# Sanjeev Nayan Mishra Revisionist v. State of U.P. & Ors

- **Citation:** (2024) 9 ILRA 1412
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-09-06
- **Case number:** Criminal Revision No. 4562 of 2024
- **Bench:** Samit Gopal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sanjeev-nayan-mishra-revisionist-v-state-of-u-p-ors-52507
- **Pages:** 13

## Headnote

Criminal Law -Code of Criminal Procedure,
1973 - Section 397/401 - order rejecting
discharge application challenged- -Section
9 All. Sanjeev Nayan Mishra Vs. State of U.P. & Ors.
1413
13 (1) (b) r/w Section 13 (2) of
Prevention of Corruption Amendment ActSection
227
Cr.P.C-application
of
discharge-disproportionate
assets
in
check period-at the stage of framing
charges-it is not required to evaluate the
evidence's probative value but only to
determine if a prima facie case existsthere was sufficient ground to proceed
with the trial based on the material
presented-trial court's decision to reject
the discharge application-well-reasonedrevision dismissed. (Paras 12 and 23)
HELD:
The Apex Court, in the case of Sajjan Kumar Vs
C.B.I. : (2010) 9 SCC 368, held that at the time
of framing of charge, the Court has to look at all
the material placed before it and determine
whether a prima facie case is made out or not,
and the court is not required to consider the
evidentiary value of the evidence as any
question of admissibility or reliability of evidence
is a matter of trial. (Para 12)

Thus, the position of law that emerges is that at
the stage of discharge/framing of charge, the
Court is merely required to shift the evidence in
order to find out whether or not there is
sufficient ground for proceeding against the
accused i.e. whether a prima facie case is made
out against the accused. Further the ground
that income of other family members has not
been considered also cannot be looked into and
considered at the stage of discharge, it is to be
considered in the trial only. (Para 23)

Revision dismissed. (E-13)

List of Cases cited:

## Text

_Characters 0–39,858 of 43,630. This is a partial read: ask again with offset=39858 for what follows._

1412 INDIAN LAW REPORTS ALLAHABAD SERIES
Thereafter the respondent again
applied for appointment on the
compassionate ground on the post
of Workshop Hand. The case of the
respondent
was
considered,
however, she failed in the physical
test
examination,
which
was
required
as
per
the
relevant
recruitment
rules
of
2005.
Therefore,
thereafter
she
was
offered
appointment
on
compassionate
ground
as
Messenger which was equivalent to
the post held by the deceased
employee.
Therefore
appellants
were justified in offering the
appointment to the respondent on
the post of Messenger. However, the
respondent refused the appointment
on such post.

11. In view of the above
and for the reasons stated above,
the Division Bench of the High
Court
has
misinterpreted
and
misconstrued Rule 5 of the Rules
1974 and in observing and holding
that the 'suitable post' under Rule 5
of the Dying In Harness Rules 1974
would mean any post suitable to the
qualification of the candidate and
the appointment on compassionate
ground is to be offered considering
the educational qualification of the
dependent.
As
observed
hereinabove such an interpretation
would
defeat
the
object
and
purpose
of
appointment
on
compassionate ground."

16.

In
such
circumstances,
therefore, I am of the considered view that
petitioner could have been offered any
group 'D' post in the establishment of the
respondent.
17. Thus, the order impugned
rejecting the claim of the petitioner for
compassionate appointment cannot be
sustained in law and, accordingly, the order
dated 23rd February, 2015 (Annexure - 7 to
the writ petition) is hereby quashed.

18. The appointment order to the
petitioner on the compassionate basis shall
be issued by the respondents within
maximum period of 30 days from the date
of production of certified copy of this order
if otherwise there is no legal impediments.

19. It is clarified that petitioner's
claim will not be rejected on any technical
ground
including
the
ground
that
appointment is to be offered after five years
of the death of the deceased employee.

20. There will be no order as to
cost.
----------
(2024) 9 ILRA 1412
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.09.2024

BEFORE

THE HON'BLE SAMIT GOPAL, J.

Criminal Revision No. 4562 of 2024

Sanjeev Nayan Mishra ...Revisionist
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Revisionist:
Ayush Mishra, Prabha Shanker Mishra,
Vinay Kumar Tiwari

Counsel for the Opposite Parties:
G.A.

Criminal Law -Code of Criminal Procedure,
1973 - Section 397/401 - order rejecting
discharge application challenged- -Section
9 All. Sanjeev Nayan Mishra Vs. State of U.P. & Ors.
1413
13 (1) (b) r/w Section 13 (2) of
Prevention of Corruption Amendment ActSection
227
Cr.P.C-application
of
discharge-disproportionate
assets
in
check period-at the stage of framing
charges-it is not required to evaluate the
evidence's probative value but only to
determine if a prima facie case existsthere was sufficient ground to proceed
with the trial based on the material
presented-trial court's decision to reject
the discharge application-well-reasonedrevision dismissed. (Paras 12 and 23)
HELD:
The Apex Court, in the case of Sajjan Kumar Vs
C.B.I. : (2010) 9 SCC 368, held that at the time
of framing of charge, the Court has to look at all
the material placed before it and determine
whether a prima facie case is made out or not,
and the court is not required to consider the
evidentiary value of the evidence as any
question of admissibility or reliability of evidence
is a matter of trial. (Para 12)

Thus, the position of law that emerges is that at
the stage of discharge/framing of charge, the
Court is merely required to shift the evidence in
order to find out whether or not there is
sufficient ground for proceeding against the
accused i.e. whether a prima facie case is made
out against the accused. Further the ground
that income of other family members has not
been considered also cannot be looked into and
considered at the stage of discharge, it is to be
considered in the trial only. (Para 23)

Revision dismissed. (E-13)

List of Cases cited:

1. Sajjan Kumar Vs C.B.I.: (2010) 9 SCC 3682

2. Amit Kapoor Vs Ramesh Chander: (2012) 9
SCC 460

3. Asim Shariff Vs National Investigation
Agency: (2019) 7 SCC 148

4. Bhawna Bai Vs Ghanshyam: (2020) 2 SCC
217

5. M.E. Shivalingamurthy Vs CBI: (2020) 2 SCC
768
6. St. of Rajasthan Vs Ashok Kumar Kashyap:
2021 SCC OnLine SC 314

7. St. of T.N. Vs R. Soundirarasu: (2023) 6 SCC
768

8. Manendra Prasad Tiwari Vs Amit Kumar
Tiwari: 2022 SCC OnLine SC 1057

9. Kanchan Kumar Vs St. of Bihar: (2022) 9 SCC
577

(Delivered by Hon'ble Samit Gopal, J.)

1. Heard Sri Ayush Mishra, learned
counsel for the revisionist, Sri P.K. Giri,
learned Additional Advocate General and
Ajay Singh, learned A.G.A.-I for the State
of U.P. and perused the material on
records.

2. The present revision under Section
397/401 Cr.P.C. has been filed by the
revisionist- Sanjeev Nayan Mishra, with
the prayer to allow the present revision and
set-aside
the
impugned
order
dated
14.08.2024 passed by Special Judge,
Prevention of Corruption Act / Additional
Sessions Judge, Meerut, in Criminal Case
No. 08 / 146 arising out Case Crime No. 05
of 2020, under Section 13 (1) (b) r/w
Section 13 (2) of Prevention of Corruption
Amendment Act, Police Station U.P.
Vigilance Establishment, Meerut, Sector
Meerut, with a further prayer to stay the
effect & operation of the aforesaid
impugned order, during the pendency of the
present revision.

3. The present revision has been
preferred
against
the
order
dated
14.08.2024 by which the trial court
concerned has rejected the Application No.
53 Ka under Section 227 Cr.P.C. along
with additional Application No. 57 Kha for
discharge. Earlier the revisionist had
approached this Court challenging the
1414 INDIAN LAW REPORTS ALLAHABAD SERIES
charge-sheet of the matter in Application
U/S 482 No. 22409 of 2024 (Sanjeev
Nayan Mishra vs. State of U.P. and 3
others) which was disposed of vide order
dated 16.07.2024 by a co-ordinate Bench of
this Court in which liberty was granted to
the applicant to approach the court
concerned for discharge under Section 227
Cr.P.C. The said order reads as under:-

"1. Heard Mr. Rajendra Prasad
Tiwari, the learned counsel for applicant
and the learned A.G.A. for State-opposite
party-1.

2. Perused the record.

3.
Applicant
Sanjeev
Nayan
Mishra has approached this Court by
means of present application under Section
482 Cr.P.C. with the following prayer:

"It is therefore most respectfully
prayed that this Hon'ble Court may
graciously be pleased to allow the Crl.
Misc. Application U/S 482 Cr.P.C. and to
quash the charge sheet no. 02/2024 dated
20.01.24 in Case Crime No. 05/2020, u/s
13 (1)B r/w 13 (2) Prevention of
Corruption (Amendment) Act, 2018, Police
Station -U.P. Vigilance Establishment
Meerut Sector Meerut and cognizance
order dated 31.01.24 passed by Additional
District & Sessions Judge/Special Judge,
Prevention of Corruption, Meerut in Crl.
Case No. 08/146/2024, State Vs. Sanjeev
Nayan Mishra.

It is also further prayed that this
Hon'ble court may graciously be pleased to
stay the entire proceeding of Crl. Case No.
08/146/2024, State Vs. Sanjeev Nayan
Mishra, Case Crime No. 05/2020, u/s 13(1)
B r/w 13 (2) Prevention of Corruption
(Amendment) Act, 2018, Police station-
U.P.
Vigilance
Establishment
Meerut
Sector Meerut in pursuance of charge sheet
no.
02/2024
dated
20.01.2024
and
cognizance order dated 31.01.24 passed by
Additional
District
&
Sessions
Judge/Special
Judge,
Prevention
of
Corruption, Meerut during the pendency of
the present Criminal Misc. Application u/s
482 Cr.P.C., in the interest of justice,
otherwise applicants will suffer irreparable
loss and injury."

4. After some arguments, the
learned counsel for applicant fairly submits
that since as per the material on record no
prima facie case is made out against
applicant, therefore, interest of justice shall
better be served in case applicant is
permitted to seek discharge under Section
227 Cr.P.C. before court.

5.
Learned
A.G.A.has
no
objection to the prayer made by the learned
counsel for applicant.

6. Having heard the learned
counsel for applicant, the learned A.G.A.
for State and considering the submissions
urged by the learned counsel for applicant
as noted herein above, the prayer prayed
for by means of present application is
refused.

7. However, liberty is granted to
applicants to approach court below by
means of a discharge application under
Section 227 Cr.P.C. within a period of two
weeks from today. In case applicant
appears before court below and files
discharge application, court below shall
enlarge the applicant on interim bail and,
thereafter, decide the application for
discharge filed by applicant within a period
of one month form the date of presentation
of a certified copy of this order by a
reasoned
and
speaking
order.
The
protection granted by court below shall
come to an end automatically after the
order is passed by court below on the
discharge application.

8. With the aforesaid directions,
this application is finally disposed of."
9 All. Sanjeev Nayan Mishra Vs. State of U.P. & Ors.
1415

4. In compliance of the said order the
application for discharge and another
application supplementing it was moved
which has been rejected and is now the
subject matter of the present revision.

5. The facts of the case are that the
revisionist was working as the District
Social Welfare Officer and retired from
service on 31.07.2019. The allegation
against the revisionist is that during the
check period 02.02.1990 to 30.03.2016
after calculation of his income and
expenditure, disproportionate income to the
tune of Rs. 42,15,150/- was found and as
such after enquiry a First Information
Report
was
lodged
against
him
on
26.10.2020, under Sections 13 (1) (b) and
Section 13 (2) of Prevention of Corruption
Act, 1988 by Smt. Neelam, Inspector, U.P.
Vigilance Establishment, Meerut, Sector
Meerut.

6. The matter was investigated and a
charge-sheet
dated
20.01.2024
was
submitted under Section 13 (1) (b) r/w
Section
13
(2)
of
Prevention
of
Corruption Act 2018 on which the court
concerned
took
cognizance
and
summoned
him
vide
order
dated
31.01.2024.
Against
the
same,
the
revisionist preferred a petition under
Section 482 Cr.P.C. before this Court
which was disposed of by the order
dated 16.07.2024 which is quoted herein
above. Subsequent to the disposal of the
petition under Section 482 Cr.P.C. of the
revisionist, the revisionist preferred an
application dated 26.07.2024 numbered
as Paper No. 53 Ka, under Section 227
Cr.P.C. claiming discharge. Further an
application No. 57 Kha with additional
grounds was moved by the revisionist
for the same. Both the applications stand
rejected vide the order impugned herein.

7. Learned counsel for the revisionist
submitted
that
the
rejection
of
the
application for discharge of the revisionist
is totally based on misreading of material
on record and without appreciating the
same in its true prospective. It is submitted
that although in the first information report
it is stated that income of Rs. 42,15,150/- is
shown to be disproportionate but in the
charge-sheet the said amount shown is Rs.
31,75,590/- and thus the whole prosecution
story becomes suspicious. It is submitted
that as a matter of fact the revisionist
retired on 31.07.2019 but the Investigating
Officer has shown his retirement as
30.03.2016 which would also go to show
that investigation has not been conducted
seriously. It is further submitted that salary
of Smt. Beena Mishra, wife of the
revisionist for the months of July 2010 to
March 2012 and even the properties in the
name of the dependents of the revisionist
have
wrongly
been
shown
in
the
calculation. It is submitted that the income
of the revisionist has not been calculated
properly. It is further submitted that the
trial court concerned has not applied its
judicial
mind
while
deciding
the
application for discharge and has in a
mechanical manner dismissed the same. It
is submitted that as such the revision be
allowed and the order impugned be setaside and the revisionist be discharged.

8. Per contra, learned counsel for the
State opposed the prayer and submitted that
the revisionist was a Government servant.
After investigation it has been found that
there are disproportionate assets with him
and thus charge-sheet was submitted
against him on which the court concerned
has taken cognizance and summoned him.
It is submitted that in so far as the order
summoning the revisionist is concerned,
the same has attained finality as although
1416 INDIAN LAW REPORTS ALLAHABAD SERIES
the same was challenged before this Court
but the same was not interfered and liberty
was granted to him to claim discharge. It is
submitted that the trial court has considered
his applications for discharge in a detailed
manner and has meticulously returned a
finding that the material available on record
does not call for the accused to be
discharged and thus rejected his said
applications. It is submitted that in so far as
the factum of accounting of income is
concerned, the same is a matter of trial
which needs to be considered at the
appropriate stage by the trial court. It is
submitted that the revision is devoid of any
merit and be dismissed.

9. After hearing the learned counsels
for the parties and perusing the records, it is
evident that the revisionist was a public
servant. Subsequent to an enquiry for the
relevant check period with regards to
disproportionate a first information report
was lodged against him. The matter was
investigated and the investigating agency
submitted a charge-sheet against him on
which the court concerned has taken
cognizance and summoned him. The
summoning order was challenged before
this Court which was not interfered but
liberty was granted to him to claim
discharge.
The
revisionist
moved
applications for discharge which has been
rejected vide the order impugned which is
the subject matter of challenge before this
Court. In so far as calculation of income is
concerned, the same cannot be looked into
at this stage. The same is a matter of trial.
The application for discharge has been
rejected by this trial court by a well
reasoned and speaking order.

10. The law with regards to discharge
of accused, framing of charge and powers
of revision under Section 397 Cr.P.C. is
well settled.

11. An accused can also be
discharged as per Section 227, 239 Cr.P.C.
They read as under:

"Section 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 not sufficient ground
for proceeding against the accused, he
shall discharge the accused and record his
reasons for so doing."

"Section 239 Cr.P.C. Discharge
- If, upon considering the police report and
the documents sent with it under section
173 and making such examination, if any,
of the accused as the Magistrate thinks
necessary and after giving the prosecution
and the accused an opportunity of being
heard, the Magistrate considers the charge
against the accused to be groundless, he
shall discharge the accused, and record his
reasons for doing so."

12. The Apex Court, in the case of
Sajjan Kumar Vs. C.B.I. : (2010) 9 SCC
368, held that at the time of framing of
charge, the Court has to look at all the
material placed before it and determine
whether a prima facie case is made out or
not, and the court is not required to
consider the evidentiary value of the
evidence as any question of admissibility or
reliability of evidence is a matter of trial.
The relevant portion of the judgment is
reproduced below:

"21. On consideration of the
authorities about scope of Sections 227 and
9 All. Sanjeev Nayan Mishra Vs. State of U.P. & Ors.
1417
228 of the Code, the following principles
emerge:

(i) The Judge while considering
the question of framing the charges under
Section 227 of the Cr.P.C. 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
discloses 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."

13. In Amit Kapoor Vs. Ramesh
Chander : (2012) 9 SCC 460, the Apex
Court enlisted certain principles with
reference to exercise of power under
Section 397 and Section 482 of Cr.P.C. by
the Courts while deciding as to whether the
charges framed against an accused be
quashed or not. The principles listed are as
under:

"27. Having discussed the scope
of jurisdiction under these two provisions,
i.e., Section 397 and Section 482 of the
Code and the fine line of jurisdictional
distinction, now it will be appropriate for
us to enlist the principles with reference to
which the courts should exercise such
jurisdiction. However, it is not only difficult
but is inherently impossible to state with
precision such principles. At best and upon
objective analysis of various judgments of
this Court, we are able to cull out some of
the principles to be considered for proper
exercise of jurisdiction, particularly, with
regard to quashing of charge either in
exercise of jurisdiction under Section 397
1418 INDIAN LAW REPORTS ALLAHABAD SERIES
or Section 482 of the Code or together, as
the case may be:

27.1. Though there are no limits
of the powers of the Court under Section
482 of the Code but the more the power,
the more due care and caution is to be
exercised in invoking these powers. The
power of quashing criminal proceedings,
particularly, the charge framed in terms of
Section 228 of the Code should be
exercised
very
sparingly
and
with
circumspection and that too in the rarest of
rare cases.

27.2. The Court should apply the
test as to whether the uncontroverted
allegations as made from the record of the
case
and
the
documents
submitted
therewith prima facie establish the offence
or not. If the allegations are so patently
absurd and inherently improbable that no
prudent person can ever reach such a
conclusion and where the basic ingredients
of a criminal offence are not satisfied then
the Court may interfere.

27.3. The High Court should not
unduly
interfere.
No
meticulous
examination of the evidence is needed for
considering whether the case would end in
conviction or not at the stage of framing of
charge or quashing of charge.

27.4. Where the exercise of such
power is absolutely essential to prevent
patent miscarriage of justice and for
correcting some grave error that might be
committed by the subordinate courts even
in such cases, the High Court should be
loathe to interfere, at the threshold, to
throttle the prosecution in exercise of its
inherent powers.

27.5. Where there is an express
legal bar enacted in any of the provisions
of the Code or any specific law in force to
the very initiation or institution and
continuance of such criminal proceedings,
such a bar is intended to provide specific
protection to an accused.

27.6. The Court has a duty to
balance the freedom of a person and the
right of the complainant or prosecution to
investigate and prosecute the offender.

27.7. The process of the Court
cannot be permitted to be used for an
oblique or ultimate/ulterior purpose.

27.8. Where the allegations made
and as they appeared from the record and
documents
annexed
therewith
to
predominantly give rise and constitute a
'civil
wrong'
with
no
'element
of
criminality' and does not satisfy the basic
ingredients of a criminal offence, the Court
may be justified in quashing the charge.
Even in such cases, the Court would not
embark upon the critical analysis of the
evidence.

27.9. Another very significant
caution that the courts have to observe is
that it cannot examine the facts, evidence
and materials on record to determine
whether there is sufficient material on the
basis of which the case would end in a
conviction,
the
Court
is
concerned
primarily with the allegations taken as a
whole whether they will constitute an
offence and, if so, is it an abuse of the
process of court leading to injustice.

27.10. It is neither necessary nor
is the court called upon to hold a fullfledged enquiry or to appreciate evidence
collected by the investigating agencies to
find out whether it is a case of acquittal or
conviction.

27.11. Where allegations give
rise to a civil claim and also amount to an
offence, merely because a civil claim is
maintainable, does not mean that a
criminal complaint cannot be maintained.

27.12.
In
exercise
of
its
jurisdiction under Section 228 and/or
under Section 482, the Court cannot take
9 All. Sanjeev Nayan Mishra Vs. State of U.P. & Ors.
1419
into consideration external materials given
by an accused for reaching the conclusion
that no offence was disclosed or that there
was possibility of his acquittal. The Court
has to consider the record and documents
annexed with by the prosecution.

27.13. Quashing of a charge is an
exception to the rule of continuous
prosecution. Where the offence is even
broadly satisfied, the Court should be more
inclined
to
permit
continuation
of
prosecution rather than its quashing at that
initial stage. The Court is not expected to
marshal the records with a view to decide
admissibility
and
reliability
of
the
documents or records but is an opinion
formed prima facie.

27.14. Where the charge-sheet,
report under Section 173(2) of the Code,
suffers from fundamental legal defects, the
Court may be well within its jurisdiction to
frame a charge.

27.15. Coupled with any or all of
the above, where the Court finds that it
would amount to abuse of process of the
Code or that interest of justice favours,
otherwise it may quash the charge. The
power is to be exercised ex debito justitiae,
i.e. to do real and substantial justice for
administration of which alone, the courts
exist.

27.16. These are the principles
which
individually
and
preferably
cumulatively (one or more) be taken into
consideration as precepts to exercise of
extraordinary and wide plenitude and
jurisdiction under Section 482 of the Code
by the High Court. Where the factual
foundation for an offence has been laid
down, the courts should be reluctant and
should not hasten to quash the proceedings
even on the premise that one or two
ingredients have not been stated or do not
appear to be satisfied if there is substantial
compliance to the requirements of the
offence."

14. In the case of Asim Shariff v.
National Investigation Agency : (2019) 7
SCC 148, it was reiterated by the Apex
Court that the trial court is not supposed to
divulge the evidence on the record to
determine whether the accused would get
acquitted or convicted if a particular charge
is framed against an accused. The relevant
portion of the observation of the court in
the case is as under:

"18. Taking note of the exposition
of law on the subject laid down by this Court,
it is settled that the Judge while considering
the question of framing charge under Section
227 CrPC 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
possible and one of them giving rise to
suspicion only, as distinguished from grave
suspicion against the accused, the trial Judge
will be justified in discharging him. It is thus
clear that while examining the discharge
application filed under Section 227 CrPC, it
is expected from the trial Judge to exercise its
judicial mind to determine as to whether a
case for trial has been made out or not. It is
true that in such proceedings, the court is not
supposed to hold a mini trial by marshalling
the evidence on record."

15. Further, in the case of Vikram
Johar v. State of Uttar Pradesh : 2019
SCC OnLine SC 609 the Apex Court has
1420 INDIAN LAW REPORTS ALLAHABAD SERIES
reiterated that during the stage of charge,
the court must not conduct a mini-trial and
the decision should be based on the prima
facie appreciation of the materials placed
on record. The relevant portion of the said
judgment is as under:

"19. It is, thus, clear that while
considering the discharge application, the
Court is to exercise its judicial mind to
determine whether a case for trial has been
made out or not. It is true that in such
proceedings, the Court is not to hold the
mini trial by marshalling the evidence."

16. The Apex Court in Bhawna Bai
Vs. Ghanshyam : (2020) 2 SCC 217, has
observed as under:-

"13. ...At the time of framing the
charges, only prima facie case is to be
seen; whether case is beyond reasonable
doubt, is not to be seen at this stage. At the
stage of framing the charge, the court has
to see if there is sufficient ground for
proceeding against the accused. While
evaluating the materials, strict standard of
proof is not required; only prima facie case
against the accused is to be seen."

17. In M.E. Shivalingamurthy Vs.
CBI : (2020) 2 SCC 768, the Hon'ble Apex
Court, while discussing the principles to be
followed while dealing with an application
seeking discharge, observed as under:

"i. If two views are possible and
one of them gives rise to suspicion only as
distinguished from grave suspicion, the
Trial Judge would be empowered to
discharge the accused.

ii. The Trial Judge is not a mere
Post Office to frame the charge at the
instance of the prosecution.

iii. The Judge has merely to sift
the evidence in order to find out whether or
not
there
is
sufficient
ground
for
proceeding. Evidence would consist of the
statements recorded by the Police or the
documents produced before the Court.

iv. 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 the defence evidence, if any,
"cannot show that the accused committed
offence, then, there will be no sufficient
ground for proceeding with the trial.

v. It is open to the accused to
explain away the materials giving rise to
the grave suspicion.

vi. The court has to consider the
broad probabilities, the total effect of the
evidence and the documents produced
before the court, any basic infirmities
appearing in the case and so on. This,
however, would not entitle the court to
make a roving inquiry into the pros and
cons.

vii. At the time of framing of the
charges, the probative value of the material
on record cannot be gone into, and the
material
brought
on
record by
the
prosecution, has to be accepted as true.

viii. There must exist some
materials for entertaining the strong
suspicion which can form the basis for
drawing up a charge and refusing to
discharge the accused..."

18. The Apex Court decision in State
of Rajasthan Vs. Ashok Kumar Kashyap :
2021 SCC OnLine SC 314, held that the at
the stage of framing of the charge and/or
considering the discharge application, a
mini trial is not permissible. The Court
observed that the position of law that
emerges
is
that
at
the
stage
of
discharge/framing of charge, the Judge is
9 All. Sanjeev Nayan Mishra Vs. State of U.P. & Ors.
1421
merely required to take note of the material
on record in order to find out whether or
not
there
is
sufficient
ground
for
proceeding against the accused.

19. In the case of State of Rajasthan
Vs. Ashok Kumar Kashyap : 2021 SCC
OnLine SC 314, the Apex Court held that
the evaluation of evidence on merits is not
permissible at the stage of considering the
application for discharge. At the stage of
framing of the charge and/or considering
the discharge application, a mini trial is not
permissible. It has been held as under:

"23. In the case of P. Vijayan
(supra), this Court had an occasion to
consider Section 227 of the Cr.P.C. What is
required to be considered at the time of
framing of the charge and/or considering
the
discharge
application
has
been
considered elaborately in the said decision.
It is observed and held that at the stage of
Section 227, the Judge has merely to sift
the evidence in order to find out whether or
not
there
is
sufficient
ground
for
proceeding against the accused. It is
observed
that
in
other
words,
the
sufficiency of grounds would take within its
fold the nature of the evidence recorded by
the police or the documents produced
before the Court which ex facie disclose
that there are suspicious circumstances
against the accused so as to frame a charge
against him. It is further observed that if
the Judge comes to a conclusion that there
is sufficient ground to proceed, he will
frame a charge under Section 228 Cr.P.C.,
if not, he will discharge the accused. It is
further observed that while exercising its
judicial mind to the facts of the case in
order to determine whether a case for trial
has been made out by the prosecution, it is
not necessary for the court to enter into the
pros and cons of the matter or into a
weighing and balancing of evidence and
probabilities which is really the function of
the court, after the trial starts."

20. The Apex Court, in State of T.N.
v. R. Soundirarasu : (2023) 6 SCC 768 has
held that discharge claimed by contending
that the Investigating officer has not
considered the proper explanation and
income of other family members and also
failed to consider the assets lawfully
acquired by the wife is not tenable since the
accused public servant does not have a
right to be afforded a chance to explain the
alleged disproportionate assets to the
investigating Office before the filing of
charge-sheet. It has been held as under:

"45. In K. Veeraswami [K.
Veeraswami v. Union of India, (1991) 3
SCC 655 : 1991 SCC (Cri) 734] , this
Court held thus : (SCC p. 715, para 75)

"75... since the legality of the
charge-sheet has been impeached, we will
deal with that contention also. Counsel laid
great emphasis on the expression "for
which he cannot satisfactorily account"
used in clause (e) of Section 5(1) of the Act.
He argued that that term means that the
public servant is entitled to an opportunity
before the investigating officer to explain
the alleged disproportionality between
assets and the known sources of income.
The investigating officer is required to
consider his explanation and the chargesheet filed by him must contain such
averment. The failure to mention that
requirement would vitiate the charge-sheet
and renders it invalid. This submission, if
we may say so, completely overlooks the
powers of the investigating officer. The
investigating officer is only required to
collect material to find out whether the
offence alleged appears to have been
committed.
In
the
course
of
the
1422 INDIAN LAW REPORTS ALLAHABAD SERIES
investigation, he may examine the accused.
He may seek his clarification and if
necessary, he may cross check with him
about his known sources of income and
assets possessed by him. Indeed, fair
investigation requires as rightly stated by
Mr A.D. Giri, learned Solicitor General,
that the accused should not be kept in
darkness.
He
should
be
taken
into
confidence if he is willing to cooperate. But
to state that after collection of all material
the investigating officer must give an
opportunity to the accused and call upon
him to account for the excess of the assets
over the known sources of income and then
decide
whether
the
accounting
is
satisfactory or not, would be elevating the
investigating officer to the position of an
enquiry
officer
or
a
Judge.
The
investigating officer is not holding an
enquiry against the conduct of the public
servant or determining the disputed issues
regarding the disproportionality between
the assets and the income of the accused.
He just collects material from all sides and
prepares a report which he files in the
court as charge-sheet."
(emphasis supplied)
*******

75. The ambit and scope of
exercise of power under Sections 239 and
240 of the CrPC, are therefore fairly well
settled. The obligation to discharge the
accused under Section 239 arises when the
Magistrate considers the charge against
the accused to be "groundless". The Section
mandates
that
the
Magistrate
shall
discharge the accused recording reasons, if
after (i) considering the police report and
the documents sent with it under Section
173,
(ii)
examining
the
accused,
if
necessary, and (iii) giving the prosecution
and the accused an opportunity of being
heard, he considers the charge against the
accused to be groundless, i.e., either there
is no legal evidence or that the facts are
such that no offence is made out at all. No
detailed evaluation of the materials or
meticulous consideration of the possible
defences need be undertaken at this stage
nor any exercise of weighing materials in
golden scales is to be undertaken at this
stage - the only consideration at the stage
of Section 239/240 is as to whether the
allegation/charge is groundless.

76. This would not be the stage
for weighing the pros and cons of all the
implications of the materials, nor for sifting
the materials placed by the prosecution the
exercise at this stage is to be confined to
considering the police report and the
documents
to
decide
whether
the
allegations against the accused can be said
to be "groundless".

77. The word "ground" according
to the Black's Law Dictionary connotes
foundation or basis, and in the context of
prosecution in a criminal case, it would be
held to mean the basis for charging the
accused or foundation for the admissibility
of evidence. Seen in the context, the word
"groundless" would connote no basis or
foundation in evidence. The test which may,
therefore, be applied for determining
whether the charge should be considered
groundless is that where the materials are
such that even if unrebutted, would make
out no case whatsoever.

79. Thus, the revisional power
cannot be exercised in a casual or
mechanical manner. It can only be
exercised to correct manifest error of law
or
procedure
which
would
occasion
injustice, if it is not corrected. The
revisional power cannot be equated with
the appellate power. A Revisional Court
cannot undertake meticulous examination
of the material on record as it is
undertaken by the trial court or the
appellate court. This power can only be
9 All. Sanjeev Nayan Mishra Vs. State of U.P. & Ors.
1423
exercised if there is any legal bar to the
continuance of the proceedings or if the
facts as stated in the charge-sheet are taken
to be true on their face value and accepted
in their entirety do not constitute the
offence for which the accused has been
charged. It is conferred to check grave
error of law or procedure."

21. In the case of Manendra Prasad
Tiwari Vs. Amit Kumar Tiwari : 2022
SCC OnLine SC 1057, the Apex Court has
explained the well-settled law on exercise
of powers under Section 397 and 482
Cr.P.C. as under:

"21. The law is well settled that
although it is open to a High Court
entertaining a petition under Section 482 of
the CrPC or a revision application under
Section 397 of the CrPC to quash the
charges framed by the trial court, yet the
same cannot be done by weighing the
correctness or sufficiency of the evidence.
In a case praying for quashing of the
charge, the principle to be adopted by the
High Court should be that if the entire
evidence produced by the prosecution is to
be believed, would it constitute an offence
or not. The truthfulness, the sufficiency and
acceptability of the material produced at
the time of framing of a charge can be done
only at the stage of trial. To put it more
succinctly, at the stage of charge the Court
is to examine the materials only with a view
to be satisfied that prima facie case of
commission of offence alleged has been
made out against the accused person. It is
also well settled that when the petition is
filed by the accused under Section 482
CrPC or a revision Petition under Section
397 read with Section 401 of the CrPC
seeking for the quashing of charge framed
against him, the Court should not interfere
with the order unless there are strong
reasons to hold that in the interest of
justice and to avoid abuse of the process of
the Court a charge framed against the
accused needs to be quashed. Such an
order can be passed only in exceptional
cases and on rare occasions. It is to be kept
in mind that once the trial court has framed
a charge against an accused the trial must
proceed without unnecessary interference
by a superior court and the entire evidence
from the prosecution side should be placed
on record. Any attempt by an accused for
quashing of a charge before the entire
prosecution evidence has come on record
should not be entertained sans exceptional
cases.

22. The scope of interference and
exercise of jurisdiction under Section 397
of CrPC has been time and again explained
by this Court. Further, the scope of
interference under Section 397 CrPC at a
stage, when charge had been framed, is also
well settled. At the stage of framing of a
charge, the court is concerned not with the
proof of the allegation rather it has to focus
on the material and form an opinion
whether there is strong suspicion that the
accused has committed an offence, which if
put to trial, could prove his guilt.