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

- **Citation:** (2021) 4 ILRA 50
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-01-25
- **Case number:** Crl. Misc. W.P. No. 3320 of 2015
- **Bench:** Dr. Yogendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mahendra-kumar-ors-v-state-of-u-p-anr-47022
- **Pages:** 5

## Headnote

Code
of
Criminal
Procedure,1973 - Section 245 - At the
time of consideration of the application,
only probative value of the material has to
be gone into and the Court is not expected
to go deep into the matter. (Para 18)

For the applicability of Section 245(1) what is
required is that all evidence that may be
produced is taken and not that all evidence that
the complainant intends to produce in the case
has to be taken. The discretion of the
Magistrate under Section 245(1) is to discharge
the
accused
without
affording
further
opportunity to the complainant to summon
witnesses he is yet to produce. (Para 15)

Writ Petition Rejected. (E-8)

List of Cases cited:-

## Text

50 INDIAN LAW REPORTS ALLAHABAD SERIES

35. Let this order be communicated to
the Commissioner, Agra Division, Agra,
the District Magistrate, Firozabad and the
Superintendent of Police, Firozabad by the
Joint Registrar (Compliance).
----------
(2021)04ILR A50
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.01.2021

BEFORE

THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

Crl. Misc. W.P. No. 3320 of 2015

Mahendra Kumar & Ors. ...Petitioners
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioners:
Sri Ghan Shyam Mishra, Sri Ramesh Kumar
Shukla

Counsel for the Respondents:
A.G.A., Sri Nabi Ullah

(A) Practice & Procedure - Discharge
Application
-
Code
of
Criminal
Procedure,1973 - Section 245 - At the
time of consideration of the application,
only probative value of the material has to
be gone into and the Court is not expected
to go deep into the matter. (Para 18)

For the applicability of Section 245(1) what is
required is that all evidence that may be
produced is taken and not that all evidence that
the complainant intends to produce in the case
has to be taken. The discretion of the
Magistrate under Section 245(1) is to discharge
the
accused
without
affording
further
opportunity to the complainant to summon
witnesses he is yet to produce. (Para 15)

Writ Petition Rejected. (E-8)

List of Cases cited:-
1. Onkar Nath Mishra & ors. Vs State (NCT of
Delhi) & anr. (2008) 2 SCC 561

2. St.of Mah. Vs Som Nath Thapa (1996) 4 SCC 659

3. St. of M.P. Vs Mohanlal Soni (2000) 6 SCC
338

4. Sheoraj Singh Ahlawat & ors. Vs St. of U.P. &
anr. (2013) 11 SCC 476

5. St. of T.N. Vs Suresh Rajan & ors. (2014) 11
SCC 709

(Delivered by Hon'ble Dr. Yogendra
Kumar Srivastava, J.)

1. Heard learned counsel for the
petitioners and Sri Arvind Kumar, learned
A.G.A. appearing for the State respondent.

2 . The present petition under Article
226 of the Constitution of India was filed
seeking a writ of certiorari for quashing of
the orders dated 15.2.2014 and 11.12.2014
passed by the 1st Additional Chief Judicial
Magistrate Varanasi and the Additional
Sessions Judge, Court No. 8, Varanasi
respectively, in terms of which the
application
of
the
petitioner
seeking
discharge was rejected and the revision
filed thereagainst was also dismissed.

3. Upon the matter being taken up, on
06.02.2015, the parties were referred to
mediation. The order sheet indicates that as
per the report received from the mediation
centre dated 09.08.2019, the mediation was
completed but no agreement could be
arrived at between the parties.

4. With the consent of counsel for the
parties, the petition is taken up for final
disposal.

5. Upon an order passed on an
application under Section 156 (3) Cr.P.C.,
4 All. Mahendra Kumar & Ors. Vs. State of U.P. & Anr.
51
filed by the respondent no. 2, a first
information report was registered on
16.09.2006 as Case Crime No. C-33/06
under Sections 498-A, 323, 504 I.P.C. and
3/4 Dowry Prohibition Act against the
petitioners.
The
investigation
was
concluded
and
a
final
report dated
05.11.2006 was submitted. The respondent
no. 2 submitted a protest petition on
12.09.2008
whereupon
the
learned
Magistrate rejected the final report and
registered Case No. 112 of 2012. The
complainant
and
the
witnesses
were
examined under Sections 200 and 202 and
the petitioners were summoned to face the
trial.

6. An application for discharge under
Section 245 Cr.P.C. was moved which was
rejected by the Additional Chief Judicial
Magistrate Varanasi vide order dated
15.02.2014. The revision filed thereagainst
was also dismissed by the Additional
Sessions Judge in terms of judgment and
order dated 11.12.2014. Aggrieved with the
aforesaid orders the present petition has
been filed.

7. The principal ground raised in the
petition is that the evidence on record does
not disclose that any offence is made out
against the petitioners and the courts below
have failed to consider the facts of the case
and the material evidence while rejecting
the discharge application moved by the
petitioners. It is further submitted that the
petitioners have been falsely implicated and
that the entire proceedings are aimed at
causing harassment to them.

8. The aforementioned contentions
have been controverted by the learned
A.G.A. appearing for the State respondent
and the counsel for the respondent no. 2 by
submitting that at the stage of proceedings
under Section 245 the Magistrate is only
required to consider the evidence prima facie
and is not required to go into the evidence in
full details. It is submitted that the order passed
by the courts below do not suffer from any error
or illegality and that the present petition is liable
to be dismissed.

9. In order to appreciate the rival
contentions the relevant statutory provision
may be adverted to. For ease of reference
Section 245 is being reproduced below:-

"245. When accused shall be
discharged.- (1) If, upon taking all the
evidence referred to in section 244, the
Magistrate considers, for reasons to be
recorded, that no case against the accused
has been made out which, if unrebutted,
would
warrant
his
conviction,
the
Magistrate shall discharge him.

(2) Nothing in this section shall
be deemed to prevent a Magistrate from
discharging the accused at any previous
stage of the case if, for reasons to be
recorded by such Magistrate, he considers
the charge to be groundless."

10. In a warrant case instituted
otherwise than on a police report, the
Magistrate may under Section 244 take all
such evidence as may be produced in support
of the prosecution. It is at this stage, upon
taking all the evidence referred to in Section
244, if the Magistrate considers, for reasons
to be recorded that no case against the
accused has been made which, if unrebutted,
would
warrant
his
convocation,
the
Magistrate shall discharge him.

11 . The Magistrate, at this stage, is
only required to consider the evidence
52 INDIAN LAW REPORTS ALLAHABAD SERIES
prima facie with a view as to whether the
evidence, if unrebutted, would result in
conviction.

12. The nature of evaluation to be
made by the court at the stage of framing of
charge came up for consideration in Onkar
Nath Mishra and others Vs. State (NCT
of Delhi) and another1, and referring to
the
earlier
decisions
in
State
of
Maharashtra Vs. Som Nath Thapa2, and
State of M.P. Vs. Mohanlal Soni3, it was
held that at that stage the Court has to form
a presumptive opinion as to the existence of
the factual ingredients constituting the
offence alleged and it is not expected to go
deep into the probative value of the
material
on
record.
The
relevant
observations made in the judgment are as
follows :-

"11. It is trite that at the stage of
framing of charge the court is required to
evaluate the material and documents on
record with a view to finding out if the
facts emerging therefrom, taken at their
face value, disclosed the existence of all the
ingredients constituting the alleged offence.
At that stage, the court is not expected to
go deep into the probative value of the
material on record. What needs to be
considered is whether there is a ground for
presuming that the offence has been
committed and not a ground for convicting
the accused has been made out. At that
stage, even strong suspicion founded on
material which leads the court to form a
presumptive opinion as to the existence of
the factual ingredients constituting the
offence alleged would justify the framing
of charge against the accused in respect of
the commission of that offence.

xxx

13. Then again in State of
Maharashtra Vs. Som Nath Thapa, a threeJudge Bench of this Court, after noting
three pairs of sections viz. (i) Sections 227
and 228 insofar as sessions trial is
concerned; (ii) Sections 239 and 240
relatable to trial of warrant cases; and (iii)
Sections 245(1) and (2) qua trial of
summons cases, which dealt with the
question of framing of charge or discharge,
stated thus: (SCC p. 671, para 32)

"32...if on the basis of materials
on record, a court could come to the
conclusion that commission of the offence
is a probable consequence, a case for
framing of charge exists. To put it
differently, if the court were to think that
the accused might have committed the
offence it can frame the charge, though for
conviction the conclusion is required to be
that the accused has committed the offence.
It is apparent that at the stage of framing of
a charge, probative value of the materials
on record cannot be

gone into; the materials brought
on record by the prosecution has to be
accepted as true at that stage."

14. In a later decision in State of
M.P. Vs. Mohanlal Soni, this Court,
referring to several previous decisions held
that: (SCC p. 342, para 7)

"7. The crystallised judicial
view is that at the stage of framing
charge, the court has to prima facie
consider whether there is sufficient
ground for proceeding against the
accused. The court is not required to
appreciate
evidence
to
conclude
whether the materials produced are
sufficient or not for convicting the
accused. "
4 All. Mahendra Kumar & Ors. Vs. State of U.P. & Anr.
53

13. Reiterating a similar view in
Sheoraj Singh Ahlawat and others Vs.
State of Uttar Pradesh and another4, it
was held that the Court trying the case can
direct discharge only for reasons to be
recorded by it and only if it considers the
charge
against
the
accused
to
be
groundless.

14. The scope of the exercise of
power and jurisdiction with regard to
discharge again came up for consideration
in State of Tamil Nadu Vs. N. Suresh
Rajan and others5, and it was held that no
mini trial is contemplated at the stage of
considering the discharge application and
only probative value of the materials has to
be gone into to see if there is a prima facie
case for proceeding against the accused.
The observations made in the judgment in
this regard are as follows :-

"29...It is trite that at the stage of
consideration
of
an
application
for
discharge, the Court has to proceed with an
assumption that the materials brought on
record by the prosecution are true and
evaluate the said materials and documents
with a view to find out whether the facts
emerging therefrom taken at their face
value disclose the existence of all the
ingredients constituting the alleged offence.
At this stage, probative value of the
materials has to be gone into and the court
is not expected to go deep into the matter
and hold that the materials would not
warrant a conviction. In our opinion, what
needs to be considered is whether there is a
ground for presuming that the offence has
been committed and not whether a ground
for convicting the accused has been made
out. To put it differently, if the Court thinks
that the accused might have committed the
offence on the basis of the materials on
record on its probative value, it can
frame the charge; though for conviction,
the court has to come to the conclusion that
the accused has committed the offence. The
law does not permit a mini trial at this
stage. "

15. The scope of powers under
Section 245 Cr.P.C. is therefore limited
and the prayer for discharge can be
allowed only if the entire evidence, even
if it remains unrebutted, no offence
whatsoever
is
made
out.
For
the
applicability of Section 245 (1) what is
required is that all evidence that may be
produced is taken and not that all
evidence that the complainant intends to
produce in the case has been taken. The
discretion
of
the
Magistrate
under
Section 245 (1) is to discharge the
accused
without
affording
further
opportunity
to
the
complainant
to
summon witnesses he is yet to produce.

16. Sections 245 and 246 are
supplemental to each other and before
drawing the presumption under Section
246 and framing of charge, the test of
prima facie case is required to be applied
which would mean a case established by
prima facie evidence.

17. Section 245 (2) empowers the
Magistrate to discharge the accused at
any previous stage of the case, if for
reasons to be recorded, he considers the
charge to be groundless. In order to
exercise jurisdiction under sub-section
(2), there must be sufficient ground or
material on record for coming to the
conclusion that the charge is groundless
and where a prima facie case is made out
discharge of the accused under subsection (2) would not be proper.
54 INDIAN LAW REPORTS ALLAHABAD SERIES

18. At this stage of consideration of
an application for discharge, only probative
value of the material has to be gone into
and the Court is not expected to go deep
into the matter. The scope of consideration
by the Court would be as to whether there
is ground for presuming that the offence
has been committed and not whether a
ground for convicting the accused has been
made out.

19. In the case at hand, the Additional
Chief Judicial Magistrate while considering
the application filed under Section 245 (2)
Cr.P.C. has duly taken note of the evidence
recorded in support of the prosecution
under Section 244 to record a conclusion
with regard to the sufficiency of material
for framing of charge taking into note that
at this stage only a prima facie case is
required to be seen. The Magistrate has
held that on the basis of the material on
record it cannot be said that no case is
made
out
against
the
accused
and
accordingly, has proceeded to reject the
application seeking discharge.

20. The revisional court has duly
taken note of the fact that the Magistrate
upon duly looking into the material on
record has come to the conclusion that
there is sufficient material to proceed for
framing of charge and has rejected the
discharge application for the reason that
only a prima facie case was required to be
seen at that stage. Taking into consideration
the aforesaid, the Additional Sessions
Judge exercising revisional powers has held
that there is no material irregularity or
jurisdictional error in the order passed by
the Magistrate and accordingly has rejected
the revision.

21 . Counsel for the petitioner has not
been able to point out any material error,
irregularity or perversity in the orders
passed by the courts below so as to warrant
interference.

22. The contention sought to be put
forward that the petitioners have been falsely
implicated or that on the basis of the evidence
on record no offence is made out against them,
cannot be considered at this stage of the
proceedings where only the test of a prima facie
has to be applied to consider the evidence with
a view as to whether the evidence, if unrebutted,
would result in conviction.

23. For the reasons aforestated, this Court
is not inclined to exercise its extraordinary
jurisdiction in the matter.

24. The petition stands accordingly
dismissed.
----------
(2021)04ILR A54
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.04.2021

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE AJIT SINGH, J.

FAFO No.- 2905 of 2014

Smt. Rashmi Jain & Anr. ...Appellants
Versus
Smt. Seema Devi & Ors. ...Respondents

Counsel for the Appellants:
Sri Vidya Kant Shukla

Counsel for the Respondents:
Sri Mansoor Ahmad, Sri Pranjal Mehrotra,
Sri Ram Shiromani Yadav

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