# Chavi Lal & Ors v. State of U.P. & Anr

- **Citation:** (2022) 3 ILRA 299
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-03-05
- **Bench:** Suresh Kumar Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/chavi-lal-ors-v-state-of-u-p-anr-48184
- **Pages:** 5

## Headnote

A. Criminal Law - Code of Criminal
Procedure, 1973 -Sections 227 & 239 -
At the time of discharge application only it is
to be seen whether prima facie case is made
out? The detailed enquiry is not required at
the time of framing of charge. The accused
can be discharges only when the charge is
groundless.

Application dismissed. (E-12)

List of Cases cited:-

## Text

3 All. Chavi Lal & Ors. Vs. State of U.P. & Anr.
299
Jaunpur to issue fresh notice in accordance
with law.
----------
(2022)03ILR A299
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 05.03.2022

BEFORE

THE HON'BLE SURESH KUMAR GUPTA, J.

Application U/S 482 No. 2180 of 20018

Chavi Lal & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Rama Kant Dixit

Counsel for the Opposite Parties:
G.A.

A. Criminal Law - Code of Criminal
Procedure, 1973 -Sections 227 & 239 -
At the time of discharge application only it is
to be seen whether prima facie case is made
out? The detailed enquiry is not required at
the time of framing of charge. The accused
can be discharges only when the charge is
groundless.

Application dismissed. (E-12)

List of Cases cited:-

1. Dilawar Babu Kurane Vs St. of Mah. (2002) 2
SCC 135

2. Yogesh@Sachin Jagdish Joshi Vs St. of Mah.
(2008)10 SCC 394

3. Palvinder Singh Vs Balwinder Singh & ors.
(2009)2 SCC(Cri.)850

4. Sajjan Kumar Vs C.B.I. JT 2010(10) SC 413
(Delivered by Hon'ble Suresh Kumar
Gupta, J.)

1.

Heard
learned
counsel
for
petitioners and learned A.G.A. for the State
and perused the material available on
record.

2. By means of this petition under
Section 482 Cr.P.C. the petitioner have
sought following reliefs:-

"Wherefore, it is most respectfully
prayed that this Hon'ble Court may
graciously
be
pleased
to
set
aside
impugned order dated 08.02.2018 passed
by learned Sessions Judge, Shravasti
whereby revision of the petitioners against
the judgment and order dated 19.12.207
passed
by
learned
Chief
Judicial
Magistrate Shravasti has been rejected
without application of judicious mind."

3. Brief facts of the case are as
under:-

The revenue record i.e. Khatauni
was inspected by Tehsildar Bhinga (first
informant) of Village Panchayat Bechuwa
and it was found that Khata No. 313/4.381
acre was recorded in the name of Awadh
son of Mohan in 1395 to 1400 Fasli but the
said land was fraudulently, intentionally
and illegally was recorded/mutated in the
name of Smt. Belwa D/o Awadh, wife of
Chhavi Ram as legal heirs by Naib
Tehsildar Druv Nath Pandey on 28.12.1989
and also mentioned the fake caste in
column 13. Likewise Khata No. 482/4.062
acre was also mutated in the name of Smt.
Pushpa Devi alias Prema Devi showing the
daughter of Ram Pheran S/o Jamuna Prasad
also interring the fake caste in Column 13.
It
was
further
narrated
that
the
Investigating
Officer
investigated
the
matter and recorded the statement under
Section 161 Cr.p.C. and submitted the
charge sheet against the petitioners and also
300 INDIAN LAW REPORTS ALLAHABAD SERIES
other co-accused persons on 31.08.1992
and 26.12.1992 in Case No. 2724 of 2002
(State Vs. Chhavi Lal and others) arising
out of Case Crime No. 138 of 1992, under
Sections 167, 218, 466, 467, 468, 471, 420
and 120-B IPC, Police Station Kotwali
Bhinga District Shravasti. Thereafter the
petitioners appeared before the court
concerned and bail was granted to them.

4. Learned counsel for petitioners has
submitted that the trial court as well as
revisional court without application of
judicious mind rejected the discharge
application of the petitioner. Further
submission is that no disclosed offence is
made out against the petitioner. The
petitioner
moved
an
application
for
discharge on 6.11.2016 stating therein that
no such material evidence has been
collected by the Investigating Officer
against the petitioners on which very basis
no offence is made out and main author of
the crime is co-accused Naib Tehsildar
Dhruv Nath who made entry in the revenue
record without calling the report from
Lekhpal of concerned village and the
petitioners have not given any application
or evidence before him for mutating their
names under the proceedings of Section 34
of the Land Revenue Act.

5. Further submission is that since there
is no cogent and reliable evidence against the
petitioners, so the petitioners filed discharge
application before the learned Chief Judicial
Magistrate, Shravasti by means of order dated
19.12.2017.
Learned
Chief
Judicial
Magistrate, Shravasti rejected the discharge
application without considering the aspect of
the matter that the petitioner never moved
any application for name of the petitioners to
be recorded in the revenue record before the
Naib Tehsildar but the learned trial court
wrongly rejected the discharge application of
the petitioners. Being aggrieved with the said
order, the petitioners also filed revision
before the Sessions Court, Shravasti bearing
Criminal Revision No. NIL of 2018 (Chhavi
Lal V. State) but learned Sessions Court also
rejected the revision of the petitioners without
considering the material aspect available on
record and dismissed the revision vide order
dated 08.02.2018. It is further submitted that
the main accused i.e. Dhruv Nath Pandey,
who is the main author of this crime has not
been arrested and he is also not attending the
court in the garb of order dated 25.09.1992
passed in Writ Petition No. 6788 (SB) of
1992 while the said petition has been
dismissed for want of prosecution vide order
dated 23.12.2010.

6. It is vehemently argued by learned
counsel for petitioners that since the aforesaid
writ petition of co-accused Dhruv Nath
Pandey has already been dismissed by this
Court but still learned trial court has not
summoned the co-accused Dhruv Nath
Pandey and the petitioners are unnecessarily
suffering trauma of trial as the whole
proceedings against the petitioners have been
initiated due to malafide intention and no
disclosed offence is made out against the
petitioners. Thus, this is the abuse of the
process of law. Learned counsel for
petitioners prays to allow this petition and set
aside the entire proceedings.

7. I have heard learned counsel for
parties and perused the material available
on record.

8. "Section 239 in The Code Of
Criminal Procedure, 1973

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,
3 All. Chavi Lal & Ors. Vs. State of U.P. & Anr.
301
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."

9. Hon'ble the Apex Court in the
catena of judgment has provided that at the
time of discharge application, only it is to
be seen whether prima facie case is made
out or not? The detailed inquiry is not
required at the time of framing of charge,
the accuse can be discharged only when the
charge is groundless.

10. In the case of Dilawar Balu
Kurane Vs. State of Maharashtra reported
in (2002) Supreme Court Cases 135, the
Apex Court has examined the ambit and
scope of section 227 Cr.P.C. and held:-

"In exercising powers under
section 227 Cr.P.C., the settled position of
law is that the Judge while considering the
question of framing the charges under the
limited purpose of finding out whether or
not a prima facie case against the accused
has been made out; 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; by and large if
two views are equally possible and the
Judge is satisfied that the evidence
produced before him gave rise to some
suspicion but not grave suspicion against
the accused, he will be fully justified to
discharge the accused, and in exercising
jurisdiction under section 227 Cr.P.C., the
Judge cannot act merely as a post office
or a mouthpiece of the prosecution, but
has to consider the broad probabilities of
the case, the total effect of the evidence
and the documents produced before the
court but should not make a roving
enquiry into the pros and cons of the
matter and weigh the evidence as if he was
conducing a trial."

11. In case of Yogesh alias Sachin
Jagdish Joshi reported in (2008) 10 SCC
394,
the
Apex
court
has
almost
propounded the same principles in the
following terms:-

"It is trite that the words "not
sufficient ground for proceeding against
the accused" appearing in section 227
Cr.P.C., postulate exercise of judicial
mind on the part of the Judge to the facts
of the case in order to determine whether
a case for trial has been made out by the
prosecution. However, in assessing this
fact, the Judge has the power to sift and
weigh the material 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 a prima face
case depends upon the facts of each case
and in this regard it is neither feasible nor
desirable 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 gives rise to suspicion only as
distinguished from grave suspicion, he
will be fully within his right to discharge
the accused. At this stage, he is not to see
as to whether the trial will end in
conviction or not. The broad test to be
applied is whether the materials on
record, if unrebutted, make a conviction
reasonably possible."

12. In the case of Palwinder Singh
Vs. Balwinder Singh and others reported
in (2009) 2 SCC (Cri) 850, the Apex Court
302 INDIAN LAW REPORTS ALLAHABAD SERIES
reiterated the aforesaid principles and
held:-

"The jurisdiction of the learned
Sessions Judge while exercising power
under section 227 Cr.P.C is limited.
Charges can also be framed on the basis of
strong
suspicion.
Marshalling
and
appreciation of evidence is not in the
domain of the Court at that point of time. "

13. Apart from the aforesaid cases, in
the case of Sajjan Kumar vs. Central
Bureau of Investigation, JT 2010(10) SC
413, the Apex Court has formulated the
following guidelines with regard to the
question as to how a matter for framing a
charge against the accused is to be dealt
with:

"(i) The Judge while considering
the question of framing the charges under
Section 227 of the Cr.P.C. 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
discloses 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."

14. The aforesaid decisions have
almost settled the legal position that at the
stage of charge the court is not required to
3 All. Bablu @ Vishnu Dhar Dubey Vs. State of U.P. & Anr.
303
consider pros and cons of the case and to
hold an enquiry to find out truth.
Marshalling and appreciation of evidence is
not in the domain of the court at that point
of time. What is required from the court is
to sift and weigh the materials for the
limited purpose of finding out whether or
not a prima facie case for framing a charge
against the accused has been made out.
Even in a case of grave or strong suspicion
charge can be framed. The court has to
consider broad probabilities of the case,
total effect of the evidence and the
documents
produced
including
basic
infirmities, if any. 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,
but the court should not weigh the evidence
as if it were holding trial. Accused can be
discharged only when the charge is
groundless.

15. In my considered opinion, learned
Chief Judicial Magistrate Shravasti as well
as learned Sessions Judge has taken into
account all the relevant material and passed
the impugned orders keeping in view the
parameters laid down by Hon'ble Apex
Court. It does not appear to be a case which
is to be closed at the stage of charge.
Therefore, the submission of the learned
counsel for applicant that no charge was
made out has no substance.

16. For the reasons discussed above,
the application under Section 482 Cr.P.C.
no merits and is accordingly dismissed.

17. Interim order, if any, stands
vacated.

18. Since the matter is pending since
long time before the trial court, therefore, it
is directed that the trial court take endevour
to expedite the present case expeditiously.
----------
(2022)03ILR A303
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 16.03.2021

BEFORE

THE HON'BLE BRIJ RAJ SINGH, J.

Application U/S 482 No.3716 of 2022

Bablu @ Vishnu Dhar Dubey ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Mohd. Rashid Siddiqui, Sri Abhnav Gaur,
Sri Ankit Shukla, Ms. Ballabhi Shukla, Sri
Anoop Trivedi (Sr. Adv.)

Counsel for the Opposite Parties:
A.G.A., Sri Irfanul Huda, Sri O.P. Singh (Sr.
Adv.)

A.
Criminal
Law
-
Code
of
Criminal
Procedure, 1973 - Section 319(1) - The
provision of de-novo trial is mandatory for the
accused summoned u/S 319 Cr.P.C. It vitally
affects the rights of the person so brought before
the court. It would not be sufficient to tender the
witnesses for cross examination of such a person.
Rather, they have to be examined afresh
B. Criminal Law - Code of Criminal
Procedure, 1973 - Section 319(1) - The
words 'could be tried together with the accused'
in Section 319 Cr.P.C. appear to be only
directory. 'Could be' cannot under these
circumstances be held to be 'must be'.

Application allowed. (E-12)

List of Cases cited:-

1. Tahir & anr. Vs St. of U.P. 2000(1) JIC
588(All)