# Bantu & Anr. Revisionists v. State of U.P. & Anr

- **Citation:** (2024) 3 ILRA 96
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-03-01
- **Case number:** Criminal Revision No. 1206 of 2023
- **Bench:** Surendra Singh-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bantu-anr-revisionists-v-state-of-u-p-anr-51721
- **Pages:** 12

## Headnote

Law
-
Code
of
Criminal
Procedure, 1973 - Sections 227, 228, &
397 - Indian Penal Code, 1860 - Sections
376 & 120B - Discharge Application - Scope
of Revisional Jurisdiction - Prima Facie Case -
Consideration of Evidence at Charge Framing
Stage
The revisionists, Bantu and Ramveer Singh,
challenged the order dated 13.02.2023 passed
by the Additional Sessions Judge, Mainpuri, in
Sessions Trial No. 189 of 2022, rejecting their
discharge application under Section 227 Cr.P.C.
in Case Crime No. 16 of 2022 (Sections 376,
120B IPC). The FIR, lodged by Nema Devi on
23.02.2022, alleged that on 20.02.2022, Bantu
lured her to Ramveer Singh's tubewell under the
pretext of negotiation, where Ramveer raped
her, and co-accused Prem Narayan attempted to
outrage her modesty, with Bantu involved in the
conspiracy. The revisionists argued that the FIR
was false, motivated by a property dispute
involving an agreement to sell, and supported
by a pen drive allegedly recording the victim's
threat to falsely implicate them. They also cited
contradictions in the victim's St.ments under
Sections 161 and 164 Cr.P.C., lack of medical
evidence, and delay in FIR lodging. Held: The
court, relying on Amit Kapoor Vs Ramesh
Chander ((2012) 9 SCC 460), St. of Orissa Vs
Debendra Nath Padhi ((2005) 1 SCC 568), and
other precedents, held that at the chargeframing stage, the trial court's role is limited to
determining if a prima facie case exists based
on prosecution materials, without meticulously
weighing evidence or considering defense
materials like the pen drive. The victim's
consistent St.ments under Sections 161 and 164
Cr.P.C. established a prima facie case for rape
and conspiracy. The alleged motive of a
property dispute and the pen drive evidence
could not be considered at this stage, as per
Debendra Nath Padhi. The trial court's order
was neither illegal nor arbitrary, as it correctly
applied judicial mind to the prosecution's
evidence.

Revision was dismissed.

Case Law Cited:

## Text

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96 INDIAN LAW REPORTS ALLAHABAD SERIES
complainant. They are not supposed to be
beneficiary of any demand of dowry made
by co-accused persons.

19. The application for rejection of
discharge
application
requires
reconsideration in respect of the present
revisionists
in
light
of
foregoing
discussions and the judgments of Hon'ble
Supreme Court cited above.

20. The revision stands partly
allowed.

21. The impugned order passed by
learned court below is partly set-aside, in
so far as it relates to present revisionists
and learned Magistrate is directed to
consider the prayer for discharge made by
present revisionists a fresh in accordance
with law after giving opportunity of
hearing to both the sides.
----------
(2024) 3 ILRA 96
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 01.03.2024
BEFORE

THE HON'BLE SURENDRA SINGH-I, J.

Criminal Revision No. 1206 of 2023

Bantu & Anr. ...Revisionists
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionists:
Sri Kunwar Bhadur Dixit, Sri Anurag Shukla,
Sri Anuraj Shukla

Counsel for the Opposite Parties:
G.A.

Criminal
Law
-
Code
of
Criminal
Procedure, 1973 - Sections 227, 228, &
397 - Indian Penal Code, 1860 - Sections
376 & 120B - Discharge Application - Scope
of Revisional Jurisdiction - Prima Facie Case -
Consideration of Evidence at Charge Framing
Stage
The revisionists, Bantu and Ramveer Singh,
challenged the order dated 13.02.2023 passed
by the Additional Sessions Judge, Mainpuri, in
Sessions Trial No. 189 of 2022, rejecting their
discharge application under Section 227 Cr.P.C.
in Case Crime No. 16 of 2022 (Sections 376,
120B IPC). The FIR, lodged by Nema Devi on
23.02.2022, alleged that on 20.02.2022, Bantu
lured her to Ramveer Singh's tubewell under the
pretext of negotiation, where Ramveer raped
her, and co-accused Prem Narayan attempted to
outrage her modesty, with Bantu involved in the
conspiracy. The revisionists argued that the FIR
was false, motivated by a property dispute
involving an agreement to sell, and supported
by a pen drive allegedly recording the victim's
threat to falsely implicate them. They also cited
contradictions in the victim's St.ments under
Sections 161 and 164 Cr.P.C., lack of medical
evidence, and delay in FIR lodging. Held: The
court, relying on Amit Kapoor Vs Ramesh
Chander ((2012) 9 SCC 460), St. of Orissa Vs
Debendra Nath Padhi ((2005) 1 SCC 568), and
other precedents, held that at the chargeframing stage, the trial court's role is limited to
determining if a prima facie case exists based
on prosecution materials, without meticulously
weighing evidence or considering defense
materials like the pen drive. The victim's
consistent St.ments under Sections 161 and 164
Cr.P.C. established a prima facie case for rape
and conspiracy. The alleged motive of a
property dispute and the pen drive evidence
could not be considered at this stage, as per
Debendra Nath Padhi. The trial court's order
was neither illegal nor arbitrary, as it correctly
applied judicial mind to the prosecution's
evidence.

Revision was dismissed.

Case Law Cited:

1. Amit Kapoor Vs Ramesh Chander, (2012) 9
SCC 460

2. St. of Orissa Vs Debendra Nath Padhi, (2005)
1 SCC 568
3 All. Bantu & Anr. Vs. State of U.P. & Anr.
97
3. Ghulam Hassan Beigh Vs Mohammad
Maqbool Magrey, SLP (Crl.) No. 4599 of 2021

4. Union of India Vs Prafulla Kumar Samal,
(1979) 3 SCC 4

5. Dipakbhai Jagdishchandra Patel Vs St. of
Guj., (2019) 16 SCC 547

6. Sajjan Kumar Vs C.B.I., (2010) 9 SCC 368

7. St. of Karnataka Vs M.R. Hiremath, (2019) 7
SCC 515

8. Asim Shariff Vs National Investigation
Agency, (2019) 7 SCC 148

9. St. of Bihar Vs Ramesh Singh, (1977) 4 SCC
39

10. Madhavrao Jiwajirao Scindia, (1988) 1 SCC
692

11. St. of Bihar Vs P.P. Sharma, 1992 Supp (1)
SCC 222

12. M.N. Damani Vs S.K. Sinha, (2001) 5 SCC
156

13. St. of Maharashtra Vs Som Nath Thapa,
(1996) 4 SCC 659

(Delivered by Hon'ble Surendra Singh-I,
J.)

This criminal revision has been filed
against
the
impugned
order
dated
13.02.2023 passed by learned Additional
Sessions
Judge/F.T.C.
Court
No.1,
Mainpuri in Sessions Trial No.189 of 2022
(State vs. Bantu and another) arising out of
Case Crime No.16 of 2022, under Sections
376 and 120 B I.P.C., Police StationOrchha, District-Mainpuri.

2. By the impugned order, the trial
Court rejected the application of the
revisionists under Section 227 Cr.P.C. for
discharging them of the offence, under
Sections 376 and 120 B I.P.C.

3. It has been submitted by learned
counsel for the revisionists that trial Court
without considering the facts as well as
evidence on record illegally or arbitrarily
rejected the discharge application of the
revisionists. While rejecting the application
of the revisionists, trial Court has not apply
its judicial mind or without considering the
facts and evidence given in the application.
It has also been submitted by learned
counsel
for
the
revisionists
that
informant/opposite party No.2, namely,
Nema Devi had lodged First Information
Report against the revisionists-Ramveer
Singh, Prem Narayan and Bantu on
23.02.2022 at about 7:04 P.M., while the
said occurrence has taken place on
20.02.2022
at
about
04:30
P.M
to
22.02.2022 at about 5:00 A.M. The
informant/opposite party No.2 has not
given any reason for delay in lodging the
FIR. It has also been submitted that victim,
who is aged about 40 years having four
children. At the time of lodging of FIR,
Station House Officer, Police Station
Orchha had called the revisionists where in
the presence of revisionists the first
informant, namely, Nema Devi had stated
before the police that the house/plot be
given to her by the revisionists, if not given
the same, she will falsely implicate the
revisionists in a rape case. This statement
has been recorded as video by mobile,
which has been submitted in pen drive to
the trial Court by the revisionists. It has
also been submitted that there is a
contradiction in the statement of victim
recorded under Sections 161 as well as 164
Cr.P.C. It has also been submitted that
victim-Nema Devi, after the death of her
husband, residing with one Bangali Babu,
who left the victim and went to another
village. Bangali Babu had entered into an
agreement to sale of his house in favour of
revisionist No.2-Ramveer Singh and one
98 INDIAN LAW REPORTS ALLAHABAD SERIES
another person, but victim has pressurised
the revisionist No.2 to withdraw from the
said agreement of the house and when he
denied the same, the false criminal case
was registered against the revisionists. It
has also been submitted that there is no
medical evidence of the alleged incident
and revisionists only submitted the pen
drive before the trial Court, but trial Court
did not consider it and arbitrarily passed the
impugned order.

4. Per contra, learned A.G.A. for the
State has submitted that trial Court has
passed the impugned order which is based
on the evidence on record and there is no
ground to interfere in the same.

5. Heard Sri Anuraj Shukla, learned
counsel for the revisionists and Ms. Seema
Shukla, learned A.G.A. for the State.

6. The facts relating to the case, in
brief, is that victim has lodged FIR on
23.02.2022 alleging that on 20.02.2022 at
about 4:30 P.M., accused-Bantu came to
her house and told her that revisionist
No.2-Ramveer
Singh
had
called
for
negotiation of the alleged house/plot as she
was familiar with Bantu and Ramveer
Singh. Thereafter, on the same day at 4:30
p.m. she went with Bantu to the tubewell of
Ramveer. On the request of Ramveer, she
remained there at night and Ramveer
committed rape with her and co-accused
Prem Narayan also tried to outrage her
modesty.
Co-accused-Bantu
was
also
involved in the conspiracy of the alleged
occurrence.

7. During the investigation, victim has
given following statements recorded under
Sections 161 as well as 164 Cr.P.C.:-

"दिन ांक 23.02.2022

महोिय थ न क य ालय पर पीद़ित नेम िेवी उपदथथत
है दनयम नुस र म०क ० 383 रीत वम ा द्व र पीद़ित क ध र
161 सीआरपीसी क बय न लेखबद्ध कर य गय दिसकी नकल
हथब िैल है ---- बय न पीद़ित नेम िेवी पत्नी थव० सुनील कुम र
दन० न० केहरी थ न दिरोर मैनपुरी सम्बदधधत मु०अ०सां० 16/22
ध र 376/504/120B IPC थ न औछ मैनपुरी बय न
दपद़ित नेम िेवी पत्नी थव० सुनील कुम र दन० न० केहरी थ न
दिरोर दि० मैनपुरी उम्र 40 ि दत य िव पूछने पर बत य दक
र मवीर पुत्र सीत र म दन० दतस ह थ न औछ मैनपुरी ने मेरे िर पर
वधटू पुत्र म त िीव भेि थ दक मेरी ब त कर िो दिर र मवीर से
िोन पर मेरी ब त कर यी र मवीर ने मुझे समर (खेत) दतस ह पर
श म को 5.00 बिे बुल य वहॉ पर र मवीर व प्रेमन र यण ने
मुझसे बोल दक आि र त यही रूक ि ओ समर (खेत) पे तो मैं
समर (खेत) पर र त में रूक गयी र मवीर ने मेरे स रे कप़िे उत र दिये
और मेरे स थ गलत क म दकय और प्रेमन र यण ने मेरे स थ
छे़िख नी की और मेरे पूरे शरीर पर ह थ दिर य र मवीर ने सुबह
4.00 बिे प्रेमन र यण के स थ ईको ग ़िी से मेरे गॉव न० केहरी
रोड पर छो़ि दिय एसडी नेम िेवी DATE 23.02.2022
L/C रीम 383 रीम वम ा थ न औछ िनपि मैनपुरी लेखबद्ध
बय नो को मूल रूप से सांलग्न सीडी दकय ि त है।

दिन ांक 24.02.2022

दववरण पीद़ित बय न 164 सीआरपीसी- ने पूछने
पर बत य दक र मवीर दसांह दनव सी दतस ह ने मेरे िर पर वधटू
दनव सी दतस र को 20 त रीख दिन रदवव र को मुझ बुल ने के दलये
भेि थ मै वधटू के स थ 20 त रीख दिन इतव र उस दिन वोट प़िी
थी को र मवीर दसांह के खेत पर लगी समर पर आ गयी वहॉ पर एक
खेत में समर के प स पक्क कमर बन है दिसमें िो च रप ई प़िी है
र मवीर दसांह ने कट्ट दिख कर मेरे कप़िे उत रे और मेरी छ ती पर
कट्ट रख दिय स रे कप़िे उत र और र मवीर दसांह मेरे ऊपर लेट गय
र मवीर दसांह ने मेरे पुरे शरीर को अपने ह थो से छुआ थ और मेरे
छ ती को कई ब र िब य भी थ उसने मेरी पेश ब व ली िगह पर
अपनी ऊगली भी ड ली थी और र मवीर ने मेरे स थ बल त्क र
दकय दिर उसने िबरिथती मुझे अपने ऊपर बैठ दलय और िो ब र
मेरे स थ बल त्क र दकय वधटू मुझे र मवीर दसांह के प स खेत पर
छो़िकर चल गय थ र मवीर ने पूरी र त मुझे अपने प स अपनी
समर पर रख और मेरे स थ बल त्क र दकय गय और दिर सूबह 4
बिे र मवीर और वधटू मुझे मेरे िर छो़ि आये र मवीर के प स मेर
प्ल ट दगरवी रख है मेरे पदत क दपछले स ल दनधन हो गय मेरी िो
बेटी िो बेटे है मेरे पदत की मौत के ब ि से ही मैं बांग ली ब बू के
3 All. Bantu & Anr. Vs. State of U.P. & Anr.
99
स थ रह रही ह ां अब बांग ली ब बू मुझे छो़िकर अपने गॉव कतर गांि
दिल एट चल गय ।"

8. Before examining the merits of the
present case, the ambit, scope and power of
the Sessions Court as well as the High
Court u/s 397 Cr.P.C. should be discussed
and ascertained.

9. The Hon'ble Apex Court in Amit
Kapoor Vs. Ramesh Chander and
Another, (2012) 9 SCC 460 in paragraph
nos. 12 and 13 of its judgement has
narrated the ambit and scope of revision by
the High Court u/s 397 Cr.P.C. which are as
follows :

12. Section 397 of the Code vests
the court with the power to call for and
examine the records of an inferior court
for the purposes of satisfying itself as to
the
legality
and
regularity
of
any
proceedings or order made in a case. The
object of this provision is to set right a
patent defect or an error of jurisdiction or
law. There has to be a well-founded error
and it may not be appropriate for the court
to scrutinise the orders, which upon the
face of it bears a token of careful
consideration and appear to be in
accordance with law. If one looks into the
various judgments of this Court, it
emerges that the revisional jurisdiction
can be invoked where the decisions under
challenge are grossly erroneous, there is
no compliance with the provisions of law,
the finding recorded is based on no
evidence, material evidence is ignored or
judicial discretion is exercised arbitrarily
or perversely. These are not exhaustive
classes, but are merely indicative. Each
case would have to be determined on its
own merits.

13. Another well-accepted norm
is that the revisional jurisdiction of the
higher court is a very limited one and
cannot be exercised in a routine manner.
One of the inbuilt restrictions is that it
should not be against an interim or
interlocutory order. The Court has to keep
in mind that the exercise of revisional
jurisdiction itself should not lead to
injustice ex facie. Where the Court is
dealing with the question as to whether
the charge has been framed properly and
in accordance with law in a given case, it
may be reluctant to interfere in exercise of
its revisional jurisdiction unless the case
substantially falls within the categories
aforestated. Even framing of charge is a
much advanced stage in the proceedings
under the CrPC.

10. In paragraph nos. 17 and 19 of the
aforesaid judgement, the Apex Court has
narrated that before framing a charge, what
documents should be considered by the
trial court. It has also provided about the
extent of evidence required for framing of a
charge. In paragraph no. 20 of the aforesaid
judgement, the Apex Court has compared
the power and extent of jurisdiction of the
High Court u/s 397 Cr.P.C. which is given
hereunder :

20. The jurisdiction of the court
under Section 397 can be exercised so as
to examine the correctness, legality or
propriety of an order passed by the trial
court or the inferior court, as the case may
be.
Though
the
section
does
not
specifically use the expression "prevent
abuse of process of any court or otherwise
to secure the ends of justice", the
jurisdiction under Section 397 is a very
limited one. The legality, propriety or
correctness of an order passed by a court
is the very foundation of exercise of
jurisdiction
under
Section
397
but
ultimately it also requires justice to be
100 INDIAN LAW REPORTS ALLAHABAD SERIES
done. The jurisdiction could be exercised
where there is palpable error, noncompliance with the provisions of law, the
decision is completely erroneous or where
the
judicial
discretion
is
exercised
arbitrarily. On the other hand, Section 482
is based upon the maxim quando lex
aliquid alicui concedit, concedere videtur
id sine quo res ipsa esse non potest i.e.
when the law gives anything to anyone, it
also gives all those things without which
the thing itself would be unavoidable. The
section confers very wide power on the
Court to do justice and to ensure that the
process of the court is not permitted to be
abused.

11. After comprehensive survey and
discussion of the judgement of the Hon'ble
Supreme Court and the factors to be
considered by the trial court while
disposing of application u/s 227 Cr.P.C. and
framing charge u/s 228 Cr.P.C., the Apex
Court in Amit Kapoor (supra) has given
following directions :

27.2. The Court should apply the
test as to whether the uncontroverted
allegations as made from the record of the
case
and
the
documents
submitted
therewith prima facie establish the offence
or not. If the allegations are so patently
absurd and inherently improbable that no
prudent person can ever reach such a
conclusion
and
where
the
basic
ingredients of a criminal offence are not
satisfied then the Court may interfere.

27.3. The High Court should not
unduly
interfere.
No
meticulous
examination of the evidence is needed for
considering whether the case would end in
conviction or not at the stage of framing
of charge or quashing of charge.

27.9. Another very significant
caution that the courts have to observe is
that it cannot examine the facts, evidence
and materials on record to determine
whether there is sufficient material on the
basis of which the case would end in a
conviction;
the
court
is
concerned
primarily with the allegations taken as a
whole whether they will constitute an
offence and, if so, is it an abuse of the
process of court leading to injustice.

27.10. It is neither necessary nor
is the court called upon to hold a fullfledged enquiry or to appreciate evidence
collected by the investigating agencies to
find out whether it is a case of acquittal or
conviction.

27.11. Where allegations give
rise to a civil claim and also amount to an
offence, merely because a civil claim is
maintainable, does not mean that a
criminal complaint cannot be maintained.

27.12.
In
exercise
of
its
jurisdiction under Section 228 and/or
under Section 482, the Court cannot take
into consideration external materials
given by an accused for reaching the
conclusion that no offence was disclosed
or that there was possibility of his
acquittal. The Court has to consider the
record and documents annexed therewith
by the prosecution.

12. The statutory provisions regarding
consideration of the case with a view to
framing of charge or discharging the
accused as given in Sections 226, 227 and
228 Cr.P.C. has been laid down by the
Hon'ble Supreme Court in the case of
Ghulam Hassan Beigh Vs. Mohammad
Maqbool Magrey & Ors. in S.L.P. (Crl.)
No. 4599 of 2021 :

15. Section 226 of the CrPC
corresponds to sub-section (1) of the old
Section 286 with verbal changes owing to
the abolition of the jury. Section 286 of
the 1898 Code reads as under:-
3 All. Bantu & Anr. Vs. State of U.P. & Anr.
101

"286.(1) In a case triable by jury,
when the jurors have been in chosen or, in
any other case, when the Judge is ready to
hear the case, the prosecutor shall open
his case by reading from the Indian Penal
or other law the description of the offence
charged, and stating shortly by what
evidence he expects to prove the guilt of
the accused. (2) The prosecutor shall then
examine his witnesses."

Section 226 of the 1973 Code
reads thus:

"226.
Opening
case
for
prosecution.─ When the accused appears
or is brought before the Court in
pursuance of a commitment of the case
under section 209, the prosecutor shall
open his case by describing the charge
brought against the accused and stating
by what evidence he proposes to prove the
guilt of the accused."

Section 226 of the CrPC permits
the
prosecution
to
make
the
first
impression regards a case, one which
might be difficult to dispel. In not insisting
upon its right under Section 226 of the
CrPC, the prosecution would be doing
itself a disfavour. If the accused is to
contend that the case against him has not
been explained owing to the noncompliance with Section 226 of the CrPC,
the answer would be that the Section
173(2) of the CrPC report in the case
would give a fair idea thereof, and that the
stage of framing of charges under Section
228 of the CrPC is reached after crossing
the stage of Section 227 of the CrPC,
which affords both the prosecution and
accused a fair opportunity to put forward
their rival contentions.

16. Section 227 of the CrPC
reads thus:

"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."

17. Section 228 of the CrPC
reads thus:

"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."

13. While framing charge, the Court
has to ensure that a prima facie case must
be made out against the accused. The
Hon'ble Apex Court in Union of India Vs.
Prafulla Kumar Samal and another,
(1979) 3 SCC 4, considered the scope of
enquiry a judge is required to make while
102 INDIAN LAW REPORTS ALLAHABAD SERIES
considering the question of framing of
charges. After an exhaustive survey of the
case law on the point, in paragraph no. 10
of the judgement, has laid down the
following principles :

(1)
That
the
Judge
while
considering the question of framing the
charges under section 227 of the Code has
the undoubted power to sift and weigh the
evidence for the limited purpose of finding
out whether or not a prima facie case
against the accused has been made out.

(2) Where the 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 the trial.

(3) The test to determine a prima
facie case would naturally depend upon
the facts of each case and it is difficult to
lay down a rule of universal application.
By and large however if two views are
equally possible and the Judge is satisfied
that the evidence produced before him
while giving rise to some suspicion but not
grave suspicion against the accused, he
will be fully within his right to discharge
the accused.

(4)
That
in
exercising
his
jurisdiction under section 227 of the Code
the Judge which under the present Code is
a senior and experienced Judge cannot
act merely as a Post office or a 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 appearing in the case
and so on. This however does not mean
that the Judge should make a roving
enquiry into the pros and cons of the
matter and weigh the evidence as if he was
conducting a trial.

14. The Hon'ble Apex Court in
paragraph nos. 15 and 23 of its judgement
in Dipakbhai Jagdishchandra Patel Vs.
State of Gujarat, (2019) 16 SCC 547, has
elaborately discussed the law relating to the
framing of charge and discharge of the
accused which is as under :

15. We may profitably, in this
regard, refer to the judgment of this Court
in State of Bihar v. Ramesh Singh [State
of Bihar v. Ramesh Singh, (1977) 4 SCC
39 : 1977 SCC (Cri) 533 : AIR 1977 SC
2018] wherein this Court has laid down
the principles relating to framing of
charge and discharge as follows: (SCC pp.
41-42, para 4)

"4. ... Reading Sections 227 and
228 together in juxtaposition, as they have
got to be, it would be clear that at the
beginning and the initial stage of the trial
the truth, veracity and effect of the
evidence which the prosecutor proposes to
adduce are not to be meticulously judged.
Nor is any weight to be attached to the
probable defence of the accused. It is not
obligatory for the Judge at that stage of
the trial 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.
The standard of test and judgment 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 Section 228 of the Code. 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
against the accused, if the matter remains
in the region of suspicion, cannot take the
place of proof of his guilt at the
conclusion of the trial. But at the initial
3 All. Bantu & Anr. Vs. State of U.P. & Anr.
103
stage if there is a strong suspicion which
leads the Court to think that there is
ground for presuming that the accused
has committed an offence then it is not
open to the Court to say that there is no
sufficient ground for proceeding against
the accused. The presumption of the guilt
of the accused which is to be drawn at the
initial stage is not in the sense of the law
governing the trial of criminal cases in
France where the accused is presumed to
be guilty unless the contrary is proved.
But it is only for the purpose of deciding
prima facie whether the court should
proceed with the trial or not. If the
evidence which the prosecutor proposes to
adduce to prove the guilt of the accused
even if fully accepted before it is
challenged
in
cross-examination
or
rebutted by the defence evidence, if any,
cannot show that the accused committed
the offence, then there will be no
sufficient ground for proceeding with the
trial. ... If the scales of pan as to the guilt
or
innocence
of
the
accused
are
something like even, at the conclusion of
the trial, then, on the theory of benefit of
doubt the case is to end in his acquittal.
But if, on the other hand, it is so at the
initial stage of making an order under
Section 227 or Section 228, then in such a
situation ordinarily and generally the
order which will have to be made will be
one under Section 228 and not under
Section 227."

23. At the stage of framing the
charge in accordance with the principles
which have been laid down by this Court,
what the court is expected to do is, it does
not act as a mere post office. The court
must indeed sift the material before it. The
material to be sifted would be the material
which is produced and relied upon by the
prosecution. The sifting is not to be
meticulous in the sense that the court dons
the mantle of the trial Judge hearing
arguments after the entire evidence has
been adduced after a full-fledged trial and
the
question
is
not
whether
the
prosecution has made out the case for the
conviction of the accused. All that is
required is, the court must be satisfied that
with the materials available, a case is
made out for the accused to stand trial. A
strong suspicion suffices. However, a
strong suspicion must be founded on some
material. The material must be such as
can be translated into evidence at the
stage of trial. The strong suspicion cannot
be the pure subjective satisfaction based
on the moral notions of the Judge that
here is a case where it is possible that the
accused has committed the offence. Strong
suspicion must be the suspicion which is
premised
on
some
material
which
commends itself to the court as sufficient
to entertain the prima facie view that the
accused has committed the offence.

15. In Sajjan Kumar Vs. C.B.I, (2010)
9 SCC 368, the Hon'ble Apex Court after
elaborately discussing the scope of Sections
227 and 228 Cr.P.C. has laid down
principles which emerge therefrom in
paragraph no. 21 which is as under :

21. On consideration of the
authorities about the scope of Sections
227 and 228 of the Code, the following
principles emerge:

(i) The Judge while considering
the question of framing the charges under
Section 227 CrPC has the undoubted
power to sift and weigh the 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 the facts of each case.
104 INDIAN LAW REPORTS ALLAHABAD SERIES

(ii) Where the 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 the trial.

(iii) The court cannot act merely
as a post office or a 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.

(iv) If on the basis of the
material on record, the court could form
an opinion that the accused might have
committed offence, it can frame the
charge,
though
for
conviction
the
conclusion is required to be proved
beyond reasonable doubt that the accused
has committed the offence.

(v) 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.

(vi) At the stage of Sections 227
and 228, the court is required to evaluate
the material and documents on record
with a view to find out if the facts
emerging therefrom taken at their face
value disclose the existence of all the
ingredients
constituting
the
alleged
offence. For this limited purpose, sift the
evidence as it cannot be expected even at
that initial stage to accept all that the
prosecution states as gospel truth even if it
is opposed to common sense or the broad
probabilities of the case.

(vii) If two views are possible
and one of them gives rise to suspicion
only,
as
distinguished
from
grave
suspicion,
the
trial
Judge
will
be
empowered to discharge the accused and
at this stage, he is not to see whether the
trial will end in conviction or acquittal.

16. In the case of State of Karnataka
Vs. M.R. Hiremath, (2019) 7 SCC 515,
the Hon'ble Apex Court has laid down
principles
to
be
considered
by
the
Magistrate while dealing with discharge
application of the accused u/s 239 Cr.P.C.
in warrant trial case. The directions given
by the Apex Court is equally applicable to
the discharge of accused u/s 227 Cr.P.C.

17. In paragraph no. 25 of Ghulam
Hassan Beigh (supra), the Apex Court
held as under :

25. In the case of Asim Shariff v.
National Investigation Agency, (2019) 7
SCC 148, this Court, to which one of us
(A.M. Khanwilkar, J.) was a party, in so
many words has expressed that the trial
court is not expected or supposed to hold a
mini trial for the purpose of marshalling
the evidence on record. We quote the
relevant observations as under:-

"18.
Taking
note
of
the
exposition of law on the subject laid down
by this Court, it is settled that the Judge
while considering the question of framing
charge under Section 227 CrPC in
sessions cases(which is akin to Section
239 CrPC pertaining to warrant cases)
has the undoubted power to sift and weigh
the evidence for the limited purpose of
finding out whether or not a prima facie
case against the accused has been made
out; where the material placed before the
Court discloses grave suspicion against
the accused which has not been properly
3 All. Bantu & Anr. Vs. State of U.P. & Anr.
105
explained, the Court will be fully justified
in framing the charge; by and large if two
views are possible and one of them giving
rise to suspicion only, as distinguished
from grave suspicion against the accused,
3 2018(13) SCC 455 4 2019(6) SCALE
794 the trial Judge will be justified in
discharging him. It is thus clear that while
examining the discharge application filed
under Section 227 CrPC, it is expected
from the trial Judge to exercise its judicial
mind to determine as to whether a case for
trial has been made out or not. It is true
that in such proceedings, the Court is not
supposed to hold a mini trial by
marshalling the evidence on record.

18. In paragraph nos. 28, 29 and 30 of
the judgement in Amit Kapoor (supra),
the Hon'ble Supreme Court has held as
hereunder :

28. At this stage, we may also
notice that the principle stated by this
Court
in
Madhavrao
Jiwajirao
Scindia[(1988) 1 SCC 692 : 1988 SCC
(Cri) 234] was reconsidered and explained
in two subsequent judgments of this Court
in State of Bihar v. P.P. Sharma [1992
Supp (1) SCC 222 : 1992 SCC (Cri) 192 :
AIR 1991 SC 1260] and M.N. Damani v.
S.K. Sinha [(2001) 5 SCC 156 : 2001 SCC
(Cri) 823 : AIR 2001 SC 2037] . In the
subsequent judgment, the Court held that,
that judgment did not declare a law of
universal application and what was the
principle relating to disputes involving
cases of a predominantly civil nature with
or without criminal intent.

29. In the light of the above
principles, now if we examine the findings
recorded by the High Court, then it is
evident that what weighed with the High
Court was that firstly it was an abuse of
the process of court and, secondly, it was a
case of civil nature and that the facts, as
stated, would not constitute an offence
under Section 306 read with Section 107
IPC. Interestingly and as is evident from
the findings recorded by the High Court
reproduced supra that "this aspect of the
matter will get unravelled only after a fullfledged trial", once the High Court itself
was of the opinion that clear facts and
correctness of the allegations made can be
examined only upon full trial, where was
the need for the Court to quash the charge
under Section 306 at that stage. Framing
of charge is a kind of tentative view that
the trial court forms in terms of Section
228 which is subject to final culmination
of the proceedings.

30. We have already noticed that
the legislature in its wisdom has used the
expression "there is ground for presuming
that the accused has committed an
offence". This has an inbuilt element of
presumption once the ingredients of an
offence with reference to the allegations
made are satisfied, the Court would not
doubt the case of the prosecution unduly
and extend its jurisdiction to quash the
charge in haste. A Bench of this Court in
State of Maharashtra v. Som Nath Thapa
[(1996) 4 SCC 659 : 1996 SCC (Cri) 820]
referred to the meaning of the word
"presume" while relying upon Black's
Law Dictionary. It was defined to mean
"to believe or accept upon probable
evidence"; "to take as proved until
evidence to the contrary is forthcoming".
In other words, the truth of the matter has
to come out when the prosecution
evidence is led, the witnesses are crossexamined
by
the
defence,
the
incriminating material and evidence is put
to the accused in terms of Section 313 of
the Code and then the accused is provided
an opportunity to lead defence, if any. It is
only upon completion of such steps that
106 INDIAN LAW REPORTS ALLAHABAD SERIES
the trial concludes with the court forming
its final opinion and delivering its
judgment. Merely because there was a
civil transaction between the parties would
not by itself alter the status of the
allegations
constituting
the
criminal
offence.

19. In light of the statutory provision
under Section 227 Cr.P.C. interpreted by
the Hon'ble Apex Court, the facts given in
the case is to be considered. On the date of
alleged incident, revisionists persuaded the
victim to visit the field of Ramveer on the
pretext that Ramveer has called her for
negotiation. When she reached there,
revisionist No.2 Ramveer Singh asked her
to stay at night near the tubewell, which is
installed
in
the
field
of
Ramveer
Singh/revisionist no.2. On the same night,
Ramveer Singh committed rape with her.
The victim has stated the aforesaid facts
given in the written report in her statement
recorded under Sections 161 as well as 164
Cr.P.C. The averment of revisionists is that
the victim has lodged false FIR due to
reason that Bangali Babu had not given his
property to her and same has been executed
in favour of Gaura Devi wife of Ramveer
Singh and others, which has been registered
on 13.08.2020 in the office of SubRegistrar, Mainpuri. The revisionists have
submitted a copy of agreement to sale,
which was registered about two and half
years before lodging the FIR. Apart from
this alleged motive for lodging the FIR, the
same cannot be considered at the stage of
deciding the discharge application. The
aforesaid averments that the victim lodged
the false FIR due to aforesaid reasons
cannot prima facie be considered true. The
revisionists
have
not
submitted
any
evidence/documents
regarding
the
agreement to sale to the Investigating
Officer during investigation, therefore, this
document is not a part of the case diary.
The effect of alleged agreement to sale as
motive for lodging a false FIR against the
revisionists cannot be examined at the stage
of considering the discharge application
under Section 227 Cr.P.C. The alleged
motive for lodging a false FIR can only be
considered at the stage of final arguments
when evidence of prosecution as well as
defence is concluded.

20. In the case of State of Orissa vs.
Debendra Nath Padhi: (2005) 1 SCC 568,
the Hon'ble Apex Court held that at the
time of framing of charge, trial Court can
consider only the evidence which has been
filed with the charge-sheet. At this stage,
accused has no right to produce any
document or evidence to rebut the framing
of charge against him.

21. Thus, contention of the learned
counsel for the revisionists is that victim
had threatened the revisionist No.1 before
Investigating Officer that if he does not
transfer the house/plot in her favour, she
will lodge false FIR against him. At the
stage of framing of charge, the Court has to
observe whether there is a prima facie
evidence against the accused regarding the
charge-sheet filed against him. The veracity
of sufficiency of evidence cannot be
weighed at the stage of framing of charge.
In such circumstances, trial Court has
rightly refused to consider the evidence
allegedly recorded in the pen drive at the
stage of framing of charge against the
revisionists.

22. From the above discussions
regarding evidence produced in the case, I
do not find any illegality, irregularity or
impropriety in the impugned order passed
by
the
trial
court.
3 All. Sanju & Ors. Vs. State of U.P. & Anr.
107

23. There is no merit in the criminal
revision and the same is liable to be
dismissed.

24.

The
criminal
revision
is
dismissed, accordingly.

25. Let a copy of this order be sent to
the concerned trial court for necessary
action.
----------
(2024) 3 ILRA 107
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 23.01.2024
BEFORE

THE HON'BLE RAM MANOHAR NARAYAN
MISHRA, J.

Criminal Revision No. 2076 of 2019

Sanju & Ors. ...Revisionists
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionists:
Sri Hari Prakash Mishra, Sri Dharmendra
Kumar Srivastava

Counsel for the Opposite Party:
G.A., Sri Chandra Prakash Pandey, Sri Dur
Vijay Singh

Criminal Law -Code of Criminal Procedure,
1973 - Sections 319, 397, 190 & 193 -
Indian Penal Code, 1860 - Sections 147,
148, 149 & 302 - Summoning of Additional
Accused - Scope of Revisional Jurisdiction -
Evidence
under
Section
319
Cr.P.C.
-
Consideration of Investigation Materials
The revisionists, Sanju and others, challenged
the order dated 02.05.2019 passed by the
Additional
District
and
Session
Judge,
Farukhabad, in Sessions Trial No. 192 of 2012,
summoning them under Section 319 Cr.P.C. to
face trial for offences under Sections 147, 148,
149, and 302 IPC, based on the testimony of
PW1 (Munni Devi, informant) and PW9 (Dinesh),
despite their exclusion from the chargesheet.
The FIR, lodged on 03.02.2012, alleged that the
revisionists, linked to Dalganjan Singh, killed the
informant's husband, Amar Singh, and his
friend, Man Singh, due to prior enmity. The
Investigating Officer (IO) found no complicity of
the revisionists, citing mobile location data and
witness St.ments, and instead chargesheeted
seven others. During trial, PW1 and PW9
supported the FIR version, leading to the
summoning order. The informant later disowned
the Section 319 application via an affidavit
dated 17.08.2019, claiming it was filed without
her instructions. Held: The court, relying on
Hardeep Singh Vs St. of Punj. ((2014) 3 SCC 92)
and Brijendra Singh Vs St.