# Smt. Kalpana @ Pinki & Ors. Revisionists v. State of U.P. & Anr

- **Citation:** (2020) 1 ILRA 824
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-12-18
- **Bench:** Mrs. Manju Rani Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-kalpana-pinki-ors-revisionists-v-state-of-u-p-anr-45287
- **Pages:** 10

## Headnote

A. Criminal Procedure Code, 1973 - Section
227
-
Discharge
Application
-
while
considering petition for discharge - courts
cannot act as appellate court and start
appreciating
evidence
by
finding
out
inconsistencies in statements of witness -
Court cannot appreciate evidence at stage
of framing of charge - Charges can be
framed on the basis of strong suspicion.

Held - Discharge application, to discharge the
revisionists, from the charge framed under
section 306 IPC, is cryptic - material available
on record - makes out a prima facie case -
against the accused - no justifiable ground to
set aside the impugned order refusing the
discharge of the accused (Para 22 & 23)

Criminal Revision dismissed. (E-5)

List of cases cited: -

## Text

824 INDIAN LAW REPORTS ALLAHABAD SERIES
(2020)1ILR 824

REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 18.12.2019

BEFORE
THE HON'BLE MRS. MANJU RANI
CHAUHAN, J.

Criminal Revision No. 4465 OF 2019

Smt. Kalpana @ Pinki & Ors. ...Revisionists
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionists:
Sri Radhey Shyam Yadav, Sri Rajiv Lochan
Shukla

Counsel for the Opposite Parties:
A.G.A., Sri Pankaj Satsangi, Sri Sikandar B.
Kochar

A. Criminal Procedure Code, 1973 - Section
227
-
Discharge
Application
-
while
considering petition for discharge - courts
cannot act as appellate court and start
appreciating
evidence
by
finding
out
inconsistencies in statements of witness -
Court cannot appreciate evidence at stage
of framing of charge - Charges can be
framed on the basis of strong suspicion.

Held - Discharge application, to discharge the
revisionists, from the charge framed under
section 306 IPC, is cryptic - material available
on record - makes out a prima facie case -
against the accused - no justifiable ground to
set aside the impugned order refusing the
discharge of the accused (Para 22 & 23)

Criminal Revision dismissed. (E-5)

List of cases cited: -

1. Rajiv Thapar & Ors Vs Madan Lal Kapoor
2013 (3) SCC 330

2. Harshendra Kumar D Vs Rebatilata Koley
2011 AIR (SC) 1090
3. St. represented by Deputy Superintendent of
Police, Vigilance & Anti-Corruption, TN Vs J.
Doraiswamy Ors (2019) 4 SCC 149

4. St. of Bih Vs Ramesh Singh 1977 (4) SCC 39

5. Superintendent and Remembrancer of Legal
Affairs, WB Vs Anil Kumar Bhunja AIR 1980
(SC) 52

6. Palwinder Singh Vs Balvinder Singh AIR 2009
SC 887

7. Sanghi Brothers (Indore) Pvt. Ltd Vs Sanjay
Choudhary AIR 2009 SC 9

8. R.P. Kapur Vs St. of Pun AIR 1960 SC 866

9.St. of Hary Vs Bhajan Lal 1992 SCC(Cr.) 426

(Delivered by Hon'ble Mrs. Manju Rani
Chauhan, J.)

1. Mr. Sikandar B. Kochar, learned
counsel filed his vakalatnama on behalf of
the opposite party no.2 today in the Court,
is taken on record.

2. Heard Mr. Rajiv Lochan Shukla,
Advocate holding brief of Mr. Radhey
Shyam Yadav, learned counsel for the
revisionists, Mr. Sikandar B. Kochar and
Mr. Pankaj Satsangi, learned counsel for
the opposite party no.2 and Mr. Amit
Singh Chauhan, learned A.G.A. for the
State.

3. This criminal revision under
section 397/401 Cr.P.C. has been preferred
by the revisionists against the impugned
order dated 01.10.2019 passed by Sessions
Judge, court No. 9, Budaun in Sessions
Trial No.148 of 2019 (State vs. Smt.
Kalpana alias Rinki and others) arising out
of Case Crime No. 95 of 2013, under
Section 306 IPC, Police Station- Kotwali,
District- Badaun, whereby the discharge
application
of
the
revisionists
for
1 All. Smt. Kalpana @ Pinki & Ors. Vs. State of U.P. & Anr.
825
discharging from above charge section,
has been rejected.

4. The facts in brief which are
essential to be stated for adjudication of
this revision are that the present first
information report has been lodged by the
opposite party no.2 Manoj Kumar against
the revisionists on 27.02.2013 through an
application under Section 156(3) Cr.P.C.
with regard to the alleged incident dated
28.01.2013, which was registered as Case
Crime No. 95 of 2013, under Section 306
IPC, Police Station-Kotwali, DistrictBadaun. As per the allegations made in the
first information report, the first informant
Manoj Kumar (opposite party no.2) along
with his younger brother, namely, Praveen
Kumar (now deceased) stays together at
their ancestral home at Mohalla Jagipura,
Budaun and both of them looked after the
agricultural work as well as brick kiln. The
first informant's younger brother, namely,
Praveen Kumar got married on 30.04.2012
with the revisionist no.1 Kalpana @ Rinki
and after marriage, the revisionist no.1
Kalpana @ Rinki along with her father,
namely, Narendra Singh Rathore, her
uncle, namely, Umesh Rathore, her
mother, namely, Smt. Jaiwanti had started
building pressure upon Praveen Kumar
(now deceased) to live separately from his
family members, on account of which,
relations
between
Praveen
Kumar
(husband) and the revisionist no.1 Kalpana
@ Rinki (wife) became strained and led to
frequent fight between the two. The first
informant Manoj Kumar along with his
wife, namely, Anita tried to mediate
between them. On repeated pressure of
family members of the revisionist no.1
Kalpana @ Rinki, Praveen Kumar (now
deceased) did not agree to live separately
or have partition of his house, a fight took
place between the two on 27.01.2013 and
then the revisionist no.1 Kalpana @ Rinki
called her parents. Thereafter, her father,
namely, Narendra Singh Rathore, her
mother, namely, Smt. Jaiwanti, her uncle,
namely,
Umesh
Rathore
came
and
threatened Praveen Kumar (now deceased)
and the revisionist no.1 Kalpana @ Rinki
declined to stay at her matrimonial house
and left the place by threatening Praveen
Kumar (now deceased) to institute a false
first information report with regard to
dowry. At the relevant point of time,
maternal brother of the opposite party
no.2, namely, Sanjeev and brother-in-law
of the opposite party no.2, namely,
Santosh also arrived and tried to persuade
the revisionist no.1 Kalpana @ Rinki and
her family members but the revisionist
no.1 Kalpana @ Rinki, without paying
attention to the request made by Sanjeev
and Santosh, left the matrimonial house
with her bag and baggage, jewellery and
other articles to stay with her parents.
Subsequently, on 28.01.2013, the opposite
party no.2 Manoj Kumar (first informant)
received an information that the revisionist
no.1 Kalpana @ Rinki has instituted a
false case of demand of dowry against her
husband Praveen Kumar (now deceased)
and his family members. On hearing the
same, Praveen Kumar (now deceased)
went into depression and was worried
about his family members who would go
to jail and was also worried about
reputation of his family in the society, in
this adverse circumstance, he was not in a
position to survive, although all the family
members consoled him but he went to his
room. On the next morning, when Praveen
Kumar (now deceased) did not wake up,
the family members went up stairs and
found that Praveen Kumar (now deceased)
had committed suicide by hanging himself
from the fan. Thereafter, information
about the said incident was given to the
826 INDIAN LAW REPORTS ALLAHABAD SERIES
concerned police station immediately, and
then, last rites were performed on
29.01.2013. Thereafter, on 30.01.2013,
without delay, the opposite party no.2
went to the concerned police station for
lodging the first informant report but no
attention was given. Subsequently, the
application under Section 156(3) Cr.P.C.
moved by the opposite party no.2 against
the revisionists before the concerned court
below.
Thereafter,
the
present
first
information
report
was
lodged
on
27.02.2013.

5. It has been contended by the
learned counsel for the revisionists that
Praveen Kumar (now deceased) was
married on 30.04.2012 with the revisionist
no.1 Kalpana @ Rinki after giving a
sufficient dowry as per the status,
however, elder brother-in-law, namely,
Manoj Kumar (first informant), his wife,
namely, Anita and mother-in-law were not
satisfied with dowry received in the
marriage. On various occasions, the
revisionist no.1 Kalpana @ Rinki was
assaulted by her husband (Praveen Kumar)
due to which, she suffered serious injuries.
However, she did not lodge any complain
or F.I.R. to save the reputation of the
family. After some time, on 27.01.2013 at
about 8 O'clock, in the evening, she was
again badly beaten by her husband
(Praveen Kumar) and his family members
as a result of which she suffered various
injuries and was also forced to leave the
house. Being thrown out of the house, she
called her father, mother and uncle, who
reached her matrimonial house and she
went along with them to her parents' place.
In such compelling circumstances, there
was no option to the revisionist no.1
Kalpana @ Rinki to leave her matrimonial
house and stay at her parents' place. For
the aforesaid incident, when she was
beaten on 27.01.2013, the revisionist no.1
instituted a first information report bearing
Case Crime No. 32 of 2013, under
Sections 498A, 323, 504, 506 IPC and 3⁄4
D.P. Act against Praveen Kumar (husband
now deceased), Manoj Kumar (borther-inlaw), Anita (Jeth) and Resha Devi
(mother-in-law).

6. It has further been contended by
the learned counsel for the revisionists that
after lodging of the aforesaid first
information report, the revisionist no.1
Kalpana @ Rinki was sent to District
Hospital, Budaun for examination on
28.01.2013 at about 01:00 p.m. A copy of
injury report dated 28.01.2013 has been
appended as Annexure no.4 to this
application. Perusal of which goes to show
that she has suffered a number of injuries
on account of assault made by the family
members of her husband.

7. It has further been contended by
learned counsel for the revisionists that
after
lodging
of
the
present
first
information report by the opposite party
no.2, the investigation has been made by
the
Investigation
Officer.
During
investigation, the statement of Manoj
Kumar, Anita, Ashok Kumar, Arvind Lal,
Sanjeev Kumar and Santosh were recorded
and the charge-sheet was submitted
against the revisionists. However, the
Investigating Officer has not considered
the first information report instituted by
the revisionist no.1 Kalpana @ Rinki on
28.01.2013 and the injuries suffered by the
revisionist no.1, which goes to show that
she was victim of the illegality as
committed by Praveen Kumar (now
deceased)
and
his
family
members.
Aggrieved by the charge sheet, the
revisionists approached before this Court
by means of Cri. Misc. Application No.
1 All. Smt. Kalpana @ Pinki & Ors. Vs. State of U.P. & Anr.
827
35330 of 2013 for quashing the entire
proceedings initiated on the basis of F.I.R.
dated 27.02.2013 bearing Case Crime No.
95 of 2013 under Section 306 IPC wherein
vide order dated 14.12.2018, the Court
was pleased to disposed of the aforesaid
application with the direction that the
revisionists may appear and surrender
before the court below within 30 days
from that day and apply for bail.
Thereafter, the revisionists were granted
bail by the court below. It has further been
contended by the learned counsel for the
revisionists that the copy of post mortem
report of the deceased Praveen Kumar also
shows that there were no injuries on the
body of Praveen Kumar (deceased). It was
also testified that he had suffered no injury
prior to his death.

8. It has further been contended by
the learned counsel for the revisionists that
the real facts is that since father of Manoj
Kumar (first informant) and Praveen
Kumar (deceased) had expired. Manoj
Kumar (first informant) and his wife Anita
wanted to grab the property of Praveen
Kumar, therefore, Manoj Kumar (first
informant) along with his wife Anita
exerted tremendous pressure upon Praveen
Kumar (deceased) and tried to create
differences between the revisionist no.1
Kalpana @ Rinki and her husband Praveen
Kumar (deceased) for the last few days,
due to which Praveen Kumar committed
suicide.

9. It has further been contended by
the learned counsel for the revisionists that
the discharge application moved by the
revisionists before the concerned court
below on 25.05.2019, which has been
rejected by order dated 01.10.2019 in an
unjustified, illegal and arbitrary. While
deciding the discharge application, the
court concerned has not appreciated the
points raised by the revisionists in the
discharge
application
and
failed
to
consider the documents available in the
case dairy.

10. It has further been contended by
learned counsel for the revisionists that
there is absolutely no evidence on record
about any instigation/ abetment on the part
of
the
revisionists
to
instigate
the
commission of suicide by the deceased
Praveen Kumar (husband of the revisionist
no.1). Hence, the valuable time of the
Court should not be wasted for holding a
trial only for the purpose of formally
completing the procedure to pronounce the
conclusion on a future date. In support of
his contention, learned counsel for the
revisionists has placed reliance upon the
judgment of the Hon'ble Apex Court in the
case of Rajiv Thapar & Others vs. Madan
Lal Kapoor reported in 2013 (3) SCC 330
wherein it has been held by the Hon'ble
Apex Court that only the material placed
on record by the prosecution, could be
gone into at the time of framing charges.
And if, on the basis of the said material,
the commission of the alleged offence was
prima facie made out, the charge was to be
framed. At the stage of framing of charges,
it was submitted, that the requirement was
not to determine the sufficiency (or
otherwise) of evidence to record a
conviction. The High Court can exercise
powers under Section 482 Cr.P.C. or under
Article 227 of the Constitution of India or
suo motu to prevent abuse of process of
law and can rely on material produced by
the accused if suspicion is shown as the
allegations in complaint and the accused
may not be discharged. Paragraph no. 17
of the judgment of the Hon'ble Apex Court
in the case of Rajiv Thapar (Supra) read
as follows:-
828 INDIAN LAW REPORTS ALLAHABAD SERIES

"17. A perusal of the order of the
High
Court
would
reveal
that
the
Additional Sessions Judge, Delhi, had
primarily relied on certain observations
made in the judgment rendered by this
Court
in Satish
Mehra
Vs.
Delhi
Administration, (1996) 9 SCC 766:-

"15. But when the Judge is fairly
certain that there is no prospect of the
case ending in conviction the valuable
time of the Court should not be wasted for
holding a trial only for the purpose of
formally completing the procedure to
pronounce the conclusion on a future date.
We are mindful that most of the Sessions
Courts in India are under heavy pressure
of work-load.

If the Sessions Judge is almost
certain that the trial would only be an
exercise in futility or a sheer waste of time
it is advisable to truncate or snip the
proceedings at the stage of Section 227 of
the Code itself" Madan Lal Kapoor (the
respondent-complainant), before the High
Court, had relied upon the judgment in
State of Orissa Vs. Debendra Nath Padhi
(2005) 1 SCC 568, to contend that the
judgment relied upon by the Additional
Sessions
Judge,
Delhi,
having
been
overruled, had resulted in an erroneous
conclusion. For the same proposition,
reliance was placed on the judgment of
this Court in Suresh Kumar Tekriwal Vs.
State of Jharkhand, (2005) 12 SCC 278.
On behalf of the complainant, reliance
was also placed on the decision in State of
Maharashtra Vs. Som Nath Thapa,
(1996) 4 SCC 659, to contend, that only
the material placed on record by the
prosecution, could be gone into at the time
of framing charges. And if, on the basis of
the said material, the commission of the
alleged offence was prima facie made out,
the charge(s) was/were to be framed. At
the stage of framing of charges, it was
submitted, that the requirement was not to
determine the sufficiency (or otherwise) of
evidence to record a conviction. For this,
reliance was placed on State of M.P. Vs.
Mohanlal Soni (2000) 6 SCC 338,
wherein this Court had concluded, that the
requirement was a satisfaction, that a
prima facie case was made out. On behalf
of Madan Lal Kapoor, reliance was also
placed on State of A.P. Vs. Golconda
Linga Swamy (2004) 6 SCC 522, to
contend that at this stage, meticulous
examination of the evidence was not called
for."

11. It has further been contended by
learned counsel for the revisionists that in
the present case, the evidence produced by
the revisionists has not been contested or
refuted by the opposite party no.2 and also
there is nothing on record to show that the
commission of suicide was a result of part
of revisionists. Therefore, the charge
framed under Section 306 IPC against the
revisionists is prima facie made out.

12.

Learned
counsel
for
the
revisionists has also placed reliance upon
the judgment of the Hon'ble Apex Court in
the case of Harshendra Kumar D vs.
Rebatilata Koley Etc reported in 2011
AIR (SC) 1090. The paragraph nos. 21 and
22 of the aforesaid judgment read as
follows:-

"21. In our judgment, the above
observations cannot be read to mean that
in a criminal case where trial is yet to take
place and the matter is at the stage of
issuance
of
summons
or
taking
cognizance, materials relied upon by the
accused which are in the nature of public
documents or the materials which are
beyond
suspicion
or
doubt,
in
no
circumstance, can be looked into by the
1 All. Smt. Kalpana @ Pinki & Ors. Vs. State of U.P. & Anr.
829
High Court in exercise of its jurisdiction
under Section 482 or for that matter in
exercise of revisional jurisdiction under
Section 397 of the Code. It is fairly settled
now
that
while
exercising
inherent
jurisdiction
under
Section
482
or
revisional jurisdiction under Section 397
of the Code in a case where complaint is
sought to be quashed, it is not proper for
the High Court to consider the defence of
the accused or embark upon an enquiry in
respect of merits of the accusations.
However, in an appropriate case, if on the
face of the documents - which are beyond
suspicion or doubt - placed by accused,
the accusations against him cannot stand,
it would be travesty of justice if accused is
relegated to trial and he is asked to prove
his defence before the trial court. In such a
matter, for promotion of justice or to
prevent injustice or abuse of process, the
High Court may look into the materials
which have significant bearing on the
matter at prima facie stage.

22. Criminal prosecution is a
serious matter; it affects the liberty of a
person. No greater damage can be done to
the reputation of a person than dragging
him in a criminal case. In our opinion, the
High Court fell into grave error in not taking
into
consideration
the
uncontroverted
documents
relating
to
appellant's
resignation from the post of Director of the
Company. Had these documents been
considered by the High Court, it would have
been apparent that the appellant has
resigned much before the cheques were
issued by the Company............"

13. It has further been contended by
learned counsel for the revisionists that in
view of the settled law as laid down in the
aforesaid judgments by the Hon'ble Apex
Court,
the
impugned
order
dated
01.10.2019 passed by the court below is
not sustainable in the eye of law and
therefore, the same is liable to be set aside.

14. Mr. Sikandar B. Kochar, learned
counsel for the opposite party no.2 as well
as Mr. Amit Singh Chauhan, learned
A.G.A. for the State, per contra, have
vehementally opposed the submissions as
urged by the learned counsel for the
revisionists by submitting that no case for
discharge is made out as the discharge
application has been rightly rejected by the
court below. While passing the impugned
order dated 01.10.2019, the court below
concerned has considered all the points
raised by the revisionists as well as
documents available on record. It has
further been submitted that at the initial
stage, it is the duty of the Court to consider
the record of the case and the documents
submitted therewith and to hear the
submissions of the accused and the
prosecution in that behalf and on the basis
of which, the court is of opinion that there
is ground for presuming that the accused
has committed an offence. To bolster the
contention, the learned counsel for the
opposite party no.2 has placed reliance
upon the judgment of the Hon'ble Apex
Court in the case of State represented by
Deputy
Superintendent
of
Police,
Vigilance and Anti-Corruption, Tamil
Nadu vs. J. Doraiswamy and Others
reported in (2019) 4 SCC 149 wherein it
has been held by the Hon'ble Apex Court
that
while
considering
petition
for
discharge, courts cannot act as appellate
court and start appreciating evidence by
finding out inconsistencies in statements
of witness and also consideration of record
for discharge purpose is different from
consideration of record while deciding the
appeal. The paragraph no. 15 of the
judgment of the Hon'ble Apex Court in the
aforesaid case read as follows:-
830 INDIAN LAW REPORTS ALLAHABAD SERIES

"15. While considering the case
of discharge sought immdeiately after the
charge-sheet is filed, the court cannot
become an appellate court and start
appreciating the evidence by finding out
inconsistency
in
the
statements
of
witnesses as was done by the High Court
in the impugned order running in 19
pages. It is not legally permissible."

15. Mr. Sikandar B. Kochar, learned
counsel for the opposite party no.2 as well
as Mr. Amit Singh Chauhan, learned
A.G.A. for the State, therefore, submits
that in view of the settled law as laid down
in the aforesaid judgment by the Hon'ble
Apex Court, the impugned order passed by
the court below dated 01.10.2019 cannot
be interfered with by this Court and the
present revision is liable to be rejected, as
the court below has rightly rejected the
discharge
application
filed
by
the
revisionists.

16.

I
have
considered
the
submissions advanced by the learned
counsel for the revisionists, learned
counsel for the opposite party no.2 and
learned A.G.A. for the State as well as
have gone through the records of the
present
application
along
with
the
impugned order.

17. It shall be advantageous to refer
to the observations made by the Hon'ble
Apex Court in the case of State of Bihar
vs. Ramesh Singh 1977 (4) SCC 39 which
are as follows :-

"4. Under S. 226 of the Code
while opening the case for the prosecution
the prosecutor has got to describe the
charge against the accused and State by
what evidence he proposes to prove the
guilt of the accused. Thereafter, comes at
the initial stage, the duty of the Court to
consider the record of the case and the
documents submitted therewith and to
hear the submissions of the accused and
the prosecution in that behalf. The Judge
has to pass thereafter an order either u/s.
227 or u/s. 228 of the Code. If "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", so
enjoined by s. 227. If, on the other hand,
"the Judge is of opinion that there is
ground for presuming that the accused has
committed
an
offence
which
......................................

(b) in exclusively triable by the
court, he shall frame in writing a charge
against the accused," as provided in S.
228.

Reading
the
two
provisions
together in juxtaposition, as they have got
to be, it would be clear that at the
beginning and the initial stage of the trial
the truth, veracity and effect of the
evidence which the prosecutor proposes to
adduce are not to be meticulously judged.
Nor is any weight to be attached to the
probable defence of the accused. It is not
obligatory for the Judge at that stage of
the trial to consider in any detail and
weigh in a sensitive balance whether the
facts, if proved, would be incompatible
with the innocence of the accused or not.
The standard of test and judgment which is
to be finally applied before recording a
finding regarding the guilt or otherwise of
the accused is not exactly to be applied at
this stage of deciding the matter under s.
227 and 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
1 All. Smt. Kalpana @ Pinki & Ors. Vs. State of U.P. & Anr.
831
region of suspicion, cannot take the place
of proof of his guilt at the conclusion of
the trial. But at the initial stage if there is
a strong suspicion which leads the court to
think that there is ground for presuming
that the accused has committed an offence
then it is not open to the court to say that
there
is
no
sufficient
ground
for
proceeding against the accused. The
presumption of the guilt of the accused
which is to be drawn at the initial stage is
not in the sense of the law governing the
trial of criminal cases in France where the
accused is presumed to be guilty unless the
contrary is proved. But it is only for the
purpose of deciding prima facie whether
the court should proceed with the trial or
not. If the evidence which the Prosecutor
proposes to adduce to prove the guilt of
the accused even if fully accepted before it
is challenged in cross-examination or
rebutted by the defence, if any, cannot
show that the accused committed the
offence, there will be no sufficient ground
for
proceeding
with
the
trial.
An
exhaustive list of the circumstances to
indicate as to what will lead to one
conclusion or the other is neither possible
nor advisable. We may just illustrate the
difference of the law by one more example.
If the scales of pan as to the guilt or
innocence of the accused are something
like even at the conclusion of the trial,
then, on the theory of benefit of doubt the
case is to end in his acquittal. But if, on
the other hand, it is so at the initial stage
of making an order under S. 227 or S. 228,
then in such a situation ordinarily and
generally the order which will have to be
made will be one under S. 228 and not
under S. 227.

18. Aforesaid case was again referred
to in another judgemnt of the Hon'ble
Apex
Court's
in
the
case
of
Superintendent and Remembrancer of
Legal Affairs, West Bengal Versus Anil
Kumar Bhunja reported in AIR 1980
(SC) 52 and the Hon'ble Apex Court
proceeded to observe as follows:

"18. It may be remembered that the
case was at the stage of framing charges; the
prosecution evidence had not yet commenced.
The Magistrate had, therefore, to consider the
above question on a general consideration of
the materials placed before him by the
investigating police officer. At this stage, as
was pointed out by this Court in State of Bihar
v. Ramesh Singh, AIR 1977 SC 2018, the truth,
veracity and effect of the evidence which the
prosecutor proposes to adduce are not to be
meticulously judged. The standard of test,
proof and judgment which is to be applied
finally before finding the accused guilty or
otherwise, is not exactly to be applied at the
stage of Section 227 or 228 of the Code of
Criminal Procedure, 1973. At this stage, even
a very strong suspicion founded upon
materials before the Magistrate, which leads
him to form a presumptive opinion as to the
existence of the factual ingredients constituting
the offence alleged; may justify the framing of
charge against the accused in respect of the
commission of that offence."

19. In yet another case of Palwinder
Singh Vs. Balvinder Singh reported in AIR
2009 SC 887 the Hon'ble Apex Court had the
occasion to reflect upon the scope of
adjudication and its ambit at the time of
framing of the charge and also about the scope
to consider the material produced by the
accused at that stage. Following extract may be
profitably quoted to clarify the situation : -

"12.
Having
heard
learned
counsel for the parties, we are of the
opinion that the High Court committed a
serious error in passing the impugned
832 INDIAN LAW REPORTS ALLAHABAD SERIES
judgment insofar as it entered into the
realm of appreciation of evidence at the
stage of the framing of the charges itself.
The jurisdiction of the learned Sessions
Judge while exercising power under
Section 227 of the Code of Criminal
Procedure is limited. Charges can be
framed also on the basis of strong
suspicion. Marshalling and appreciation
of evidence is not in the domain of the
Court at that point of time. This aspect of
the matter has been considered by this
Court in state of Orissa v. Debendra Nath
Padhi, (2005) 1 SCC 568 wherein it was
held as under :

"23. As a result of the aforesaid
discussion, in our view, clearly the law is
that at the time of framing charge or
taking cognizance the accused has no right
to produce any material. Satish Mehra's
Case holding that the trial Court has
powers to consider even materials which
the accused may produce at the stage of
Section 227 of the Code has not been
correctly decided."

20. The following observations made
by the Hon'ble Apex Court in the case of
Sanghi Brothers (Indore) Pvt. Ltd. v.
Sanjay Choudhary reported in AIR 2009
SC 9 also reiterated the same position of
law :-

"10.
After
analyzing
the
terminology used in the three pairs of
sections it was held that despite the
differences there is no scope for doubt that
at the stage at which the Court is required
to consider the question of framing of
charge, the test of a prima facie case to be
applied.

11. The present case is not one
where the High Court ought to have
interfered with the order of framing the
charge. As rightly submitted by learned
counsel for the appellant, even if there is a
strong suspicion about the commission of
offence and the involvement of the
accused, it is sufficient for the Court to
frame a charge. At that stage, there is no
necessity of formulating the opinion about
the prospect of conviction. That being so,
the impugned order of the High Court
cannot be sustained and is set aside. The
appeal is allowed."

21. In fact while exercising the
inherent jurisdiction under Section 482
Cr.P.C. or while wielding the powers
under Section 226 of the Constitution of
India the quashing of the complaint can be
done only if it does not disclose any
offence or if there is any legal bar which
prohibits the proceedings on its basis. The
Apex Court decisions in R.P. Kapur Vs.
State of Punjab AIR 1960 SC 866 and
State of Haryana Vs. Bhajan Lal reported
in 1992 SCC(Cr.) 426 make the position
of law in this regard clear recognizing
certain categories by way of illustration
which may justify the quashing of a
complaint or charge sheet.

22. In the light of the judgments of
the Hon'ble Apex Court, referred to above,
it is explicitly clear that the discharge
application to discharge the revisionists
from the charge framed under section 306
IPC is cryptic and does not stand the test
laid down by the Hon'ble Apex Court.

23. The submissions made by the
learned counsel for the revisionists call for
adjudication on pure questions of fact
which may be adequately adjudicated only
upon by the trial court and while doing so
even the submissions made on points of
law can also be more appropriately gone
into by the trial court in this case. This
Court does not deem it proper, and
1 All. Nawab Kazim Ali Khan Vs. Mohd. Abdullah Azam Khan
833
therefore, cannot be persuaded to have a
pre-trial before the actual trial begins. A
threadbare discussion of various facts and
circumstances, as they emerge from the
allegations made against the accused, is
being purposely avoided by the Court for
the reason, lest the same might cause any
prejudice to either side during trial. But it
shall suffice to observe that the perusal of
the complaint, the summoning order and
also all other the material available on
record makes out a prima facie case
against the accused at this stage and this
Court does not find any justifiable ground
to set aside the impugned order refusing
the discharge of the accused. This court
has not been able to persuade itself to hold
that no case against the accused has been
made out or to hold that the charge is
groundless.

24. The prayer for quashing or
setting aside the impugned order is refused
as I do not see any illegality, impropriety
and incorrectness in the impugned order or
the proceedings under challenge. There is
absolutely no abuse of court's process
perceptible in the same. The present matter
also does not fall in any of the categories
recognized by the Hon'ble Supreme Court
which might justify interference by this
Court in order to upset or quash them.

25. The present revision lacks merit
and is, accordingly, rejected.
----------
(2020)1ILR 834

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.01.2019

BEFORE
THE HON'BLE SURYA PRAKASH KESARWANI, J.

Election Petition No. 8 OF 2017
Nawab Kazim Ali Khan ...Election Petitioner
Versus
Mohd. Abdullah Azam Khan ...Respondent

Counsel for the Petitioner:
Sri Sayed Fahim Ahmad, Sri Anurag
Asthana, Sri N.K. Ali Khan (In Person), Sri
Rahul Agarwal, Ms. Kalpana Sinha, Sri
Navin Sinha

Counsel for the Respondent:
Sri N.K. Pandey, Nazia Rafiq Khan, Sri
Safdar Ali Kazmi

A. Representation of People Act, 1951 -
Section 81 (3), 86(1) - Election Petition -
Procedure - Service of copy of Election
Petition - Effect of minor variation
bearing no substance - Mere absence of
copy of a page bearing seal and stamp of
the Stamp Vendor in the true copy of the
election petition cannot be construed to
be an omission or variation of vital nature
- Even if, it could be construed as a
defect, it was not a defect of vital nature
attracting the consequences of Section
86(1) - There was no failure on the part
of the election-petitioner to comply with
the last part of Section 81(3) of the Act -
Copy of the election petition served by
the
election
petitioner
upon
the
respondent is the true copy of the
election petition filed by the petitioner -
Held,
election
petition
cannot
be
dismissed on allegation of failure to
comply the provisions of Section 81 of the
Act. (Para 9 & 13)

B. Constitution of India - Article 173 -
Representation of People Act, 1951 -
Election Petition - Cause of Action -
Objection on the ground of lack of cause
of action - Sole ground of election
petition is that the respondent was less
than 25 years of age and was not
qualified to contest the election for
Member of the Legislative Assembly in
view of Article 173(b) - The concise
statement of material facts have been
stated in election petition - Respondent
has not disputed the correctness of the