# Ravindra Pratap Shahi @ Pappu Shahi Revisionist v. State of U.P. & Anr

- **Citation:** (2021) 11 ILRA 127
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-10-25
- **Case number:** Criminal Revision No. 2183 of 2021
- **Bench:** Rajeev Misra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ravindra-pratap-shahi-pappu-shahi-revisionist-v-state-of-u-p-anr-46537
- **Pages:** 15

## Headnote

A. Criminal Law - Criminal Procedure Code,
1973 - Sections 227 & 228 - Once the charges
have been framed, the issue of discharge
becomes
redundant,
as
Courts
have
no
jurisdiction to allow discharge after charges
having been framed. After charges have been
framed, Court can neither convict or acquit an
accused. (Para 29)

At the time of examining the framing of charge order
under Section 228 Cr.P.C., arguments from both the
parties have to be considered. Such an exercise is not
permissible while deciding the correctness of charge
order as it will amount to mini trial. (Para 33)

Revision Rejected. (E-10)

List of Cases cited:-
128 INDIAN LAW REPORTS ALLAHABAD SERIES

## Text

_Characters 0–39,918 of 55,343. This is a partial read: ask again with offset=39918 for what follows._

11 All. Ravindra Pratap Shahi @ Pappu Shahi Vs. State of U.P. & Anr.
127
without any evidence on record on his own has
felt that the heinous crime was committed
because the accused had captured the will of the
prosecutrix and because the police officer had
investigated the matter as an attrocities case
which would not be undertaken within the
purview of Section 3(2)(v) of S.C./S.T. Act and
has recorded conviction under Section 3(2)(v) of
the Act which cannot be sustained. We are
supported in our view by the judgment of
Gujarat High Court in Criminal Appeal No.74
of 2006 in the case of Pudav Bhai Anjana
Patel Versus State of Gujarat decided on
8.9.2015 by Justice M.R. Shah and Justice
Kaushal Jayendra Thaker.

35. Learned trial Judge wrongly came
to the conclusion that as the prosecutrix
belonged to community falling in the
scheduled caste and the appellant belonged
to upper caste the provision of SC/ST Act
are attracted in the present case.

36. While perusing the entire evidence
beginning from FIR to the statements of
PWs-1, 2 and 3 we do not find that
commission of offence was there because of
the fact that the prosecutrix belonged to a
certain community.

37. The learned Judge further has not
put any question in the statement recorded
under Section 313 Cr.P.C. of the accused
relating to rape which is against him.

38. In view of the facts and evidence
on record, we are convinced that the accused
has been wrongly convicted, hence, the
judgment and order impugned is reversed
and the accused is acquitted of charges
levelled. The accused appellant, if not
wanted in any other case, be set free
forthwith.

39. Appeal is allowed accordingly.

40. Record be sent to the trial court.

41. We are thankful to learned counsel for
appellant and learned AGA for the State who
have ably assisted the Court.
----------
(2021)11ILR A127
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 25.10.2021

BEFORE

THE HON'BLE RAJEEV MISRA, J.

Criminal Revision No. 2183 of 2021
connected with
Application U/S 482 No. 13664 of 2021

Ravindra Pratap Shahi @ Pappu Shahi
 ...Revisionist
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionist:
Sri Rakesh Kumar Srivastava, Sri Gopal Swaroop
Chaturvedi (Senior Adv.)

Counsel for the Opposite Parties:
G.A., Sri Satyendra Narayan Singh, Sri Shesh
Narain Mishra

A. Criminal Law - Criminal Procedure Code,
1973 - Sections 227 & 228 - Once the charges
have been framed, the issue of discharge
becomes
redundant,
as
Courts
have
no
jurisdiction to allow discharge after charges
having been framed. After charges have been
framed, Court can neither convict or acquit an
accused. (Para 29)

At the time of examining the framing of charge order
under Section 228 Cr.P.C., arguments from both the
parties have to be considered. Such an exercise is not
permissible while deciding the correctness of charge
order as it will amount to mini trial. (Para 33)

Revision Rejected. (E-10)

List of Cases cited:-
128 INDIAN LAW REPORTS ALLAHABAD SERIES
1. Arnab Manoranjan Goswami Vs The St. of Mah. &
ors. 2021 (2) SCC 427

2. Ranganayaki Vs State by Inspector of Police (2004)
12 SCC 521

3. Yogesh Joshi Vs St. of Mah. AIR 2008 Supreme
Court 2971

4. Tarun Jit Tejpal Vs St. of Goa & anr. 2019 SCC
Online Sc 1053

5. Ratilal Bhanji Mithani Vs St. of Mah. & ors. (1979) 2
SCC 179 (followed)

6. Bharat Parikh Vs C.B.I & anr. (2008) 10 SCC 109
(followed)

7. State through C.B.I. New Delhi Vs Jitendra Kumar
(followed)

8. Hardeep Singh Vs S. of Punj. (2014) 3 SCC 92
(followed)

9. Bhawna Bai Vs Ghanshya, & ors. 2020 (2) SCC 217
(followed)
(Delivered by Hon'ble Rajeev Misra, J.)

1. Heard Mr. Gopal Swaroop Chaturvedi,
learned Senior Advocate assisted by Mr. Rakesh
Kumar Srivastava and Mr. Mithlesh Kumar
Tiwari, learned counsel for revisionist/applicant,
Mr. Prashant Kumar, learned A.G.A. for State
along with Mr. P.K. Sahi, learned Brief Holder
and
Mr.
S.N.
Singh,
learned
counsel
representing first informant opposite party 2.

2. Perused the record.

3. Criminal Misc. Application under Section
482 Cr. P. C. No. 13664 of 2021, (Ravindra Pratap
Shahi @ Pappu Shahi Vs. State of U.P. and others)
has been filed challenging charge sheet dated
10.05.2021, submitted in Case Crime No. 0085 of
2021, under Section 306 IPC, P.S. Mahuli, District
Sant Kabir Nagar, the Cognizance Taking Order
dated 12.05.2021, passed by Chief Judicial
Magistrate, Sant Kabir Nagar, upon aforesaid
charge sheet as well as entire proceedings of
consequential criminal case No. 6488 of 2021
(State Vs. Ravindra Pratap Shahi @ Pappu Shahi),
under Section 306 IPC, P.S. Mahuli, District Sant
Kabir Nagar, now pending in the Court of Chief
Judicial Magistrate, Sant Kabir Nagar.

4. Criminal Revision No. 2183 of 2021
(Ravindra Pratap Shahi @ Pappu Shahi Vs. State
of U.P.) has been filed challenging order dated
02.09.2021, passed by Sessions Judge, Sant Kabir
Nagar, in S.T. No. 554 of 2021 (State Vs.
Ravindra Pratap Shahi @ Pappu Shahi) arising out
of Case Crime No. 0085 of 2021, under Section
306 IPC, P.S. Mahuli, District Sant Kabir Nagar,
whereby discharge application filed by revisionist
has been rejected.

5. During pendency of aforementioned
criminal revision, revisionist filed an amendment
application seeking challenge to the order dated
04.09.2021, passed by Court below, whereby
charges have been framed against revisionist.

6. Record shows that one Raghuveer Gupta
(deceased) son of first informant opposite party 2
Ram Bachan, was a railway employee and posted
as Gate Man at Railway Station Takia, District
Unnao. On the fateful day i.e. 13.03.2021, he
consumed some poisonous substance. Ultimately,
Raghuveer Gupta died on 13.03.2021 at around
22.00 hours at District Hospital, Unnao, where he
was undergoing treatment.

7. Upon death of Raghuveer Gupta, Station
Superintendent, Railway Station Takia, District
Unnao, sent a written report to Station House
Officer, Police Station Bihar, District Unnao.
Upon receipt of aforesaid information, an entry
regarding same was made in the General Diary
of above mentioned Police Station, as G.D. entry
no. 19.

8. On the basis of aforesaid G.D. entry,
inquest of Raghveer (deceased) was conducted
11 All. Ravindra Pratap Shahi @ Pappu Shahi Vs. State of U.P. & Anr.
129
on 14.03.2021. Accordingly, an inquest report
dated 14.03.2021 was prepared.

9. Thereafter, post-mortem of the body of
deceased was conducted on 14.03.2021 and a
post-mortem report dated 14.03.2021 was
prepared.

10.

Subsequent
to
above,
first
informant/opposite party 2 Ram Bachan lodged
an F.I.R. dated 15.03.2021, which was registered
as Case Crime No. 0085 of 2021, under Section
306 IPC, P.S. Mahuli, District Sant Kabir Nagar.
In the aforesaid F.I.R., applicant/revisionist
Ravindra Pratap Shahi and Jitendra Kannaujia
have been nominated as named accused,
whereas one unknown person has also been
nominated as an accused.

11. After registration of aforementioned
F.I.R., Investigating Officer, proceeded with
statutory investigation of above mentioned case
crime number in terms of Chapter XII Cr. P. C.
Investigating Officer recorded statements of first
informant and other witnesses under Section 161
Cr. P. C. Witnesses so examined substantially
supported the prosecution story, as unfolded in
F.I.R. On the basis of above and other material
gathered by Investigating Officer during course
of investigation, Investigating Officer opined to
submit a charge sheet but only against
applicant/revisionist. Accordingly, Investigating
Officer submitted charge sheet dated 10.05.2021,
whereby applicant/revisionist alone has been
charge sheeted, whereas named and unknown
accused
mentioned
in
F.I.R.
have
been
exculpated.

12. After submission of above noted charge
sheet, In-charge Chief Judicial Magistrate, Sant
Kabir Nagar, vide order dated 12.05.2021, took
cognizance
and
simultaneously
summoned
applicant/revisionist in aforementioned criminal
case, vide Cognizance Taking Order/Summoning
Order dated 12.05.2021, passed in Case No. 6488
of 2021 (State Vs. Rasvindra Pratap Shahi @
Pappu Shahi).

13. Feeling aggrieved by the charge sheet
dated
10.05.2021,
Cognizance
Taking
Order/Summoning Order dated 12.05.2021,
passed by Chief Judicial Magistrate, Sant Kabir
Nagar, as well as entire proceedings of above
mentioned criminal case, applicant, who is a
charge sheeted accused, approached this Court
by means of aforementioned Criminal Misc.
Application.

14. Instant application came up for
admission on 07.09.2021 and this Court passed
following order:-

"Heard
Mr.
Gopal
Swarup
Chaturvedi, learned Senior Counsel assisted
by Mr. Mithilesh Kumar Tiwari, learned
counsel for applicant, learned A.G.A. for
State and Mr. Satyendra Narayan Singh,
learned counsel representing opposite party2.

At the very outset, Mr. S.N. Singh,
learned counsel for first informant/opposite
party-2 informs the Court that during
pendency
of
present
application
under
Section 482 Cr.P.C., applicant moved a
discharge application in terms of Section 227
Cr.P.C. before court below which have been
dismissed. He, therefore, contends that in
view of above, no relief can be granted to
present applicant.

At
this
juncture,
Mr.
G.S.
Chaturvedi, learned Senior Counsel submits
that hearing of present application be
deferred so as to enable applicant to file
criminal revision, challenging the order
passed
by
court
below
on
discharge
application and thereafter the Criminal
Revision as well as present application be
heard together.

Submission urged by Mr. G.S.
Chaturvedi, learned Senior Counsel merits
130 INDIAN LAW REPORTS ALLAHABAD SERIES
consideration.
Accordingly,
hearing
of
present application is deferred.

Matter shall re-appear as fresh on
17.09.2021."

15. During pendency of aforementioned
Criminal
Misc.
Application,
concerned
Magistrate committed the case to Court of
Sessions, as offence complained of, is triable by
Court of Sessions.

16. Consequently, Sessions Trial No. 554
of 2021 (State Vs. Ravindra Pratap Shahi @
Pappu
Shahi)
came
to
be
registered.
Subsequently,
applicant/revisionist
filed
a
discharge
application
dated
24.08.2021,
claiming discharge in above mentioned Sessions
Trial.

17. Discharge application dated 24.08.2021
filed by applicant came to be rejected, vide order
dated 02.09.2021 passed by Sessions Judge,
Sant Kabir Nagar.

18. Feeling aggrieved by above order dated
02.09.2021, revisionist has filed Criminal
Revision No. 2183 of 2021 (Ravindra Pratap
Shahi @ Pappu Shahi Vs. State of U.P. and
another).

19. During pendency of above noted
criminal revision, Court below, vide order dated
04.09.2021, framed charges against revisionist.

20. Consequently, revisionist filed an
amendment application challenging framing of
charge order dated 04.09.2021.

21. Mr. Gopal Swaroop Chaturvedi,
learned Senior counsel assisted by Mr. Rakesh
Kumar Srivastava and Mr. Mithlesh Kumar
Tiwari, learned counsel for revisionist/applicant
submits that entire proceedings of above
mentioned criminal case are wholly malicious
and therefore liable to be quashed by this Court.
In support of his challenge to the entire
proceedings of above mentioned criminal case
as well as order dated 04.09.2021, whereby
Court
below
has
rejected
the
discharge
application filed by revisionist, learned Senior
counsel contends that from the material
collected by Investigating Officer, no offence
under Section 306 IPC is made out against
applicant/revisionist.
He
has
then
invited
attention of Court to the suicide note of the
deceased, which is part of the case diary and is
also on record at page 64 of the paper book. On
the basis of above, learned Senior counsel
contends that no abetment, instigation or
conspiracy
is
made
out
against
applicant/revisionist. He further contends that
from a plain reading of suicide note, it is
apparent that no grudge has been expressed by
deceased
against
applicant/revisionist.
The
deceased had grievance with the police, who
according to deceased, falsely implicated him in
a criminal case and in spite of repeated request
made by deceased, he was not exculpated.
Elaborating his submission, learned Senior
counsel further contends that deceased was
implicated in a case under Section 354 IPC.
Deceased was charge-sheeted and therefore,
remedy of deceased was to initiate appropriate
legal proceedings for quashing of aforesaid
proceedings,
which
admittedly
were
not
undertaken by him. On the basis of above,
learned Senior Counsel further contends that it
cannot be that there was any abetment to suicide
on the part of applicant/revisionist. He has
further invited attention of Court to the
judgement rendered by Supreme Court in Arnab
Manoranjan Goswami Vs. The State of
Maharastra and others, 2021 (2) SCC 427 and
has relied upon paragraphs-46, 47, 48, 49, 50,
51, 52 of the judgement. It is also contended by
learned Senior counsel that cancellation of lease
granted to deceased cannot be attributed to
applicant/revisionist. Lease granted to deceased
has been cancelled by District Magistrate, as
11 All. Ravindra Pratap Shahi @ Pappu Shahi Vs. State of U.P. & Anr.
131
same was illegal. In case, deceased was aggrieved
by the cancellation of lease, remedy was to
challenge the order of District Magistrate, before
appropriate forum. It is, thus, sought to be
contended that even on aforesaid premise, it cannot
be said that applicant/revisionist has abetted in
commission of suicide by deceased. On the
aforesaid
premise,
learned
Senior
Counsel
vehemently submits that applicant/revisionist had
made out a cast iron case for discharge. In the
present case neither there is any material to
establish abetment to suicide on the part of
applicant/revisionist nor there is grave suspicion
against applicant/revisionist regarding commission
of alleged crime. It is thus urged that revision be
allowed. Impugned order dated 02.09.2021 be set
aside and applicant/revisionist be discharged in
afore-mentioned Sessions Trial.

22. Per contra, learned A.G.A. has
opposed above mentioned criminal misc.
application as well as criminal revision. Mr.
Prashant Kumar, learned A.G.A. along with
Mr. P.K. Sahi, learned Brief Holder contends
that all the submissions urged by learned Senior
Counsel in support of criminal revision referred
to above, are no longer available to the
applicant/revisionist
to
claim
discharge.
According to learned A.G.A., it is an admitted
position that vide order dated 04.09.2021,
charges
have
been
framed
against
applicant/revisionist. He therefore, submits that
once charges have been framed, plea of
discharge becomes infructuous. According to
learned A.G.A., discharge can be claimed only
prior to the framing of charge. Once charges
have been framed, Court has no jurisdiction to
discharge an accused. After framing of charge,
Court can either convict an accused or acquit
an accused, but cannot discharge an accused.
On the aforesaid premise, learned A.G.A.
contends above mentioned criminal misc.
application as well as criminal revision require
no interference by this court and are liable to be
consigned to the record.

23. Mr. S. N. Singh, learned counsel
representing first informant/opposite party-2 has
adopted the arguments raised by learned A.G.A.
He further submits that apart from above on date
four prosecution witnesses of fact namely P.W.-1
Ram Bachan, P.W.-2 Shiv Bachan Gupta, P.W.-3
Jai Kisun, P.W.-4 Hari Ram have been examined
upto this stage. Therefore, challenge to the framing
of charge order dated 04.09.2021 has virtually
become meaningless. He further submits that
charges can be framed on the basis of grave
suspicion or on the basis of material on record.
Elaborating his contention, Mr. S. N. Singh
submits that abetment to suicide can be gathered
from the conduct of an accused also. To lend legal
support to his submission, he has relied upon
paragraph 11 of judgement in Ranganayaki Vs.
State by Inspector of Police, (2004) 12 SCC,
521. For ready reference, paragraph 11 is,
accordingly, reproduced herein under:-

"Under Section 109 the abettor is
liable to the same punishment which may be
inflicted on the principal offender; (1) if the
act of the latter is committed in consequence
of the abetment and (2) no express provision
is made in the IPC for punishment for such
an abetment. This section lays down nothing
more than that if the IPC has not separately
provided for the punishment of abetment as
such
then
it
is
punishable
with
the
punishment provided for the original offence.
Law does not require instigation to be in a
particular form or that it should only be in
words. The instigation may be by conduct.
Whether there was instigation or not is a
question to be decided on the facts of each
case. It is not necessary in law for the
prosecution to prove that the actual operative
cause in the mind of the person abetting was
instigation and nothing else, so long as there
was instigation and the offence has been
committed or the offence would have been
committed if the person committing the act
had the same knowledge and intention as the
132 INDIAN LAW REPORTS ALLAHABAD SERIES
abettor. The instigation must be with
reference to the thing that was done and not
to the thing that was likely to have been done
by the person who is instigated. It is only if
this condition is fulfilled that a person can be
guilty of abetment by instigation. Further the
act
abetted
should
be
committed
in
consequence of the abetment or in pursuance
of the conspiracy as provided in the
Explanation to Section 109. Under the
Explanation an act or offence is said to be
committed in pursuance of abetment if it is
done in consequence of (1) instigation (b)
conspiracy or (c) with the aid constituting
abetment. Instigation may be in any form and
the extent of the influence which the
instigation produced in the mind of the
accused would vary and depend upon facts of
each case. The offence of conspiracy created
under Section 120A is bare agreement to
commit an offence. It has been made
punishable under Section 120B. The offence
of abetment created under the second clause
of Section 107 requires that there must be
something more than mere conspiracy. There
must be some act or illegal omission in
pursuance of that conspiracy. That would be
evident by Section 107 (secondly), "engages in
any conspiracy.......for the doing of (hat thing,
if an act or omission took place in pursuance
of that conspiracy". The punishment for
these two categories of crimes is also quite
different. Section 109 IPC is concerned only
with the punishment of abetment for which
no express provision has been made in the
IPC. The charge under Section 109 should,
therefore, be along with charge for murder
which
is
the
offence
committed
in
consequence of abetment. An offence of
criminal conspiracy is, on the other hand, an
independent offence. It is made punishable
under Section 120B for which a charge under
Section 109 is unnecessary and inappropriate.
[See Kehar Singh and Ors. v. The State (Delhi
Admn,), AIR (1988) SC 1883]. Intentional
aiding and active complicity is the gist of
offence of abetment."

24. He has further referred to the order
dated 05.04.2021 passed by Court below,
whereby bail application of applicant/revisionist
was rejected. Photo copy of aforesaid order,
relied upon by learned counsel representing
opposite party 2 was placed before Court, which
was taken on record. It is thus urged that
framing of charge order dated 04.09.2021 is
perfectly just and legal. Consequently, it is
submitted that no indulgence be granted by this
Court in favour of applicant/revisionist.

24. Having heard learned counsel for
applicant/revisionist, learned A.G.A. for State,
Mr. S. N. Singh, learned counsel representing
opposite party-2 and upon perusal of material on
record, this Court finds that the fate of criminal
misc. application no. 13664 of 2021 (Ravindra
Pratap Shahi @ Pappu Shahi Vs. State of U.P.
and Another) shall ultimately abide by the result
of Criminal Revision No. 2183 of 2021
(Ravindra Pratap Shahi @ Pappu Shahi Vs.
State of U.P. and Another). Consequently, Court
is required to examine the veracity of order
dated 02.09.2021, whereby discharge application
filed by applicant/revisionist has been rejected
and also the necessity to decide the same.

25. Case in hand arises out of proceedings
of Sessions Trial. Consequently, discharge could
be claimed by applicant/revisionist under
Section 227 Cr.P.C. Accordingly Section 227
Cr.P.C. is reproduced herein under:-

"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
11 All. Ravindra Pratap Shahi @ Pappu Shahi Vs. State of U.P. & Anr.
133
discharge the accused and record his reasons
for so doing."

26. Section 227 Cr.P.C. contemplates that
court shall discharge an accused provided there
is no sufficient ground for proceeding against
the accused. The term "sufficient ground" has
been explained by Supreme Court and therefore,
no longer subject matter of debate. Apex Court
in Yogesh Joshi Vs. State of Maharastra, AIR
2008 Supreme Court 2971, considered the
aforesaid term and ultimately delineated its
views in paragraphs- 13, 14 and 15, which are
reproduced herein-under:-

"13. Before adverting to the rival
submissions, we may briefly notice the scope
and ambit of powers of the Trial Judge under
Section 227 of the Code.

14. Chapter XVIII of the Code lays
down the procedure for trial before the Court
of
Sessions,
pursuant
to
an
order
of
commitment under Section 209 of the Code.
Section 227 contemplates the circumstances
whereunder there could be a discharge of an
accused at a stage anterior in point of time to
framing of charge under Section 228. It
provides that upon consideration of the record
of the case, the documents submitted with the
police report and after hearing the accused and
the prosecution, the Court is expected, nay
bound to decide whether there is "sufficient
ground" to proceed against the accused and as
a consequence thereof either discharge the
accused or proceed to frame charge against
him.

15. It is trite that the words "not
sufficient ground for proceeding against the
accused" appearing in the Section postulate
exercise of judicial mind on the part of the
Judge to the facts of the case in order to
determine whether a case for trial has been
made out by the prosecution. However, in
assessing this fact, the Judge has the power to
sift and weigh the material 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 a prima facie case
depends upon the facts of each case and in this
regard it is neither feasible nor desirable 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 gives rise to
suspicion only as distinguished from grave
suspicion, he will be fully within his right to
discharge the accused. At this stage, he is not
to see as to whether the trial will end in
conviction or not. The broad test to be applied
is whether the materials on record, if
unrebutted, makes a conviction reasonably
possible. [See: State of Bihar Vs. Ramesh
Singh and Prafulla Kumar Samal (supra)]"

27. Subsequently, the ambit and scope of
Section 227 Cr.P.C. as well as parameters
regarding exercise of jurisdiction under Section
227 Cr.P.C. came to be considered by a three
Judges Bench of Supreme Court in Tarun Jit
Tejpal Vs. State of Goa and Another, 2019
SCC Online Sc 1053, wherein Court concluded
as under in paragraphs 27, 28, 29, 30, 31, 32:

" 27. Now, so far as the prayer of the
appellant to discharge him and the submissions
made by Shri Vikas Singh, learned Senior
Advocate on merits are concerned, the law on
the scope at the stage of Section 227/228 CrPC
is required to be considered.

28. In the case of N. Suresh Rajan
(Supra) this Court had an occasion to consider
in detail the scope of the proceedings at the
stage of framing of the charge under Section
227/228 CrPC. After considering earlier
decisions of this Court on the point thereafter
in paragraph 29 to 31 this Court has observed
and held as under:

"29.
We
have
bestowed
our
consideration to the rival submissions and the
submissions made by Mr Ranjit Kumar
134 INDIAN LAW REPORTS ALLAHABAD SERIES
commend us. True it is that at the time of
consideration of the applications for discharge,
the court cannot act as a mouthpiece of the
prosecution or act as a post office and may sift
evidence in order to find out whether or not the
allegations made are groundless so as to pass
an order of discharge. It is trite that at the
stage of consideration of an application for
discharge, the court has to proceed with an
assumption that the materials brought on
record by the prosecution are true and evaluate
the said materials and documents with a view
to find out whether the facts emerging
therefrom taken at their face value disclose the
existence of all the ingredients constituting the
alleged offence. At this stage, probative value
of the materials has to be gone into and the
court is not expected to go deep into the matter
and hold that the materials would not warrant
a conviction. In our opinion, what needs to be
considered is whether there is a ground for
presuming that the offence has been committed
and not whether a ground for convicting the
accused has been made out. To put it
differently, if the court thinks that the accused
might have committed the offence on the basis
of the materials on record on its probative
value, it can frame the charge; though for
conviction, the court has to come to the
conclusion that the accused has committed the
offence. The law does not permit a mini trial at
this stage.

30. 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 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)

31. 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:
11 All. Ravindra Pratap Shahi @ Pappu Shahi Vs. State of U.P. & Anr.
135

31.1. 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".

31.2. 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.

31.3. 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. 755 56, 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 that a prima facie case is
made out, charge has to be framed."

29. 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
136 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

7. In Sajjan Kumar v. CBI [Sajjan
Kumar v. CBI, (2010) 9 SCC 368 : (2010) 3
SCC (Cri) 1371] , this Court on consideration
of the various decisions about the scope of
Sections 227 and 228 of the Code, laid down
the following principles: (SCC pp. 376, 77,
para 21)

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

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

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

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

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

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

(vii) If two views are possible and one
of them gives rise to suspicion only, as
distinguished from grave suspicion, the 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."

30. 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.

31. 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
11 All. Ravindra Pratap Shahi @ Pappu Shahi Vs. State of U.P. & Anr.
137
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 subject
matter 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 : SCC pp.
41 42 : SCC (Cri) pp. 535 36, 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.
234 35 : SCC p. 9 : SCC (Cri) pp. 613 14, 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.