# Pawan Tewari Revisionist v. State of U.P

- **Citation:** (2019) 3 ILRA 350
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-10-30
- **Bench:** Dinesh Kumar Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pawan-tewari-revisionist-v-state-of-u-p-44893
- **Pages:** 16

## Headnote

Law-Code
of
Criminal
Procedure,1973 - Section-227/228 -
Application
-
while
considering
an
application for discharge, the court is
required to consider the record of the
case to decide whether the allegations
against accused are made out or not-it is
not required to weigh and sift all the
evidence-if the material placed before
the court discloses grave suspicion
against the accused, the court is justified
in framing the charge-application of
discharge is dismissed-it is well settle
that the confession of a co-accused is a
substantive evidence against other coaccused persons in the same trial.
 (Para 31,32,33,34)

Revision dismissed (E-6)

List of cases cited:-

## Text

_Characters 0–39,961 of 53,149. This is a partial read: ask again with offset=39961 for what follows._

350 INDIAN LAW REPORTS ALLAHABAD SERIES
case, marriage in between is not denied,
previous marriage and two kids are also
not
denied.
The
accused
being
a
government servant is not denied. He
being legally bound not to marry during
lifetime
of
his
wife
under
U.P.
Government Servant Service Conduct
Rule, 1956 is not denied. He entered in
marriage with complainant is also not
denied. He said himself to be unmarried
and under his assurance and persuasion
this marriage took place, has been said by
prosecutrix in her report and in her
statement recorded under section 164
Cr.P.C. She was blessed with a child, who
was born alive, but was reported to be
dead by accused-applicant. It has been
said by her in her report. Subsequently,
she was blessed with another child. Then
after she was compelled to be away from
the life of accused, for which threat was
extended. This has been mentioned in the
report as well as in her statement recorded
u/s 164 Cr.P.C. Under all these facts and
circumstances it seems a case in which no
indulgence is required from this Court.

7. Accordingly, this application is
rejected.

8. However, it is made clear that the
trial court as well as Investigating Officer
will not be influenced from any finding
recorded in this order.
----------
(2019)11ILR A350

REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 30.10.2019

BEFORE
THE HON'BLE DINESH KUMAR SINGH, J.

Criminal Revision No. 123 OF 2007

Pawan Tewari ...Revisionist
Versus
State of U.P. ...Opposite Party

Counsel for the Revisionist:
Sri Karuna Shankar Rastogi

Counsel for the Opposite Party:
Government Advocate, Sri V.K. Shahi

A.
Criminal
Law-Code
of
Criminal
Procedure,1973 - Section-227/228 -
Application
-
while
considering
an
application for discharge, the court is
required to consider the record of the
case to decide whether the allegations
against accused are made out or not-it is
not required to weigh and sift all the
evidence-if the material placed before
the court discloses grave suspicion
against the accused, the court is justified
in framing the charge-application of
discharge is dismissed-it is well settle
that the confession of a co-accused is a
substantive evidence against other coaccused persons in the same trial.
 (Para 31,32,33,34)

Revision dismissed (E-6)

List of cases cited:-

1. State of Tamilnadu Vs. Jayalalitha, (2000) 5
SCC 440

2. Param Hans Yadav and Sadanand Tripathi
Vs. State of Bih. And Ors, (1987) 2 SCC 197

3. Satish Mehra Vs. Delhi Administration & Anr
(1996) 9 SCC 766

4. State of Bih. Vs. Ramesh Singh, (1977) 4
SCC 39

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

6. State Vs. Selvi,(2018) 13 SCC 455

7. Asim Shariff Vs. NIA,(2019) 7 SCC 148

8. Tarun Jit Tejpal Vs. State of Goa and Ors,
(2019)
SCC
OnLine
SC
1053
3 All. Pawan Tewari Vs. State of U.P.
351
(Delivered by Hon'ble Dinesh Kumar
Singh, J.)

1. The present revision petition has
been filed against the order dated
31.01.2007 passed in Sessions Trial
No.1058 of 2006 by Additional District
and
Sessions
Judge,
Court
No.23,
Lucknow whereby an application of
discharge filed by the revisionist under
Section 227 Cr.P.C. has been dismissed.

2. Brief facts of the case are that, the
complainant, respondent No.2 gave a
written report at the police station on
07.04.2006 bringing it to the notice of the
police that her husband, Mr. Sudhir
Kumar Sharma went out from the
residence on 04.04.2008 at around 4:45
P.M. and, he did not come back till giving
the complaint at the police station.

3. On the basis of aforesaid
complaint, Sub-Inspector, A.K. Sachan
registered the information in G.D. and
started
investigation.
From
the
investigation and examination of the call
record
of
Mr.
S.K.
Sharma,
the
investigating officer was of the opinion
that Mr. S.K. Sharma was kidnapped for
ransom. In this kidnapping etc., prima
facie involvement of Devvrat Mishra,
Executive Engineer and his son residents
of 21 Hydel Colony, Vivekanand Puri
Road, Mahanagar, Lucknow, Baccha
Pandey s/o Ramjage Pandey who was
relative of Devvrat Mishra and, Pawan
Tiwari, the revisionist herein who was
friend of son of Devvrat Mishra was
found.

4. After finding prima facie
involvement of these persons, a complaint
was given for registering the FIR under
Section 364A IPC. The investigating
officer, thereafter, recorded the statement
of the wife of S.K. Sharma, Dr. Savita
Sharma who initially gave the complaint
at the police station regarding her
husband going missing with effect from
04.04.2006.

5. Dr. Savita Sharma was residing at
Banaras Hindu University and working as
Assistant Curator in-charge of Coin
Section, Bharat Kala Museum. She gave
the statement that her husband, Mr.
Sudhir Kumar Sharma was Chairman of
the Electricity Board. He got retired from
the service on 28.02.2004 and was
residing
at
Vivekanandpuri,
Hydel
Colony. Along with him, servant Subhash
was also living. On 04.04.2006 and
05.04.2006 she spoke to them. On
06.04.2006 she spoke to her husband
from Banaras. She was asked by her
husband to come to Lucknow. She
reached Lucknow by Kashi Vishwanath
Express. When she was in tempo from
Charbagh Railway Station to reach
Vivekanandpuri,
Hydel
Colony,
a
telephone call came at around 9-10 P.M.
from Mr. S.K. Sharma asking her where
was she. She told her location to him and,
then he said that she was required to
arrange Rs.15,00,000/-. He directed her to
go to Citi Bank in the morning. When she
asked that where was he, he said that he
would talk to her later. He said that she
should reach home. He also said that
without taking money, they would not
leave him alive. On 07.04.2004 again Mr.
S.K. Sharma rang her at around 9-10
A.M. and said that she should go to Citi
Bank and withdraw money from the
Bank. On 07.04.2006 she went to the
residence of Mr. Devvrat Mishra who had
called her. Mr. Devvrat Mishra was
subordinate to her husband and was also
residing at Hydel Colony. She gave
352 INDIAN LAW REPORTS ALLAHABAD SERIES
mobile numbers of her and Devvrat
Mishra to investigating officer. Mr.
Devvrat Mishra told her that Mr. S.K.
Sharma called him and said that he was in
some difficulty as he had been abducted.
Mr. S.K. Sharma had asked him to make
arrangement of money. Mr. Mishra
further said that S.K. Sharma had asked
him not to give information to the police
otherwise, his life would be in jeopardy.

6. Devvrat Mishra further told Dr.
Savita Sharma that S.K. Sharma had
asked him to arrange Rs.15,00,000/-. In
this respect, Devvrat Mishra had spoken
to the Manager of Citi Bank and, he said
that Police should not be informed. When
the conversation between Devvrat Mishra
and Dr. Savita Sharma was taking place,
Rohit Mishra son of Devvrat Mishra was
present there and, he heard everything.

7. On 07.04.2006, Dr. Savita
Sharma went to the Citi Bank along with
Devvrat Mishra. The Manager of the
Bank told her that it would take sometime
to encash the mutual funds. She further
said that Subhash told her one of the two
persons who came to pick up Mr. S.K.
Sharma looked like Rohit Mishra. She
also said that Rohit Mishra was watching
her movements. After 07.04.2006 no
telephone call was received by her from
her husband or anybody and, Rohit
Mishra
went
absconding.
She
apprehended that Devvrat Mishra and his
son
were
involved
in
abduction/kidnapping of her husband and,
the fact that they took her to the City
Bank etc., was sufficient indication of
their involvement.

8.

The
investigating
officer
thereafter, recorded the statement of
Subhash Yadav who was the servant at
the household of Mr. S.K. Sharma. He
said that on 04.04.2006 at around 4:00
P.M., S.K. Sharma came from the office
and, told him that two people would come
in a black car to pick him up. As soon as
they would come, he should inform him
because he had to go with those people.
Sometime thereafter, one car came. He
described the two occupants of the car.
One occupant was aged around 23-24
years, came to the residence asking
whether S.K. Sharma resided here? By
that time, S.K. Sharma was ready to go
dressed in blue shirt and black pant. He
instructed Subhash to prepare food for
dinner and, thereafter, he had not come
back. He further said that he spoke to
S.K. Sharma twice or thrice on the said
date then, S.K. Sharma said that he would
come back in the night. On 05.04.2006
again he called on the mobile number of
S.K. Sharma from a P.C.O. as land line of
the house was out of order but S.K.
Sharma did not pick up the phone,
however, somebody else picked up the
phone. Next day, at round 11-12 A.M., he
called S.K. Sharma. Mr. S.K. Sharma told
him that he was in Delhi, and he would
come on 6th April. He gave the mobile
numbers of S.K. Sharma and telephone
number of the residence as well. On
06.04.2006 also he did not come,
however, two persons came on a
motorcycle, Bajaj CT-100 of black color.
They had keys of room and almirah of
S.K. Sharma. When they asked them not
to open the room and almirah, then they
made him to talk to S.K. Sharma. S.K.
Sharma asked him to allow them to open
almirah. Then almirah got opened but no
money was found there. Out of these two
persons who came on a motorcycle, one
was the same who came in the car to take
Mr. S.K. Sharma. He described the
second
person
who
came
in
the
3 All. Pawan Tewari Vs. State of U.P.
353
motorcycle having fair complexion who
had covered his face and was wearing
helmet, he was looking like the son of
Devvrat Mishra. When he reached the
house of Devvrat Mishra on asking of Dr.
Savita Sharma, he did not find Rohit
Mishra in the house. He spoke to Devvrat
Mishra on his mobile. Mr. Devvrat
Mishra told him that S.K. Sharma had
taken money from several persons and he
had been kidnapped.

9. Rohit Mishra gave statement to
the investigation officer that he along
with his friend, Pawan Tiwari, the
revisionist herein and his father had a
dream that he should pursue MBA from
Spain. For the aforesaid purpose, money
was required. To collect money they
thought of kidnapping a wealthy person.
He said that Mr. S.K. Sharma, Chairman
of Electricity Board who was living
nearby was set to retire on 28.02.2006. He
had taken huge amount from several
persons
in
the
name
of
giving
employment. He was also involved in a
scam of Rs.3,00,00,000/- at Obra. He had
deposited huge amount in mutual funds.
He also said that he used to visit
frequently the house of S.K. Sharma,
therefore, he thought of kidnapping of
S.K. Sharma.

10. After retirement, S.K.Sharma
was to get around 25-30 Lakhs rupees in
his P.F. Account. His wife was living in
Banaras and, Mr. S.K. Sharma was living
with his servant. He said that S.K. Sharma
was to move out after retirement from the
Hydel Colony and, therefore, he planned
to kidnap S.K. Sharma with Bachha
Pandey, his relative, who was living in
Vishwas Khand, Gomti Nagar and was
working in VLCC.

11. He said that he decided to invite
Mr. S.K. Sharma for drinking and
debauchery as Mr. Sharma was fond of
women and wine. Bachha Pandey agreed
to make arrangements. He also said that
Guddu Pandey @ Ram Kishore and
Pawan Pandey also agreed to help in
execution of this plan.

12. For this purpose, he took a
Mobile
Phone
connection
No.9838476603 in the name of Alok by
forging documents and he used this
number in kidnapping of Mr. S.K.
Sharma. He said that he made plan with
Pawan Tiwari and lured Mr. Sharma for a
girl and also to give him money for
providing employment to some persons in
the electricity Department. Mr. Sharma
got ready. According to the plan, he
borrowed
a
car
from
his
friend,
Siddhartah Singh and went to the house
of Mr. S.K. Sharma along with Baccha
Pandey. Baccha Pandey went to the
residence and brought Mr. S.K. Sharma
from the house and, thereafter, all three
went to Vishwas Khand where Guddu
Pandey,
Lalji,
Pawan
Tiwari
were
present. S.K. Sharma was kept on the first
floor and, he was provided drinks etc.
Demand for Rs.1,00,00,000/- was made
from him. However, Mr. S.K. Sharma
refused and said that he did not have that
much money. He said that he would give
Rs.15,00,000/- which was deposited in his
Syndicate Bank. In the night Mr. S.K.
Sharma received a telephonic call from
his servant and, he was asked to tell the
servant that he would come in the
morning on the next day. On 05.04.2006
again when his servant called, Mr. S.K.
Sharma was asked to tell him that he was
in Delhi and would come back on the next
day.
354 INDIAN LAW REPORTS ALLAHABAD SERIES

13. When Mr. S.K. Sharma was
asked that without cheque book how the
money would be withdrawn, then Mr.
Sharma asked him to bring cheque book
from almirah and, then he along with
Baccha Pandey, went to the house of Mr.
S.K. Sharma. At that time he covered his
face by a handkerchief and wore a helmet
so that the servant did not recognise him.
They thought that they would get good
amount of money from almirah but no
amount was received and cheque book
was also not found there. Mr. Sharma
used to take some medicines for which
they asked for the prescription but the
servant could not give the prescription.
He further said that he made Ms. Sharma
to talk to his father Mr. Devvrat Mishra.
His father said that he would help Ms.
Sharma to withdraw money from the
Bank. However, the Bank informed them
that the money could be withdrawn after
3-4 days. From the driver of Mr. Sharma,
it was known that Ms. Sharma had
informed the police and, then fearing their
arrest, the accused gave injection of
Sensoran and strangulated Mr. Sharma.
Dead body of Mr. S.K. Sharma was
brought in a Ford Car at Ramnagar,
Barabanki crossing where he met Pawan
Tiwari, Baccha Pandey, Rajan Pandey.
These persons along with one Guddu
Pandey threw the dead body in the river.

14. It appears that after recording
the statement of as many as 34 witnesses
and collecting the evidence including the
call details of the cell phones used by the
accused as well as deceased, charge sheet
under Sections 364-A, 302, 201, 120-B
IPC was filed against the accused
including the revisionist herein. The
revisionist thereafter filed an application
under Section 227 Cr.P.C. for discharge
from the case.

15. Learned Sessions judge has
rejected the application of the accused
revisionist vide impugned order dated
31.01.2007.

16. Heard learned counsel for the
revisionist and learned A.G.A. for the
State.

17. Learned counsel for the
revisionist submits that except for the
confessional statement of the co-accused,
Rohit Mishra given to the police, there is
no other evidence to connect the accusedrevisionist with the commission of the
offence. He further submits that the
confessional statement of the accused
given to the police cannot be relied on for
framing the charge against the present
accused-revisionist. He also submits that
statements of co-accused, Baccha Pandey,
Pawan Pandey, Rohit Mishra were
recorded under Section 161 Cr.P.C. and,
they have not made any statement before
the learned Magistrate under section 164
Cr.P.C. Further, learned Sessions Court in
the impugned order has held that for the
first time the accused's name came to the
light in the statement of Sub-Inspector,
A.K. Sachan on 14.04.2006. In his
statement, he said that two mobile
numbers
i.e.
9838384515
and
9835616862 were used in the commission
of the offence. It was further said that the
accused was using Mob.No.9839616862
which was in the name of Rohit Mishra.
Pawan Pandey and Rohit Mishra were
best friends and Pawan Pandey was also
absconding.

18. The Trial Court while rejecting
the application has held that the deceased,
S.K. Shamra was abducted for ransom.
An amount of Rs.15,00,000/- was asked
to be withdrawn from the Bank by her
3 All. Pawan Tewari Vs. State of U.P.
355
wife. After committing the murder of Mr.
S. K. Sharma, dead body was thrown in
the river and the evidence collected by the
investigating
officer
during
the
investigation including the statement of
the witnesses recorded under Section 161
Cr.P.C. established commission of the
offence by the accused and, therefore, he
rejected the application of discharge filed
by the accused and other co-accused.

19. In support of his submissions
that the statement of a co-accused cannot
be relied on, learned counsel for the
revisionist has cited judgment of the
Supreme Court in the case of State of
Tamilnadu versus Jayalalitha : (2000) 5
SCC 440.

Para 11 of aforesaid report on
which reliance has been placed is
extracted herein below:-

"11. We may, at the outset,
point out that there is no use of the said
statement attributed to the third accused
Venkataraman on account of two reasons.
First is that the said author of the
statement has already been arraigned in
the case and a charge has been framed
against him. Second is that on a reading
of the statement we have noticed that it is
exculpatory in nature. Hence the said
statement can only lie in store and no
court can possibly treat it as evidence."

20. However, learned counsel for
the revisionist has missed para 34 of
aforesaid judgment which throws enough
light on what needs to be considered at
the time of framing of the charge.

Para
34
of
the
aforesaid
judgment reads as under:-

"34. We would choose to
refrain from dealing with the above
contention, lest any comment made by us turn
out to be detrimental to one or the other side
of the case. Nevertheless, it is for the
prosecution to explain how certain relevant
sheets were found missing and whether the
respondent had any knowledge of and also
why the respondent should have caused them
to be removed. This is not the stage for
weighing the pros and cons of all the
implications of the materials nor for sifting the
materials presented by the prosecution. The
exercise at this stage should be confined to
considering the police report and the
documents to decide whether the allegations
against the accused are "groundless" or
whether "there is ground for presuming that
the accused has committed the offences".
Presumption therein is always rebuttable by
the accused for which there must be
opportunity of participation in the trial."

21. Thus, at the time of framing of
charge, it is not required to weigh all the
evidence and implication of the material
before the court nor it is required to sift
the material presented by the prosecution.
The court is required to consider the
police report and documents to decide
whether the allegations against the
accused are made out or not. If the Court
forms an opinion prima facie that the
accused has committed the offence, he
cannot be discharged.

22. The second judgment on which
learned counsel for the revisionist has
placed reliance is Param Hans Yadav
and Sadanand Tripathi versus State of
Bihar and others: (1987) 2 SCC 197 to
submit that the confessional statement of
a co-accused is not a substantive evidence
against the other co-accused in the trial.
356 INDIAN LAW REPORTS ALLAHABAD SERIES

In support of his contention he
has cited paras 9 and 10 which are
extracted herein below:-

"9. It is well settled that the
confession of a co-accused is not
substantive evidence against other coaccused persons in the same trial. As this
Court pointed out in Kashmira Singh v.
State of M.P. [AIR 1952 SC 159 : 1952
SCR 526 : 1952 Cri LJ 839] the
confession of a co-accused is not
substantive evidence against the other
accused persons at the trial but could only
be used for lending reassurance if there be
any other substantive evidence to be
utilised or acted upon.

10. In Hari Charan Kurmi v.
State of Bihar [AIR 1964 SC 1184 :
(1964) 6 SCR 623 : 1964 (2) Cri LJ 344]
this Court observed:

"Thus, though confession may
be regarded as evidence in that generic
sense because of the provisions of Section
30, the fact remains that it is not evidence
as defined by Section 3 of the Act. The
result, therefore, is that in dealing with a
case against an accused person, the court
cannot start with the confession of a coaccused person; it must begin with other
evidence adduced by the prosecution and
after it has formed its opinion with regard
to the quality and effect of the said
evidence, then it is permissible to turn to
the confession in order to receive
assurance to the conclusion of guilt which
the judicial mind is about to reach on the
said other evidence.

...that the confession of a coaccused person cannot be treated as
substantive evidence and can be pressed
into service only when the court is
inclined to accept other evidence and
feels the necessity of seeking for an
assurance in support of its conclusion
deducible from the said evidence.""

23. The investigating officer had not
only relied on the confessional statement
of the co-accused but also had collected
other evidence. This is evident from the
fact that the mobile number which was in
the possession of the revisionist was used
in the commission of the offence and that
mobile number was in the name of coaccused, Rohit Mishra. It would be seen
at the time of trial whether there is
substantive evidence to support the case
of the prosecution besides confessional
statement of the co-accused. At the stage
of framing of the charge, the Court is not
required to consider all the evidence but it
has to find out whether prima facie
offence has been committed by the
accused or not. Therefore, this judgment
is also of no help to the petitioner to say
that since there is no other evidence
except for the confessional statement, the
petitioner should have been discharged.

24. Learned counsel for the
revisionist has also placed reliance on one
more judgment of the Supreme Court in
the case of Satish Mehra vs Delhi
Administration & Anr: (1996) 9 SCC
766 which delineates on the scope of
Sections 227, 228, 239 Cr.P.C. etc.,
Learned counsel for the petitioner submits
that considering the ratio of aforesaid
judgment since there is no other evidence
except for confessional evidence against
the revisionist herein, the valuable time of
court should not be wasted for holding a
trial for formality as the trial should not
be an exercise in-futility, therefore, the
application ought not to have been
rejected inasmuch as there is no scope for
the revisionist to be convicted.

Paras 12, 13, 14 and 15 of the
aforesaid
report
are
extracted
hereinbelow:-
3 All. Pawan Tewari Vs. State of U.P.
357

12.
An
incidental
question
which emerges in this context is whether
the Sessions Judge can look into any
material other than those produced by the
prosecution. Section 226 of the Code
obliges the prosecution to describe the
charge brought against the accused and to
state by what evidence the guilt of the
accused would be proved. The next
provision enjoins on the Sessions Judge to
decide whether there is sufficient ground
to proceed against the accused. In so
deciding the Judge has to consider (1) the
record of the case and (2) the documents
produced therewith. He has then to hear
the submissions of the accused as well as
the prosecution on the limited question
whether there is sufficient ground to
proceed. What is the scope of hearing the
submissions? Should it be confined to
hearing oral arguments alone?

13. Similar situation arises
under Section 239 of the Code (which
deals with trial of warrant cases on police
report). In that situation the Magistrate
has to afford the prosecution and the
accused an opportunity of being heard
besides considering the police report and
the documents sent therewith. At these
two stages the Code enjoins on the court
to give audience to the accused for
deciding whether it is necessary to
proceed to the next stage. It is a matter of
exercise of judicial mind. There is
nothing in the Code which shrinks the
scope of such audience to oral arguments.
If the accused succeeds in producing any
reliable material at that stage which might
fatally affect even the very sustainability
of the case, it is unjust to suggest that no
such material shall be looked into by the
court at that stage. Here the ''ground' may
be
any
valid
ground
including
insufficiency of evidence to prove the
charge.

14. The object of providing
such an opportunity as is envisaged in
Section 227 of the Code is to enable the
court to decide whether it is necessary to
proceed to conduct the trial. If the case
ends there it gains a lot of time of the
court and saves much human efforts and
cost. If the materials produced by the
accused even at that early stage would
clinch the issue, why should the court
shut it out saying that such documents
need be produced only after wasting a lot
more
time
in
the
name
of
trial
proceedings. Hence, we are of the view
that Sessions Judge would be within his
powers to consider even materials which
the accused may produce at the stage
contemplated in Section 227 of the Code.

15. But when the Judge is fairly
certain that there is no prospect of the
case ending in conviction the valuable
time of the court should not be wasted for
holding a trial only for the purpose of
formally completing the procedure to
pronounce the conclusion on a future
date. We are mindful that most of the
Sessions Courts in India are under heavy
pressure of workload. If the Sessions
Judge is almost certain that the trial
would only be an exercise in futility or a
sheer waste of time it is advisable to
truncate or snip the proceedings at the
stage of Section 227 of the Code itself.

25. However, from perusal of the
order
impugned,
it
is
not
only
confessional statement which is against
the accused, there are 34 persons whose
statements have been recorded besides
other evidence which has been collected.
Therefore, the judgment cited by the
learned counsel for the revisionist is of
not much relevance to say that the
revisionist would get acquittal and in no
circumstance would be convicted.
358 INDIAN LAW REPORTS ALLAHABAD SERIES

26.

While
considering
an
application for discharge under Section
227 of the Code, the Court is required to
consider the "record of the case" to form
an opinion whether there is a ground for
presumption and strong suspicion that the
accused has committed an offence. After
considering the material if the trial Court
is of the opinion that there is strong/grave
suspicion of involvement of the accused
in commission of the offence, the accused
cannot be discharged. At the stage of
Sections 227/228 (or 239 in warrant case)
the Court is only required to see that the
material on record and the facts of the
case are enough to raise grave suspicion
that the accused has committed the
offence. If there is no material to arrive at
such a satisfaction of suspicion, the
accused should be discharged.

27. The scope of Sections 227 and
228 Cr.P.C. has been explained in the
judgment of Supreme Court in the case of
State of Bihar v. Ramesh Singh, (1977)
4 SCC 39 in para 4 has held as under:-

"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
3 All. Pawan Tewari Vs. State of U.P.
359
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. It the evidence which the
Prosecutor proposes to adduce to prove
the guilt of the accused even if fully
accepted before it is challenged in crossexamination 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 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."

28. Once the trial Court forms an
opinion on the basis of material available
on record about the prima facie case of
grave suspicion against the accused, the
revisional Court ordinarily should not
interfere with such an order inasmuch as
the jurisdiction of the Court under Section
397 Cr.P.C. is to be exercised so as to
examine the correctness, legality or
propriety of order passed by the lower
Court.

29. The Supreme Court in its
judgment in the case of Amit Kapoor v.
Ramesh Chander : (2012) 9 SCC 460 in
para 20 has explained the scope of the
power under Section 397 Cr.P.C. as
under:-

"20. The jurisdiction of the
court under Section 397 can be exercised
so as to examine the correctness, legality
or propriety of an order passed by the trial
court or the inferior court, as the case may
be.
Though
the
section
does
not
specifically use the expression "prevent
abuse of process of any court or otherwise
to secure the ends of justice", the
jurisdiction under Section 397 is a very
limited one. The legality, propriety or
correctness of an order passed by a court
is the very foundation of exercise of
jurisdiction
under
Section
397
but
ultimately it also requires justice to be
done. The jurisdiction could be exercised
where there is palpable error, noncompliance with the provisions of law,
the decision is completely erroneous or
where the judicial discretion is exercised
arbitrarily. On the other hand, Section 482
is based upon the maxim quando lex
aliquid alicui concedit, concedere videtur
id sine quo res ipsa esse non potest i.e.
when the law gives anything to anyone, it
also gives all those things without which
the thing itself would be unavoidable. The
section confers very wide power on the
Court to do justice and to ensure that the
process of the court is not permitted to be
abused."

30. In para 27 of the same judgment
principle regarding quashing of the charge
either in exercise of jurisdiction under Section
397 Cr.P.C. or under Section 482 Cr.P.C. has
been explained as under:-

"27.1. Though there are no
limits of the powers of the Court under
360 INDIAN LAW REPORTS ALLAHABAD SERIES
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
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
3 All. Pawan Tewari Vs. State of U.P.
361
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. 27.15.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 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."
362 INDIAN LAW REPORTS ALLAHABAD SERIES

31.