By Adv. R. S. Agrawal 

 

THROUGH the judgement in the case –Vishnu Kumar Shukla (and his wife Vineeta Shukla) v. The State of Uttar Pradesh & Another, delivered on November 28, 2023, a Supreme Court division bench consisting of Justice Vikram Nath and Justice Ahsanuddin Amanullah, has held that the protection against vexatious and unwanted prosecution and from being unnecessarily dragged through a trial by melting a criminal proceeding into oblivion, either through quashing a FIR/complaint or by allowing an appeal against an order rejecting discharge or by any other permissible route, as the circumstances may be, in the deserving case, is a duty cast on the High Courts. Further, according to the Apex-Court, in such circumstances the High Court should have intervened and discharged the appellants. But the SC being the sentinel or the qui vive would intervene and discharge the appellants. The appeal in this case was directed against the final judgement and order of August 2, 2017 passed by the Lucknow Bench of the Allahabad High Court, in case under section 482/378/407 Cr.P.C. by which the order of June 2,2017 passed by the Chief Judicial Magistrate, Lucknow rejecting the prayer for discharge of the appellants , who are husband and wife, respectively had been upheld. In brief, the allegations have been that the respondent-2- Complainant was a tenant of a shop situated in the house of one Hari Narayan Shukla.

 

On June 29, 2011, the appellants along with others locked the door of R2’s shop from inside, broke the wall and looted wheat meant for Above Poverty Line (APL) persons, sale money about RS 21,000/- worth of kerosene oil, goods in stock, all the registers of the shop, documents and a two-wheeler, which led to R2 filing case (FIR) with the Hazratganj Police Station on July 1, 2011 under sections 448,454 and 30 of the IPC, 1860. On a careful conspectus of the legal spectrum, juxtaposed with our view on the facts and merits expressed hereinbefore, the Supreme Court has expressed satisfaction that there is no suspicion, much less strong or grave suspicion that the appellants are guilty of the offence alleged. It would be unjustified to make appellants to face a full –fledged criminal trial against this backdrop. In an appeal dealing with the refusal of the HC to quash a FIR under section 482 Cr.P.C. albeit, the SC while setting aside the judgement impugned therein and quashing that FIR took the view that ‘...the appellants are to be protected against vexatious and unwarranted criminal prosecution, and from unnecessarily being put through the rigours of an eventual trial.’ (Priyanka Mishra v. State of Uttar Pradesh– (2023 INSC 729/2023 SCC OnLine SC 978. In a recent judgement –State of Gujarat v. Dilip Sinh Kishor Sinh Rao – 2023 SCC OnLine SC 1294, the SC has held: “7.

 

It is trite law that application of judicial mind being necessary to determine whether a case has been made out by the prosecution for proceeding with trial and it would not be necessary to dwell into the pros and cons of the matter by examining the defence of the accused when an application for discharge is filed. At that stage, the trial judge has to merely examine the evidence placed by the prosecution in order to determine whether or not the grounds are sufficient to proceed against the accused on basis of chargesheet material. “The nature of the evidence recorded or collected by the investigating agency or the documents produced in which prima facie it reveals that there are suspicious circumstances against the accused, so as to frame a charge would suffice and such material would be taken into account for the purposes of framing the charge. If there is no sufficient ground for proceeding against the accused necessarily, the accused would be discharged, but if the court is of the opinion, after such consideration of the material that there are grounds for presuming that accused has committed the offence which is triable, then necessarily charge has to be framed.” “8.

 

At the time of framing of the charge and taking cognisance the accused has no right to produce any material and call upon the court to examine the same. No provision in the Code grants any right to the accused to file any material or document at the stage of framing of charge. The trial court has to apply its judicial mind to the facts of the case as may be necessary to determine whether a case has been made out by the prosecution for trial on the basis of chargesheet material only. “9. If the accused is able to demonstrate from the chargesheet material at the stage of framing the charge which might drastically affect the very sustainability of the case, it is unfair to suggest that such material should not be considered or ignored by the court at that stage. The main intention of granting a chance to the accused of making submissions as envisaged under section 227 of the Cr.P.C. is to assist the court to determine whether it is required to proceed to conduct the trial. Nothing in the Code limits the ambit of such hearing, to oral hearing and oral arguments only and therefore, the trial court can consider the material produced by the accused before the Investigating Officer.

 

“1o. It is settled principle of law that at the stage of considering an application for discharge the court must proceed on an assumption that the material which has been brought on record by the prosecution is true and evaluate said material in order to determine whether the facts emerging from the material taken on its face value, disclose the existence of the ingredients necessary for the offence alleged. “11. The defence of the accused is not to be looked into at the stage, when the accused seeks to be discharged. “12. The primary consideration at the stage of framing of charge is the test of existence of a prima facie case , and at this stage, the probative value of materials on record need not be gone into.” The Supreme Court has allowed the appeal. The appellants on bail were discharged. The impugned judgement of the HC and the order of the Trial Court dismissing the prayer for discharge have been set aside. The appellants have been discharged, as there is not sufficient material on the record to proceed against them.