# Braham Singh Saini v. State of U.P

- **Citation:** (2007) 2 ILRA 631
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2007-04-16
- **Case number:** Criminal Revision No. 1031 of 2007
- **Bench:** Ravindra Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/braham-singh-saini-v-state-of-u-p-40977
- **Pages:** 5

## Headnote

Code of criminal procedure -Discharge
by Magistrate-offence u/s 420,467,468prima facie made out-sufficient material
to protect-discharge order by Magistrate
illegal-interference by District Judge-
held- perfect and justified order.

Held: Para 9

In view of the above discussion and from
the perusal of the material collected by
the I.O. it appears that prima facie
632 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
offence is made out and there is
sufficient material to proceed further
against the accused. The learned Chief
Judicial
Magistrate
erroneously
discharged the revisionists. The order of
the discharge dated 12.4.2001 is illegal,
which has been rightly set aside by the
learned Addl. Sessions Judge, Court
No.1, Basti vide impugned order dated
22.3.2007. The impugned order dated
22.3.2007 is a perfect order, it has been
passed
after
considering
the
legal
position and facts of the case.
.

## Text

2 All] Tribhuvan Nath and others V. State of U.P. and another
631
Braham Singh Saini Vs. State of U.P.
2007 (l)JIC 244 in which Hon. Vinod
Prasad, J. of this High Court has taken a
view that such application cannot be
treated as complaint. He has also cited the
case of Masuman Vs. State of U.P. and
another ALJ 2007 (1) 221, in which the
same Hon'ble Judge has taken the same
view. But the legal position to my mind is
different. In the case of Shiv Narain
Jaiswal and others Vs. State of U.P. and
another 2007 (1) JIC 44, Hon'ble R.K.
Rastogi, J. of this High Court has also
taken a different view. In the case of
Joseph Mathuri @ Vishveshwarananda
and another Vs. Swami Sachidanand
Harisakshi and another 2001 (3) Crimes
384 (SC), the Hon' ble Apex Court has
also taken a contrary view. In criminal
misc. application no. 7484 of 2004
Mohan Shukla and others Vs. State of
U.P. and another, Hon. Amar Saran, J.
has also taken view that the application
under Section 156 (3) Cr.P.C can be
treated
as
complaint.
In
Criminal
Revision No.1667 of 2006 Chandrika
Singh Vs. State of U.P. Hon. Shiv
Charan, J. has sought to distinguish the
case of Suresh Chand Jain Vs. State of
MP, JT 2001 (2) SC page 81. The Full
Court decision in the case of Ram Babu
Gupta Vs. State of U.P. and others, 2001
(43) ACC 50 has also clarified the matter
and it is evident that the application under
Section 156 (3) Cr.P.C. can be treated as
complaint. Thus, the law laid down by the
Division Bench of this Court in the case
of Surajmal Vs. State 1995 (2) JIC 1523
does not lay down the correct law. The
decision taken by Hon'ble Vinod Prasad,
J. in the Masuman 's case has been
referred to the larger Bench by Hon'ble
Mr. JusticeR.K.Rastogi in criminal Misc.
Application No. 9297 of 2007, Sukhwasi
Vs. State of U.P. 2007 (5) ADJ, 560.

4. In view of above legal positions, I
am of the view that learned Magistrate
has exercised the correct option by
treating the application under Section
156(3) Cr.P.C. as complaint. The learned
Magistrate recorded the statement of the
complainant and made suitable inquiry
under section 202 Cr.P.C. and found a
prima facie case against the applicant and
summoned them for trail. No illegality in
order appears.

The application under Section 482
Cr.P.C. is dismissed.
---------
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 16.04.2007

BEFORE
THE HON'BLE RAVINDRA SINGH, J.

Criminal Revision No. 1031 of 2007

Virendra Mishra and others ..Revisionists
Versus.
State of U.P. & another ..Opposite Parties

Counsel for the Revisionists:
Sri. G.P. Dikshit

Counsel for the Opposite Parties:
Sri Ramanand Pandey
Sri Pradeep Narayan Pandey
A.G.A.

Code of criminal procedure -Discharge
by Magistrate-offence u/s 420,467,468prima facie made out-sufficient material
to protect-discharge order by Magistrate
illegal-interference by District Judge-
held- perfect and justified order.

Held: Para 9

In view of the above discussion and from
the perusal of the material collected by
the I.O. it appears that prima facie
632 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
offence is made out and there is
sufficient material to proceed further
against the accused. The learned Chief
Judicial
Magistrate
erroneously
discharged the revisionists. The order of
the discharge dated 12.4.2001 is illegal,
which has been rightly set aside by the
learned Addl. Sessions Judge, Court
No.1, Basti vide impugned order dated
22.3.2007. The impugned order dated
22.3.2007 is a perfect order, it has been
passed
after
considering
the
legal
position and facts of the case.
.
(Delivered by Hon'ble Ravindra Singh, J.)

1. This revision has been filed by the
revisionists Virendra Mishra, Vishwanath
Dubey and Anil Kumar against the order
dated 22.3.2007 passed by Addl Sessions
Judge, Court no. Basti in Criminal
Revision No. 208 of 2001 whereby the
revision has been allowed by setting aside
the order dated 12.4.2001 passed by the
learned Chief Judicial Magistrate, Basti in
Criminal Revision No. 440 of 2000 State
Vs.
Vishwanath
Dubey
and
others
whereby the learned Magistrate has
discharged the applicants for the offence
punishable under sections 419, 420, 467
and 468 IPC.

2. The facts in brief of this case are
that in the present case the F.I.R. was
registered in case crime no. 150 of 1996
under section 419, 420, 467, 468 IPC at
P.S. Kotwali Basti, district Basti alleging
therein that there was a racket active in
district Basti which was indulged in
preparing the forged certificates and
marksheets of High School, Intermediate
and B.T.C., on the basis of the same
forged certificates the members of this
racket used to get appointment in primary
schools as a teacher in collusion with
officials of the office of Basic Shiksha
Adhikari and they used to grave money
dishonestly from the persons who were
curious for getting illegal appointments.
The revisionists are the active members of
this racket, they are related to each other.
One Smt. Suman Devi, the daughter of
Virendra Nath Misra who is married with
revisionist Anil Kumar, the revisionists
got the appointment of Smt Suman Devi,
daughter of revisionists Virendra Kumar
Mishra as a teacher in primary school,
Barauli, district Basti by impersonating
procuring the certificates and marksheets
of High School, Intermediate and B.T.C.
of one another girl Smt. Suman Devi,
daughter of Prem Chandra Mishra,
resident
of
village
Barha,
P.S.
Kaundhiyara, district Allahabad, she is
wife of Sri Vinod Kumar Tripathi,
resident of village Pandey Ka Pura
(Chhibaiya), P.S. Sarai Inayat, district
Allahabad. The revisionists by playing a
fraud and deceiving the D.I.O.S. Basti got
the appointment of Smt. Suman Devi, the
daughter of Virendra Nath Misra in a
primary school, Barauli, Basti and the
salary was drawn from the Government
treasury, when the complaint was made
regarding
the
aforesaid
illegal
appointment, her salary was withheld by
the
department
concerned
but
the
revisionists got the enquiry closed against
Smt. Suman Devi by producing false
affidavit and forged photocopy of Pariwar
Register. On the basis of the complaint
made against Smt. Suman Devi, she was
terminated from the service by B.S.A. on
11.8.1995, with regard of the said
allegation, a complaint was made by one
Harish Pratap Singh, Advocate also.

3. After lodging the F.I.R. The
matter was investigated by the police of
P.S. Kotwali and after completing the
investigation
the
charge-sheet
was
submitted against the revisionists on
2 All] Virendra Mishra and others V. State of U.P. and another
633
1.6.1999 under sections 419, 420, 467,
468 IPC. On the basis of charge-sheet
submitted by the I.O. the learned C.J.M.
Basti has taken the cognizance and
summoned the revisionists to face the trial
but discharge the application filed by the
revisionists
has
been
allowed
on
12.4.2001 and the revisionists were
discharged for the offence punishable
under sections 419, 420, 467 and 468 IPC
by holding that there is no sufficient
evidence against the accused persons for
framing the charge in the aforesaid
offences. Being aggrieved by the above
order, the State of U.P. has preferred a
revision No. 208 of 2001, the same was
allowed and set aside the order dated
12.4.2001 passed by learned Addl.
Sessions Judge, Court No.1, Basti on
22.3.2007 and the matter was remitted
back to the Magistrate concerned to
decide the case in accordance with law, it
was also directed to decide the case
expeditiously, if possible within a period
of six months. The impugned order dated
22.3.2007 is under challenged in the
revision in the hand
.

4. Heard Sri G.P. Dixit, learned
counsel for the revisionists, learned
A.G.A. and Sri Ramanand Panday,
learned counsel for O.P. No.2 Adya
Prasad Tiwari.

5. It is contended by learned counsel
for the revisionists that the impugned
order dated 22.3.2007 is illegal, it is based
on inadmissible evidence and the learned
Addl. Sessions Judge, Court No. 1 Basti
could not have allowed the revision on the
question of fact. It is further contended
that in the present case Smt. Suman Devi,
the alleged impersonator who got the
service on the basis of the forged
documents has not been made accused
and she has not been charge-sheeted. The
I.O. has not interrogated Smt. Suman
Devi, daughter of Sri Prem Chandra
Mishra whose documents were used by
Smt. Suman Devi, daughter of Virendra
Nath Misra even her father has also not
been interrogated and there is no material
collected by the I.O. to show that any
forged documents have been used and no
material has been collected by the I.O. to
show that the revisionists have hatched a
conspiracy and impersonating of the same
they got the appointment of Smt. Suman
Devi, daughter of Virendra Nath Misra on
the basis of certificates and marksheets of
Smt. Suman Devi, daughter of Sri Prem
Chandra Mishra. It is further contended
that the material against the revisionists is
not sufficient for the conviction of the
revisionists. Learned C.J.M., Basti has
rightly discharged the revisionists for the
offence under sections 419, 420, 467 and
468 IPC by holding that matter is under
enquiry and prior its result it is not proper
to proceed further against the revisionists.
No official of the office of Basic Shiksha
Adhikari was interrogated and no such
record has been collected by the I.O.
during investigation even if it is assumed
only Smt. Suman Devi can be made the
accused but there is no evidence to show
the involvement of the revisionists. If the
Suman Devi was not charge- sheeted the
present
revisionists
only
being
her
relatives can not be charge-sheeted. The
revisional court committed a manifest
error in setting aside the order dated
12.4.2001 passed by learned C.J.M. Basti,
the order of the revisional court is not
passed after considering the material
collected by the I.O. It is based on
conjunctures and surmises. The order
dated 22.3.2007 is illegal and liable to be
set aside.
634 INDIAN LAW REPORTS ALLAHABAD SERIES [2007

6. In reply of the above contentions,
it is submitted by learned A.G.A. and
learned counsel for O.P. No.2 that the
proper investigation has not been done by
the I.O. Even the statement of Smt.
Suman Devi, daughter of Prem Chandra
Misra was not recorded and under the
influence of revisionists of Virendra Nath
Misra, a main accused has not been
charge-sheeted, but on the basis of
material collected by the I.O. prima facie
offence is made out and involvement of
the revisionists in commission of the
alleged offence is established. The learned
C.J.M. has tried to weigh the truthfulness
of the allegation and the material
collected by the I.O. was meticulously
analysed for which he was not legally
permitted because, at this stage it is to be
seen whether on the basis of material
collected by the I.O. prima facie is made
out or not. It is not a stage to draw any
conclusion that the material is sufficient
for conviction or not. The learned C.J.M.
has passed erroneous order which has
been rightly set aside by the revisional
court. The revisional court has not
committed any error of law in passing the
impugned order which is a well reasoned.
Therefore, the impugned order may not be
quashed.

7.

Considering
the
facts,
circumstance of the case, submissions
made
by
learned
counsel
for
the
revisionists, learned A.G.A. and learned
counsel for O.P. No.2 and from the
perusal of the record as well as the
impugned order dated 22.3.2007 passed
by learned Addl. Sessions Judge, Court
No.1, Basti and the order dated 12.4.2001
passed by the learned C.J.M. Basti, it
appears that learned Magistrate has taken
the cognizance on the basis of the chargesheet submitted by the I.O. against the
revisionists though the investigation has
not been properly done, the important
material which could be collected by the
I.O. has not been collected even the
statement of Smt. Suman Devi, daughter
of Prem Chandra Misra has not been
recorded whereas the material collected
by the I.O. is disclosing the involvement
of the revisionists but the learned C.J.M.
has discharged the revisionists as if he has
decided the case on the basis of the
evidence adduced in the court. The
material collected by the I.O. was for the
consideration before the learned C.J.M.,
Basti, who has tried to evaluate the
evidence and to ascertain the truthfulness
of
the
allegations
adjudicating
the
evidence meticulously, for which, at this
stage, he was not legally permitted
because at this stage, the truthfulness,
veracity and effect of the evidence can not
be meticulously adjudicated. At this stage
it can be adjudicated that the material is
sufficient for prosecution or not, it can not
be adjudicated whether the trial is sure to
end in the conviction. At this stage, if
there is strong suspicion which leads the
court to think that there is ground for
presuming that accused has committed an
offence then it is sufficient for prosecution
of the accused. At this stage it is
obligatory for the Judge to consider in any
detail and weigh in a sensitive this way
the facts, if remain would be in
compitable with the innocence of the
accused or not. The standard of test and
judgement which is to be in final applied
before recording the findings regarding
the guilt or otherwise or not, the accused
is not exactly to be applied at the stage of
framing the charge or discharge the
accused.

8. It is also well settled law that
strong suspicion against accused, if the
2 All] Manish Sirohi V. Smt. Meenakshi
635
matter
remains
for
the
reason
of
suspicion, can not taken the place of
proving of guilt at the conclusion of the
trial but on the final stage if there is
strong suspicion which leads the court to
think that there is ground for presuming
that accused has committed an offence
then it is not open to the court concerned
to say that there is no sufficient ground
for proceeding against the accused, it has
been held by Hon'ble Apex Court in the
case
of
Superintendent
of
Rememberancer , West Bengal Vs. Anil
Kumar Bhunja and others 1979 SCC
(Crl.) 1938 and in the case of State of
Bihar Vs. Ramesh Singh 1977 SCC
(Crl.)533.

9. In view of the above discussion
and from the perusal of the material
collected by the I.O. it appears that prima
facie offence is made out and there is
sufficient material to proceed further
against the accused. The learned Chief
Judicial Magistrate erroneously discharged
the revisionists. The order of the discharge
dated 12.4.2001 is illegal, which has been
rightly set aside by the learned Addl.
Sessions Judge, Court No.1, Basti vide
impugned order dated 22.3.2007. The
impugned order dated 22.3.2007 is a
perfect order, it has been passed after
considering the legal position and facts of
the case. The impugned order does not
require any interference therefore, the
impugned order is affirmed. The prayer for
quashing the impugned order is refused.

Accordingly
this
revision
is
dismissed.
---------

APPELATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 31.07.2007

BEFORE
THE HON'BLE AMITAVA LALA, J.
THE HON'BLE SHISHIR KUMAR, J.

First Appeal No. 134 of 2007

Manish Sirohi

...Appellant
Versus
Smt.Meenakshi

 ...Respondent

Counsel for the Appellant:
Sri. Divakar Rai Sharma

Counsel for the Respondent:
Sri. Amit Daga

Hindu Marriage Act, 1955 -Section 14-
provision- appeal in continuation of
original suit-Decree for Divorce can be
passed
by
the
Appellate
courtdissolution marriage before expiry of one
year- Considering the peculiar fact and
circumstances of the case-when both
husband and wife voluntarily inclined to
withdraw
their
matrimonial
lifecontinuance of litigation-Cause mental
and
physical
harassment-Decree
for
divorce
passed-by
appellate
Court
instead of remitting the same before the
original court.

Held: Para 6

Therefore, it is a fit case to apply the
proviso to Section 14 of the Act by the
High
Court
itself
in
appeal
being
continuance
of
original
proceeding.
Hence, by consent of the parties the
appeal is disposed of by passing decree
for divorce upon setting aside the order
of the court below without remitting to
that court unnecessarily in the above
circumstances.