# Rajkumar @ Raju & Ors. Revisionists v. State of U.P. & Ors

- **Citation:** (2024) 3 ILRA 121
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-12-22
- **Case number:** Criminal Revision No. 2419 of 2023
- **Bench:** Ram Manohar Narayan Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajkumar-raju-ors-revisionists-v-state-of-u-p-ors-50936
- **Pages:** 10

## Headnote

Law
-
Code
of
Criminal
Procedure, 1973 - Sections 227, 228 &
397 - Indian Penal Code, 1860 - Sections
147, 148, 323, 504, 506, 452 & 354A -
122 INDIAN LAW REPORTS ALLAHABAD SERIES
Protection of Children from Sexual Offences Act,
2012 - Section 8 - Discharge Application -
Revisional Jurisdiction - Prima Facie Case -
Contradictions in St.ments

The revisionists, Rajkumar @ Raju and others,
challenged the order dated 17.05.2023 passed
by the Special Judge (POCSO Act)/Additional
Sessions
Judge,
Bareilly,
dismissing
their
discharge application under Section 227 Cr.P.C.
in Case Crime No. 368 of 2019, involving
charges under Sections 147, 148, 323, 504, 506,
452, 354A IPC, and Section 8 POCSO Act. The
FIR, lodged on 27.07.2019 pursuant to a Section
156(3) Cr.P.C. application, alleged that on
02.06.2019, the accused trespassed into the
informant's house, molested her minor daughter,
and assaulted the informant due to prior enmity.
The Investigating Officer submitted a final
report favoring the accused, citing a monetary
dispute, but the trial court rejected it based on
the victim's and informant's St.ments under
Sections 161 and 164 Cr.P.C., summoning the
accused. The revisionists argued contradictions
between the informant's and victim's St.ments,
with the victim implicating only Veer Singh and
Pappi, not Raju, Guddu, or Darpan. Held: The
court, relying on Sheoraj Singh Ahlawat Vs St. of
U.P. ((2013) 11 SCC 476), Sajjan Kumar Vs
CBI ((2010) 9 SCC 368), and Tarun Jit
Tejpal Vs St. of Goa ((2019) SCC OnLine
1053), found that the trial court failed to
consider the contradiction in St.ments,
where the victim did not implicate Raju,
Guddu,
or
Darpan,
rendering
their
complicity doubtful. The court emphasized
that under Section 227 Cr.P.C., the trial
court must evaluate material for a prima
facie case without conducting a roving
inquiry. The revision was allowed, the
impugned order was set aside, and the
matter was remitted for fresh consideration
of the discharge application with reasoned
orders.

Case Law Cited:

## Text

3 All. Rajkumar @ Raju & Ors. Vs. State of U.P. & Ors.
121
manipulating the investigating and/or the
prosecuting agency.

38. The Hon'ble Apex Court observed
that in a case like the present where
plethora of evidence was collected by the
Investigating Officer during investigation
which suggested otherwise, the trial court
was at least duty bound to look into the
same while forming prim-facie opinion and
to see as to whether 'much stronger
evidence than mere possibility of their
(appellants), complicity has come on
record. There is no satisfaction of this
nature. The police on investigation revealed
that the statement of these persons
regarding the presence of the appellants at
the place of occurrence was doubtful and
did no inspire confidence, in view of the
documentary and other evidence collected
during the investigation, which depicted
another story and clinchingly showed that
appellants plea of alibi was correct.

39. With foregoing submissions at Bar
and discussion, this Court is of the
considered opinion that the learned court
below has committed legal error while
ignoring
all together the
course
of
investigation,
the
reason
behind
exoneration of the revisionists and filing of
chargesheet against a new set of accused
persons on the basis of evidence collected
during investigation. Although the evidence
adduced during inquiry or trial is envisaged
as "evidence" under Section 319 Cr.P.C., as
settled in constitutional Bench Judgment
the Hon'ble Apex Court in Hardeep Singh
Vs. State of Punjab and Others (supra),
but in subsequent judgment in Brijendra
Singh and Others Vs. State of Rajasthan
(supra) the Hon'ble Apex Court held that
the evidence collected by IO at the stage of
investigation should also be looked into as
the same may be utilized for corroboration
and to support the evidence recorded by the Court
to invoke the power under Section 319 Cr.P.C.
The impugned order is not sustainable under law
and deserves to be set-aside.

40. The revision stands allowed. The
impugned order dated 02.05.2019 passed
by learned trial court is hereby set-aside
and matter is remitted to the court below to
hearing the application under Section 319
Cr.P.C. afresh and decide the same in
accordance with law in the light of
observations made in this order, after
giving opportunity of hearing to the
complainant and prosecution.

41. However, it is clarified that the
observations made herein before are only
for the purpose of deciding the present
revision and have no bearing on the merits
of the case for final adjudication.
----------
(2024) 3 ILRA 121
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 22.12.2023
BEFORE

THE HON'BLE RAM MANOHAR NARAYAN
MISHRA, J.

Criminal Revision No. 2419 of 2023

Rajkumar @ Raju & Ors. ...Revisionists
Versus
State of U.P. & Ors ...Opposite Parties

Counsel for the Revisionists:
Sri Thakur Prasad Dubey, Sri Yogesh
Mishra

Counsel for the Opposite Parties:
G.A.

Criminal
Law
-
Code
of
Criminal
Procedure, 1973 - Sections 227, 228 &
397 - Indian Penal Code, 1860 - Sections
147, 148, 323, 504, 506, 452 & 354A -
122 INDIAN LAW REPORTS ALLAHABAD SERIES
Protection of Children from Sexual Offences Act,
2012 - Section 8 - Discharge Application -
Revisional Jurisdiction - Prima Facie Case -
Contradictions in St.ments

The revisionists, Rajkumar @ Raju and others,
challenged the order dated 17.05.2023 passed
by the Special Judge (POCSO Act)/Additional
Sessions
Judge,
Bareilly,
dismissing
their
discharge application under Section 227 Cr.P.C.
in Case Crime No. 368 of 2019, involving
charges under Sections 147, 148, 323, 504, 506,
452, 354A IPC, and Section 8 POCSO Act. The
FIR, lodged on 27.07.2019 pursuant to a Section
156(3) Cr.P.C. application, alleged that on
02.06.2019, the accused trespassed into the
informant's house, molested her minor daughter,
and assaulted the informant due to prior enmity.
The Investigating Officer submitted a final
report favoring the accused, citing a monetary
dispute, but the trial court rejected it based on
the victim's and informant's St.ments under
Sections 161 and 164 Cr.P.C., summoning the
accused. The revisionists argued contradictions
between the informant's and victim's St.ments,
with the victim implicating only Veer Singh and
Pappi, not Raju, Guddu, or Darpan. Held: The
court, relying on Sheoraj Singh Ahlawat Vs St. of
U.P. ((2013) 11 SCC 476), Sajjan Kumar Vs
CBI ((2010) 9 SCC 368), and Tarun Jit
Tejpal Vs St. of Goa ((2019) SCC OnLine
1053), found that the trial court failed to
consider the contradiction in St.ments,
where the victim did not implicate Raju,
Guddu,
or
Darpan,
rendering
their
complicity doubtful. The court emphasized
that under Section 227 Cr.P.C., the trial
court must evaluate material for a prima
facie case without conducting a roving
inquiry. The revision was allowed, the
impugned order was set aside, and the
matter was remitted for fresh consideration
of the discharge application with reasoned
orders.

Case Law Cited:

1. Sheoraj Singh Ahlawat Vs St. of U.P., (2013)
11 SCC 476

2. Onkar Nath Mishra Vs St. (NCT of Delhi),
(2008) 2 SCC 561

3. Sajjan Kumar Vs CBI, (2010) 9 SCC 368

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

5. R.S. Nayak Vs A.R. Antulay, (1986) 2 SCC 716

6. Tarun Jit Tejpal Vs St. of Goa, (2019) SCC
OnLine 1053

7. Union of India Vs Prafulla Kumar Samal,
(1979) 3 SCC 4

8. St. of Orissa Vs Debendra Nath Padhi, (2003)
2 SCC 711

9. Niranjan Singh Karam Singh Punj.i Vs Jitendra
Bhimraj Bijjaya, (1990) 4 SCC 76

10. Supt. & Remembrancer of Legal Affairs Vs
Anil Kumar Bhunja, (1979) 4 SCC 274

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

12. S. Selvi (specific citation not provided in
text)

13. St. Vs A. Arun Kumar, (2015) 2 SCC 417

14. Sonu Gupta Vs Deepak Gupta, (2015) 3 SCC
424

(Delivered by Hon'ble Ram Manohar
Narayan Mishra, J.)

1. Challenge in this revision is to
the order dated 17.5.20223 passed by
learned Special Judge (POCSO Act)/
Additional Sessions Judge, Bareilly, in
Case Crime No.368 of 2019, under
Sections 147, 148, 323, 504, 506, 452,
354-Ka IPC and Section 8 of POCSO
Act, Police Station Aonla, District
Bareilly,
wheeby
the
discharge
application moved by the accusedrevisionists in said case under Section
227 Cr.P.C. has been dismissed and case
was fixed for framing of charge.
3 All. Rajkumar @ Raju & Ors. Vs. State of U.P. & Ors.
123

2. Heard learned counsel for the
revisionists, learned AGA for the State and
perused the material placed on record.

3. Factual matrix of the case in brief are
that the FIR was lodged at the instance of
respondent No.2 at police station concerned
on 27.7.2019, at 16:16 hours on the basis of
order passed by learned Special Judge,
POCSO Act, Bareilly on application under
Section 156(3) Cr.P.C. filed by the informant
on 16.7.2019, with averment that on
4.9.2019, at around 6:20 AM, accused
persons namely Raju, Pappi, Guddu, Darpan
and Veer Singh, who are resident of her
mohalla
had
mercilessly
beaten
and
threatened him with life. The son and
husband of the informant went somewhere
else due to fear of accused persons. As
informant had made a complaint at police
station concerned regarding that incident, the
accused-persons were bearing grudge against
her. The accused persons appeared at the door
of the house of informant at 2.6.2019, at
about 11:30 PM due to previous enmity and
knocked at her door. The informant opened
door in impression that her son and husband
would have come to home. The accused
persons barged into her house and accused
Veer Singh and Pappi grabbed and molested
her minor daughter with bad intention. When
the informant objected to this, they engaged
in maar-peet with her and threatened her that
they would compel her to leave the place like
her husband and son and will grab her house
and take her daughter with them. When the
informant and her children shouted for
help, the accused persons left the place
after hurling threats of life to them. The
informant tried to lodge her report at police
station concerned but due to influence of
accused persons, her report had not been
lodged and ultimately she had to take
recourse of the court for lodging her FIR,
under Section 156(3) Cr.P.C.

4. The police investigated the case,
recorded statements of victim, informant
and witnesses, inspected the place of
incident and Investigating Officer prepared
site plan of the place of occurrence and
after investigation submitted a final report
in favour of the accused persons with
conclusion that matter enquired into by
approaching respectable people of locality
and daughter-in-law of the informant, who
was present on the spot but no such type of
incident was found to have occurred. This
fact emerged that the informant and her
husband
had
borrowed
money
from
accused persons for marriage of their son
but they did not intent to pay back the
money and a false case was lodged against
accused
persons
with
malafide.
The
informant appeared before the trial court
and filed her protest petition against final
report submitted by the Investigating
Officer. Learned trial court heard the
informant on final report and protest
petition and placing reliance on statement
of victim recorded under Section 164
Cr.P.C. before the Magistrate as well as the
statement of informant recorded under
Section 161 Cr.P.C. as well as FIR version
rejected the final report and allowed the
protest petition vide order dated 6.12.2021
and summon the accused Veer Singh and
Pappi for said charges and accused Raju,
Guddu and Darpan were also summoned
for said charges except charge under
Section 8 of POCSO Act.

5. The accused persons assailed the
summoning order before this Court by
moving an Application U/S 482 No.2702 of
2022, wherein they submitted that in fact,
no such incident took place as mentioned in
the F.I.R. and due to the personal grudges,
entire family of the applicants has been
roped in the present matter. It is further
submitted that no offence against applicants
124 INDIAN LAW REPORTS ALLAHABAD SERIES
is disclosed and present prosecution has
been instituted with a malafide intention for
the purposes of harassment. This Court
disposed of the application under Section
482 Cr.P.C., vide order dated 9.2.2022 with
observation that the disputed defence of the
accused cannot be considered at this stage.
The Court did not see any abuse of the
court's process either. The summoning
court has been vested with sufficient
powers to discharge the accused even
before the stage to frame the charges
comes, if for reasons to be recorded, it
considers the charge to be groundless.
Moreover, the applicants have got a right of
discharge under Section 239 or 227/228
Cr.P.C., as the case may be, through a
proper application for the said purpose and
he is free to take all the submissions in the
said discharge application before the Trial
Court. The Court below holds the view that
the accused has been rightly summoned
and the material brought on record does not
indicate the charges to be groundless it
shall make an order to that effect and
proceed further in the matter, in accordance
with law.

6. In the light of observations of this
Court on Application U/S 482 Cr.P.C. filed
by the accused persons, they moved an
application under Section 227 Cr.P.C.
before the trial court praying for their
discharge from alleged charges, wherein,
they place reliance on the statements of
independent
witnesses
given
through
affidavits to S.H.O., concerned, in which
they have stated that no such type of
incident occurred as alleged in the FIR. The
accused persons are respectable people of
the locality and they have been falsely
implicated in the case with ulterior motive
and with a view to grab their money lent to
the husband of the informant. They have
also stated in the application that they have
been released on bail vide order dated
31.3.2022 by the Court. The FIR has been
lodged by the informant with a view to
blackmail the accused persons and avoid
repayment of their money borrowed by
him. It was also stated therein that in fact,
the informant wanted to get her daughter
(victim) married with accused Darpan but
her offer was declined by accused persons.
Accused Ajay @ Guddu and Rajkumar @
Raju are afflicted with serious ailment and
they could not participate in such type of
incident. The informant has stated the date
of incident as 2.6.2019 whereas the victim,
in her statement under Section 164 Cr.P.C.,
has stated the incident had occurred on
2.8.2019. The victim has implicated only
accused Veer Singh and Pappi in the
incident. Learned court below rejected the
application for discharge moved by the
accused persons with observation that the
accused persons were summoned on protest
petition, vide order dated 6.12.2021. They
filed discharge application at belated stage
after order of High Court in this respect. No
fresh evidence appeared after summoning
of the accused persons on the basis of
which accused persons can be discharged.
The discharge application has been moved
on the basis of same evidence which was
available at the time of summoning of the
accused. No such type of evidence is found
on record on basis of which, the accused
persons could be discharged.

7. Feeling aggrieved by the impugned
order, the accused persons/revisionists
preferred present criminal revision.

8. Learned counsel for the revisionists
submitted that learned trial court has
wrongly observed in the impugned order
that no fresh evidence or material has
appeared on record after summoning of the
accused-persons, which could form basis
3 All. Rajkumar @ Raju & Ors. Vs. State of U.P. & Ors.
125
for the discharge as this Court while
deciding Application U/S 482 Cr.P.C. No.
2702 of 2022, vide order dated 9.2.2022,
has clearly observed that "If the concerned
Court feels persuaded to have the view that
accused ought not to have been summoned
and charge is groundless it shall not abstain
from discharging the accused only on the
ground that the material available at the
time of summoning was the same which is
available on record at the time of hearing
the discharge application."

9. Learned counsel for the revisionists
further submitted that where informant has
implicated all the five accused persons in
the FIR as well as in her statement under
Section 161 Cr.P.C., the victim has made
allegations only against two accused
namely, Pappi and Veer Singh in the
incident. Even, daughter-in-law of the
informant has not supported FIR version in
her statement under Section 161 Cr.P.C.
The victim or informant suffered no injury
in the incident as no injury report has been
brought on record. The affidavits of the
witnesses is part of case diary.

10.

Per
contra, learned AGA
submitted that the offence is of serious
nature. Learned court below has rightly
dismissed the discharge application moved
by the applicants/revisionists by impugned
order while considering the material on
record and submissions of learned counsels
appearing for the parties. No case for
discharge has been made out in the matter.

11. From perusal of record, it appears
that the FIR in the case was lodged on the
basis of order of Special Judge, POCSO
Act, Bareilly, on 27.7.2019 regarding the
incident dated 2.6.2019, time 11:30 PM. It
is stated in the FIR that the accused-persons
assaulted her and molested her minor
daughter on date and time of incident by
committing house trespass, due to previous
enmity and incident dated 4.5.2019. The
informant has supported FIR version
against all the accused persons in her
statement recorded under Section 161
Cr.P.C., wherein specific allegation of
molestation of her minor daughter are
attributed to accused namely, Veer Singh
and Pappi. The victim in her statement
under Section 161 Cr.P.C. recorded on
20.6.2019 has implicated only two accused
person namely Pappi and Veer Singh, who
knocked at her door in the fateful night,
which was opened by her mother and they
tried to outrage her modesty. She has also
stated that there were no other person at
that time except these two people. The
victim in her statement under Section 164
Cr.P.C. recorded by the Magistrate on
26.7.2019 has also implicated only two
accused namely Pappi and Veer Singh. She
has sated nothing about other accusedpersons.

12. Reference in this connection can
be made to a recent decision of this Court
in Sheoraj Singh Ahlawat v. State of U.P.
[(2013) 11 SCC 476 : (2012) 4 SCC (Cri)
21 : AIR 2013 SC 52], in which, after
analysing various decisions on the point,
this Court endorsed the following view
taken in Onkar Nath Mishra v. State
(NCT of Delhi) [(2008) 2 SCC 561 :
(2008) 1 SCC (Cri) 507] : (Sheoraj Singh
Ahlawat case [(2013) 11 SCC 476 : (2012)
4 SCC (Cri) 21 : AIR 2013 SC 52] , SCC
p. 482, para 15) "15. '11. It is trite that at
the stage of framing of charge the court is
required to evaluate the material and
documents on record with a view to finding
out if the facts emerging therefrom, taken at
their face value, disclosed the existence of
all the ingredients constituting the alleged
offence. At that stage, the court is not
126 INDIAN LAW REPORTS ALLAHABAD SERIES
expected to go deep into the probative
value of the material on record. What needs
to be considered is whether there is a
ground for presuming that the offence has
been committed and not a ground for
convicting the accused has been made out.
At that stage, even strong suspicion
founded on material which leads the court
to form a presumptive opinion as to the
existence
of
the
factual
ingredients
constituting the offence alleged would
justify the framing of charge against the
accused in respect of the commission of
that offence.' (Onkar Nath case [(2008) 2
SCC 561 : (2008) 1 SCC (Cri) 507] , SCC
p. 565, para 11)" (emphasis in original)

13. Now reverting to the decisions of
this Court in Sajjan Kumar [Sajjan
Kumar v. CBI, (2010) 9 SCC 368 : (2010)
3 SCC (Cri) 1371] and Dilawar Balu
Kurane [Dilawar Balu Kurane v. State of
Maharashtra, (2002) 2 SCC 135 : 2002
SCC (Cri) 310], relied on by the
respondents, we are of the opinion that
they do not advance their case. The
aforesaid
decisions
consider
the
provision of Section 227 of the Code
and make it clear that at the stage of
discharge the court cannot make a
roving enquiry into the pros and cons
of the matter and weigh the evidence
as if it was conducting a trial. It is
worth
mentioning
that
the
Code
contemplates discharge of the accused
by the Court of Session under Section
227 in a case triable by it; cases
instituted upon a police report are
covered by Section 239 and cases
instituted otherwise than on a police
report are dealt with in Section 245.
From a reading of the aforesaid
sections it is evident that they contain
somewhat different provisions with
regard to discharge of an accused:

1. Under Section 227 of the Code,
the trial court is required to discharge the
accused if it "considers that there is not
sufficient ground for proceeding against the
accused".
However,
discharge
under
Section 239 can be ordered when "the
Magistrate considers the charge against the
accused to be groundless". The power to
discharge is exercisable under Section
245(1) when, "the Magistrate considers,
for reasons to be recorded that no case
against the accused has been made out
which, if unrebutted, would warrant his
conviction".

2. Section 227 and 239 provide
for discharge before the recording of
evidence on the basis of the police report,
the documents sent along with it and
examination of the accused after giving an
opportunity to the parties to be heard.
However, the stage of discharge under
Section 245, on the other hand, is reached
only after the evidence referred in Section
244 has been taken.

3. Thus, there is difference in the
language employed in these provisions.
But, in our opinion, notwithstanding these
differences, and whichever provision may
be applicable, the court is required at this
stage to see that there is a prima facie case
for
proceeding
against
the
accused.
Reference in this connection can be made
to a judgment of this Court in R.S. Nayak v.
A.R. Antulay [(1986) 2 SCC 716 : 1986
SCC (Cri) 256] . The same reads as
follows: (SCC pp. 75556, para 43) "43. ...
Notwithstanding this difference in the
position there is no scope for doubt that the
stage at which the Magistrate is required to
consider the question of framing of charge
under Section 245(1) is a preliminary one
and the test of 'prima facie' case has to be
applied. In spite of the difference in the
language of the three sections, the legal
position is that if the trial court is satisfied
3 All. Rajkumar @ Raju & Ors. Vs. State of U.P. & Ors.
127
that a prima facie case is made out, charge
has to be framed." 9.2 In the subsequent
decision in the case of S. Selvi (Supra) this
Court has summarised the principles while
framing of the charge at the stage of
Section 227/228 of the CrPC. This Court
has observed and held in paragraph 6 and
7 as under:

"6. It is well settled by this Court
in a catena of judgments including Union
of India v. Prafulla Kumar Samal [Union of
India v. Prafulla Kumar Samal, (1979) 3
SCC 4 : 1979 SCC (Cri) 609] , Dilawar
Balu Kurane v. State of Maharashtra
[Dilawar
Balu
Kurane
v.
State
of
Maharashtra, (2002) 2 SCC 135 : 2002
SCC (Cri) 310] , Sajjan Kumar v.
CBI[Sajjan Kumar v. CBI, (2010) 9 SCC
368 : (2010) 3 SCC (Cri) 1371] , State v. A.
Arun Kumar [State v. A. Arun Kumar,
(2015) 2 SCC 417 : (2015) 2 SCC (Cri) 96
: (2015) 1 SCC (L&S) 505] , Sonu Gupta v.
Deepak Gupta [Sonu Gupta v. Deepak
Gupta, (2015) 3 SCC 424 : (2015) 2 SCC
(Cri) 265] , State of Orissa v. Debendra
Nath Padhi [State of Orissa v. Debendra
Nath Padhi, (2003) 2 SCC 711 : 2003 SCC
(Cri) 688] , Niranjan Singh Karam Singh
Punjabi
v.
Jitendra
Bhimraj
Bijjaya
[Niranjan Singh Karam Singh Punjabi v.
Jitendra Bhimraj Bijjaya, (1990) 4 SCC 76
: 1991 SCC (Cri) 47] and Supt. &
Remembrancer of Legal Affairs v. Anil
Kumar Bhunja [Supt. & Remembrancer of
Legal Affairs v. Anil Kumar Bhunja, (1979)
4 SCC 274 : 1979 SCC (Cri) 1038] that the
Judge while considering the question of
framing charge under Section 227 of the
Code in sessions cases (which is akin to
Section 239 CrPC pertaining to warrant
cases) 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 material placed before the
court discloses grave suspicion against the
accused which has not been properly
explained, the court will be fully justified in
framing the charge; 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 within his rights to discharge
the accused. 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 statements 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
materials as if he was conducting a trial.

14. Hon'ble Apex Court in Tarun Jit
Tejpal vs. State of Goa, (2019), SCC
OnLine 1053, placed reliance on a
previous judgement of Apex Court in
Sajjan Kumar [Sajjan Kumar v. CBI,
(2010) 9 SCC 368, wherein Apex Court on
consideration of various decision about
scope of Section 227 and 228 Cr.P.C. laid
following principles:-

"(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
128 INDIAN LAW REPORTS ALLAHABAD SERIES
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
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."" In the case of Mauvin
Godinho (Supra) this Court had an
occasion to consider how to determine
prima facie case while framing the charge
under Section 227/228 of the CrPC. In the
same decision this Court observed and held
that while considering the prima facie case
at the stage of framing of the charge under
Section 227 of the CrPC 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. At this stage the
decision of this Court in the case of Stree
Atyachar Virodhi Parishad (Supra) is also
required to be referred to. In that aforesaid
decision this Court had an occasion to
consider the scope of enquiry at the stage
of deciding the matter under Section
227/228 of the CrPC. In paragraphs 11 to
14 observations of this Court in the
aforesaid decision are as under:-

"11. Section 227 of the Code of
Criminal Procedure having bearing on the
contentions urged for the parties, provides:

"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 no
sufficient ground for proceeding against the
accused, he shall discharge the accused
and record his reasons for so doing."

12. Section 228 requires the
Judge to frame charge if he considers that
there is ground for presuming that the
accused has committed the offence. The
interaction of these two sections has
already
been
the
subjectmatter
of
consideration by this Court. In State of
Biharv. Ramesh Singh [(1977) 4 SCC 39 :
1977 SCC (Cri) 533 : (1978) 1 SCR 257] ,
Untwalia, J., while explaining the scope of
the said sections observed: [SCR p. 259 :
3 All. Rajkumar @ Raju & Ors. Vs. State of U.P. & Ors.
129
SCC pp. 4142 : SCC (Cri) pp. 53536, para
4] Reading the two provisions together in
juxtaposition, as they have got to be, it
would be clear that at the beginning and
the initial stage of the trial the truth,
veracity and effect of the evidence which
the Prosecutor proposes to adduce are not
to be meticulously Judged.

Nor is any weight to be attached
to the probable defence of the accused. It is
not obligatory for the Judge at that stage of
the trial to consider in any detail and weigh
in a sensitive balance whether the facts, if
proved, would be incompatible with the
innocence of the accused or not. The
standard of test and judgment which is to
be finally applied before recording a
finding regarding the guilt or otherwise of
the accused is not exactly to be applied at
the stage of deciding the matter under
Section 227 or Section 228 of the Code. At
that stage the court is not to see whether
there is sufficient ground for conviction of
the accused or whether the trial is sure to
end in his conviction. Strong suspicion
against the accused, if the matter remains
in the region of suspicion, cannot take the
place of proof of his guilt at the conclusion
of the trial. But at the initial stage if there
is a strong suspicion which leads the court
to think that there is ground for presuming
that the accused has committed an offence
then it is not open to the court to say that
there is no sufficient ground for proceeding
against the accused.

13. In Union of India v. Prafulla
Kumar Samal [(1979) 3 SCC 4 : 1979 SCC
(Cri) 609 : (1979) 2 SCR 229] , Fazal Ali,
J., summarised some of the principles:
[SCR pp. 23435 : SCC p. 9 : SCC (Cri) pp.
61314, para 10] "(1) That the Judge while
considering the question of framing the
charges under Section 227 of 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 had 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 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 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."

14. In present case, the victim, who is
minor daughter of the informant/defacto
complainant has stated in her statement
under Section 161 as well as 164 Cr.P.C.
that only accused Veer Singh and Pappi
committed house trespass in the fateful
night in presence of her mother and
molested her. Even she has not attributed
any role to other accused persons namely,
Raju, Guddu and Darpan. She has not even
stated their presence on the spot. Therefore,
130 INDIAN LAW REPORTS ALLAHABAD SERIES
there is clear contradiction in stand of the
informant and that of victim regarding
presence and participation of these three
accused namely, Raju, Guddu and Darpan
in the incident. There is no reason as to
why the victim had not stated anything
regarding presence of these three persons
on date, time and place of incident.
Therefore, the complicity of these three
accused persons in the alleged incident
appears highly doubtful. Accused persons
are said to have belonged to same family
and there is allegation of enmity in the FIR
itself between informant and accused
persons. The offence was not investigated
with regard to incident dated 4.5.2019,
which allegedly happened with husband
and son of the informant and present FIR
was lodged only with regard to incident
dated 2.6.2019. Therefore, learned court
below
has
rejected
the
discharge
application
moved
by
the
accused
revisionists
without
considering
the
apparent conflict between stand of the
victim and the informant in their statements
recorded during investigation. The court
below
while
dismissing
discharge
application
has
not
considered
the
observations made by this Court while
disposing off the Application U/S 482
Cr.P.C. as mentioned above. Seeking
discharge on cogent grounds is a valuable
right of the accused. Therefore, the revision
is liable to be allowed and impugned order,
whereby the discharge application moved
by the revisionists has been dismissed, is
liable to be set aside.

15. Accordingly, present criminal
revision stands allowed and the impugned
order dated 17.5.2022, passed by learned
trial court is set aside and the matter is
remitted to trial court with direction to hear
and decide the discharge applicable moved
by the revisionists afresh in the light of
observation made in present order, after
giving opportunity of hearing to both sides
and passed a reasoned and speaking order
based on material on record, in accordance
with law.
----------
(2024) 3 ILRA 130
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 08.11.2023
BEFORE

THE HON'BLE RAM MANOHAR NARAYAN
MISHRA, J.

Criminal Revision No. 4752 of 2022

Vishnu Kumar Saini ...Revisionist
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Revisionists:
Sri Ankit Agarval

Counsel for the Opposite Parties:
G.A.

Civil Law - Essential Commodities Act,
1955 - Sections 3, 6A, 6B & 7 - Uttar
Pradesh
Scheduled
Commodities
Distribution Order, 2004 - Uttar Pradesh
Essential Commodities (Regulation of Sale
and Distribution Control) Order, 2016 -
Confiscation of Food Grains - Revisional
Jurisdiction - Absence of Control Order
Violation - The revisionist, Vishnu Kumar Saini,
challenged the order dated 29.09.2022 by the
Special Judge (E.C. Act)/Additional Sessions
Judge, Bulandshahr, dismissing his appeal
against the confiscation order dated 21.05.2022
by the Additional District Magistrate (ADM),
which seized food grains (180 quintals wheat, 8
quintals rice, 2.5 quintals flour, 12.5 quintals
chokar, and 3 quintals wheat in governmentstitched sacks) from his flour mill under Section
6A of the Essential Commodities Act, alleging
black marketing of Public Distribution System
(PDS) and Mid Day Meal grains. The revisionist
argued no violation of any control order was
specified, the seized grains were not linked to
PDS or Mid Day Meal shortages, and a final