# Nitin Tiwari & Anr v. State of U.P. & Anr

- **Citation:** (2024) 1 ILRA 868
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-01-12
- **Case number:** Application U/S 482. No. 206 of 2024
- **Bench:** Arun Kumar Singh Deshwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/nitin-tiwari-anr-v-state-of-u-p-anr-51389
- **Pages:** 15

## Headnote

Law
-
Code
of
Criminal
Procedure,
1973
-
Sections
173(2),
173(8), 227, 228, 397 & 482 - Indian
Penal Code, 1860 - Sections 147, 148,
149, 302, 307, 504, 506, 34 & 120-B -
Applicants challenged orders rejecting second
discharge application and framing charges,
alleging failure to consider contradictory police
reports. Court held: (1) Application u/s 482 is
maintainable against rejection of discharge
application and framing of charges despite
revision remedy, but only in exceptional cases to
prevent abuse of process or secure justice
(Madhu Limaye Vs St. of Mah., (1977) 4 SCC
551). (2) Framing of charges on 02.08.2023 was
proper, as rejection of first discharge application
on 16.05.2023 was unchallenged, and Sessions
Judge was statutorily bound under Section 228
to frame charges, especially with High Court's
permission to proceed (Vinay Tyagi Vs Irshad
Ali, (2013) 5 SCC 762). (3) Second discharge
application was not maintainable after charges
were framed, as courts lack jurisdiction to
reconsider
discharge
post-charge
framing
1 All. Nitin Tiwari & Anr. Vs. State of U.P. & Anr.
869
(Ratilal Bhanji Mithani Vs St. of Mah., (1979) 2
SCC 179). (4) Present application was not a
second u/s 482 application, as it challenged a
different order (rejection of second discharge
application),
making
it
maintainable.
(5)
Impugned order complied with requirement to
consider
all
police
reports,
including
contradictory ones, as mandated (Vinay Tyagi
Vs Irshad Ali, (2013) 5 SCC 762; Luckose
Zachariah Vs Joseph Joseph, 2022 SCC OnLine
SC 241). Application rejected; trial court
directed to conclude trial within one year. (Paras
14-32)

Application Rejected.

List of Cases cited:

## Text

_Characters 0–39,756 of 50,388. This is a partial read: ask again with offset=39756 for what follows._

868 INDIAN LAW REPORTS ALLAHABAD SERIES

10. Learned counsel for petitioners
has further submitted that in case the
subsequent purchasers of the land require
the land to be excluded from being declared
surplus then the only option available to
them is by filing objections under Section
11 (2) of the Act of 1960. Once any
objection under Section 11 (2) of the Act of
1960 are filed then the Prescribed Authority
are duty bound to consider the same and
pass appropriate orders with regard to
exclusion of such land.

11. In the present case, undisputedly
no objection under Section 11 (2) of the Act
of 1960 was filed by the respondent nos. 4
to 6 for exclusion of the lands and they
have been resorted to an application under
Section 12-A of the Act of 1960 for the
purpose of exclusion of the said land.

12. This Court is of the considered
view that it does not lay with the
subsequent
purchasers
to
move
an
application under Section 12-A of the Act
of 1960 for excluding the land from being
taken surplus and such an application, if
any, could have been filed only by the
recorded tenure holders and once this Court
is of the considered view that such an
application could not have been moved by
the respondent nos. 4 to 6, who are the
subsequent purchasers, then the same could
not have been allowed by the Prescribed
Authority. Accordingly, to that extent only,
the
impugned
orders
allowing
the
application under Section 12-A (d) of the
Act of 1960 at the behest of the respondent
nos. 4 to 6 is clearly illegal and arbitrary
and contrary to the provisions contained in
Section 12-A of the Act of 1960.

13. In light of the above, both the
impugned order dated 03.06.1992 passed
by the Prescribed Authority as well as order
dated 30.09.2002 passed by the appellate
authority are set aside. The writ petition is
accordingly, allowed.
----------
(2024) 1 ILRA 868
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 12.01.2024

BEFORE

THE HON'BLE ARUN KUMAR SINGH
DESHWAL, J.

Application U/S 482. No. 206 of 2024

Nitin Tiwari & Anr. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Nadeem Martaza, Aditi Tripathi, Brij Mohan
Sahai, Sudhanshu S, Tripathi

Counsel for the Opposite Parties:
G.A.

Criminal
Law
-
Code
of
Criminal
Procedure,
1973
-
Sections
173(2),
173(8), 227, 228, 397 & 482 - Indian
Penal Code, 1860 - Sections 147, 148,
149, 302, 307, 504, 506, 34 & 120-B -
Applicants challenged orders rejecting second
discharge application and framing charges,
alleging failure to consider contradictory police
reports. Court held: (1) Application u/s 482 is
maintainable against rejection of discharge
application and framing of charges despite
revision remedy, but only in exceptional cases to
prevent abuse of process or secure justice
(Madhu Limaye Vs St. of Mah., (1977) 4 SCC
551). (2) Framing of charges on 02.08.2023 was
proper, as rejection of first discharge application
on 16.05.2023 was unchallenged, and Sessions
Judge was statutorily bound under Section 228
to frame charges, especially with High Court's
permission to proceed (Vinay Tyagi Vs Irshad
Ali, (2013) 5 SCC 762). (3) Second discharge
application was not maintainable after charges
were framed, as courts lack jurisdiction to
reconsider
discharge
post-charge
framing
1 All. Nitin Tiwari & Anr. Vs. State of U.P. & Anr.
869
(Ratilal Bhanji Mithani Vs St. of Mah., (1979) 2
SCC 179). (4) Present application was not a
second u/s 482 application, as it challenged a
different order (rejection of second discharge
application),
making
it
maintainable.
(5)
Impugned order complied with requirement to
consider
all
police
reports,
including
contradictory ones, as mandated (Vinay Tyagi
Vs Irshad Ali, (2013) 5 SCC 762; Luckose
Zachariah Vs Joseph Joseph, 2022 SCC OnLine
SC 241). Application rejected; trial court
directed to conclude trial within one year. (Paras
14-32)

Application Rejected.

List of Cases cited:

1. Madhu Limaye Vs St. of Mah., (1977) 4 SCC
551 (Para 14)

2. Prabhu Chawla Vs St. of Raj., (2016) 16 SCC
30 (Para 15)

3. Vijay Vs St. of Mah., (2017) 13 SCC 317 (Para
16)

4. Sanjay Kumar Rai Vs St. of U.P., 2021 SCC
OnLine SC 367 (Para 17)

5. Ram Shanker Singh Vs St. of U.P., Application
u/s 482 No. 27288 of 2016 (Para 18)

6. Shailendra Agrawal Vs St. of U.P., Application
u/s 482 No. 24354 of 2023 (Para 19)

7. Ravindra Pratap Shahi Vs St. of U.P., Criminal
Revision No. 2183 of 2021 (Para 24)

8. Ratilal Bhanji Mithani Vs St. of Mah., (1979) 2
SCC 179 (Para 25)

9.
Bharat
Parikh
Vs
Central
Bureau
of
Investigation, (2008) 10 SCC 109 (Para 26)

10. Vinay Tyagi Vs Irshad Ali, (2013) 5 SCC 762
(Para 29)

11. Luckose Zachariah Vs Joseph Joseph, 2022
SCC OnLine SC 241 (Para 30)

12. Bhisham Lal Verma Vs St. of U.P., 2023 SCC
OnLine SC 1399 (Para 10)
(Delivered by Hon'ble Arun Kumar Singh
Deshwal, J.)

1. Heard Sri Brij Mohan Sahai along
with Sri Nadeem Murtuza, Sri Sudhanshu
Shekhar Tripathi, Ms Snigdha Singh and
Ms Akanksha Bajpai, learned counsel for
the applicants, Sri Vikas Singh, along with
Sri Sourabh Rastogi, learned counsel for
opposite party no.2 and Sri Vinay Kumar
Shahi, learned AGA for the State.

2. The present 482 Cr.P.C. application
has been filed to quash the impugned order
dated 13.12.2023 passed by Additional
Sessions Judge/Special Judge (E.C. Act),
Court No.4, Sultanpur, as well as the
impugned order dated 02.08.2023 passed
by the learned Sessions Judge, Sultanpur in
Sessions Trial No.119 of 2023 (State of
U.P. v. Brijesh Kumar Yadav and Ors.)
arising out of case crime no.78 of 2022,
under Sections-147, 148, 149, 302, 307,
504, 506, 34, 120-B IPC, Police StationAmethi, District-Amethi, pending in the
Court of Additional Sessions Judge/Special
Judge (E.C. Act), Court No.4, Sultanpur.

3. The factual matrix of the case is as
follows:

The
FIR
was
lodged
on
16.03.2022 against the applicants and other
co-accused persons u/s 147, 148, 149, 302,
307, 504, 506, 34, 120-B IPC, in case crime
no.78 of 2022, Police Station-Amethi,
District-Amethi. Police, after investigation,
prepared
the
first
chargesheet
dated
22.05.2022, though it is disputed that this
chargesheet was not submitted at that time
by the police. But on the direction of the
Superintendent
of
Police,
a
further
investigation was also conducted. It is
relevant to mention here, in the first
chargesheet, which was mentioned as
870 INDIAN LAW REPORTS ALLAHABAD SERIES
chargesheet no.156, applicants were also
named as accused and the same was filed
along
with
subsequent
chargesheet
no.156A, which was filed in the Court on
14.06.2022. Applicants were also named as
accused in that supplementary chargesheet,
but one of the co-accused, Ram Shankar
Tiwari, was exonerated. Subsequently, on
the direction of the Principal Secretary,
Government of U.P., the order was issued
by the Superintendent of Police, Amethi, to
conduct
further
investigation.
After
obtaining permission from the Court, the
Investigating Officer again conducted the
investigation
and
submitted
third
chargesheet
bearing
no.156B
on
10.01.2023.
In
that
chargesheet,
the
applicants' names were deleted, and certain
sections were removed, including the
section of 120-B IPC, it was filed against
the other accused persons. Thereafter, the
Investigating Officer, based on the third
police report dated 10.01.2023, also applied
to cancelling the warrant against the
applicants who were in jail. The learned
Chief Judicial Magistrate rejected that
application by order dated 13.01.2023, and
he also rejected the supplementary report
dated 10.01.2023 and directed the case to
be committed to Sessions Judge. After that,
vide a separate order dated 16.01.2023, the
case was also committed to Sessions Judge.
The applicants and other accused persons
have challenged the order dated 13.01.2023
before this Court by way of Revision
no.113 of 2023, which is still pending.
Thereafter, the present applicants moved a
Discharge application dated 03.05.2023 u/s
227 Cr.P.C. on the ground that in the
subsequent police report, the applicants
were exonerated; therefore, there is no
evidence against them, and on considering
the subsequent police report, they may be
discharged. The learned Sessions rejected
this discharge application Judge by the
order dated 16.05.2023. Thereafter, charges
were also framed on 02.08.2023 against the
applicants by the learned Sessions Judge
u/s 228 Cr.P.C. In the meantime, the
applicants had filed Application u/s 482
No.7193 of 2023 challenging the criminal
proceeding of Sessions Trial No.119 of
2023 of the present case crime number. But
in that 482 application, order of rejecting of
discharge application dated 16.05.2023 was
not challenged. This Court disposed of this
application by order dated 30.08.2023
rejecting the prayer for quashing the
proceeding of Sessions Trial No. 119 of
2023. However, the Court directed that in
view of the law laid down by the Hon'ble
Supreme Court in the case of Vinay Tyagi
Vs. Irshad Ali alias Deepak and Others
reported in (2013) 5 SCC 762, at the time
of the proceeding of trial, the Court should
consider both the police reports to evaluate
all evidence collected by the Investigating
Officer. In the aforesaid two chargesheets
i.e. 14.06.2022 as well as 10.01.2023, it is
relevant to mention here that the order in
application u/s 482 no.7193 of 2023 was
reserved on 28.07.2023 and delivered on
30.08.2023. Thereafter, the applicants had
filed second discharge application on
02.09.2023 on the ground that the Hon'ble
High Court in Application u/s 482 No.7193
of 2023 directed to consider both the police
reports, therefore, both the police reports
should be considered before framing any
charge. This second discharge application
was rejected by the impugned order dated
13.12.2023.

4. The order dated 13.12.2023 by
which the discharge application of the
applicants was rejected, as well as an order
dated 02.08.2023 by which the charges
were framed against the applicants was
chalenged through the present application
u/s 482 Cr.P.C.
1 All. Nitin Tiwari & Anr. Vs. State of U.P. & Anr.
871

5. Contention of learned counsel for
the applicants is that while passing the
impugned order, there is an appreciation of
fact because it considered the chargesheet
dated 22.05.2023 as the first chargesheet,
though this chargesheet was never filed
before the second chargesheet, but it was
subsequently
filed
along
with
supplementary
chargesheet
dated
14.06.2022; therefore, the same cannot be
treated as a chargesheet, but only the
document sent with the second chargesheet.
It was also submitted that the Court below
also failed to consider the law laid down by
the Hon'ble Supreme Court in Vinay
Tyagi's case (supra), (Paragraph no.42) as
well as paragraphs nos.13, 15 and 16 of
Luckose
Zachariah
alias
Zak
Nedumchira Luke and others Vs. Joseph
Joseph and others reported in 2022 SCC
OnLine SC 241. It was also submitted by
learned counsel for the applicants that the
Court below has also illegally framed
charges on 02.08.2023 because prior to that
date, judgment in Application u/s 482
No.7193 of 2023 was reserved, and same
was delivered on 30.08.2023, and it was
incumbent upon the Court below to wait till
the delivery of the judgement.

6. Learned counsel for the opposite
party No. 2 had submitted that this
Application
u/s
482
is
itself
not
maintainable because against the rejection
of the discharge application, revision is
maintainable and this is an abuse of process
of law on the part of applicants themselves.
In support of this contention, learned
counsel for the opposite party no.2 has
relied upon the judgement of the Hon'ble
Supreme Court in Madhu Limaye Vs.
State of Maharashtra reported in 1997
(4) SCC 551, paragraph no.15 as well as
judgement of Ram Shanker Singh Vs.
State of U.P. And Another passed by the
Division
Bench
of
this
Court
in
Application u/s 482 No.27288 of 2016
decided on 04.01.2017, paragraphs nos.7, 8
and 9 and Shailendra Agrawal And
Another Vs. State of U.P. and Another in
Application u/s 482 No.24354 of 2023.

7. The second argument submitted by
learned counsel for the opposite party no.2
is once the discharge application of the
applicants was rejected on 16.05.2023, and
the same was not challenged before the
High
Court,
the
second
discharge
application itself was not maintainable and
it was further submitted that in paragraph
no.7 of the earlier discharge application
dated 03.05.2023, specific ground for
consideration of two police reports was
raised and same was
considered by the
Court in its order dated 16.05.2023 and
after rejecting the discharge application,
direction was also made to frame the
charges and this order itself became final.

8. The third point raised by learned
counsel for the opposite party no.2, it is
very clear from perusal of Section 228
Cr.P.C. that immediately after discharge
application, this Court is bound to frame
the charges. Therefore, no question of
waiting for the delivery of judgement arises
at all. It was also submitted by learned
counsel for the applicants that in earlier
Application u/s 482 No.5578 of 2023 filed
by co-accused Ram Shankar Tiwari, this
Court had clearly directed by order dated
21.03.2023 that the trial may proceed in
accordance with the law against the rest of
the accused persons. Therefore, once there
is direction of the Court itself, then
question of waiting to frame charges till the
delivery of judgment and disposal of
Application u/s 482 No.7193 of 2023 does
not arise once it is admitted that the
discharge rejection order dated 16.05.2023
872 INDIAN LAW REPORTS ALLAHABAD SERIES
was not challenged in Application u/s 482
No.7193 of 2023.

9. Another argument raised by learned
counsel for the opposite party no.2 is that it
is established legal position that once the
charge has been framed, then the discharge
application itself is not maintainable, and in
support of his contention, he has relied
upon paragraph no.29 in the judgement of
Ravindra Pratap Shahi @ Pappu Shahi
Vs. State of U.P. & Another delivered in
Criminal Revision No.2183 of 2021.

10. The last argument of learned
counsel for the opposite party no.2 is that
the present 482 application is virtually the
second 482 application challenging the
discharge rejection order because in the
first application under section 482 filed by
the applicants bearing no.7193 of 2023, the
order rejecting the discharge application
was not challenged, though that remedy
was available to the applicants. Now the
applicants have again challenged that
discharge rejection order. In support of his
contention,
learned
counsel
for
the
applicants has relied upon the judgment of
Bhisham Lal Verma Vs. State of U.P. &
Another reported in 2023 SCC OnLine
SC 1399.

11. Learned AGA while adopting the
argument of learned counsel for the
opposite party no.2 had also submitted that
there is no illegality in the impugned orders
as the applicants were named in the FIR
and chargesheet but on the basis of further
investigation, they somehow succeeded to
get
them
exonerated
in
second
supplementary chargesheet and it was lastly
argued by learned counsel for the State that
this 482 application against the rejection of
discharge application is not maintainable
because the impugned order itself is
reviseable.

12. In reply to the contention of
learned counsel for the opposite party no.2
and learned AGA, learned counsel for the
applicants
submits
that
the
Hon'ble
Supreme Court in paragraph no.10 of Vijay
and Another Vs. State of Maharashtra
and Another reported in (2017) 13 SCC
317, as well as in the case of Sanjay
Kumar Rai Vs. State of Uttar Pradesh
and Another reported in (2021) SCC
OnLine SC 367, has observed that an
alternative remedy of filing revision is not a
bar for filing the 482 application if, in
appropriate cases, it is just in the interest of
justice.

13. After considering the argument of
the parties, the following question arises for
determination:

(I)
Whether
the
present
application u/s 482 Cr.P.C. is maintainable
against
the
rejection
of
discharge
application and framing of charge despite
the fact that both the orders are revisable?

(II) Whether the framing of
charge on the part of Sessions Judge on
02.08.2023 is proper once the proceeding
itself was under challenge in application u/s
482 no.7193 of 2023, and the matter was
heard on 28.07.2023, and judgement was
reserved, which was subsequently delivered
on 30.08.2023?

(III)
Once
the
discharge
application
dated
03.05.2023
of
the
applicants was rejected on 16.05.2023,
which was not challenged and charges were
framed on 02.08.2023, then subsequent
discharge application dated 02.09.2023 is
1 All. Nitin Tiwari & Anr. Vs. State of U.P. & Anr.
873
maintainable, which was rejected by the
impugned order dated 13.02.2023.

(IV) Whether the present 482
application is the second application
against
the
rejection
of
discharge
application
of
the
petitioner
once
applicants failed to challenge the earlier
rejection of discharge application in their
earlier application, having no.7193 of
2023?

(V) While passing the impugned
order, rejecting the discharge application
dated 02.09.2023, learned Sessions Judge
has failed to consider two contradictory
police reports in light of the judgement of
the Hon'ble Supreme Court in Vinay
Tyagi's
case
(supra)
as
well
as
judgement of Luckose Zachariah's case
(supra).

14. Insofar as the (I) question is
concerned in support of his submission,
learned counsel for the applicants has
already relied upon paragraph no.10 of
Madhu Limaye's case (supra), which is
being quoted as below:

"10. As pointed out in Amar Nath
case the purpose of putting a bar on the
power of revision in relation to any
interlocutory order passed in an appeal,
inquiry, trial or other proceeding, is to
bring about expeditious disposal of the
cases finally. More often than not, the
revisional power of the High Court was
resorted to in relation to interlocutory
orders delaying the final disposal of the
proceedings. The Legislature in its wisdom
decided to check this delay by introducing
sub-section (2) in Section 397. On the one
hand, a bar has been put in the way of the
High Court (as also of the Sessions Judge)
for exercise of

the revisional power in relation
to any interlocutory order, on the other, the
power has been conferred in almost the
same terms as it was in the 1898 Code. On
a plain reading of Section 482, however, it
would follow that nothing in the Code,
which would include sub-section (2) of
Section 397 also, "shall be deemed to limit
or affect the inherent powers of the High
Court", But, if we were to say that the said
bar is not to operate in the exercise of the
inherent power at all, it will be setting at
naught one of the limitations imposed upon
the exercise of the revisional powers. In
such a situation, what is the harmonious
way out? In our opinion, a happy solution
of this problem would be to say that the bar
provided in sub-section (2) of Section 397
operates only in exercise of the revisional
power of the High Court, meaning thereby
that the High Court will have no power of
revision in relation to any interlocutory
order. Then in accordance with one of the
other principles enunciated above, the
inherent power will come into play, there
being no other provision in the Code for
the redress of the grievance of the
aggrieved party. But then, if the order
assailed is purely of an interlocutory
character which could be corrected in
exercise of the revisional power of the High
Court under the 1898 Code, the High Court
will refuse to exercise its inherent power.
But in case the impugned order clearly
brings about a situation which is an abuse
of the process of the Court or for the
purpose of securing the ends of justice
interference
by
the
High
Court
is
absolutely
necessary,
then
nothing
contained in Section 397(2) can limit or
affect the exercise of the inherent power by
the High Court. But such cases, would be
few and far between. The High Court must
exercise the inherent power very sparingly.
One such case would be the desirability of
874 INDIAN LAW REPORTS ALLAHABAD SERIES
the quashing of a criminal proceeding
initiated illegally, vexatiously or as being
without jurisdiction. Take for example a
case where a prosecution is launched
under the Prevention of Corruption Act
without a sanction, then the trial of the
accused will be without jurisdiction and
even after his acquittal a second trial,
after proper sanction will not be barred
on the doctrine of autrefois acquit. Even
assuming, although we shall presently
show that it is not so, that in such a case
an order of the Court taking cognizance
or issuing processes is an interlocutory
order, does it stand to reason to say that
inherent power of the High Court cannot
be exercised for stopping the criminal
proceeding as early as possible, instead
of harassing the accused up to the end?
The answer is obvious that the bar will
not operate to prevent the abuse of the
process of the Court and/or to secure the
ends of justice. The label of the petition
filed by an aggrieved party is immaterial.
The High Court can examine the matter
in an appropriate case under its inherent
powers. The present case undoubtedly
falls for exercise of the power of the High
Court in accordance with Section 482 of
the 1973 Code, even assuming, although
not
accepting,
that
invoking
the
revisional power of the High Court is
impermissible."

15. Similarly, the judgement of
Prabhu Chawla Vs. State of Rajasthan
And Another reported in (2016) 16 SCC
30, Hon'ble Supreme Court observed that
remedy of revision is not an absolute bar
for exercising power u/s 482 Cr.P.C. where
abuse of process of Court or other
extraordinary
situation
warrants
the
exercise of inherent jurisdiction, paragraph
no.6 of the said judgement is being quoted
as below:

"6. In our considered view any
attempt to explain the law further as
regards the issue relating to inherent
power of the High Court under Section 482
CrPC is unwarranted. We would simply
reiterate that Section 482 begins with a non
obstante clause to state:

"482. Saving of inherent powers
of High Court.-Nothing in this Code shall
be deemed to limit or affect the inherent
powers of the High Court to make such
orders as may be necessary to give effect to
any order under this Code, or to prevent
abuse of the process of any court or
otherwise to secure the ends of justice."

A fortiori, there can be no total
ban on the exercise of such wholesome
jurisdiction where, in the words of Krishna
Iyer, J.

"abuse of the process of the court
or other extraordinary situation excites the
Court's jurisdiction. The limitation is selfrestraint, nothing more". (Raj Kapoor V.
State, (1980) 1 SCC 43)

We venture to add a further
reason in support. Since Section 397 CrPC
is attracted against all orders other than
interlocutory, a contrary view would limit
the availability of inherent powers under
Section
482
CrPC
only
to
petty
interlocutory orders! A situation wholly
unwarranted and undesirable."

16. Similarly in the case of Vijay's
case (supra) relied upon by learned
counsel
for
the
applicants,
Hon'ble
Supreme Court observed that availability of
alternative remedy cannot be a ground of
disentitlement of the relief u/s 482 Cr.P.C.
Paragraph nos.7 and 8 of the said
judgement is being quoted as below:
1 All. Nitin Tiwari & Anr. Vs. State of U.P. & Anr.
875

"7. After hearing the counsel and
also after perusing the impugned order, we
are of the considered opinion that the order
of the High Court has no legs to stand in
view of the law laid down by this Court in
Prabhu Chawla. In the above referred
case, in view of the divergent opinions of
this Court in Dhariwal Tobacco Products
Ltd. and Mohit v. State of U.P, the matter
was placed before the three-Judge Bench of
this Court. The three-Judge Beach took the
view that Section 482 CrPC begins with a
non obstante clause to state:

482. Saving of inherent powers
of High Court-Nothing in this Code shall
be deemed to limit or affect the inherent
powers of the High Court to make such
orders as may be necessary to give effect
to any order under this Code, or to
prevent abuse of the process of any court
or otherwise to secure the ends of
justice."

As
Section
397
CrPC
is
attracted against all orders other than
interlocutory, a contrary view would limit
the availability of inherent powers under
Section
482
CrPC
only
to
petty
interlocutory orders! A situation which is
wholly unwarranted and undesirable. The
three-Judge Bench has confirmed the law
laid down by this Court in Dhariwal
Tobacco Products Ltd.

8. In view of the above settled
law, mere availability of alternative remedy
cannot be a ground to disentitle the relief
under Section 482 CrPC and, apart from
this, we feel that the learned Judge without
appreciating any of the factual and legal
position, in a mechanical way, passed the
impugned
order,
which
warrants
interference by this Court. Accordingly, the
order of the High Court is set aside and the
matter is remanded to the High Court for
reconsideration in the light of the settled
legal position."

17. In the judgement of Sanjay
Kumar Rai's case (supra), Hon'ble
Supreme Court again observed that
framing of charge or refusing discharge
are neither interlocutory nor final in
nature, therefore, remedy of revision u/s
397 Cr.P.C. will not be a bar to exercise
inherent jurisdiction to prevent abuse of
process and to secure ends of justice.
Paragraph no.16 of the above judgement
is being quoted as below:

"16. The correct position of law
as laid down in Madhu Limaye (supra),
thus, is that orders framing charges or
refusing
discharge
are
neither
interlocutory nor final in nature and are
therefore not affected by the bar of Section
397 (2) of CrPC. That apart, this Court in
the above-cited cases has unequivocally
acknowledged that the High Court is
imbued
with
inherent
jurisdiction
to
prevent abuse of process or to secure ends
of justice having regard to the facts and
circumstance of individual cases. As a
caveat it may be stated that the High Court,
while
exercising
its
afore-stated
Jurisdiction ought to be circumspect. The
discretion vested in the High Court is to be
invoked carefully and judiciously for
effective and timely administration of
criminal
justice
system.
This
Court,
nonetheless,
does
not
recommend
a
complete hands off approach. Albeit, there
should be
interference,
may
be,
in
exceptional cases, failing which there is
likelihood of serious prejudice to the rights
of a citizen. For example, when the
contents of a complaint or the other
purported material on record is a brazen
attempt to persecute an innocent person, it
876 INDIAN LAW REPORTS ALLAHABAD SERIES
becomes imperative upon the Court to
prevent the abuse of process of law."

18. Similarly in the case of Ram
Shanker Singh's case (supra), Division
Bench of this Court in paragraph nos.7, 8
and 9 clearly observed that rejecting of
discharge
application
is
revisable,
therefore, there is no reason to approach the
High Court u/s 482 Cr.P.C. against that
order. Paragraph nos.7, 8 and 9 of the

above judgement are being quoted as
below:

"7. It is at this stage that the
revisionist Ram Shanker Singh has filed
this application under section 482 Cr.P.C.
for quashing of the charges, leveled against
the petitioner, as well as the order dated
16.2.2016
whereby
the
discharge
application was rejected. It has further
been prayed that the proceeding of Case
No.235 of 2010 may be quashed. In
paragraph 28 of the present application it
has been stated that the other co-accused
A.S. Chauhan has preferred Criminal
Revision No.822 of 2016. What is the status
of the said Criminal Revision is not known.

8. However the applicant, Ram
Shanker Singh, in his wisdom has decided
to approach this Court under section 482
Cr.P.C The contention raised on behalf of
the applicant for not preferring criminal
revision after he felt aggrieved by the
order, rejecting the discharge application
and after framing of the charge is that
since against the order framing charge no
criminal revision would be maintainable,
the appellant has decided to approach this
Court by means of this present application.

9. At the very outset we may
record that the order rejecting the
discharge application was made in the
month of February, 2016 while the charge
has been framed under order dated
24.8.2016. These are two distinct orders.
The
order
rejecting
the
discharge
application was admittedly revisable. Why
the applicant did not think it proper to
challenge the order rejecting the discharge
application for more than six months, has
not been explained. Against the order
rejecting the discharge application, a
criminal revision would be maintainable,
there is little or no reason for the accused
to approach this Court under section 482
Cr.P.C. against the said order."

19. Similarly, in the case of
Shailendra Agrawal's case (supra), a
coordinate Bench of this Court observed
that against the order of discharge, there is
a remedy of criminal revision; therefore,
there is no reason to entertain 482
application against that order. Paragraph
no.6 of the above judgement is being
quoted as below:

"6. As in this application, legality
and propriety has been challenged against
the order of discharge, there lies an
alternative remedy of criminal revision
which has not been availed by the
applicants."

20. From the above-mentioned
judgement, it is clear, though, that there is
no absolute bar against entertaining 482
application
against
the
rejection
of
discharge application as well as against
framing of charge despite the fact that both
the orders are revisable, but as observed in
the cases mentioned above, such exercise
should be adopted only in appropriate cases
where the situation demands to exercise
such power to prevent abuse of the process
of the Court or other extraordinary
situation. Therefore, the law is clear on this
1 All. Nitin Tiwari & Anr. Vs. State of U.P. & Anr.
877
point that against the rejection of discharge
application and/or against framing of
charge, normally revision should be filed,
but application u/s 482 Cr.P.C. is
maintainable
in
appropriate
cases.
Therefore, whether the application u/s
482 Cr.P.C. should be entertained
against the rejection of discharge
application or framing of charges
despite the remedy of revision will
depend on the facts and circumstances
of the cases which the Court itself
could decide.

21. In the present case, the
impugned order rejecting the discharge
application of the applicant was passed in
pursuance of an order dated 31.07.2023
passed in application u/s 482 no.5578 of
2023. Even though earlier discharge
application of the applicants was rejected
on
16.05.2023;
therefore,
in
such
circumstances, present 482 application
against the impugned order rejecting
the second discharge application and
framing of charge is maintainable
because of the peculiar circumstances
of the case.

22. So far as the (II) issue is
concerned, in reply to that issue, learned
counsel for the opposite party no.2 has
submitted
that
once
the
discharge
application is rejected u/s 227 Cr.P.C.
after hearing the parties, then the learned
Sessions Judge has no option except to
frame charges u/s 228 Cr.P.C. and
learned counsel for opposite party no.2
has also placed reliance on the petition
filed by the co-accused, Ram Shankar
Tiwari
u/s
482
application
having
No.5578 of 2023 against his summoning
in the present case crime number and in
that case while passing the order dated
31.07.2023, the coordinate Bench though,
stayed the proceeding against the coaccused Ram Shankar Tiwari but also
permitted the trial court to proceed in
accordance with law in relation to the rest
of the accused persons. Sections 227 and
228 of Cr.P.C. are being quoted as below:

"227.
Discharge.-
If,
upon
consideration of the record of the case and
the documents submitted therewith, and
after hearing the submissions of the
accused and the prosecution in this behalf,
the Judge considers that there is not
sufficient ground for proceeding against
the accused, he shall discharge the accused
and record his reasons for so doing.

228. Framing of charge.- (1) If,
after such consideration and hearing as
aforesaid, the Judge is of opinion that there
is ground for presuming that the accused
has committed an offence which -

(a) is not exclusively triable, by
the Court of Session, he may, frame a
charge against the accused and, by order,
transfer the case for trial to the Chief
Judicial Magistrate, [or any other Judicial
Magistrate of the first class and direct the
accused to appear before the Chief Judicial
Magistrate, or as the case may be, the
Judicial Magistrate of the first class, on
such date as he deems fit, and thereupon
such Magistrate] shall try the offence in
accordance with the procedure for the trial
of warrant-cases instituted on a police
report;

(b) is exclusively triable by the
Court, he shall frame in writing a charge
against the accused.

(2) Where the Judge frames any
charge under clause (b) of sub-section (1),
the charge shall be read and explained to
878 INDIAN LAW REPORTS ALLAHABAD SERIES
the accused, and the accused shall be asked
whether he pleads guilty of the offence
charged or claims to be tried."

23. From the perusal of Sections 227
and 228 of Cr.P.C., it is clear that once the
the court heard the accused person and
prosecution u/s 227 Cr.P.C. and rejected
the discharge application of the applicants,
then Court is bound to frame charge u/s
228 (b) Cr.P.C., if same is exclusively
triable by Sessions court and with further
duty that after framing of charge, Sessions
court will read and explain the charges to
the accused persons, and the Court will also
ask him whether he pleaded guilty of
charge or claims to be tried. In the present
case,
after
rejecting
the
discharge
application of the applicants on 16.05.2023,
learned Sessions Judge framed charge on
02.08.2023
in
the
presence
of
the
applicants, taking into consideration the
order dated 31.07.2023 passed by this
Court in application u/s 482 no.5578 of
2023 and also rejected the application dated
02.08.2023 of the applicants that till
delivery of judgement in application u/s
482 no.7193 of 2023; charge may not be
framed. Therefore, charges were framed by
applying the provision of Section 228
Cr.P.C. Therefore, this Court is of the view
that once the discharge application of the
applicants was rejected on 16.05.2023,
which
was
not
challenged
by
the
applicants, then there was a statutory duty
on the part of Sessions Judge to frame
charge u/s 228 Cr.P.C. and merely because
judgment has been reserved in application
u/s 482 no.7193 of 2023 against the
criminal proceeding of session trial, there is
no reason to wait till the delivery of
judgment, once the rejection of discharge
application
on
16.05.2022
was
not
challenged by the applicants in application
u/s 482 no.7193 of 2023, and there was
clear
permission
of
this
Court
in
application u/s 482 no.5578 of 2023 filed
by the co-accused Ram Shankar Tiwari for
the trial court to proceed against all accused
persons,
including
the
applicants.
Therefore, this Court holds that there is
no illegality in framing the charge
against the applicants on 02.08.2023, and
this Court also holds that once the
discharge application of an accused is
rejected u/s 227 Cr.P.C. then unless the
order rejecting the discharge application
was challenged and stayed by higher
Court, the Sessions Judge is under
statutory duty to frame charges u/s 228
Cr.P.C.

24. So far as the (III) issue is
concerned that when the charge has been
framed
after
rejecting
the
discharge
application,
then
second
discharge
application is maintainable or not. This
point was concerned in the case of
Ravindra Pratap Shahi's case (supra) by
the coordinate Bench of this Court and after
relying upon several judgements of the
Hon'ble Supreme Court held that after the
framing of charge, issue relating to the
discharge of the accused cannot be
considered. Paragraphs nos.28 and 29 of
the judgement mentioned above are being
quoted as below:

"28. Having noted the law
regarding exercise of jurisdiction under
Section 227 Cr.P.C., this Court is further
required to examine as to whether after
charges have been framed the issue
relating to discharge of an accused can be
considered by court or not. Aforesaid issue
is no longer res-integra and stands
concluded by the judgement of Supreme
Court in Ratilal Bhanji Mithani Vs. State
of Maharastra and others (1979) 2 SCC
179, paragraph 28, which has been
1 All. Nitin Tiwari & Anr. Vs. State of U.P. & Anr.
879
followed in Bharat Parikh Vs. C.B.I. and
another, (2008) 10 SCC 109, paragraph
16, State through C.B.I. New Delhi Vs.
Jitendra Kumar Singh, (2014) 11 SCC,
724, paragraph 40, Hardeep Singh Vs.
State of Punjab, (2014) 3 SCC, 92,
paragraph 31.

29. It is thus apparent that once
charges have been framed, the issue of
discharge becomes redundant, as Courts
have no jurisdiction to allow discharge
after charges having been framed. After
charges have been framed, Court can
either convict or acquit an accused.
Admittedly, in the present case, charges
have been framed, vide order dated
04.09.2021. Resultantly, this Court now
cannot examine the veracity of order
dated 02.09.2021, whereby discharge
application
filed
by
applicant
was
rejected."

25. In the case of Ratilal Bhanji
Mithani Vs. State of Maharashtra &
Others reported in 1979 (2) SCC 179,
this question was considered by the
Hon'ble Supreme Court and observed that
once a charge is framed, the Magistrate
has no power u/s 227 Cr.P.C. or any other
provision of Cr.P.C. to cancel the charge.
Paragraph
no.28
of
the
aforesaid
judgement is being quoted as under:

"28. Once a charge is framed,
the Magistrate has no power under
Section 227 or any other provision of the
code to cancel the charge, and reverse
the proceedings to the stage of Section253 and discharge the accused. The trial
in a warrant case starts with the framing
of charge; prior to it, the proceedings are
only an inquiry. After the framing of the
charge if the accused pleads not guilty, the
Magistrate is required to proceed with the
trial in the manner provided in Sections254 to 258 to a logical end."

26. Similarly in the case of Bharat
Parikh
Vs.
Central
Bureau
of
Investigation & Another 2008 (10) SCC
109, Hon'ble Supreme Court has observed
that once the charge has been framed, an
accused pleads not guilty then Magistrate is
required to proceed with the trial to its
logical end and he has no power to
discharge the accused. He can either
convict or acquit the accused. Paragraph
no.17 of the above judgement is being
quoted as below:

"17. Of the two propositions
raised in this appeal, the first proposition
has been completely answered in Debendra
Nath Padhi case regarding the trial court's
power to recall its order framing charge
against an accused. Having regard to the
language of Sections 207 and 227 of the
Code of Criminal Procedure, while framing
charges the trial court can only look into
the materials produced by the prosecution
while giving an opportunity to the accused
to show that the said materials were
insufficient for the purpose of framing
charge.