Ram Kawal Tiwari and ors. Vs. State of U.P. and ors.

Ram Kawal Tiwari and ors. vs State of U.P. and ors.

Disposition Application dismissed Court Allahabad Decided Dec 07, 2001

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Citation: sooperkanoon.com/488651
Court: Allahabad High Court
Judge: U.S. Tripathi, J.
Decided On: Dec 07, 2001
Case Number: Crl. Misc. Appln. No. 5372 of 2001
Subject: Criminal
Disposition: Application dismissed

Case Summary

AI-generated summary - not the official court judgment text.

- LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land acquisition is not purely ministerial act to be performed by executive No...

Key legal issue: Criminal
Outcome / disposition: Application dismissed
Acts & sections: Dowry Prohibition Act - Sections 3 and 4; Evidence Act - Sections 106; Code of Criminal Procedure (CrPC) 1974 - Sections 173, 239 and 482; Indian Penal Code (IPC), 1860 - Sections 323 and 498-A

Parties & Advocates

Appellant / Petitioner

Ram Kawal Tiwari and ors.

Advocate Ashok Kr. Srivastava, Adv.

Respondent

State of U.P. and ors.

Advocate A.G.A.

Legal References

Acts: Dowry Prohibition Act - Sections 3 and 4; Evidence Act - Sections 106; Code of Criminal Procedure (CrPC) 1974 - Sections 173, 239 and 482; Indian Penal Code (IPC), 1860 - Sections 323 and 498-A
Cases Referred: Sri Satish Mehra v. Delhi Administration
Reported In: 2002CriLJ1860

Excerpt

.....purpose and to require the executive to take a decision, even a reasoned decision, with regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time frame. however, the power of the court under article 226 must necessarily stop at that. thereafter, if the decision taken by the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the court to quash the decision and to require reconsideration. but no direction in the nature of mandamus whether interim or final can be issued by the court under article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose. section 4; compulsory acquisition of land powers of state government held, renewal of lease in favour of petitioners would not take away power of state government of compulsory acquisition of land. renewal of lease would at best be taken into consideration for determining quantum of compensation. - 21 of 2001 as well as the order dated 2-2-2001 passed by civil judge, (sr. if the accused succeeds in producing any reliable material at that stage which might fatally affect even the very sustainability of the case, it is unjust to suggest that no such material shall be looked into by the court at that stage. moreover, that document itself cannot be termed 'reliable material, which might fatally affect even the very sustainability of the case......consideration. he also placed reliance on the apex court decision in case of sri satish mehra v. delhi administration (1996) 33 all cri c 704 (sc).9. it has been observed in the said case of satish mehra (supra) that similar situation arises under section 239 of the code (which deals with trial of warrant cases on police report). in that situation the magistrate has to afford the prosecution and the accused an opportunity of being heard besides considering the police report and the document sent therewith. at these two stages the code enjoins on the court to given audience to the accused for deciding whether it is necessary to proceed to the next stage. it is a matter of exercise of judicial mind. there is nothing in the code which shrinks the scope of such audience to oral arguments. if the accused succeeds in producing any reliable material at that stage which might fatally affect even the very sustainability of the case, it is unjust to suggest that no such material shall be looked into by the court at that stage. here the ground' may be any valid ground including insufficiency of evidence to prove charge.10. it is not disputed that the applicants, were given opportunity of audience. the applicants, however, relied on certificate issued by block development officer, katehari, district ambedkar nagar, which shows that applicant ram kawal tiwari was granted casual leave from 11-2-2000 to 14-2-2000. this document relates with alibi of the applicant. that documents requires proof as required by section 106, evidence act. the above document is not admissible in evidence unless proved according to law. moreover, that document itself cannot be termed 'reliable material, which might fatally affect even the very sustainability of the case.' therefore, the trial court of revisional court rightly concluded that the applicants could not show any material at the stage of framing charges to show that charge against them was groundless.11. the application, therefore, has no.....

Full Judgment

ORDER

U.S. Tripathi, J.

1. Heard learned counsel for the applicants and learned A.G.A. and perused the record.

2. This application under Section 482, Cr.P.C. has been filed for quashing the order dated 16-8-2001 passed by Sessions Judge, Chandauli in Criminal Revision No. 21 of 2001 as well as the order dated 2-2-2001 passed by Civil Judge, (Sr. Division)/A.C.J.M., Chandauli in case crime No. 19 of 2000.

3. An F.I.R. was lodged against the applicants under Sections 323, 498A, I.P.C. and 3/4 Dowry Prohibition Act by opposite party No. 3. After investigation the police submitted charge-sheet against the applicants under said Section.

4. On the receipt of the charge-sheet, the accused applicants were summoned. On the date of charge, the applicants moved an application for discharging them under Section 239, Cr.P.C. mainly on the ground that according to prosecution allegations the opposite party No. 3 was turned down from her matrimonial home after beating on 5-2-2000. That opposite party No. 3 remained at the house of applicants from 13-12-1999 to 5-2-2000 but during her above stay at the applicants' house, she did not make any complaint regarding cruelty or torture or demand of dowry. That applicant Ram Kawal Tiwari was on Casual Leave from 11th February, 2000 to 13th February, 2000 and that during investigation, the I.O. had recorded statements of certain persons, who were already dead.

5. The learned Magistrate considered the grounds for discharge and also took into consideration the papers relied on by the prosecution under Section 173, Cr.P.C. and found that the defence of the applicants cannot be considered at the stage of framing charges. It shall be considered at appropriate stage. He further found that from the evidence collected during investigation and documents filed under Sections 173, Cr.P.C. a prima facie case under Sections 323, 498A, I.P.C. and 3/4, Dowry Prohibition Act was made out. Therefore, he ordered framing of charge against the applicants under said Sections.

6. Aggrieved with the above order, the applicants preferred revision before the Sessions Judge, Chandauli. The learned Sessions Judge agreeing with the opinion of the Magistrate held that there was no illegality in the order under revision. With these findings, he rejected the revision.

7. The above order has been challenged in this revision.

8. The contention of the learned counsel for the applicants was that under Section 239, Cr.P.C. the Magistrate had to consider the documents sent with it under Section 173, Cr.P.C. making such examination, if any, of the accused as he thinks necessary and after giving the prosecution and the accused an opportunity of being heard, may pass the appropriate order of discharge, if he finds that the charges against the accused are to be groundless. That the Magistrate had not considered the evidence relied on by the applicants at that stage. He further contended that the materials shown by the accused at this stage shall also be taken into consideration. He also placed reliance on the Apex Court decision in case of Sri Satish Mehra v. Delhi Administration (1996) 33 All Cri C 704 (SC).

9. It has been observed in the said case of Satish Mehra (supra) that similar situation arises under Section 239 of the Code (which deals with trial of warrant cases on police report). In that situation the Magistrate has to afford the prosecution and the accused an opportunity of being heard besides considering the police report and the document sent therewith. At these two stages the Code enjoins on the Court to given audience to the accused for deciding whether it is necessary to proceed to the next stage. It is a matter of exercise of judicial mind. There is nothing in the code which shrinks the scope of such audience to oral arguments. If the accused succeeds in producing any reliable material at that stage which might fatally affect even the very sustainability of the case, it is unjust to suggest that no such material shall be looked into by the Court at that stage. Here the ground' may be any valid ground including insufficiency of evidence to prove charge.

10. It is not disputed that the applicants, were given opportunity of audience. The applicants, however, relied on certificate issued by Block Development Officer, Katehari, district Ambedkar Nagar, which shows that applicant Ram Kawal Tiwari was granted casual leave from 11-2-2000 to 14-2-2000. This document relates with alibi of the applicant. That documents requires proof as required by Section 106, Evidence Act. The above document is not admissible in evidence unless proved according to law. Moreover, that document itself cannot be termed 'reliable material, which might fatally affect even the very sustainability of the case.' Therefore, the trial Court of Revisional Court rightly concluded that the applicants could not show any material at the stage of framing charges to show that charge against them was groundless.

11. The application, therefore, has no force and is dismissed.

12. The application is, accordingly, dismissed.

Same Court & Year Allahabad · 2001 Same Parties Ram Kawal Tiwari and ors. vs State of U.P. and ors. Same Subject Criminal Same Judge U.S. Tripathi, J. Acts & Sections Dowry Prohibition Act - Sections 3 and 4; Evidence Act - Sect...

Criminal