# Brijesh Kumar & Ors v. State of U.P. & Anr

- **Citation:** (2020) 11 ILRA 29
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-08-07
- **Case number:** Application U/S 482 No. 7478 of 2020
- **Bench:** Rahul Chaturvedi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/brijesh-kumar-ors-v-state-of-u-p-anr-45396
- **Pages:** 14

## Headnote

Criminal law - Code of Criminal Procedure,
1973-
Section
227-
Section
228-
Discharge- Stage of framing the Charge-
Considerations- The object of Sections
227 and 228 of Cr.P.C. is to ensure that,
the Court is satisfied that the accusation
made
against
the
accused
are
not
frivolous and that there are some material
for
proceeding
against
them.
The
following principles emerge that (i) the
Judge while considering the question of
framing the charges under Section 228 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, (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 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, (iv) That in exercising his
jurisdiction under Section 227 of the Code
the Judge which under the present Code is
a senior and experienced 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. 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 is conducting a trial.

At the stage of framing the charge, after sifting
and weighing the evidence, the court has only
to see whether there is some material making
out a prima facie case or the same discloses
grave suspicion for proceeding against the
accused, the court will proceed with the framing
of the Charge but where the said material raises
only some suspicion instead of grave suspicion
then the accused may be entitled to be
discharged.

Code of Criminal Procedure, 1973- Section
91- Summons to produce a document or a
thing- If the investigator is not fair and
the material of "sterling quality" are left
out from the records of the case, the law
courts are not powerless to summon those
material/documents which touches the
core issue in exercise of power under
section 91 of Cr.P.C. To exercise power
under section 91 of Cr.P.C., the Court is to
be satisfied that the material available
were either accidentally or mischievously
are not made part of the case diary or
charge sheet by the Investigator but have
a crucial bearing on the issue while
framing the 'charge'.

If the court is satisfied that material of sterling
quality which has a crucial bearing on the core
issue has been omitted during the course of the
investigation, then the court can summon the
same at the stage of framing the Charge u/s 91
of the Cr.Pc.

The documents if placed on record and
taken into consideration, clearly reject
and
overrule
the
veracity
of
the
30 INDIAN LAW REPORTS ALLAHABAD SERIES
allegations contained in the accusation
levelled by the prosecution/complainant.
It must be taken into account at this
stage. The reason is quite simple that if
these materials are taken on record they
would change the entire tone, texture and
tenor of the accusation made in the FIR
and completely blast the prosecution story
and save the accused/applicants from the
wrath, undue and unwarranted criminal
case against them.

In the present case the documents relied upon
by the accused are of a sterling quality and
must be taken into account by the court as the
same negate the case of the prosecution against
them in entirety.

Applicants to submit the relevant documents
before the court concerned

## Text

_Characters 0–39,979 of 48,454. This is a partial read: ask again with offset=39979 for what follows._

11 All. Brijesh Kumar & Ors. Vs. State of U.P. & Anr.
29
(2020)11ILR A29
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 07.08.2020

BEFORE

THE HON'BLE RAHUL CHATURVEDI, J.

Application U/S 482 No. 7478 of 2020

Brijesh Kumar & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Nipun Singh, Sri Upendra Kumar

Counsel for the Opposite Parties:
A.G.A.

Criminal law - Code of Criminal Procedure,
1973-
Section
227-
Section
228-
Discharge- Stage of framing the Charge-
Considerations- The object of Sections
227 and 228 of Cr.P.C. is to ensure that,
the Court is satisfied that the accusation
made
against
the
accused
are
not
frivolous and that there are some material
for
proceeding
against
them.
The
following principles emerge that (i) the
Judge while considering the question of
framing the charges under Section 228 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, (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 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, (iv) That in exercising his
jurisdiction under Section 227 of the Code
the Judge which under the present Code is
a senior and experienced 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. 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 is conducting a trial.

At the stage of framing the charge, after sifting
and weighing the evidence, the court has only
to see whether there is some material making
out a prima facie case or the same discloses
grave suspicion for proceeding against the
accused, the court will proceed with the framing
of the Charge but where the said material raises
only some suspicion instead of grave suspicion
then the accused may be entitled to be
discharged.

Code of Criminal Procedure, 1973- Section
91- Summons to produce a document or a
thing- If the investigator is not fair and
the material of "sterling quality" are left
out from the records of the case, the law
courts are not powerless to summon those
material/documents which touches the
core issue in exercise of power under
section 91 of Cr.P.C. To exercise power
under section 91 of Cr.P.C., the Court is to
be satisfied that the material available
were either accidentally or mischievously
are not made part of the case diary or
charge sheet by the Investigator but have
a crucial bearing on the issue while
framing the 'charge'.

If the court is satisfied that material of sterling
quality which has a crucial bearing on the core
issue has been omitted during the course of the
investigation, then the court can summon the
same at the stage of framing the Charge u/s 91
of the Cr.Pc.

The documents if placed on record and
taken into consideration, clearly reject
and
overrule
the
veracity
of
the
30 INDIAN LAW REPORTS ALLAHABAD SERIES
allegations contained in the accusation
levelled by the prosecution/complainant.
It must be taken into account at this
stage. The reason is quite simple that if
these materials are taken on record they
would change the entire tone, texture and
tenor of the accusation made in the FIR
and completely blast the prosecution story
and save the accused/applicants from the
wrath, undue and unwarranted criminal
case against them.

In the present case the documents relied upon
by the accused are of a sterling quality and
must be taken into account by the court as the
same negate the case of the prosecution against
them in entirety.

Applicants to submit the relevant documents
before the court concerned which shall direct
further investigation for the purpose of verifying
their authenticity and thereafter the learned
court below to decide the discharge application
again.

Criminal Application allowed.
 (Para 20, 22, 23, 25, 28) (E-3)

Judgements relied upon/ Discussed:-

1. C.B.I, Hyderabad Vs K. Narayan Rao (2012) 9
SCC 512

2. M.E. Shivaling Murthy Vs. C.B.I. Bengluru
(2020) 1 SCC (Crl) 811

3. St. of Orissa Vs Debendra Nath Padhi (2005)
1 SCC 568

4. Hardeep Singh Etc. Vs St. of Punj. & ors. Etc.
(2014) 3 SCC 92

5. Nitya Dharmananda @ K. Lenin & anr. Vs
Gopal Sheelum Reddy (2018) 1 SCC(Cri) 458

6. Rajiv Thapar & ors. Vs Madan Lal Kapoor
(2013) 3 SCC(Crl) 158

7. Rukmini Navekar Vs Vijaya Satardekar & ors.
(2008) 14 SCC 1

(Delivered by Hon'ble Rahul Chaturvedi, J.)

[1] Heard Sri Nipun Singh, learned
counsel for the applicants, learned A.G.A.
for the State and perused the record.

[2] The problematic and fluid
question of law, involved in the present
criminal application is, as to whether
evidence/material
of
impeccable
and
sterling quality, if, left unattended during
the investigation by the investigator or by
the prosecutor, could they be produced by
the accused while seeking 'DISCHARGE'
and court can take judicial notice of those
facts/documents material ?

[3] After appreciating the gravity of
this legal question involved, this Court is of
the view to decide this application at the
threshold/admission stage with the aid and
help of learned counsel for the rival parties
and learned A.G.A and perused the
records/materials of the case.

[4] The prayer sought in the instant
482 Cr.P.C application while invoking the
extraordinary jurisdiction of this Court is,
to quash the order dated 31.01.2020 passed
by the learned Additional Sessions Judge,
Court No.3, Mainpuri in S.T. No.216 of
2018(State Vs. Brijesh Kumar and others)
relating to case crime no.107 of 2018 under
section 304 IPC, Police Station-Bewar,
District-Mainpuri
whereby
learned
Additional Sessions Judge has rejected the
"Application no.9-B" moved on behalf of
applicants under section 227 Cr.P.C.,
seeking their discharge from the offence
mentioned above.

[5] The distilled facts of the case in
hand, the applicants, though they are
charge-sheeted accused of abovementioned
case crime for alleged act of manslayer of
one Kiran Devi(55). The applicant nos. 1, 2
and 3 are real brothers whereas the
11 All. Brijesh Kumar & Ors. Vs. State of U.P. & Anr.
31
applicant no.4 is the father of above
mentioned three applicants. As gathered
from the FIR, there was a long drawn
serious animosity and bad breath between
the applicants and opposite party no.2 on
account of local body elections of the year
2017 which is point of genesis in present
criminal case.

[6] Submission made by learned
counsel for the applicants, that highly
belated FIR was lodged by one Anuj
Kumar-opposite party no.2(son of the
deceased) against five named accused
persons which includes the applicants for
the incident said to have been taken place
on 25.02.2018 and its report under section
154 Cr.P.C i.e. F.I.R. was registered on
01.03.2018. Thus, there is substantial and
unexplained delay in lodging of the FIR
about eight good days.

[7] Prosecution story as mentioned in
the FIR, the informant Anuj Kumar though
the
resident
of
Village-Madhukarpur,
Mainpuri but at present he is gainfully
employed at Delhi in some private concern.
On 25.02.2018 around three in the evening
with regard to trivial and insignificant issue
i.e. drainage from the bathroom, the named
accused persons assaulted his mother by
lathi and dandas causing severe and
grievous injuries to her which resulted into
her sad and untimely demise though during
her treatment in private nursing home at
Agra. The co-villagers extended help and
taken her to Saifai Medical College, Saifai,
Etawah for her treatment and lastly she was
shifted to Maa Bhagwati Hospital, Agra but
unfortunately on 01.03.2018 around one in
the night, she took her last breath. It is
borne out from the FIR itself that soon after
her demise at nursing home, Agra, first of
all her inquest was prepared in the nursing
home itself and thereafter dead body was
transmitted to the mortuary at Agra for her
Autopsy report and lastly, the informant
managed to lodge the FIR against named
accused persons in consonance with the
post mortem report of the deceased after
coming back to Mainpuri at Police StationBewar Mainpuri.

[8] Learned counsel for the applicants
has drawn the attention of the Court to the
post mortem report dated 01.03.2018
(Annexure-5) conducted by Dr. Sudhir
Kumar. A perusal of the post mortem
report indicates that the deceased has
sustained following two injuries over her
person :-

(i) 5 X 4 c.m. Multiple contusion
on left upper arm.

(ii) 6 X 6 c.m. Color on bluish
color on Rt. Upper of thigh laterally.

Besides above, the doctor also
observed
clotted blood
in both
the
chambers of her heart and as such on this
account, he opined that deceased died on
account
of
shock
as
a
result
of
M.I(Mayocardial Infarction) commonly
known as heart attack. It was argued by
learned counsel for the applicants that even
in the wildest dream, the injuries mentioned
in the post mortem report be said to be a
fatal or deadly one, either by their
dimension wise or by its seat-wise.

[9] It is further contended by learned
counsel for the applicants, that true and
correct facts lies somewhere else, but on
account of handy work of informant, it has
been given colour of 'homicide not
amounting to murder' after cooking up an
imaginary story. Learned counsel for the
applicants has drawn the attention of the
Court to the various submissions made in
the petition itself and its supporting
documents
as
well
as
apparent
32 INDIAN LAW REPORTS ALLAHABAD SERIES
contradictory
statements
of
witnesses
which touches the core issue annexed with
discharge application or with this petition.
From the averments in the petition or in the
discharge application, it is not clear that
these documents(medical prescriptions of
the deceased) are part and parcel of case
diary or not? Assuming for the sake of
arguments,
that
these
supporting
documents/medical prescriptions of the
deceased are not the part of the case diary
then, it is incumbent upon the learned Trial
Judge to direct further investigation into the
matter especially to ensure the authenticity
of those medical prescriptions of the
deceased. This fact and documents(medical
prescriptions) assumes greater importance
and significance if she died on account of
cardiac arrest, as opined by the doctor in
his post mortem report.

[10]

Learned
counsel
for
the
applicants has emphatically relied upon
those medical prescriptions in the shape of
supporting documents of the deceased in
support of their discharge application.

[11] Sri Nipun Singh, learned counsel
for the applicants has strenuously argued
that, the prosecution case is an eye wash
and a cock and bull story whereby, the
informant of the case has tried to raise the
castle after exploiting deceased's untimely
death of his mother Ms. Kiran Devi.
According to learned counsel for the
applicants, in fact, deceased-Kiran Devi
died on account of heart attack as a result
of Hyper Tension. It is contended that the
deceased was an old patient of hyper
tension for the last several years, which has
led
to
her
unfortunate
demise
on
01.03.2018. But on the contrary, as
mentioned in the FIR, that on account of
certain drainage issue, the applicants
assaulted upon the deceased by lathi danda
and make her injured. She sustained several
injuries/bruises over her person and soon
after the incident, she was brought to some
private clinic at Mainpuri itself. The
attending
doctor
administered
certain
medicines to her but despite of the fact that,
her condition got deteriorated and on the
very next day i.e. 26.02.2018, she was
admitted in local medical college at Saifai,
Etawah. The out patient slip (annexure-1)
shows that at the time of her admission at
medical college, her blood pressure was
160/100 mmhg and she was unconscious
when brought to the hospital. Immediately,
attending Dr. R.K. Yadav administered
injunction of LAXIS and he was at the
advice of E.C.G. The other documents
annexed in support thereof clearly shows
that she was observing major fluctuation in
her blood pressure and has shown the poor
progress despite of medication. At last,
Kiran Devi (the deceased) was forceably
got discharge from the local medical
college, Saifai Etawah by her attendants
and they got her admitted in a local nursing
home for a short span at Mainpuri in a
precarious stage. The doctors at local
nursing home too explained the condition
of the patient to her attendants and advised
them to take her to the higher, specialized
centre for better treatment at Agra. The
attendants
of
the
patient-Kiran
Devi
decided to carry her to Agra and got her
admitted in a private nursing home,
namely, Maa Bhagwati Hospital, Agra on
27.02.2018 at 6:15 p.m. But the doctors
could not save her despite of their efforts,
and treatment. On 01.03.2018, patientKiran devi died in nursing home during her
treatment. At the cost of repetition, it was
argued
by
learned
counsel
for
the
applicants, that medical prescriptions of
deceased shows that during all these period,
she was either unconscious or semiconscious on account of her fluctuating and
11 All. Brijesh Kumar & Ors. Vs. State of U.P. & Anr.
33
unstable blood pressure which has given
rise
to
number
of
other
internal
complications.

[12]

Learned
counsel
for
the
applicants has emphatically shown that
there was not even a reference in the
various medical prescriptions, that she has
received any visible bodily injuries over
her person, as alleged in the FIR. If there is
an assault by lathi and danda by the
applicants, she must have sustained certain
visible injuries over her person.

[13] From the aforesaid, learned
counsel for the applicants has tried to
impress upon the Court, that since she was
chronic patient of hyper tension and was
undergoing treatment for the same at
different centres/nursing homes and at last
she could not be saved from the cruel hands
of providence. Though, she died untimely
but in a natural circumstances during her
treatment. The opposite party no.2, who is
her son, has exploited of this unfortunate
incident to level the score by giving a
colour to the entire incident as culpable
homicide not amounting to murder for the
reasons best known to him. In addition to
above, learned counsel for the applicants
has shown the self-contradictory 161
Cr.P.C. statements of various witnesses of
facts and the attending doctors.

[14] First and foremost statement of
Anuj Kumar-informant and his father
Surendra Babu who have broadly supported
the prosecution case as mentioned in the
FIR, it is stated that the applicants have
assaulted the injured-Kiran Devi by lathi
and danda but Smt. Raj Kumari, jethani of
the deceased who accompanied her all the
hospitals and nursing home in her 161
Cr.P.C statement states that though there
was a scuffle but there was no assault by
lathi and danda upon her as alleged in the
FIR. In her 161 Cr.P.C. statement, Smt. Raj
Kumari states that on account of "rough
push" made by applicant no.4, deceased has
fallen down and probably could it be the
reason behind shooting up of her blood
pressure which has eventually taken her life
?

[15] The Court has an occasion to
peruse the 161 Cr.P.C. statement of Dr.
Santosh Kumar Yadav(Annexure-10), who
is the attending doctor and the doctor in his
statement on 04.04.2018 states that he has
treated the deceased on 25.02.2018 but he
has not observed any visible injury over her
person. She was conscious, speaking and
has not sustained any injury over her body
which could be termed as serious or
grievous injury. Dr. Rama Kant Yadav,
Neurologist, P.G.I. Saifai in 161 Cr.P.C.
statement on 28.05.2018, states that though
he admitted her and he has treated the
deceased but has not divulge anything in
his 161 Cr.P.C. statement. Similarly, Dr.
R.S. Yadav, M.B.B.S. Mainpuri Nursing
Home in 161 Cr.P.C. statement(annexure12) dated 18.04.2018 states that when the
deceased was brought to his nursing home
on 27.02.2018, she was unconscious having
pressure of 150/90 mmhg. She was patient
of hyper tension but there was no visible
injury over her person and lastly 161
Cr.P.C. statement of Dr. Sudhir Kumar,
District Hospital Agra who prepared the
autopsy report of the deceased(Annexure16) shows that he has prepared post
mortem report at district mortuary Agra on
01.03.2018 at 1:20 p.m. and the cause of
death mentioned is M.I. which stands for
Mayocardial Infarction commonly known
as cardiac arrest. Besides this, clotted blood
was observed by the doctor in both the
chambers of her heart. This is the reason by
which she died untimely. In no uncertain
34 INDIAN LAW REPORTS ALLAHABAD SERIES
terms, Dr. Sudhir Kumar states that those
two injuries mentioned by him in her post
mortem report is having no direct bearing
or nexus with her death as they are simple
in nature on the non-vital part of her body.

[16]

Learned
counsel
for
the
applicants submits that after holding
lopsided
investigation,
recording
the
statements of the witnesses, investigation
as per prevailing circumstances in most
casual and cursory manner, submitted the
report under section 173(2) Cr.P.C. i.e.
charge sheet allegedly arriving to a
conclusion that the applicants are prima
facie involved in the offence under section
304 IPC and submitted its report on
20.07.2018 and learned Magistrate has
taken cognizance of these offences in a
mechanical and routine way.

[17] Left with no option, applicants
have to surrender before the court and got
themselves bailed out. After being bailed
out, the applicants moved an "application
no.9-B" before learned trial Judge on
13.12.2018 raising certain vital issues,
especially the medical prescriptions of the
deceased.

[18] After hearing the counsels,
learned Sessions Judge has laid over
emphasis
that
since
the
police
has
submitted the charge sheet under section
304 IPC and the learned C.J.M. has taken
cognizance on 13.08.2018 of the offence
and there is nothing on record to uproot or
dislodge the cognizance order. It has been
mentioned in the impugned order that there
is nothing on record to establish that no
prima facie case is made out against the
applicants. Learned trial Judge has relied
upon the two judgments of Hon'ble the
Apex Court while deciding the application
under section 227 Cr.P.C. and ultimately
rejected the same by passing the impugned
order dated 31.01.2020(Annexure-15). It
has been mentioned in the impugned order
that the points raised in the discharge
application and the supporting documents
are related to and matter of evidence and
cannot be adjudicated at this stage and thus,
the said discharge application stands
rejected.

[19] I have keenly perused the order
impugned and has given my thoughtful
consideration to the entire canvas of factual
narration of the case. Present application
was moved by the applicants under section
482 of Cr.P.C seeking the judicial scrutiny
of
the
order
impugned
dated
31.01.2020(Annexure-15).
Before
scrutinizing the legal aspect of the issue, it
would be relevant to spell out the bare
provisions of Section 227 of Cr.P.C. which
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.

[20] The object of Sections 227 and
228 of Cr.P.C. is to ensure that, the Court is
satisfied that the accusation made against
the accused are not frivolous and that there
are some material for proceeding against
them. This consistent stand of the Apex
Court and various decisions of this Court,
that the Judge exercising its powers under
section 227 and 228 of the Code, while
framing the charge, is required to evaluate
the material and documents made available
11 All. Brijesh Kumar & Ors. Vs. State of U.P. & Anr.
35
on record/case diary of the police with the
object of find out, if the facts emerging
therefrom, taking at their face value,
discloses the existence of all the ingredients
constituting the alleged offence. The Judge
may sift the evidence as it cannot be
expected even at that initial stage to accept
all that the prosecution material as gospel
truth even if it is opposed to common sense
or the broad probabilities of the case. The
probe of the entire case record and the
material relied as on by the prosecution
case is to find out the existence of any
material available against the accused
towards the projection of alleged offences
were or not in existence. If the judge
considers that there is no sufficient ground
or proceeding against accused, he shall
discharge the accused and shall record his
decision for doing so but "what is not
sufficient
ground
is
a
matter
of
consideration
by
the
Judge
who
is
exercising its powers under section 227 of
Cr.P.C. with the guidance laid down by the
Apex Court in the various case laws. At the
stage of framing of the charge, the Court is
to consider the material with a view to find
out if there is a ground of proceedings
against the accused. In the case of Union of
India Vs. Prafulla Kumar Samal &
Another, (1979) 3 SCC 4, Hon'ble the
Apex Court had occasion to consider the
scope and ambit of Section 227 Cr.P.C.,
which is Special Judge's power to pass
order of discharge. After noticing Section
227 Cr.P.C. in paragraph no.7, the Court
opined that :-

"7. XXXXXXXXXX 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 his function after the trial
starts. 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. 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."

[21] The Hon'ble Apex Court in the
case of C.B.I, Hyderabad Vs. K. Narayan
Rao 2012 9 SCC 512 has got an occasion
to formulate the points which are guiding
factor for deciding the application under
section 227 and 228 of Cr.P.C. which are as
follows :-

"(i) The Judge while considering
the question of framing the charges under
Section 227CrPC 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
36 INDIAN LAW REPORTS ALLAHABAD SERIES
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".

[22] Thus, on a consideration of the
authorities mentioned above, the following
principles emerge that (i) the Judge while
considering the question of framing the
charges under Section 228 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, (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 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, (iv) That in exercising his
jurisdiction under Section 227 of the Code
the Judge which under the present Code is
a senior and experienced 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. 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
is conducting a trial. This broad principles
were adhered by Hon'ble the Apex Court
consistently, till date. In the latest reported
judgment of Hon'ble Supreme Court in the
case of M.E. Shivaling Murthy Vs. C.B.I.
Bengluru (2020) 1 SCC (Crl) 811, Apex
Court opined that :-
11 All. Brijesh Kumar & Ors. Vs. State of U.P. & Anr.
37

"While deciding a discharge
application/petition, only material brought
on record by the prosecution (both in form
of oral or documentary) have to be
considered.
Accused
is
entitled
to
discharge if evidence recorded by the
police, which the prosecution proposes to
adduce the guilt of accused, even if fully
accepted before it is challenged in crossexamination or rebutted by defence
evidence, cannot show that the accused
committed the offence. Further where two
views are possible and one of them give
rise to suspicion only as distinguished
from grave suspicion, the trial Judge
would be empowered to discharge the
accused.

Though, it is open to the accused
to explain away the materials giving rise
to grave suspicion, but his submission
must be confined only to materials
produced by the prosecution. Defence of
accused cannot be looked at the stage of
discharge. Accused has no right to
produce any document at that stage."

[23] Indeed, these are the established
and golden principles for deciding the
application under section 227 and 228 of
Cr.P.C. but there are occasions where
parties or the investigator got dishonest or
the accused or the private prosecutor
prevail upon the investigation to hold
lopsided investigation of the case or even
otherwise, certain vital areas are missed by
the investigators to be probed which
touches the core issue and if these material
are brought on record, the entire texture
and tenor of the case might have changed.
Taking the eventuality into account, if the
investigator is not fair and the material of
"sterling quality" are left out from the
records of the case, the law courts are not
powerless
to
summon
those
material/documents which touches the core
issue in exercise of power under section 91
of Cr.P.C. The Court is under the
obligation to impart justice and to uphold
the rule of law. They are not debarred from
exercising its power. To exercise power
under section 91 of Cr.P.C., the Court is to
be satisfied that the material available were
either accidentally or mischievously are not
made part of the case diary or charge sheet
by the Investigator but have a crucial
bearing on the issue while framing the
'charge'. In the case of State of Orissa
versus Debendra Nath Padhi (2005) 1
SCC 568 the Hon'ble Apex Court observed
that :-

"25. Any document or other
thing envisaged under the aforesaid
provision can be ordered to be produced
on finding that the same is "necessary or
desirable for the purpose of investigation,
inquiry, trial or other proceedings under
the Code". The first and foremost
requirement of the section is about the
document being necessary or desirable.
The necessity or desirability would have to
be seen with reference to the stage when a
prayer is made for the production. If any
document is necessary or desirable for the
defence of the accused, the question of
invoking Section 91 at the initial stage of
framing of a charge would not arise since
defence of the accused is not relevant at
that stage. When the section refers to
investigation, inquiry, trial or other
proceedings, it is to be borne in mind that
under the section a police officer may
move the court for summoning and
production of a document as may be
necessary at any of the stages mentioned
in the section. Insofar as the accused is
concerned, his entitlement to seek order
under Section 91 would ordinarily not
come till the stage of defence. When the
section talks of the document being
38 INDIAN LAW REPORTS ALLAHABAD SERIES
necessary and desirable, it is implicit that
necessity
and
desirability
is
to
be
examined considering the stage when
such a prayer for summoning and
production is made and the party who
makes it, whether police or accused. If
under Section 227, what is necessary and
relevant is only the record produced in
terms of Section 173 of the Code, the
accused cannot at that stage invoke
Section 91 to seek production of any
document to show his innocence. Under
Section 91 summons for production of
document can be issued by court and
under a written order an officer in charge
of a police station can also direct
production thereof. Section 91 does not
confer any right on the accused to
produce document in his possession to
prove his defence. Section 91 presupposes
that when the document is not produced
process may be initiated to compel
production thereof."

[24] However, in the case of Hardeep
Singh Etc. versus State of Punjab and
ors. Etc. (2014) 3 SCC 92, a Bench of
Hon'ble the Apex Court observed :-

"19. The court is the sole
repository of justice and a duty is cast
upon it to uphold the rule of law and,
therefore, it will be inappropriate to
deny the existence of such powers with
the courts in our criminal justice
system where it is not uncommon that
the real accused, at times, get away by
manipulating the investigating and/or
the prosecuting agency. The desire to
avoid trial is so strong that an accused
makes efforts at times to get himself
absolved
even
at
the
stage
of
investigation or inquiry even though
he
may
be
connected
with
the
commission of the offence."

[25] Thus, Hon'ble the Apex Court in
the case of Nitya Dharmananda alias K.
Lenin and another vs. Gopal Sheelum
Reddy also known as Nithya Bhaktananda
and another (2018) 1 SCC(Cri) 458
summarise by mentioning that while the
Court has to proceed on the basis of
material produced with the charge sheet for
dealing with the issue of charge but if the
court is satisfied that there is material of
"sterling quality" which has been withheld
by the investigator/prosecutor, the court is
not debarred from summoning or relying
upon the same even if such document is not
a part of the charge sheet.

[26] In the instant case, the applicants
have invoked the extraordinary powers of
this Court under section 482 Cr.P.C. by
canvassing
the
fact
that
the
investigator/police
after
holding
lopsided/coloured
investigation
either
deliberately
or
unintentionally
have
skipped
over
to
examine/investigate
another facet of the coin i.e. the deceased
was suffering from hyper tension and
which resulted heavy upon her life but
opposite party no.2 exploited this situation
to secure his ultimate object to level his
score with the applicants. It is contended by
the counsel that this Court, in extraordinary
power vested in it by way of 482 Cr.P.C.
application, should take a judicial note of
the fact and direct the court below to either
direct for further investigation so that these
medical prescriptions may be taken on
record and in the light of the same, the
discharge application may be decided.
Since, the Court is deciding the matter at
the admission stage itself, the Court is at
loss, as to whether the document relied by
or canvassed by the applicants is a part of
case diary or not. But none the less, the
Court is of the considered opinion that if
these documents are taken on record, the
11 All. Brijesh Kumar & Ors. Vs. State of U.P. & Anr.
39
entire texture of the case would have
changed and the accused applicants may be
saved from undue harassment to face the
trial. In this connection, learned counsel for
the applicants thrive upon two judgments
of Hon'ble the Supreme Cout viz :-

[27] This Court has occasion to visit
the case of Rajiv Thapar and others Vs.
Madan Lal Kapoor (2013) 3 SCC(Crl) 158
in this prospective :-

"The High Court in exercise of its
jurisdiction under section 482 Cr.P.C. must
make just and rightful choice. This is not
the stage of evaluating truthfulness or
otherwise of the allegations levelled by the
prosecution/complainant
against
the
accused. Likewise, it is not the stage for
determining how weighty the defence
raised on behalf of the accused. Even if the
accused is successful in showing some
suspicion or doubt or creating some
seepage in prosecution story in the
allegations
levelled
by
the
prosecution/complainant,
it
would
be
impermissible to discharge the accused
before trial. This is so because it would
result in giving the finality in the
accusation levelled by the prosecution
without
allowing
the
prosecution/complainant to adduce the
evidence to substantiate the same. The
jurisdiction of the High Court under
section 482 Cr.P.c, if it chooses to quash
the initiation of the prosecution against an
accused, at the stage of issuing process, or
at the stage of committal, or even at the
stage of framing of charges. These are all
stages before the commencement of the
actual trial. The same parameters would
naturally be available for later stages as
well.

The power vested in the High
Court under Section 482 of the Cr.P.C., at
the stages referred to hereinabove, would
have far reaching consequences, inasmuch
as,
it
would
negate
the
prosecution's/complainant's case without
allowing the prosecution/complainant to
lead evidence. Such a determination must
always be rendered with caution, care and
circumspection. To invoke its inherent
jurisdiction under Section 482 of the
Cr.P.C. the High Court has to be fully
satisfied, that the material produced by the
accused is such, that would lead to the
conclusion, that his/their defence is based
on sound, reasonable, and indubitable
facts; the material produced is such, as
would rule out and displace the assertions
contained in the charges levelled against
the accused; and the material produced is
such, as would clearly reject and overrule
the veracity of the allegations contained in
the
accusations
levelled
by
the
prosecution/complainant.
It
should
be
sufficient to rule out, reject and discard the
accusations
levelled
by
the
prosecution/complainant,
without
the
necessity of recording any evidence. For
this the material relied upon by the defence
should
not
have
been
refuted,
or
alternatively, cannot be justifiably refuted,
being material of sterling and impeccable
quality. The material relied upon by the
accused should be such, as would persuade
a reasonable person to dismiss and
condemn
the
actual
basis
of
the
accusations as false. In such a situation,
the judicial conscience of the High Court
would persuade it to exercise its power
under Section 482 of the Cr.P.C. to quash
such criminal proceedings, for that would
prevent abuse of process of the court, and
secure the ends of justice.

23.
Based
on
the
factors
canvassed in the foregoing paragraphs, we
would delineate the following steps to
determine the veracity of a prayer for
40 INDIAN LAW REPORTS ALLAHABAD SERIES
quashing, raised by an accused by invoking
the power vested in the High Court under
Section 482 of the Cr.P.C.:-

(i) Step one, whether the material
relied upon by the accused is sound,
reasonable, and indubitable, i.e., the
material is of sterling and impeccable
quality?

(ii)
Step
two,
whether
the
material relied upon by the accused, would
rule out the assertions contained in the
charges levelled against the accused, i.e.,
the material is sufficient to reject and
overrule the factual assertions contained in
the complaint, i.e., the material is such, as
would persuade a reasonable person to
dismiss and condemn the factual basis of
the accusations as false.

(iii) Step three, whether the
material relied upon by the accused, has
not
been
refuted
by
the
prosecution/complainant;
and/or
the
material is such, that it cannot be
justifiably
refuted
by
the
prosecution/complainant?

(iv)
Step
four,
whether
proceeding with the trial would result in an
abuse of process of the court, and would
not serve the ends of justice?

If the answer to all the steps is in
the affirmative, judicial conscience of the
High Court should persuade it to quash
such criminal proceedings, in exercise of
power vested in it under Section 482 of the
Cr.P.C. Such exercise of power, besides
doing justice to the accused, would save
precious court time, which would otherwise
be wasted in holding such a trial (as well
as,
proceedings
arising
therefrom)
specially when, it is clear that the same
would not conclude in the conviction of the
accused.

[28] In the year 2008, Hon'ble the
Apex Court had occasioned to examine the
ambit and scope of Section 482 Cr.P.C.