Petitioner seek a direction to the respondent to recall of witness power to be invoked to meet the ends of justice for strong and valid reasons with cautions and circumspection, and the same issue was held in the judgement passed by a division bench judges Hon’ble Dr Yogendra Kumar Srivastava, J. In the matter Ram Nayan Singh vs. the State of U.P. and Another :-[ APPLICATION U/S 482 No. – 24164 of 2021 ] dealt with an issue mentioned above.
In this case, the learned counsel for the petitioner submits that’s the Heard Sri Vijai Prakash Tiwari, learned counsel for the applicant and Sri Arvind Kumar, learned Additional Government Advocate appearing for the State-opposite party no.1. The present application under Section 482 CrPC has been filed seeking to quash the impugned orders dated 13.11.2019 and 16.11.2019 (annexure nos. 14 and 15) passed by the Additional District and Session Judge, Court No.9, Varanasi in Session Trial No. 300 of 2019 (State Vs. Ram Nayan Singh), Case crime No. 389 of 2018, under Section 3 of Prevention of Damage to Public Property Act, 19841, Police Station Cholapur, District Varanasi. The facts of the case, as pleaded in the application, are to the effect that the criminal proceedings were initiated pursuant to an FIR dated 20.07.2018 lodged under Section 3/4 of the PDPP Act, registered as Case Crime No. 0389 of 2018. The case was investigated and a charge-sheet dated 19.11.2018 was submitted whereupon cognizance was taken on 24.1.2019 and an application seeking discharge was moved. The Magistrate passed an order dated 06.06.2019 rejecting the discharge application and committing the case to the court of session.
The principal submission which is sought to be raised is that the offence under Section 4 is not made out inasmuch as the ingredients of the said section are not satisfied. Counsel for the applicant has also sought to assail the orders by referring to the factual aspects of the matter and the defence which is sought to be set up on behalf of the applicant. Learned Additional Government Advocate submits that in terms of the order dated 16.11.2019, which is sought to be challenged, the applicant has been charged with the offence under Section 3 and not Section 4 of the PDPP Act. It is further pointed out that the allegation in the FIR, which relates to encroachment over public property, would come within the purview of the offence under Section 3 inasmuch as it would relate to mischief causing damage to public property. In this regard, reliance has been placed upon a recent decision of this Court in Srikant vs. the State of U.P.2.
The tests and considerations to be applied by the Court while exercising the powers under Sections 227 and 228 of the Code, fell for consideration in the case of State of Bihar vs. Ramesh Singh, and it was held that the standard of test and judgement which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under Section 227 or 228, and at that stage, see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. While considering the tests to be applied by the Court for the purposes of discharge, it was held that reading Sections 227 and 228 together in juxtaposition, it would be clear that at the initial 3. (1977) 4 SCC 39 4 stages of the trial.
The court perused the facts and arguments presented, it was the opinion that – “The ambit and scope of exercise of power under Sections 227 and 228 of the Code, are fairly well settled. It has been consistently held that the standard of test and judgment which is to be finally applied before the recording of finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of framing of charge. The test to be applied at this stage would be whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. In the case at hand, the court below has duly considered the FIR version and also the police report along with the other material to record its prima facie satisfaction with regard to the offence under Section 3 of the PDPP Act having been made out, in its order dated 13.11.2019, and accordingly, 16.11.2019 was fixed for framing of charges, and in terms of the order passed on 16.11.2019, the charge was framed.
Judgment reviewed by Sakshi Mishra