# Raees & Ors v. State of U.P. & Anr

- **Citation:** (2023) 11 ILRA 735
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-10-31
- **Case number:** Criminal Appeal No. 7437 of 2023
- **Bench:** Surendra Singh-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/raees-ors-v-state-of-u-p-anr-49399
- **Pages:** 10

## Headnote

Criminal Law - Scheduled Castes and
Scheduled
Tribes
(Prevention
of
Atrocities) Act, 1989 - Sections 3(1)(r),
3(1)(s) - Code of Criminal Procedure,
1973 - Sections 227, 228 & 14-A(1) -
Indian Penal Code, 1860 - Sections 147,
323, 342, 406, 420, 504 & 506 - Discharge
Application - Framing of Charges - Criminal
Breach of Trust - Cheating - SC/ST Atrocities

The appellants challenged the order dated
01.05.2023 passed by the Special Judge (SC/ST
Act),
Rampur,
rejecting
their
discharge
application under Section 227 Cr.P.C. in Special
Case No. 30 of 2022, arising from Case Crime
No. 18 of 2022, under Sections 147, 420, 406,
342, 323, 504, 506 I.P.C. and Sections 3(1)(r),
3(1)(s) of the SC/ST Act. The FIR, lodged by
informant Smt. Geeta Katariya, alleged that
appellant Raees fraudulently induced her to pay
Rs. 17,10,000/- for a land sale that was not in
his name, and on 09.11.2021, Raees and co-
736 INDIAN LAW REPORTS ALLAHABAD SERIES
appellants Jamshed, Smt. Priya, Smt. Parmeen,
Anjum, and Afsar Hussain hurled caste-based
abuses, assaulted, confined, and threatened her
and her husband. The appellants argued that no
money was transferred to their accounts, no
fraudulent inducement occurred, they were
unaware of the informant's caste, and no
medical evidence supported the assault claim.
The St. and informant contended that the FIR,
witness St.ments under Section 161 Cr.P.C., and
documents established a prima facie case. Held:
(1) The appeal was allowed in part, modifying
the trial court's order by setting aside the
charge under Section 406 I.P.C. against Raees.
(2) No offence under Section 406 I.P.C. was
made out against Raees, as there was no
entrustment of property, only payment for a
land sale that was not executed. (3) A prima
facie case was established against Raees for
offences under Sections 147, 420, 342, 323,
504, 506 I.P.C. and Sections 3(1)(r), 3(1)(s) of
the SC/ST Act, based on evidence of fraudulent
inducement for payment of Rs. 17,10,000/- and
caste-based abuses, assault, confinement, and
threats, supported by the FIR and St.ments of
the informant and witnesses (Mehmud Ali Khan,
Kamran Khan, Nanhe, Ismail, Bilal). (4) A prima
facie
case
was
also
established
against
Jamshed, Smt. Priya, Smt. Parmeen, Anjum,
and Afsar Hussain under Sections 147, 342,
323, 504, 506 I.P.C. and Sections 3(1)(r),
3(1)(s) of the SC/ST Act for their role in the
assault and caste-based abuses. (5) Under
Section 227 Cr.P.C., the court must evaluate
evidence for a prima facie case without
conducting a roving inquiry, as per U.O.I. Vs
Prafulla Kumar Samal, Dilawar Balu Kurane Vs
St. of Maharashtra, Sajjan Kumar Vs CBI, and
Dipakbhai Jagdishchandra Patel Vs St. of
Gujarat. The trial court correctly rejected the
discharge application, except for the Section 406
charge against Raees, as the evidence disclosed
grave suspicion. (6) The impugned order was
upheld with the modification that no charge
under Section 406 I.P.C. be framed against
Raees.

Case Law Cited:

## Text

11 All. Raees & Ors. Vs. State of U.P. & Anr.
735
deceased
Jaspal
Singh,
whereas
complainant Sharandeep Kaur, who is
examined as PW-1 has also categorically
stated that accused Amanveer Singh and
his father Karam Singh shot at deceased
Jaspal Singh. The name of accusedappellant Nabi Ahmad has also figured in
the testimony of PW-1 and PW-2. There
are specific findings qua accused-appellant
Nabi Ahmad entered into the house of the
complainant along with convict Amanveer
Singh and Karam Singh. The accusedappellant Nabi Ahmad is involved in six
cases of heinous nature registered at P.S.
Bilaspur, District Rampur, whereas convict
Amanveer Singh and Karam Singh are
involved
in
two
more
cases
each.
Considering the macabre nature of the
crime wherein two people were shot dead
in broad daylight, it would be in the interest
of justice to dismiss the application for
suspension of sentence of the accusedappellants,
namely
Amanveer
Singh,
Karam
Singh
and
Nabi
Ahmad,
consequently bail application of convict
Amanveer Singh, Karam Singh and Nabi
Ahmad are dismissed.

35.

The
accused-appellants-
Gurpawan Kaur, Ranjit Kaur, Banta @
Beant Singh, Rizwan and Frookh be
released on bail in the above case on
furnishing a personal bond and two sureties
each in the like amount to the satisfaction
of the Chief Judicial Magistrate concerned,
subject to furnishing undertaking that they
will cooperate in the hearing of the appeal.

35.1. Fine shall be deposited by
the accused-appellants after eight weeks of
their release.

35.2. On acceptance of bail
bonds, the lower court shall transmit
photostat copies thereof to this Court for
being kept on the record of this appeal.

35.3. List this appeal along with
the paper book for the 'final hearing' in due
course.
----------
(2023) 11 ILRA 735
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 31.10.2023

BEFORE

THE HON'BLE SURENDRA SINGH-I, J.

Criminal Appeal No. 7437 of 2023

Raees & Ors. ...Appellants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Appellants:
Sri Sanjay Singh

Counsel for the Opposite Parties:
G.A., Sri Girish Tiwari

Criminal Law - Scheduled Castes and
Scheduled
Tribes
(Prevention
of
Atrocities) Act, 1989 - Sections 3(1)(r),
3(1)(s) - Code of Criminal Procedure,
1973 - Sections 227, 228 & 14-A(1) -
Indian Penal Code, 1860 - Sections 147,
323, 342, 406, 420, 504 & 506 - Discharge
Application - Framing of Charges - Criminal
Breach of Trust - Cheating - SC/ST Atrocities

The appellants challenged the order dated
01.05.2023 passed by the Special Judge (SC/ST
Act),
Rampur,
rejecting
their
discharge
application under Section 227 Cr.P.C. in Special
Case No. 30 of 2022, arising from Case Crime
No. 18 of 2022, under Sections 147, 420, 406,
342, 323, 504, 506 I.P.C. and Sections 3(1)(r),
3(1)(s) of the SC/ST Act. The FIR, lodged by
informant Smt. Geeta Katariya, alleged that
appellant Raees fraudulently induced her to pay
Rs. 17,10,000/- for a land sale that was not in
his name, and on 09.11.2021, Raees and co-
736 INDIAN LAW REPORTS ALLAHABAD SERIES
appellants Jamshed, Smt. Priya, Smt. Parmeen,
Anjum, and Afsar Hussain hurled caste-based
abuses, assaulted, confined, and threatened her
and her husband. The appellants argued that no
money was transferred to their accounts, no
fraudulent inducement occurred, they were
unaware of the informant's caste, and no
medical evidence supported the assault claim.
The St. and informant contended that the FIR,
witness St.ments under Section 161 Cr.P.C., and
documents established a prima facie case. Held:
(1) The appeal was allowed in part, modifying
the trial court's order by setting aside the
charge under Section 406 I.P.C. against Raees.
(2) No offence under Section 406 I.P.C. was
made out against Raees, as there was no
entrustment of property, only payment for a
land sale that was not executed. (3) A prima
facie case was established against Raees for
offences under Sections 147, 420, 342, 323,
504, 506 I.P.C. and Sections 3(1)(r), 3(1)(s) of
the SC/ST Act, based on evidence of fraudulent
inducement for payment of Rs. 17,10,000/- and
caste-based abuses, assault, confinement, and
threats, supported by the FIR and St.ments of
the informant and witnesses (Mehmud Ali Khan,
Kamran Khan, Nanhe, Ismail, Bilal). (4) A prima
facie
case
was
also
established
against
Jamshed, Smt. Priya, Smt. Parmeen, Anjum,
and Afsar Hussain under Sections 147, 342,
323, 504, 506 I.P.C. and Sections 3(1)(r),
3(1)(s) of the SC/ST Act for their role in the
assault and caste-based abuses. (5) Under
Section 227 Cr.P.C., the court must evaluate
evidence for a prima facie case without
conducting a roving inquiry, as per U.O.I. Vs
Prafulla Kumar Samal, Dilawar Balu Kurane Vs
St. of Maharashtra, Sajjan Kumar Vs CBI, and
Dipakbhai Jagdishchandra Patel Vs St. of
Gujarat. The trial court correctly rejected the
discharge application, except for the Section 406
charge against Raees, as the evidence disclosed
grave suspicion. (6) The impugned order was
upheld with the modification that no charge
under Section 406 I.P.C. be framed against
Raees.

Case Law Cited:

1. U.O.I. Vs Prafulla Kumar Samal, (1979) 3 SCC
4

2. Dilawar Balu Kurane Vs St. of Mah., (2002) 2
SCC 135

3. Sajjan Kumar Vs C.B.I., (2010) 9 SCC 368

4. Dipakbhai Jagdishchandra Patel Vs St. of
Guj., (2019) 16 SCC 547

5. St. of Bihar Vs Ramesh Singh, (1977) 4 SCC
39

(Delivered by Hon'ble Surrendra Singh-I,
J.)

Heard Sri Sanjay Singh, learned
counsel for the appellants, Sri Girish
Tiwari, learned counsel for the respondent
no. 2 and learned A.G.A. for the State.

2. This criminal appeal has been filed
u/s
14-A(1)
of
the
Scheduled
Castes/Scheduled Tribes (Prevention of
Atrocities) Act, 1989, against order dated
01.05.2023 passed by Special Judge
(SC/ST) (PA) Act, Rampur. By the
impugned order, the trial court has rejected
the discharge application u/s 227 Cr.P.C.
filed by the appellants-accused.

3. It has been submitted by learned
counsel for the appellants that by passing
the impugned judgement and order, the trial
court has committed a manifest error and
has not considered the documentary and
oral evidence filed with the charge-sheet
and the arguments advanced on behalf of
the appellants-accused. It has also been
submitted that since no amount of money
has been transferred in the account of
appellants-accused nor any fraudulent or
dishonest inducement has been made by
them, therefore, offence u/s 406 or 420
I.P.C. is not made out. It has also been
submitted that the appellants are illiterate
persons and they had no knowledge about
the caste of the informant/respondent no. 2,
11 All. Raees & Ors. Vs. State of U.P. & Anr.
737
Smt. Geeta Katariya, therefore, no offence
u/s 3(1)(r), 3(1)(s) of SC/ST (PA) Act
(hereinafter referred to as the 'Act No. 33
of 1989') against them is made out. It has
also been submitted that there is no medical
report regarding the injury report received
by respondent no. 2 or any of her
companion in the occurrence. Therefore,
offence u/s 323 I.P.C. is not made out.

4. Per contra, learned A.G.A. for the
State and learned counsel for respondent
no. 2/informant have opposed the appeal
and have stated that considering the
averments made in the first information
report and the statements of the witnesses
recorded u/s 161 Cr.P.C. as well as
documents produced with the charge, there
is sufficient ground to frame charge against
the appellants-accused.

5. The trial court directed to frame
charges against the appellant-accused,
Raees, in Special Case No. 30 of 2022,
State of U.P. Vs. Raees and others arising
out of Case Crime No. 18 of 2022 u/s 147,
420, 406, 342, 323, 504, 506 I.P.C. and
3(1)(r), 3(1)(s) of Act No. 33 of 1989 and
against appellants-accused, Jamshed, Smt.
Priya,
Smt.
Parmeen,
Anjum,
Afsar
Hussain u/s 147, 342, 323, 504, 506 I.P.C.
and 3(1)(r), 3(1)(s) of Act No. 33 of 1989,
Police Station- Azeem Nagar, District-
Rampur.

6. The prosecution case in brief is that
informant, Smt. Geeta Katariya, wife of
Tekchand Katariya, resident of village-
Krishna Nagar, Badapur, District- Bijnor,
submitted a written report on 20.01.2022 at
concerned police station to the effect that
she is engaged in the business of property
dealing. In 2017, appellant-accused, Raees
along with Islam son of Asgar visited her
residence and on the pretext that he needed
money for the marriage of his sister,
offered to sell his 7 bigha land situated in
Aliganj. The bargain for the purchase of the
land was settled for 15 lakhs per bigha. The
informant paid Rs.1,00,000/- through her
colleague, Kamran Khan. After 3-4 days,
on the request of accused, Raees, he paid
Raees money to purchase the vehicle,
Bolero.
The
informant
got
Bolero
purchased
from
Haldwani,
payment
whereof amounting to Rs.4 lakhs was made
by Naved Khan from his account, two
lakhs by Kamran Khan through ATM
machine in the account of Mahindra
Company and Rs.2,50,000/- was paid by
Kamran Khan in cash. Thereafter, after 1015 days, appellant-accused, Raees came
with Islam and took Rs.1,10,000/- from the
informant. On different dates on the
direction of the informant, Shakhawat
Hussain son of Fida Hussain and Nikhil
Kumar Sharma alias Deepu son of Shiv
Shankar
Sharma
paid
Rs.2,00,000/-,
Shakhawat Hussain aforesaid and Vilayat
Hussain
son
of
Fida
Hussain
paid
Rs.3,00,000/- and by Vilayat Hussain
aforesaid paid Rs.4,00,000/- to appellantaccused, Raees in the presence of Islam.
Thus,
she
paid
a
total
of
about
Rs.17,10,000/- to appellant-accused, Raees.
Later on, it was transpired that the alleged
property was not in the name of appellantaccused, Raees but in the name of his
mother. The adjoining property was in the
name of appellant-accused, Raees. The
informant asked on different dates to
appellant-accused, Raees to transfer his
property in lieu of money paid by her but
he procrastinated on one or the other
pretext. The informant was engrossed in the
medical treatment of her ailing husband for
about one year. On 09.11.2021, she met
appellant-accused, Raees at his residence
with her husband and requested him to pay
the money back. Raees alongwith co-
738 INDIAN LAW REPORTS ALLAHABAD SERIES
accused,
Jamshed,
Smt.
Priya,
Smt.
Parmeen and two other unknown persons
started hurling abuses and derogatory
words against her about her being a
member of SC community and threatened
her to kill in presence of Mehmood Ali
Khan and Asif. They started beating her
with kicks and fists and threatened to kill
her. They also confined her and husband in
their house. Then, her husband saved her
with the help of Mehmood Ali Khan and
Asif, who were present on the spot. On the
basis of her written report, first information
report was lodged on 20.01.2022 at 18:05
o'clock. After investigation, charge-sheet
against the appellant-accused, Raees u/s
147, 420, 406, 342, 323, 504, 506 I.P.C.
and 3(1)(r), 3(1)(s) of Act No. 33 of 1989
and against appellants-accused, Jamshed,
Smt. Priya, Smt. Parmeen, Anjum, Afsar
Hussain u/s 147, 342, 323, 504, 506 I.P.C.
and 3(1)(r), 3(1)(s) of Act No. 33 of 1989,
was submitted in the court.

7. The statutory provisions regarding
framing of charge in SC/ST cases is
provided u/s 227 and 228 Cr.P.C. which is
as follows :-

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 and thereupon the
Chief Judicial 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.

8. It is clear that the concerned Judge
has to consider the statements u/s 161
Cr.P.C. mentioned in the case diary and all
other documents submitted along with case
diary and hear the arguments of learned
counsel for the State and learned counsel
for the defence/accused and if he finds that
there is "no fresh ground" (emphasis
supplied) for
proceeding
against the
accused, he shall discharge the accused by
recording
reasons.
If
after
such
consideration and hearing as mentioned in
Section 227 Cr.P.C., if the Judge is of the
opinion
that
"there
is
ground
for
presuming" (emphasis supplied) that the
accused has committed an offence, he will
frame the charge against the accused in
writing and proceed with the trial.

9. In Union of India Vs. Prafulla
Kumar Samal, 1989 (3) SCC 4, the scope
of Section 227 Cr.P.C. was considered.
After adverting to various decisions, the
Apex Court has enumerated the following
11 All. Raees & Ors. Vs. State of U.P. & Anr.
739
principles in paragraph no. 10 of the
judgement :

(1)
That
the
Judge
while
considering the question of framing the
charges under section 227of the Code has
the undoubted power to sift and weigh the
evidence for the limited purpose of finding
out whether or not a prima facie case
against the accused has been made out:

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

(3) The test to determine a prima
facie case would naturally depend upon the
facts of each case and it is difficult to lay
down a rule of universal application. By
and large however if two views are equally
possible and the Judge is satisfied that the
evidence produced before him while giving
rise to some suspicion but not grave
suspicion against the accused, he will be
fully within his right to discharge the
accused.

(4)
That
in
exercising
his
jurisdiction under Section 227 of the Code
the Judge which under the present Code is
a senior and experienced Judge cannot act
merely as a Post office or a mouth-piece of
the prosecution, but has to consider the
broad probabilities of the case, the total
effect of the evidence and the documents
produced before the Court, any basic
infirmities appearing in the case and so
on. This however does not mean that the
Judge should make a roving enquiry into
the pros and cons of the matter and weigh
the evidence as if he was conducting a
trial.

10. In the case of Dilawar Balu
Kurane Vs. State of Maharashtra, (2002)
2 SCC 135, the principle enunciated in
Prafulla Kumar Samal (supra) have been
reiterated in paragraph nos. 12 and 14 :

12. Now the next question is
whether a prima facie case has been made
out against the appellant. In exercising
powers under Section 227 of the Code of
Criminal Procedure, the settled position of
law is that the Judge while considering the
question of framing the charges under the
said section has the undoubted power to sift
and weigh the evidence for the limited
purpose of finding out whether or not a
prima facie case against the accused has
been made out; where the materials placed
before the court disclose grave suspicion
against the accused which has not been
properly explained the court will be fully
justified
in
framing
a
charge
and
proceeding with the trial; by and large if
two views are equally possible and the
Judge is satisfied that the evidence
produced before him while giving rise to
some suspicion but not grave suspicion
against the accused, he will be fully
justified to discharge the accused, and in
exercising jurisdiction under Section 227 of
the Code of Criminal Procedure, the Judge
cannot act merely as a post office or a
mouthpiece of the prosecution, but has to
consider the broad probabilities of the
case, the total effect of the evidence and the
documents produced before the court but
should not make a roving enquiry into the
pros and cons of the matter and weigh the
evidence as if he was conducting a trial
(see Union of India v. Prafulla Kumar
Samal [(1979) 3 SCC 4 : 1979 SCC (Cri)
609]).

14. We have perused the records
and we agree with the above views
740 INDIAN LAW REPORTS ALLAHABAD SERIES
expressed by the High Court. We find that
in the alleged trap no police agency was
involved; the FIR was lodged after seven
days; no incriminating articles were found
in the possession of the accused and
statements of witnesses were recorded by
the police after ten months of the
occurrence. We are, therefore, of the
opinion that not to speak of grave suspicion
against the accused, in fact the prosecution
has not been able to throw any suspicion.
We, therefore, hold that no prima facie
case was made against the appellant.

11. In the case of Sajjan Kumar Vs.
Central Bureau of Investigation, (2010) 9
SCC 368, on considering the various
authorities about the scope of Section 227
and 228 Cr.P.C., the Apex Court laid down
following principles in paragraph 21 of the
judgement :-

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

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

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

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

(iv) If on the basis of the material
on record, the court could form an opinion
that the accused might have committed
offence, it can frame the charge, though for
conviction the conclusion is required to be
proved beyond reasonable doubt that the
accused has committed the offence.

(v) At the time of framing of the
charges, the probative value of the material
on record cannot be gone into but before
framing a charge the court must apply its
judicial mind on the material placed on
record and must be satisfied that the
commission of offence by the accused was
possible.

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

(vii) If two views are possible and
one of them gives rise to suspicion only, as
distinguished from grave suspicion, the
11 All. Raees & Ors. Vs. State of U.P. & Anr.
741
trial Judge will be empowered to discharge
the accused and at this stage, he is not to
see whether the trial will end in conviction
or acquittal.

12. In the case of Dipakbhai
Jagdishchandra
Patel Vs.
State of
Gujarat, (2019) 16 SCC 547, the Apex
Court in paragraph nos. 15 and 23 of its
judgement has elaborately laid down the
law relating to the framing of the charge
and discharge which is as follows :-

15. We may profitably, in this
regard, refer to the judgment of this Court
in [State of Bihar v. Ramesh Singh, (1977)
4 SCC 39 : 1977 SCC (Cri) 533 : AIR 1977
SC 2018] wherein this Court has laid down
the principles relating to framing of charge
and discharge as follows: (SCC pp. 41-42,
para 4)

"4. ... Reading Sections 227 and
228 together in juxtaposition, as they have
got to be, it would be clear that at the
beginning and the initial stage of the trial
the truth, veracity and effect of the evidence
which the prosecutor proposes to adduce
are not to be meticulously judged. Nor is
any weight to be attached to the probable
defence of the accused. It is not obligatory
for the Judge at that stage of the trial to
consider in any detail and weigh in a
sensitive balance whether the facts, if
proved, would be incompatible with the
innocence of the accused or not. The
standard of test and judgment which is to
be finally applied before recording a
finding regarding the guilt or otherwise of
the accused is not exactly to be applied at
the stage of deciding the matter under
Section 227 or Section 228 of the Code. At
that stage the court is not to see whether
there is sufficient ground for conviction of
the accused or whether the trial is sure to
end in his conviction. Strong suspicion
against the accused, if the matter remains
in the region of suspicion, cannot take the
place of proof of his guilt at the conclusion
of the trial. But at the initial stage if there
is a strong suspicion which leads the Court
to think that there is ground for presuming
that the accused has committed an offence
then it is not open to the Court to say that
there is no sufficient ground for proceeding
against the accused. The presumption of
the guilt of the accused which is to be
drawn at the initial stage is not in the sense
of the law governing the trial of criminal
cases in France where the accused is
presumed to be guilty unless the contrary is
proved. But it is only for the purpose of
deciding prima facie whether the court
should proceed with the trial or not. If the
evidence which the prosecutor proposes to
adduce to prove the guilt of the accused
even if fully accepted before it is
challenged
in
cross-examination
or
rebutted by the defence evidence, if any,
cannot show that the accused committed
the offence, then there will be no sufficient
ground for proceeding with the trial. ... 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."

23. At the stage of framing the
charge in accordance with the principles
which have been laid down by this Court,
what the court is expected to do is, it does
not act as a mere post office. The court
must indeed sift the material before it. The
742 INDIAN LAW REPORTS ALLAHABAD SERIES
material to be sifted would be the material
which is produced and relied upon by the
prosecution. The sifting is not to be
meticulous in the sense that the court dons
the mantle of the trial Judge hearing
arguments after the entire evidence has
been adduced after a full-fledged trial and
the question is not whether the prosecution
has made out the case for the conviction of
the accused. All that is required is, the
court must be satisfied that with the
materials available, a case is made out for
the accused to stand trial. A strong
suspicion suffices. However, a strong
suspicion must be founded on some
material. The material must be such as can
be translated into evidence at the stage of
trial. The strong suspicion cannot be the
pure subjective satisfaction based on the
moral notions of the Judge that here is a
case where it is possible that the accused
has
committed
the
offence.
Strong
suspicion must be the suspicion which is
premised
on
some
material
which
commends itself to the court as sufficient to
entertain the prima facie view that the
accused has committed the offence.

13. Now, in the light of the above law
laid down by the Apex Court, it has to be
seen whether in the present case, there is
sufficient ground to frame charge against
the accused.

14. In the first information report, the
informant has mentioned that the appellantaccused, Raees offered the informant to sell
his 7 bigha land on the pretext that he
needed money for marriage of her sister.
As a consideration for selling the land,
appellant-accused, Raees on different dates,
obtained money in cash and through bank
transfer from the informant as well as on
her direction from her colleagues totalling
Rs.17,10,000/-. On the repeated requests of
the informant/respondent no.2 to execute
sale deed of the land in her name, he
procrastinated on one or the other pretext.
It was later found that the land proposed for
sale was in the name of mother of
appellant-accused, Raees. The accuseds'
own land was situated adjacent to her
mother's law. When the informant visited
Raees's house with her husband, Tekchand
Kataria, and requested him to pay the
money back, Raees along with co-accused,
Jamshed, Smt. Priya, Smt. Parmeen and
two other unknown persons hurled abuses
and derogatory words against her about her
being a member of SC community and beat
her with kicks and fists and threatened to
kill her. They also confined her and
husband in the house. Then, Mehmud Ali
Khan and Asif, who were present on the
spot, saved her with the help of her
husband.

15. Following ingredients are required
for the offence of criminal breach of trust
punishable u/s 406 I.P.C. :-

(1) Entrusting any person with
property or with any dominion over
property;

(2) The person entrusted (a)
dishonestly misappropriating or converting
to his own use that property; or

(3)
Dishonestly
using
or
disposing of that property or wilfully
suffering any other person so to do in
violation

(i) of any direction of law
prescribing the mode in which such trust is
to be discharged, or

(ii) of any legal contract made
touching the discharge of such trust.
11 All. Raees & Ors. Vs. State of U.P. & Anr.
743

This offence consists of any one
of
four
positive
acts,
namely,
misappropriation, conversion, user, or
disposal of property. Neither failure to
account for breach of contract, however
dishonest, is actually and by itself the
offence of criminal breach of trust.

16. In the present case, no entrustment
of any property or with any dominion over
property was given to the accused persons
though
there
is
allegation
of
misappropriation of money of informant by
the appellant-accused, Raees but that
money was not entrusted to him by the
informant but it was paid to the appellantaccused, Raees for the execution of sale
deed of the land. Thus, there is no ground
for framing of charge u/s 406 I.P.C. against
appellant-accused, Raees.

17. In her statement recorded u/s 161
Cr.P.C., the informant has supported the
averments made by her in the written
report. In his statement recorded u/s 161
Cr.P.C, eye-witness, Mehmud Ali Khan has
corroborated the statement of informant,
Smt. Geeta Katariya. The prosecution
witnesses, Kamran Khan son of Isteyak
Khan, Nanhe son of Manga, Ismail son of
Fakir and Bilal son of Nisar Hussain have
also supported the prosecution case.

18. In the light of the aforesaid Apex
Court judgements and from perusal of the
first information report and the statements
of informant and aforesaid witnesses
recorded u/s 161 Cr.P.C., it is clear that,
prima
facie,
through
fraudulent
and
dishonest inducement, appellant-accused,
Raees caused informant, Smt. Geeta
Katariya to pay him Rs.17,10,000/- as price
of land which was not in his name and
notwithstanding the repeated requests of
the informant, he did not transfer his land
in favour of the informant although he had
obtained full payment for the land. Prima
facie, there is sufficient evidence that when
informant
with
her
husband
and
companions/witnesses visited the house of
appellant-accused,
Raees
and
other
appellants,
they
hurled
abuses
and
derogatory words against the informant
regarding her caste and they beat them with
kicks and fists. They also threatened her to
kill with intent to raise alarm to her.

19. On the basis of evidence on
record, the trial court has rightly rejected
the discharge application of the appellantaccused, Raees and directed framing of
charges against him u/s 147, 420, 342, 323,
504, 506 I.P.C. and 3(1)(r), 3(1)(s) of Act
No. 33 of 1989 but there is no ground to
frame charge u/s 406 I.P.C. against
appellant-accused, Raees.

20. The trial court has rightly rejected
the discharge application of the appellantsaccused,
Jamshed,
Smt.
Priya,
Smt.
Parmeen, Anjum, Afsar Hussain and
directed framing of charges against them
u/s 147, 342, 323, 504, 506 I.P.C. and
3(1)(r), 3(1)(s) of Act No. 33 of 1989.

21. From the above discussion, it is
clear that except the order regarding
framing of charge u/s 406 I.P.C. against the
appellant-accused, Raees, there is no
illegality, irregularity or impropriety in the
impugned order passed by the trial court.

22. Subject to aforesaid modification
regarding framing of charge u/s 406 I.P.C.
against the appellant-accused, Raees, there
is no force in the appeal.

23. Accordingly, the appeal is
allowed in part.

24. A copy of this judgment be sent
back
immediately
to
District
Court
744 INDIAN LAW REPORTS ALLAHABAD SERIES
concerned for compliance and further
necessary action.
----------
(2023) 11 ILRA 744
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.10.2023

BEFORE

THE HON'BLE J.J.MUNIR, J.

First Appeal From Order No. 1023 of 2008

The
New
India
Assurance
Co.
Ltd.,
Moradabad ...Appellant
Versus
Sri Mohd. Aslam &Ors. ...Respondents

Counsel for the Appellant:
Sri S.C. Srivastava

Counsel for the Respondents:
Sri Mohd. Asim Zulfiquar, Sri Amit Kumar,
Sri Amit Kumar Verma, Sri R.K. Yadav

A. Civil Law -Employees' Compensation Act,
1923-Section 30- substantial question of law-
Commissioner awarded compensation to the
claimants for the death of their son, in the sum
of ₹4,33,820/- and other incidental reliefs-the
victim was aged 25 years-The victim suffered
injuries during the course of employment, in
consequence of which, he died- The claimants
have been rendered without financial support,
inasmuch the victim was the sole breadwinner
of the family, whose life has extinguished in
consequence of the accident-The claimants
asked the owner to pay compensation, which he
did not-They served the owner with a notice
under Section 10 of the Act of 1923, but they
received nothing towards compensation for the
victim's untimely demise in the accident-The
substantial question of law involved here has
been formulated in the background of facts that
the Employees' Compensation Commissioner
has admittedly not issued a notice to the
Employees' Compensation Commissioner at
Begusarai, Bihar, where the accident happened-
He has also not issued notice to the State
Government concerned, the Government of
Bihar, the twin conditions to be mandatorily
fulfilled in terms of the proviso to Section
21(1)(b) of the Act of 1923 by a nonjurisdictional Compensation Commissioner trying
or processing, as the Statute says, a claim by an
employee or his heirs for compensation under
the Act of 1923- Therefore, The general rule
about venue or jurisdiction of a Court trying a
civil cause or proceedings akin to it is that the
Court competent to try the action or undertake
the proceedings is the one within the territorial
jurisdiction of which the cause of action has
arisen-Different Statutes, including the Code of
Civil Procedure, 1908, extend the venue to other
Courts, upon principles spelt out by the lawHere, the Statue, prior to its amendment by the
Act of 1995, did not invest any other
Compensation Commissioner, except for the one
in whose area the accident took place and
resulted in the injury- it is only subject to
adherence with the conditions of the proviso to
Section 21(1)(b) of the Act that extra territorial
jurisdiction can be exercised by a Compensation
Commissioner, and that appears to be the
position of the law not at all to be doubted,
considering the principles in Bharat Singh-The
insurer ought to have then pleaded the facts
stating what the territorial limits of jurisdiction
of the Commissioner at Moradabad were and
where the accident site was- No pleading in that
regard was made-Held, requirement of law
introduced by the proviso to Section 21(1)(b) of
the Act of 1923 is not a matter of procedural
irregularity, which can be ignored-It is an issue
of jurisdiction, which goes to the root of the
Commissioner's jurisdiction-Thus, the substantial
question of law involved in this appeal has to be
answered in the negative and the impugned
judgment and award passed by the Employees'
Compensation Commissioner set aside with a
remand of the matter to the Compensation
Commissioner for a decision de novo- Before
processing the claim de novo the Compensation
Commissioner shall strictly adhere to the
requirements of the first proviso to Section
21(1)(b) of the Act of 1923.(Para 1 to 47)

The appeal is allowed. (E-6)

List of Cases cited:

1.
Mayan
Vs
Mustafa
&
anr..