# Kailash Babu Gupta Revisionist v. Sate of U.P. and another

- **Citation:** (2009) 3 ILRA 978
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-08-26
- **Case number:** Criminal Revision No. 2971 of 2009
- **Bench:** Rajesh Chandra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kailash-babu-gupta-revisionist-v-sate-of-u-p-and-another-41595
- **Pages:** 4

## Headnote

Code of Criminal Procedure-Section 397Criminal Revision offened under Section
302,307,504 IPC-after committe of case
before
session
judge-Discharge
application
or
ground-during
investigation
nowhere
named
the
revisionist merely on suspicion no charge
can be framed-held-court not bound with
conclusion of investigation officer-even
on suspicion-charges can be framed-No
illegality committed by Trail Court-No
interference called for

Held: Para 13

It is true that the investigating officer
has concluded that the involvement of
the revisionist Kailash Gupta has not
been found in the murder of Gaurav but
the court is not bound by the conclusions
arrived at by the investigating officer.
There is sufficient material in the case
diary showing that the accused Kailash
Gupta is also prima facie involved in the
murder of Gaurav and the infliction of
injuries to Mangal Tiwari.
3 All] Kailash Babu Gupta V. State of U.P. and another
979
Case law discussed:
(2008) 10 SCC 681, C.B.I. (2007) 2 SCC (Cri)

## Text

978 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
(2) Sri Arjun Singh vs. IInd Addl. Civil
Judge, Aligarh & Ors. passed in Civil
Misc. Writ Petition No. 45549 of 1993,
decided on 20th December, 1993,
(3) Gurpreeet Singh vs. Chatterbhuj
Goel, reported in AIR 1992 Punjab and
Haryana 95,
(4) Bachcha vs. Lakhpali Devi & Ors.,
reported in 1972 AIR (All) 513.

17. The judgements relied upon by
the learned counsel for the appellant are
clearly distinguishable in the facts of the
present case, wherein the intent and scope
of Order XXXII Rule 4A of the Code of
Civil
Procedure
was
neither
under
consideration nor has been examined.

18. It is settled law that all Courts of
law are established for furtherance of
interest of substantial justice and not to
obstruct the same on technicalities.
Reference-- Jai Jai Ram Manohar Lal vs.
National Building Material Supply; AIR
1969 SC 1267, wherein it has been held
that if substantial justice and technicalities
are pitted against each other, the cause of
substantial justice should not be defeated
on technicalities. No procedure in a Court
of law should be allowed to defeat the
cause of substantial justice on some
technicalities.
Reference-Ghanshyam
Dass & Ors. vs. Dominion of India & Ors;
(1984) 3 SCC 46.

19. This Court may record that the
findings recorded by the courts below in
respect of right of Babali to represent
Shanker under the impugned judgment
has become final between the plaintiff and
defendant-Shanker, as he has not chosen
to file any second appeal.

20. No other point was pressed. No
substantial questions of law arises. The
second appeal is dismissed.
---------
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 26.08.2009

BEFORE
THE HON'BLE RAJESH CHANDRA, J.

Criminal Revision No. 2971 of 2009

Kailash Babu Gupta
 ...Revisionist
Versus
Sate of U.P. and another...Opposite Party

Counsel for the Revisionist:
Sri Satish Trivedi
Sri Ram Kishor Gupta

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

Code of Criminal Procedure-Section 397Criminal Revision offened under Section
302,307,504 IPC-after committe of case
before
session
judge-Discharge
application
or
ground-during
investigation
nowhere
named
the
revisionist merely on suspicion no charge
can be framed-held-court not bound with
conclusion of investigation officer-even
on suspicion-charges can be framed-No
illegality committed by Trail Court-No
interference called for

Held: Para 13

It is true that the investigating officer
has concluded that the involvement of
the revisionist Kailash Gupta has not
been found in the murder of Gaurav but
the court is not bound by the conclusions
arrived at by the investigating officer.
There is sufficient material in the case
diary showing that the accused Kailash
Gupta is also prima facie involved in the
murder of Gaurav and the infliction of
injuries to Mangal Tiwari.
3 All] Kailash Babu Gupta V. State of U.P. and another
979
Case law discussed:
(2008) 10 SCC 681, C.B.I. (2007) 2 SCC (Cri)
514.

(Delivered by Hon'ble Rajesh Chandra, J.)

1. This revision has been filed for
setting aside the order dated 7.7.2009
passed by Sessions Judge Jalaun rejecting
the prayer of the revisionist for his
discharge in S.T. No. 200/2008.

2. In brief the facts of the case are
that the first informant Dinesh Kumar
Tiwari lodged a report at P.S. Kandaura,
District Jalaun on 16.8.2008 at 5.40 p.m.
alleging therein that on 16.8.2008 at about
12.30 p.m. accused Kapil Gupta and
Kailash Gupta abused Mangal Tiwari and
Gaurav. When Mangal Tiwari objected to
this, accused Kailash Gupta exorted Kapil
to kill Mangal and Gaurav. Kapil
thereafter, opened fire upon Mangal
Tiwari and Gaurav causing injuries to
both of them. Subsequently, Gaurav was
declared dead.

3. After registration of case at crime
no. 140 of 2008 for the offences under
Section 302, 307, 504 I.P.C., investigation
ensued and culminated in the filing of the
charge sheet against Kapil Gupta and
Kailash Gupta.

4. The Magistrate committed the
case to the court of of Sessions where the
case was registered as S.T. No. 200 of
2008.

5. The Revisionist Kailash Gupta
moved an application in the court of
Sessions Judge alleging therein that from
the
evidence
collected
during
the
investigation
and
the
conclusions
recorded by the investigating officer, it is
confirmed that the revisionist Kailash
Gupta was not present at the spot and as
such there is no evidence against him for
framing charges. He requested for his
discharge from the case.

6. The learned Sessions Judge after
hearing the prosecution as well as
revisionist Kailash Gupta rejected the
application vide order dated 7.7.2009 and
it is against this order that the present
revision has been filed.

7. I have heard the learned counsel
for the revisionist as well as learned AGA
and perused the papers filed with the
revision.

8. The learned counsel for the
revisionist
argued
that
during
investigation the statements of the eye
witnesses namely Ramesh Shiv Hare,
Pappu @ Abdul Kalam, Vijay Gupta,
Vikram Singh, and Anil Gupta were
recorded in which they all stated that the
revisionist Kailash was not present at the
spot at the time of alleged incident. The
contention of the revisionist is that the
learned
Sessions
Judge
without
appreciating the evidence collected during
the investigation has passed the impugned
order in arbitrary manner and that the
order is illegal. In fact there was no
evidence against the revisionist to frame
the charge hence the impugned order
passed by the Sessions Judge is liable to
be set-aside.

9. I have considered over the
argument and I feel that it does not
contain any water. It is an established
principal of law that the charge may be
framed against accused even where there
is a strong suspicion that the accused has
committed the offence. In this connection
980 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
the judgement of Hon'ble Supreme Court
in Sanghi Brothers (Indore) Private
Ltd. Vs. Sanjay Chaudhari and others
(2008) 10 SCC 681 may be referred in
which it was held that

10. "even if there is a strong
suspicion about the commission of offence
and the involvement of the accused, it is
sufficient for the court to frame a charge.
At that stage, there is no necessity of
formulating
the
opinion
about
the
prospect of conviction".

11. Similarly Hon'ble Supreme
Court in Soma Chakravarty Vs. State
through C.B.I. (2007) 2 SCC (Cri) 514
held as under :

"it may be mentioned that the settled
legal position, is that if on the basis of
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. At the time of
framing of the charges the probative
value of the material on record cannot be
gone into, and the material brought on
record by the prosecution has to be
accepted as true at that stage. Before
framing a charge the court must apply its
judicial mind on the material placed on
record and must be satisfied that the
commitment of offence by the accused was
possible. Whether, in fact, the accused
committed the offence, can only be
decided in the trial".

12. In view of the above rulings it is
clear that if there is sufficient material on
record that the accused might have
committed the offence, a charge can be
framed against him.

13. In the present case there is
sufficient
evidence
to
show
the
involvement of the accused in the
commission of the Crime. There is
evidence of Dinesh Kumar Tiwari as well
as Mangal Tiwari that it was the accused
applicant Kailash Gupta who had exorted
for opening fire and thereafter, Kapil
Gupta had opened fire causing injuries to
Gaurav
and
Mangal.
Subsequently,
Gaurav succumbed to the injuries. It is
true that the investigating officer has
concluded that the involvement of the
revisionist Kailash Gupta has not been
found in the murder of Gaurav but the
court is not bound by the conclusions
arrived at by the investigating officer.
There is sufficient material in the case
diary showing that the accused Kailash
Gupta is also prima facie involved in the
murder of Gaurav and the infliction of
injuries to Mangal Tiwari.

14. The learned Sessions Judge has
not committed any illegality in rejecting
the discharge application of the accused
Kailash Gupta and I do not find any
reason to interfere with the order of the
Sessions Judge passed on 7.7.2009.

15. The revision is therefore,
dismissed.
---------
3 All] Anil Kumar Vashisth V. State of U.P. and others
981
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 07.10.2009

BEFORE
THE HON'BLE VIJAY KUMAR VERMA, J.

Criminal Misc. Application No. 19770 of
2009

Anil Kumar Vashisth

...Applicant
Versus
State of U.P. & others ...Opposite Parties

Counsel for the Applicant:
Sri R.K. Kaushik

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

Code
of
Criminal
Procedure-482Procedure after receiving final report on
protest application an order accepting
final report ignoring protest applicationeven without giving
any notice to
informant-illegal-procedure contained in
Chapter XV should be followed treating
complaint to the protest applicationorder passed by Courts below set-asidematter remanded for fresh consideration.

Held: Para 14

Consequently,
both
the
applications
under Section 482 Cr.P.C. are allowed.
Setting aside the impugned orders, the
courts below are directed to pass orders
on the protest petitions filed by the
applicants against final reports in both
the
cases,
treating
the
same
as
complaint and following the procedure
laid down under section 200 and 202
Cr.P.C.
Case law discussed:
2003 (46) ACC182.

(Delivered by Hon'ble Vijay Kumar Verma, J.)

1. "Whether the final report can be
accepted without passing any order on the
protest petition filed by the complainant
in the case where prima facie offences are
disclosed from the averments made in the
FIR,: is the main legal question that falls
for
consideration
in
both
these
applications under section 482 of the
Code of Criminal Procedure (in short, 'the
Cr.P.C.').

2. By means of Criminal Misc.
Application No. 19770 of 2009, order
dated 21.03.2009 passed by the Special
Judge, (D.A.A.), Jhansi in Criminal Misc.
Case No. 690 of 2007 (Anil Kumar
Vashisth Vs. Shiv Prakash and others)
under section 395 IPC, P.S. Irach, District
Jhansi is sought to be quashed, whereas in
Criminal Misc. Application No. 19771 of
2009, prayer to quash the order dated
20.05.2009
passed
by
the
judicial
Magistrate, Garotha in Criminal Misc.
Case No. 52 of 2008 (Km. Bhanwati Vs.
Badri
and
others)
under
section
379,352,504, 506 IPC P.S. Garotha,
District Jhansi has been made.

3. Although different orders have
been challenged by means of these
applications under section 482 Cr.P.C.,
but since the common legal question is
involved in both these applications, hence
for the sake of convenience, they are
being decided by this common order.

4. Shorn of unnecessary details, the
facts emerging from the record leading to
the filling of these applications, in brief,
are that an FIR was lodged on 17.10.2007
by Anil Kumar Vashisth (applicant in
Application No. 19770 of 2009) at P.S.
Irach (Jhansi), where a case under section
395, 397 IPC at case crime No. 320 of
2007 was registered against Sri Prakash,
Ashok Kumar, Sri Ram, Ram Kumar,
Lakhan Lal, Mahadev (opposite parties