# Anil Kumar (Engineer) Revisionist v. State of U.P. & Ors

- **Citation:** (2023) 9 ILRA 133
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-08-10
- **Case number:** Criminal Revision No. 1077 of 2022
- **Bench:** Ram Manohar Narayan Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/anil-kumar-engineer-revisionist-v-state-of-u-p-ors-50756
- **Pages:** 7

## Headnote

(A) Criminal Law - Revision - Indian Penal
Code, 1860 - Sections 342, 376, 511 & 506
- The Code of Criminal Procedure, 1973 -
Section 161 &164 - The Protection of
Children From Sexual Offences Act, 2012 -
Section 5/6 - accused can be discharged
where no connection is found between the
accused and commission of crime - right
to seek discharge by an accused is
valuable statutory right and same cannot
be taken lightly by the trial court -
truthfulness, sufficiency and acceptability
of
the
material
produced
can
be
determined only at the stage of trial -
Framing of charge is an exercise of
jurisdiction by trial court in terms of
Section 228 of the Code, unless the
accused is discharged under Section 227
of the Code. (Para - 8 )

(B) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 227 - Judge
while
considering
the
question
of
framing of charge under Section 227
Cr.P.C. has undoubted power to sift and
weigh evidence for the limited purpose
of finding out whether or not a prima
facie case against the accused has been
made out - Once the charges are framed,
the accused is put to trial and thereafter
the accused may either be acquitted or
convicted, but he cannot be discharged -
defence of the accused is not looked into
at the stage when the accused seeks to
be discharged under Section 227 Cr.P.C.
(Para -10,11)

Case involves a missing 10-year-old girl who
was held hostage by a revisionist - intending to
commit rape - accused was charged after
investigation - discharge application - rejected -
trial court framed charges against accused -
evidence recorded - three witnesses of fact
examined - hence revision.(Para - 6,11)

HELD:-Trial
court
dismissed
revisionist's
application of discharge, citing victim's support
of the F.I.R. version under Sections 161 and 164
Cr.P.C. Victim, a minor aged around 10 years at
the time of the incident in 2017, cannot be
considered a material witness. Revisionist's
grounds and documents can be brought before
the trial court during the defense evidence
stage, as the trial is ongoing.(Para - 12)

Revision dismissed. (E-7)

List of Cases cited:

## Text

9 All. Anil Kumar (Engineer) Vs. State of U.P. & Ors.
133
which are found guilty of the opinion that,
having regard to the circumstances of the case
including the nature of the offence and the
character of the offender, it is expedient to release
him on probation of good conduct when
notwithstanding anything contained in any other
law for the time being the court may, instead of
sentencing him at once, many punishment direct
that to release on interim bail with or without
sureties to appear and face sentence when called
upon during such not exceeding three years, as
the court may direct, and in the meantime to keep
the peace and good behavior for specified period
altogether.

19. In the present case the conviction of
appellant of the charge under Section 323 I.P.C.
is maintained and their conviction under Section
504 I.P.C. has been quashed in this judgment the
charge under Section 323 I.P.C. under Section
323 I.P.C. is not not an offence of morale
turpitude.

Section 12 of probation of Offenders Act
1958 is very relevant which provides as
under:-

"12. Removal of disqualification attaching
to
conviction.?Notwithstanding
anything
contained in any other law, a person found guilty
of an offence and dealt with under the provisions
of section 3 or section 4 shall not suffer
disqualification, if any, attaching to a conviction
of an offence under such law: Provided that
nothing in this section shall apply to a person
who, after his release under section 4 is
subsequently sentenced for the original offence."

"In view of S. 12, Probation of
Offenders Act, an offende who has been
released on probation shall not suffer
disqualification attaching to a conviction of the
offence for which he has been convicted
notwithstanding anything contained in any
other law, instead of dismissing him from
service he should have been removed from
service so that the order of punishment did not
operate as a bar and disqualification for future
employment with Government. Under the
circumstances, the impugned order of dismissal
is converted into an order of removal from
service. Subject to this modification the appeal
fails and is dismissed: Trikha Ram v. V.K. Seth
AIR 1988 SC 285: 1987 (Supp) SCC 39."

Similarly, where a person is convicted
under S. 408, I.P. Code but has been released on
probation under S. 4 (1) of the Probation of
Offenders Act, S. 12 does not debar the authority
to take into account the said conviction of the
said Government employee for dismissing him
from service: Harichand v. Director of School
Education (1998) 2 S.C.C. 383."

20. Offence under Section 323 IPC is not
an offence of moral turpitude, therefore in the
light of Hon'ble Apex Court it appears that a
person released on probation of good conduct
will not incur any disqualification due to
conviction recorded by trial court as provided
under Section 12 of Probation of Offenders Act,
1958.

21. In the light of the foregoing discussion
and observations the revision is partly allowed
in the manner as stated above.
----------
(2023) 9 ILRA 133
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 10.08.2023

BEFORE

THE HON'BLE RAM MANOHAR NARAYAN
MISHRA, J.

Criminal Revision No. 1077 of 2022

Anil Kumar (Engineer) ...Revisionist
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Revisionist:
134 INDIAN LAW REPORTS ALLAHABAD SERIES
Sri Dhanraj Singh Yadav, Sri Abhishek
Mayank, Sri Akhilesh Kumar Ojha, Sri
Dhananjay Kumar, Sri Girraj Singh, In
Person, Sri Naveen Kumar Yadav, Sri Satya
Dheer Singh Jadaun

Counsel for the Opposite Parties:
G.A.

(A) Criminal Law - Revision - Indian Penal
Code, 1860 - Sections 342, 376, 511 & 506
- The Code of Criminal Procedure, 1973 -
Section 161 &164 - The Protection of
Children From Sexual Offences Act, 2012 -
Section 5/6 - accused can be discharged
where no connection is found between the
accused and commission of crime - right
to seek discharge by an accused is
valuable statutory right and same cannot
be taken lightly by the trial court -
truthfulness, sufficiency and acceptability
of
the
material
produced
can
be
determined only at the stage of trial -
Framing of charge is an exercise of
jurisdiction by trial court in terms of
Section 228 of the Code, unless the
accused is discharged under Section 227
of the Code. (Para - 8 )

(B) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 227 - Judge
while
considering
the
question
of
framing of charge under Section 227
Cr.P.C. has undoubted power to sift and
weigh evidence for the limited purpose
of finding out whether or not a prima
facie case against the accused has been
made out - Once the charges are framed,
the accused is put to trial and thereafter
the accused may either be acquitted or
convicted, but he cannot be discharged -
defence of the accused is not looked into
at the stage when the accused seeks to
be discharged under Section 227 Cr.P.C.
(Para -10,11)

Case involves a missing 10-year-old girl who
was held hostage by a revisionist - intending to
commit rape - accused was charged after
investigation - discharge application - rejected -
trial court framed charges against accused -
evidence recorded - three witnesses of fact
examined - hence revision.(Para - 6,11)

HELD:-Trial
court
dismissed
revisionist's
application of discharge, citing victim's support
of the F.I.R. version under Sections 161 and 164
Cr.P.C. Victim, a minor aged around 10 years at
the time of the incident in 2017, cannot be
considered a material witness. Revisionist's
grounds and documents can be brought before
the trial court during the defense evidence
stage, as the trial is ongoing.(Para - 12)

Revision dismissed. (E-7)

List of Cases cited:

1. Madhu Limaye Vs St. of Maha. , (1977) 4 SCC
551

2. Ratilal Bhanji Mithani Vs The St. Of Maha. ,
1979 SC 94

3. Stree Atyachar Virodhi Parishad Vs Dilip
Nathumal Chordia , 1989 SCC (1715)

4. St. Of Orissa Vs Debendra Nath Padhi , AIR
2005 SC 359

(Delivered by Hon'ble Ram Manohar
Narayan Mishra, J.)

1. As per office report dated
27.05.2022, notice was served on opposite
party No. 2, as per report of C.J.M.
Ghaziabad, but none appeared on his behalf
to contest present revision.

2. Revisionist appeared in-person
before the Court.

3.

Heard
the
submissions
of
revisionist learned A.G.A. for the State and
perused the record.

4. Instant criminal revision has been
preferred against order dated 02.03.2022,
passed by learned Special Judge (POCSO
Act) Court No. 2/Additional Sessions
9 All. Anil Kumar (Engineer) Vs. State of U.P. & Ors.
135
Judge, District- Ghaziabad in Criminal
Case No. 162 of 2017, arising out of Case
Crime No. 483 of 2017, under Sections
342, 376, 511, 506 I.P.C. and Section 5/6
POCSO Act, P.S. Modi Nagar, District-
Ghaziabad, whereby the learned court
rejected the application 14Kh by impugned
order wherein the revisionist-accused had
prayed for his discharge under Section 227
Cr.P.C. The F.I.R. has not been lodged in
the case by parents of the victim but by one
Brijendra Kumar Tomar, Fufa of the victim.
The case has been concocted against the
revisionist by said uncle of victim, the
victim was around 8 years of age at the
time of incident and presently, she is
around 15 years, in fact, she has been used
by her said uncle to depose against the
revisionist during investigation. But after
dismissal of discharge application by
impugned order, case was fixed for
evidence and the victim in her statement as
P.W. 3 recorded on 03.03.2023 by trial
court, has deposed that at the time of
incident, she was of 9 years of age, the
incident occurred on 17.07.2017 at 12:00
hours in the noon. She had not identified
the accused person in the court, she also
stated that he did nothing against her, he
never threatened her with life, her medicolegal examination was conducted at the
instance of police. She was confronted with
statement
under
Section 164 Cr.P.C.
wherein she acknowledged her signature
and photograph. The witness has been
declared
hostile
at
the
instance
of
prosecution. He next submitted that learned
court below framed charges against him
initially under Sections 342, 376, 511, 506
I.P.C. and Section 5/6 POCSO Act on
19.01.2021. This Court vide order dated
07.12.2021 in Application under Section
482 No. 12347 of 2021 set aside order
dated 19.01.2021 for framing of charge and
directed the learned trial court to pass a
speaking order on the application filed on
behalf
of
the
accused
persons
on
12.01.2021. But learned trial court has
dismissed the discharge application vide
impugned order dated 02.03.2022 without
considering the grounds taken in said
application. The informant side engaged in
Maar Peet with the revisionist and
damaged the car of the revisionist and got a
false F.I.R. lodged by misusing data of
another person, only to save themselves.
There are material contradiction in the
statement of victim recorded under Section
161 Cr.P.C. and statement under Section
164 Cr.P.C. during investigation. Her
medico-legal examination report did not
supported the prosecution version. On the
plot of revisionist two gates are situated
and if one gate is closed children/persons
can easily get access into his plot through
second gate. The complainant has framed
the victim to depose against the applicant
during investigation by issuing threat to
her, the present case has been lodged at the
instance of the complainant only to extort
money from the revisionist. Learned trial
court while dismissing application for
discharge has not applied its judicial mind,
no case is made out against the revisionist
for which he has been charged by the court
below, therefore, the impugned order dated
02.03.2022 is liable to be set aside and
revisionist may be discharged of those
charges.

5. Per contra, learned A.G.A., Sri
Deepak Kapoor, submitted that there are
ample
evidence
collected
during
investigation against the revisionist on the
basis of which charge has been framed
against the revisionist and discharge
application was dismissed by learned court
below by impugned order, the victim has
stated complicity of the accused revisionist
for said charges in her statement under
136 INDIAN LAW REPORTS ALLAHABAD SERIES
Section 161 and 164 Cr.P.C. and for the
purpose of framing of charge, the evidence
and material collected during investigation
can only be relied upon. An opinion
regarding merits of the case on basis of
some evidence adduced during trial after
framing of charge is not warranted in the
present revision, as the statement of P.W.3
has
been
recorded
after
passing
of
impugned order and during trial. There is
no illegality or irregularity in impugned
order passed by learned court below and
revision should be dismissed.

6. In present case, F.I.R. was lodged
by one Brijendra Kumar against revisionist
on 17.07.2017 under Sections 342, 376,
511, 506 and Section 5/4 POCSO Act at
P.S.- Modinagar, District- Ghaziabad with
averment that his daughter aged around 10
years got missing since 02:00 P.M. and in
course of her search, he came to know that
his daughter has been kept as hostage by
accused, who had detained her for 5 hours
in his house by gagging her mouth by
clothes and tethering her hands and feet
with intention to commit rape on her. When
the informant came to know about the
incident, he knocked at the door of the
house of accused and found his daughter in
frightened condition. The statement of
victim
was
recorded
on
18.07.2017,
wherein she supported F.I.R. version and
she stated that her neighbouring uncle Anil,
took her at his home by closing her mouth
and got her sit on a chair by tethering her
hands and feet, however, he freed her from
bondage and laid her down on bed. He
intended to commit some wrong act with
her. One Chanchal Madam had seen this,
but she was not allowed to come out. The
incident was further elaborated by the
victim in her statement under Section 164
Cr.P.C.
recorded
by
Magistrate
on
24.07.2017, wherein she made specific
allegations against the accused regarding
attempt to commit rape on her, although
there are some factual variations in both the
statements. Kumari Chanchal, the witness
of fact also corroborated some factual
aspects of the case revealed in medico-legal
examination report of the victim dated
18.07.2017. It is stated that Anil had
wrongly confined the victim and molested
her. However, in medico-legal examination
report, no external injury was found on her
person. The accused was chargesheeted
after investigation under Sections 342, 376,
511, 506 I.P.C. and Section 5/4 POCSO
Act, on the basis of evidence collected
during investigation. The case of accused is
that there is property dispute between
accused and the informant, who is relative
of the victim and got false F.I.R. against the
accused with a view to exert pressure on
accused and to grab the disputed property.
The learned trial court framed charge
against the accused after rejection of
discharge application by impugned order.
The informant is husband of sister of the
father of victim. In present case, trial had
already commenced and the victim has
been examined in which she has not
supported prosecution case and turned
hostile. The revisionist has also alleged that
the victim and complainant used to demand
illegal money by adopting blackmailing
tactics against the revisionist for settlement
of the case before court below and also
threatened him that the revisionist has some
audio recording in support of this version
as stated in supplementary affidavit dated
24.03.2022.
The
audio
recording
of
conversation of the victim and appellant
exculpates him.The revisionist has filed
various letters, documents and photographs
in support of his version that he has been
falsely framed by the victim at the instance
of the informant due to personal grudge
against the accused. The informant has
9 All. Anil Kumar (Engineer) Vs. State of U.P. & Ors.
137
stated in his evidence that he had adopted
the victim as he was not having any
daughter. The date of birth of victim is
24.11.2009, the parents of victim are alive.
The victim was examined as P.W. 3 by the
trial court.

7.

In
instant
case
discharge
application was moved by the revisionist
before court below under Section 227 of
Cr.P.C. which reads as under:

If, upon consideration of the
record of the case and the documents
submitted therewith, and after hearing the
submissions of the accused and the
prosecution in this behalf, the Judge
considers that there is not sufficient ground
for proceeding against the accused, he
shall discharge the accused an record his
reasons for so doing.

8. The discharge application is
allowed usually in those cases where there
is
no
evidence
collected
during
investigation, which in any manner connect
the accused with the commission of alleged
crime. No charge can be framed in absence
of
even
a
prima
facie
material
(oral/documentary) being adduced by the
prosecution in the charge-sheet. In other
words, the accused can be discharged
where no connection is found between the
accused
and
commission
of
crime.
Undoubtedly, the right to seek discharge by
an accused is valuable statutory right and
same cannot be taken lightly by the trial
court. The accused can also be discharged
in frivolous cases with a view to nip in a
bud in such cases by discharging the
accused before trial, because a litigant,
caught in a frivolous case, loses a self of
himself in the legal battle to protect himself
and his reputation. This would not only
save judicial time but also cost of public
money and would also protect the right to
liberty enshrined under Article 21 of the
Constitution of India. However, this is
settled law that truthfulness, sufficiency
and acceptability of the material produced
can be determined only at the stage of trial.
Framing of charge is an exercise of
jurisdiction by trial court in terms of
Section 228 of the Code, unless the accused
is discharged under Section 227 of the
Code.

9. Hon'ble Apex Court in leading case
of
Madhu
Limaye
v/s
State
of
Maharashtra (1977) 4 SCC 551 held that
the orders framing charges or refusing
charges are not interlocutory or final and
thus are not affected by section 397(2) of
Cr.P.C. The High Court should invoke the
same carefully and judiciously for the
effective administration of the criminal
justice system. The High court must
prevent the abuse of the process of law
especially when the material and on record
evidence show a brazen attempt to
persecute an innocent. Trial court while
addressing a discharge application must sift
through the evidence and find if there are
sufficient
grounds
to
suspect.
It
is
imperative for the High Court in criminal
revision to revisit the case while deciding
the revision petition filed against an order
rejecting discharge application by the trial
court.

10. It is settled law by catena of
judicial authority that the Judge while
considering the question of framing of
charge under Section 227 Cr.P.C. has
undoubted power to sift and weigh
evidence for the limited purpose of finding
out whether or not a prima facie case
against the accused has been made out. The
test to determine prima facie case would
depend upon facts of each case, where the
138 INDIAN LAW REPORTS ALLAHABAD SERIES
materials placed before the Court disclose
grave suspicion against the accused which
has not been properly explained, the Court
will be, fully justified in framing a charge
and proceeding with thetrial. The court
cannot act merely as a Post-office or
mouthpiece of the prosecution, but has to
consider the broad probabilities of the case,
the total effect of the evidence and the
documents produced before the Court, any
basic infirmities etc., however, at this stage
there cannot be a roving enquiry into the
pros and cons of the matter and weigh the
evidence as if he was conducting a trial. If
on the basis of the material on record, the
court could form an opinion that the
accused might have committed the offence,
it can frame the charge, though for
conviction the opinion is required to be
proved beyond reasonable doubt that the
accused has committed the offence. At the
time of framing of the charges, the
probative value of the material on record
cannot be gone into but before framing a
charge, the court must apply its judicial
mind on the material placed on record and
must be satisfied that the commission of
offence by the accused was possible. Even
at the stage of framing of charge, the
sufficiency of material for the purpose of
conviction is not required to be gone into
and a prayer of discharge can be allowed
only if, the court finds that the material is
wholly insufficient for purpose of trial. It
is also a settled proposition of law that
even when there are materials raising
strong suspicion against an accused, the
court will be justified in rejecting a prayer
for
discharge
and
in
granting
an
opportunity to the prosecution to bring on
record the entire evidence in accordance
with law, so that case of both the sides
may be considered appropriately on
conclusion of trial.

11. In the present case, the order
passed by learned trial court dismissing
application of the accused-revisionist for
discharge, has been assailed through filing
instant criminal revision, whereas the
factual position is that after dismissal of
discharge application on 07.12.2021, the
trial court framed the charges against the
accused revisionist and evidence has been
recorded. Inasmuch as three witnesses of
fact have already been examined in the
case. Hon'ble Supreme Court in Ratilal
Bhanji
Mithani
vs
The
State
Of
Maharashtra 1979 SC 94, held that after
framing
of
charge,
the
question
of
discharge does not arise. The same view
was taken in the case of Stree Atyachar
Virodhi Parishad vs Dilip Nathumal
Chordia 1989 SCC (1715). Once the
charges are framed, the accused is put to
trial and thereafter the accused may either
be acquitted or convicted, but he cannot be
discharged. Discharge post framing of
charge is not recognized in the Criminal
Procedure Code. So far as the electronic
and documentary evidence propounded by
the revisionist in support of his claim of
innocence and false implication by the
informant is concerned, Hon'ble Supreme
Court in State Of Orissa vs Debendra
Nath Padhi AIR 2005 SC 359, held that
defence of the accused is not looked into at
the stage when the accused seeks to be
discharged under Section 227 Cr.P.C. "The
record of the case", used in Section
227CrPC, is to be understood as the
documents and the articles, if any, produced
by the prosecution. The Code does not give
any right to the accused to produce any
document at the stage of framing of the
charge. At the stage of framing of the
charge, the submission of the accused is to
be confined to the material produced by the
police.
9 All. Amit Goel & Ors. Vs. State of U.P. & Ors.
139

12. On the basis of foregoing
discussions and judicial authorities, I find
no fault with the finding and reasoning of
learned trial court while dismissing the
application of discharge moved by the
revisionist vide impugned order dated
02.03.2022. The victim has supported F.I.R.
version under Sections 161 and 164
Cr.P.C., who is admittedly minor and was
aged around 10 years at the time of incident
which dates back to year 2017. The sworn
testimony of the victim before the Court
during trial as P.W. 3, in which she has
exculpated
the
accused
cannot
be
considered as a material, which was
available
before
the
Court
while
considering the discharge application as
provided under Section 227 of the Code.
The grounds taken by the revisionist before
this Court and the documents relied upon
can be brought before trial court by the
accused-revisionist at the stage of defence
evidence as trial is in progress. There is no
irregularity, illegality and perversity in
impugned order passed by learned court
below. The revision is devoid of merits and
deserves to be dismissed.

13. Accordingly, the revision stands
dismissed with above observations.
----------
(2023) 9 ILRA 139
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.08.2023

BEFORE

THE HON'BLE ANJANI KUMAR MISHRA, J.
THE HON'BLE MS. NAND PRABHA SHUKLA, J.

Criminal Misc. Writ Petition No. 5098 of 2023

Amit Goel & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Ms. Shreya Gupta, Sri Ravi Anand Agarwal

Counsel for the Respondents:
G.A.

(A) Criminal Law - Indian Penal Code,
1860 - Section 425 - Mischief , The
Prevention of Damages to Public Property
Act, 1984 - Sections 3 - Mischief causing
damage to public property, Section 4 -
Mischief
causing
damage
to
public
property by fire or explosive substance,
The Revenue Code, 2006 - Section 67 -
Power
to
prevent
damage,
misappropriation and wrongful occupation
of Gram Panchayat property - No bar for
the institution and prosecution of Civil and
Criminal proceedings regarding an act, if
both have the mandate of law - In any
case, an act can given rise to both criminal
and civil liability and therefore, both civil
and criminal proceedings can be resorted
to simultaneously.(Para -10 )

Quashing of FIR - contention - FIR malicious -
constructions raised over land - not evacuee
property - not enemy property - under control
of Custodian - Assistant Custodian Enemy
Property U.P. and Uttarakhand declared - plot
no.835 and plot no.843 as non-enemy
property - FIR also identifies two plots,
including Plot number 842, which is not
covered by order. (Para - 2,3,4,8)

HELD:- Petitioners not entitled to any benefit
under judgments cited. No relief can be
granted. Not established that plot no.842 over
which constructions are being raised as per the
allegations in the FIR, is not enemy property.
(Para -9,11 )

Writ Petition dismissed. (E-7)

List of Cases cited:
1. Ashok Kumar & anr. Vs St. of U.P., U/S 482
No. 20181 of 2021
2. Munsi Lal & anr. Vs St. of U.P. & anr., U/S
482 No. 9964 of 2020