# Rakesh Dhar Tripathi Revisionist v. State of U.P

- **Citation:** Criminal Revision No. 4033 of 2019
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-01-23
- **Case number:** Criminal Revision No. 4033 of 2019
- **Bench:** Dinesh Kumar Singh-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rakesh-dhar-tripathi-revisionist-v-state-of-u-p-46296
- **Pages:** 9

## Headnote

A.G.A., Sri Lokesh Kumar Dwivedi

A.
CriminalLaw-
Prevention
of
Corruption Act,1988-Sections 13(1)(e)
r/w
13(2)-
Code
of
Criminal
Procedure,1973-Section
397/401
-
application-rejection
of
discharge
application
by
trial
court-two
contradictory
report
of
the
Investigating agency-one report is in
favour of accused while another is
against
him-relying
upon
two
contradictory reports is the subject
matter of evidence-Prima facie there is
sufficient
evidence
against
the
accused-earlier
report
cannot
be
ignored altogether unless there is an
order to that effect of any higher
court-However revisionist was found
to have spent only 4% more than his
income while the judgement of Apex
Court provides exemption upto 10%-
trial court recorded at the stage of
framing charge, there is no necessity
to make in-depth appreciation of the
evidence-it would be appropriate to
frame charge against the accused to
reach the truth.(Para 6 to 15)

At the initial stage of framing of a charge,
the court is concerned not with proof but
with a strong suspicion that the accused
has committed an offence, which, if put to
trial, could prove him guilty. All that the
court has to see is that the material on
record and the facts would be compatible
with the innocence of the accused or not.
The final test of guilt is not to be applied at
that stage.(Para 11)

The revision is dismissed. (E-6)

List
of
Cases
Cited:-
3-5 All. Rakesh Dhar Tripathi Vs. State of U.P.
1075

## Text

1074 INDIAN LAW REPORTS ALLAHABAD SERIES
Revisionist and judgment and order dated
25.08.2018 passed by IIIrd Additional
Sessions Judge, Sitapur in Criminal Appeal
No.42 of 2018 are hereby set aside.

35. Let revisionist Jiya-Uddin be
enlarged on bail in Criminal Miscellaneous
Case No.57 of 2017 bearing Case Crime
No.153 of 2017, under Section 376 IPC,
Police Station Mishrikh, District Sitapur
subject to executing personal bond by his
father/ guardian along with two sureties in
the like amount to the satisfaction of the
court/board
concerned.
The
father/
guardian shall also furnish an undertaking
that he will keep the revisionist-applicant
under his effective control and shall make
every endeavour to ensure that the
revisionist should not commit any illegal or
immoral act and the revisionist should not
join the association with any known
criminal.

36. Before parting with the case, this
Court would
like
to
appreciate
the
assistance
rendered
by
Mr.
Amit
Chaudhary, learned counsel, who was
appointed amicus curiae in this matter vide
order dated 21.1.2020. Registry is directed
to pay Rs.20,000/- as fee to him for
rendering assistance to this Court. Senior
Registrar,
High
Court
shall
ensure
compliance of same.
----------
(2020)03-05ILR A1074
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 23.01.2020 &
11.02.2020

BEFORE

THE HON'BLE DINESH KUMAR SINGH-I, J.

Criminal Revision No. 4033 of 2019
&
Crl. Misc. Correction Application No. 2 of 2020
Rakesh Dhar Tripathi ...Revisionist
Versus
State of U.P. ...Opposite Party

Counsel for the Revisionist:
Sushma Singh, Sri Dileep Kumar, Sri
Manish Singh

Counsel for the Opposite Party:
A.G.A., Sri Lokesh Kumar Dwivedi

A.
CriminalLaw-
Prevention
of
Corruption Act,1988-Sections 13(1)(e)
r/w
13(2)-
Code
of
Criminal
Procedure,1973-Section
397/401
-
application-rejection
of
discharge
application
by
trial
court-two
contradictory
report
of
the
Investigating agency-one report is in
favour of accused while another is
against
him-relying
upon
two
contradictory reports is the subject
matter of evidence-Prima facie there is
sufficient
evidence
against
the
accused-earlier
report
cannot
be
ignored altogether unless there is an
order to that effect of any higher
court-However revisionist was found
to have spent only 4% more than his
income while the judgement of Apex
Court provides exemption upto 10%-
trial court recorded at the stage of
framing charge, there is no necessity
to make in-depth appreciation of the
evidence-it would be appropriate to
frame charge against the accused to
reach the truth.(Para 6 to 15)

At the initial stage of framing of a charge,
the court is concerned not with proof but
with a strong suspicion that the accused
has committed an offence, which, if put to
trial, could prove him guilty. All that the
court has to see is that the material on
record and the facts would be compatible
with the innocence of the accused or not.
The final test of guilt is not to be applied at
that stage.(Para 11)

The revision is dismissed. (E-6)

List
of
Cases
Cited:-
3-5 All. Rakesh Dhar Tripathi Vs. State of U.P.
1075
1. Vinay Tyagi Vs. Irshad Ali,(2013) 5 SCC
762

2. Mauvin Godinho Vs. St. Of Goa, (2018) 3 SCC
358

3. Rakesh Mishra Vs. St. Of M.P. (2015) 13 SCC
8

4. Amit Kapoor Vs. Ram Chandra,(2012) 9 SCC
460

5. Krishnanand Agnihotri Vs. St. Of M.P.,(1976)
Law Suit SC 504

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

1. Heard Sri Dileep Kumar, learned
Senior Advocate assisted by Sri Manish
Singh, learned counsel for the revisionist,
Sri Attrey Dutt Mishra, learned A.G.A. and
perused the record.

2. The instant revision has been
preferred against the judgment and order
dated 03.08.2019 passed by Special Court
(MP/MLA), Allahabad of 2019 (State vs.
Rakesh Dhar Tripathi), arising out of Case
Crime No. 107 of 2013, under section 13
(1) (e) read with section 13 (2) of the
Prevention of Corruption Act, Police
Station Mutthiganj, District Allahabad
whereby discharge application of the
revisionist has been rejected.

3. Submission made by the learned
counsel for the revisionist is that it is
apparent that the evidence collected by the
Investigating Officer has not been taken
into consideration while rejecting the
discharge application. No reason has been
assigned to form an opinion that a case
existed against the revisionist to frame
charge. At the stage of considering the
discharge application, sufficient material
for framing charge has to be there on
record and not simply a prima-facie case.
The discharge application has been rejected
illegally on the ground that the sanction for
prosecution has been accorded and that the
court has already taken cognizance on
police report/charge sheet submitted under
section 173 (2) Cr.P.C. The trial court has
completely ignored the supplementary
police report filed under section 173 (8)
Cr.P.C. with the permission of the Court,
which has been filed after approval of the
State Government. The supplementary
police report completely exonerated the
revisionist
from
accusation
that
he
possessed disproportionate assets while
holding post of Cabinet Minister of Govt.
of U.P. during the check period. The nonconsideration of the police report is against
the ratio of the judgment of Hon'ble
Supreme Court in Vinay Tyagi vs. Irshad
Ali. The evidence which has been collected
by the prosecution does not show that any
offence has been committed by the
revisionist. It is settled position of law that
at the stage of consideration of discharge
application, the Court ought to proceed
with an assumption that materials brought
on record by the prosecution are true and
therefore in the present case, it is observed
that there is no evidence found against the
accused-revisionist regarding commission
of offence. It is further mentioned that
reasons are bound to be recorded while
passing the order unless it is specifically
excluded by the Legislation and in the
present case, the trial court is not found to
record reason for rejecting the discharge
application. The learned Special Judge has
recorded in the impugned order that there is
presumption of commission of offence
against the accused-revisionist without
looking to the fact that such presumption at
the stage of consideration of discharge can
only be made on the basis of evidence
collected during the investigation.
1076 INDIAN LAW REPORTS ALLAHABAD SERIES

4. It would be pertinent to mention
here the grounds which were taken by the
revisionist before the court below seeking
discharge. In the said application dated
04.02.2017 it has been mentioned that there
was no dispute with respect to the income
and expenditure of the revisionist rather the
sole dispute was of the fact that the
documentary evidence which was provided
from the side of the revisionist in order to
show his income, were ignored due to
several technical reasons which was
improper. How-so-ever strong doubt may
exist but the doubt will never take place of
proof. In case diary at page 99-K/224 a
mention has been made of final enquiry
(DFR) and on the basis of those documents,
it was apparent that an amount of
Rs.50,00,000/- was taken as debt by the
revisionist but the same was not added in
income only because while holding post of
Cabinet Minister in U.P. Govt., its
information was not given to the Vidhan
Sabha Adhyaksh nor any mention was
made of the same in affidavit filed at the
time of election, while the expenditure of
Rs.40,00,000/- has been added under the
head of expenditure. It is against the
principle of natural justice as well as
provisions of section 13 (1) (e) of the
Prevention of Corruption Act because the
transaction, which has taken place, was
through account using cheque. Noninclusion of the said amount in the head of
income of the revisionist was absolutely
erroneous which needed to be added to his
income.
Similarly,
the
wife
of
the
revisionist Smt. Pramila Tripathi had taken
debt on various dates between the period
2005 to 2010 through account payee
cheque to the tune of Rs.67,150,000/-
which was to be returned after sale of the
property but the said amount could not be
returned
because
of
litigation,
the
verification of those income is apparent
from the paper no. 95 Ka/235 of the case
diary and also a mention is made about it in
the final enquiry report at page-45. Smt.
Pramila Tripathi has been filing income tax
return and she admits ownership of the said
income and lives jointly with her husband.
The said amount ought to have been added
in the income of the accused-revisionist,
which has not been done. Non-giving of
information with respect to the said income
to the Vidhan Sabha Adhyaksha may be
violation of the rules, in respect to which
action may be taken under appropriate
provision, but the said income cannot be
ignored
from
being
taken
into
consideration. Therefore, if both the above
mentioned incomes be added to the total
income of the revisionist that would stand
at Rs.1,17,15,000/-. Further, it is mentioned
that the marriage of the daughter of the
revisionist namely, Pragya Tripathi was
performed on 22.02.2008 in which the
expenditure incurred has been shown by
the Investigating Officer on the basis of
conjecture but the same has not been added
under the head of expenditure as in usual in
every marriage, gifts are given and for that
the register pertaining to gift received was
also checked by the Investigating Officer,
which contained lot of amount given by
various persons, when same is added, it
came to Rs.11,00,850/- but the said amount
has not been added in the income of the
revisionist. Further, it is mentioned that the
Investigating Officer has mentioned in
evidence that Smt. Pramila Tripathi wife of
the accused-revisionist had given her house
No.2-A, Kapoor Road, Allahabad on rent to
one Pradeep Srivastava on 1.10.2009 and
House No.2, Block ''C', Tulsiani Enclave,
Allahabad was given to Ratan Singh from
16.12.2009 and Plot No.1/67, Ruchi
Khand, Gomti Nagar, Lucknow was given
on rent to Mohd. Shami since 01.01.2003.
On the basis of documentary evidence and
3-5 All. Rakesh Dhar Tripathi Vs. State of U.P.
1077
the agreement executed, during the check
period, total amount of rent received stood
at Rs.1,69,200.00 + Rs.3,54,888.00 +
Rs.1,94,400.00,
i.e
total
Rs.7,18,488/-
while on the basis of oral evidence of the
owner and the tenants of the said property,
the said amount comes to Rs.7,66,400/-.
This amount has not been added in the
income of the revisionist and has been
ignored by saying that about this no
information was given which has been
mentioned in Enquiry report (PDR) at
page-40 of the case diary, paper no.
95K/191. Further, it is mentioned that the
daughter of the revisionist namely, Pallavi
Tripathi had paid income tax in the year
2008-09 to the tune of Rs.4460/-, in the
year 2009-2010 Rs.32600/- and in the year
2010-11 to the tune of Rs.1,52,700/ and in
the same year 2010-11 she also paid
Rs.9089/- therefore, total amount paid as
income tax was Rs.1,89,509/-, the said
amount has been shown in the expenditure
but the amount in respect of which the said
income tax was paid i.e. Rs.5,70,350/-, was
not added in the income of the revisionist,
which ought to have been done. Further, it
is mentioned that if the entire amount
mentioned in the above three heads, which
comes to Rs.24,37,600/- which if be added
to the amount given in paragraph no. 6 i.e.
Rs.1,17,15,000/-, the total amount/income
would be Rs.1,41,52,600/-, which is more
than
the
disproportionate
expenditure
shown of Rs.1,35,38,351.60. Thus, in
comparison to the income, the expenditure
is not on the higher side and therefore, no
offence under section 13 (1) (e) and 13 (2)
of P.C. Act is made out prima-facie against
the revisionist, therefore, the accusedrevisionist deserves to be discharged.

5. The said application was moved
before the trial court, whereon the trial
court has passed the impugned dated
03.08.2019 mentioning therein that after
perusal of the file, it transpired that the
Investigating Officer had submitted chargesheet against the accused-revisionist under
section 13 (1) (e) and 13 (2) of the P.C. Act
on which cognizance was taken by the
Court on 12.4.2016. It also transpires that
as per prosecution version, against the
revisionist, an FIR was got registered by
Ram
Subhag
Ram,
Inspector,
U.P.
Vigilance Establishment, Allahabad. In
investigation, it was found that the
revisionist while holding the post of
Education Minister in State of U.P. had
total income from all known sources to the
tune of Rs.49,49,928/- and during the same
period, he had purchased properties and
spent
money
to
the
tune
of
Rs.02,67,08,605/-. Thus during the check
period,
the
revisionist
had
spent
Rs.2,17,58,677/- more than of his known
sources
of
income,
no
plausible
explanation
could
be
given
by
the
revisionist in respect of the same and hence
he was prima-facie found guilty of owning
assets disproportionate to his known
sources of his income. On the basis of the
said fact, a case under section 13 (1) e) and
13 (2) of P.C. Act was registered at P.S.
Mutthiganj
on
18.6.2013
and
the
investigation thereof was assigned to
Vigilance Establishment, Varanasi, which
was conducted by Inspector Bharat Ratna
Varshney, who collected evidence in this
matter. After retirement of Sri Varshney on
03.09.2015,
further
investigation
was
conducted by Inspector Prakash Singh and
having found sufficient evidence against
the revisionist, he has submitted chargesheet against him on 14.3.2016 under
section 13 (1) (e) and 13 (2) of P.C. Act
which was forwarded to the Court by the
then S.P. Sri Ram Pal Gautam of Vigilance
Establishment, whereon the then Presiding
Officer/Special
Judge
(Prevention
of
1078 INDIAN LAW REPORTS ALLAHABAD SERIES
Corruption Act), Varanasi took cognizance
on 12.4.2016 and issued summons against
the accused on 14.11.2016. The revisionist
appeared before the Court and moved bail
application which was rejected and was
sent to jail. Thereafter, the revisionist
approached High Court by filing Bail
Application No.42237 of 2016 which was
allowed
vide
order
dated
18.1.2017
conditionally and was released from jail on
19.1.2017.

6. Further, it is mentioned in the said
order that in the meantime after cognizance
having been taken on the charge-sheet and
during hearing of the matter, a report was
sent to the Court at the time when
discharge/charge stage was there in the
case by Hawaldar Singh Yadav, Inspector,
Vigilance Establishment to the effect that a
representation was moved by the revisionist
before the Government on 30.08.2017
praying therein that further investigation
may be got done on several points, based
on that, Vigilance Department IV of State
of U.P. passed an order on 7.5.2018 for
further investigation to be conducted in this
matter under section 173 (8) Cr.P.C., in
reference to which a prayer was made
before the Special Judge (Prevention of
Corruption Act) to grant permission. By
further investigation, during the check
period (May 2007 to 31.12.2011) property
earned worth Rs.1,11,94,402/- and the
expenditure worth Rs.62,76,174/- thus total
expenditure during check period was found
to be 1,74,70,576/- and during this period
income was found to be Rs.1,68,23,615
which was Rs.6,46,961/- more than the
income, which in terms of percentage is
3.845% i.e 4% more while as per Hon'ble
Supreme Court there was exemption to the
extent of 10% and hence offence under
section 13 (1) (e) and 13 (2) of P.C. Act
would not be made out. The said report was
forwarded
by
S.P.,
U.P.
Vigilance
Department, Shailendra Kumar Yadav on
30.3.2019. Further it is recorded in the
impugned order that it is apparent from the
said report that by supplementary report
filed from the side of prosecution, the
revisionist was found to have spent only
Rs.6,46,961/- more than his income which
was approximately 4% more and hence in
view of the judgment of Hon'ble Supreme
Court which provided exemption upto
10%, no offence would be found to be
made out against the revisionist. The trial
court has recorded that at the stage of
framing charge, there was no necessity to
make any in-depth appreciation of the
evidence provided and only prima-facie
evidence is to be seen as to whether the
same was sufficient for framing of charge
or not. Large number of citations have been
relied upon by the trial court in the
impugned judgment and has opined that he
is of the view that there was sufficient
evidence against the accused-revisionist to
frame charge under section 13 (1) (e) and
13 (2) of the P.C. Act and accordingly
dismissed the discharge application of the
revisionist.

7. I would like to rely upon the
judgment rendered in Vinay Tyagi vs.
Irshad Ali, (2013) 5 SCC 762, which too
has been relied upon by the learned counsel
for the revisionist. There were two
questions framed for consideration in this
case which are as follows:-

Question 1

1.1. Whether in exercise of its
powers under Section 173 of the Code of
Criminal Procedure, 1973 (for short "the
Code"), the trial court has the jurisdiction
to ignore any one of the reports, where
there are two reports by the same or
3-5 All. Rakesh Dhar Tripathi Vs. State of U.P.
1079
different
investigating
agencies
in
furtherance of the orders of a court? If so,
to what effect?

Question 2

1.2. Whether the Central Bureau
of Investigation (for short "CBI") is
empowered
to
conduct
"fresh"/"reinvestigation"
when
the
cognizance has already been taken by the
court of competent jurisdiction on the basis
of a police report under Section 173 of the
Code?

8. Answer to the above questions has
been given in paragraph nos. 53 and 54 of
the said judgment, which are as follows:-

"53. The
court
of
competent
jurisdiction is duty-bound to consider all
reports, entire records and documents
submitted therewith by the investigating
agency as its report in terms of Section
173(2) of the Code. This rule is subject to
only the following exceptions:

(a) Where a specific order has
been passed by the learned Magistrate at
the request of the prosecution limited to
exclude any document or statement or any
part thereof;

(b) Where an order is passed by
the higher courts in exercise of its
extraordinary
or
inherent
jurisdiction
directing that any of the reports i.e.
primary report, supplementary report or
the
report
submitted
on
"fresh
investigation" or "reinvestigation" or any
part of it be excluded, struck off the court
record and be treated as non est."

"54. No investigating agency is
empowered to conduct a "fresh", "de novo"
or "reinvestigation" in relation to the
offence for which it has already filed a
report in terms of Section 173(2) of the
Code. It is only upon the orders of the
higher courts empowered to pass such
orders that aforesaid investigation can be
conducted, in which event the higher courts
will have to pass a specific order with
regard to the fate of the investigation
already conducted and the report so filed
before the court of the learned Magistrate.

9. It is apparent from the above
position of law that in case there come on
record several reports from the side of
prosecution by way of supplementary
report under section 173 (8) Cr.P.C., all
these reports need to be taken into
consideration by the trial court at the time
of trial which include framing of charge. It
is also apparent that earlier report filed
from the side of prosecution, which holds
the accused prima-facie guilty, cannot be
ignored unless further investigation has
been directed to be made by higher Court
such as High Court and Hon'ble Supreme
Court to that effect. In the case at hand, it is
apparent that further investigation had been
conducted at the instance of the accusedrevisionist
and
after
such
further
investigation made into the matter, an
exoneration report has been filed in favour
of the accused from the side of the
prosecution, which has been ignored by the
trial court and has come to the conclusion
that there is sufficient evidence on record to
frame the charge against the accusedrevisionist under the above-mentioned
sections. I do not find infirmity in the said
order particularly keeping in view that in
the initial report submitted from the side of
the prosecution incriminating material was
gathered against the accused-revisionist but
in subsequent supplementary report it is
being submitted from the side of the
prosecution that there was some calculation
1080 INDIAN LAW REPORTS ALLAHABAD SERIES
mistake
as
several
incomes
and
expenditures were omitted from being
taken into consideration while submitting
the first report. But keeping in view the
position of law that the earlier report cannot
be ignored altogether unless there is an
order to that effect of any higher Court
such as High Court or Hon'ble Supreme
Court, therefore, the trial court appears to
have been guided by the principle that there
is one report on record in favour of the
accused while there is another report also
going against him, in such a situation,
which of the two reports should be relied
upon is the subject matter of evidence and
therefore, holding that there is sufficient
evidence prima-facie against the accusedrevisionist, does not appears to be a wrong
view. Here there is also not the case that
prosecution has obtained any order to get
the first report to be over looked/excluded.

10. I would also like to cite case laws
of Hon'ble Supreme Court with respect to
the position of law relating to framing of
charge/discharge, which are as follows:

"1. Mauvin Godinho vs. State
of Goa, (2018) 3 SCC 358, Paragraph no.
12 of which is as follows:

12. At the outset it would be
pertinent to note the law concerning the
framing of charges and the standard which
courts must apply while framing charges. It
is well settled that a court while framing
charges under Section 227 of the Code of
Criminal Procedure should apply the prima
facie standard. Although the application of
this standard depends on facts and
circumstance in each case, a prima facie
case against the accused is said to be made
out when the probative value of the
evidence on all the essential elements in the
charge taken as a whole is such that it is
sufficient to induce the court to believe in
the existence of the facts pertaining to such
essential elements or to consider its
existence so probable that a prudent man
ought to act upon the supposition that those
facts existed or did happen. 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. [Refer Sajjan Kumar v. CBI[Sajjan
Kumar v. CBI, (2010) 9 SCC 368 : (2010) 3
SCC
(Cri)
1371]
, State v. A.
Arun
Kumar [Statev. A. Arun Kumar, (2015) 2
SCC 417 : (2015) 2 SCC (Cri) 96 : (2015)
1
SCC
(L&S)
505]
and Statev. S.
Selvi [State v. S. Selvi, (2018) 4 SCC 641 :
(2018) 1 Scale 5] .]

"2. State of M.P. vs. Rakesh
Mishra, (2015) 13 SCC 8, Paragraph no. 7
of which is as follows:

7. The major argument advanced
by the State of Madhya Pradesh before us
has been that the High Court traversed
beyond the permissible limit while deciding
the legality of order framing charges, being
a pre-trial stage. Various authorities have
been cited before us to prove that point.
However, it would suffice to say that the
law on this point is crystal clear that only
charge-sheet along with the accompanying
material is to be considered at the stage of
framing of charges, so as to satisfy whether
a prima facie case is made out. It has to be
the subjective satisfaction of the court
framing charges. In our opinion, the High
Court has only examined the material
before it against the prevailing law to
reach its conclusions. Thus, the impugned
judgment may not be assailable on this
ground."

11. In the case of Amit Kapoor vs.
Ram Chandra, (2012) 9 SCC 460,
3-5 All. Rakesh Dhar Tripathi Vs. State of U.P.
1081
Supreme Court has held that even in the
case of strong doubt, charge can be framed.
Para no. 19 of the said judgment is quoted
as under:

"At the initial stage of framing of
a charge, the court is concerned not with
proof but with a strong suspicion that the
accused has committed an offence, which,
if put to trial, could prove him guilty. All
that the court has to see is that the
material on record and the facts would be
compatible with the innocence of the
accused or not. The final test of guilt is not
to be applied at that stage."

12. In view of above position of law,
it is apparent that if there is even serious
doubt about the accused being involved in
commission of offence that would be
sufficient to frame charge against the
accused. In the present case, there being
two reports on record one exonerating the
accused while other being inculpatory
report against him, makes it a doubtful case
which would certainly require a charge to
be framed against the accused-revisionist.

13. From the side of the learned
counsel for the revisionist reliance has been
placed on the judgment of Hon'ble
Supreme Court rendered in Krishnanand
Agnihotri vs. State of Madhya Pradesh,
1976 LawSuit (SC) 504, paragraph no. 33
of which is as follows:

"It will, therefore, be seen that as
against an aggregate surplus income of Rs.
44,383.59 which was available to the
appellant during the period in question, the
appellant possessed total assets worth
Rs.55,732.25, the assets possessed by the
appellant were thus in excess of he surplus
income available to him, but since the
excess is comparatively small, it is less
than ten per cent of the total income of
Rs.1,27,715.43, we do not think it would be
right to hold that the assets found in the
possession
of
the
appellant
were
disproportionate to this known sources of
income so as to justify the raising of the
presumption under sub-section (3) of
section 5. We are of the view that on the
facts of the present case the High Court as
well as the Special Judge were in error in
raising the presumption contained in subsection (3) of section 5 and convicting the
appellant
on
the
basis
of
such
presumption."

14. By relying upon the above
citation, much stress has been laid by
the learned counsel for the revisionist
that since difference of income and
expenditure has been bridged to a great
extent and the same has come to be
below 4% while as per the law laiddown in the above mentioned case the
difference of upto 10% would be
condonable and in view of that there
was no reason for the accused to face
trial. I do not agree with the said
argument because the judgment which
has been relied upon has been passed in
appeal after full consideration of the
evidence which had been brought on
record while in the present case, it is
elementary stage of the case when
charges are yet to be framed. Moreover,
I am of the view that there being two
contradictory
reports
of
the
Investigating
agency,
it
would
be
appropriate to frame charge against the
accused revisionist in this case to reach
the truth.

15. Accordingly, I do not find any
infirmity in the impugned judgment.
This revision deserves to be dismissed
and is accordingly dismissed.
1082 INDIAN LAW REPORTS ALLAHABAD SERIES
----------
(2020)03-05ILR A1082
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 27.01.2020

BEFORE

THE HON'BLE DINESH PATHAK, J.

Criminal Revision No. 4683 of 2019

Sushil Kumar Dwivedi ...Revisionist
Versus
State of U.P. ...Opposite Party

Counsel for the Revisionist:
Sri Indra Kumar Chaturvedi (Senior Adv.),
Sri Amar Nath Tripathi, Sri Ram Milan
Dwivedi

Counsel for the Opposite Party:
A.G.A.

A.
Criminal
law-Code
of
Criminal
Procedure,1973-Section 397/401 & Indian
Penal Code,1860-Sections 286, 386, 392, 504,
411-application-release of firearms kept in
police custody during the trial-provision of
section
451
CrPc
attracted-court
below
illegally averted the provision of section 451
Crpc-retention of seized property during trial
or inquiry serves no purpose-identity of
firearms and being licensee, entitlement of
revisionist is not under cloud.
 (Para 10 to 30)

B. Section 457 Cr.P.C. is applied in those
matters where seizure of the property by
police officer is reported to Magistrate but
such property is not produced before the
criminal court during an inquiry or trial,
whereas u/s 451 Cr.P.C. seized property is
produced before any criminal court during an
inquiry or trial and question of custody of
property pending decision of inquiry or trial
should be decided under this section.(Para 20)

The revision is allowed. (E-6)

List of Cases Cited:-
1. Sunder Bhai Ambala Desai Vs. St. Of Guj. AIR
(2003) SC 638

2. Smt. Basavva Kom Dyamangouda Patil Vs. St. Of
Mysore & ors. (1977) 4 SCC 358

(Delivered by Hon'ble Dinesh Pathak, J.)

1. Heard Sri I.K. Chaturvedi, learned
Senior Counsel assisted by Sri Amar Nath
Tripathi, holding brief of Sri Ram Milan
Dwivedi, learned counsel for the revisionist and
learned A.G.A for the State.

2. Rejoinder affidavit filed today by the
learned counsel for the revisionist, is taken on
record.

3. The instant criminal revision is
preferred
challenging
the
order
dated
18.11.2019 passed by learned Additional
Sessions Judge/Special Judge, (D.A.A.), Banda
in Criminal Misc. Case No. 128 of 2019 (State
Vs. Pankaj Gautam), rejecting the release
application dated 27.08.2019 under Sections
451 and 457 Cr.P.C filed by revisionist for
releasing his firearm Rifle No. 10A-B 05878315 N.P. Bore and three life cartridges and
Pistol No. R.P. 213879-32 Bore and four life
cartridges, in Sessions Trial No. 70 of 2019,
under sections 286/386/392/504/411 I.P.C,
Police Station Atarra, District Banda.

4. The factual matrix of the case
shows that on 06.06.2019 Sheelman
(informant) son of Ayodhya Prasad, driver
of truck no. U.P.-44-AT 3202, was driving
truck loaded with sand from Lahotera Ghat
P.S. Naraini to Sultanpur and, near the
Atarra Galla Mandi, the tyre of truck was
busted/flat tyred. While cleaner of truck,
Ravi, was replacing the busted tyre, at
about 10:30 p.m. one white Maruti Car
bearing registration no. U.P.-78-B 1059
reached there and two persons (accused)
stepped out from the car, one of them had a