# Brijesh Kumar v. State of U.P. & Anr. Opp. Parties

- **Citation:** (2021) 1 ILRA 477
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-12-15
- **Case number:** Crl. Misc. Appl. u/s 482 No. 18228 of 2020
- **Bench:** Deepak Verma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/brijesh-kumar-v-state-of-u-p-anr-opp-parties-46035
- **Pages:** 5

## Headnote

Criminal Law - Criminal Procedure
Code (2 of 1974) - Section 228 -
Indian Penal Code (45 of 1860) , Ss.
302, 307 - Framing of charge - Plea
that charges framed without any
evidence
on
record
and
medical
evidence - Held - trial court while
framing of charges u/s 228 Cr.P.C.,
only had to see whether, prima facie,
case is made out - Prima facie case - a
prima facie case against accused is
said to be made out - when the
probative value of the evidence - is
such that - it is sufficient to induce
the court to believe in the existence of
the facts or consider its existence so
probable - that a prudent man ought
to act upon the supposition that those
facts
existed
or
did
happen
-
However, at this stage, there cannot
be a roving enquiry into the pros and
cons of the matter and weigh the
evidence (Para 5, 6)

Dismissed. (E-4)

List of Cases cited :-

## Text

1 All. Brijesh Kumar Vs. State of U.P. & Anr.
477
available to the Magistrate both under
Section 156(3) Cr.P.C. and under Section
202 Cr.P.C. and the Magistrate can invoke
under Section 156(3) Cr.P.C. even at the
pre-cognizable stage."

11. Thus, the apprehension of the
applicant in the present case that there
would not be a proper investigation is
misconceived. However, be as it may,
liberty is given to the applicant that in case,
he has any apprehension or is disgruntled
with the investigation, he may file a proper
application as per the Code of Criminal
Procedure before the concerned Magistrate
under the appropriate provisions and the
concerned Magistrate shall decide the said
application in accordance with law by
reasoned and speaking order.

12. Thus, in view of what has been
discussed above, no case for interference at
this stage is made out by this Court in
exercise of inherent power conferred under
482 Cr.P.C. jurisdiction.

13. Accordingly, in view of the
observation made, the present application
under Section 482 CrPC is finally disposed
of. No order as to cost.
----------
(2021)01ILR A477
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 15.12.2020

BEFORE

THE HON'BLE DEEPAK VERMA, J.

Crl. Misc. Appl. u/s 482 No. 18228 of 2020

Brijesh Kumar ...Applicant
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Applicant:
Sri Shionath Jaiswal

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

Criminal Law - Criminal Procedure
Code (2 of 1974) - Section 228 -
Indian Penal Code (45 of 1860) , Ss.
302, 307 - Framing of charge - Plea
that charges framed without any
evidence
on
record
and
medical
evidence - Held - trial court while
framing of charges u/s 228 Cr.P.C.,
only had to see whether, prima facie,
case is made out - Prima facie case - a
prima facie case against accused is
said to be made out - when the
probative value of the evidence - is
such that - it is sufficient to induce
the court to believe in the existence of
the facts or consider its existence so
probable - that a prudent man ought
to act upon the supposition that those
facts
existed
or
did
happen
-
However, at this stage, there cannot
be a roving enquiry into the pros and
cons of the matter and weigh the
evidence (Para 5, 6)

Dismissed. (E-4)

List of Cases cited :-

1. Mauvin Godinho Vs St. of Goa

2. Amit Kapoor Vs Ramesh Chander & anr.
(2012) 9 SCC 460

3. Bhawna Bai Vs Ghanshyam & ors.
(2020) 2 SCC 217

(Delivered by Hon'ble Deepak Verma, J.)

1. Heard learned counsel for the
applicant; learned counsel for the opposite
party no. 2 and; learned A.G.A. for the
State.
478 INDIAN LAW REPORTS ALLAHABAD SERIES

2. The present 482 Cr.P.C. application
has been filed to quash the order dated
04.03.2020 passed by learned Additional
Sessions Judge, FTC, Room No.1, Mau in
S.T. No.207 of 2017 (State Vs. Subhash
and others) arising out of Case Crime
No.234 of 2017, under Sections 302 and
307 I.P.C., P.S. Mohammadabad, District
Mau framing of charges only to extent
Section 307 I.P.C.

3.

Learned
counsel
for
the
applicant submits that no offence under
Section 307 I.P.C. is made out against
the applicant and framing of charge
under Section 302 and 307 I.P.C. is
without any material on record. He
further submitted that as per F.I.R. and
material on record, no prima facie case
or offence under Section 307 I.P.C. has
been made out against the applicant and
without any evidence on record and
medical evidence, framing of charge
under Section 307 I.P.C. is totally
illegal and against the evidence on
record.

4. Learned AGA opposed the
prayer of applicant and submitted that
at this stage trial court has rightly
framed the charges against the applicant
under Section 307 and 302 I.P.C. and
framing of charges are based on
evidence
collected
during
the
investigation and all the charges framed
is to be scrutinized during trial, as such,
no interference is required. It is further
argued that while framing under Section
228 Cr.P.C., the judge is not required to
record detailed reasons as to why such
charge is framed. On perusal of record
and hearing of parties, if the judge is of
the opinion that there is sufficient
ground for presuming that the accused
has committed the offence triable by the
Court of Session, he shall frame the
charge against the accused for such
offence.

5. Considering the arguments raised
by learned counsel for the applicant as well
as learned AGA, it is settled view that trial
while framing of charges under Section 228
Cr.P.C., he had to see whether, prima facie,
case is made out. In the aforesaid section,
he is not required to record detailed reason
as to why such charges framed.

6. Hon'ble Apex Court in the case of
Mauvin Godinho Vs. State of Goa has held
that the court while framing charges under
Section 227 of the Code of Criminal
Procedure should apply the prima facie
standard. Although the application of this
standard depends on facts and circumstance
in each case, a prima facie case against the
accused is said to be made out when the
probative value of the evidence on all the
essential elements in the charge taken as a
whole is such that it is sufficient to induce
the court to believe in the existence of the
facts pertaining to such essential elements
or to consider its existence so probable that
a prudent man ought to act upon the
supposition that those facts existed or did
happen. 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.

7. The court has to see is that the
material on record and the facts would be
compatible with the innocence of the
accused or not. The final test of guilt is not
to be applied at that stage.

8. The Hon'ble Apex Court in the case
of Amit Kapoor v. Ramesh Chander and
another (2012) 9 SCC 460, has held as
under:-
1 All. Brijesh Kumar Vs. State of U.P. & Anr.
479

"17. Framing of a charge is an
exercise of jurisdiction by the trial court in
terms of Section 228 of the Code, unless the
accused is discharged under Section 227 of
the Code. Under both these provisions, the
court is required to consider the record of
the
case
and
documents
submitted
therewith and, after hearing the parties,
may either discharge the accused or where
it appears to the court and in its opinion
there is ground for presuming that the
accused has committed an offence, it shall
frame the charge. Once the facts and
ingredients of the section exists, then the
court would be right in presuming that
there is ground to proceed against the
accused and frame the charge accordingly.
This presumption is not a presumption of
law as such. The satisfaction of the court in
relation to the existence of constituents of
an offence and the facts leading to that
offence is a sine qua non for exercise of
such jurisdiction. It may even be weaker
than a prima facie case. There is a fine
distinction
between
the
language
of
Sections 227 and 228 of the Code. Section
227 is the expression of a definite opinion
and judgment of the Court while Section
228 is tentative. Thus, to say that at the
stage of framing of charge, the Court
should form an opinion that the accused is
certainly guilty of committing an offence, is
an approach which is impermissible in
terms of Section 228 of the Code.

19. At the initial stage of framing of
a charge, the court is concerned not with
proof but with a strong suspicion that the
accused has committed an offence, which,
if put to trial, could prove him guilty. All
that the court has to see is that the
material on record and the facts would be
compatible with the innocence of the
accused or not. The final test of guilt is
not to be applied at that stage. We may
refer to the well-settled law laid down by
this Court in State of Bihar v. Ramesh
Singh

4. Under Section 226 of the Code
while opening the case for the prosecution
the Prosecutor has got to describe the
charge against the accused and state by
what evidence he proposes to prove the
guilt of the accused. Thereafter comes at
the initial stage the duty of the court to
consider the record of the case and the
documents submitted therewith and to hear
the submissions of the accused and the
prosecution in that behalf. The Judge has
to pass thereafter an order either under
Section 227 or Section 228 of the Code. If
the Judge considers that there is no
sufficient ground for proceeding against
the accused, he shall discharge the accused
and record his reasons for so doing, as
enjoined by Section 227. If, on the other
hand, the Judge is of opinion that there is
ground for presuming that the accused has
committed
an
offence
which
(b)
is
exclusively triable by the court, he shall
frame in writing a charge against the
accused, as provided in Section 228.
Reading the two provisions together in
juxtaposition, as they have got to be, it
would be clear that at the beginning and
the initial stage of the trial the truth,
veracity and effect of the evidence which
the Prosecutor proposes to adduce are not
to be meticulously judged. Nor is any
weight to be attached to the probable
defence of the accused. It is not obligatory
for the Judge at that stage of the trial to
consider in any detail and weigh in a
sensitive balance whether the facts, if
proved, would be incompatible with the
innocence of the accused or not. The
standard of test and judgment which is to
be finally applied before recording a
finding regarding the guilt or otherwise of
the accused is not exactly to be applied at
the stage of deciding the matter under
480 INDIAN LAW REPORTS ALLAHABAD SERIES
Section 227 or Section 228 of the Code. At
that stage the court is not to see whether
there is sufficient ground for conviction of
the accused or whether the trial is sure to
end in his conviction. Strong suspicion
against the accused, if the matter remains
in the region of suspicion, cannot take the
place of proof of his guilt at the conclusion
of the trial. But at the initial stage if there
is a strong suspicion which leads the court
to think that there is ground for presuming
that the accused has committed an offence
then it is not open to the court to say that
there is no sufficient ground for proceeding
against the accused. The presumption of
the guilt of the accused which is to be
drawn at the initial stage is not in the sense
of the law governing the trial of criminal
cases in France where the accused is
presumed to be guilty unless the contrary is
proved. But it is only for the purpose of
deciding prima facie whether the court
should proceed with the trial or not. If the
evidence which the Prosecutor proposes to
adduce to prove the guilt of the accused
even if fully accepted before it is
challenged
in
cross-examination
or
rebutted by the defence evidence, if any,
cannot show that the accused committed
the offence, then there will be no sufficient
ground for proceeding with the trial. An
exhaustive list of the circumstances to
indicate as to what will lead to one
conclusion or the other is neither possible
nor advisable. We may just illustrate the
difference of the law by one more example.
If the scales of pan as to the guilt or
innocence of the accused are something
like even at the conclusion of the trial, then,
on the theory of benefit of doubt the case is
to end in his acquittal. But if, on the other
hand, it is so at the initial stage of making
an order under Section 227 or Section 228,
then in such a situation ordinarily and
generally the order which will have to be
made will be one under Section 228 and
not under Section 227"

9. Hon'ble Apex Court in the case of
Bhawna Bai vs Ghanshyam and others,
(2020) 2 SCC 217, has held in para 13 and
16, which are as follows:

"13. Though the circumstances alleged
in the charge sheet are to be established
during the trial by adducing the evidence,
the allegations in the charge sheet show a
prima facie case against the accusedrespondent Nos.1 and 2. The circumstances
alleged by the prosecution indicate that
there
are
sufficient
grounds
for
proceedings against the accused. At the
time of framing the charges, only prima
facie case is to be seen; whether case is
beyond reasonable doubt, is not to be seen
at this stage. At the stage of framing the
charge, the court has to see if there is
sufficient ground for proceeding against
the
accused.
While
evaluating
the
materials, strict standard of proof is not
required; only prima facie case against the
accused is to be seen.

16. After referring to Amit Kapoor, in
Dinesh Tiwari v. State of Uttar Pradesh
and another (2014) 13 SCC 137, the
Supreme Court held that for framing
charge under Section 228 Crl.P.C., the
judge is not required to record detailed
reasons as to why such charge is framed.
On perusal of record and hearing of
parties, if the judge is of the opinion that
there is sufficient ground for presuming
that the accused has committed the offence
triable by the Court of Session, he shall
frame the charge against the accused for
such offence"

10. In view of the observation of
Hon'ble Apex Court, trial court's order is
not required to be interfered, as Court
1 All. Rajiv Pratap Singh Vs. C.B.I.
481
prima facie has found case under Sections
302 and 307 I.P.C. read with Section 34
I.P.C. against the applicant and has rightly
framed the charge therein.

11. After having considered the
submissions advanced by learned counsel
for the parties and after perusing the
material available on record, I do not find
any good ground to interfere in the matter
in exercise of inherent power under Section
482 Cr.P.C. for quashing of the impugned
order.

12.

The
present
482
Cr.P.C.
application lacks merit. It is accordingly,
dismissed.
----------
(2021)01ILR A481
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 25.01.2021

BEFORE
THE HON'BLE MANISH MATHUR, J.

Crl. Misc. Bail Appl. No. 8364 of 2017

Rajiv Pratap Singh ...Applicant
Versus
C.B.I. ...Opp. Party

Counsel for the Applicant:
Navneet Kumar Srivastava, Harish Pandey,
Rajendra Kumar Dwivedi, Shantanu Mishra

Counsel for the Opp. Party:
Amarjeet Singh Rakhra, Ajai Kumar, Ajeet
Pratap Singh, Anurag Kumar Singh, Vivek
Kumar Rai

A. Criminal Law - Indian Penal Code,1860Section 120-B ,302 - Arms Act, 1959-
Sections
25(1)(b)(a),26,27-applicationgrant of third bail-undertrial remained in
jail for more than 7 years-out of total 80
witnesses
only
16
witnesses
were
examined till date nor is there any
indication that they would be produced
before
trial
court
in
near
futureinvestigating
agency
has
already
completed investigation and chargesheet
filed-presence of accused may not be
necessary-applicant
is
liable
to
be
enlarged on bail-no apprehensions against
applicant of influencing witnesses and
tampering
with
evidence-role
of
the
accused is limited only to providing
information
of
whereabouts
of
the
deceased
and
of
supplying
the
weapons.(Para 1 to 30)

B. The basic rule of our criminal justice
system is 'bail, not jail'. The law presumes
an accused to be innocent till his guilt is
proved. As a presumably innocent person,
he is entitled to all the fundamental rights
including the right to liberty guaranteed
under Article 21 of the constitution. one
must not lose sight of the fact that any
imprisonment before conviction has a
substantial punitive content and it would
be improper to refuse bail for the purpose
of giving him a taste of imprisonment as a
lesson.(Para 27 to 29)

C. In deciding bail applications apart from
nature
of
accusation,
severity
of
punishment,
nature
of
supporting
evidence,
reasonable
apprehension
of
tampering with witnesses, an important
factor which should certainly be taken
into consideration by the court is the
delay in concluding the trial. Often it takes
several years, and if the accused is denied
bail but is ultimately acquitted, who will
restore so many years of his life spent in
custody.(Para 10 to 27)

The bail application is allowed. (E-5)

List of Cases Cited:

1. Kalyan Chandra Sarkar Vs Rajesh Ranjan @
Pappu Yadav & anr.(2004) 7 SCC 528

2. Chenna Boyanna Krishna Yadav Vs St. of
Mah. & anr.(2007) 1 SCC 242

3. St. of Raj.,Jaipur Vs Bal Chand (1977) AIR SC 2447