This Allahabad High judgment disallowed discharge of accused under CrPC 239 on grounds of sufficient evidence against the accused in the case diary. Many husbands facing false 498a think of applying for discharge using CrPC 239 route so they should weigh their 498a case strategy using the following point from judgment as a guideline.
At the stage of framing charge the criteria for consideration is whether the unrebutted evidence of the prosecution can result into conviction of the accused. If the answer is in affirmative, the accused is to be charged, and if the answer is in negative, the accused is to be discharged.
Full judgment below with important points in bold:
http://elegalix.allahabadhighcourt.in/elegalix/WebShowJudgment.do?method=A&judgmentID=42311
HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
Court no.1
Criminal Misc. Application No. 11806 of 2007
Rais Miyan and others Vs. State of U.P.
Hon'ble R.K.Rastogi,J
This is an application under section 482 Cr.P.C. for quashing the order dated 3.5.2007 passed by the Judicial Magistrate, Etah in Criminal Case No. 381/2006, State Vs. Rais Miyan and others.
The facts relevant for disposal of this application are that on an application of opposite party no.2 Smt. Ruheen alias Ruhee against the accused applicants under section 156 (3) Cr.P.C. the learned Magistrate passed an order for registration of the case and on the basis of that order a F.I.R. was lodged against the accused applicants under sections 498A, 406, 506 I.P.C. and ?? Dowry Prohibition Act, P.S. Kasganj District Etah.
The police after investigation submitted charge sheet against all the accused persons on 23.7.05. The applicants moved an application under section 239 Cr.P.C. for discharge. The learned Magistrate, after hearing both the parties, rejected that application vide his order dated 3.5.07. Aggrieved with that order, this application under section 482 Cr.P.C. has been filed.
I have heard the learned counsel for the applicants as well as the learned A.G.A. for the State.
Section 239 Cr.P.C runs as follows:
" 239.When accused shall discharged- 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."
It is apparent from perusal of the above section that at the stage of consideration of discharge of the accused, the Magistrate shall consider the police report and the documents sent with it under section 173 Cr.P.C. and while making such consideration he can examine the accused, if necessary, and an opportunity of hearing is to be given to the prosecution as well as to the accused and then if the Magistrate finds that the charges against the accused are groundless , he shall discharge the accused by a reasoned order.
It is to be seen that, as is apparent from the aforesaid section, at the time of considering the matter for discharge of the accused, the police report and the documents sent along with the report are to be considered at this stage, and if no case is made out on the basis of those documents, the accused is to be discharged, but at this stage the defence of the accused is not to be considered. Whatever the accused can contend at this stage is that even if the entire prosecution allegations contained in the police papers are taken to be true, they fail to make out any offence and for this purpose legal pleas may be taken . But if the pleas taken by the accused are factual they can not be considered at this stage and they can be substantiated at the proper stage after adducing evidence to that effect. At the stage of framing charge the criteria for consideration is whether the unrebutted evidence of the prosecution can result into conviction of the accused. If the answer is in affirmative, the accused is to be charged, and if the answer is in negative, the accused is to be discharged.
In the present case there was sufficient evidence against the accused in the case diary. It is apparent from the order of the Magistrate. He has passed orders for framing charges against the accused and has rightly rejected the application under section 239 Cr.P.C. for discharge, because the factual defence of the accused could not be considered at this stage. There is no illegality in the order passed by the Magistrate. The application for discharge was rightly rejected by the Magistrate. This application under section 482 Cr.P.C. has got no force and is rejected.
Learned counsel for the applicants submitted at this stage that the personal appearance of the applicants no. 2 and 3 may be exempted on account of their old age. The applicants may move an application in this regard before the learned Magistrate and if such an application is moved, the learned Magistrate, taking into consideration the grounds taken in the application may pass suitable orders thereon.
31.5.2007
MLK