# Avanish Chandra Srivastava Revisionist v. State of U.P. & Anr

- **Citation:** (2026) 1 ILRA 850
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2026-01-08
- **Case number:** Criminal Revision No. 1467 of 2024
- **Bench:** Chawan Prakash
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/avanish-chandra-srivastava-revisionist-v-state-of-u-p-anr-54017
- **Pages:** 8

## Text

850 INDIAN LAW REPORTS ALLAHABAD SERIES
to determine a prima facie case would naturally be dependent upon the facts of each case and it is
difficult to lay down rule of universal application. It was further observed that if the Judge is
satisfied that the evidence produced gives rise to some suspicion but not grave suspicion, he would
be fully within his right to discharge the accused and at the same time, the Court cautioned that a
roving inquiry into the pros and cons of the case by weighing the evidence as if he was conducting
the trial, is not expected or even warranted at this stage. (emphasis by Court)

39. In view of the above observations made by the Hon"ble Supreme Court, this Court is of
the view that suspicion/grave suspicion/presumption did exist which obliged the Court to frame
charge U/S 306 I.P.C. and, hence, considering the judicial pronouncements referred to hereinabove,
it cannot be said that framing of charge by the learned Sessions Court is faulty.

40. As regard the fact that the widow of the deceased declined twice to get her statement
recorded and then got the same recorded and uttered things in one or the other way, the same not
being relevant at this stage and required to be seen during the course of trial when the statements
recorded during the course of investigation would be required to be corroborated/not corroborated
by other evidence, the same not being a significant aspect in favour of the applicant at this stage,
the argument advanced on that line also stands discarded. Similar is the position with regard to the
initial application dated 02.03.2020 submitted by the widow before the Incharge Police StationKotwali and it is for the trial court to put the widow on trial and permit her cross-examination on
that aspect and, then, form an opinion eitherway.

41. For all the aforesaid reasons, this Court does not find any error in the orders dated
22.10.2021 and 24.01.2024.

42. The revision has no merit and is, accordingly, dismissed. The interim order dated
18.12.2025 stands vacated.

43. It is made clear that any observation made in this judgment is confined to the stage to
examining the challenge laid to the order taking cognizance and the one framing charge and may
not be treated as any expression of opinion on merits of the entire case which shall be the sole
prerogative of the trial court during the course of trial.
----------
(2026) 1 ILRA 850
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 08.01.2026

BEFORE

THE HON'BLE CHAWAN PRAKASH, J.

Criminal Revision No. 1467 of 2024

Avanish Chandra Srivastava ...Revisionist
Versus
State of U.P. & Anr. ...Opposite Parties
1 All. Avanish Chandra Srivastava Vs. State of U.P. & Anr.
851
Issue for Consideration
Issue pertains to whether, at the stage of considering an application for discharge u/s 239 Cr.P.C., the
Magistrate is confined to the police report and documents submitted u/s 173 Cr.P.C., and whether the
existence of a prima facie case or strong suspicion on the basis of the prosecution material alone justified
rejection of discharge application.

Headnotes
Indian Penal Code, 1860 - ss. 409, 419, 420, 467, 468, 471, 111, 120B - Code of Criminal
Procedure, 1973 - ss. 227, 228, 239, 240, 173, 161 - Discharge application - Rejection of -
Framing of Charge - Scope of - The instant criminal revision was filed by revisionist, assailing the
order dated 07.02.2024 passed by learned Chief Judicial Magistrate, whereby his application for
discharge was rejected - The prosecution case originated from an F.I.R. lodged on 29.03.2004,
alleging that after being relieved from his post in the office of District Panchayat Raj Officer, the
revisionist failed to hand over charge and relevant rural development records and had prepared
certain receipt/bill vouchers by forging signatures - Upon investigation, statements were
recorded, documentary evidence was collected, and a charge-sheet dated 24.12.2006 was
submitted against the revisionist and a co-accused under various sections of I.P.C., whereupon
cognizance was taken on 21.02.2007 - The revisionist, asserting that he had duly handed over
charge and that the allegedly missing files were later recovered from the custody of co-accused,
and further relying upon a departmental inquiry report dated 25.08.2023 exonerating him,
moved a discharge application, however, the learned Magistrate, confining consideration to the
police report and documents submitted u/s 173 Cr.P.C., rejected the application.(E-11)

Held: As per the mentioned sections, in case the Sessions Court did not discharge the accused as per s. 227
Cr.P.C. or the learned Magistrate did not found any ground to discharge the accused u/s 239 Cr.P.C., then
unless the order rejecting the discharge application was challenged and stayed by the Higher Court, the
Sessions Court and the Magistrate Courts are statutory bound to frame charges against the accused u/s 228
Cr.P.C. and 240 Cr.P.C. respectively - It is a settled provision of law that merely filing of criminal revision or
criminal appeal against any order, does not amount that the proceedings of the said Court, has been stayed -
Upon considering the facts of instant case and on taking into consideration the order passed by learned
Magistrate, the Court found that the learned Magistrate has not committed any illegality in rejecting the said
discharge application - Accordingly, the criminal revision is dismissed. [Paras 23, 24]

Case Law Cited
Nil

List of Acts
Code of Criminal Procedure, 1973; Indian Penal Code, 1860

List of Keywords
Criminal Revision; Discharge application; s. 239 Cr.P.C.; First Information Report; ss. 409, 419, 420, 467, 468,
471, 111, 120B I.P.C.; Investigation; Investigating Officer; Statements u/s 161 Cr.P.C.; Documentary evidence;
Relevant papers of Rural Development; Disciplinary proceedings; Receipt/Bill voucher; Forged signature;
Charge-sheet; Cognizance; Police report u/s 173 Cr.P.C.; Groundless charge; Prima facie case; Strong
suspicion: Framing of charge; ss. 227, 228, 239 and 240 Cr.P.C.; Warrant case; Departmental inquiry;
Exonerated; Statutory duty to frame charges; Stay of further proceedings; Dismissal of revision; Circulation of
judgment to all District Courts.

Case Arising From
REVISIONAL JURISDICTION: Criminal Revision No. - 1467 of 2024

From the Judgment and Order dated 07.02.2024, passed by the learned Chief Judicial Magistrate, Kaushambi
in Case Crime No. 28 of 2004
852 INDIAN LAW REPORTS ALLAHABAD SERIES
Appearances for Parties
Advs. for the Revisionist:
Neeja Srivastava, Ritesh Singh, Suresh Singh, Sr. Advocate, Veerendra Singh

Adv. for the Opposite Party:
G.A.

(Delivered by Hon'ble Chawan Prakash, J.)

1. Heard Mr. V. P. Srivastava, learned Senior Advocate assisted by Mr. Veerendra Singh,
learned Counsel for the revisionist and learned A.G.A. for the State.

2. The instant criminal revision has been filed against the order dated 07.02.2024, passed by
the learned Chief Judicial Magistrate, Kaushambi, whereby the discharge application moved by the
revisionist, in Case No. 286 of 2007, State v. Avanish Chandra Srivastava and others, under
Sections 409, 419, 420, 467, 468, 471, 111, 120B I.P.C., arising out of Case Crime No. 28 of 2004,
registered at Police Station Manjhanpur, District Kaushambi, has been rejected.

3. It is submitted by Mr. V. P. Srivastava, learned Senior Advocate that on 29.03.2004,
opposite party no.2 lodged an F.I.R., which was registered as Case Crime No. 28 of 2004, under
Section 409 I.P.C, Police Station Manjhanpur, District Kaushambi with the allegation that the
revisionist has not handed over the charges and also has not submitted relevant papers of rural
development to the concerned Officer, after being relieved. It was further alleged that he prepared
some receipt/bill voucher after making forged signature.

4. On 31.12.1981, the revisionist was appointed as Junior Clerk in the Office of the District
Panchayat Raj Officer, Mirzapur. In the month of April, 1982, he was transferred from District
Mirzapur and he joined the same post in Block Manjhanpur (then District Allahabad). He was
promoted to the post of Accountant in the year 1996 and in the year 1997 he was transferred to
District Kaushambi and attached in the office of the District Development Officer, Kaushambi.
Ultimately, in the year 2000, he was attached with the office of the District Panchayat Raj Officer,
Kaushambi till 17.12.2003. Thereafter, he was relieved from that office and was transferred to the
office of Block Development Officer Sarsawa, District Kaushambi and then on 31.12.2022, he
retired after attaining the age of superannuation.

5. After registration of F.I.R., the investigation was proceeded and the Investigating Officer
interrogated the first informant Mohan Singh Dohare, Kamal Narayan Singh and Chandrama
Prasad Pandey. During investigation, the Investigating Officer collected the applications send by
one Indra Pal Sonkar mentioning in it that two files were not handed over to him. The Investigating
Officer recorded supplementary statement of one Chandrama Prasad Pandey and the first
informant. Thereafter, he collected affidavit of Dr. Vinay Kumar Upadhyay and recorded his
statement. He also recorded the statements of co-accused Indra Pal Sonkar. In the meanwhile, the
Investigating Officer was changed and new Investigating Officer started investigating the matter on
28.05.2006.
1 All. Avanish Chandra Srivastava Vs. State of U.P. & Anr.
853

6. It is further submitted that the allegations made against the revisionist are totally incorrect
and baseless. In the investigation, nothing was found against the revisionist but co-accused Indra
Pal Sonkar was found to be guilty. The revisionist in his statement has clearly stated that he was
transferred from his post and he handed over the charges to the District Panchayat Raj Officer,
Kaushambi on 17.12.2003, including files in question. He also handed over Rs. 11,392/- and Rs.
40,000/- in cash to him. It is further submitted that the Investigating Officer filed a charge-sheet on
24.12.2006 against the revisionist and co-accused Indra Pal Sonkar under Sections 409, 419, 420,
467, 468, 471, 111, 120B I.P.C and the learned Magistrate, took cognizance on 21.02.2007. During
investigation, it became quite clear that the said two files, which were stated to have been missing,
was received by co-accused Indra Pal Sonkar. Thus, no offence against the revisionist is made out.
The files in question were found in almirah of Indra Pal Sonkar when it was opened by the expert
before the official concerned. A disciplinary proceedings was also initiated against the revisionist
in which he was found innocent and ultimately exonerated on 25.08.2023 on the basis of the fact
that the missing files were found in almirah of Indra Pal Sonkar.

7. The next contention of the learned Counsel for the revisionist is that the revisionist had filed
an application under Section 482 Cr.P.C., being Application U/s 482 No. 41651 of 2023, which
was disposed of by this Court vide order dated 29.11.2023 and a liberty was given to the revisionist
to file a discharge application before the Trial Court. The revisionist filed a discharge application
before the learned Chief Judicial Magistrate, Kaushambi by submitting all the documents but the
learned Magistrate did not consider the said application as well as supporting documents and
rejected the same. The learned Magistrate has committed illegality in rejecting the said application
and the said order is liable to be set aside and the revision may be allowed.

8. Per contra, learned Counsel for opposite party no.2 and learned A.G.A. have stated that the
learned Magistrate has not committed any illegality in passing the impugned order because the
revisionist neither handed over the charges nor submitted the relevant papers of Rural Development
to the concerned Officer after being relieved and he prepared some receipt/ bill voucher by a forged
signature. During investigation, the Investigation Officer had recorded the statement of the
witnesses and also interrogated the matter in depth. He also collected some documents and filed a
charge-sheet against the revisionist. The learned Magistrate took cognizance on the charge-sheet.
The revisionist had also filed an application under Section 482 Cr.P.C. before this Court for
quashing the charge-sheet dated 24.12.2006, but this Court disposed of that application by stating
that a prima facie offence is made out against the revisionist. The revisionist has filed a discharge
application with additional documents, which are not the part of the charge-sheet. At the time of
hearing on discharge application, learned Magistrate has taken into consideration the Police report
and the documents sent with it under Section 173 Cr.P.C. The documents or the defence of the
accused cannot be taken into consideration while passing an order on discharge application. Thus,
the learned Magistrate has not committed any illegality in passing the impugned order and the
revision is liable to be dismissed.

9. As per the fact of the present case, a First Information Report was registered as Case Crime
No. 28 of 2004 under Section 409 I.P.C. at Police Station Manjhanpur District Kaushambi with an
allegation that the revisionist has not handed over the charges and also not submitted the relevant
papers of the Rural Development to the concerned Officer after being relieved. It was further
854 INDIAN LAW REPORTS ALLAHABAD SERIES
alleged in the F.I.R. that the revisionist has prepared some receipt/bill voucher after making forged
signatures. The Investigating Officer recorded the statement of the witnesses under Section 161
Cr.P.C. He has also interrogated the revisionist and co-accused. During investigation, he collected
certain documents and after completion of investigation a charge-sheet was filed on 24.12.2006,
under Sections 409, 419, 420, 467, 468, 471, 111, 120B I.P.C, in which the learned Magistrate took
cognizance on 21.02.2007.

. The revisionist has filed a discharge application before the Trial Court annexing with it the
report of disciplinary inquiry dated 25.08.2023, in which he was exonerated. The learned
Magistrate has dismissed the said application stating that at the time of passing of an order on
application under Section 239 Cr.P.C., the Police report and the documents annexed along with it
would be taken into consideration.

11. Section 239 Cr.P.C. reads as under:

"239. When accused shall be 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."

12. As per aforesaid Section, if, upon considering the police report and the documents sent
with it under section 173 Cr.P.C. 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, he shall discharge the accused, it means at the
time of passing of an order on application filed under Section 239 Cr.P.C. only the police report
and the document submitted along with it would be taken into consideration.

13. In respect of warrant cases triable by Magistrates, instituted on police report, Sections 239
Cr.P.C. and 240 Cr.P.C. are the relevant statutory provisions. Section 239 Cr.P.C. requires the
Magistrate to consider on the Police report and the documents sent with it under Section 173, and,
if necessary, examine the accused after giving him an opportunity of being heard, if Magistrate
considers the charge against the accused to be groundless, the accused is liable to be discharged by
recording the reason thereof.

14. As per settled provision of law, at the stage of framing of charge, it is not obligatory for
the Judge to consider, in any detail and weigh in a sensitive balance, whether the facts, if proved,
would be incompatible with the innocence of the accused or not. At that stage, the Court is not to
see whether there is sufficient ground for conviction of the accused or whether the trial is sure to
end in his conviction. Strong suspicion, at the initial stage of framing of charge, is sufficient to
frame the charge and at that event, it is not open to the Court to say that there is no sufficient
ground for proceeding against the accused.

15. It is worth mentioning that the Code contemplates discharge of the accused by the Court of
Sessions under Section 227 Cr.P.C. in a case triable by it; cases instituted upon a police report are
1 All. Avanish Chandra Srivastava Vs. State of U.P. & Anr.
855
covered by Section 239 Cr.P.C. and cases instituted otherwise then on a police report are dealt with
in Section 245 Cr.P.C. From a reading of the aforesaid sections it is evident that they contain
somewhat different provisions with regard to discharge of an accused. Under Section 227 of the
Code, the Trial Court is required to discharge the accused if it considers that there is not sufficient
ground for proceeding against the accused. However, discharge under Section 239 Cr.P.C. can be
ordered when the Magistrate considers the charge against the accused to be groundless. The power
to discharge is excercisable under Section 245(1) Cr.P.C. when, the Magistrate considers, for
reason to be recorded that no case against the accused has been made out which, if unrebutted,
would warrant his conviction.

16. Section 227 Cr.P.C. and Section 239 Cr.P.C. provide for discharge before the recording of
the evidence on the basis of police report, the documents sent along with it and examination of the
accused after giving an opportunity to the parties to be heard. However, the stage of discharge
under Section 245 Cr.P.C., on the other hand, is reached only after the evidence referred in Section
244 Cr.P.C. has been taken.

17. Thus, there is difference in the language employed in these provisions. But,
notwithstanding these differences, and whichever provision may be applicable, the Court is
required at this stage to see that there is a prima facie case for proceedings against the accused.

18. It is also settled principle of law that the Magistrate, at the stage of framing charges, has to
see whether the facts alleged and sought to be proved by the prosecution prima facie disclose the
commission of offence on general consideration of the material placed before him by the
investigating Officer. It is well settled that at the stage of framing of charge, the defence of the
accused cannot be put forth. In other words, it can be said that at the time of framing of charge or
taking cognizance, the accused has no right to produce any material.

19. In the present case, an F.I.R. as Case Crime No. 28 of 2004 was registered against the
revisionist with an allegation that the revisionist has not handed over the charges and also has not
submitted relevant papers of rural development to the concerned Officer, after being relieved. It
was further alleged that he prepared some receipt/bill voucher after making forged signature.
During investigation, the Investigating Officer recorded the statement of the witnesses under
Section 161 Cr.P.C. and also collected the documentary evidence. After completion of
investigation, a charge-sheet was filed on 24.12.2006 against the revisionist and co-accused Indra
Pal Sonkar under Sections 409, 419, 420, 467, 468, 471, 111, 120B I.P.C. and the learned
Magistrate took cognizance on 21.02.2007.

20. At the time of deciding the discharge application, the Court has to see whether a prima
facie case against the accused is made out or not. In the present case, a prima facie case is made out
against the revisionist. Moreover, the departmental inquiry, in which the revisionist was stated to be
exonerated, was conducted after filing of the charge-sheet and thus, the inquiry report cannot be
taken into consideration at the time of deciding the discharge application.

21. Before imparting the order, it is relevant to mention here that in the present case the
discharge application filed by the accused was dismissed by the learned Chief Judicial Magistrate,
856 INDIAN LAW REPORTS ALLAHABAD SERIES
Kaushambi vide order dated 07.02.2024 but no charge has been framed by the concerned Court
against the accused persons till date. This Court has come across with a number of criminal
revisions in which the learned Trial Courts, while dismissing the application filed by the accused
seeking discharge of any case, are fixing the case for framing of charges after about one month and,
in some other cases, the Trial Courts are not framing charges against the accused persons on the
pretext that criminal revisions are pending before High Court against the impugned order. This
Court has observed in many cases that the Trial Court usually defer final hearing of the cases as
soon as the parties prefer an appeal, revision or writ before the superior court, even if no order is
passed by the the superior Courts granting stay of further proceedings.

22. It is relevant to reproduce here Sections 227, 228, 239 and 240 Cr.P.C., which reads as
under:

"227. Discharge.-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 and record his reasons for so doing.

228. Framing of charge.-(1) If, after such consideration and hearing as aforesaid, the
Judge is of opinion that there is ground for presuming that the accused has committed an offence
which?

(a) is not exclusively triable by the Court of Session, he may, frame a charge against the
accused and, by order, transfer the case for trial to the Chief Judicial Magistrate or any other
Judicial Magistrate of the first class and direct the accused to appear before the Chief Judicial
Magistrate, or, as the case may be, the Judicial Magistrate of the first class, on such date as he
deems fit, and thereupon such Magistrate shall try the offence in accordance with the procedure for
the trial of warrant-cases instituted on a police report;

(b) is exclusively triable by the Court, he shall frame in writing a charge against the
accused.

(2) Where the Judge frames any charge under clause (b) of sub-section (1), the charge
shall be read and explained to the accused and the accused shall be asked whether he pleads guilty
of the offence charged or claims to be tried.

239. When accused shall be 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.

240. Framing of charge.?(1) If, upon such consideration, examination, if any, and
hearing, the Magistrate is of opinion that there is ground for presuming that the accused has
committed an offence triable under this Chapter, which such Magistrate is competent to try and
1 All. Rajesh Kukreja Vs. State of U.P. & Anr.
857
which, in his opinion, could be adequately punished by him, he shall frame in writing a charge
against the accused.

(2) The charge shall then be read and explained to the accused, and he shall be asked
whether he pleads guilty

of the offence charged or claims to be tried."

23. As per the above mentioned sections, in case the Sessions Court did not discharge the accused as
per Section 227 Cr.P.C. or the learned Magistrate did not found any ground to discharge the accused under
Section 239 Cr.P.C., then unless the order rejecting the discharge application was challenged and stayed
by the Higher Court, the Sessions Court and the Magistrate Courts are statutory bound to frame charges
against the accused under Section 228 Cr.P.C. and 240 Cr.P.C. respectively. It is a settled provision of law
that merely filing of criminal revision or criminal appeal against any order, does not amount that the
proceedings of the said Court, has been stayed.

24. Upon considering the facts of the present case and on taking into consideration the order passed
by the learned Magistrate, this Court is of opinion that the learned Magistrate has not committed any
illegality in rejecting the said discharge application. Hence, this revision is liable to be dismissed.

25. Accordingly, this revision is dismissed.

26. Let a copy of this judgment be circulated amongst all the District Courts by the Registrar
(Compliance) with a direction that the learned District Judges shall impress upon all the Judicial Officers
in the Judgeship that in case any discharge application is dismissed by the Trial Court then unless the order
rejecting the discharge application is challenged and stayed by the High Court, the Trial Courts are under
statutory duty to frame charges against the accused and merely filing of an appeal, revision or even a writ
petition against an order or judgment shall not be considered any valid or justifiable ground to say the
proceedings of a case unless the superior Court grants stay order of further proceedings.
----------
(2026) 1 ILRA 857
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 28.01.2026

BEFORE

THE HON'BLE SAMIT GOPAL, J.

Criminal Revision No. 2776 of 2013

Rajesh Kukreja ...Revisionist
Versus
State of U.P. & Anr. ...Opposite Parties

Issue for Consideration