# Pramod Pandey & Ors v. State of U.P. & Anr

- **Citation:** (2024) 5 ILRA 238
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-31
- **Case number:** Criminal Appeal No. 2759 of 2020
- **Bench:** Manoj Baja
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pramod-pandey-ors-v-state-of-u-p-anr-52080
- **Pages:** 7

## Headnote

Criminal Law-Indian Penal Code-1860Sections-323, 504 & 506- The Scheduled
Caste and Scheduled Tribe (Prevention of
Atrocities) Act, 1989-Section 3(1)(x) -
The Code of Criminal Procedure,1973Section 227, 228 & 245(2)- The trial court
is to pass an order either under Section 227 or
under Section 228 Cr.P.c., the trial court is not
required to pass two orders under the above
two sections, i.e. firstly giving reasons for not
discharging the accused and followed by
another order relating to the framing of
charges-The
application
moved
by
the
appellants under Section 245(2) Cr.P.C. was
not at all maintainable particularly, when the
order issuing process against the accusedappellants in the complaint was never assailed
by Appellants-For the purposes of framing of
charges against the accused suspicion alone
relating to alleged commission of offence is
enough.
Appeal dismissed. (E-15)

List of Cases cited:

St. of Bihar Vs Ramesh Singh (1977) 4 Supreme
Court Cases 39

## Text

238 INDIAN LAW REPORTS ALLAHABAD SERIES
life imposed upon accused appellant under
Section 376 IPC is modified with the
sentence already undergone by him. The
accused appellant is reported to be in jail, he
shall be released forthwith, unless is wanted
in any other case, subject to compliance of
Section 437A Cr.P.C.
----------
(2024) 5 ILRA 238
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 31.05.2024

BEFORE

THE HON'BLE MANOJ BAJAJ, J.

Criminal Appeal No. 2759 of 2020

Pramod Pandey & Ors. ...Appellants
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Appellants:
Kamlesh Singh

Counsel for the Respondents:
Avanindra Kumar Mishra, G.A.

Criminal Law-Indian Penal Code-1860Sections-323, 504 & 506- The Scheduled
Caste and Scheduled Tribe (Prevention of
Atrocities) Act, 1989-Section 3(1)(x) -
The Code of Criminal Procedure,1973Section 227, 228 & 245(2)- The trial court
is to pass an order either under Section 227 or
under Section 228 Cr.P.c., the trial court is not
required to pass two orders under the above
two sections, i.e. firstly giving reasons for not
discharging the accused and followed by
another order relating to the framing of
charges-The
application
moved
by
the
appellants under Section 245(2) Cr.P.C. was
not at all maintainable particularly, when the
order issuing process against the accusedappellants in the complaint was never assailed
by Appellants-For the purposes of framing of
charges against the accused suspicion alone
relating to alleged commission of offence is
enough.
Appeal dismissed. (E-15)

List of Cases cited:

St. of Bihar Vs Ramesh Singh (1977) 4 Supreme
Court Cases 39

(Delivered by Hon'ble Manoj Bajaj, J.)

1. Appellants-Accused have filed this
appeal under Section 14A(1) Scheduled
Castes and the Scheduled Tribes (Prevention
of Atrocities) Act, 1989 for setting aside the
impugned order dated 21.9.2019 passed by
the Special Judge (SC/ST Act), Deoria in
Sessions Trial No. 50 of 2016; titled Raj
Bahadur Chamar vs. Pramod Pandey,
arising out of Case Crime No. 99 of 2012,
under Sections 323, 504, 506 IPC and 3(1)X
Scheduled Castes and the Scheduled Tribes
(Prevention of Atrocities) Act, 1989, Police
Station Lar, District Deoria, whereby their
application under Section 245(2) Cr.P.C. for
discharge has been dismissed.

2. The facts in brief leading to the
appeal are that the opposite party no. 2-Raj
Bahadur Chamar filed an application under
Section 156(3) Cr.P.C. dated 1st December,
2011 before the Judicial Magistrate, Deoria
for registration of FIR and investigation,
whereupon vide order dated 8th February,
2012, a direction was issued and a Case
Crime No. 99 of 2012 was registered against
the accused persons (appellants) under
sections 376, 511, 452, 504, 506 IPC and
Section 3(1)X Scheduled Castes and the
Scheduled Tribes (Prevention of Atrocities)
Act, 1989, at Police Station Lar, District
Deoria. As per the allegations, on 29th
March, 2011, when the complainant left his
house around 10:00 am for work in his
agricultural fields, his wife Usha Devi was
alone at home. The co-villagers of the
complainant namely Pramod Pandey and
Sandeep entered his house with an intention
5 All. Pramod Pandey & Ors. Vs. State of U.P. & Anr.
239
to do wrong act with his wife, and they
gagged her mouth and attempted to undress
her, but his wife shouted and gave them kick
and fist blows, whereupon the accused fled
away. Pursuant to the information given to
the Police Station Lar, the place of
occurrence was visited by the police
officially.

3. On 1st April, 2011 at around 5:30
pm, Pramod Pandey, Ashok Pandey both
sons of Indrasan Pandey, Vinit @ Ankur
Pandey s/o Pramod Pandey, Sandeep
Pandey, Mukesh both sons of Ramesh
Pandey, Anil s/o Jagarnath Pandey and
Rupesh s/o Umesh Pandey entered the house
of the complainant and started giving kicks,
fists and sticks blows to his wife Usha Devi,
and when the complainant intervened to
save her, he too was given beatings. The
complainant and his wife got themselves
medically examined at Primary Health
Centre, Lar, and also gave information to
S.H.O. for registration of the case, but no
action was taken upon his complaint, so, he
filed the application.

4. After registration of the case, the
investigation was carried out and upon
conclusion, a final report under Section
173(2) Cr.P.C. dated 12th March, 2012 was
submitted before the court of competent
jurisdiction,
thereby
exonerating
the
accused persons.

5. Aggrieved against this final report,
the complainant preferred a protest
application dated 6th June, 2012 and the
Judicial Magistrate, Deoria entertained the
same as a complaint case to follow the
procedure enshrined under Chapter XV
Code of Criminal Procedure. Thereafter,
the statement of the complainant was
recorded under Section 200 Cr.P.C. on
12.1.2015, and further in support of his
case, the complainant examined his wife
Usha Devi (PW-1) and Lakshmina (PW2).

6. During the pendency of the
proceedings, the SC/ST Act was amended
and by virtue of Section 14 SC/ST Act, the
Special Court was empowered to directly
take
cognizance
of
such
offence,
therefore, the case was sent before the
Special Court (SC/ST Act), Deoria. Upon
examining the protest petition as well as
pre-summoning evidence adduced by the
complainant, the process against the
accused was issued vide order dated
12.01.2017 by the Special Court, Deoria.

7. It seems that pursuant to the
summoning order, the accused did not
appear before the Special Court, Deoria
and vide order dated 28th September,
2018, non-bailable warrants were issued
against the accused to secure their
presence. The said order was challenged
by accused before this Court through
application under Section 482 Cr.P.C.
bearing No. 46289 of 2018; titled Mukesh
Pandey and another vs. State of U.P. and
another, wherein this Court vide order
dated 21.12.2018 refused to interfere with
the impugned order issuing non-bailable
warrants, but granted liberty to the
accused to move an application under
Section 245(2) Cr.P.C. subject to their
putting in appearance before the trial court
within a period of two weeks. Further a
direction was also issued that the said
application be decided expeditiously. In
compliance of the order dated 21.12.2018,
the accused persons moved an application
dated 22.1.2019 and prayed for discharge
in the criminal case.

8. The Special Court (SC/ST) Act,
Deoria
vide
order
dated
21.09.2019
240 INDIAN LAW REPORTS ALLAHABAD SERIES
dismissed the said application and fixed the
case for framing of charges against the
accused persons. Hence this appeal.

9. Vide order dated 24.08.2020, this
Court had issued the notice to the opposite
parties, and they filed their respective
counter affidavits dated 8.12.2020 and
4.1.2021 to contest the appeal.

10. The reply by the State of U.P. is
formal in nature, wherein it is pleaded that
the complainant had given a false complaint,
which was thoroughly investigated, and
since, nothing incriminating was found
against the accused, therefore, the report
exonerating the accused was submitted.
Lastly, it is pleaded that the impugned order
dated 21.09.2019 is a reasoned order, which
does not suffer from any illegality and
prayer has been made to dismiss the appeal.

11. The response by the complainant
has denied the grounds raised by the
appellants,
who
pleaded
that
the
investigation in the case was not conducted
properly and the final report under Section
173(2) Cr.P.C. was filed to favour the
accused, and it compelled the complainant
to move a protest petition, whereupon
sufficient evidence has been adduced to
prima facie show commission of the alleged
offences, therefore, the trial court not only
rightly issued the process against the
accused, but justifiably dismissed the
application for discharge vide impugned
order dated 21.09.2019. In the end, it is
prayed that the appeal be dismissed.

12. Learned counsel for the appellants
has argued that the case filed by the
complainant is without any foundation, but
the trial court had erroneously summoned
the accused by ignoring the fact that the
allegations contained in the FIR by the
complainant were thoroughly investigated,
wherein the statements of various witnesses
were recorded, but nothing incriminating
was found against the accused, therefore, the
police filed the final report in favour of the
accused. Learned counsel has argued that
the witnesses are closely related to the
complainant, therefore, their evidence alone
would not be sufficient to prosecute the
appellants,
particularly,
when
the
allegations of beatings are not supported by
any cogent evidence. He submits that as per
the medical report dated 1st April, 2011, no
external injury was found on the person of
Usha Devi, whereas the injury allegedly
suffered by Raj Bahadur are artificial. He
submits that the medical evidence does not
match with the ocular version given by the
complainant, therefore, it is evident that the
version of the complainant is false.

13. According to the learned counsel,
the Special Court (SC/SC Act), Deoria has
not appreciated the facts and circumstances
of the case carefully while dismissing their
application under Section 245(2) Cr.P.C. for
discharge through the impugned order dated
21.9.2019, and the said order deserves to be
set aside. He prays that the impugned order
dated 21.9.2019 be set aside and the
appellants be discharged.

14. The prayer is opposed by the
learned counsel for the complainantopposite party no. 2, who has argued that the
material on record sufficiently makes out a
case for initiating the trial proceedings
against the accused persons, and the
evidence of the complainant is also
supported with the medical evidence.
Learned counsel for the opposite party no. 2
argued that at the stage of framing the
charges, the trial court is required to find
out, if, the evidence sought to be adduced by
the prosecution makes out a prima facie case
5 All. Pramod Pandey & Ors. Vs. State of U.P. & Anr.
241
for commission of alleged offences, and if,
it is so, the accused cannot be discharged.
He submits that the trial court has given
valid reasons while passing the impugned
order, therefore, the said order does not call
for any interference by this Court.

15. Learned counsel for the parties
have been heard and with their assistance,
the case file has been perused carefully.

16. Framing of charges against an
accused marks commencement of criminal
trial in respect of the alleged offences, and
at this crucial stage, it is mandatory for the
trial court to not only examine the record of
the case relied upon by the prosecution, but
also to afford an opportunity of hearing to
the accused. Based upon the classification of
offences, the penal offences are either triable
before the Court of Sessions or the
Magistrate and the procedure in this regard
is contained in Chapter XVIII and Chapter
XIX, respectively of the Code of Criminal
Procedure. In a trial before the Sessions
Court, the relevant provisions are Sections
227 and 228 Cr.P.C., whereas in respect of
the magisterial trial, the relevant sections
would be Sections 239 and 240 Cr.P.C.
These sections deal with the trial based upon
a police report, whereas the procedure based
upon a complaint case is slightly different,
if, the trial is before the Magistrate and the
said procedure is contained in Sections 244
and 245 Cr.P.C. onwards.

17. At this juncture, it would be
relevant to note that in a sessions trial, even
if, the prosecution of accused is arising from
a complaint case, after appearance of the
accused before the Court of Sessions either
after committal of the case or otherwise, the
proceedings take place as a State case. On
the contrary, if, the trial is before the
Magistrate, the procedure is different,
wherein after appearance of accused precharge evidence is recorded under Section
244 Cr.P.C., and thereafter, considering the
same, either the accused is discharged under
Section 245(1) Cr.P.C. or charges are
framed under Section 246 Cr.P.C. Of
course, as per Section 245(2), the Magistrate
has power to discharge the accused at any
previous stage also. Thus, it is evident that
even if, the initial process against the
accused was issued by the trial court
(Sessions Court) on the basis of the
complaint and pre-summoning evidence,
but thereafter, from the stage of discharge of
the accused or framing of charges, it
becomes a State case as contemplated by
sections 225 and 226 Cr.P.C., and the
proceedings are opened by the public
prosecutor. Since, the present case also
contains an offence punishable under
Scheduled Castes and the Scheduled Tribes
(Prevention of Atrocities) Act, 1989, which
is triable by Special Court (Sessions Court),
therefore, the Special Court is required to
follow the procedure envisaged under
Chapter XVIII Cr.P.C.

18. Here, this Court deems it
appropriate
to
examine
the
relevant
provisions pertaining to discharge and
framing of charge and the sections 227 and
228 Cr.P.C. read as under:-

"Section 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.

Section
228.
Framing
of
Charge.- (1) If, after such consideration and
hearing as aforesaid, the Judge is of opinion
242 INDIAN LAW REPORTS ALLAHABAD SERIES
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,
1[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
the accused and the accused shall be asked
whether he pleads guilty of the offence
charged or claims to be tried."

19. A bare reading of the above
provisions would reveal that while entering
in the exercise of discharge or framing of
charges, the trial court is only required to
consider the record of the case including the
documents relied upon by the prosecution,
and, if, sufficient grounds exist for
proceeding against the accused, the charge
in respect of the alleged offence(s) has to be
framed. And if, the trial court is of the
opinion that no sufficient ground exists for
proceeding against the accused, it shall
discharge the accused in terms of Section
227 Cr.P.C. At this stage, the participation
of the accused is mandatory and the only
exception to the general rule is contained in
Section 317 Cr.P.C., when the trial court
may conduct proceedings in the absence of
the accused subject to fulfilling certain
conditions contained in the said provision. It
is trite law that at the stage of considering
the material on record for the purposes of
discharge or framing of charges, the
proposed defence of the accused is not to be
analyzed. As a result, it is absolutely clear
that the trial court is to pass an order either
under Section 227 Cr.P.C. or under Section
228 Cr.P.c. In other words, the trial court is
not required to pass two orders under the
above two sections, i.e. firstly giving
reasons for not discharging the accused and
followed by another order relating to the
framing of charges.

20. Here, it will be useful to refer the
decision of the Hon'ble Supreme Court in
State of Bihar vs. Ramesh Singh1. The
relevant observations by the Apex Court
read 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
consider that there is not. 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
5 All. Pramod Pandey & Ors. Vs. State of U.P. & Anr.
243
228. Reading the two provisions together in
juxta position, 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.
.............xxx
xxxxx.............."

21. Notably, the Section 227 Cr.P.C. was
inserted only in the Code of Criminal
Procedure, 1973, and no such provision existed
in the old Code of 1898. The procedure
provided under the old Code, relating to the
committal proceedings under Section 207-A
before the Magistrate used to be exhaustive,
being in the nature of an enquiry, and it required
recording of evidence of prosecution witnesses,
as well as their cross-examination by defence.
After completion of this procedure, the
Magistrate would ascertain by recording
satisfaction, if, the alleged offences triable by
Sessions Court are worth committal for the trial
or not. If, the Magistrate would commit the
accused for trial before Sessions Court. But, in
order to expedite the criminal proceedings
against the accused, certain amendments were
carried out thereby omitting Section 207-A to
shorten the committal proceedings, by further
introducing Section 227 Cr.P.C. for discharge.

22. Thus, in view of the above
discussion, it emerges that at the stage of
considering the prosecution case either for
discharge of the accused or for framing
charges, the court is to examine the material
relied upon by prosecution alone, and since,
the proposed defence of the accused cannot
be considered, who is to be only afforded an
opportunity of hearing, therefore, there is
even no necessity to file an application for
discharge by the accused.

23. Concededly, the case in hand
relates to the offences which are triable by
the
Special
Court
(Sessions
Court),
therefore, the application moved by the
appellants under Section 245(2) Cr.P.C. was
not at all maintainable. No doubt, this Court
had granted liberty to the accused to move
such an application vide order dated
21.12.2018, but even then, the application
by the appellants could not have been
entertained on merits, particularly, when the
order issuing process against the accusedappellants in the complaint was never
assailed by them. That apart, the order dated
21.12.2018 granting liberty to the accused to
move an application for discharge was
conditional, who were required to comply
with the pre condition by submitting
themselves before the Special Court, Deoria
in order to maintain their plea of discharge,
but during the course of hearing, it is not
disputed by the learned counsel for the
appellants that the accused did not comply
with the said condition, who were only
represented by their counsel. Further,
learned counsel fairly states that the accused
are yet to put in appearance before the
Special Court, Deoria. Since, nothing has
been shown to this Court that the personal
appearance of the accused was ever
exempted, therefore, the application moved
by the appellants ought to have been rejected
straight away on multiple grounds of
maintainability.

24. Now, while examining the case of
the appellants on merits as well, this Court
finds that even the application for discharge
moved
by
the
complainant
contains
reference to the medical reports of the
injured couple, therefore, the ground for
discharge with a pleading that the medical
record does not match with the ocular
version is erroneous at this stage. By now, it
is well settled that at the stage of framing of
charges, the trial court is not to sift and
weigh the record of the case, for the
244 INDIAN LAW REPORTS ALLAHABAD SERIES
purposes of building an opinion that it would
lead to the conviction of the accused, as for
the purposes of framing of charges against
the accused suspicion alone relating to
alleged commission of offence is enough.

25. Before parting with this
judgment, this Court deems it necessary to
observe
that
in
many
cases,
such
applications are filed by the accused
before the trial courts and the such
applications are decided by passing a
separate
order,
which
otherwise
is
incomplete in the absence of order framing
charges, and the consolidated statutory
exercise under sections 227 and 228
Cr.P.C. is split in two parts, thereby not
only the trial courts are over burdened, but
it also causes delay in conclusion of trial.
Consequently, it is directed that the trial
courts shall decide the prosecution case
for the purposes of framing of charges by
passing one common order, i.e either
discharging the accused or framing
charges against the accused by strictly
complying with the statutory provisions
contained in the Code of Criminal
Procedure or any other applicable special
statute.

26. Resultantly, in view of the above
discussion, this Court has no hesitation in
holding that the appeal is without any merit
and the same is hereby dismissed.

27. Let a copy of this order be sent to
all the District and Sessions Judges in the
State of U.P. for further forwarding it to the
Judicial
Officers
in
their
respective
divisions.
----------
(2024) 5 ILRA 244
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 30.05.2024

BEFORE

THE HON'BLE ARVIND SINGH SANGWAN, J.
THE HON'BLE RAM MANOHAR NARAYAN
MISHRA, J.

Criminal Appeal No. 2798 of 1988

Subedar ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Malik Sayeed Uddin, C.K. Jha, Dilip Kumar
Kesharwani, Prem Prakash

Counsel for the Respondent:
A.G.A.

Criminal Law-Indian Penal Code-1860Sections-34, 302-Criminal appeal against
judgment of conviction U/s 302/34 IPC- F.I.R.
was registered by deceased himself in injured
condition. He had clearly named Buddhu (since
deceased) and appellant along with two other
unknown persons as the assailants-No delay in
reporting the matter to the police- Eye witness
duly corroborated the version given in the F.I.R.
that she had seen that accused- had fired upon
her husband and appellant-Subedar along with
two other persons gave him injuries with lathies-
PW4 & PW6 who conducted the postmortem of
the deceased also had St.d that injury was a
firearm injury which was sufficient to cause
death- Ocular version is duly corroborated by the
medical evidence.

Appeal dismissed. (E-15)

(Delivered by Hon'ble Arvind Singh
Sangwan, J.)

1. Present appeal is filed challenging
the judgment of conviction dated 3.12.1988
vide which accused-Subedar and Buddhu
were convicted for offence punishable under
Section 302/34 of IPC and the order of
sentence