in order to find out
whether there are sufficient grounds to try the
suspect. The court has to consider the broad
probabilities, total effect of evidence and
documents produced and the basic infirmities
appearing in the case. In the present case, since the
present petitioner had himself filed an application
on 6.11.2019 before the learned Magistrate with
the request that appropriate direction to investigate/
enquire the handicapped certificate in question,
which is subject matter, be issued so as to verify as
to whether such certificate was forged or genuine,
therefore, it was incumbent upon the Magistrate
before passing any final order on discharge
application to direct for investigation to verify the
genuineness of the handicapped certificate so that
the issue in question may likely be set at rest.
Learned court of Magistrate should not show
undue haste in deciding the discharge application
without
verifying
the
genuineness
of
the
handicapped certificate. I am also of the view that
the discharge application should not be disposed of
in a cursory manner inasmuch as if such
application is decided in a cursory manner, then it
may likely to cause prejudice, not only to the side
of the applicant or complainant but also to the
prosecution. Therefore, before disposing of the
discharge application, all possible efforts, due care
and precaution should have been taken by the
learned court below to ensure that the prospective
accused or suspect is not scot free. At the same
time, if the prima facie material available with the
learned court below is sufficient to pass order of
discharge, there should not be any hesitation for
the learned court below to pass such order. In any
case, the subjective satisfaction of the learned court
below on the basis of material available on record
should be paramount.

17. So far as the observation of the learned
court below regarding Section 244 Cr.P.C. is
concerned, I find that such observation is
perverse inasmuch as the law is trite that the
term 'at any previous stage of the case' includes
any stage meaning thereby even before any
evidence is recorded under Section 244 Cr.P.C.,
the discharge application under Section 245 (2)
Cr.P.C. may be considered and disposed of.

18. Therefore, in the light of the facts and
circumstances and the case laws so discussed
above, I hereby set aside/ quash the order dated
24.12.2019 (Annexure No.1) passed by the
learned Civil Judge (S.D.)/ A.C.J.M., Ambedkar
Nagar and the order dated 25.10.2021 passed by
the Sessions Judge, Ambedkar Nagar (Annexure
No.14).

19. However, the matter is relegated back
to the learned court of Magistrate to pass a fresh
order on discharge application strictly in
accordance with law and considering all relevant
materials available and ensure that proper justice
is made in favour of the parties, be it the
petitioner, the private opposite party or the
prosecution. Such order shall be passed within a
period of two months from the date of receipt of
certified copy of this order, by affording an
opportunity of hearing to the parties concerned,
if it is so required under the law.

20. Liberty is given to the petitioner to
produce certified copy of this order before the
11 All. Sarvesh Kumar Tiwari Vs. State of U.P.
315
court of Magistrate through counsel and the
discharge application through counsel shall be
decided in terms of earlier order dated
1.11.2019.

21. Accordingly, the petition is allowed.

22. No order as to costs.
----------
(2021)12ILR A315
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 18.11.2021

BEFORE

THE HON'BLE MRS. SANGEETA CHANDRA, J.

Application U/S 482/378/407 No. 4612 of 2021

Sarvesh Kumar Tiwari ...Applicant
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Dinesh Kumar Singh (D.K.S, Umesh Singh

Counsel for the Opposite Party:
G.A.

A.
Criminal
Law
-
Code
of
Criminal
Procedure, 1973-Section 482 - quashing ofnon-bailable
warrant-petitioner
earlier
challenged the chargesheet in which he got
the stay of proceedings-during the pendency
of the petition, trial court issued nonbailable warrants-accused were directed to
place the current status regarding the stay
order granted by the High Court-from the
perusal of ordersheet, trial court had given
repeated opportunities to the accused but
the
accused
remained
absent-A
last
opportunity was also given which was not
availed-learned trial court had no means to
ensure presence of the accused before itHence, the trial court committed no factual
and legal infirmity while passing order.
(Para 1 to 20)

The application is rejected. (E-6)
List of Cases cited:

1. Inder Mohan Goswami & anr Vs St. of Uttranchal
& ors. (2007) 12 SCC 1

2. Asian Resurfacing of Road Agency Pvt. Ltd. & anr.
Vs C.B.I .(2018) 16 SCC 299

3. Fazalullah Khan Vs M. Akbar Contranctor (d) by LRs
& ors. (2019) 8 ADJ 615 SC

(Delivered by Hon'ble Mrs. Sangeeta Chandra, J.)

1. Heard learned counsel for the petitioner
and learned AGA for the State.

2. This petition has been filed with the
following main prayer:-

"Wherefore, it is most respectfully
prayed that this hon'ble Court may kindly be
pleased to set-aside the impugned order dated
16.09.2021 and 28.10.2021 passed by IIIrd
Additional
District
and
Sessions
Judge,
Ambedkar Nagar in S.T. No. 186/2011 (State
Versus Sarvesh Kumar Tiware), with all
consequential benefits contained as Annexure
No.1 and 2 respectively to the present petition."

3. It has been submitted by learned counsel for
the petitioner that earlier a Criminal Misc. Case No.
15 of 2016 under Section 482 Cr.P.C. (Sarvesh
Kumar Tiware vs. State of U.P. and Others) was
filed by the petitioner challenging the charge sheet
in which this Court had been pleased to stay the
proceedings in the Sessions Trial no. 186 of 2011
(State Vs. Sarvesh Kumar Tiware) by its order dated
17.08.2021, which is still operative and inforce.
During the pendency of the petition and the interim
order therein, the trial court had issued non-bailable
warrants against the petitioner on 16.09.2021 giving
rise to afresh cause of action to file the present
petition under Section 482 Cr.P.C.

4. Learned AGA for the State has raised
the
preliminary
objection
regarding
the