# Brijendra Swaroop Jaiswal Revisionist v. State of U.P. & Anr

- **Citation:** (2024) 3 ILRA 39
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-02-02
- **Case number:** Criminal Revision No. 316 of 2023
- **Bench:** Ram Manohar Narayan Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/brijendra-swaroop-jaiswal-revisionist-v-state-of-u-p-anr-51640
- **Pages:** 9

## Headnote

Criminal Law - Indian Penal Code, 1860 -
Sections 419, 420, 467, 468, 471, 504 &
409 - Code of Criminal Procedure, 1973 -
Sections 227, 239 & 240 - Revisionist
challenged dismissal of discharge application by
Additional Chief Judicial Magistrate in Criminal
Case No. 5289 of 2017 for alleged financial
irregularities, forgery, and criminal breach of
trust as Head Master of a school. Court held: (1)
Allegations of tampering, trespass, abuse, and
misplacement of documents lacked specificity;
no
particular
forged
document
or
misappropriated property identified. (2) Signing
attendance register during suspension was
misconduct, not an offence under IPC. (3)
Magistrate's
order
dismissing
discharge
application lacked reasoned analysis, failing to
address grounds raised or specify material
evidence supporting charges, violating principles
under Section 239 Cr.P.C. (4) Right to seek
discharge is valuable; trial court must provide
reasoned order (St. By S.P. Through SPE CBI Vs
Uttamchand Bohra, (2021) Criminal Appeal No.
1590; Central Bureau of Investigation Vs K.
Narayana Rao, (2012) 9 SCC 512). Revision
allowed; impugned order set aside; matter
remanded to Magistrate for fresh consideration
of discharge application with reasoned order.
(Paras 7-8, 15-17)
Revision Allowed.

Case Law Cited:

## Text

3 All. Brijendra Swaroop Jaiswal Vs. State of U.P. & Anr.
39
and had bitten on her cheeks. It is alleged
in the application that a complaint in this
regard was given to the police on
03.07.2023, regarding which there is no
documentary proof and the complaint to
various authorities was sent through
registered post only on 30.08.2023, i.e.
about two months after the alleged incident.

8. The trial Court has considered the
facts stated in the complaint in a judicial
manner and has come to a conclusion that it
is wholly unnatural that the persons, whose
brother had committed suicide merely two
days ago, will go to the accused house and
commit a sexual offence. There are no
witnesses of the alleged incident. There is
no medical examination report to support
the allegation. There are no witnesses of the
incident. In these circumstances, the
Magistrate has rightly come to a conclusion
that it appears that the complainant has
been lodged in order to put pressure on the
applicants in the case under Section 306
I.P.C. lodged against the complainant's son
by using her minor daughter as a victim in
an attempt to protect the complainant's son.

9. There appears to be no illegality in
the aforesaid well reasoned order dated
21.12.2013 passed by the Special Judge
warranting interference by this Court in
exercise of its revisional jurisdiction.

10. The revision lack merit and the
same is hereby dismissed at the admission
stage.
----------
(2024) 3 ILRA 39
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 02.02.2024
BEFORE

THE HON'BLE RAM MANOHAR NARAYAN
MISHRA, J.
Criminal Revision No. 316 of 2023

Brijendra Swaroop Jaiswal ...Revisionist
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionist:
Sri Raj Kumar Pandey

Counsel for the Opposite Parties:
G.A., Sri Nagendra Nath Mishra, Sri
Nityanand Mishra

Criminal Law - Indian Penal Code, 1860 -
Sections 419, 420, 467, 468, 471, 504 &
409 - Code of Criminal Procedure, 1973 -
Sections 227, 239 & 240 - Revisionist
challenged dismissal of discharge application by
Additional Chief Judicial Magistrate in Criminal
Case No. 5289 of 2017 for alleged financial
irregularities, forgery, and criminal breach of
trust as Head Master of a school. Court held: (1)
Allegations of tampering, trespass, abuse, and
misplacement of documents lacked specificity;
no
particular
forged
document
or
misappropriated property identified. (2) Signing
attendance register during suspension was
misconduct, not an offence under IPC. (3)
Magistrate's
order
dismissing
discharge
application lacked reasoned analysis, failing to
address grounds raised or specify material
evidence supporting charges, violating principles
under Section 239 Cr.P.C. (4) Right to seek
discharge is valuable; trial court must provide
reasoned order (St. By S.P. Through SPE CBI Vs
Uttamchand Bohra, (2021) Criminal Appeal No.
1590; Central Bureau of Investigation Vs K.
Narayana Rao, (2012) 9 SCC 512). Revision
allowed; impugned order set aside; matter
remanded to Magistrate for fresh consideration
of discharge application with reasoned order.
(Paras 7-8, 15-17)
Revision Allowed.

Case Law Cited:

1. St. By S.P. Through SPE CBI Vs Uttamchand
Bohra, Criminal Appeal No. 1590 of 2021 (Para
7, 8)

2. Central Bureau of Investigation Vs K.
Narayana Rao, (2012) 9 SCC 512 (Para 7)
40 INDIAN LAW REPORTS ALLAHABAD SERIES
3. P. Vijayan Vs St. of Kerala, (2010) 2 SCC 398
(Para 7)

4. Ramesh Singh Vs St. of U.P., (1977) 4 SCC 39
(Para 7)

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

1. Heard learned counsel for the
revisionist, learned counsel for the opposite
party No.2 as well as learned AGA for the
state and perused the material placed on
record.

2. By means of instant criminal
revision,
the
accused-revisionist
has
assailed impugned order dated 12.11.2022,
passed
by Additional
Chief
Judicial
Magistrate, Second, Gorakhpur, in Criminal
Case No.5289 of 2017 (State vs. Brijendra
Swaroop Jaiswal), under Section 419, 420,
467, 468, 471, 504, 409 IPC, Police Station
Shahpur, District Gorakhpur, whereby the
discharge
application
moved
by
the
revisionist has been dismissed.

3. The factual matrix of the case in
brief, relevant for the present revision are
that the informant, who is respondent No.2
before this Court, lodged an FIR on
14.4.2017 against revisionist accused with
averment that he is Manager of Kanhaiya
Junior High School, Shahpur, Geeta Vatika,
Gorakhpur. He had arrayed Brijendra
Swaroop Jaisawal, as accused, who was
posted as Head Master in said school on
8.11.2016 for committing indiscipline and
financial
irregularities.
However,
he
appended his signature on attendance
Register during period of suspension on
17.3.2017 and trespassed into office and
abused the clerk and assistant Head Master.
The suspended Head Master Sri Brijendra
Swaroop Jaisawal was asked to open Head
Master room on many times but he did not
made the key of the chamber available. The
manager/informant brought this fact to the
knowledge of Sub Divisional Magistrate,
Gorakhpur and departmental officers. On
directions of SDM, Sadar, Sri Shashank
Shekhar Rai, Nayab Tehsildar, Gorakhpur
visited the office of the school and got the
chamber of Head Master unlocked on
22.3.2017. On intensive inquiry of said
room, many documents related to school
work
were
not
found
therein.
The
suspended Head Master misplaced the files
relating to approval of service book of ten
employees,
scholarship
distribution
register, records relating to recognition,
with malafide intention, which amounts to
criminal breach of trust. Many fake and
forged documents were found during
inspection of Head Master's chamber,
which were sealed in the presence of
Magistrate. The FIR was lodged against the
revisionist under Section 419, 420, 467,
468, 471, 504, 409 IPC and the police
investigated
the
case
and
recorded
statements of the informant- Acting Head
Master, Sri Chandrabhan Singh, Teacher of
Kanhaiya Junior High School and Sri Anil
Chaudhary, Sri Krishna Kant Sharma, Sri
Ram Surat Patel- office clerks, Sri Inarmal
Prasad,
Sri
Rajesh
Maurya,
office
attendants
and
other
witnesses
and
collected
some
documents
during
investigation
and
after
finding
the
complicity of the accused, submitted
chargehseet against him with prayer to
prosecute him before the court in said
sections.

4.

Learned
Magistrate
took
cognizance of the offence on 3.6.2017 and
issued process to the accused. The accused
was enlarged on bail. He assailed the
chargesheet and cognizance taking order as
well as entire criminal proceeding pursuant
3 All. Brijendra Swaroop Jaiswal Vs. State of U.P. & Anr.
41
to criminal Case No.5289 of 2017, under
Section 419, 420, 467, 468, 471, 504, 409
IPC, Police Station Shahpur, District
Gorakhpur, before this Court, which was
dismissed by this Court with observation
that on perusal of FIR and material
collected by Investigating Officer, on the
basis of which the chargesheet has been
submitted, it makes out a prima facie case
against the accused at this stage and the
Court did not find any justification to quash
the chargehseet or the cognizance or the
proceeding against the applicant arising out
of them. The accused moved an application
for discharge before the court below at the
stage of commencement of trial on
18.8.2022 on grounds that the informant is
real younger brother of the accusedapplicant, who has lodged a false FIR
against him to grab the property of the
school. The Investigating Officer has
submitted the chargesheet against the
applicant without carrying out proper and
fair investigation and in absence of any
evidence, the applicant has not committed
any false impersonation or he has not
derived any unlawful gain by cheating
anyone. There is no evidence that he has
committed any offence. There is no any
document on record which can be termed
as a forged document. No document has
been placed on record in respect of the
alleged forgery, which is said to have been
committed or the applicant nor he has used
any forged document as genuine. Even
there is no specific allegation against the
applicant that he abused any particular
person and specific works used in abusing
have also not been brought on record on the
basis of entire record. It is obvious that
there is no evidence available against the
applicant as to what short of property was
entrusted to the applicant and by which act
he has committed criminal breach of trust.
No offence is made out against the
applicant and he deserves to be discharge
from said charges.

5. Learned court below by impugned
order dismissed the said application for
discharge, which is maintainable under
Section 239 Cr.P.C., with observation that
the applicant is charged for committing
trespass in the office of the school after his
suspension, abusing the Acting Head
Master and causing documents related to
school missing as well as committing
forgery with respect to certain documents.
The matter is of serious nature. Whether the
accused is involved in said offence or not,
can only be adjudicated on tendering of
evidence during trial. On the basis of
material available on record, a prima facie
case is made out against the applicant,
which shows his complicity in the offence
and the facts brought against him, prima
facie appears to be true. There is sufficient
ground to proceed against the accused.
Therefore, the application for discharge
moved under Section 239 Cr.P.C. is hereby
dismissed.

6. Learned counsel for the revisionist,
while pressing grounds taken in discharge
application moved by the revisionist before
the court below, further submitted that the
revisionist has been Head Master of
Kanhaiya Junior High School, Shahpur,
Geeta Vatika, Gorakhpur and has retired
from his services after obtaining age of
superannuation on 31st March, 2021. The
school is an institution on grant-in-aid from
the State Government, at its Junior High
School Level. The opposite party No.2, the
complainant, is Manager of the Managing
Committee
of
the
institution.
The
institution
is
recognized
under
the
provisions of U.P. Basic Education Act and
provisions of Uttar Pradesh Recognized
Basic
Schools
(Junior
High
School)
42 INDIAN LAW REPORTS ALLAHABAD SERIES
Recruitment and Conditions of Service of
Teachers Rule, 1978, are fully applicable to
the institution. In the year 2016, soon after
the resuming the charge of the Manager of
the
Committee
of
Management,
the
respondent No.2 started to make attempts
to earn money by adopting illegal means
and in this direction, he started issuing
orders to the revisionist to take admission
of girl students in the institution as well as
to admit students in the primary classes in
the institution. In this respect, an order
dated 24.4.2016, issued by respondent No.2
to the revisionist directing him to take
admission of girl students in the institution
has been filed as Annexure No.1 to the
affidavit. The revisionist on getting copy of
the order dated 24.4.2016, communicated
to respondent No.2, vide his letter dated
2.5.2016 that according to the order of
Basic Education Officer, Gorakhpur, dated
9.12.1998,
the
institution
is
only
recognized as an educational institution of
boys wherein only boys can be admitted as
student. The respondent No.2 did not
relished this reply of the revisionist to his
order dated 24.4.2016 and started issuing
show cause notices on different grounds to
the revisionist only to harass him (victimize
him).
Vide
order
dated
25.6.2016,
directions were issued to the revisionist by
respondent No.2to run primary classes in
the institution, whereupon the revisionist
communicated him that vide directions
issued
by
Basic
Education
Officer,
Gorakhpur,
dated
20.7.1998,
primary
classes could not be allowed to run in the
institution in view of the fact that
recognition to this effect has already been
cancelled.
The
respondent
No.2
got
annoyed with the replies given by the
revisionist to his illegal orders issued from
time to time in this context. Ultimately,
took a decision vide order dated 8.11.2016
to place the revisionist under suspension
and directions was issued to him to
handover the charge of his office to Senior
Assistant Teacher namely Sri Kapil Dev
Singh. The respondent No.2 after placing
the revisionist under suspension and giving
the charge of Office of Head Master to
Senior Assistant Teacher namely Sri Kapil
Dev Singh, started running primary classes
in the institution and also starting taking the
admission of girl students in the institution,
illegally and against the mandate of order
of Basis Education Officer, Gorakhpur. The
revisionist
reported
all
these
illegal
activities carried out by respondent No.2 to
Director of Basic Education vide his
application dated 17.8.2017. In response of
which, an order dated 6.9.2017 was issued
to make appropriate inquiry into the matter
and submit a report regarding action action
taken into the matter within a week.
However, no action in pursuance of order
dated 6.9.2017 passed by Director of Basic
Education was taken by B.S.A., Gorakhpur.
Respondent no.2 filed a frivolous and false
complainant against the revisionist before
the District Basic Education Officer,
Gorakhpur during his period of suspension
with allegation that the revisionist is not
handing over the charge of his Office to
Senior Assistant Teacher, Sri Kapil Dev
Singh,
after
his
suspension.
Further
allegations were also made that the
revisionist has locked his Office and was
not opening the lock despite several orders
passed in this effect and therefore, a request
was made by respondent No.2 to District
Magistrate to nominate any Magistrate in
presence of whom, the lock of the Office of
Principal of Insitution could be broken
open. Resultantly, the alleged lock was
broken open in presence of Nayab
Tehsildar, respondent No.2 and his staff.
Inventory of items found in the chamber of
Head Master was prepared on 22.3.2017,
soon after the opening of the lock. The
3 All. Brijendra Swaroop Jaiswal Vs. State of U.P. & Anr.
43
photocopy of the inventory has been filed
as Annexure No.9 to the affidavit, in which
routine
documents/articles
are
shown.
Some material and files belonging to some
other institution are also shown to be
recovered in the inventory. However, it is
not specified therein that any forged
document was found therein. The FIR
dated 14.4.2017 was lodged by respondent
No2 on the basis of alleged recovery,
having been made from the office of Head
Master on 22.3.2017, after opening the lock
of the office. The Investigating Officer
carried out the investigation after lodging
of the FIR. He recorded statement of PW-2
under Section 161 Cr.P.C., in which he
almost repeated the FIR version. The
Investigating Officer submitted chargesheet
against
the
revisionist
whereupon
cognizance was taken by the court below
and revisionist was summoned to face trial.
He has already been released on bail in said
criminal case by learned Sessions Judge.
The impugned order passed by learned
court below is outcome of non application
of mind and non consideration of grounds
taken in discharge application

7. Learned counsel for the revisionist
placed reliance on a judgement of Hon'ble
Apex Cort in The State By S.P. Through
SPE CBI vs. Uttamchand Bohra, in
Criminal Appeal No.1590 of 2021, dated
9th December, 2021. In this case, Hon'ble
Apex Court placed reliance on its previous
judgement
in
Central
Bureau
of
Investigation vs. K. Narayana Rao,
(2012) 9 SCC 512, wherein Hon'ble
Supreme Court summarized the principles
of discharge under Section 227 Cr.P.C. in
the following terms:-

"13. Discharge of the accused
under Section 227 of the Code was
extensively considered by this Court in P.
Vijayan [(2010) 2 SCC 398 wherein it was
held as under: (SCC pp. 401-02, paras 1011) 5 (2012) 9 SCC 512 "10. ... 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. Further,
the words 'not sufficient ground for
proceeding against the accused' clearly
show that the Judge is not a mere post
office to frame the charge at the behest of
the prosecution, but has to exercise his
judicial mind to the facts of the case in
order to determine whether a case for trial
has been made out by the prosecution. In
assessing this fact, it is not necessary for
the court to enter into the pros and cons of
the matter or into a weighing and
balancing of evidence and probabilities
which is really the function of the court,
after the trial starts.

11. At the stage of Section 227,
the Judge has merely to sift the evidence in
order to find out whether or not there is
sufficient ground for proceeding against the
accused. In other words, the sufficiency of
ground would take within its fold the nature
of the evidence recorded by the police or
the documents produced before the court
which ex facie disclose that there are
suspicious
circumstances
against
the
accused so as to frame a charge against
him.

12. The first decision in Ramesh
Singh [(1977) 4 SCC 39] relates to
interpretation of Sections 227 and 228 of
the Code for the considerations as to
discharge the accused or to proceed with
trial."

8. In Uttamchand Bohra's case
(supra), Hon'ble Apex Court has observed
as under:-
44 INDIAN LAW REPORTS ALLAHABAD SERIES

"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.

(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."

9. Per contra, learned AGA as well as
learned counsel for the opposite party No.2
supported
the
impugned
order
and
submitted that there is no infirmity or
illegality in the impugned order passed by
the learned court below. The charge can be
framed even on the basis of a strong
suspicion and meticulous examination of
evidence collected during investigation is
not required while framing of charge. A
clear, prima facie, case is made out on the
basis of FIR version and material collected
during investigation against the revisionist
and learned court below issued summon to
him after finding sufficient grounds to
proceed
against
him
and
discharge
application moved by the revisionist has
been dismissed on the ground that a, prima
facie, case has been made out to frame
charges against accused/revisionist. The
revisionist was found guilty of various
irregularities and misconduct committed by
3 All. Brijendra Swaroop Jaiswal Vs. State of U.P. & Anr.
45
the him while carrying out his duties as
Head Master of said institution, who was
placed under suspension and an inquiry
was instituted against him.

10. Learned counsel for the opposite
party No.2 further submitted that he got
appointment as Assistant Teacher and
thereafter as Head Master without having
requisite qualification in violation of the rule
4(2) and 4(2)-Kha of U.P. Recognised Basic
Schools (Junior High Schools) (Recruitment
And Conditions Of Service Of Teachers)
Rules, 1978. The deficiencies in connection
with his appointment were found correct in
departmental enquiry by Enquiry Committee
and his services are terminated by orders of
Managing Committee and approved by
B.S.A. His termination order was issued on
30.6.2020 by the Authorized Controller.

11. As the offence is in the nature of
warrant trial, which is triable by a Magistrate
and in case of a prayer for discharge made by
the
accused,
Section
239
Cr.P.C.
is
applicable, which provides 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. Section 240 Cr.P.C. reproduced as
under:-

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 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.

13. Section 227 Cr.P.C. reproduced 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.

14. On perusal of FIR and material on
record, it appears that following allegations
are made against the revisionist in present
matter:-

(1) He committed tempering in
records,
indiscipline
and
financial
irregularities while posted as Head Master of
Kanhaiya Junior High School, Shahpur,
Geeta Vatika, Gorakhpur, and for that reason,
he
was
placed
under
suspension
on
8.11.2016;

(2) He trespassed into the office
of the School, misbehaved with and
insulted the acting Head Master and office
clerks and also abused them;

(3) He signed the attendance
register in unauthorized manner;

(4) He locked the Head Master's
room on being placed under suspension and
46 INDIAN LAW REPORTS ALLAHABAD SERIES
even after many requests, he abstained
from opening the lock and ultimately the
matter was reported by the Manager to
higher authorities and lock was broken
open on 22.3.2017, in presence of a
nominated Executive Magistrate (Nayab
Tehsildar) and videography was conducted.

(5) Large number of files and
other documents were found in the locked
office of Head Master, which included files
regarding approval of service book of ten
employees, files relating to payment, files
relating to grant in aid, scholarship
distribution
recognition,
sheets
of
examination result of students, files relating
to correspondence;

(6) The revisionist misplaced
certain
important
documents/records,
which were entrusted to him dishonestly
and some forged and fake documents were
found while conducting search of the
office.

14. So far as, appending signature on
attendance register by the revisionist during
period of suspension is concerned, this is
not an offending act but obviously this is an
official misconduct. In statement of the
informant as well as witnesses, no
document has been specified regarding
which forgery has been committed by the
revisionist. It is also not specified as to
what short of documents were stolen or
misplaced by the revisionist. Even it, it is
accepted that the document found in the
Office of the Head Master at the time of
conducting
search
comes
within
the
purview of property and being Head
Master, these documents were entrusted to
him, are will be presumed to be under
constructive entrustment of the revisionist
by the institution. It cannot be discerned
that the misappropriated these documents
only due to the fact that he had locked these
documents in his Office room after being
placed under suspension and avoided
opening the lock on being required to do by
the Management.

15. The allegations with regard to
fraud, forgery and criminal breach of trust
must be specific and not vague. Learned
Magistrate while dismissing the application
for discharge has not properly addressed
the grounds taken in discharge application
and only narrating the allegations made
against the revisionist in FIR and case
diary, he opted to dismiss the discharge
application, while observing that the prima
facie case is made out against the
revisionist for framing charge and his
discharge application is liable to be
dismissed. No doubt, the meticulous
analysis and examination of material
collected during investigation is neither
called for nor required for framing of
charge or adjudicating the issue of question
of discharge raised by the accused, yet
charge cannot be made only on the baiss of
bald allegations and there must be some
material in respect of the said allegations.
Learned Magistrate failed to specify the
material collected during investigation in
support of the allegations and charge made
against the revisionist. Therefore, the
impugned order is not supported with well
considered
reasons
and
established
principles of law regarding framing of
charge and discharge of the accused.

16. In view of foregoing discussions
and the case law cited above, this Court is
of considered opinion that the learned court
below has failed to pass a reasoned and
speaking order addressing the grounds
taken in discharge application. The right of
seeking discharge is a valuable right of the
accused and trial court is atleast under
obligation to address the grounds taken in
discharge application in the light of
3 All. Smt. Alka & Ors. Vs. State of U.P. & Anr.
47
material collected during investigation.
Therefore, the revision is liable to be
allowed and the impugned order deserves
to be set aside.

17. Accordingly, present revision
stands allowed and the impugned order
passed by learned Additional Chief Judicial
Magistrate, Second, Gorakhpur, is hereby
set aside and the matter is remanded back
to learned Magistrate to hear and decide the
application for discharge moved by the
revisionist afresh, strictly, in accordance
with law as well as in the light of
observations made in present revisional
order.
----------
(2024) 3 ILRA 47
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 07.03.2024
BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Criminal Revision No. 378 of 2021

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

Counsel for the Revisionists:
Sri Ram Jee Saxena, Sri Raghuvansh
Chandra

Counsel for the Opposite Parties:
G.A., Sri Ashok Kumar Pandey

Criminal Law - Indian Penal Code, 1860 -
Sections 323, 504, 500, 166, 166-A, 409 &
120-B - Code of Criminal Procedure, 1973
- Sections 190, 197, 397 & 401 - State
challenged order dated 17.02.2021 by Chief
Judicial Magistrate, Barabanki, rejecting final
report, accepting protest application, and taking
cognizance against public servants (C.D.O., S.P.,
S.H.O., I.O.) under Sections 120-B and 166-A
IPC without sanction under Section 197 Cr.P.C.
Court held: (1) Cognizance against public
servants (C.D.O., S.P., S.H.O., I.O.) for acts in
discharge of official duties invalid without prior
government sanction under Section 197 Cr.P.C.
(2) No specific allegations or material evidence
supported cognizance under Section 409 IPC for
embezzlement; mere discrepancies in reports
insufficient. (3) FIR for non-cognizable offences
(Sections 323, 504, 500 IPC) wrongly registered
under Section 154 Cr.P.C.; trial as St. case
illegal. (4) Section 166-A IPC inapplicable as
failure to register FIR under Section 409 IPC not
covered. (5) Magistrate's order lacked prima
facie
satisfaction
of
offence
ingredients,
rendering it unsustainable (Amod Kumar Kanth
Vs Assn. of Victim of Uphaar Tragedy, 2023 SCC
Online SC 578; St. of Orissa Vs Ganesh Chandra
Jew, (2004) 8 SCC 40; Gauri Shankar Prasad Vs
St. of Bihar, (2000) 5 SCC 15; St. of U.P. Vs
Ram Swaroop, (1974) 4 SCC 764).
Revision allowed.

Case Law Cited:

1. Amod Kumar Kanth Vs Assn. of Victim of
Uphaar Tragedy, 2023 SCC Online SC 578 (Para
16, 21)

2. St. of Orissa Vs Ganesh Chandra Jew, (2004)
8 SCC 40 (Para 23)

3. Gauri Shankar Prasad Vs St. of Bihar, (2000)
5 SCC 15 (Para 22)

4. St. of U.P. Vs Ram Swaroop, (1974) 4 SCC
764 (Para 13)

5. P. Ravindran Vs St., 2010 SCC Online Mad
1709 (Para 11, not binding)

6. Revision Allowed; Impugned Order Set Aside.

(Delivered by Hon'ble Subhash Vidyarthi,
J.)

1. Heard Sri Vinod Kumar Shahi, the
learned
Additional
Advocate
General
assisted by Sri Anurag Verma, the learned
A.G.A.-I appearing on behalf of the State -
Revisionist, Sri Krishna Gopal, the learned
Counsel for the opposite party no.2 and
perused the records.