The Allahabad High Court while dismissing an application said that subsequent application under section 482 of Cr.P.C is maintainable, but, that is in the case of changed circumstances.
A Single Bench of Justice Shree Prakash Singh passed this order while hearing an application under section 482 filed by Uday Pratap Singh.
By means of the application, the applicant-petitioner has prayed that the Additional Sessions Judge/ F.T.C-I,Sultanpur may be directed to proceed with the trial of the Sessions Trial (State Vs Vijay Pratap Singh & Others), arising out of Case under section 302,120-B I.P.C, Police Station Munshiganj, District-Amethi, while following each and every mandatory and obligatory steps of the procedure prescribed in Code of Criminal Procedure for ensuring the very fair and transparent justice.
The facts of the case are that an F.I.R was lodged against the applicant and his brother namely Vijay Pratap Singh at Police Station-Munshiganj, District-Amethi on 18-10-2021 and thereafter, the investigation conducted and Chargesheet was filed before the Trial Court on 16-12-2021 under sections 302 & 120-B of I.P.C against the applicant-petitioner and the other co-accused persons.
After filing of the Chargesheet, the concerned Magistrate took cognizance of the offences on 22-04-2022 and committed the matter before the Sessions Judge, Sultanpur.
The electronic evidence i.e compact device and Pen Drive was allegedly not given to the applicant and the other co-accused persons, which came into the knowledge of the applicant after perusal of the case diary.
In the compact device and pen drive, the statement of the deceased is said to be copied from the mobile of the complainant, which as per the applicant, is an important document and that should have been given to the applicant, but, once an application was moved under section 207 of Cr.P.C before the learned court below on 14-07-2022 for providing the aforesaid, prior to framing of the charges, the same was not given to the applicant and thus, the contention is that the trial court has violated the mandate of the provisions of section 207 of Cr.PC and the trial court prior to framing of charges, did not apply its judicial mind on discharge of the applicant, which is a valuable right.
Counsel appearing for the applicant contends that even after an application moved before the court below on 14-07-2022, under sections 207/228 of Cr.P.C, the electronic devices i.e the Compact Disc. as well as the Pen Drive was not provided to the applicant, though from perusal of the case diary, it reveals that the compact device and pen drive has been submitted with the case diary by the Investigating Officer.
He submitted that since the compact device and pen drive is a part of the case diary and certainly, the prosecution shall rely on the same during the course of the trial and therefore, those are the important documents from the side of the prosecution, therefore, the copy of the same should have been provided by the trial court while following the proceedings under Section 207 of CrPC.
He further submitted that vide order dated 20-07-2022, the application of the applicant dated 14-07-2022 has been rejected and a finding has been recorded that the copy of the Compact device and pen drive has already been provided to the applicant and thereafter, the matter was committed to the Sessions Court.
He also submitted that in fact this is a perverse finding as uptil date the copy of the pen drive and compact disc. has not been given to the applicant and there is no proof that the copy of the aforesaid documents was ever given to the applicant, thus, the order dated 20-07-2022 is perverse and vitiates in the eyes of law.
He further contended that apart from the aforesaid, the applicant has also assailed the order dated 20-07-2022 as well as the further criminal proceedings of Sessions Case No. 573 of 2022 on the premise that the learned trial court prior to framing of the charges did not apply its judicial mind with respect to the mandate of the provisions of section 227 of Cr.P.C., i.e discharge of the accused.
He said that in the matter, the charges were framed without application of judicial mind over the discharge of the accused.
Per contra, A.G.A appearing for the State has opposed the contentions aforesaid and submits that there is no perversity or unlawfulness in the order passed by the trial court.
The Court observed that,
Having heard counsel for the parties and after perusal of material placed on record, it emerges that the applicant has already filed an application under section 482 Cr.P.C, wherein the order dated 20-07-2022 was assailed and an identical grievance was raised in the aforesaid application before the coordinate Bench of the court.
So far as the grievance of the applicant that the documents i.e C.D & Pen Drive were not provided to him, is concerned, the fact remains that those documents have been sent to the Forensic Science Laboratory for its examination and if it is found that those are not tampered, the question would arise that whether the prosecution is relying upon the same or not and in case, the same would be relied upon by the prosecution and the copy is not been provided, certainly, there would be violation of law and therefore the instant application has been filed at premature stage.
The court noted that the coordinate Bench of the court while passing the order on 26-07-2022, in application under section 482 Cr.P.C, provided that “if the prosecution is relying on the CD and Pendrive, which have been sent for forensic examination, the accused shall be supplied the copies thereof along with the copy of the FSL report to enable accused to put their defence effectively.”
The Court said that in this view of the matter, the grievance of applicant has already been exhausted, but, repeatedly almost the same prayer has been made in ambiguous manner, without mentioning the date of the order, but, the intent and content is the same, though it is trite law that subsequent application under section 482 of Cr.P.C is maintainable, but, that is in the case of changed circumstances. So far as the matter is concerned, the applicant has failed to demonstrate what are the changed circumstances after the earlier order dated 26-07- 2022 passed by the coordinate Bench of the court.
“So far as bare reading of provisions of Section 227 of the Cr.P.C is concerned, the intent of legislature is clear from its last line as it contains that ‘he will discharge an accused and record his reasons for so doing’ and thus, it is clear that the manner for discharging an accused has been prescribed and therefore, the trial court while discharging an accused, shall record reasons in writing, thus, after consideration of the records and after hearing of the submissions, if the trial court does not find sufficient grounds, it will proceed for framing of charges. At the stage of framing of charges, the court is not required to hold the detailed enquiry and only prima-facie, case is to be seen.
The court is also aware of the settled law in case of Superintendent and Remembrancer of Legal Affairs, West Bengal Vs Mohan Singh and Others, reported in (1975) 3 SCC 706, which says that the second application under section 482 Cr.P.C is maintainable but in the changed circumstances, which varies case to case and so far as the case is concerned, the applicant has failed to establish at this stage that there are changed circumstances.
In the light of the aforesaid submissions and discussions, the court is of the considered opinion that there is no merit in the application”, the Court further observed while dismissing the application.