# Shiv Shanker Soni Revisionist v. State of U.P. & Anr

- **Citation:** (2023) 11 ILRA 91
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-11-02
- **Case number:** Criminal Revision No. 4600 of 2023
- **Bench:** Shiv Shanker Prasad
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shiv-shanker-soni-revisionist-v-state-of-u-p-anr-49439
- **Pages:** 20

## Headnote

Criminal Law - Indian Penal Code, 1860 -
Sections 323, 504, 376 & 313 - Against
framing of charge - Code of Criminal
Procedure, 1973 - Sections 161, 164 &
227 - Indian Evidence Act, 1872 - Section
65 (B) (4) - In 2018, revisionist became
acquainted
with
opposite
party
no.2/married lady and while she was
waiting
at
Railway
Station,
he
was
working as Ticket Collector, took her to
Retiring Room, raped her and repeatedly
raped her under pretext of marriage and
by blackmail, also forcing her to abort her
pregnancy - After registration of FIR,
Investigating Officer collected evidence,
filed charge sheet - Magistrate took
cognizance, summoned him - Case was
committed
to
Sessions
Court,
which
framed charges - Impugned order - Once
charges are framed, question of discharge
becomes redundant, Court can either
convict or acquit - In instant case, charges
framed
on
05.12.2022,
Court
cannot
examine veracity of that order whereby
discharge plea not considered - Examining
charge-framing order in light of Section
228 Cr.P.C. and Apex Court's ruling in
92 INDIAN LAW REPORTS ALLAHABAD SERIES
Bhawna
Bai
v.
Ghanshyam
(infra),
offences under aforesaid Sections of IPC
cannot be ruled out against revisionist.
(Para 5, 6, 17, 21)

Revision dismissed. (E-13)

List of Cases cited:

## Text

_Characters 0–39,774 of 69,169. This is a partial read: ask again with offset=39774 for what follows._

11 All. Shiv Shanker Soni Vs. State of U.P. & Anr.
91
questions, especially regarding the sexual
history of the aggrieved woman. Crossexamination may also be conducted such
that the counsel for the accused submits her
questions to the court, who then poses them
to the aggrieved woman;

d. Completing cross-examination
in one sitting, as far as possible.

36. Before closing, it is necessary
to clarify that this Court has not expressed
any opinion on the allegations which have
been levelled in the complaint. It is for the
investigating officer to investigate those
allegations in accordance with law."

15. Considering the facts of this case
and nature of allegations levelled by the
applicant, this Court finds substance in the
submissions made by the learned counsel
for the revisionist and the case laws
referred by him therefore, this Court is of
the view that proper investigation is needed
in the case in hand, therefore impugned
order is not sustainable.

16. In view of discussion made above,
present criminal revision succeeds and is
liable to be allowed.

17. It is accordingly allowed.

18. The impugned judgment and order
dated
05.11.2022
passed
by
learned
Additional Sessions Judge/ Special Judge
(POCSO Act), Bulandshahar in Criminal
Misc. Case No. 717 of 2022 (Rajina Vs.
Nishar and others), under Section 156(3)
Cr.P.C.,
Police
Station
Jahangirabad,
District Bulandshahar is hereby quashed.
The matter is remanded to concerned Judge
to decide application under Section 156(3)
afresh in the light of observations made
herein above within a period of two months
from the date of production of a certified
copy/computer generated copy of this order
which shall be filed by the revisionist
before court below by means of an
affidavit.
----------
(2023) 11 ILRA 91
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 02.11.2023
BEFORE

THE HON'BLE SHIV SHANKER PRASAD, J.

Criminal Revision No. 4600 of 2023

Shiv Shanker Soni ...Revisionist
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionist:
Sri Bipin Kumar Tripathi

Counsel for the Opposite Parties:
G.A., Sri Manoj Kumar

Criminal Law - Indian Penal Code, 1860 -
Sections 323, 504, 376 & 313 - Against
framing of charge - Code of Criminal
Procedure, 1973 - Sections 161, 164 &
227 - Indian Evidence Act, 1872 - Section
65 (B) (4) - In 2018, revisionist became
acquainted
with
opposite
party
no.2/married lady and while she was
waiting
at
Railway
Station,
he
was
working as Ticket Collector, took her to
Retiring Room, raped her and repeatedly
raped her under pretext of marriage and
by blackmail, also forcing her to abort her
pregnancy - After registration of FIR,
Investigating Officer collected evidence,
filed charge sheet - Magistrate took
cognizance, summoned him - Case was
committed
to
Sessions
Court,
which
framed charges - Impugned order - Once
charges are framed, question of discharge
becomes redundant, Court can either
convict or acquit - In instant case, charges
framed
on
05.12.2022,
Court
cannot
examine veracity of that order whereby
discharge plea not considered - Examining
charge-framing order in light of Section
228 Cr.P.C. and Apex Court's ruling in
92 INDIAN LAW REPORTS ALLAHABAD SERIES
Bhawna
Bai
v.
Ghanshyam
(infra),
offences under aforesaid Sections of IPC
cannot be ruled out against revisionist.
(Para 5, 6, 17, 21)

Revision dismissed. (E-13)

List of Cases cited:

1. Ravindra Singh @ Kakku Vs St. of Punj.
reported in (2022) (live law (SC) 461

2. Dr. Dhruvaram Murlidhar Sonar Vs St. of
Mah. reported in 2019 (1) JIC-784 (SC)

3. Tilakraj Vs St. of H.P. reported in (2016)
2 SCC (Crl.) 247

4. Maheshwar Tigga Vs St. of Jharkhand
reported in 2020 (0) Supreme (SC) 561

5. Shambhu Kharwar Vs St. of U.P. &
ors.reported in MANU/SC/1011/2022

6. Naim Ahmad Vs St. of NCT of Delhi
reported in 2023 (Live Law) SC 66

7. Yogesh Joshi Vs St. of Mah. reported in
AIR 2008 Supreme Court 2971, (Paras 13 to
15)

8. Tarun Jit Tejpal Vs St. of Goa & anr.,
reported in 2019 SCC Online SC 1053,
(Paras 27 to 32)

9. Bhawna Bai Vs Ghanshyam & ors.,
reported in 2020 (2) SCC, 217, (Paras 15,
16)

10. Ratilal Bhanji Mithani Vs St. of Mah. &
ors. reported in (1979) 2 SCC 179, (Para
28) (Followed)

11. Bharat Parikh Vs C.B.I. & anr. reported
in (2008) 10 SCC 109, (Para 16)

12. State through C.B.I. New Delhi Vs Jitendra
Kumar Singh reported in (2014) 11 SCC, 724,
(Para 40)

13. Hardeep Singh Vs St. of Punj., reported in
(2014) 3 SCC, 92, (Para 31)

14. St. of Guj. Vs Dilipsinh Kishorsinh Rao
reported in 2023 SCC OnLine SC 1294, (Paras 7
to 18)

(Delivered by Hon'ble Shiv Shanker
Prasad, J.)

1. This criminal revision under
Section 397/401 Cr.P.C. has been filed by
the revisionist with a prayer to quash the
judgment and order dated 5th December,
2022 passed by the Additional Sessions
Judge/F.T.C.-I (Crime Against Women),
Gorakhpur in Special Case No. 2133 of
2022 (State of U.P. Vs. Shiv Shankar Soni),
arising out of Case Crime No. 410 of 2022,
323, 504, 376 and 313 I.P.C., Police
Station-Cantt. District-Gorakhpur, whereby
the charges under Sections 376, 313, 323
and 504 I.P.C. have been framed against the
accused-revisionist and also the prayer
made on behalf of the revisionist before the
trial judge for discharge has not been
considered.

2. I have heard Mr. Bipin Kumar
Tripathi, learned counsel for the revisionist,
Mr. Manoj Kumar, learned counsel for
opposite party no.2 and Mr. Ratnesh Kumar
Singh, learned A.G.A. for the State.

Case of the Revisionist

3. Victim/informant/opposite party
no.2 is a married lady and has developed
physical relationship with the revisionist
for a long period of four years with her own
free will and without any pressure. The
marriage of the victim/ informant was
solemnized on 27.5.2015 with one Jay
Singh and from the aforesaid wedlock, two
children; (1) Ansh Singh (2) Shreyansh
Singh were born, as is evident from the
statements of Ramdaras Singh (real uncle
of informant) and Smt. Babita devi (real
11 All. Shiv Shanker Soni Vs. State of U.P. & Anr.
93
sister of the victim informant) recorded
under Section 161 Cr.P.C. As per the own
statement of the informant/victim recorded
under section 164 Cr.P.C., after one year of
her marriage, her husband Jay Singh used
to quarrel with her in intoxicating state due
to which the relation between the wife and
husband i.e. informant and her husband
became
strained
and
incompatible.
However it transpires from the statement of
the
informant/victim
recorded
under
Section 161 Cr.P.C. that after two years of
marriage, her husband Jay Singh went
Abroad (OMAN) and thereafter the victim/
informant without divorcing her husband
legally,
had
established
physical
relationship with the accused-revisionist on
her own free will. Admittedly, the victim/
informant had remained in a consensual
physical relationship with the revisionist
for about 4 years without getting herself
divorced with her husband Jay Singh and as
such she had well within her knowledge
that she could not marry the revisionist
without divorce, as such the allegation
made by the informant/victim against the
revisionist that he had established physical
relationship with her on the promise to
marry her has no legs to stand. Such
relationship comes within the definition of
extra-marital relationship with the consent
of both the parties and not within the ambit
of offence under Section 376 I.P.C. Further
allegation of the victim against the
revisionist
that
from
the
physical
relationship
of
the
victim
with
the
revisionist, a boy, namely, Shreyansh was
born, also does not arise, as from the birth
certificate issued by C.H.C. Kaptanganj the
date of birth of Shreyansh Singh is
10.11.2019
showing
parentage/father's
name as Jay Singh, as such the said
allegation has only been made to launch
malicious criminal prosecution against the
revisionist and just to blackmail and
exploit him as he is a railway government
servant having unmarried status.

4. So far as the allegation made by
the victim in the F.I.R. that on 22.4.2022
the revisionist assaulted in the stomach of
the victim which caused miscarriage of her
unborn child is concerned, it is the case of
the
revisionist
that
the
USG
and
Ultrasonography reports of the victim
dated 17th April, 2022 and 1st April, 2022
disclose that there was no any kind of
miscarriage of unborn child. In case the
revisionist has persuaded to abort the
unborn child of the victim, then there
should have been any kind of prompt
complaint against him before registration
of the FIR. From the evidence collected by
the Investigating Officer through the
statements of Ramdaras Singh and Smt.
Babita Devi (real sister of the victim)
recorded under Section 161 Cr.P.C. there
was dispute of money transaction between
the victim and the revisionist and for such
payment of money an altercation and
quarrel took place between them which
resulted in strained relations between them
also and consequently, the malicious
criminal prosecution has been launched by
the victim/ informant. The real fact is that
since the husband of the victim/ informant
was residing abroad (OMAN) and from
the aforesaid wedlock two boys, namely,
Shreyansh and Ansh were born and after
departing of her husband to abroad, she
has established extra marital relationship
with the revisionist on her own free will
and due to family and society pressure, she
herself decided to abort the pregnancy
conceived by her and now she is
developing the things just to make out the
case and she often used to come to the
rental accommodation of the revisionist
with undue demand of huge amount to
settle the matter.
94 INDIAN LAW REPORTS ALLAHABAD SERIES

The case of the victim/informant

5. In the year 2018 the revisionist
acquainted with the opposite party no.2 and
on 29.01.2019 when opposite party no.2
was waiting for train at the Gorakhpur
Railway Station, revisionist, who was
working as Ticket Collector met her and
took her to Retiring Room of the Station,
where he committed rape upon her
forcefully and thereafter on the promise to
marry her as also on blackmailing, he
committed rape upon her time and again
and he also forced her to abort her
pregnancy.

6. After registration of the first
information report against the revisionist,
the Investigating Officer proceeded with
the investigation and after collecting the
relevant evidence and materials, submitted
the charge sheet under Section 323, 504.
376, 313 1.P.C. against the revisionist on
11.09.2022
upon
which
concerned
Magistrate took cognizance of offence and
summoned the revisionist for facing the
trial
vide
order
dated
23.09.2022.
Thereafter the case has been committed to
the Court of Sessions, where the charges
have been framed against the revisionist
under Section 323, 504, 376, 313 I.P.C.
vide order impugned dated 05.12.2022. It is
against this order that the present criminal
revision
has
been
filed
by
the
revisionist.

7. Submission of the learned
counsel for the revisionist

(I) From the perusal of entire
material available in the case diary, no
offence under 323, 504, 376, 313 I.P.C.,
is made out against the revisionist.

(II) The trial court in a very
routine and casual manner framed the
charges against the revisionist while
passing the impugned order without
evaluating the material collected by the
Investigating Officer during the course
of investigation.

(III)
The
revisionist
was
arrested on 26.7.2022 pursuant to the
present criminal case during his custody
the Investigating Officer concluded the
investigation by filing charge-sheet
dated
11.9.2022
and
the
learned
Magistrate has taken cognizance vide
order dated 23.9.2022 and further the
trial court framed the charges on
5.12.2022 and the revisionist was
through out remained in custody and he
was granted bail pursuant to order dated
14.12.2022 and therefore at no point of
time,
he
has
been
provided
any
opportunity of seeking legal remedy
against the cognizance order as well as
the order of framing charge and as such
the entire criminal prosecution is bad in
the eye of law.

(IV)
The
victim/informant
herself was a married and grown-up
lady and without divorcing her husband
Jay Singh as per the law, claimed to
have
established
extra-marital
relationship with the revisionist on her
own free will and now for want of
money from the revisionist, she has
initiated the present malicious criminal
prosecution in the shape of denial of
promise to marry and therefore the
entire prosecution story appears to be
malafide and prima-facie no offence
against the revisionist is made out.

(V) So far as the screen shot of
communication on Whatsapp between the
victim and the revisionist, which is part of
the case diary is concerned, it is submitted
by the learned counsel for the revisionist
that such electronic evidence cannot be
admissible as per Section 65 (B) (4) Indian
11 All. Shiv Shanker Soni Vs. State of U.P. & Anr.
95
Evidence Act as also in view of the latest
judgment of the Hon'ble Supreme court in
the case of Ravindra Singh alias Kakku
Versus State of Punjab reported in (2022)
(live law (SC) 461.

(VI) In the totality of facts and
circumstances, it is a case of consensual
physical relation with the revisionist of a
married lady who already had two children
born from the wedlock of her marriage with
Jai Singh and belatedly after 4 to 5 years
the victim/ informant came with the
malicious criminal prosecution just to
blackmail and exploit the revisionist, who
is a public servant. The victim/ informant at
every
stage
of
her
statements
i.e.
Statements recorded under Sections 161
and
164
Cr.P.C.,
she
has
taken
contradictory stand, whereas in her second
statement recorded under Section 161
Cr.P.C., she has admitted the factum of
dispute between applicant and her in
respect of money transaction.

(VII) In the totality of facts and
circumstances, in absence of legal divorce
being taken from her earlier husband, the
alleged promise of revisionist to marry her
does not arise. Since it is a case of extramarital relationship between two adult and
mature parties, no offence under Section
376 1.P.C. is made out against the
revisionist. Maximum, on the face value of
allegation, it is a case of live-in consensual
relation between married lady and the
revisionist and therefore no offence under
Sections-323, 504, 376, 313 I.P.C., is made
out against the revisionist. The court below
/ learned Magistrate as well as trial court
has arbitrarily taken the cognizance and
framed the charges against the revisionist
while passing the impugned order without
affording opportunity of hearing to the
revisionist for seeking his discharge.

(VIII) Since the revisionist is a
public
servant
posted
as
Assistant
Supervisor in I.R.C.T.C. Railways CPSE,
Central
Government,
the
criminal
prosecution against public servant is barred
by Section 197 Cr.P.C.

In support of his case qua the
consensual physical relations on the pretext
of promise to marry, learned counsel for the
revisionist has referred to the following
judgments of the Apex Court:

(a) Dr. Dhruvaram Murlidhar
Sonar Vs. State of Maharashtra reported
in 2019 (1) JIC-784 (SC);

(b)
Tilakraj
Vs.
State
of
Himanchal Pradesh reported in (2016) 2
SCC (Crl.) 247;

(c) Maheshwar Tigga Vs. State
of Jharkhand reported in 2020 (0)
Supreme (SC) 561;

(d) Shambhu Kharwar Vs.
State of U.P. & Others reported in
MANU/SC/1011/2022; and

(e) Naim Ahmad Vs. State of
NCT of Delhi reported in 2023 (Live Law)
SC 66.

On the cumulative strength of the
aforesaid submissions, learned counsel for
the revisionist submits that the impugned
order is arbitrary, illegal and bad in the eye
of law and as such liable to be set aside in
the facts and circumstances of the present
case in the interest of justice.

8. On the other-hand, the learned
counsel for opposite party no.2 and the
learned A.G.A. for the State have disputed
the submissions made by the learned
counsel for the revisionist by contending
that there is no illegality or infirmity in the
order passed by the trial judge framing
charges against the revisionist.

9. Learned A.G.A. and the learned
counsel for opposite party no.2 then
submits that the material/evidence on
record against the revisionist was found to
96 INDIAN LAW REPORTS ALLAHABAD SERIES
be more than prima facie to show that the
revisionist
indulged
actively
in
the
commission of alleged offence. The trial
judge, while passing the impugned order,
has taken all the precautions and did not
hurriedly frame the charges against the
revisionist. While framing charges against
the revisionist the trial Judge has followed
all the precautions and guidelines as framed
by the Apex Court in its various judgments.

10. The learned A.G.A. and the
learned counsel for opposite party no.2
contend that there is ample material on
record collected during the investigation
against the revisionist which goes to show
that he was actively involved in the
commission of the alleged offence i.e.
rape of the victim etc. The trial Judge has
rightly considered the entire material
collected
during
the
course
of
investigation and thereafter has recorded
its finding that there was more than prima
facie case against the revisionist for
framing of charges against him.

11. Apart from the above, learned
counsel for opposite party no.2 has
submitted as follows:

(i) It is an admitted position that
vide order dated 05.12.2022, charges
have been framed against revisionist and
once charges have been framed, plea of
discharge
becomes
infructuous.
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 or acquit
an accused, but cannot discharge him/her.

(ii) Under the order impugned,
on the basis of grave suspicion as also on
the basis of sufficient material/evidence
on record.

(iii) The present case arises out
of proceedings of Sessions Trial and
consequently, the discharge could be
claimed by revisionist under Section 227
Cr.P.C.
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 Hon'ble
Supreme Court in case of Yogesh Joshi
Vs. State of Maharastra reported in
AIR 2008 Supreme Court 2971.

(iv). 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,
reported in 2019 SCC Online SC 1053.
In a Sessions Trial, charges are framed
under Section 228 Cr.P.C. Parameters
regarding exercise of jurisdiction under
Section 228 Cr. P. C. has now been
considered by a three Judges Bench of
Hon'ble Apex Court in Bhawna Bai Vs.
Ghanshyam and others, reported in 2020
(2) SCC, 217.

(v) On the basis of aforesaid laws
as settled by the Apex Court, it is submitted
that regarding exercise of jurisdiction under
Section 227 Cr.P.C., this Hon'ble Court
examine as to whether after charges have
been framed the issue relating to discharge
of an accused can be considered by court or
not. This issue is no longer res-integra and
stands concluded by the judgment of
Hon'ble Supreme Court in case of Ratilal
Bhanji Mithani Vs. State of Maharastra
and others reported in (1979) 2 SCC 179,
which has been followed in the cases of
Bharat Parikh Vs. C.B.I. and another
reported in (2008) 10 SCC 109; State
through C.B.I. New Delhi Vs. Jitendra
11 All. Shiv Shanker Soni Vs. State of U.P. & Anr.
97
Kumar Singh reported in (2014) 11 SCC,
724 and Hardeep Singh Vs. State of
Punjab, reported in (2014) 3 SCC, 92.

On the cumulative strength of the
aforesaid, learned counsel for opposite
party no.2 submits that considering the
facts and circumstances of the case stated
above, it is expedient in the interest of
justice that this Hon'ble Court may
graciously be pleased to reject/dismiss the
present Criminal Revision in exercise of
powers under Under Section 397/401 of
Cr.P.C..

12. This Court has considered the
submissions made by the learned counsel
for the parties and gone through the records
of the present criminal revision specifically
the order impugned.

13. It is no doubt true that the
discharge can be claimed under Section 227
Cr.P.C., which reads as follows:

"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."

14. The term "sufficient ground" has
been explained by the Apex Court in the
case of Yogesh Joshi (Supra). For ready
reference relevant paragraph nos. 13, 14
and 15 are being extracted herein-below:

"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
98 INDIAN LAW REPORTS ALLAHABAD SERIES
Vs. Ramesh Singh and Prafulla Kumar
Samal (supra)]"

15. The scope and ambit of Section
227 Cr.P.C. has been considered by the
Apex Court in the case of Tarun Jit Tejpal
(Supra), relevant paragraph nos. 27, 28,
29, 30, 31, 32 whereof are being extracted
here-under:

" 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
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 findi 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
11 All. Shiv Shanker Soni Vs. State of U.P. & Anr.
99
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:

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:
100 INDIAN LAW REPORTS ALLAHABAD SERIES

"6. It is well settled by this Court
in a catena of judgments including Union
of India v. Prafulla Kumar Samal [Union of
India v. Prafulla Kumar Samal, (1979) 3
SCC 4 : 1979 SCC (Cri) 609] , Dilawar
Balu Kurane v. State of Maharashtra
[Dilawar
Balu
Kurane
v.
State
of
Maharashtra, (2002) 2 SCC 135 : 2002
SCC (Cri) 310] , Sajjan Kumar v.
CBI[Sajjan Kumar v. CBI, (2010) 9 SCC
368 : (2010) 3 SCC (Cri) 1371] , State v. A.
Arun Kumar [State v. A. Arun Kumar,
(2015) 2 SCC 417 : (2015) 2 SCC (Cri) 96
: (2015) 1 SCC (L&S) 505] , Sonu Gupta v.
Deepak Gupta [Sonu Gupta v. Deepak
Gupta, (2015) 3 SCC 424 : (2015) 2 SCC
(Cri) 265] , State of Orissa v. Debendra
Nath Padhi [State of Orissa v. Debendra
Nath Padhi, (2003) 2 SCC 711 : 2003 SCC
(Cri) 688] , Niranjan Singh Karam Singh
Punjabi
v.
Jitendra
Bhimraj
Bijjaya
[Niranjan Singh Karam Singh Punjabi v.
Jitendra Bhimraj Bijjaya, (1990) 4 SCC 76
: 1991 SCC (Cri) 47] and Supt. &
Remembrancer of Legal Affairs v. Anil
Kumar Bhunja [Supt. & Remembrancer of
Legal Affairs v. Anil Kumar Bhunja, (1979)
4 SCC 274 : 1979 SCC (Cri) 1038] that the
Judge while considering the question of
framing charge under Section 227 of the
Code in sessions cases (which is akin to
Section 239 CrPC pertaining to warrant
cases) has the undoubted power to sift and
weigh the evidence for the limited purpose
of finding out whether or not a prima facie
case against the accused has been made
out; where the material placed before the
court discloses grave suspicion against the
accused which has not been properly
explained, the court will be fully justified
in framing the charge; by and large if two
views are equally possible and the Judge is
satisfied that the evidence produced before
him while giving rise to some suspicion but
not grave suspicion against the accused, he
will be fully within his rights to discharge
the accused. The Judge cannot act merely
as a post office or a mouthpiece of the
prosecution, but has to consider the broad
probabilities of the case, the total effect of
the statements and the documents produced
before the court, any basic infirmities
appearing in the case and so on. This
however does not mean that the Judge
should make a roving enquiry into the pros
and cons of the matter and weigh the
materials as if he was conducting a trial.

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.
11 All. Shiv Shanker Soni Vs. State of U.P. & Anr.
101

(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 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
102 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

(3) The test to determine a prima
facie case would naturally depend upon the
facts of each case and it is difficult to lay
down a rule of universal application. By
and large however if two views are equally
possible and the Judge is satisfied that the
evidence produced before him while giving
rise to some suspicion but not grave
suspicion against the accused, he will be
fully within his right to discharge the
accused.