# Rahimunnisha & Anr v. State of U.P. & Anr

- **Citation:** (2021) 11 ILRA 297
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-10-19
- **Case number:** Application U/S 482/378/407 No. 2834 of 2021
- **Bench:** Mrs. Sangeeta Chandra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rahimunnisha-anr-v-state-of-u-p-anr-46505
- **Pages:** 9

## Headnote

A. Criminal Law - Code of Criminal Procedure,
1973-Section 482 - Indian Penal Code, 1860 -
Sections 419, 420, 467, 468, 471-quashing of
entire proceeding-accused/Petitioner No. 1
was drawing Old Age Pension from the Bank
account concerned, and thereafter working as
Safai Karmi by forged documents- Trial court
found that Prima facie case had been made out
for framing of charge while considering the
discharge application on its merit and also the
charge-sheet-no illegality or infirmity in the
orders impugned.(Para 1 to 30)

B. At this stage, probative value of the
materials has to be gone into and the court is
not to expected to go deep into the matter and
hold that the materials would not warrant a
conviction. if the court thinks that the accused
might have committed the offence the basis of
the materials on record on its probative value,
it can frame the charge, though for conviction,
the court has to come to the conclusion that
the accused has committed the offence. The
law does not permit a mini trial at this
stage.(Para 29)

The application is rejected. (E-6)

List of Cases cited:
298 INDIAN LAW REPORTS ALLAHABAD SERIES

## Text

11 All. Rahimunnisha & Anr. Vs. State of U.P. & Anr.
297
no such question was put to plaintiff witnesses 1
and 2. The application filed at the behest of
defendant-revisionist after a lapse of 9 years
from recording of statement itself is an ample
proof that it has been filed to delay the matter.

19. The S.C.C. Suit has been filed in the
year 2009 and after 12 years the application for
amendment of written statement is being sought.

20. Moreover, Order VIII, Rule 5
mandates that denial should be specific, and
every allegation of fact in the plaint if not
denied
specifically
or
by
necessary
implication, or stated to be not admitted in the
pleading of defendant shall be taken to be
admitted. There is a specific averment in Para
2 of plaint as to quantum of rent and
maintenance charges. In Para 3 of written
statement there is no denial to the said fact nor
the defendant-revisionist has stated that he is
not admitting the averment of the plaint. The
only statement made is that it is for the
plaintiff to prove the allegations made in the
said paragraphs, meaning thereby that the
averment has been admitted by defendantrevisionist.

21. If the rent was not admitted to
defendant and by mistake in the pleading it was
not denied, he had the opportunity to crossexamine the plaintiff witnesses in regard to
quantum of rent and maintenance charges, which
he failed to do so.

22.

Considering
the
facts
and
circumstances of the case, this Court finds that
no interference is made out in the order
impugned
dated
19.10.2021
rejecting
the
amendment application of defendant-revisionist
filed under Order VI, Rule 17 C.P.C.

23. Revision lacks merit and is hereby
dismissed.
----------
(2021)12ILR A297
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 02.12.2021

BEFORE

THE HON'BLE MRS. SANGEETA CHANDRA, J.

Application U/S 482/378/407 No. 2834 of 2021

Rahimunnisha & Anr. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sadhu Sharan Chaubey, Abha Srivastava, Rajesh
Kumar Singh, Salik Kr. Srivastava

Counsel for the Opposite Parties:
G.A., Shiv Pal Singh

A. Criminal Law - Code of Criminal Procedure,
1973-Section 482 - Indian Penal Code, 1860 -
Sections 419, 420, 467, 468, 471-quashing of
entire proceeding-accused/Petitioner No. 1
was drawing Old Age Pension from the Bank
account concerned, and thereafter working as
Safai Karmi by forged documents- Trial court
found that Prima facie case had been made out
for framing of charge while considering the
discharge application on its merit and also the
charge-sheet-no illegality or infirmity in the
orders impugned.(Para 1 to 30)

B. At this stage, probative value of the
materials has to be gone into and the court is
not to expected to go deep into the matter and
hold that the materials would not warrant a
conviction. if the court thinks that the accused
might have committed the offence the basis of
the materials on record on its probative value,
it can frame the charge, though for conviction,
the court has to come to the conclusion that
the accused has committed the offence. The
law does not permit a mini trial at this
stage.(Para 29)

The application is rejected. (E-6)

List of Cases cited:
298 INDIAN LAW REPORTS ALLAHABAD SERIES
1. Dilawar Balu kurane Vs St. of Mah. (2002) 2 SCC
135

2. U.O.I. Vs Prafulla Kumar Samal (1979) 3 SCC 5

3. St. of Raj. Vs Ashok Kumar Kashyap (2021) SCC
Online SC 314

4. State of T.N. Vs N. Suresh Rajan (2014) 11 SCC
709

(Delivered by Hon'ble Mrs. Sangeeta Chandra, J.)

1. This petition has been filed with the
following main prayer:-

"WHEREFORE, it is most respectfully
prayed that this Hon'ble Court may graciously
be pleased to pass an order thereby quashing the
impugned charge-sheet as well as cognizance/
summoning
order
including
order
dated
11.02.2020, passed by learned 2nd Additional
Civil Judge (JD) Judicial Magistrate Bahraich in
Criminal Case No. 23/2015 arising out of Case
Crime No. 666/2013 U/s 419/420/467/468/471.
I.P.C P.S. Huzoorpur, District Bahraich, pending
in the court of 2nd Additional Civil Judge
(JD)/Judicial Magistrate Bahraich and also to
quash the order dated 20.02.2021 passed by
Learned Revisional Court / 6th Additional
Session Judge, Bahraich, ( contained as
Annexure no 1, 2, 10 &12 of petition) in order to
meet the ends of justice."

2. It has been submitted by learned counsel
for the petitioners Sri Salil Kumar Srivastava
Assisted by Sri S. S. Chubey that the petitioners
have been falsely implicated and the offence has
not been made out in the evidence that has been
collected by the Investigating Officer regarding
the Sections under which charge sheet has been
submitted to the VIIth Additional Civil
Judge(Junior Division) Judicial Magistrate,
Behraich in Criminal Case No. 23 of 2015, when
the case was initially inquired into by the
Investigating Officer, he submitted a final report
in the Court but before the Court could pass any
order thereon, the Superintendent of Police
directed further investigation in the matter
without
jurisdiction
and
entrusted
the
inquiry/investigation to another police officer
who took the statement of only the Branch
Manager of the Bank concerned and filed a
charge sheet in Court of which cognizance was
taken by the learned trial court without
application of mind.

3. The petitioners approached this Court
initially by filing a petition challenging the FIR
regarding to Case Crime No. 666 of 2013 under
Sections 419, 420, 467, 468, 470, 471, 409, 323,
504, 506 I.P.C. Police Station Huzoorpur Distric
Bahraich. This Court passed an order staying the
arrest of the petitioners in Writ Petitioner No.
10783(MB) of 2013, till the report is submitted
under Section 173 to the Court concerned.

4. Learned counsel for the petitioners
submitted that the earlier Investigating Officer
had recorded the statement of various witnesses
including the complainant Rafique Ahmad as
also Fakaroo, Mohd. Sabir, Rajjab and others
under Section 161 of the Cr.P.C. and on the
basis of evidence collected, he had recorded a
categorical finding that no case for which the
FIR was lodged can be said to have been made
out. The Investigating Officer had also recorded
a finding that since all the documents pertaining
to the alleged forgery in original are in
possession of Economic Offence Wing where
the investigation is in progress, as such filing of
charge sheet in the absence of documentary
evidence is unwarranted. Resultantly, final
report was filed by the earlier Investigating
Officer.

5. Without taking permission of the Court
under Section 173 (3) of the Cr.P.C. further
investigation was directed by the Superintendent
of Police and then an other Investigation Officer
was entrusted with the job.
11 All. Rahimunnisha & Anr. Vs. State of U.P. & Anr.
299

6. Learned counsel for the petitioner has
pointed out paragraph 33 of the petition to say
that superior officers of the police by invocation
power under Section 173 (3) of the Cr.P.C.
could not have directed further investigation and
that power is reserved only with the Court and
can be exercised pending the order of the
Magistrate
if
an
application
for
further
investigation is made to the Magistrate, during
consideration of such application, the superior
officer of the police is empowered under Section
173 (3) Cr.P.C. to make further investigation,
keeping in view the exigency of the situation.

7. Learned counsel for the petitioners
submits that such orders could not have been
passed by the superior officers of the police and
it is being challenged by means of this petition.

8. Learned counsel for the petitioner
further submitted that a charge sheet filed by the
subsequent Investigating Officer upon which
cognizance has been taken is also been
challenged on the ground that the Investigating
Officer has recorded the statement of only one
witness namely, Ghanshyam Tripathi in the
capacity of Branch Manager, who had not said
anything in respect of forgery and cheating.

9. Learned counsel for the petitioners
repeatedly stated that all the documentary
evidence with regard to forgery is with the
Economic Offences Wing and therefore charge
sheet could not have been filed with out
documentary
evidence.
However,
learned
counsel for the petitioner admits that on
subsequent
investigation
the
second
Investigation Officer had recorded that no such
case in respect of Section 409, 323, 504, 506
IPC were made out. He recorded a finding that
offences only under Section 419, 420, 467, 468,
471 IPC are made out.

10. It has been submitted by the learned
counsel for the petitioners that they again
approached this Court by filing Criminal Misc.
Case No. 2564 of 2016 under Section 482 of the
Cr.P.C. which was disposed of by this Court by
its order dated 30.07.2019 directing the
petitioners to move appropriate discharge
application through counsel before the court
concerned and directed that such discharge
application shall be considered within the time
prescribed by the Court. The petitioner,
thereafter, moved an application under Section
239 for discharge before the Magistrate
concerned, which has been rejected by the order
dated 11.02.2020 without application of judicial
mind and without considering the material
available in the case diary.

11. It has been further submitted by the
learned counsel for the petitioners that the
petitioners preferred a Criminal Revision No. 43
of 2020, namely, Rahimunnisha & another Vs.
State of U.P. & another assailing the order
passed by the learned Magistrate whereby he
had rquired the application for discharge. The
revisional
court/Sixth
Additional
Sessions
Judge, Behraich also rejected the revision.

12. It has been further submitted that the
petitioner no.1 is a Safai Karmi and petitioner
no.2 is a retired teacher he is blind and suffering
from eyes trouble since 2010 and they have been
erroneously and falsely implicated by the
opposite party no.2.

13. Learned counsel for the petitioner has
placed reliance upon the judgement rendered by
the Hon'ble Supreme Court in, "Dilawar Balu
Kurane vs. State of Maharashtra 2002 (2) SCC
135" to say that application of judicial mind is
necessary while considering an order which is
challenged. Learned counsel for the petitioner
has placed reliance upon paragraph 4 of the
judgement which in fact has been borrowed by
the Hon'ble Supreme Court from its earlier
judgement, "Union of India vs. Prafulla Kumar
Samal 1979 (3) SCC 5".
300 INDIAN LAW REPORTS ALLAHABAD SERIES

14. It has been also argued by the learned
counsel for the petitioners that a specific query
was made by this Court when the case was taken
up as fresh on 02.09.2021 to the learned AGA to
seek instructions as to how initially final report
was filed, then without intimating the learned
Magistrate, further investigation was conducted
by the police itself which was violation of
Section 173 (3) Cr.P.C.

15. In the end after arguing for more than
one hour, it has been submitted by the learned
counsel for the petitioners that he has been
served a copy of the counter affidavit filed by
the opposite party no. 2 and he may be given
time to file a rejoinder affidavit to the same.
This submission was made at a time when a
detailed hearing had already taken place and this
Court was convinced that it was not a case under
Section 173 (3) of the Cr.P.C. as it had come out
from the record itself i.e. from the charge sheet
submitted by the second Investigating Officer
that a report regarding no case being made out
was initially submitted by the first Investigating
Officer to the Circle Officer concerned of the
Police Station Huzoorpur. The Circle Officer
had directed further investigation and entrusted
the investigation to another Sub-Inspector. This
fact has come out from the charge sheet itself
that no final report/ finding was ever submitted
to the learned trial court.

16. This Court has perused Section 173 of
the Cr.P.C. on which the reliance has been
placed by the learned counsel for the petitioners.
Section 73 in its entirety is being quoted herein
below:-

"173. Report of police officer on
completion of investigation.

(1) Every investigation under this
Chapter shall be completed without unnecessary
delay.

(2) (i) As soon as it is completed, the
officer in charge of the police station shall
forward to a Magistrate empowered to take
cognizance of the offence on a police report, a
report in the form prescribed by the State
Government, stating-

(a) the names of the parties;

(b) the nature of the information;

(c) the names of the persons who
appear to be acquainted with the circumstances
of the case;

(d) whether any offence appears to
have been committed and, if so, by whom;

(e) whether the accused has been
arrested;

(f) whether he has been released on his
bond and, if so, weather with or without
sureties;

(g) whether he has been forwarded in
custody under section 170.

(ii)
The
officer
shall
also
communicate, In such manner as may be
prescribed by the State Government, the action
taken by him, to the person, if any, by whom the
information relating to the commission of the
offence was first given.

(3) Where a superior officer of police
has been appointed under section 158, the
report shall, in any case in which the State
Government by general or special order so
directs, be submitted through that officer, and he
may, pending the orders of the Magistrate,
direct the officer in charge of the police station
to make further investigation,

(4) Whenever it appears from a report
forwarded under this section that the accused
has been released on his bond, the Magistrate
shall make such order- for the discharge of such
bond or otherwise as he thinks fit.

(5) When such report is in respect of a
case to which section 170 applies, the police
officer
shall
forward
to
the
Magistrate
alongwith the report-

(a) all documents or relevant extracts
thereof on which the prosecution proposes to
rely other than those already sent to the
Magistrate during investigation;
11 All. Rahimunnisha & Anr. Vs. State of U.P. & Anr.
301

(b) the statements- recorded under
section 161 of all the persons whom the
prosecution
proposes
to
examine
as
its
witnesses.

(6) If the police officer is of opinion
that any part of any such statement is not
relevant
to
the
subject-
matter
of
the
proceedings or that its disclosure to the accused
is not essential in the interests of justice and is
inexpedient in the public interest, he shall
indicate that part of the statement and append a
note requesting the Magistrate to exclude that
part from the copies to be granted to the accused
and stating his reasons for making such request.

(7)
Where
the
police
officer
investigating the case finds it convenient so to
do, he may furnish to the accused copies of all
or any of the documents referred to in sub-
section (5).

(8) Nothing in this section shall be
deemed to preclude further investigation in
respect of an offence after a report under sub-
section (2) has been forwarded to the Magistrate
and, where upon such investigation, the officer
in charge of the police station obtains further
evidence, oral or documentary, he shall forward
to the Magistrate a further report or reports
regarding such evidence in the form prescribed;
and the provisions of sub- sections (2) to (6)
shall, as far as may be, apply in relation to such
report or reports as they apply in relation to a
report forwarded under sub- section (2)."

17. It is evident from a perusal of Section
173 of the Cr.P.C. that is only when a report is
submitted to the Magistrate concerned, and
superior officer of the police finds that some
further investigation is necessary, pending the
orders of the Magistrate on the final report
submitted, such superior officer can direct the
Officer Incharge of the police station to make
further investigation.

18. It is not the case of the petitioners that
the police report was ever submitted before the
Magistrate concerned, only the finding was
recorded by the Investigating Officer in the case
diary that since documentary evidence that was
proposed to be relied upon was with the
Economic Offences Wing, without original
documents being there on record, he could not
come to any conclusion regarding forgery being
committed by the petitioners. The Circle Officer
on submission of such report had decided that
the matter required further investigation and a
second Investigating Officer was appointed. The
second
Investigating
Officer
thereafter
submitted a charge sheet in court.

19. It is relevant to note, in this case that
after charge sheet was submitted to the learned
trial court, the petitioners approached this Court
challenging the charge sheet as well as
cognizance taken thereon, and the entire
criminal proceedings initiated on the basis of
FIR. The Court rejected the contention raised by
the learned counsel for the petitioners in its
judgement and order dated 30.07.2019, which
has been filed as annexure-09 to the petition.

20. Once this Court has rejected the
challenge to the charge sheet, such a challenge
could not be entertained afresh, even though
learned counsel for the petitioners has argued
upon the merit on the charge sheet before this
Court again while arguing this petition. This
Court is only concerned with the merits of the
order passed on discharge application under
Section 227 of the Cr.P.C. and also the order
passed by the Sixth Additional Sessions Judge,
Behraich rejecting the revision of the petitioners.

21. This Court has perused the order dated
11.02.2020 passed by the learned Magistrate on
the discharge application moved by the
petitioners. Learned Magistrate in the first two
paragraphs of his order dated 11.02.2020 had
noted that the petitioners in their discharge
application have stated that the age of the
petitioner no.1, namely, Rahimunnisha had been
302 INDIAN LAW REPORTS ALLAHABAD SERIES
shown to be more than 60 years, on the basis of
entry in the parivar register, on the basis of
which she was being given old age pension and
that the earlier Investigating Officer could not
find evidence, and therefore submitted a final
report, but further investigation was directed and
the second Investigating Officer, thereafter, filed
charge sheet without any evidence being
available against the petitioner.

22. Learned trial court, thereafter, recorded
the submission of the Public Prosecutor that the
application for discharge was misconceived and
should be rejected. Learned trial court has
recorded its finding thereafter, saying that from
a perusal of the paper book, it was evident that
an application under Section 156 (3) Cr.P.C. was
filed by one Rafique Ahmad, on which the trial
court had directed Police Station Huzoorpur to
register
FIR
and
to
investigate.
After
investigation charge sheet was submitted under
Section 419, 420, 467, 468, 471 IPC. The
applicants had argued that none of these sections
were made out for the alleged offence, if any
committed by them. The trial court, thereafter,
observed that petition under Section 482
Cr.P.C., namely, Petition No. 2564 of 2016 had
been filed by Rahimunnisha and Another where
the High Court had rejected the contention in its
order dated 30.07.2019 directing the petitioner
to approach the learned trial court by moving
discharge application which was to be decided
within time as prescribed by the Court in its
order. The learned trial court thereafter,
observed that it is a settled law that for
considering the discharge application only the
facts as mentioned in the papers submitted by
the prosecution had to be looked into. The
sufficiency of the evidence could not be taken
into account but only the prima facie case has to
be shown to be made out by the prosecution.

23. Learned trial court, thereafter, observed
that evidence cannot be analyzed at the stage of
considering the discharge application. The case
diary and the materials submitted alongwith the
charge sheet had already been considered and
cognizance taken by the court. Prima facie a
case under Section 419, 420, 467, 468, 471 IPC
was made out from the charge sheet. Learned
trial Court, thereafter, rejecting the discharge
application by its order dated 11.02.2020. The
petitioners, thereafter, filed the Revision No. 43
of 2020.

24. This Court has considered the order
passed by the learned Additional District and
Sessions
Judge
dated
20.02.2021.
The
Revisional Court has first noted the arguments
made by the counsel for the revisionist and also
analyzed the papers on record, wherein the
complaint/application under Section 156 (3)
Cr.P.C. had stated that the petitioners were
husband and wife, and petitioner no.1 was
shown in the parivar register of the year 19951996, as having been born in 1940, and
therefore, more than 60 years of age, and on the
basis of such overwriting a medical certificate of
a Doctor was filed, on the basis of which the
petitioner no.1 was getting Old Age Pension for
several years. The Shrawasti Gramin Bank
Branch at Huzoorpur had shown in its Ledger on
page dated 23.12.2005, at serial no. 138, the
name of Rahimunnisha and Account No. 2446
wherein Rahimunnisha continued to draw Old
Age Pension w.e.f. 2005, onward. Thereafter,
the accused Rahimunnisha managed to get a
different entry of Date of Birth mentioned in the
Parivar Register as 1974 and showed herself to
be 40 years of age on 01.07.2007, and took up
service
as
Safai
Karmi.
The
accused
Rahimunnisha in fact had been drawing pension
showing her age to be more than 60 years for
several years before she showed herself to be 40
years of age and started working as Safai Karmi.

25. Certain allegations had been made in
the application under Section 156 Cr.P.C.
relating to the applicant being beaten up by the
duo, husband and wife, and some money being
11 All. Rahimunnisha & Anr. Vs. State of U.P. & Anr.
303
taken out of his purse at one point of time, and
being annoyed of which he had filed the
application under Section 156 (3) Cr.P.C. before
the learned trial Court. Learned revisional court,
thereafter, noted the arguments raised by the
learned counsel for the petitioners regarding the
earlier Investigating Officer, namely, Mr. Ram
Chand Singh not finding any evidence against
the accused and the superior police officers
rejecting the final report on their own and
directing further investigation giving it to a
second Investigating Officer, namely, Mr. Ram
Murat Yadav. Mr. Ram Murat Yadav contacted
the Gramin Bank Branch at Huzurpur and the
Manager Ghanshyam Tripathi gave evidence
regarding pension being deposited in the account
of petitioner no.1 and after such deposit the
same being withdrawn by Rahimunnisha.

26. The Revisional Court referred to the writ
petition filed for quashing of FIR and the order
passed thereon and also the petition filed under
Section 482 of the Cr.P.C. and the observations
made by the Court regarding the right of the
accused to file appropriate discharge application.
The Revisional Court considered the fact that there
was evidence on record of the petitioner no.1
drawing Old Age Pension from the Bank account
concerned, and thereafter working as Safai Karmi.
The Revisional Court, thereafter, observed that
under Section 239 Cr.P.C., the duty of the trial court
is that of considering the discharge application, if
any, moved by the accused and passing appropriate
orders thereon, under Section 240 Cr.P.C. The trial
court after hearing the accused and coming to the
conclusion that prima facie case had been made out
for framing of charge had thereafter framed charges
against such accused. Learned trial court had
considered the discharge application on its merit and
also the charge sheet and had come to the
conclusion that prima facie case had been made out
against the petitioner.

27. The revisional court also referred to the
settled law with regard to the duty of the trial
court and the scope of exercise of its power
while considering a discharge application. The
revisional court also considered the arguments
raised by the learned counsel for the petitioners
that
the
original
documents
relating
to
irregularity in distribution of Old Age Pension
were with the Economic Offences Wing, and
therefore, the charge sheet could not have been
filed on the basis of photo copies of such
documents, and observed that it is only at the
time of considering of evidence on detailed trial
that original documents would be necessary and
they can then be called for by the learned trial
court concerned.

28. This Court has considered the
submissions made by the learned counsel for the
petitioners with regard to the judgement
rendered by the Hon'ble Supreme Court in the
case of Dilawar Balu Kurane (Supra), no
doubt, the Hon'ble Supreme Court has observed
in paragraph 12 as follows:-

"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
304 INDIAN LAW REPORTS ALLAHABAD SERIES
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 versus Prafulla Kumar Samal &
Another (1979 3 SCC 5)]"

29. However the entire law on the subject
has been considered and retreated, thereafter, in
the judgement render by the Hon'ble Supreme
Court State of Rajasthan Vs. Ashok Kumar
Kashyap, 2021 SCC Online SC 314 Where the
Supreme Court has observed as follows:-

"24. In the recent decision of this
Court in the case of M.R. Hiremath (supra), one
of us (Justice D.Y. Chandrachud) speaking for
the Bench has observed and held in paragraph
25 as under:

25. The High Court ought to have been
cognizant of the fact that the trial court was
dealing with an application for discharge under
the provisions of Section 239 CrPC. The
parameters which govern the exercise of this
jurisdiction have found expression in several
decisions of this Court. It is a settled principle of
law that at the stage of considering an
application for discharge the court must proceed
on the assumption that the material which has
been brought on the record by the prosecution is
true and evaluate the material in order to
determine whether the facts emerging from the
material, taken on its face value, disclose the
existence of the ingredients necessary to
constitute the offence. In State of T.N. v. N.
Suresh Rajan [State of T.N. v. N. Suresh Rajan,
(2014) 11 SCC 709, adverting to the earlier
decisions on the subject, this Court held: (SCC
pp. 721-22, para 29)

"29.....At this stage, probative value of
the materials has to be gone into and the court is
not expected to go deep into the matter and hold
that the materials would not warrant a conviction.
In our opinion, what needs to be considered is
whether there is a ground for presuming that the
offence has been committed and not whether a
ground for convicting the accused has been made
out. To put it differently, if the court thinks that the
accused might have committed the offence the
basis of the materials on record on its probative
value, it can frame the charge; though for
conviction, the court has to come to the conclusion
that the accused has committed the offence. The
law does not permit a mini trial at this stage.

25. We shall now apply the principles
enunciated above to the present case in order to
find out whether in the facts and circumstances of
the case, the High Court was justified in
discharging the accused for the offence under
Section 7 of the PC Act.

26. Having considered the reasoning
given by the High Court and the grounds which
are weighed with the High Court while
discharging the accused, we are of the opinion that
the High Court has exceeded in its jurisdiction in
exercise of the revisional Jurisdiction and has
acted beyond the scope of Section 227/239 Cr.P.C.
While discharging the accused, the High Court has
gone into the merits of the case and has considered
whether on the basis of the material on record, the
accused is likely to be convicted or not.-----As
rightly observed and held by the learned Special
Judge at the stage of framing of the charge, it has
to be seen whether or not a prima facie case is
made out and the defence of the accused is not to
be considered.------ As observed hereinabove, the
High Court was required to consider whether a
prima facie case has been made out or not and
whether the accused is required to be further tried
or not. At the stage of framing of the charge and/or
considering the discharge application, the mini
trial is not permissible."

30. Accordingly, this Court does not find
any infirmity in the orders impugned. This
petition stands rejected.
----------
11 All. Ashish Shukla @ Kallu @ Ashok Kumar & Anr. Vs. State of U.P. & Anr.
305
(2021)12ILR A305
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 02.12.2021

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.

Application U/S 482/378/407 No. 4301 of 2021

Ashish Shukla @ Kallu @ Ashok Kumar & Anr.
 ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Indresh Kumar Mishra, S.C. Misra

Counsel for the Opposite Parties:
G.A.

A.
Criminal
Law
-
Code
of
Criminal
Procedure,1973-Section 482 - Indian Penal
Code, 1860-Sections 147, 304, 506-quashing of
chargesheet-incidence in question took place in
Delhi-victim admitted to the hospital at Delhi
and after being discharged from the hospital he
reached at his native village situated at Hardoithere
was
substantial
delay,
which
is
unexplained, of about ten days-on account of
failure on the part of informant the actual truth
could not comeforth-these facts have not been
verified by the Magistrate before taking
congnizance of the Charge-Sheet so the factum
of due care and precaution on the part of
Magistrate was missing in this case-this
cognizance may not be said to be taken in good
faith, therefore, the protection of Section 460
Cr.P.C.
may
not
be
extended
to
such
cognizance order-Since no cause of action
accrued at Hardoi, the concerned Magistrate
had
no
jurisdiction
to
deal
with
the
matter.(Para 1 to 29)

The application is allowed. (E-6)

List of Cases cited:

Abraham Ajith & ors. Vs Insp. of Police, Chennai &
anr. CRLA No.904 of 2004 {SLP (Crl.) No. 4573 of
2003 }
(Delivered by Hon'ble Rajesh Singh Chauhan, J.)

1. Heard Sri Indresh Kumar Mishra,
learned counsel for the petitioners and Sri Ran
Vijay Singh, learned Additional Government
Advocate for the State.

2. By means of this petition filed under
Section 482 Cr.P.C., the petitioners have prayed
for quashing the Charge-sheet No.128 of 2020
dated 17.03.2020 arising out of Case Crime
No.647 of 2018, under Sections 147, 304 & 506
I.P.C. relating to Police Station-Kotwali City
Hardoi, as well as the summoning order and also
the
entire
proceeding
of
Criminal
Case
No.18362 of 2020 (State vs. Ashish Shukla @
Kallu & others) pending in the Court of the
learned Chief Judicial Magistrate, DistrictHardoi.

3. On the first date of admission, a pure
legal question was argued to the effect that when
the appropriate alleged overt act has been
committed at Delhi, as to how the investigation
can be carried out at Hardoi and pursuant to such
investigation as to how the charge-sheet can be
filed at Hardoi. Since the charge-sheet was filed
at Hardoi, therefore, the cognizance was taken
by the learned court below at Hardoi.

4. So learned counsel for the petitioners
has submitted that the entire proceedings,
investigation and the cognizance order in the
present case is nullity in the eyes of law,
therefore, the same may be quashed. For this
reason, no notice was issued to the private
opposite party i.e. opposite party No.2.

5. Since the aforesaid legal question is
being dealt with, therefore, notice to opposite
party No.2 is hereby dispensed with as no
prejudice is being caused him by this order.

6. The brief facts of the present case are
that one First Information Report (in short