# Jawahar Lal & Anr v. State of U.P. & Anr. Opp. Parties

- **Citation:** (2023) 12 ILRA 212
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-11-29
- **Case number:** Application U/S 482 No. 6741 of 2023
- **Bench:** Shree Prakash Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jawahar-lal-anr-v-state-of-u-p-anr-opp-parties-49548
- **Pages:** 6

## Headnote

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power - Section 227 -Discharge , Section
228 - Framing of Charge , Indian Penal
Code, 1860 - sections 302/34, 201, 306 -
at the time of framing of charges and
taking cognizance, the accused has no
right to produce any material and call
upon the court to examine the same - trial
court has to apply its judicial mind to the
facts of the case as may be necessary to
determine whether the case has been
made out by the prosecution for trial on
the basis of the charge sheet material only
- a thing is to be done in manner
prescribed
in
the
statute
and
not
otherwise.(Para -17, 18, 21)

Complainant filed an application under section
228 of Code - claiming accused committed
offenses under sections 302 read with
sections 34 and 201 I.P.C. - I.O. filed a
charge sheet under section 306 of I.P.C. -
After thorough investigation - Sessions Court
concluded that there is a basis to presume
the
accused
committed
offenses
under
sections 302/34 and 201 of I.P.C. - ignored
the charge sheet filed under section 306 of
I.P.C. and material evidence collected by the
I.O..(Para - 14)
HELD:- At the stage of framing of charges,
considering the materials, placed through an
application moved by the complainant, is
unsustainable in the eyes of law. Order dated
10-02-2023 passed on complainant's application
contradicts Section 228 of the Code. Impugned
order set aside. Matter transmitted back to
Sessions Court concerned to proceed afresh, in
accordance with law.(Para - 22, 23, 24, 25)

Application u/s 482 Cr.P.C. allowed. (E-7)

List of Cases cited:-

## Text

212 INDIAN LAW REPORTS ALLAHABAD SERIES
(2023) 12 ILRA 212
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 29.11.2023

BEFORE

THE HON'BLE SHREE PRAKASH SINGH, J.

Application U/S 482 No. 6741 of 2023

Jawahar Lal & Anr. ...Applicants
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Applicants:
Ramakar Shukla

Counsel for the Opp. Parties:
G.A., Satyendra Kumar Tiwari

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power - Section 227 -Discharge , Section
228 - Framing of Charge , Indian Penal
Code, 1860 - sections 302/34, 201, 306 -
at the time of framing of charges and
taking cognizance, the accused has no
right to produce any material and call
upon the court to examine the same - trial
court has to apply its judicial mind to the
facts of the case as may be necessary to
determine whether the case has been
made out by the prosecution for trial on
the basis of the charge sheet material only
- a thing is to be done in manner
prescribed
in
the
statute
and
not
otherwise.(Para -17, 18, 21)

Complainant filed an application under section
228 of Code - claiming accused committed
offenses under sections 302 read with
sections 34 and 201 I.P.C. - I.O. filed a
charge sheet under section 306 of I.P.C. -
After thorough investigation - Sessions Court
concluded that there is a basis to presume
the
accused
committed
offenses
under
sections 302/34 and 201 of I.P.C. - ignored
the charge sheet filed under section 306 of
I.P.C. and material evidence collected by the
I.O..(Para - 14)
HELD:- At the stage of framing of charges,
considering the materials, placed through an
application moved by the complainant, is
unsustainable in the eyes of law. Order dated
10-02-2023 passed on complainant's application
contradicts Section 228 of the Code. Impugned
order set aside. Matter transmitted back to
Sessions Court concerned to proceed afresh, in
accordance with law.(Para - 22, 23, 24, 25)

Application u/s 482 Cr.P.C. allowed. (E-7)

List of Cases cited:-

1. P.Kartikalakshmi Vs Sri Ganesh & anr. ,
(2017) 3 SCC 347

2. State of Gujrat Vs Kishore Singh Rao

(Delivered by Hon'ble Shree Prakash
Singh, J.)

1. Heard Sri Ramakar Shukla, learned
counsel for the applicants, Smt. Nusrat
Jahan, learned A.G.A. for the State and Sri
Satyendra Kumar Tiwari, learned counsel
for the complainant.

2. By means of instant application, the
applicants have assailed the impugned
order dated 10-02-2023 passed by the
learned Sessions Judge, Sultanpur (now
pending in the court of learned Additional
Sessions Judge, Court No. 4,Sultanpur) in
Sessions Trial No. 1080 of 2022 'State of
U.P. Vs. Sadhna @ Gudiya and Another,
arising out of Case Crime No. 77 of 2022,
under sections 302/34, & 201 of I.P.C.,
Police
Station-
Sangrampur,
District-
Amethi.

3. The facts of the case, in brief, are
that the first information report was lodged
by the complainant, namely Banshi Lal
Gupta on 29-04-2022, at 04.01 P.M. with
respect to the incident which occurred on
04-04-2022.
On
the
said
date,
the
complainant's son, namely, Anikesh @
12 All. Jawahar Lal & Anr. Vs. State of U.P. & Anr.
213
Madan, aged about 22 years, left his house
at about 07.00 P.M. to visit Kalikan Dham.
On the way, he met the applicants nearby
their houses, but, thereafter, he did not
come back. It is alleged that the applicant
no. 2 namely, Sadhna @ Gudiya was
having love affair with the complainant's
son, but, her family members were against
this love affair and they used to threaten the
complainant's son. On 06-04-2022, a
missing report of complainant's son was
lodged. The marriage of the applicant no. 2
was to be solemnized on 23-04-2022 with
some other person. On 22-04-2022, a day
before her marriage, applicant no. 2 called
the nephew of complainant's son namely,
Nitesh and tried to handover mobile phone,
purse, driving license and Aadhaar Card
etc. of the complainant's son, but, Nitesh
refused to take the same and informed the
family members about the incident.

4. After the 'Vidai Ceremony' of
applicant no. 2, the complainant made a
complaint to the father of the applicant no.
2 with respect to the previous incident that
occurred on 22-04-2022. On this, the father
of the applicant no. 2 requested the
complainant
not
to
lodge
the
first
information report.

5. On 28-04-2022, complainant saw
the dead body of his son hanging with hook
near animal hospital. It is alleged that the
applicants along with some other unknown
persons killed the son of the complainant
and they concealed his dead body.

6. Later on, the matter was
investigated by the Investigating Officer
and it was found that the deceased himself
committed suicide, whereafter, on the
application of the complainant, the matter
was reinvestigated and the Chargesheet was
filed under section 306 of I.P.C.

7. Contention of the counsel for the
applicants is that there is delay of about 25
days in lodging the first information report, as
the incident occurred on 04-04-2022 and the
first information report was lodged 29-042022. He submits that initially the first
information report was lodged for missing of
the son of the complainant, but, no allegation
was levelled against the applicants, but, after
the first information report was lodged under
sections 302 & 201 of I.P.C., the chargesheet
was filed against the applicants under section
306 of I.P.C. He further added that an
application was moved by the complainant
on 10-02-2023 before the learned trial court
for framing of charges against the applicants
under sections 302/34 & 201 of I.P.C. and on
the said application, the learned trial court
framed the charges against the applicants for
abovesaid offences, which is against the
settled proposition of law.

8. He contends that the learned trial court
could not have passed the order on an application
moved by the complainant as there is no such
provision provided in the Code of Criminal
Procedure(hereinafter
referred
as
'Code').
Referring the Sections 227 & 228 of the Code,
he added that it is not open to the complainant to
move any application for framing of charges and
it is to the court concerned, to form an opinion
that there is a ground for presuming that the
accused has committed an offence and thereafter,
the court can frame charges.

9. In support of his submissions, he
has placed reliance on the Judgment of the
Apex Court, reported in (2017)3 Supreme
Court Cases, 347, P.Kartikalakshmi Vs.
Sri Ganesh and Another and has referred
paragraph no. 7 of the said Judgment,
which is quoted hereinunder :-

"7. We were taken through
Sections 221 and 222 CrPC in this context.
214 INDIAN LAW REPORTS ALLAHABAD SERIES
In the light of the facts involved in this
case, we are only concerned with Section
216 CrPC. We, therefore, do not propose to
examine the implications of the other
provisions to the case on hand. We wish to
confine ourselves to the invocation of
Section 216 and rest with that. In the light
of our conclusion that the power of
invocation of Section 216 CrPC is
exclusively confined with the Court as an
enabling provision for the purpose of
alteration or addition of any charge at any
time
before
pronouncement
of
the
judgment, we make it clear that no party,
neither de facto complainant nor the
accused or for that matter the prosecution
has any vested right to seek any addition or
alteration of charge, because it is not
provided under Section 216 CrPC. If such
a course to be adopted by the parties is
allowed,
then
it
will
be
well-nigh
impossible for the criminal court to
conclude its proceedings and the concept of
speedy trial will get jeopardised."

10. Referring the aforesaid, he
submits that the case of the present
applicant is squarely covered with the ratio
of Judgment abovesaid and therefore, the
impugned order dated 10-02-2023, is
unsustainable.

11. Per contra, learned counsel
appearing
for
the
complainant
has
contended that the statement of the
applicant no. 2, namely, Sadhna @ Gudiya,
recorded under section 161 of Cr.P.C.,
clearly indicates that there was love affair
in between the applicant no. 2 and the
complainant's
son(deceased)
and
the
family members of the applicant no.2 were
against the said love affair, which clearly
postulates a motive behind killing the
complainant's son. He further submits that
although
the
complainant
moved
an
application for framing of charge, yet, the
learned Magistrate applied his own mind
and gave due consideration to the materials
placed on record and thus, the charges have
rightly been framed under sections 302/34
and 201 of I.P.C. against the applicants.

12. In rebuttal of the contentions of
learned counsel for the applicants, he added
that there is no denial in the Code that the
application by the complainant cannot be
moved. He submits that the application has
been moved by the complainant only to
bring the facts before the trial court so that
the charges can be framed in a correct
manner and therefore, in the aforesaid
circumstances, no prejudice is caused to
anyone and thus, no interference is
warranted in the impugned order dated 1002-2023 passed in Sessions Trial No. 1080
of 2022.

13. Learned A.G.A. appearing for the
State has also supported the version of the
learned counsel for the complainant and
submitted that there is no denial of moving
of
the
application
in
the
provision
prescribed for framing of the charges, by
the trial court. Indicating the analogy with
respect to provision of Section 227
(Discharge) as provided under the Code,
she added that infact, so far as the
discharge is concerned, no such provision
is there, but, the applications are moved for
discharge of the accused and that are being
considered and therefore, so far as the
framing of the charges are concerned, if an
application is moved by the complainant,
the same can be entertained by the trial
court and therefore, there is no ambiguity
or illegality in the impugned order dated
10-02-2023.

14. Having heard learned counsels for
the parties and after perusal of material
12 All. Jawahar Lal & Anr. Vs. State of U.P. & Anr.
215
placed on record, it transpires that after
filing of the chargesheet, the matter
proceeded and an application was moved
by the complainant as application no. 7
Kha, under section 228 of the Code and
certain material facts were brought in the
said application, while substantiating the
fact that the offence has been committed by
the
applicants/accused
persons
under
section 302 readwith sections 34 and 201 of
I.P.C..
The
fact
remains
that
the
Investigating
Officer,
after
thorough
investigation, filed the Chargesheet under
section 306 of I.P.C. The learned Sessions
Court on the application moved by the
complainant
and
taking
materials
mentioned in the application, formed an
opinion that there is a ground for
presuming that the accused has committed
an offence under sections 302/34 and 201
of I.P.C. and has ignored the chargesheet
which was filed under section 306 of I.P.C.
alongwith the material evidences collected
by the Investigating Officer.

15. Now, the question which needs to
be answered is that ;

'Whether the learned trial court
was correct in framing the charges on the
application of the complainant ?'

16. When this court examines the
facts and law in the given situation, it
reveals that the complainant lodged the first
information report against the applicants on
29-04-2022, showing the incident dated 0404-2022, after he saw the dead body of his
son, hanging in ruin near the Animal
Hospital on 28-04-2022. The Investigating
Officer,
after
collecting
the
material
evidences came to the conclusion that it is
not the case of murder, but, it is a suicide
case and thereafter, the chargesheet was
filed and the matter proceeded and the
complainant moved an application under
section 228 of the Code bearing application
no. 7 Kha and averred the material facts
and evidences and it was requested that the
charges be framed under section 302 of
I.P.C.
against
the
applicants/accused
persons. Considering and allowing the
application moved by the complainant,
learned Sessions Court passed the order on
10-02-2023 and framed charges under
sections 302/34 and 201 of I.P.C. on 10-022023.

17. This Court is cautious about the
settled law that application of judicial mind
can be tested that whether the trial court at
the stage of discharge has gone into the
issue of whether a case has been made out
by the prosecution for proceeding with trial
and at the same time, this can also be
examined that whether the trial court has
stepped in examining the defence of
accused as well as the prosecution as at the
stage of framing of charges, the mini trial
cannot be done or such court cannot go into
the merits of the case but the consideration
is to the material on account of which the
Court can presume that the accused has
committed the offence which is triable and
thereafter, the required charges is to be
framed. Time and again this issue has
widely been discussed by the Apex Court
and it has been held in case of State of
Gujrat Vs. Kishore Singh Rao that at the
time of framing of charges and taking
cognizance, the accused has no right to
produce any material and call upon the
court to examine the same.

18. With the same pen, it has also
been held that no provision of the Code
could give right to the accused to file any
material or document at the stage of
framing of charge and, therefore, the trial
court has to apply its judicial mind to the
216 INDIAN LAW REPORTS ALLAHABAD SERIES
facts of the case as may be necessary to
determine whether the case has been made
out by the prosecution for trial on the basis
of the charge sheet material only. In this
background of the matter, the analogy can
be drawn that once an accused cannot be
given a right to produce any material or any
request
to
examine
the
same,
the
complainant at the same time would have
no right to produce any material with
request to examine the same at the stage of
framing of charges, but, the trial court is to
consider the charge sheet material only and,
therefore, any material in form of fact or
evidence cannot be allowed to be placed by
the complainant and examined by the trial
court.

19. So far as the provisions for
framing of charges envisaged under section
228 of the Code are concerned, the same
does not open, for moving of an application
by the complainant, for framing of charges.
The provisions of Section 228 of the Code
are reproduced hereinunder :-

"228. Framing of Charge:

(1) If, after such consideration
and hearing as aforesaid, the Judge is of
opinion that there is ground for presuming
that the accused has committed an offence
which-

(a) is not exclusively triable by
the Court of Session, he may, frame a
charge against the accused and, by order,
transfer the case for trial to the Chief
Judicial Magistrate or any other Judicial
Magistrate of the first class and direct the
accused to appear before the Chief Judicial
Magistrate, or, as the case may be, the
Judicial Magistrate of the first class, on
such date as he deems fit, and thereupon
such Magistrate shall try the offence in
accordance with the procedure for the trial
of warrant-cases instituted on a police
report;

(b) is exclusively triable by the
Court, he shall frame in writing a charge
against the accused.

(2) Where the Judge frames any
charge under clause (b) of subsection (1),
the charge shall be read and explained to
the accused and the accused shall be asked
whether he pleads guilty of the offence
charged or claims to be tried."

20. Referring the aforesaid, he
submits that under the provision of Section
227 of the Code, which speaks about the
discharge of an accused, the accused and
the prosecution have an opportunity to be
heard and the stage of framing of charges,
starts after application of mind by the
learned trial court on the discharge whereas
the provision of section 228 it starts with
the wordings that 'After if any such
consideration
and
hearing
aforesaid',
meaning thereby that the complainant has
no occasion or opportunity to move any
application at the stage of framing of
charges.

21. It is a trite law that a thing is to be
done in manner prescribed in the statute
and not otherwise and therefore, in absence
of any overt provision, the application with
prayer to frame the charges for the
particular
offence,
moved
by
the
complainant, is against the provisions of
law, prescribed in the Code. Probably, the
legislature cautiously did not provide such
provision and to meet out with such
exigency, the provisions under section 464
of the Code is provided which rectifies the
effect of omission to frame, or absence of,
or error in charge.

22. This court is of considered
opinion that at the stage of framing of
12 All. Ahmad Hussain @ Chhanu Vs. State of U.P. & Anr.
217
charges, considering the materials, placed
through an application moved by the
complainant, is unsustainable in the eyes of
law.

23. In view of the aforesaid
submissions and discussions, it emerges
that the order dated 10-02-2023 has been
passed, taking note of the facts, placed vide
application of the complainant, whereas the
same goes against the provisions of Section
228 of the Code.

24. Consequently, the impugned order
dated 10-02-2023 passed in Sessions Trial
No.1080 of 2022 (State of U.P. Vs.
Sadhana@Gudia) is hereby set aside.

25. The matter is transmitted back to
the Sessions Court concerned to proceed
afresh, in accordance with law.

26. The instant application is allowed
accordingly.
----------
(2023) 12 ILRA 217
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 05.12.2023

BEFORE

THE HON'BLE KARUNESH SINGH PAWAR, J.

Application U/S 482 No. 10822 of 2023

Ahmad Hussain @ Chhanu ...Applicant
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Applicant:
Nadeem Murtaza, Arun Sinha, Wali Nawaz
Khan

Counsel for the Opp. Parties:
G.A.

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power - Section 227 - Discharge, Chapter
XXIX
-
Appeals,
The
Uttar
Pradesh
Gangsters
and
Anti-Social
Activities
(Prevention) Act, 1986 - Section 18 -
Appeal - provisions of Chapter XXIX of the
Code shall mutatis mutandis, apply to an
appeal against any judgment or order of a
Court passed under the provisions of this
Act, Indian Penal Code, 1860 - Sections
504, 506,353,332.

Preliminary objection regarding maintainability
of application under Section 482 Cr.P.C. -
statutory alternative remedy of appeal under
Section 18 of U.P. Gangsters and Anti-Social
Activities (Prevention) Act, 1986 - application for
discharge filed under Section 227 of Code -
order passed upon application for discharge
cannot be said to be an order passed under the
provisions of the Act - discharge application
rejected - same is an order passed under the
Code - embargo created vide Section 18 of the
Act not applicable - no provision under Chapter
XXIX of Code to deal with the appeal against
such rejection/discharge application.(Para - 3,
4)

HELD:- Impugned order passed under Section
227 of the Code and not under any of the
provisions of the Act . No provision under
Chapter XXIX of the Code for appeals against
rejection/discharge
applications.
Alternative
remedy of appeal under Section 18 of the Act
does not apply. Applicable for orders passed
under Section 17 of the Act or under any other
section of that Act. Application under Section
482
Cr.P.C.
maintainable.Interim
Prayer
allowed. (Para - 4, 12)

N.B.W. issued stayed until next date of
listing. (E-7)

List of Cases cited:-

1. Jangali Pasi Vs St. of U.P. & anr. , 2015(6)
ADJ 551 (DB)

2. U.O.I. Vs Prafulla Kumar Samal, (1979) 3 SCC
4