# Manoj Kumar & Ors. Revisionists v. State Of U.P. & Anr

- **Citation:** (2016) 5 ILRA 554
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-05-18
- **Bench:** Suneet Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/manoj-kumar-ors-revisionists-v-state-of-u-p-anr-43873
- **Pages:** 7

## Headnote

This revision is directed against the judgement and order dated 2 March 2016, passed by learned Special
Chief Judicial Magistrate, Allahabad in Complaint Case No. 4270 of 2008 (Shyama Devi Vs. Manoj and others),
under Sections 323, 504, 506, 452 IPC, P.S. Daraganj, District Allahabad, whereby the learned Magistrate has
rejected the discharge application filed under Section 245(2) Cr.P.C.

Having considered the statement of law, at the stage of section 245(2) Cr.P.C, only prima facie case is to
be seen as it is the stage before evidence of prosecution under Section 244 is led. Bare perusal of the
statement under Section 200 and 202 Cr.P.C would prima facie, disclose the ingredients of offence against the
revisionist. The learned counsel for the revisionist failed to point out any illegality or jurisdictional error.

The revision being devoid of merit is accordingly dismissed.

Held: Para-

Case Law discussed:
Sunil Mehta and another Vs. State of Gujarat and another, 2013 (9) SCC 209,
AIR 1971 SC 1925; Cricket Association of Bengal and others Vs. State of West Bengal and others,
AIR 2008 SC 1731; S.K.Alagh Vs. State of U.P and others, Century Spg. And Mfg. Co. Ltd. Vs. State of
Maharashtra, (1972) 3 SCC 282 : 1972 SCC (Cri) 495,
Ajoy Kumar Ghose Vs. State of Jharkhand and another, (2009) 14 SCC
Nanhey Lal and other Vs. State of U.P, 2014 Crl. L. J 1405,
AIR 1971 SC 1120; Lt. Col. S.K. Kashyap and another Vs. The State of Rajasthan,

## Text

554 INDIAN LAW REPORTS ALLAHABAD SERIES
when the license was not granted for building purposes, would not attract the provisions of Section
60 and render license irrevocable.

16. The only dispute in this matter is as to whether the defendant/appellant being licensee
is liable for eviction of disputed property or not ,and this point has been rightly decided by the two
lower courts that defendant/appellant cannot get relief of injunction restraining his eviction and
plaintiff/respondent cannot get relief of injunction restraining his eviction and plaintiff/respondent
having revoked his license, is entitled for relief of eviction of defendant. The other point to be
determined in this matter was relating to alleged permanent construction raised by
defendant/appellant. This was not a question of law but was a question of fact that could be decided
on the basis of evidences as has been done by the lower courts. Although, it has been mentioned in
written-statement that defendant/appellant had filled some pit but there is no specific pleading that
constructions present over disputed property were raised or constructed by appellant, and that too
acting upon the license or with permission of the grantor of the license. Therefore, status of
defendant/appellant is that of trespasser, who was earlier a licensee but whose license had been
revoked, so he is liable for eviction. There appears no error or infirmity in judgment of both the
lower courts.

17. On examination of the reasoning recorded by the trial court, which are affirmed by the
learned first appellate court in first appeal, I am of the view that the judgments of the trial court as
well as the first appellate court are well reasoned, based upon proper appreciation of the entire
evidence on record. No question of law, much less a substantial question of law was involved in the
case before the High Court. No perversity or infirmity is found in the concurrent findings of fact
recorded by the trial court that has been affirmed by the first appellate court to warrant interference
in this appeal. None of the contentions of the learned counsel for the appellant- plaintiffs can be
sustained.

18. In view of the above, this Court finds that no substantial question of law arises in this
appeal. The second appeal is dismissed.
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REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 18.5.2016

BEFORE

THE HON'BLE SUNEET KUMAR, J.

Criminal Revision No.- 1168 Of 2016

Manoj Kumar & Ors. ...Revisionists
Versus
State Of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionists:
5 All. Manoj Kumar & Ors. Vs State Of U.P. & Anr.

555
Dashrath Ram, Dashrath Prasad

Counsel for the Opposite Parties:
G.A.

This revision is directed against the judgement and order dated 2 March 2016, passed by learned Special
Chief Judicial Magistrate, Allahabad in Complaint Case No. 4270 of 2008 (Shyama Devi Vs. Manoj and others),
under Sections 323, 504, 506, 452 IPC, P.S. Daraganj, District Allahabad, whereby the learned Magistrate has
rejected the discharge application filed under Section 245(2) Cr.P.C.

Having considered the statement of law, at the stage of section 245(2) Cr.P.C, only prima facie case is to
be seen as it is the stage before evidence of prosecution under Section 244 is led. Bare perusal of the
statement under Section 200 and 202 Cr.P.C would prima facie, disclose the ingredients of offence against the
revisionist. The learned counsel for the revisionist failed to point out any illegality or jurisdictional error.

The revision being devoid of merit is accordingly dismissed.

Held: Para-

Case Law discussed:
Sunil Mehta and another Vs. State of Gujarat and another, 2013 (9) SCC 209,
AIR 1971 SC 1925; Cricket Association of Bengal and others Vs. State of West Bengal and others,
AIR 2008 SC 1731; S.K.Alagh Vs. State of U.P and others, Century Spg. And Mfg. Co. Ltd. Vs. State of
Maharashtra, (1972) 3 SCC 282 : 1972 SCC (Cri) 495,
Ajoy Kumar Ghose Vs. State of Jharkhand and another, (2009) 14 SCC
Nanhey Lal and other Vs. State of U.P, 2014 Crl. L. J 1405,
AIR 1971 SC 1120; Lt. Col. S.K. Kashyap and another Vs. The State of Rajasthan,

(Delivered by Hon'ble Suneet Kumar, J.)

1. This revision is directed against the judgement and order dated 2 March 2016, passed by
learned Special Chief Judicial Magistrate, Allahabad in Complaint Case No. 4270 of 2008 (Shyama
Devi Vs. Manoj and others), under Sections 323, 504, 506, 452 IPC, P.S. Daraganj, District
Allahabad, whereby the learned Magistrate has rejected the discharge application filed under
Section 245(2) Cr.P.C.

2. The facts would reveal that the revisionist was summoned in a complaint under Section
323, 504, 506, 452 IPC, upon recording statement of the complainant under Section 200 and of his
witness under Section 202 Cr.P.C. The revisionist while assailing the summoning order would
contend that the statement recorded under Section 200 and 202 Cr.P.C is not reliable and false
statement. Learned Magistrate rejected the application recording in the impugned order that prima
facie, the ingredients of the offence is disclosed from the statements, further, sufficiency of the
evidence is not to be gone into at the stage of summoning.

3. Learned counsel for the revisionist would submit that the case set up by the opposite
party is false case and would contend that the fact of the case is entirely different from that set up in
the complaint.
556 INDIAN LAW REPORTS ALLAHABAD SERIES
4. In Sunil Mehta and another Vs. State of Gujarat and another, 2013 (9) SCC 209, the
question that fell for determination was as to whether deposition of complainant and his witnesses
recorded under Chapter XV of the Code before cognizance is taken by the Magistrate would
constitute evidence for the Magistrate to frame charges against the accused under Part B of Chapter
XIX of the Code.

5. The essential difference of procedure in the trial of warrant case on the basis of a police
report and that instituted otherwise than on the police report, is particularly marked in Sections 238
and 239 Cr.P.C. on one side and Sections 244 and 245 Cr.P.C., on the other. Under Section 238,
when in a warrant case, instituted on a police report, the accused appears or is brought before the
Magistrate, the Magistrate has to satisfy himself that he has been supplied the necessary documents
like police report, FIR, statements recorded under Sub-section (3) of Section 161 Cr.P.C. of all the
witnesses proposed to be examined by the prosecution, as also the confessions and statements
recorded under Section 164 and any other documents, which have been forwarded by the
prosecuting agency to the Court. After that, comes the stage of discharge, for which it is provided
in Section 239 Cr.P.C. that the Magistrate has to consider the police report and the documents sent
with it under Section 173 Cr.P.C. and if necessary, has to examine the accused and has to hear the
prosecution of the accused, and if on such examination and hearing, the Magistrate considers the
charge to be groundless, he would discharge the accused and record his reasons for so doing. The
prosecution at that stage is not required to lead evidence. If, on examination of aforementioned
documents, Magistrate comes to the prima facie conclusion that there is a ground for proceeding
with the trial, he proceeds to frame the charge. For framing the charge, he does not have to pass a
separate order. It is then that the charge is framed under Section 240 Cr.P.C. and the trial proceeds
for recording the evidence. Thus, in such trial prosecution has only one opportunity to lead
evidence and that too comes only after the charge is framed.

6. However, in a warrant trial instituted otherwise than on a police report, when the
accused appears or is brought before the Magistrate under Section 244(1) Cr.P.C., the Magistrate
has to hear the prosecution and take all such evidence, as may be produced in support of the
prosecution. In this, the Magistrate may issue summons to the witnesses also under Section 244(2)
Cr.P.C. on the application by prosecution. All this evidence is evidence before charge. If the
Magistrate comes to the conclusion that there is no such case made out against the accused, the
Magistrate proceeds to discharge him. On the other hand, if he is satisfied about the prima facie
case against the accused, the Magistrate would frame a charge under Section 246(1) Cr.P.C. The
complainant then gets the second opportunity to lead evidence in support of the charge unlike a
warrant trial on police report, where there is only one opportunity. In the warrant trial instituted
otherwise than the police report, the complainant gets two opportunities to lead evidence, firstly,
before the charge is framed and secondly, after the charge.

7. Chapter XV of Cr.P.C deals with complaints made to Magistrate, Section 200 which
appears in the said Chapter inter alia provides that the Magistrate taking cognizance of an offence
on a complaint shall examine upon oath the complainant and the witnesses present, if any, and the
substance of such examination shall be reduced to writing and signed by the complainant and the
5 All. Manoj Kumar & Ors. Vs State Of U.P. & Anr.

557
witnesses, as also the Magistrate. An exception to that general rule is, however made in terms of
the proviso to Section 200 in cases where the complaint is made by a public servant acting or
purporting to act in the discharge of his official duties, or where a court has made the complaint or
the Magistrate makes over the cases for enquiry or trial by another Magistrate under Section 192 of
the Cr.P.C.

8. Section 201 deals with the procedure which a Magistrate not competent to take
cognizance of the case is required to follow. Section 202 empowers the Magistrate to postpone the
issue of process against the accused either to inquire into the case himself or direct an investigation
to be made by a police officer for the purpose of deciding whether or not there is sufficient ground
for proceedings. Sub-section (2) of Section 202 empowers the Magistrate to take evidence of
witnesses on oath in an inquiry under sub-section (1) thereof. Section 203 which is the only other
provision appearing in Chapter XV, empowers the Magistrate to dismiss the complaint if he is of
the opinion that no sufficient ground for proceeding with the same is made out.

9. There is no gainsaying that a Magistrate while taking cognizance of an offence under
Section 200, whether such cognizance is on the basis of the statement of the complainant and the
witnesses present or on the basis of an inquiry or investigation in terms of Section 202, is not
required to notify the accused to show cause why cognizance should not be taken and process
issued against him or to provide an opportunity to him to cross-examine the complainant or his
witnesses at that stage.

10. In contra distinction, Chapter XIX of the Code regulates trial of warrant cases by
Magistrate. While Part A of that Chapter deals with cases instituted on a police report, Part B deals
with cases instituted otherwise than on a police report. Section 244 that appears in part B of
Chapter XIX requires the Magistrate to "proceed to hear the prosecution" and " take all such
evidence as may be produced in support of the prosecution" once the accused appears or is brought
before him. Sub-section (1) of Section 245 empowers the Magistrate to discharge the accused upon
taking all the evidence referred to in Section 244, if he considers that no case against the accused
has been made out which if unrebutted would warrant his conviction. Sub-section (2) of Section
245 empowers the Magistrate to discharge an accused even " at any previous stage" if for reasons
to be recorded by such Magistrate the charges are considered to be " groundless". In cases where
the accused is not discharged, the Magistrate is required to follow the procedure under Section 246
of the Code.

11. Section 244 to 246 leave no manner of doubt that once the accused appears or is
brought before the Magistrate the prosecution has to be heard and all such evidence as is brought in
support of its case recorded. The power to discharge is also under Section 245 (1) exercisable only
upon taking all of the evidence that is referred to in Section 244, so also the power to frame charges
in terms of Section 246 has to be exercised on the basis of the evidence recorded under Section
244.
558 INDIAN LAW REPORTS ALLAHABAD SERIES
12. The scheme of the two Chapters is totally different. While chapter XV deals with the
filing of complaints, examination of the complainant and the witnesses and taking of cognizance on
the basis thereof with or without investigation and inquiry, Chapter XIX Part B deals with trial of
warrant cases instituted otherwise than on a police report. The trial of an accused under Chapter
XIX and the evidence relevant to the same has no nexus proximate or otherwise with the evidence
adduced at the initial stage where the Magistrate records depositions and examines the evidence for
purposes of deciding whether a case for proceeding further has been made out. All that may be said
is that evidence that was adduced before a Magistrate at the stage of taking cognizance and
summoning of the accused may often be the same as is adduced before the Court once the accused
appears pursuant to the summons. There is, however, a qualitative difference between the approach
that the court adopts and the evidence adduced at the stage of taking cognizance and summoning
the accused and that recorded at the trial. The difference lies in the fact that while the former is a
process that is conducted in the absence of the accused, the latter is undertaken in his presence with
an opportunity to him to cross examine the witnesses produced by the prosecution.
(Refer : Sunil Mehta (supra).

13. Now, there is a clear difference in Sections 245(1) and 245(2) of the Cr.P.C. Under
Section 245(1), the Magistrate has the advantage of the evidence led by the prosecution before him
under Section 244 and he has to consider whether if the evidence remains unrebutted, the
conviction of the accused would be warranted. If there is no discernible incriminating material in
the evidence, then the Magistrate proceeds to discharge the accused under Section 245(1) Cr.P.C.

14. The Magistrate can discharge the accused under Section 245(1), if upon taking all the
evidence referred to in Section 244, he finds that no case against the accused has been made out
which, if unrebutted, would warrant his conviction. (AIR 1971 SC 1925; Cricket Association of
Bengal and others Vs. State of West Bengal and others, AIR 2008 SC 1731; S.K.Alagh Vs.
State of U.P and others, see also Century Spg. And Mfg. Co. Ltd. Vs. State of Maharashtra,
(1972) 3 SCC 282 : 1972 SCC (Cri) 495.

15. The situation under Section 245(2) Cr.P.C. is, however, different. There, under subSection (2), the Magistrate has the power of discharging the accused at any previous stage of the
case, i.e., even before such evidence is led. However, for discharging an accused under Section 245
(2) Cr.P.C., the Magistrate has to come to a finding that the charge/allegation on the face value of
the complaint and evidence, if any, is groundless. There is no question of any consideration of
evidence at that stage, because there is none. The Magistrate can take this decision before the
accused appears or is brought before the Court or the evidence is led under Section 244 Cr.P.C. The
words appearing in Section 245(2) Cr.P.C. "at any previous stage of the case", clearly brings out
this position. The previous stage would obviously be before the evidence of the prosecution under
Section 244(1) Cr.P.C is completed or any stage prior to that. Such stages would be under Section
200 Cr.P.C to Section 204 Cr.P.C. It is in fact here, that the previous stage referred to under Section
245 Cr.P.C normally comes to an end, because the next stage is only the appearance of the accused
before the Magistrate in a warrant- case under Section 244 Cr.P.C. Thus, the Magistrate can
discharge the accused even when the accused appears in pursuance of the summons or a warrant
5 All. Manoj Kumar & Ors. Vs State Of U.P. & Anr.

559
and even before the evidence is led under Section 244 Cr.P.C, makes an application for discharge.
(Refer : Ajoy Kumar Ghose Vs. State of Jharkhand and another, (2009) 14 SCC 115, Nanhey
Lal and other Vs. State of U.P, 2014 Crl. L. J 1405).

16. The word "groundless" in Section 245(2) Cr.P.C means that the materials put forth on
behalf of the complainant must be such that it is not triable offences at all. Discharge of the accused
prior to recording of evidence permissible, only if the charge is considered to be groundless.

17. The word "charge" has no reference to the framing of a charge. It is used in the sense of
an accusation or allegation of an offence.(AIR 1971 SC 1120; Lt. Col. S.K. Kashyap and
another Vs. The State of Rajasthan).

18. Suffice it to say that evidence referred to in Sections 244, 245 and 246 must, on a plain
reading of the said provisions and the provisions of the Evidence Act, be admissible only if the
same is produced and, in the case of documents, proved in accordance with the procedure
established under the Evidence Act which includes the rights of the parties against whom this
evidence is produced to cross examine the witnesses concerned.

19. Secondly, because evidence under Chapter XIX (B) has to be recorded in the presence
of the accused. Whether or not a case is made out against him, can be decided only when the
accused is allowed to cross examine the witnesses for otherwise he may not be in a position to
demonstrate that no case is made out against him and thereby claim a discharge under Section 245
of the Code.

20. Apex Court further clarified that the expression " or at any previous stage of the case"
appearing in Section 246(1) did not imply that a Magistrate can frame charges against an accused
even before any evidence was led under Section 244 i.e. on the basis of evidence taken at the stage
of Section 200/202 Cr.P.C for issue of process (Refer Harinarayan G. Bajaj Vs. State of
Maharashtra and others, 2010 (11) SCC 520).

21. The scope and ambit of sub-clause(1) and (2) of Section 245 Cr.P.C therefore is distinct
and different, which can be summed as follows:

(i) The Magistrate exercises power under Section 245 (1) on the accused being
produced before him under Section 244;

(ii) The evidence is led in the presence of the accused who has a right to crossexamine the witnesses led at the stage of Section 244;

(iii) There being no discernible incriminating material in the evidence, then the
Magistrate proceeds to discharge the accused under Section 245(1) Cr.P.C.
560 INDIAN LAW REPORTS ALLAHABAD SERIES
(iv) Section 245(2) Cr.P.C is a stage before the evidence of the prosecution under
Section 244(1) is completed or any stage prior to that; such stages would be under Section 200
Cr.P.C to Section 204 Cr.P.C, because the next stage is only the appearance of the accused before
the Magistrate in a warrant case under Section 244 Cr.P.C;

(v) The Magistrate can take decision under Section 245(2) before the accused is
brought before the Court or before the evidence is led under Section 244 Cr.P.C. There is no
question of consideration of evidence at that stage as there is none.

22. Having considered the statement of law, at the stage of section 245(2) Cr.P.C, only
prima facie case is to be seen as it is the stage before evidence of prosecution under Section 244 is
led. Bare perusal of the statement under Section 200 and 202 Cr.P.C would prima facie, disclose
the ingredients of offence against the revisionist. The learned counsel for the revisionist failed to
point out any illegality or jurisdictional error.

23. The revision being devoid of merit is accordingly dismissed.
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APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 18.5.2016

BEFORE

THE HON'BLE MRS. RANJANA PANDYA, J.

Criminal Appeal No.- 1173 Of 2014

Ravindra Kumar ...Appellant
Versus
State Of U.P. ...Respondent

Counsel for the Appellant:
R.P. Singh, A.M. Tripathi, S.K. Nigam

Counsel for the Respondent:
Govt. Advocate, Ram Raj Pandey

Accused appellant has challenged the judgment and order dated 20.01.2014 passed by the learned
Additional Sessions Judge, Court No. 2, Baghpat in ST No. 20 of 2011(State Vs. Ravindra) arising out of Crime
No. 479 of 2010 under Section 376(2)(g) IPC, Police Station Doghat, District Baghpat whereby the accused
appellant was found guilty and sentenced to 10 years' rigorous imprisonment and Rs.15,000/- fine under
Section 376(2)(g) IPC with default stipulation.

The minimum sentence which could be imposed under Section 376 (2) (g) is ten years. The Court
imposed the minimum sentence keeping in view the manner in which rape was committed in a ghastly and
brutal way and how the life and soul of the victim and her family was shattered, I do not find it to be a fit
case in which sentence can be reduced from the minimum sentence awarded by the Trial Court.