# Rakesh Kumar Pandey & Anr. Revisionists v. State of U.P. & Anr

- **Citation:** (2022) 2 ILRA 155
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-02-15
- **Case number:** Criminal Revision No. 1116 of 2019
- **Bench:** Mrs. Sangeeta Chandra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rakesh-kumar-pandey-anr-revisionists-v-state-of-u-p-anr-48098
- **Pages:** 18

## Headnote

Govt.
Advocate,
Anil
Kumar
Sharma,
Purnendu Chakravarty

(A)
Criminal
Law-
Code
of
Criminal
Procedure,
1973-
Section
397/401-
Section 227, 228 - Framing of Charge -
The revisional jurisdiction, particularly
while dealing with framing of charge, has
to be even more limited. Framing of a
156 INDIAN LAW REPORTS ALLAHABAD SERIES
charge is an exercise of jurisdiction by the
trial court in terms of Section 228 of the
Code, unless the accused is discharged
under Section 227 of the Code - The Court
is required to consider the ''record of the
case' and documents submitted there with
and, after hearing the parties, either
discharge the accused or where it appears
to the Court and in its opinion, there is
ground for presuming that the accused
has committed an offence, it shall frame
the charge - A detailed examination of
such evidence and documents was not
necessary
as
it
would
amount
to
consideration of evidence. At the stage of
framing of charges the trial court should
not conduct a mini trial. Only when the
trial court finds from an examination of
the
Case
Diary
and
other
evidence
collected by the Investigating Officer that
there was no material at all to proceed
against
the
accused,
can
discharge
application be allowed- Once the facts and
ingredients of the Section exists, then the
Court would be right in presuming that
there is ground to proceed against the
accused and frame the charge accordingly.
This presumption is not a presumption of
law as such. The satisfaction of the Court
in relation to the existence of constituents
of an offence and the facts leading to that
offence is a sine qua non for the exercise
of such jurisdiction.

At the stage of framing the Charge, the Court
has only to see as to whether a prima facie
offence is made out against the accused from
the records of the case and where the
ingredients making out the offence are made
out or where there is a presumption on the
basis of evidence collected of culpability of the
accused in the offence committed then the
Charge will be framed, however the trial court
shall not conduct a detailed examination of the
material relied upon by the prosecution- Where
absolutely no material is found making out an
offence against the accused, then the trial court
would be justified in discharging the accused.

(B)
Criminal
Law-
Code
of Criminal
Procedure,
1973-
Section
397/401-
Section 227, 228 - Learned trial court has
recorded that on the basis of evidence
collected by the Investigating Officer
prima facie charges as had been proposed
by the prosecution were made out-The
complainant himself had later on given a
statement that no incident had actually
occurred, needs to be looked into only at
the time of trial and should not be seen at
the time of consideration of discharge
application-The
scope
under
Criminal
Revision being restricted to correct an
apparent error in law or a perversity in
fact, this Court finds no good ground to
interfere in this Criminal Revision.

Disputed questions of fact cannot be examined
in a criminal revision as the same have to be
adjudicated during the course of trail by leading
evidence.

Criminal Revision Rejected. (E-3) (Para 27,
35, 42, 43)

Judgements/ Case law relied upon:-

## Text

_Characters 0–39,912 of 63,116. This is a partial read: ask again with offset=39912 for what follows._

2 All. Rakesh Kumar Pandey & Anr. Vs. State of U.P. & Anr.
155
extenuating
circumstances
by
giving
reasons therefor. While reducing the
sentence, the High Court has merely stated
that it was "just and expedient" to do so.
These are not the reasons contemplated by
the proviso to Section 376(1) IPC. Reasons
must contain extenuating circumstances
which prompted the High Court to reduce
the
sentence
below
the
prescribed
minimum.
Sentence
bargaining
is
impermissible in a serious offence like
rape. Besides, at the cost of repetition, it
must be stated that such a course would be
against the mandate of Section 376(1) IPC.

13.
In
view
of
the
above
discussion, we hold that the impugned
judgment [Janak Singh v. State of Haryana,
Criminal Appeal No. 648-SB of 2000,
decided on 2-8-2010 (P&H)] is legally
unsustainable and is liable to be set aside
and the matter deserves to be remanded to
the High Court for fresh disposal of the
appeals filed by the respondents."

8. Recently in Criminal Appeal No.
1385-1386 of 2021, Gurjant Singh Vs. The
State of Punjab, Hon'ble Apex Court has
again reiterated the aforesaid principle.

9. Accordingly it is held that Criminal
Appeal cannot be dismissed on the ground
of not pressed.

10. In view of the above law of Hon'ble
Apex Court in State of Haryana v. Janak
Singh (Supra), order passed by Additional
Sessions Judge (Rape Cases & POCSO Act)
Sambhal at Chandausi dated 03.11.2021
dismissing the appeal on the ground of not
pressed by the learned counsel for the
appellants deserves to be set-aside and
Revision deserves to be allowed.

11. Accordingly, Revision is allowed.
Impugned order dated 03.11.2021 passed
by Additional Sessions Judge (Rape Cases
& POCSO Act) Sambhal at Chandausi is
set-aside.

12. Matter is remitted to Additional
Sessions Judge (Rape Cases & POCSO
Act) Sambhal at Chandausi to dispose of
the matter in accordance with provisions of
law after providing adequate opportunity of
hearing to the parties.

13. It is also directed that Additional
Sessions Judge (Rape Cases & POCSO
Act) Sambhal at Chandausi shall dispose of
the appeal within a period of three months
from the date of receipt of certified copy of
this order as revisionist is already in jail
and matter relates to Section 376 I.P.C.
----------
(2022)02ILR A155
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 15.02.2022

BEFORE

THE HON'BLE MRS. SANGEETA CHANDRA, J.

Criminal Revision No. 1116 of 2019

Rakesh Kumar Pandey & Anr.
 ...Revisionists
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionists:
Arun Sinha, Siddhartha Sinha

Counsel for the Opposite Parties:
Govt.
Advocate,
Anil
Kumar
Sharma,
Purnendu Chakravarty

(A)
Criminal
Law-
Code
of
Criminal
Procedure,
1973-
Section
397/401-
Section 227, 228 - Framing of Charge -
The revisional jurisdiction, particularly
while dealing with framing of charge, has
to be even more limited. Framing of a
156 INDIAN LAW REPORTS ALLAHABAD SERIES
charge is an exercise of jurisdiction by the
trial court in terms of Section 228 of the
Code, unless the accused is discharged
under Section 227 of the Code - The Court
is required to consider the ''record of the
case' and documents submitted there with
and, after hearing the parties, either
discharge the accused or where it appears
to the Court and in its opinion, there is
ground for presuming that the accused
has committed an offence, it shall frame
the charge - A detailed examination of
such evidence and documents was not
necessary
as
it
would
amount
to
consideration of evidence. At the stage of
framing of charges the trial court should
not conduct a mini trial. Only when the
trial court finds from an examination of
the
Case
Diary
and
other
evidence
collected by the Investigating Officer that
there was no material at all to proceed
against
the
accused,
can
discharge
application be allowed- Once the facts and
ingredients of the Section exists, then the
Court would be right in presuming that
there is ground to proceed against the
accused and frame the charge accordingly.
This presumption is not a presumption of
law as such. The satisfaction of the Court
in relation to the existence of constituents
of an offence and the facts leading to that
offence is a sine qua non for the exercise
of such jurisdiction.

At the stage of framing the Charge, the Court
has only to see as to whether a prima facie
offence is made out against the accused from
the records of the case and where the
ingredients making out the offence are made
out or where there is a presumption on the
basis of evidence collected of culpability of the
accused in the offence committed then the
Charge will be framed, however the trial court
shall not conduct a detailed examination of the
material relied upon by the prosecution- Where
absolutely no material is found making out an
offence against the accused, then the trial court
would be justified in discharging the accused.

(B)
Criminal
Law-
Code
of Criminal
Procedure,
1973-
Section
397/401-
Section 227, 228 - Learned trial court has
recorded that on the basis of evidence
collected by the Investigating Officer
prima facie charges as had been proposed
by the prosecution were made out-The
complainant himself had later on given a
statement that no incident had actually
occurred, needs to be looked into only at
the time of trial and should not be seen at
the time of consideration of discharge
application-The
scope
under
Criminal
Revision being restricted to correct an
apparent error in law or a perversity in
fact, this Court finds no good ground to
interfere in this Criminal Revision.

Disputed questions of fact cannot be examined
in a criminal revision as the same have to be
adjudicated during the course of trail by leading
evidence.

Criminal Revision Rejected. (E-3) (Para 27,
35, 42, 43)

Judgements/ Case law relied upon:-

1. Amit Kapoor Vs Ramesh Chander & ors 2012
9 SCC 460

2. Sanjay Kumar Rai Vs St. of U.P & Anr. In CrL.
Appeal no. 472 of 2021 decided on 07.05.2021

3. Sanghi Brothers (Indore) Pvt. Ltd. Vs Sanjay
Choudhary & ors, AIR 2009 SC 9

4. St. of Kar. Vs M.R. Hiremath, 2019 (7) SCC 515

5. Sreelekha Senthil Kumar Vs C.B.I. 2019 (7)
SCC 82

6. Dilawar Balu Kurane Vs St. of Maha. 2002 (2)
SCC 135

7. St. of Raj. Vs Ashok Kumar Kashyap 2021
SCC Online SC 314

8. S.L.P. (Crl.) No.9552 of 2021: Hazrat Deen Vs
St. of U.P.; decided on 06.01.2022

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

1. Heard Sri Arun Sinha, learned
counsel for the revisionist, Sri Purnedu
2 All. Rakesh Kumar Pandey & Anr. Vs. State of U.P. & Anr.
157
Chakravarty, learned counsel for the Victim
and Sri Anil Kumar Sharma, learned
counsel for the opposite party No.2.

2. This Criminal Revision has been
filed praying for quashing of the order
dated 25.07.2019 passed by the Additional
Sessions Judge, Court no. 11 Lucknow in
Sessions Trial No.4 of 2018 arising out of
Case Crime No. 430 of 2016 under
Sections 147, 148, 332, 307, 427, 504, 506,
353 I.P.C. registered at P.S. Hazrat Ganj
Lucknow. By the order impugned, the
Additional Sessions Judge has rejected the
discharge
application
moved
by
the
Revisionists. It has been stated in the
affidavit filed in support of the Criminal
Revision that F.I.R. was lodged against the
Revisionists
on
13.07.2016
falsely
implicating them. It was alleged in the
F.I.R. that the revisionist no.1 who is a
Consolidation Officer, came to the office of
Dr.
Hariom,
the
then
Consolidation
Commissioner
on
13.07.2016
in
the
afternoon at around 3:15 P.M. The purpose
of visit as disclosed by the Revisionist no. 1
was to get his transfer from District Amethi
to District Ballia cancelled. The slip was
sent to the Consolidation Commissioner
through a peon named Chandan Singh.
When
the
Revisionists
met
the
Commissioner, Revisionist no. 1 started
putting pressure on him to get his transfer
cancelled
and
on
refusal
of
the
Commissioner, he became very angry and
suddenly started abusing the Consolidation
Commissioner and his son called in four
other persons inside the Commissioners'
office and they all manhandled him and
beat him up. The Revisionists also tried to
strangulate
the
Commissioner.
The
Revisionist no.2 broke a glass kept on the
table and attacked the Commissioner with
it, with the intention to kill him but by that
time, the office peons, Chandan Singh, Raj
Kumar and Ram Kishun came in and saved
the Commissioner from the next blow.
Thereafter, both the Revisionists ran away.

3. An F.I.R. was lodged by the peon
Raj Kumar Singh arrayed as respondent
no.2. The police recorded the statement of
the complainant and three other employees
of
the
office
of
the
Consolidation
Commissioner under Section 161 Cr.P.C.
They also recorded the statement of Dr
Hari Om, the victim. A biased investigation
was carried out by the Investigation
Officer. Dr Hariom got his medical report
fabricated. After registration of F.I.R. the
revisionist no.1 filed a writ petition praying
for quashing of the F.I.R. . This Court was
pleased to stay the arrest of the revisionist
no.1 till the filing of the charge sheet.
During hearing of such petition for F.I.R.
quashing, the Court asked the Circle
Officer/Investigation Officer to indicate by
his personal affidavit as to how offence
under Section 307 was made out. Before
filing such affidavit, chargesheet was filed
as a result the petition itself became
infructuous and was dismissed as such on
30.08.2016.

4. It has been stated by the
Revisionists that Dr Hariom is an I.A.S.
officer and an influential person and under
his influence the services of the petitioner
were also terminated within one and a half
months from the date of incident although
such termination and suspension order has
been set aside by this Court on 20.02.2019
as having been passed in violation of
principles of natural justice. It is stated that
Revisionists have been falsely implicated.
The opposite party no.2 has filed an
affidavit before the trial Court deposing
there in that entire case set up by the victim
as mentioned in his F.I.R. is false and as a
result of pressure being put upon him by
158 INDIAN LAW REPORTS ALLAHABAD SERIES
the then Consolidation Commissioner. It
has further been stated that in fact it was
the revisionist no.1 who had been assaulted
by Dr. Hariom, Raj Kumar, Chandan Singh
and Ramkishun the revisionist no.1 filed a
complaint against them to the Police but no
action has been taken thereon.

5. It has been further stated that
revisionist no. 2 was not involved in the
case as his name is ''Mohit Pandey' and not
''Dinesh Pandey'. Several instances of
victimisation of the Revisionists at the
behest of the victim Dr Hariom have been
mentioned in the Revision. It has also been
stated that unnamed accomplices of the
Revisionists who had allegedly attacked Dr.
Hariom in his office were never found out
and a Final Report was submitted by the
Investigating
Officer
to
the
Court
concerned. The revisionist no. 1 is an
extremely sick person and he could not
have assaulted Dr Hariom in the manner
stated in the F.I.R.. Raj Kumar Singh the
complainant who is arrayed as respondent
no. 2 in the Revision has also filed an
affidavit in Court that Dr Hariom forced
him to lodge a false case under Section 195
A I.P.C. against the revisionist. Raj Kumar
Singh has also filed another case against an
alleged eye witness namely Ram Kishun
under Section 195 A I.P.C.. It has also been
stated that after Dr Hariom was no longer
posted as Consolidation Commissioner, the
Ministerial Employees Union had sent a
letter to the Authorities saying that no such
incident
happened on 13.07.2016
as
mentioned in the F.I.R.

6. Sri Arun Sinha, learned counsel for
the revisionist opened his arguments from
giving a background of the case saying that
revisionist no. 1 is a Consolidation Officer
who was posted at Amethi and revisionist
no.2 his Son. Dr, Hari Om, the victim was
the then Consolidation Commissioner and
also belongs to Amethi. His elder brother
practices as an Advocate in Amethi, his
Bua's Son is a Lekhpal who was working
under the revisionist no.1. There was some
marriage in the house of the said Lekhpal
where Dr. Hari Om had pressured the
revisionist no.1 to spend several lakhs of
rupees in making arrangements for dry
fruits and cars and other amenities. He kept
on arranging the same out of his own
pocket out to fear and respect for the
Consolidation Commissioner, however, the
Consolidation Commissioner asked for
Rs.1,00,000/- in cash which could not be
arranged by the revisionist No.1 and
therefore, the victim Dr. Hari Om (I.A.S.)
who
was
the
then
Consolidation
Commissioner transferred the revisionist
no.1 to Balia. The Consolidation Lekhpal
who is the cousin of Dr. Hari Om is an
extremely
corrupt employee and the
revisionist is an honest officer and did not
permit corruption of the concerned Lekhpal
and therefore, out of pique the revisionist
was transferred to Balia by the then
Consolidation Commissioner.

7. Learned counsel for the revisionist
has read out paragraph no. 32 of his
petition to say that the revisionist no. 1 is
an extremely sick person who was
diagnosed with cancer of the Kidney in
1995. One of his kidneys has been
removed. He has been suffering from
several ailments including heart disease.
Pages 137 to 255 of the paper book are the
medical reports of the revisionist no. 1.

It has been argued that the
revisionist no. 1 went to meet the
Consolidation
Commissioner
on
13.10.2016 for cancellation of his transfer
to Balia because he was sick. Dr. Hari Om
pushed and kicked him and had also beaten
2 All. Rakesh Kumar Pandey & Anr. Vs. State of U.P. & Anr.
159
him up and then called his peons and other
employees of the office and a concocted
story was framed at the instance of the
policemen asking the peon from the office
of the Consolidation Officer, one Raj
Kumar Singh to lodge FIR on the basis of
such concocted story. Raj Kumar Singh, the
Peon has filed an affidavit before the
learned trial court and also before this
Court saying that he was forced into
writing whatever he did at the police station
while
lodging
the
FIR
against
the
revisionist nos. 1 and 2.

8. Learned counsel for the revisionists
has pointed out page no. 63 of the paper
bookwhich is an order passed by the
Division Bench while hearing the writ
petition filed by the revisionist, bearing
writ petition No. 17004 (MB) of 2016,
Rakesh Pandey vs. State of U.P. and
Others, wherein the Division Bench while
refusing to interfere in the FIR had directed
the Circle Officer concerned to conduct
investigation and file his affidavit as to
under what circumstance it was being
concluded that the offence under Section
307 IPC has been committed by the
revisionist. The Court directed the matter to
be listed on a particular date and also
directed that the petitioner be not taken into
custody till the next date of listing. The
State respondents, thereafter, filed a short
counter affidavit hurriedly bringing on
record the fact that charge sheet had been
readied on 12.08.2016 and had been
approved by the Supervisory Authority
indicating commission of offence under
Section 147,148, 332, 307, 504, 506, 427,
353 IPC. The Court therefore observed that
prima facie it could not be disputed that
offence had been committed insomuch as a
public servant had been attacked and
manhandled while he was on duty in his
office. The Court further stated that since
charge sheet is not under challenge before
it and incriminatory evidence has been
collected against the petitioner in the
course of investigation, the petitioner
would be at liberty to avail the remedy
provided in law at the appropriate stage of
the proceedings to challenge the charge
sheet regarding invoking of Section 307
I.P.C. After the petition under Article 226
of the Constitution of India for quashing of
FIR was thus disposed of by this Court on
30.08.2016,
the
revisionist
moved
a
discharge application before the learned
trial court. The discharge application has
been rejected on 25.07.2019 by the learned
trial court and therefore this revision has
been filed.

9. While arguing the matter, learned
counsel for the revisionist has pointed out
an interim order dated 27.08.2019 passed
by this Court while entertained the revision.
The Court had observed on the basis of
observations made in the interim order
passed by the Division Bench in the case
relating to FIR quashing filed by the
revisionist, that the trial court may continue
with the proceedings but the charge under
Section 307 IPC shall not be framed against
the accused by the learned court below. It
has been submitted by the learned counsel
for the revisionist that for the past two
years the order passed by the Court has not
been complied with and the learned court
below has not framed any charge at all and
it is just fixing the matter on various dates
without any effective hearing.

10. It has also been argued by the
learned counsel for the revisionists that this
Court in its interim order in this revision
had directed the Investigating Officer to
collect evidence from CCTV camera
footage installed in the office of the
Consolidation Commissioner but such
160 INDIAN LAW REPORTS ALLAHABAD SERIES
observation of the Court has not been taken
heed of by the Investigating Officer.

11. This Court has carefully perused
the interim order granted in this Revision
and finds from the same that the Court had
only recorded the submissions made by the
learned counsel for the revisionists that the
office of the Consolidation Commissioner
is well equipped with security camera but
despite repeated requests CCTV footage
was not collected by the Investigating
Officer, and investigation was done under
the command of Dr. Hari Om, the then
Consolidation Commissioner. The Court
also recorded the submissions made by the
learned counsel for the revisionists that
Investigating Officer flouted the provisions
of Regulation 107 of the U.P. Police Act,
while submitting the charge sheet. Several
other submissions made by the learned
counsel for the revisionists relating to no
offence being committed under Section 307
IPC was also recorded by this Court in its
interim order dated 27.08.2019. But, there
is no direction by this Court in its interim
order either to the Investigating Officer or
to the trial court to get collected evidence
from CCTV footage in the office of the
Consolidation
Commissioner.
The
argument of the counsel for the revisionists
is misleading to say the least.

12.

Learned
counsel
for
the
revisionists argued that since the Division
Bench had held that no offence under
Section 307 was committed and this Court
while entertaining the revision had also
observed in its interim order that no charge
can be framed under Section 307, it should
be taken that the order on the discharge
application by the learned trial court has
ignored the observation of the High Court
and rejected the discharge application
arbitrarily.

13.

Learned
counsel
for
the
revisionists has pointed out Section 227,
228 and 216 of the Cr.P.C. to say that the
learned trial court ought to have considered
evidence placed before it and could have
framed charges only for offences that were
likely to have been committed. Also, that
the trial court could alter the charges or add
any charge anytime before the judgement is
pronounced. Also, that Section 307 was
added in the charge sheet only to ensure
that the trial is conducted by the Sessions
Court, thus depriving the accused of
remedy of appeal. If the charge under
Section 307 had not been mentioned in the
the charge sheet by the Investigating
Officer then the trial would have been
conducted
in
the
Court
of
Judicial
Magistrate, and then the revisionists would
have one opportunity of filing an appeal
against any order passed by the Judicial
Magistrate,
if
it
went
against
the
revisionists.

14.

Learned
counsel
for
the
revisionists has also argued before this
Court that, the statements of all the
prosecution witnesses as also defence
witnesses have been filed, from the perusal
whereof this Court would find that no
charge under Section 307 could have been
added in the charge sheet.

15. Counsel for the opposite party no.
2, namely, Raj Kumar Singh, the Peon who
was the informant in the FIR has pointed
out from his counter affidavit and also from
the affidavit filed before the learned trial
court that Raj Kumar Singh, the informant
has denied the incident as alleged in the
FIR to have ever taken place.

16. Learned counsel appearing for the
opposite party no. 2 has pointed out from
his counter affidavit paragraphs 6, 7, 8 to
2 All. Rakesh Kumar Pandey & Anr. Vs. State of U.P. & Anr.
161
say that it has been the case of the opposite
party no. 2 all along that he was forced to
give statement under Section 161 of the
Cr.P.C. before the police because of the
influence of the victim who was then
Consolidation Commissioner.

17.

Sri
Purnedu
Chakravarty,
Advocate appears for the victim and says
that he has not been made a party to this
criminal revision although he is the one
who should be heard because he was beaten
up by the revisionists.

18.

Sri
Purnedu
Chakravarty,
Advocate has been given a right of hearing
by this Court only because the counsel for
the informant, the opposite party no. 2 has
denied the incident altogether, and has said
that the FIR was drafted by the somebody
else under the dictates of the then
Consolidation Commissioner and he was
forced to sign the same and submit it in the
police station concerned.

19. Sri Purnedu Chakravarty, learned
counsel appearing for Dr. Hari Om, the
victim has pointed out from the order
impugned that the incident that took place
in between 03:15 PM to 03:30 PM in the
office of the Consolidation Commissioner
has not been denied. It has also not been
denied that revisionist no. 1 himself had
gone alongwith his son to meet Dr. Hari
Om and had sent his parchi/application on
the basis of which he was called into the
office of the Consolidation Commissioner.
Learned counsel for the victim has pointed
out page 257 of the paper book, which is an
order passed by this Court on an
application under Section 482 of the Cr.
P.C. moved by Mohit Pandey S/o Rakesh
Pandey saying that he has been wrongly
referred to in the FIR as Dinesh Kumar
Pandey, and therefore, the investigation and
the charge sheet can be said to be without
application of mind by the Investigating
Officer and under the influence of the IAS
officer concerned. The Court has refused to
interfere in the charge sheet and had
rejected his petition under Section 482 of
the Cr.P.C. leaving it open for Mohit
Pandey to submit before the learned trial
court that he had wrongly been implicated
on the basis of mistaken identity. It has
been pointed out that the charge sheet was
also challenged by the son of the
revisionist. The charge sheet has not been
interfered with.

20. Learned counsel for the victim has
read out the entire order from internal page 3
onwards regarding the findings recorded by
the learned trial court for rejecting the
discharge application. It has been pointed out
that no foreign material can be considered at
the stage of moving discharge application
before framing the charge. Sections 193, 207,
209, 226, 227, 228 of the IPC have been
pointed out and also Section 216 of the
Cr.P.C. to say that Sessions trial is different
from the trial held by the Magistrate. It has
been pointed out that in the Sessions Trial, the
charge sheet is filed before the Magistrate,
the Magistrate after taking cognizance on the
charge sheet issues summons to the accused
on the basis of documentary evidence filed
alongwith the charge sheet. Thereafter, he
commits the case for trail before the Sessions
Court. The revisionist has neither challenged
the cognizance order, nor the order passed by
the Magistrate committing the case for trial to
the Sessions Court. The charge sheet had also
not been challenged by the revisionist no. 01.
The charge sheet was challenged by his son,
the challenge was rejected by this Court.

21. It has been pointed out that the
power under Section 228(1) (a) has not
been exercised by the Sessions Court, only
162 INDIAN LAW REPORTS ALLAHABAD SERIES
if an order passed under Section 228 (1) (a)
is passed can the accused have any ground
to come before this Court saying that his
right to appeal has been taken away. The
order that has been passed by the Sessions
Court is with regard to the discharge
application of the revisionists and the
jurisdiction of this Court is limited over
such an order under Section 397/401
Cr.P.C.

22. Learned counsel for the victim has
relied upon the judgement rendered by the
Hon'ble Supreme Court in the case of
Sanghi Brothers (Indore) Pvt. Ltd. vs.
Sanjay Choudhary and Others, AIR 2009
Supreme Court 9, (paragraph 7 and 8) as
also judgments that have been cited by the
learned trial court in the order impugned.

23. Learned counsel for the victim has
also pointed out the judgment rendered in
the case of Sanjay Kumar Rai vs. State of
Uttar Pradesh & Anr. In Criminal Appeal
no. 472 of 2021 decided on 07.05.2021 and
paragraph 11 onwards of the same.

24. Learned counsel for the victim has
also pointed out the statement of Sri Raj
Kumar Singh, at page no. 33 saying that he
has not disputed the meeting of the
revisionist and his son with the then
Consolidation Commissioner in his office,
and he has also not disputed the presence of
other peons like Ram Kishun, Chandan
Singh and others. There is no dispute
regarding the medical conducted of the
victim where injuries has been shown on
the face, on the head and on the neck of the
victim. It was only because the Peons
working in the office of the Consolidation
Commissioner who came rushing to his
office that the attempt at strangulation of
the victim was thwarted. He has pointed
out from the statement of the opposite party
no. 2 and his affidavit that Raj Kumar
Singh has not said anywhere that he had
not given any statement under Section 161
of the Cr. P.C. to the police. The incident
took place on 13.07.2016, the counter
affidavit that was filed in this case as also
the affidavit that was filed before the
learned trial court by Raj Kumar Singh is
dated August,2018 i.e. two years after the
incident where Raj Kumar Singh has turned
around and suddenly stated that he was
forced into lodging the FIR because the
influence
of
the
then
Consolidation
Commissioner in whose office he was was
working as a Peon.

25. This Court must first consider the
scope
of
interference
under
Section
397/401 of the Criminal Procedure Code.

In Amit Kapoor versus Ramesh
Chander and ors 2012 9 SCC 460, the
Supreme Court was considering the scope
of powers granted under Section 397 and
Section 482 Cr.P.C. to the High Court. In
Paragraph 2 of its judgement the Supreme
Court framed the question of law thus -"..A
question of law that arises more often than
not in criminal cases is that of the extent
and scope of the powers exerciseable by the
High
Court
under
Section
397
independently or read with Section 482 of
the Code of criminal procedure...". After
considering the facts of the case regarding
F.I.R. being lodged against the respondents
and charge sheet being filed in Court and
charge being framed by the trial Court on
commital to the Court of Sessions, and the
filing of a Criminal Revision by the
respondent challenging the order of the trial
Court framing the charge; the Supreme
Court observed that the appellant had
approached it in Appeal against the order of
the High Court quashing the charge framed
under Section 306 I.P.C. while permitting
2 All. Rakesh Kumar Pandey & Anr. Vs. State of U.P. & Anr.
163
the trial Court to continue the trial in
relation to offence under Section 448 of the
I.P.C.

26. In paragraph 8 & 9, the Supreme
Court observed: -

"8. Before examining the merits
of the present case we must advert to the
discussion as to the ambit and scope of the
power which the Courts including the High
Court can exercise under Section 397 and
Section 482 of the Code. Section 397 of the
Code vests the Court with the power to call
for and examine the records of an inferior
Court for the purposes of satisfying itself as
to the legality and regularity of any
proceedings or order made in a case. The
object of this provision is to set right a
patent defect or an error of jurisdiction or
law. There has to be a well founded error
and it may not be appropriate for the Court
to scrutinise the order, which upon the face
of it is a token of careful consideration and
appears to be in accordance with law. If
one looks into various judgements of this
Court,
it
emerges
that
revisional
jurisdiction can be invoked where the
decisions under challenge are grossly
erroneous, there is no compliance with the
provisions of law, the finding recorded is
based on no evidence, or the material
evidence is ignored or Judicial discretion is
exercised arbitrarily or perversely. These
are not exhaustive classes, but merely
indicative. Each case would have to be
determined on its own merits.

9. Another well accepted norm is
that the revisional jurisdiction of the High
Court is very limited one and cannot be
exercised in a routine manner. One of the
inbuilt restrictions is that it should not be
against an interim or interlocutory order.
The Court has to keep in mind that the
exercise of revisional jurisdiction itself
should not lead to injustice Ex Facie.
Where the Court is dealing with the
question as to whether the charge has been
framed properly and in accordance with
law in the given case, it may be reluctant to
interfere in exercise of its revisional
jurisdiction unless the case substantially
falls within the categories as aforestated.
Even framing of charge is a much advanced
stage in the proceedings under Code of
criminal procedure procedure.."

 (emphasis supplied)

The Supreme Court thereafter
considered the observations made by it in
State of Haryana versus Bhajan Lal 1992
supp 1 SCC 335 , with regard to exercise of
power under Section 482 by the High
Court.
It observed
that
even
while
enumerating the grounds on which power
can be exercised under Section 482 Cr.P.C.,
the Court had uttered a note of caution to
the effect that power of quashing of
criminal proceedings should be exercised
very
sparingly
and
with
great
circumspection and that too, in the rarest of
rare cases. The Court had warned that it
would not be justified in embarking upon
an enquiry as to the reliability or
genuineness or otherwise of the allegations
made in the F.I.R. or the complaint and that
the extraordinary or inherent powers do not
confer an arbitrary jurisdiction on the Court
to act according to its whims or caprice.

27. In paragraph 10, the Supreme
Court observed that if jurisdiction under
Section 482 of the Court in relation to
quashing of an F.I.R. is circumscribed by
caution as mentioned in State of Haryana
versus
Bhajan
Lal,
the
revisional
jurisdiction, particularly while dealing with
framing of charge, has to be even more
limited. Framing of a charge is an exercise
of jurisdiction by the trial court in terms of
Section 228 of the Code, unless the accused
164 INDIAN LAW REPORTS ALLAHABAD SERIES
is discharged under Section 227 of the
Code. Under both these provisions the
Court is required to consider the ''record of
the case' and documents submitted there
with and, after hearing the parties, either
discharge the accused or where it appears
to the Court and in its opinion, there is
ground for presuming that the accused has
committed an offence, it shall frame the
charge. Once the facts and ingredients of
the Section exists, then the Court would be
right in presuming that there is ground to
proceed against the accused and frame the
charge accordingly. This presumption is not
a presumption of law as such. The
satisfaction of the Court in relation to the
existence of constituents of an offence and
the facts leading to that offence is a sine
qua
non
for
the
exercise
of
such
jurisdiction. "It may even be weaker than a
prima facie case. There is a fine distinction
between the language of Section 227 and
228 of the Code. Section 227 is expression
of a definite opinion and judgement of the
Court whereas Section 228 is tentative.
That is to say, that at the stage of framing
of charge, the Court should form an
opinion that the accused is certainly guilty
of committing an offence, is an approach
which is impermissible in terms of Section
228 of the Code."

"It may be noticed that the
revisional jurisdiction exercised by the
High Court is in a way final and no intracourt remedy is available in such cases. Of
course, it may be subject to the jurisdiction
of this Court under Article 136 of the
Constitution of India. Normally, revisional
jurisdiction should be exercised on a
question of law. However, when factual
appreciation is involved, then it must find a
place in the class of cases resulting in a
perverse finding. Basically, the power is
required to be exercised so that justice is
done and there is no abuse of power of the
Court.
Merely
an
apprehension
or
suspicion of the same would not be a
sufficient ground for interference in such
cases.." (emphasis supplied)

28. The Supreme Court went on to
observe in paragraph-11 thus:-

"11. At 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
the 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. We may refer to
the well settled law laid down by this Court
in the case of State of Bihar versus Ramesh
Kr Singh 1977 (4) SCC 39:

"4..under Section 226 of the Code
while opening the case for prosecution the
prosecutor has got to describe the charge
against the accused and state by what
evidence he proposes to prove the guilt of
the accused. Thereafter comes at the initial
stage, the duty of the Court to consider the
record of the case and the documents
submitted there with and to hear the
submissions of the accused and the
prosecution in that behalf. The judge has to
pass thereafter an order either under
Section 227 or Section 228 of the Code. If
the judge considers That "there is no
sufficient ground for proceeding against the
accused, he shall discharge the accused
and record his reasons for so doing," as
enjoined by Section 227. If on the other
hand the Judge is of the opinion that there
is ground for presuming that the accused
has committed an offence which - - (b) is
exclusively triable by the Court, he shall
frame in writing a charge against the
accused" as provided in Section 228.
2 All. Rakesh Kumar Pandey & Anr. Vs. State of U.P. & Anr.
165
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 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
judgement 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
228 of the Code. At that stage the Court is
not to see whether there is sufficient ground
for conviction of the accused or whether
the trial is sure to end in his conviction.
Strong suspicion against the accused, if the
matter remains in the region of suspicion,
cannot take the place of proof of his guilt at
the conclusion of the trial. But at the initial
stage if there is a strong suspicion which
leads the Court to think that there is ground
for presuming that the accused has
committed an offence then it is not open to
the Court to say that there is no sufficient
ground for proceeding against the accused.
The presumption of guilt of the accused
which is to be drawn at the initial stage is
not in the sense of the law governing the
trial of criminal cases in France where the
accused is presumed to be guilty unless the
contrary is proved. But it is only for the
purpose of deciding prima facie Whether
the Court should proceed with the trial or
not: if the evidence which the prosecutor
proposes to adduce to prove the guilt of the
accused even if fully accepted before it is
challenged
in
cross-examination
or
rebutted by defence evidence, if any, cannot
show that the accused committed the
offence, then there will be no sufficient
ground for proceeding with the trial. An
exhaustive list of circumstances to indicate
as to what will lead to one conclusion or
the other is neither possible nor advisable.
We may just illustrate the difference of the
law by one more example, if the scales of
the pan as to guilt or innocence of the
accused are something like even, at the
conclusion of the trial, then on the theory of
benefit of doubt the cases to end in his
acquittal. But if, on the other hand, it is so
at the initial stage of making an order
under Section 227 of Section 228, then in
such a situation ordinarily and generally
the order which will have to be made will
be one under Section 228 and not under
Section 227." (emphasis supplied)

29. In paragraph 12 of judgement
rendered in Amit Kapoor (supra), the
Supreme Court observed further: -

"the jurisdiction of the Court
under Section 397 can be exercised so as to
examine
the
correctness,
legality
or
propriety of an order passed by the trial
Court or the inferior Court, as the case
maybe. Though the Section does not
specifically use the expression "prevent
abuse of process of any Court or otherwise
to secure ends of justice", the jurisdiction
under Section 397 is a very limited one.
The legality, propriety or correctness of an
order passed by a Court is the very
foundation of the exercise of jurisdiction
under Section 397, but ultimately it also
requires justice to be done. The jurisdiction
could be exercised where there is palpable
error, non-compliance with the provisions
of law, the decision is completely erroneous
or where the judicial discretion is exercised
arbitrarily..."
166 INDIAN LAW REPORTS ALLAHABAD SERIES

 (emphasis supplied)

The Supreme Court referred to the
powers granted under Section 482 Cr.P.C. to
the High Court which are inherent and very
wide and are not as limited as given under
Section 397 of the Code. It observed that
Section 482 of the Code being an
extraordinary and residuary power, it is
inapplicable in regard to matters which are
specifically
provided
for
under
other
provisions of the Code. However, the power
under Section 482 can be exercised even in
such cases where a trial Court order can be
challenged under Section 397 in Criminal
Revision. The only limitation in so far as
Section 482 is concerned is that of self
restraint and nothing more. The High Court
as the highest Court exercising criminal
jurisdiction in the State, has inherent powers
to make any order for the purposes of
securing the ends of justice. Being an
extraordinary power, it will, however, not be
pressed in aid except for remedying a flagrant
abuse by subordinate Court of its powers.

30.