# Smt. Shiv Kumari v. State of U.P. and another

- **Citation:** (2012) 2 ILRA 660
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-05-24
- **Bench:** Sudhir Kumar Saxena
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-shiv-kumari-v-state-of-u-p-and-another-42247
- **Pages:** 3

## Headnote

Code of Criminal Procedure-Section 239,
240-discharge
application-on
groundF.I.R. Lodged after 15 years suit for
cancellation of sale deed already pending
since
1991-inspite
of
direction
Magistrate without application of mindwithout going through material placed
by Police-without considering the scope
of Section 239-about discharge before
commencement
of
Trail-outrightly
rejection on ground of at this stage-heldorder suffers from non application of
mind-rejection
order
quashed
with
direction of fresh consideration.

Held: Para 6

From the above, it appears that learned
Magistrate proceeded on the assumption
that he has no power to evaluate the
materials forwarded by police under
Section 173 Cr.P.C. and at that stage,
prayer
for
discharge
cannot
be
entertained. This is in violation of clear
mandate of Sections 239 & 240 Cr.P.C.
which require a finding by the Magistrate
with regard to the charge against the
accused being groundless or that there is
ground for presuming that the accused
has committed offence. This finding was
to be recorded upon considering the
police
report,
the
documents
sent
2 All] Smt. Shiv Kumari V. State of U.P. and another
661
therewith and after hearing both the
parties, Magistrate has not considered
any document or material forwarded by
the police nor has even referred to the
contentions raised by the applicant.
Magistrate has not applied his mind to
the contentions raised by the applicant
and provisions of section, thus the order
cannot be upheld. Section 239 Cr.P.C.
contemplates discharge even before the
commencement of the trial which factor
has been overlooked by the Magistrate.
Thus, order suffers from vice of nonapplication of mind.

## Text

660 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
Services he shall be entitled for selection
and appointment in U.P. Higher Judicial
Service. The argument advanced by
learned counsel for the petitioner seems to
be misconceived.

20. The case of Shankar K. Mandal
(supra) does not relate to situation envisage
under Article 233 of the Constitution of
India and considered by the Hon'ble
Supreme
Court(supra).
Recruitment
process
with
regard
to
ordinary
Government service and with regard to
judicial services may be different. So far as
Higher Judicial Services are concerned, it
is governed by the condition contained in
Article 233 of the Constitution of India.
Article 233 has been interpreted by the
Hon'ble Supreme Court in catena of
judgments, out of which aforesaid two
judgments referred herein above would
reveal that on the cut of date or at the time
of recruitment, the candidate must be the
member of Bar or a practicing advocate. In
case he has requisite experience, but he is
not the member of Bar or practicing
advocate then keeping letter and spirit of
Article 233 of the Constitution of India, he
shall not be entitled to appear in the Higher
Judicial Services.

21. So far as the validity of impugned
Rules are concerned, they do not seem to
be ultra-vires to the Constitution. In case,
the Rules in question are considered in the
light of aforesaid judgment of the Hon'ble
Supreme Court, it appears to be intra-vires
regulating the condition of recruitment.

22. In view of above, the writ petition
is devoid of merit and the same is hereby
dismissed in limine.
---------

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 24.05.2012

BEFORE
THE HON'BLE SUDHIR KUMAR SAXENA, J.

U/S 482/378/407 No. - 670 of 2010

Smt. Shiv Kumari

 ...Petitioner
Versus
State of U.P., & another ...Respondents

Counsel for the Petitioner:
Sri Amarjeet Singh Rakhra

Counsel for the Respondents:
G.A.
Sri Indrajeet Shukla

Code of Criminal Procedure-Section 239,
240-discharge
application-on
groundF.I.R. Lodged after 15 years suit for
cancellation of sale deed already pending
since
1991-inspite
of
direction
Magistrate without application of mindwithout going through material placed
by Police-without considering the scope
of Section 239-about discharge before
commencement
of
Trail-outrightly
rejection on ground of at this stage-heldorder suffers from non application of
mind-rejection
order
quashed
with
direction of fresh consideration.

Held: Para 6

From the above, it appears that learned
Magistrate proceeded on the assumption
that he has no power to evaluate the
materials forwarded by police under
Section 173 Cr.P.C. and at that stage,
prayer
for
discharge
cannot
be
entertained. This is in violation of clear
mandate of Sections 239 & 240 Cr.P.C.
which require a finding by the Magistrate
with regard to the charge against the
accused being groundless or that there is
ground for presuming that the accused
has committed offence. This finding was
to be recorded upon considering the
police
report,
the
documents
sent
2 All] Smt. Shiv Kumari V. State of U.P. and another
661
therewith and after hearing both the
parties, Magistrate has not considered
any document or material forwarded by
the police nor has even referred to the
contentions raised by the applicant.
Magistrate has not applied his mind to
the contentions raised by the applicant
and provisions of section, thus the order
cannot be upheld. Section 239 Cr.P.C.
contemplates discharge even before the
commencement of the trial which factor
has been overlooked by the Magistrate.
Thus, order suffers from vice of nonapplication of mind.

(Delivered by Hon'ble Sudhir Kumar Saxena, J.)

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

2. From the record, it transpires that
chargesheet
was
submitted
against
applicant under Sections 419, 420, 467,
468, 471 IPC. Petitioner had filed
Criminal Misc. Case No. 2742 of 2007
(u/s 482 Cr.P.C) which was disposed of
finally on 23.04.2009 by Hon'ble Mr.
Justice D.V. Sharma (Retd.) directing the
petitioner to move application under
Section 239 Cr.P.C. which was to be
disposed of within 30 days. Another
petition was filed by the petitioner being
Criminal Misc. Case No. 3294 of 2009
(u/s 482 Cr.P.C.) which too was disposed
of on 11.09.2009 with the direction to
consider the bail application, if possible
on the same day.

3. In pursuance of this judgment,
petitioner concerned had got himself
bailed out on 23.09.2009, thereafter, she
moved application to discharge under
Section 239 Cr.P.C. before the Chief
Judicial Magistrate, Gonda, raising that
defendants of suit are wrongly claiming
the ownership of the property on the basis
of sale deed. Civil Suit no 49 of 1991 was
pending for cancellation of the sale deed.
FIR has been lodged after 15 years. Suit
having been dismissed, has been restored
on 16.07.2005 and nothing incriminating
has been collected or found by the
Investigating
Officer
against
the
applicant. This application has been
rejected by Judicial Magistrate-II, Gonda,
which order has been impugned in the
instant petition.

4. With the consent of parties, I
propose to decide this case finally.
Section 239 Cr.P.C. is being reproduced
below:

"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. "

5. From the above section, it is
manifest that Magistrate has to consider
the police report and documents sent
therewith under Section 173 Cr.P.C.,
examine the accused and give opportunity
of hearing to both the parties. He can
discharge the accused if he finds that
charge against the accused groundless and
he will have to record reasoning therefor.
On the other hand, if he finds the grounds
for presuming that the accused has
committed an offence then charge will be
framed
under
Section
240
Cr.P.C.
Application moved under Section 239
Cr.P.C., raises many grounds, however,
learned Magistrate has not considered any
662 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
ground and has rejected the application by
one sentence :

"tgakaWa rd vfHk;qDrk f'ko dqekjh ds fo:)
vijk/k ds cuus dk iz"u gS ;g lk{; dk fo'k;gSA
irzkoyh vHkh gkftjh vfHk;qDrx.k esa fu;r gSA bl
izdze ij vfHk;qDrk Jherh f'kodqekjh dks mUeksfpr
fd;s tkus dk dksbZ vk/kkj ugha gSA vfHk;qDrk Jherh
f'kodqekjh dks lk{; ds Lrj ij oknh o mlds
lk{khx.k ls ftjg dk iw.kZ volj izkIr gksxkA vr%
vfHk;qDrk dk izkFkZukirz Lohdkj fd;s tkus ;ksX; ugha
gSA"

6. From the above, it appears that
learned Magistrate proceeded on the
assumption that he has no power to
evaluate the materials forwarded by
police under Section 173 Cr.P.C. and at
that stage, prayer for discharge cannot be
entertained. This is in violation of clear
mandate of Sections 239 & 240 Cr.P.C.
which require a finding by the Magistrate
with regard to the charge against the
accused being groundless or that there is
ground for presuming that the accused has
committed offence. This finding was to be
recorded upon considering the police
report, the documents sent therewith and
after hearing both the parties, Magistrate
has not considered any document or
material forwarded by the police nor has
even referred to the contentions raised by
the applicant. Magistrate has not applied
his mind to the contentions raised by the
applicant and provisions of section, thus
the order cannot be upheld. Section 239
Cr.P.C. contemplates discharge even
before the commencement of the trial
which factor has been overlooked by the
Magistrate. Thus, order suffers from vice
of non-application of mind.

7. Accordingly, the petition is
allowed. Order dated 08.01.2010 passed
by Judicial Magistrate-II, Gonda, in Case
No. 3550 of 2007 is quashed.

8. Magistrate is directed to decide
the application in accordance with law
within a period of six weeks from the date
a certified copy of this order is produced
before him.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.05.2012

BEFORE
THE HON'BLE SIBGHAT ULLAH KHAN, J.

SECOND APPEAL No. - 1190 of 1976

Ved Prakash

 ...Petitioner
Versus
Phool Chand and others ...Respondents

Counsel for the Petitioner:
Sri N.C.Rajvanshi
Sri M.K. Rajvanshi
Sri P.K.Tyagi
Sri P.N. Tyagi
Sri Ravi Kant
Sri Sankatha Rai
 Smt.Archana Tyagi
Sri Ved Prakash
Sri Ashok Srivastava

Counsel for the Respondents:
Sri Dhan Prakash
Sri M.C.Joshi
Sri Rajiv Joshi
Sri Sudhir Prakash
Sri V.K.S.Chaudhary

Code of Civil Procedure-Section 100cancellation of sale deed by minor on
behalf of his maternal uncle-sale deed
executed by natural father of minorbasis of suit that the father of miner had
executed gift deed when minor was 2
years old-which was never acted upon
and the name of donor continued over
revenue record-after 2 1/2 years father
executed sale deed-no where pleaded
that the natural guardian had no relation
with minor-suit by maternal uncle as