# Mohit Sharma v. State of U.P. & Ors

- **Citation:** (2022) 2 ILRA 205
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-02-04
- **Case number:** Application U/S 482 No. 1482 of 2022
- **Bench:** Anil Kumar Ojha
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohit-sharma-v-state-of-u-p-ors-48107
- **Pages:** 7

## Headnote

206 INDIAN LAW REPORTS ALLAHABAD SERIES
(A)
Criminal
Law-
Code
of
Criminal
Procedure, 1973- Section 227 - Rejection
of Discharge Application- At the initial
stage of framing of a charge, the Court is
concerned not with proof but with a
strong
suspicion
that
accused
has
committed an offence, which if put to
trial, could prove him guilty. All that the
Court has to see is that the matter on
record and the facts would be compatible
with the innocence of the accused or not.
The final test of guilt is not to be applied
at that stage.

At the stage of framing the Charge, trial court
may frame the Charge only on the basis of
strong suspicion and the evidence has not to be
gone into in detail.

(B)
Criminal
Law-
Code
of Criminal
Procedure, 1973- Section 227, Section
482- Perusal of the statement of the
victim during investigation shows that
victim
is
minor.
Offence
has
been
committed against her. There is sufficient
material to frame charge against the
applicant. Appraisal of evidence is not
permissible in proceedings under Section
482 Cr.P.C.

Where the facts of the case make out the
ingredients of the offence then the same is
sufficient for framing the charge and the said
facts, being matters of evidence, cannot be
appraised by the High Court under section 482
of the Code.

Criminal Application rejected. (E-3) (Para 5, 10)

Judgements/ Case law relied upon:-

## Text

2 All. Mohit Sharma Vs. State of U.P. & Ors.
205
the concerned authorities were submitted
by the petitioner to the jail authority on
21.1.2021. These representations were
forwarded by the jail authority to the
District
Magistrate
where
they
were
received on 22.1.2021 and since then
through the District Magistrate via the State
Government, the representation could reach
the Central Government only on 3.2.2021.
This delay is explained by the State
Government with the assertion that it was
sent through the most reliable mode, i.e.
speed post and, on the other hand, the delay
was probable because of intervening
Republic Day, the adverse circumstance
due to Covid-19 and the protest of the
farmers at the relevant point of time.

36. The explanation for the delay is an
eyewash. Considering the constitutional
obligation of the decision making authority
to consider the representation of the detenu
without any delay it was required that the
representation should have been sent
through the special messenger to ensure
timely and speedy delivery of it to the
concerned offices. The casual attitude of
the
concerned
office
in
sending
representation through speed post shows
complete
lack
of
understanding
or
ignorance of the legal provisions and the
constitutional obligation of the government,
be it the State or Central Government. The
explanation
offered
by
the
State
Government for the delay occurred in
receipt of the representation in the office of
the
Central
Government
cannot
be
comprehended.

37. Another aspect that during
28.1.2021 to 3.2.2021, the Covid-19 graph
was very low and all emergency services
were opened up. In what manner the protest
of the farmers had affected the speedy
delivery in sending the representation has
not been explained. Thus, the clarification
of the State Government is far from
convincing.

38. For the reasons as aforesaid, the
detention order is found to be vitiated, the
decision making process being against the
settled legal principles. As the detention
order is vitiated itself, the extension orders
are liable to be set aside.

39. Since the detention order has
outlived its life for the fact that the writ
petition could not be heard and decided
within the period of 12 months, maximum
period prescribed in Section 13 of National
Security Act, 1980, no other direction has
to be issued. However, it is held that the
petitioner can not be kept under detention
pursuant to the detention order passed
under Section 3(2) of the National Security
Act, 1980 by the District Magistrate,
Auraiya.

40. The writ petition is accordingly,
allowed. No order as to costs.
----------
(2022)02ILR A205
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 04.02.2022

BEFORE

THE HON'BLE ANIL KUMAR OJHA, J.

Application U/S 482 No. 1482 of 2022

Mohit Sharma ...Applicant
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Applicant:
Sri Yadvendra Mani Mishra

Counsel for the Opposite Parties:
A.G.A.
206 INDIAN LAW REPORTS ALLAHABAD SERIES
(A)
Criminal
Law-
Code
of
Criminal
Procedure, 1973- Section 227 - Rejection
of Discharge Application- At the initial
stage of framing of a charge, the Court is
concerned not with proof but with a
strong
suspicion
that
accused
has
committed an offence, which if put to
trial, could prove him guilty. All that the
Court has to see is that the matter on
record and the facts would be compatible
with the innocence of the accused or not.
The final test of guilt is not to be applied
at that stage.

At the stage of framing the Charge, trial court
may frame the Charge only on the basis of
strong suspicion and the evidence has not to be
gone into in detail.

(B)
Criminal
Law-
Code
of Criminal
Procedure, 1973- Section 227, Section
482- Perusal of the statement of the
victim during investigation shows that
victim
is
minor.
Offence
has
been
committed against her. There is sufficient
material to frame charge against the
applicant. Appraisal of evidence is not
permissible in proceedings under Section
482 Cr.P.C.

Where the facts of the case make out the
ingredients of the offence then the same is
sufficient for framing the charge and the said
facts, being matters of evidence, cannot be
appraised by the High Court under section 482
of the Code.

Criminal Application rejected. (E-3) (Para 5, 10)

Judgements/ Case law relied upon:-

1. Amit Kapoor Vs Ramesh Chander & anr.
(2012) 9 SCC 460

(Delivered by Hon'ble Anil Kumar Ojha, J.)

1. Heard learned counsel for the
applicant, learned A.G.A. for the State by
means of Video-Conferencing and perused
the record.

2. This Application under Section 482
Cr.P.C. has been filed with a prayer to
quash the order dated 02.12.2021 passed by
Addl. District & Sessions Judge/Special
Judge, (POCSO Act), Court No. 1,
Muzaffar Nagar in S.T. No. 410 of 2018
(State Vs. Mohit Sharma) arising out of
Case Crime No. 1426 pf 2016 under
Sections 363, 376-D, 377 IPC & Section
3/4 of POCSO Act, P.S. New Mandi,
District
Muzaffar
Nagar
whereby
applicant's discharge application under
Section 227 Cr.P.C. has been rejected.

3. Submission of learned counsel for
the applicant is that applicant has been
falsely implicated in this case. Applicant
has not committed the alleged offence.
Impugned order dated 2.12.2021 has been
wrongly passed. There is no evidence
against the applicant so charge cannot be
framed against him, hence, this Petition.

4.

Per-contra,
learned
A.G.A.
opposed the prayer and submitted that
victim in her statement under Sections 161
and 164 Cr.P.C. has implicated the
applicant. Statement of victim is itself
sufficient for framing the charge against
the applicant.

5. In Amit Kapoor Vs. Ramesh
Chander and Another (2012) 9 SCC 460,
Hon'ble Apex Court has held in para 19
that at the initial stage of framing of a
charge, the Court is concerned not with
proof but with a strong suspicion that
accused has committed an offence, which if
put to trial, could prove him guilty. All that
the Court has to see is that the matter on
record and the facts would be compatible
with the innocence of the accused or not.
The final test of guilt is not to be applied at
that stage.
2 All. Mohit Sharma Vs. State of U.P. & Ors.
207

6. Relevant portion of the aforesaid
judgement is quoted hereinbelow:

"19. At the initial stage of
framing of a charge, the court is concerned
not with proof but with a strong suspicion
that the accused has committed an offence,
which, if put to trial, could prove him
guilty. All that the court has to see is that
the material on record and the facts would
be compatible with the innocence of the
accused or not. The final test of guilt is not
to be applied at that stage. We may refer to
the well-settled law laid down by this Court
in State of Bihar v. Ramesh Singh [(1977) 4
SCC 39 : 1977 SCC (Cri) 533] : (SCC pp.
41-42, para 4)

''4.Under Section 226 of the
Code while opening the case for the
prosecution the Prosecutor has got to
describe the charge against the accused
and state by what evidence he proposes to
prove the guilt of the accused. Thereafter
comes at the initial stage the duty of the
court to consider the record of the case and
the documents submitted therewith and to
hear the submissions of the accused and the
prosecution in that behalf. The Judge has to
pass thereafter an order either under
Section 227 or Section 228 of the Code. If
?the Judge considers that there is no
sufficient ground for proceeding against the
accused, he shall discharge the accused
and record his reasons for so doing?, as
enjoined by Section 227. If, on the other
hand, ?the Judge is of opinion that there is
ground for presuming that the accused has
committed an offence which? ? (b) is
exclusively triable by the court, he shall
frame in writing a charge against the
accused?, as provided in Section 228.
Reading the two provisions together in
juxtaposition, as they have got to be, it
would be clear that at the beginning and
the initial stage of the trial the truth,
veracity and effect of the evidence which
the Prosecutor proposes to adduce are not
to be meticulously judged. Nor is any
weight to be attached to the probable
defence of the accused. It is not obligatory
for the Judge at that stage of the trial to
consider in any detail and weigh in a
sensitive balance whether the facts, if
proved, would be incompatible with the
innocence of the accused or not. The
standard of test and judgment which is to
be finally applied before recording a
finding regarding the guilt or otherwise of
the accused is not exactly to be applied at
the stage of deciding the matter under
Section 227 or Section 228 of the Code. At
that stage the court is not to see whether
there is sufficient ground for conviction of
the accused or whether the trial is sure to
end in his conviction. Strong suspicion
against the accused, if the matter remains
in the region of suspicion, cannot take the
place of proof of his guilt at the conclusion
of the trial. But at the initial stage if there
is a strong suspicion which leads the court
to think that there is ground for presuming
that the accused has committed an offence
then it is not open to the court to say that
there is no sufficient ground for proceeding
against the accused. The presumption of the
guilt of the accused which is to be drawn at
the initial stage is not in the sense of the
law governing the trial of criminal cases in
France where the accused is presumed to
be guilty unless the contrary is proved. But
it is only for the purpose of deciding prima
facie whether the court should proceed with
the trial or not. If the evidence which the
Prosecutor proposes to adduce to prove the
guilt of the accused even if fully accepted
before it is challenged in cross-examination
or rebutted by the defence evidence, if any,
cannot show that the accused committed
the offence, then there will be no sufficient
ground for proceeding with the trial. An
208 INDIAN LAW REPORTS ALLAHABAD SERIES
exhaustive list of the circumstances to
indicate as to what will lead to one
conclusion or the other is neither possible
nor advisable. We may just illustrate the
difference of the law by one more example.
If the scales of pan as to the guilt or
innocence of the accused are something
like even at the conclusion of the trial, then,
on the theory of benefit of doubt the case is
to end in his acquittal. But if, on the other
hand, it is so at the initial stage of making
an order under Section 227 or Section 228,
then in such a situation ordinarily and
generally the order which will have to be
made will be one under Section 228 and
not under Section 227.?

............................................

27. Having discussed the scope of
jurisdiction under these two provisions i.e.
Section 397 and Section 482 of the Code and
the fine line of jurisdictional distinction, now
it will be appropriate for us to enlist the
principles with reference to which the courts
should exercise such jurisdiction. However, it
is not only difficult but is inherently
impossible to state with precision such
principles. At best and upon objective
analysis of various judgments of this Court,
we are able to cull out some of the principles
to be considered for proper exercise of
jurisdiction, particularly, with regard to
quashing of charge either in exercise of
jurisdiction under Section 397 or Section 482
of the Code or together, as the case may be:

27.1. Though there are no limits
of the powers of the Court under Section
482 of the Code but the more the power, the
more due care and caution is to be
exercised in invoking these powers. The
power of quashing criminal proceedings,
particularly, the charge framed in terms of
Section 228 of the Code should be
exercised
very
sparingly
and
with
circumspection and that too in the rarest of
rare cases.

27.2. The Court should apply the
test as to whether the uncontroverted
allegations as made from the record of the
case
and
the
documents
submitted
therewith prima facie establish the offence
or not. If the allegations are so patently
absurd and inherently improbable that no
prudent person can ever reach such a
conclusion and where the basic ingredients
of a criminal offence are not satisfied then
the Court may interfere.

27.3. The High Court should not
unduly
interfere.
No
meticulous
examination of the evidence is needed for
considering whether the case would end in
conviction or not at the stage of framing of
charge or quashing of charge.

27.4. Where the exercise of such
power is absolutely essential to prevent
patent miscarriage of justice and for
correcting some grave error that might be
committed by the subordinate courts even
in such cases, the High Court should be
loath to interfere, at the threshold, to
throttle the prosecution in exercise of its
inherent powers.

27.5. Where there is an express
legal bar enacted in any of the provisions
of the Code or any specific law in force to
the very initiation or institution and
continuance of such criminal proceedings,
such a bar is intended to provide specific
protection to an accused.

27.6. The Court has a duty to
balance the freedom of a person and the
right of the complainant or prosecution to
investigate and prosecute the offender.

27.7. The process of the court
cannot be permitted to be used for an
oblique or ultimate/ulterior purpose.

27.8. Where the allegations made
and as they appeared from the record and
documents
annexed
therewith
to
predominantly give rise and constitute a
?civil
wrong? with
no ?element
of
2 All. Mohit Sharma Vs. State of U.P. & Ors.
209
criminality? and does not satisfy the basic
ingredients of a criminal offence, the court
may be justified in quashing the charge.
Even in such cases, the court would not
embark upon the critical analysis of the
evidence.

27.9. Another very significant
caution that the courts have to observe is
that it cannot examine the facts, evidence
and materials on record to determine
whether there is sufficient material on the
basis of which the case would end in a
conviction;
the
court
is
concerned
primarily with the allegations taken as a
whole whether they will constitute an
offence and, if so, is it an abuse of the
process of court leading to injustice.

27.10. It is neither necessary nor
is the court called upon to hold a fullfledged enquiry or to appreciate evidence
collected by the investigating agencies to
find out whether it is a case of acquittal or
conviction.

27.11. Where allegations give rise
to a civil claim and also amount to an
offence, merely because a civil claim is
maintainable, does not mean that a
criminal complaint cannot be maintained.

27.12.
In
exercise
of
its
jurisdiction under Section 228 and/or
under Section 482, the Court cannot take
into consideration external materials given
by an accused for reaching the conclusion
that no offence was disclosed or that there
was possibility of his acquittal. The Court
has to consider the record and documents
annexed therewith by the prosecution.

27.13. Quashing of a charge is an
exception to the rule of continuous
prosecution. Where the offence is even
broadly satisfied, the Court should be more
inclined
to
permit
continuation
of
prosecution rather than its quashing at that
initial stage. The Court is not expected to
marshal the records with a view to decide
admissibility
and
reliability
of
the
documents or records but is an opinion
formed prima facie.

27.14. Where the charge-sheet,
report under Section 173(2) of the Code,
suffers from fundamental legal defects, the
Court may be well within its jurisdiction to
frame a charge.

27.15. Coupled with any or all of
the above, where the Court finds that it
would amount to abuse of process of the
Code or that the interest of justice favours,
otherwise it may quash the charge. The
power is to be exercised ex debito justitiae
i.e. to do real and substantial justice for
administration of which alone, the courts
exist.

[Ref. State of W.B. v. Swapan
Kumar Guha [(1982) 1 SCC 561 : 1982
SCC (Cri) 283 : AIR 1982 SC 949] ;
Madhavrao
Jiwajirao
Scindia
v.
Sambhajirao Chandrojirao Angre [(1988) 1
SCC 692 : 1988 SCC (Cri) 234] ; Janata
Dal v. H.S. Chowdhary [(1992) 4 SCC 305
: 1993 SCC (Cri) 36 : AIR 1993 SC 892] ;
Rupan Deol Bajaj v. Kanwar Pal Singh Gill
[(1995) 6 SCC 194 : 1995 SCC (Cri) 1059]
; G. Sagar Suri v. State of U.P. [(2000) 2
SCC 636 : 2000 SCC (Cri) 513] ; Ajay
Mitra v. State of M.P. [(2003) 3 SCC 11 :
2003 SCC (Cri) 703] ; Pepsi Foods Ltd. v.
Special Judicial Magistrate [(1998) 5 SCC
749 : 1998 SCC (Cri) 1400 : AIR 1998 SC
128] ; State of U.P. v. O.P. Sharma [(1996)
7 SCC 705 : 1996 SCC (Cri) 497] ; Ganesh
Narayan Hegde v. S. Bangarappa [(1995) 4
SCC 41 : 1995 SCC (Cri) 634] ; Zandu
Pharmaceutical Works Ltd. v. Mohd.
Sharaful Haque[(2005) 1 SCC 122 : 2005
SCC (Cri) 283] ; Medchl Chemicals &
Pharma (P) Ltd.v. Biological E. Ltd.
[(2000) 3 SCC 269 : 2000 SCC (Cri) 615 :
AIR 2000 SC 1869] ; Shakson Belthissor v.
State of Kerala [(2009) 14 SCC 466 :
(2010) 1 SCC (Cri) 1412] ; V.V.S. Rama
210 INDIAN LAW REPORTS ALLAHABAD SERIES
Sharma v. State of U.P. [(2009) 7 SCC 234
: (2009) 3 SCC (Cri) 356] ; Chunduru Siva
Ram
Krishna
v.
Peddi
Ravindra
Babu[(2009) 11 SCC 203 : (2009) 3 SCC
(Cri) 1297] ; Sheonandan Paswan v. State
of Bihar [(1987) 1 SCC 288 : 1987 SCC
(Cri) 82] ; State of Bihar v. P.P.
Sharma[1992 Supp (1) SCC 222 : 1992
SCC (Cri) 192 : AIR 1991 SC 1260] ;
Lalmuni Devi v. State of Bihar [(2001) 2
SCC 17 : 2001 SCC (Cri) 275] ; M.
Krishnan v. Vijay Singh [(2001) 8 SCC 645
: 2002 SCC (Cri) 19] ; Savita v. State of
Rajasthan [(2005) 12 SCC 338 : (2006) 1
SCC (Cri) 571] and S.M. Datta v. State of
Gujarat [(2001) 7 SCC 659 : 2001 SCC
(Cri) 1361 : 2001 SCC (L&S) 1201] .]

27.16. These are the principles
which
individually
and
preferably
cumulatively (one or more) be taken into
consideration as precepts to exercise of
extraordinary and wide plenitude and
jurisdiction under Section 482 of the Code by
the High Court. Where the factual foundation
for an offence has been laid down, the courts
should be reluctant and should not hasten to
quash the proceedings even on the premise
that one or two ingredients have not been
stated or do not appear to be satisfied if there
is
substantial
compliance
with
the
requirements of the offence."

7. Keeping in view the aforesaid
principles of the Hon?ble Apex Court the
facts of the case are being examined and
analyzed.

8. Perusal of the record reveals that a
case was registered at P.S. New Mandi,
District Muzaffar Nagar in Case Crime No.
1426 of 2016 under Sections 363, 376D
against the applicant. Police investigated
the matter and recorded the statement of
witnesses including the victim and after
collection of evidence and conclusion of
investigation, submitted charge-sheet in the
matter.

9. Victim in her statement recorded
under Section 161 Cr.P.C. has implicated
the applicant. Her statement under Section
164 Cr.P.C., photocopy of which at page
no. 59-60 of the paper-book is as follows:

''लदनाींक 13/09/2016 शाम के 5:30 बजे की
बात है। मैं अपने पापा श्री िाजेश शमाट के साि
अपने कॉलेज का समान लेने मुo नगि आई िी।
जानसठ फ्लाईओवि से उतिते हुए पापा की
मोटि साइलकल खिाब हो गई तो पापा मुझे
मोटिसाइलकल के पास खड़ा किके मैकेलनक
ढूींढ़ने चले गए। तबी सैंटरो गाड़ी में मेिे जीजा
मोलहत शमाट पुत्र िामकुमाि शमाट, उनके िूिा
िामकुमाि शमाट तिा दो अन्य लोग लजन्को मैं
जान्ती नहीीं लेलकन देख कि पहचान सकती हीं।
आए औि कहने लगे की तुम्हािे पापा ने तुमको
बुलाया है चलो। मैं उनके साि चली गई। लेलकन
वह मुझे पापा के पास न ले जकाि जींगल में ले
चले गए औि वहा मुझे मेिे जीजा ने मेिे सािे
कपड़े उतिो लदए औि अपने पेंट तिा अींडिलवयि
उति लदया िा औि अपने अींगुली मेिी vagina में
डाल लदया तिा अपना ललींग मेिे मुह में डाल
लदया। जीजा के िुिा ने मेिे हाि पैइि पकड
िाखे िे/ बाकी दो आदलमयोीं ने भी मेिे साि
बदतमीजी की। जब जीजा ने अपना ललींग मेिे मुह
में डाला तो मुझे उलटी सी आने लगी तिा मैं शोि
मचाने लगी। तब ओनहोन शीशा खोलकि मुझे
बहाि िेक लदया तिा वहा से चले गए। मैं वहा से
लकसी तिह वापस आई। तिा पापा तिा दो अदमी
वहा पि अगाये। उनके साि मैं वापीस आई।
हमने घाटना की रिपोटट 15/09/2016 को नई मींडी
िाने में की। मुझे नहीीं पता की दो लदन तक रिपोटट
क्ोीं नहीीं की। बस यही मेिा बयान है।''

10. Perusal of the above statement of
the victim during investigation shows that
2 All. Ashish & Ors. Vs. State of U.P. & Anr.
211
victim
is
minor.
Offence
has
been
committed against her. There is sufficient
material to frame charge against the
applicant. Appraisal of evidence is not
permissible in proceedings under Section
482 Cr.P.C.

11. In view of the above, the present
Application lacks merit and is liable to be
dismissed.

12. Accordingly, this Application
under Section 482 Cr.P.C. is dismissed at
the admission stage itself.
----------
(2022)02ILR A211
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 04.02.2022

BEFORE

THE HON'BLE ANIL KUMAR OJHA, J.

Application U/S 482 No. 1540 of 2022

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

Counsel for the Applicants:
Sri Arvind Kumar

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

(A) Criminal Law- Indian Penal Code,
1860- Sections 494, 498A, 323, 506 I.P.C.
and Section 3/4 of D.P. Act - Code of
Criminal Procedure, 1973- Section 482 -
Quashing of proceedings- On basis of not
conducting
preliminary
inquiry
-
Conducting or not conducting preliminary
enquiry is the domain of Investigating
Officer on which basis, F.I.R. cannot be
quashed.

Merely because a preliminary inquiry was not
conducted by the Investigating Officer, the
same would be no ground to quash the Chargesheet and the criminal proceedings.

(B) Code of Criminal Procedure, 1973-
Section 482 - Whether victim was beaten
and harassed by the applicants; whether
there was demand of dowry or not;
whether
husband,
Ashish
solemnized
another
marriage
with
another
lady
named Deeksha are questions of fact
which cannot be adjudicated upon in this
proceeding. Appraisal of evidence is also
not permissible in proceedings under
Section 482 Cr.P.C.

Settled law that while exercising its inherent
jurisdiction under section 482 of the Code, the
High Court cannot appreciate evidence or
disputed questions of fact as the same can only
be
adjudicated
by
the
trial
court
after
consideration of evidence.

Criminal Application rejected. (E-3) ( Para
8, 12)

Judgements/ Case law relied upon/ cited:-

1. 1992 AIR (1) page 694 (St. of Har. Vs
Chaudhary Bhajan Lal), cited

2. Geeta Mehlotra Vs St. of U.P. ,Crl. Appeal No.
1674 of 2012 arising out of SLP (Crl.) No. 10547
of 2010,cited

3. CRM (M) No. 83 of 2020 vide judgement dt.
25.08.2021 (J& K& Ladakh High Court), cited

4. M/s Neeharika Infrastructure Pvt. Ltd. Vs. St.
of Maha. & ors., 2020 SCC Online SC 850

5. R. P. Kapur Vs The St. of Punj., AIR 1960 SC 866

(Delivered by Hon'ble Anil Kumar Ojha, J.)

1. Heard learned counsel for the
applicants, learned A.G.A. for the State by
means of Video-Conferencing and perused
the record.

2. This Application under Section 482
Cr.P.C. has been filed with a prayer to