# Naved @ Kadeer Revisionist v. State of U.P. & Ors. Opp. Parties 570 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2020) 12 ILRA 569
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-11-25
- **Case number:** Crl. Rev. No. 2032 of 2020
- **Bench:** Dinesh Pathak
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/naved-kadeer-revisionist-v-state-of-u-p-ors-opp-parties-570-indian-law-reports-45465
- **Pages:** 9

## Headnote

A.G.A.

Discharge application rejected-Applicant
had illicit relationship with victim's wifeVictim was lying unconscious in his room -
froth oozing out of his mouth-doctor's
statement-possibility of poisoning can be
inferred-whatsapp chat supports FIR-strict
standard of proof not required for deciding
discharge application.

Revision dismissed. (E-9).

List of Cases cited: -

## Text

12 All. Naved @ Kadeer Vs. State of U.P. & Ors.
569
under the constitutions and the laws, and no
man should suffer a wrong by technical and
procedure irregularities. It was observed
referring to the judgment of Montreal
Street Railway Company Vs. Normadin:
1917 AC 170 as follows:

"All rules of court are nothing but
provisions intended to secure proper
administration of justice. It is, therefore,
essential that they should be made to serve
and be subordinate to that purpose".

It is further observed in the said
judgment referring to the judgment of State
of Gujarat Vs. Ram Prakash P.Puri: (1969)
3 SCC 156 as follows:-

"Procedure has been described to be a
handmaid and not a mistress of law,
intended to subserve and facilitate the
cause of justice and not to govern or
obstruct it. Like all rules of procedure, this
rule demand a construction which would
promote this cause."

15. In the present case, since the
husband and wife have arrived at a
settlement between them, have got two
cases before the Family Court decided on
the basis of the said settlement and are
living together as husband and wife again,
technicalities
and
hyper
technicalities
should not come in between to disturb their
married life.

16. This Court thus by exercising its
powers sets aside the judgment and order of
conviction dated 31.08.2005 passed by the
Chief
Judicial
Magistrate,
Banda
in
Criminal Case No. 2383 of 2001 (Smt.
Usha Prajapati Vs. Constable Vishram
Singh & others) under Sections 498-A,
323, 506 IPC, P.S. Kotwali Nagar, District
Banda and the judgment and order dated
01.03.2006 passed by the Additional
Sessions Judge, Court No. 4, Banda in
Criminal Appeal No. 25 of 2005 (Vishram
Singh and others Vs. State of U.P.). The
revisionists are acquitted of the charges
levelled against them.

17. The revision is thus allowed.

18. Office is directed to return the
trial court records to the trial court
forthwith.

19. A copy of this judgment be also
certified to the concerned District and
Sessions Judge for its compliance and
necessary action.

20. The party shall file computer
generated copy of such order downloaded from
the official website of High Court Allahabad.

21. The computer generated copy of
such order shall be self attested by the
counsel of the party concerned.

22.

The
concerned
Court/Authority/Official shall verify the
authenticity of such computerized copy of
the order from the official website of High
Court Allahabad
and
shall
make
a
declaration of such verification in writing.
----------
(2020)12ILR A569
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 25.11.2020

BEFORE

THE HON'BLE DINESH PATHAK, J.

Crl. Rev. No. 2032 of 2020

Naved @ Kadeer ...Revisionist
Versus
State of U.P. & Ors. ...Opp. Parties
570 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Petitioner:
Sri Rajesh Kumar Mishra

Counsel for the Respondents:
A.G.A.

Discharge application rejected-Applicant
had illicit relationship with victim's wifeVictim was lying unconscious in his room -
froth oozing out of his mouth-doctor's
statement-possibility of poisoning can be
inferred-whatsapp chat supports FIR-strict
standard of proof not required for deciding
discharge application.

Revision dismissed. (E-9).

List of Cases cited: -

1. Sajjan Kumar Vs C.B.I. reported in (2010) 9
SCC 368

2. M.E. Shivalingamurthy Vs C.B.I. reported in
(2020) 2 SCC 768

3. P. Vijayan Vs St. of Ker., (2010) 2 SCC 398

4. Bhawna Bai Vs Ghanshyam & ors., (2020) 2
SCC 217

5. Amit Kapoor Vs Ramesh Chander reported in
(2012) 9 SCC 460

(Delivered by Hon'ble Dinesh Pathak, J.)

1. Heard Sri Rajesh Kumar Mishra,
learned counsel for the revisionist and
learned A.G.A. for the State.

2. In view of the peculiar facts and
circumstances of the case and the order
proposed to be passed hereunder, this Court
proceeded to finally decide this matter at
the admission stage, without putting notice
to respondent no.2.

3. Instant revision has been preferred
with a prayer to set aside judgment and
order
dated
05.11.2020
passed
by
Additional
Sessions
Judge/Fast
Track
Court (Offence Against Women), DistrictRampur in Sessions Trial No.04 of 2020
arising out of Case Crime No.374 of 2019,
under Section 328, 120 B IPC, Police
Station-Kemari, District-Rampur, by which
discharge application u/s 227 Cr.P.C. filed
by the revisionist, had been rejected.

4. Sageer Ahmad has filed an FIR
alleging therein that on 20.08.2019 his son
Md. Tehsin Raza, aged about 28 years, was
found lying unconscious in his room and
froth was oozing from his mouth. He had
been rescued by two other sons of the
informant to the hospital where doctors
diagnosed
brain
haemorrhage
like
condition and operated his brain. After
operation his memory became week.
Subsequently, he had been shifted to Sir
Ganga Ram Hospital but no improvement
could not seen in his condition and he came
into vegetative state. He was not in a
position to speak any word and move his
limbs. Further allegation is that his
daughter-in-law Nida Parween, wife of Md.
Tensin Raza (victim), was having illicit
relation with some other man namely,
Naved alias Kadeer (revisionist herein),
with whom she used to talk on mobile
no.9410820370 and after going through
whatsapp chat history of the two, their
relationship had emerged. Because of their
relationship,
his
daughter-in-law
in
collusion
with
Naved
alias
Kadeer
(revisionist) had given poison to his son.

5. Present revisionist had moved a
discharge application under Section 227
Cr.P.C. inter alia on the grounds that there
is no evidence available on record to prove
that son of informant was poisoned.

6. After considering the material
available on record, trial court has rejected
12 All. Naved @ Kadeer Vs. State of U.P. & Ors.
571
the
discharge
application
of
present
revisionist with an observation that from
perusal of statement of prosecution u/s 161
Cr.P.C. and statement of Dr. Monit
Agrawal, it cannot be ruled out that patient
(victim) was not poisoned.

7. It is submitted by learned counsel
for the revisionist that with respect to
alleged incident dated 20.08.2019, an FIR
was lodged on 19.10.2019 at a very belated
stage and there was no justification for such
delay. It is further submitted that there is no
eye witness to the incident as alleged in the
FIR. From hospital report it is clear that
informant's
son
was
treated
for
hydrocephalus and there is no report with
respect to his poisoning. Learned counsel
for the revisionist has shown the part of
case diary, at Serial no.4, (Annexure-4)
wherein it has been stated that according to
record of hospital, Md. Tehsin Raza
(victim) was brought by his brother Wasim
on 20.08.2019 at about 6.05 A.M. in
unconscious condition but subsequently at
about 8.10 A.M. they were absconded from
the hospital. It is mentioned in the case
diary that attendant of the patient had stated
that patient, Md. Tehsin Raza has taken
medicine for headache on advice of a
private doctor. Learned counsel for the
revisionist has also drawn attention of this
Court towards statement of Dr. Satnam
Singh Chhabra and Dr. Ansul Gupta, who
have stated that they have treated the
patient Md. Tehsin Raza, who was
suffering from hydrocephalus and patient
was earlier operated at Sri Sai Hospital. He
was unable to move, eat and drink,
therefore, he was kept in I.C.U. and after
treatment he had been discharged. It is
further stated that there was no sign of
poisoning to the patient. Learned counsel
for the revisionist has also drew attention of
Court towards statement of Dr. Monit
Agrawal, Neuro Surgeon, Sai Hospital,
who
had
said
that
during
medical
examination he had not found any poison
but some of the poisons are in such a nature
which cannot be detected in medical report.
Submission of learned counsel for the
revisionist is that there is no case of
poisoning and statutory ingredients as
required for commission of crime u/s 328
IPC are lacking in the present matter,
inasmuch as, there is no sign of poison
which is clearly evident from statements of
Dr. Satnam Singh Chhadha and Dr. Ansul
Gupta of Sir Ganga Ram Hospital. Apart
that, Serial No.4 of case diary (Annexure4) reveals that Md. Tehsin Raza was
medicated for headache and not for the
poison.

8. Per contra, learned A.G.A. has
submitted that FIR was fully corroborated by
statement of informant u/s 161 Cr.P.C. Apart
from that, Dr. Monit Agrawal of Sri Sai
Hospital has clearly stated that some of the
poisons could not be detected in medical
report, therefore, poisoning of victim (son of
informant) cannot be ruled out. It is further
submitted that the order passed by the Court
below is legal and there is no infirmity or
perversity in the aforesaid order, which has
been passed after considering the evidence
available on record. No case is made out for
discharge of the revisionist, who has to face
the trial, inasmuch as, in the facts and
circumstances of the present case, his
complicity in commission of crime can,
prima facie, be inferred and the offence is
made out against him.

9. I have considered the rival
submissions made by learned counsel for
the parties and perused the record on board.

10. FIR version is clearly worded that
son of informant had been poisoned by his
572 INDIAN LAW REPORTS ALLAHABAD SERIES
wife who was having illicit relationship
with Kadeer (revisionist). Version of FIR is
fully
corroborated
by
statement
of
informant u/s 161 Cr.P.C. There is no
inconsistency or contradiction between the
statement of informant and FIR version.

11. Prima facie, I do not find any
force in the submission made by learned
counsel for the revisionist qua non
poisoning of victim, inasmuch as, statement
of Dr. Monit Agrawal, Neuro Surgeon of
Sri Sai Hospital has clearly stated that some
of the poisons are of such nature which
could not be detected in medical report,
therefore, possibility of poisoning to the
victim, cannot be ruled out at this stage,
which is a matter of investigation and the
motive could be inferred from the whatsapp
chat history of the two.

12. Scope of deciding discharge
application under Section 227 Cr.P.C. is
limited. Prima facie, satisfaction of the trial
court is sufficient to frame the charges and
the purpose of making out the sufficient
ground is only for putting the accused to
trial not to hold him guilty. From perusal of
the impugned order it reveals that trial
court has exercised its jurisdiction very
sparingly and consciously in deciding the
discharge application and has considered
and discussed all the relevant material
which was available on record.

13. Scope of applicability of the
provisions as embodied under Sections 227 and
228 Cr.P.C. has been discussed in detail by
Hon'ble Supreme Court in the case of Sajjan
Kumar vs. Central Bureau of Investigation
reported in (2010) 9 SCC 368 and expounded
the seven principles in explaining the scope of
applicability of Sections 227 and 228 Cr.P.C. in
paragraph 21 of the judgment, which is
reproduced hereinbelow :

"21.
On
consideration
of
the
authorities about the scope of Section 227
and 228 of the Code, the following
principles emerge:-

(i) The Judge while considering the
question of framing the charges under
Section 227 of the Cr.P.C. has the
undoubted power to sift and weigh the
evidence for the limited purpose of finding
out whether or not a prima facie case
against the accused has been made out.
The test to determine prima facie case
would depend upon the facts of each case.

(ii) Where the materials placed before
the Court disclose grave suspicion against
the accused which has not been properly
explained, the Court will be fully justified
in framing a charge and proceeding with
the trial.

(iii) The Court cannot act merely as a
Post Office or a mouthpiece of the
prosecution but has to consider the broad
probabilities of the case, the total effect of
the evidence and the documents produced
before the Court, any basic infirmities etc.
However, at this stage, there cannot be a
roving enquiry into the pros and cons of the
matter and weigh the evidence as if he was
conducting a trial.

(iv) If on the basis of the 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.

(v) At the time of framing of the
charges, the probative value of the material
on record cannot be gone into but before
framing a charge the Court must apply its
judicial mind on the material placed on
record and must be satisfied that the
commission of offence by the accused was
possible.
12 All. Naved @ Kadeer Vs. State of U.P. & Ors.
573

(vi) At the stage of Sections 227 and
228, the Court is required to evaluate the
material and documents on record with a
view to find out if the facts emerging
therefrom taken at their face value
discloses the existence of all the ingredients
constituting the alleged offence. For this
limited purpose, sift the evidence as it
cannot be expected even at that initial stage
to accept all that the prosecution states as
gospel truth even if it is opposed to
common sense or the broad probabilities of
the case.

(vii) If two views are possible and one
of them gives rise to suspicion only, as
distinguished from grave suspicion, the
trial Judge will be empowered to discharge
the accused and at this stage, he is not to
see whether the trial will end in conviction
or acquittal."

14. In a recent judgment in the case of
M.E. Shivalingamurthy vs. Central Bureau of
Investigation reported in (2020) 2 SCC 768,
Hon'ble Supreme Court has considered the
judgment of P. Vijayan vs. State of Kerala,
(2010) 2 SCC 398 and reproduced the
principle laid down in aforesaid judgment.
Relevant paragraphs 17, 18, 28, 29, 30 and 31
are being quoted below :

"17. This is an area covered by a large
body of case law. We refer to a recent
judgment which has referred to the earlier
decisions, viz., P. Vijayan v. State of Kerala
and another2 and discern the following
principles:

17.1 If two views are possible and one
of them gives rise to suspicion only as
distinguished from grave suspicion, the
Trial Judge would be empowered to
discharge the accused.

17.2 The Trial Judge is not a mere
Post Office to frame the charge at the
instance of the prosecution.

17.3 The Judge has merely to sift the
evidence in order to find out whether or not
there is sufficient ground for proceeding.
Evidence would consist of the statements
recorded by the Police or the documents
produced before the Court.

17.4 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
offence, then, there will be no sufficient
ground for proceeding with the trial".

17.5 It is open to the accused to
explain away the materials giving rise to
the grave suspicion.

17.6 The court has to consider the
broad probabilities, the total effect of the
evidence and the documents produced
before the court, any basic infirmities
appearing in the case and so on. This,
however, would not entitle the court to
make a roving inquiry into the pros and
cons.

17.7 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.

17.8 There must exist some materials
for entertaining the strong suspicion which
can form the basis for drawing up a charge
and refusing to discharge the accused."

"18. The defence of the accused is not
to be looked into at the stage when the
accused seeks to be discharged under
Section 227 of the Cr.P.C. The expression,
"the record of the case", used in Section
227 of the Cr.PC, is to be understood as the
documents and the articles, if any,
produced by the prosecution. The Code
does not give any right to the accused to
produce any document at the stage of
framing of the charge. At the stage of
574 INDIAN LAW REPORTS ALLAHABAD SERIES
framing of the charge, the submission of
the accused is to be confined to the
material produced by the Police."

28. It is here that again it becomes
necessary that we remind ourselves of the
contours of the jurisdiction under Section
227 of the Cr.PC. The principle established
is to take the materials produced by the
prosecution, both in the form of oral
statements and also documentary material,
and act upon it without it been subjected to
questioning through cross-examination and
everything assumed in favour of the
prosecution, if a scenario emerges where
no offence, as alleged, is made out against
the accused, it, undoubtedly, would enure
to the benefit of the accused warranting the
Trial Court to discharge the accused."

29. It is not open to the accused to
rely on material by way of defence and
persuade the court to discharge him.

30. However, what is the meaning of
the expression "materials on the basis of
which grave suspicion is aroused in the
mind of the court's", which is not explained
away? Can the accused explain away the
material only with reference to the
materials produced by the prosecution?
Can the accused rely upon material which
he chooses to produce at the stage?

31. In view of the decisions of this
Court that the accused can only rely on the
materials which are produced by the
prosecution, it must be understood that the
grave suspicion, if it is established on the
materials, should be explained away only
in terms of the materials made available by
the prosecution. No doubt, the accused may
appeal to the broad probabilities to the
case to persuade the court to discharge
him."

15. In another recent judgment passed
by Three Judges' Bench in the case of
Bhawna Bai vs. Ghanshyam and others,
(2020) 2 SCC 217, Hon'ble Supreme Court
has considered the decision in the case of
Amit Kapoor vs. Ramesh Chander reported
in (2012) 9 SCC 460 wherein scope of
Sections 227 and 228 Cr.P.C. has been
discussed. Relevant paragraph 15 of
Bhawan Bai's case (supra) is being quoted
below :

"15. Considering the scope of Sections
227 and 228 Crl.P.C., in Amit Kapoor v.
Ramesh Chander and another (2012) 9
SCC 460, the Supreme Court held in
paragraphs 17 and 19 as under:-

"17. Framing of a charge is an
exercise of jurisdiction by the trial court in
terms of Section 228 of the Code, unless the
accused is discharged under Section 227 of
the Code. Under both these provisions, the
court is required to consider the "record of
the
case"
and
documents
submitted
therewith and, after hearing the parties,
may either discharge the accused or where
it appears to the court and in its opinion
there is ground for presuming that the
accused has committed an offence, it shall
frame the charge. Once the facts and
ingredients of the section exists, then the
court would be right in presuming that
there is ground to proceed against the
accused and frame the charge accordingly.
This presumption is not a presumption of
law as such. The satisfaction of the court in
relation to the existence of constituents of
an offence and the facts leading to that
offence is a sine qua non for exercise of
such jurisdiction. It may even be weaker
than a prima facie case. There is a fine
distinction
between
the
language
of
Sections 227 and 228 of the Code. Section
227 is the expression of a definite opinion
and judgment of the Court while Section
228 is tentative. Thus, to say that at the
stage of framing of charge, the Court
should form an opinion that the accused is
12 All. Naved @ Kadeer Vs. State of U.P. & Ors.
575
certainly guilty of committing an offence, is
an approach which is impermissible in
terms of Section 228 of the Code.

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:

"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
576 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."

16. Provisions of discharge and
framing of charges comes within Chapter
XVIII of Cr.P.C., which is captioned as
"Trial before Court of Sessions". Aforesaid
chapter starts from Section 225, which
denotes that in every trial the prosecution
shall be conducted by the Public Prosecutor
before Court of Sessions. Under Section
226 Cr.P.C., duty is entrusted upon the
Prosecutor to open the case and he has to
describe the charges against the accused,
and in support of said charges, he has to
state the evidences which he is going to
produce to prove the guilt of accused.
Thereafter, initial duty of the Court starts to
consider the documents submitted with the
record and to hear the submission of
accused and prosecution under Section 227
Cr.P.C. to ascertain the alleged complicity
of accused in the commission of crime.
After considering the documents and
submissions, with his judicial mind, in
case, he did not find any ground for
initiating the proceedings against the
accused, he is empowered to discharge him
with
the
reasonings.
In
considering
discharge of the accused, Court is not
supposed to discuss the case under the
proposition that the case is beyond
reasonable doubt. Strict standard of proof is
not required at this stage. Only prima facie
case against accused is required to be seen.
While evaluating the materials, the Court
has to see as to whether sufficient ground
for proceeding against the accused, exists
or not. Even in framing the charges, Court
is not required to discuss the detail reasons
as to why charge has been framed. After
perusal of the record and hearing the
parties, if the Court is of the opinion that
there is sufficient ground for presuming
that accused has committed an offence
exclusively triable by the Court of
Sessions, he shall frame the charges against
the accused for such offence. At the stage
of discharge, accused is not permitted to
adduce any fresh evidence, rather he has to
prove his innocence only on the basis of
evidence which was produced by the
prosecution at the initial stage. Availability
of material entertaining strong suspicion is
sufficient for the prima facie conclusion
qua
complicity
of
the
accused
in
commission of crime.

17. In view of the propositions laid
down by Hon'ble Supreme Court as
discussed in the preceding paragraphs,
alleged complicity of present revisionist in
the commission of crime, prima facie, can
easily be inferred in the present matter.
After
considering
the
documentary
evidence, as available on the board, in
totality of facts and circumstances of the
present case, it is evident that prima facie
case is made out for framing charges
against
present
revisionist.
Sufficient
material is available on record to prima
facie infer the complicity of present
revisionist in commission of crime. As per
FIR version, victim was lying unconscious
in his room and froth was oozing from his
mouth. Therefore, seeing the condition of
12 All. Bhola Nath Gupta Vs. State of U.P. & Ors.
577
victim, in the light of statement made by
Dr. Monia Agrawal, possibility of victim's
poisoning
could
be
inferred.
Mobile
number and whatsapp chat history, as
mentioned in FIR, also supports the
accusation made by prosecution.

18. Accordingly, present revision is
dismissed. Judgment and order dated
05.11.2020 passed by Additional Sessions
Judge/Fast Track Court (Offence Against
Women), District-Rampur in Sessions Trial
No.04 of 2020 is hereby affirmed and
maintained.

19. Let a copy of this order be sent to
the concerned Court below forthwith for
information and follow up action, if
required.
----------
(2020)12ILR A577
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.11.2018

BEFORE

THE HON'BLE BALA KRISHNA NARAYANA, J.
THE HON'BLE RAJIV JOSHI, J.

Crl. Misc. W.P. No. 32551 of 2018

Bhola Nath Gupta ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Sanjeev Kumar Shukla

Counsel for the Respondents:
A.G.A.

A. Constitution of India,1950 - Article 226 &
Code of Criminal Procedure, 1973-Section
321-application-issuance
of
writ
of
mandamus to decide the representation-
maintainability
of-
application
for
withdrawal of prosecution cannot be moved
on behalf of the accused-under section 321
CrPC, it is the Public Prosecutor or Assistant
Public Prosecutor in charge of the case with
the consent of the Court, withdraw from the
prosecution
before
the
judgment
is
pronounced-the petitioner has no such
right-in
the
absence
of
a
judicially
enforceable or a legally protected right, no
writ in the nature of mandamus can be
issued-Hence, application/representation at
the
instance
of
petitioner
is
not
maintainable at all.(Para 3 to 12)

The Petition is dismissed. (E-6)

(Delivered by Hon'ble Rajiv Joshi, J.)

1. Heard learned counsel for the
petitioner and learned AGA for the State.

2. Present writ petition under Article
226 of the Constitution has been filed for
the
issuance
of
writ
of
mandamus
commanding the respondent no.1 to decide
the
representation
dated
28.9.2018
dispatched through registered post on
1.10.2018 under Section 321 Cr.P.C. within
stipulated time.

3. As per the averments made in the
writ petition, petitioner's son is involved in
Case Crime No. 446 of 2018, registered at
Police
Station
Kotwali,
District
Maharajganj on the basis of F.I.R. dated
5.7.2018
under
Section
66/67
of
Information Technology Amendment Act,
2008 and 17/18 Protection of Children
From Sexual Offences Act. It is further
averred in the writ petition that against the
son of the petitioner, Case Crime No. 546
of 2018, under Section 3 (1) Gangster and
Anti Social Activities (Prevention) Act,
1986 has been registered. According to the
petitioner, the police of concerned police
station is investigating the matter but there
is no hope for getting justice from the
Investigating
Officer
and
therefore,