# Sidhique Kappan v. State of U.P

- **Citation:** (2023) 1 ILRA 800
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-01-16
- **Case number:** Application U/S 482 No. 161 of 2023
- **Bench:** Shree Prakash Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sidhique-kappan-v-state-of-u-p-49682
- **Pages:** 7

## Headnote

A. Criminal Law - Criminal Procedure
Code, 1973 - Sections 227, 228 & 482 -
Discharge - Scope and object - Order of
1 All. Sidhique Kappan Vs. State of U.P.
801
framing of charge was passed without
considering the discharge application -
Legality challenged - Held, the procedure
prescribed in Section 227 of Cr.P.C. for
discharge of the accused is in fact
safeguard and rider so that a person who
has been alleged to commit an offence,
may not be harassed for facing trial
proceedings - Application of mind as well
as assigning reasons for passing the order
under section 227 of Cr.P.C. is of much
importance, which has to care of by the
trial court - High Court set aside the order
of framing of charges. (Para 17 and 22)
B. Criminal Law - Criminal Procedure
Code, 1973 - Sections 227 & 228 -
Discharge
-
Application,
how
far
necessary to be moved by the accused -
Duty of Trial Court - Explained - It is not
incumbent upon the accused that he must
have moved an application for discharge.
Even in a situation that there was no
application for discharge moved, then it is
incumbent upon the trial court to decide it
that whether there is sufficient material
available against the accused so as to
frame charges. (Para 18)
C. Criminal Trial - Criminal Procedure
Code,1973 - Section 304 - Fair trial -
Amicus Curie - Condition of appointment
- Explained - An Amicus Curiae can be
appointed
if
the
accused
is
not
represented by a pleader or the accused
has not sufficient means to engage a
pleader
-
None-fulfillment
of
these
conditions
-
Effect
-
Held,
while
appointing the amicus-curiae, the trial
court did not mention the exigency as is
envisaged in Section 304 of Cr.P.C. and no
judicial mind has been applied while
appointing the Amicus-Curiae. (Para 8 and
20)
Application allowed. (E-1)

## Text

800 INDIAN LAW REPORTS ALLAHABAD SERIES
CrPC, on the basis of which, the charge
sheet was filed by the investigating officer
and name of the applicant was dropped.

The fact that the accused Lalit has
confessed his guilt in his statement under
section 161 CrPC and only one motorcycle
was recovered by the investigating officer
should have also been taken note of, by the
trial court.

7. It is well settled that power under
section 319 CrPC is to be exercised
primarily for providing or espousing the
cause of criminal justice. At the stage of
section 319 CrPC, the trial court is duty
bound to at least look into the material
which persuaded the investigating officer to
file a final report/closure report against an
accused person. The material on the basis
of which the closure report against an
accused has been filed and his name has
been dropped while filing the charge sheet
must be taken note of, by the trial court.
Merely on a statement given by a
prosecution
witness
and
introducing
altogether a new fact for the first time
during trial which is in stark contradiction
to the statement given by that person during
investigation under section 161 CrPC, that
too by an injured witness, additional
accused which in this case is the applicant
could not have been summoned. The trial
court
should
have,
therefore,
noted
statement given by the injured witness to
the Investigating Officer, the statement of
the two sons of the injured as well as the
confessional statement of the main accused
person and the recovery done by the
investigating officer on the basis of which
the police report was filed.

8. In the present case, the trial court has
not considered the aforesaid material, i.e. the
statement of the injured under section 161
CrPC, statement of his two sons under
section 161 CrPC, confessional statement of
the co-accused person, recovery of only one
motorcycle, i.e. Platina and hence by
overlooking the evidence collected by the
investigating officer which demonstrate that
the present applicant was not present at the
time and place of occurrence, neither there
was any material to indicate his conspiracy in
the commission of offence and merely
relying on the statement recorded during
examination of the injured witness before it
which finds no corroboration with the entire
prosecution case earlier; rather is in stark
contradiction to the earlier prosecution case
and the material collected by the investigating
officer, therefore, the impugned order cannot
be sustained and is liable to be set aside.

9. Accordingly, the petition is allowed
and the impugned order dated 28.7.2022
(supra) is set aside.
----------
(2023) 1 ILRA 800
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 16.01.2023

BEFORE

THE HON'BLE SHREE PRAKASH SINGH, J.

Application U/S 482 No. 161 of 2023

Sidhique Kappan ...Applicant
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Ishan Baghel, Mohd. Khalid

Counsel for the Opposite Party:
G.A.

A. Criminal Law - Criminal Procedure
Code, 1973 - Sections 227, 228 & 482 -
Discharge - Scope and object - Order of
1 All. Sidhique Kappan Vs. State of U.P.
801
framing of charge was passed without
considering the discharge application -
Legality challenged - Held, the procedure
prescribed in Section 227 of Cr.P.C. for
discharge of the accused is in fact
safeguard and rider so that a person who
has been alleged to commit an offence,
may not be harassed for facing trial
proceedings - Application of mind as well
as assigning reasons for passing the order
under section 227 of Cr.P.C. is of much
importance, which has to care of by the
trial court - High Court set aside the order
of framing of charges. (Para 17 and 22)
B. Criminal Law - Criminal Procedure
Code, 1973 - Sections 227 & 228 -
Discharge
-
Application,
how
far
necessary to be moved by the accused -
Duty of Trial Court - Explained - It is not
incumbent upon the accused that he must
have moved an application for discharge.
Even in a situation that there was no
application for discharge moved, then it is
incumbent upon the trial court to decide it
that whether there is sufficient material
available against the accused so as to
frame charges. (Para 18)
C. Criminal Trial - Criminal Procedure
Code,1973 - Section 304 - Fair trial -
Amicus Curie - Condition of appointment
- Explained - An Amicus Curiae can be
appointed
if
the
accused
is
not
represented by a pleader or the accused
has not sufficient means to engage a
pleader
-
None-fulfillment
of
these
conditions
-
Effect
-
Held,
while
appointing the amicus-curiae, the trial
court did not mention the exigency as is
envisaged in Section 304 of Cr.P.C. and no
judicial mind has been applied while
appointing the Amicus-Curiae. (Para 8 and
20)
Application allowed. (E-1)
(Delivered by Hon'ble Shree Prakash
Singh, J.)

1. Heard Sri I.B.Singh, learned Senior
Advocate assisted by Sri Ishan Baghel,
learned counsel for the applicant, Sri
Anirudh Kumar Singh, learned A.G.A.-I for
the State.

2. Instant application under section
482Cr.P.C. has been filed with a prayer to
quash the order dated 19-12-2022 passed by
the
learned
Special
Judge,
NIA/ATS/Additional District & Sessions
Judge-5, Lucknow in Sessions Case No. 2219
of 2021, arising out of FIR No. 199 of 2020,
Police Station-Mant, District-Mathura, under
sections
153-A,295A,120-B
I.P.C.
and
sections 17,18, of U.P.P.A. Act, 1967 &
sections 65 & 72 of the I.T. Act, 2008. It has
further been prayed to direct the learned
Special Judge, NIA/ATS/Additional District
& Sessions Judge-5, Lucknow to decide the
Discharge Application dated 19-12-2022 of
the applicant on merit, after affording
opportunity of hearing.

3. The factual matrix of the case in brief
is that the applicant is a Journalist and was
working for AZHIMUKHAM. COM. and
when he was travelling to Hathras to cover
the incident of "Hathras Gangrape" for
reporting, he was arrested and detained under
sections 107,116 and 151 of Cr.P.C. on 0510-2020 and was produced before the SDM
Court at Mathura on 06-10-2020 and
thereafter, he was sent to judicial remand
under section 167 Cr.P.C. However, on 0610-2022, a false narrative was made in the
media that four PFI members have been
arrested by the police and thereafter, F.I.R.
No. 199 of 2020 dated 07-10-2022 was
registered under sections 153-A,295 A and
124 I.P.C; section 17 & 18 of UAPA Act and
65, 72 & 76 of the IT Act and thereafter, the
chargesheet was filed on 02-04-2021 and the
matter proceeded.

4. Learned Senior Advocate appearing
for the applicant submits that several
802 INDIAN LAW REPORTS ALLAHABAD SERIES
applications were moved for compliance of
Section 207 of Cr.P.C. and ultimately on
07-01-2022, only 106 pages were provided
to the applicant and most of the copies are
illegible. Thereafter, the applicant moved
applications on 21-04-2022 and on 23-092022 before the trial court for ensuring
compliance of Section 207 of Cr.P.C. He
next added that co-accused, Firoz has been
provided as many as 4872 pages whereas,
the applicant has been deprieved of and
only 106 pages have been provided to him.

5. He next submits that the trial court
without providing the prosecution papers in
compliance of section 207 of Cr.P.C.,
proceeded in the matter and fixed the date
i.e. 16-12-2022 for framing of charges. He
submits that the accused personns were not
present or summoned from jail on that date
and therefore, the matter has again been
posted for 19-12-2022 for framing of
charges.

6. He further contended that on 1912-2022, the applicant moved a discharge
application through his counsel before the
trial court and thereafter, the trial court
without considering the application of the
discharge which was filed by the applicant
under section 227 of Cr.P.C., proceeded to
frame charges and thereafter, the charges
have been framed on 19-12-2022 itself. He
next added that though the counsel for the
applicant was sitting inside of the court
room, but, the court while sitting in his
chamber, has passed the order and counsel
for the applicant was not heard. In support
of his contentions, he has drawn attention
towards page no. 21 of the application
wherein objection has been recorded by the
counsel for the applicant on the same day.

7. He has further drawn attention of
this court towards page 21 of the
application itself i.e. an order passed by the
trial court that "Sri Rama Shanker Dwivedi
Ko Nyayamitra Niyukt Kiya Jata Hai." and
submitted that neither there was any
application moved on behalf of the accused
nor the applicant was represented through
his counsel for making any prayer for
appointment of amicus curiae as is evident
from the order itself. Thus, the order
appointing an Amicus Curiae is also against
the provisions of section 304 of Cr.P.C.
Section 304 of Cr.P.C. is extracted
hereinunder:-

"304. Where, in a trial before the
Court of Session, the accused is not
represented by a pleader, and where it
appears to the Court that the accused has
not sufficient means to engage a pleader,
the Court shall assign a pleader for his
defence at the expenses of the State.

The High Court may, with the
previous approval of the State Government
make rule providing for;

the mode of selecting pleaders for
defence under Sub-Section(1);

the facilities to be allowed to such
pleaders by the Courts;

the fee payable to such pleaders
by the Government, and generally, for
carrying out the purposes of Sub-Section
(1).

The State Government may, by
notification, direct that, as from such date
as may be specified in the notificaion, the
provisions of Sub-Sections(1) and (2) shall
apply in relation to any class of trials
before other Courts in the State as they
apply in relation to trials before the Courts
of Session."

8. Referring the aforesaid, he submits
that there is a specific provision under
section 304 Cr.P.C. that an Amicus Curiae
can be appointed if the accused is not
1 All. Sidhique Kappan Vs. State of U.P.
803
represented by a pleader or the accused has
not sufficient means to engage a pleader.
He added that both the conditions were not
prevelant and thus, the appointing an
Amicus Curiae is uncalled for and is
against the intent of the provisions of
section 304 of Cr.P.C.

9. Adding his arguments, he submits
that so far as provision of Section 227 of
Cr.P.C. is concerned, if an application is
filed, the same is to be considered and
decided. He submits that an application
under section 227 of Cr.P.C. was filed by
the present applicant, which was pending
consideration
and
the
court
without
considering the same, has proceeded for
framing of charges. He submits that it is
wrong to say that no one was present for
pressing the application for discharge filed
by the counsel for the applicant. The
discharge application is still pending.
Adding his arguments, he submits that even
the application for discharge is not required
to be filed by the accused and it is
incumbent upon the court itself that if the
court considers that there is not sufficient
ground for proceeding against the accused,
he shall discharge the accused. He submits
that there is not a single whisper with
regard to the application of mind in the
order dated 19-12-2022 with respect to the
fact that the court below has ever applied
its mind as to whether there is sufficient
ground for proceeding in the matter.

10. He next added and has drawn
attention
of
this
court
towards
the
Judgment and order dated 12-12-2022
passed by the Apex Court in the case of
Chandi Puliya Versus The State of West
Bengal
(Criminal
Appeal
No.
of
2022(Arising from SLP(Criminal)No. 9897
of 2022) and has referred to paragarph nos.
3.2, 4, 4.1. and 7 of the aforesaid Judgment
and the aforesaid paras are extracted
hereinunder :-

3.2 Accordingly, a discharge
application under Section 227 r/w Section
300(1) Cr.P.C. was filed by the appellant
before the learned trial Court. The learned
trial Court dismissed the said application
by observing that such an objection can be
raised at the stage of framing of charge and
not discharge. The order passed by the
learned trial Court has been confirmed by
the High Court, by the impugned judgment
and order. Hence, the present appeal.

4. It is submitted that the stage of
discharge under Section 227 Cr.P.C. is a
stage prior to charge and it is at this stage
alone that the court can consider an
application under Section 300 Cr.P.C. It is
submitted that once the court rejects the
discharge application, it would proceed to
framing of charge under Section 228
Cr.P.C. and the only question before it
would be as to the nature of the offence,
and not that the appellant has not
committed an offence, or that he cannot be
tried on account of the bar under section
300 Cr.P.C.

4.1 It is further submitted that the
courts below have failed to appreciate that
the present proceedings arise from the
discharge proceedings and that the stage of
discharge under Section 227 Cr.P.C.
precedes the stage of framing of charge
under Section 228 Cr.P.C. It is submitted
that as observed and held by this Court in
the case of Ratilal Bhanji Mithani v. State
of Maharashtra, (1979) 2 SCC 179, once
the charges are framed, the accused is
disentitled from praying for discharge.

7. On a fair reading of Section
227 Cr.P.C, if, upon consideration of the
record of the case and the documents
submitted therewith, and after hearing the
submissions of the accused and the
804 INDIAN LAW REPORTS ALLAHABAD SERIES
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 doing so. As per Section 228
Cr.P.C. only thereafter and if, after such
consideration and hearing as aforesaid, the
Judge is of the opinion that there is ground
for presuming that the accused has
committed an offence, the trial Court shall
frame the charge. Therefore, as rightly
submitted
by
Shri
Siddhartha
Dave,
learned senior counsel appearing on behalf
of the appellant-accused that the stage of
discharge under Section 227 Cr.P.C. is a
stage prior to framing of the charge (under
Section 228 Cr.P.C.) and it is at that stage
alone that the court can consider the
application under Section 300 Cr.P.C."

11.

Referring
the
aforesaid
paragraphs, he submits that the settled
proposition of law in the aforesaid
Judgment has been violated by the trial
court and thus he submits that the whole
proceedings of the trial court so far as order
dated 19-12-2022 for framing of charges is
concerned, vitiates in the eyes of law and
thus, the order dated 19-12-2022 as well as
other consequential action is liable to be set
aside.

12. On the other hand, learned A.G.A.
appearing for the State has vehemently
opposed the contentions aforesaid and
submits that in case of non appearance of
counsel for the applicant, the court has
passed the order on 19-12-2022. He added
that it seems that the counsel for the
applicant came later on and the order
impugned was passed during the court
hours. He submits that none appeared to
press the application for discharge and thus,
the trial court had no option, but to pass the
order dated 19-12-2022 and to proceed
under section 228 of Cr.P.C. He further
submits that after thorough investigation,
sufficient material was found against the
applicant and therefore there is no illegality
or infirmity in the order dated 19-12-2022
passed by the trial court.

13. Considering the submissions of
learned counsel for the parties and after
perusal of the material placed on record, it
is evident that an application for discharge
was moved by the present applicant on 1912-2022 and from perusal of the order
dated 19-12-2022, by virtue of which
charges were framed, it reveals that the
discharge application dated 19-12-2022
was neither accepted nor rejected by the
court. Further, the noting on the ordersheet
discloses that the counsel for the applicant
was present in the court, but, it prima facie
seems that he was not heard. This court has
also noticed the fact that one Rama Shanker
Dwivedi, Advocate, was also appointed as
Amicus Curiae on 19-12-2022 itself though
there
was
no
occasion
for
such
appointment.

14. Since, the provision of Section 227
of Cr.P.C. itself mandates that the trial court
shall consider that whether there is sufficient
ground for proceeding against the accused or
not and if trial court reaches to the
conclusion that there is no sufficient ground,
the accused shall be discharged. Section 227
of Cr.P.C. is extracted hereinunder :-

"227.If, upon consideration of the
record of the case and the documents
submitted therewith, and after hearing
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."
1 All. Sidhique Kappan Vs. State of U.P.
805

15. Having at a glace of the aforesaid
provisions, it is crystal clear that while
passing an order in abovesaid provisions,
the trial court shall consider ;-

First, the record of the case and
documents submitted therewith;

Secondly submissions of the
accused;

and thirdly the submisisons of the
prosecution.

16. It is settled law that even after
such considerations, two view are possible
and if one of them gives rise to the
suspicion, which is distinguished from
grave
suspicion,
the
trial
Judge
is
empowered to discharge the accused
without going into the question as to
whether a case for trial has been made out
by the prosecution or not.

17. This court is of considered opinion
that after the application of judicial mind on
discharge, the trial Judge shall enter into the
next proceeding i.e. framing of the Charge. It
is prima-facie overt from the wordings of
Section 228 of Cr.P.C. i.e. "Framing of
Charge" and "if, after such consideration and
hearing, as aforesaid", the procedure of
Section 227 of Cr.P.C. is of much importance
and that cannot be skipped by the trial court.
The intent of the legislature is very clear that
the procedure prescribed in Section 227 of
Cr.P.C. for discharge of the accused is in fact
safeguard and rider so that a person who has
been alleged to commit an offence, may not
be harassed for facing trial proceedings.
Therefore, the application of mind as well as
assinging reasons for passing the order under
section 227 of Cr.P.C. is of much importance,
which has to care of by the trial court.

18. Further it is also not incumbent
upon the accused that he must have moved
an application for discharge. Even in a
situation that there was no application for
discharge moved, then it is incumbent upon
the trial court to decide it that whether there
is sufficient material available against the
accused so as to frame charges,but
opportunity of hearing to the accused at this
stage is an esssential condition.

19. From perusal of the order dated
19-12-2022, it reveals that it has been
recorded by the trial court that no one is
present to press the application filed under
section 227 of Cr.P.C. but, it is noted by the
counsel for the applicant that he was
present in the court and he was not heard.

20. Further so far as issue of the
appointment of an Amicus Curiae is
concerned, as per provisions of section 304
of Cr.P.C., there are two conditions,
wherein
an Amicus
Curiae
can
be
appointed and so far as the present case is
concerned, prima-facie, there seems to be
no such conditions prevalent. From perusal
of the order dated 19-12-2022, it reveals
that while appointing the amicus-curiae, the
trial court did not mention the exigency as
is envisaged in Section 304 of Cr.P.C. and
no judicial mind has been applied while
appointing the Amicus-Curiae

21. It is noteworthy that time and
again, the Hon'ble Apex Court has held that
if statute provides for anything to be done
in a particular manner, then it must be done
in that manner alone and not otherwise and
thus the impugned order dated 19-12-2022
is against the law propounded by the
Hon'ble Apex Court.

22. Now, it is settled proposition of
law that the trial court has to make every
endeavour to keep the trial fair but in the
order of framing of charges, certain
806 INDIAN LAW REPORTS ALLAHABAD SERIES
illegalities and ambiguities are apparent
and therefore, the order dated 19-12-2022
prima-facie, seems to unsustainable and
thus the order dated 19-12-2022 is hereby
set aside.

23. Resultantly, the matter is remitted
back to the trial court for deciding the
discharge application of the applicant dated
19-12-2022 afresh. For the purpose of
hearing on the application for discharge
dated 19-12-2022,the concerned parties are
directed to appear before the trial court on
27-12-2022. Counsel for the applicant shall
also remain present before the trial court on
the said date and after hearing the parties,
the trial court shall proceed in the matter.
The parties or their counsels shall not seek
any adjournment on the said date.

24. With the aforesaid observations,
the instant application is hereby allowed.

25. It is made clear that observations
made herein above, will have no bearing on
the
merits
of
the
case
pending
consideration before the trial court.
----------
(2023) 1 ILRA 806
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 30.11.2022

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Application U/S 378 No. 109 of 2022

State of U.P. ...Applicant
Versus
Hafijullah ...Opposite Party

Counsel for the Applicant:
G.A.

Counsel for the Opposite Party:
Criminal Law - Criminal Procedure Code,
1973 - Section - 378, - U.P. Gangsters
and Anti Social Activities (Prevention) Act,
1986 - Sections 14, 14(1), 15, 15(2), 16,
16(1), 17 & 18 - Application for Leave to
Appeal - against impugned order of release -
Police report - District Magistrate initiated
proceedings of attachment of property -
representation against attachment - rejected -
reference - court below finds that, the property
being made subject matter of an attachment
was not acquired by a gangster as a result of
commission of an offence triable under the Act,
- object behind providing the power of judicial
scrutiny is to check arbitrary exercise of power
and to restore the rule of law - Court finds that,
District Magistrate has fails to recorded his
satisfaction having reason to believe with regard
to the property attached was acquired by the
respondent as a result of commission of an
offence triable under the Act, - hence, the
judgment of court below cannot to be said to be
illegal and not based on material on record -
consequently, Leave to Appeal, rejected.(Para -
8, 10, 11, 13)

Appeal Dismissed. (E-11)

List of Cases cited:

1. Smt. Mian Devi Vs St. of U.P.(2013 (83) ACC
902,

2. Smt. Shanti Devi w/o Sri Ram Vs St. of U.P.
(2007 (2) ALJ 483 (All).

(Delivered by Hon'ble Shamim Ahmed, J.)

1. The case is taken up in revised call.
None is present for the respondent.

2. Heard Sri Prem Prakash, learned
AGA-I for the State-appellant and perused
the record.

3. The present application for leave to
appeal under Section 18 of the U.P.
Gangsters and Anti Social Activities
(Prevention) Act, 1986 read with Section
378 Cr.P.C. has been preferred by the State-