The Allahabad High Court set aside an order of the magistrate dismissing the discharge application filed by an accused booked under Section 306 IPC.
A Single Bench of Justice Brij Raj Singh passed this order while hearing an application under section 482 filed by Sukhbir Singh.
The application has been preferred with prayer to allow the application and quash the orders dated 29.09.2021 and 11.10.2021 passed by Additional Chief Judicial Magistrate, Bareilly in Case under Sections 201 and 306 IPC, Police Station Bhojipura, District Bareilly with further prayer to stay the entire proceeding of aforesaid case.
The facts of the case are that an FIR under Section 306 IPC in Case Police Station Bhojipura, District Bareilly was lodged by the informant.
As per the FIR it is narrated that the deceased came to Shri Ram Murti Smarak Medical College on 03.09.2017 but she died in mysterious condition on 06.09.2017 in the hostel. In the FIR it has been further mentioned that out of the result of ragging she died in the hostel.
The case was investigated and during investigation the name of the applicant came into light on the statement of the room-mate of the deceased, namely, Nupur and Harshita who were friends of deceased Ananya and a charge sheet was filed and summons were issued on 27.08.2011.
On the request of the informant, CBCID enquiry was carried out and closure report was filed on 11.02.2020 by which the applicant was exonerated.
The Magistrate issued notice to the informant upon closure report on 07.08.2020.
The applicant applied for anticipatory bail by filing Criminal Misc Anticipatory Bail Application U/S 438 CrPC which was allowed order dated 23.11.2020 and while granting anticipatory bail the Court directed the trial court to pass an order upon the contradictory reports filed by two investigating agencies within two months from the date of resumption of the regular functioning of the Court.
In the meantime, the informant filed a protest petition against the closure report on 25.11.2020 against which reply was filed by the applicant.
Since, the applicant was granted anticipatory bail, he preferred discharge application before the Magistrate on 15.12.2020. The applicant filed application for withdrawal of the application for discharge on 18.01.2021 on the ground that discharge application would not be maintainable before the Session Court for the offence under Section 306 IPC and he further requested in the said application that the case may be committed under Section 209 CrPC since the case was exclusively triable by the Session Court.
The Magistrate dismissed the closure report and proceeded on the discharge application on merit and passed the impugned order by rejecting the application for discharge.
In the meantime, a non-bailable warrant was issued against the applicant on 11.10.2021, therefore, both orders i.e rejecting the discharge application dated 29.09.2021 and the order for non-bailable warrant had been challenged by the applicant by filing the application.
Counsel for the applicant has made following submissions:-
Counsel for the applicant submitted that the controversy involves offence under Section 306 IPC which is exclusively triable by Session Court. In view of the aforesaid fact, it is legally not sustainable to take decision on the discharge application by the Magistrate, rather the orders will have been passed by the Session Court.
Counsel for the applicant further submitted that as per the dictum of Vinay Tyagi (supra), it has been observed that on two contradictory reports by the same Investigating Agencies, the trial court has three options, firstly, it may accept the application of accused for discharge; secondly, it may direct that the trial court may proceed further in accordance with law; and thirdly, if it is dissatisfied on any important aspect of investigation already conducted and in its considered opinion, it is just, proper and necessary in the interest of justice to direct “further investigation” it may do so.
It has been further argued by the counsel for the applicant that the discharge application should be entertained by the trial court thus, trial court is Session Court in the matter, whereas, the impugned order has been passed by the Magistrate who has no jurisdiction.
It has been further submitted by the counsel for the applicant that after analysing the judgment of Umesh Yadav, Prateek Gupta (supra), it is worth to be mentioned that the Magistrate was obliged to commit the matter to the Court of Session. Since, the Magistrate had no jurisdiction to pass the order, the order is not sustainable because the Magistrate exceeded his jurisdiction while passing this order.
Counsel for the applicant said that the Magistrate should have committed the case to the Court of Session so that the discharge application could have been considered by the competent court i.e Session Court.
Anurag Pathak, counsel for the respondents has opposed the submissions advanced by the counsel for the applicant and has submitted that the order dated 29.09.2021 has been passed for the reason that the direction was given by the High Court to pass appropriate order on the closure report as well as the charge sheet.
He has further submitted that there is no infirmity or illegality in the order passed by the court below.
The Court observed that the trial court has got three options: firstly, it may accept the application of accused for discharge; secondly, it may direct that the trial court may proceed further in accordance with law; and thirdly, if it is dissatisfied on any important aspect of investigation already conducted and in its considered opinion, it is just, proper and necessary in the interest of justice to direct “further investigation” it may do so.
The Court held that,
The case of Prateek Gupta (supra) is also relevant to be looked into, which is a mere process in the controversy, wherein, it is provided that an offence cognizable by the Session Court, the Magistrate cannot prove the matter and cannot discharge the accused.
In view of Section 209 CrPC, there is no ambiguity as to who is the trial court. In the case, since the offence is triable by the Session Court, the trial court is Session Court. While hearing the application of discharge, the Magistrate committed error by assuming the jurisdiction of Session Court. The Session Court has to decide whether the applicant is liable to be discharged or whether application is liable to be rejected. The Magisterial Court committed an error by deciding the case itself.
“The High Court while granting anticipatory bail vide order dated 23.11.2020, made the observation that the trial court is expected to pass appropriate order on the closure report within two months as per the judgment of Apex Court in the case of Vinay Tyagi (supra). The Magistrate overlooked the observation made by the High Court and resumed the jurisdiction of Session Court while taking decision on the application for discharge. It was incumbent upon the Magistrate to commit the case to the Court of Session but in spite of doing so he heard the application for discharge which was not in his domain. The objection taken by the applicant was not considered by the Magistrate and he passed the order ignoring the statutory provision of judgment of the Supreme Court without applying its mind”, the Court said while allowing the application.
The Court ordered that,
In view of the aforesaid factual and legal backdrop, I am of the opinion that the orders dated 29.09.2021 and 11.10.2021 passed by Additional Chief Judicial Magistrate, Bareilly in Case under Sections 201 and 306 IPC, Police Station Bhojipura, District Bareilly are not sustainable in the eyes of law, therefore, I set aside the order with following directions:-
(i)The Additional Chief Judicial Magistrate, Bareilly will commit the case within one and half month from today to the Court of Session.
(ii) The Court of Session will pass appropriate order on application for discharge of the applicant within two months from date of committal order according with law after affording opportunity of hearing to the parties.