# Smt. Shila Devi v. State of U.P. & Anr

- **Citation:** (2022) 3 ILRA 318
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-03-16
- **Case number:** Application U/S 482 No.16386 of 2021
- **Bench:** Brij Raj Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-shila-devi-v-state-of-u-p-anr-48186
- **Pages:** 10

## Headnote

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 482 - Indian
Penal Code, 1860 - Sections 419, 420,
465, 466, 467, 468 and 472 - If there are
two views emerging then the court has to
examine discharge application filed under
Section 227 Cr.P.C. by discussing the
evidences on record and then forming the
opinion to pass order on the application.
(Para - 15)

Applicants father gifted Benami Property - sold
by Bhabhi of complainant fraudulently - police
collected material and charge sheet filed against
applicant - applicant challenged charge sheet -
applicant
permitted
to
move
discharge
application through counsel - Judicial Magistrate
dismissed discharge application - revision -
dismissed - applicant being aggrieved - filed
application U/s. 482 before this Court .(Para - 6)

HELD:-Both courts below have not discussed
the evidences and material available before
them and reasons have not been recorded.
Order passed by courts below set-aside. Matter
remitted back to Judicial Magistrate. (Para - 15)

Application u/s 482 Cr.P.C. allowed. (E-7)

List of Cases cited:-

## Text

318 INDIAN LAW REPORTS ALLAHABAD SERIES
documents for satisfaction as to the
sufficiency of grounds for proceeding
under Section 202."

13. Thus, it is clear from the above
judgement of Hon'ble Supreme Court that
even on the basis of affidavit filed on
behalf of the complainant, an accused can
be
summoned
under
Section
138
Negotiable Instruments Act and there is no
need to record statements under Sections
200 and 202 Cr.P.C.

14. Having considered the aforesaid
facts and circumstances of the case, it is
apparent
that
there
is
no
illegality
committed by the learned trial court while
passing
the
summoning
order
dated
2.2.2008 against the applicant. Therefore,
the present application u/s 482 Cr.P.C., is
devoid of merit and is, accordingly,
dismissed.

15. Interim order, if any, stands
vacated.
----------
(2022)03ILR A318
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 16.03.2022

BEFORE

THE HON'BLE BRIJ RAJ SINGH, J.

Application U/S 482 No.16386 of 2021

Smt. Shila Devi ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Kumar Ankit Srivastava, Sri C.K. Parekh
(Senior Adv.)

Counsel for the Opposite Parties:
A.G.A., Sri Anil Pathak, Sri Sageer Ahmad
(Senior Adv.)

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 482 - Indian
Penal Code, 1860 - Sections 419, 420,
465, 466, 467, 468 and 472 - If there are
two views emerging then the court has to
examine discharge application filed under
Section 227 Cr.P.C. by discussing the
evidences on record and then forming the
opinion to pass order on the application.
(Para - 15)

Applicants father gifted Benami Property - sold
by Bhabhi of complainant fraudulently - police
collected material and charge sheet filed against
applicant - applicant challenged charge sheet -
applicant
permitted
to
move
discharge
application through counsel - Judicial Magistrate
dismissed discharge application - revision -
dismissed - applicant being aggrieved - filed
application U/s. 482 before this Court .(Para - 6)

HELD:-Both courts below have not discussed
the evidences and material available before
them and reasons have not been recorded.
Order passed by courts below set-aside. Matter
remitted back to Judicial Magistrate. (Para - 15)

Application u/s 482 Cr.P.C. allowed. (E-7)

List of Cases cited:-

1. Satish Mehra Vs St. of N.C.T. of Delhi & anr. ,
2013 Vol. I ACR 591 (S.C.)

2. St. Vs Daraswmami & ors., AIR 2019 S.C.
1518

3. St. of T.N. Vs N. Suresh Rajan , 2104 (84) AC
656.

4. Yogesh @ Sachendra Jagdish Joshi Vs St. of
Mah., 2008 Vol. X SC 394

5. Vikram Jauhar Vs St. of U.P. , AIR 2019 S.C.
2109

6. St. of Orrisa Vs Devendra Nath Padhi, 2003
Vol. II SCC 711
3 All. Smt. Shila Devi Vs. State of U.P. & Anr.
319
7. Jaswant Sing Vs St. of Punj., 2021(6) JKJ 93
SC (20)

8. Randheer Singh Vs St. of U.P., 2021 (5) JKJ
386 SC (31-33)

9. Vinod Kumar Vs U.O.I. , 2021(4) CTC 495

10. U.O.I. Vs Praful Kumar Samal, 1979 (3) SCC
4,

11. Krishnan & ors. Vs Krishna Veni & ors.,
1997(4) SCC 241

12. Dharampal & ors. Vs Ramshri & ors., AIR
1993 SC 1361

13. Krishnan & ors. Vs Krishnan Veni, 1997(4)
SCC 241

14. Prabhu Chawala Vs St. of Raj., AIR 2016 SC
4245 (6)

15. Hari Bhai Malviya Vs St. of Guj., 2019(17)
SC 1

16. Asim Sarif Vs N.I.A., 2019 (7) SCC 148 (16,
17 & 19),

17. Krishnan & ors. Vs Krishnaveni & ors. ,
(1997) 4 SCC 241

18. H.K. Raval Vs Nidhi Prakash , 1989 (0) JIC 540

19. St. of Orissa Vs Debendra Nath Padhi , AIR
2005 SC 359

20. Prabhu Chawla Vs St. of Raj. ,AIR 2016 SC
4245 (6)

21. Dharampal & ors. Vs Ramshri & ors., AIR
1993 SC 1361

22. Krishnan & ors. Vs Krishna Veni & ors.,
1997(4) SCC 241

23. Karanataka Vs Muniswamy & ors. , (1997) 2
SCC 699

24. Sunil Kumar Jha & ors. Vs St. of Bihar , Crl.
Misc. Case No. 22050 of 1996

25. Smt. Kalawati Vs St. of U.P. , Crl. Revision
No. 1012 of 1990

(Delivered by Hon'ble Brij Raj Singh, J.)

1. Heard Sri C.K.Parekh, learned
Senior Advocate assisted by Sri Kumar
Ankit Srivastava, learned counsel for the
applicant, and Sri Sageer Ahmad, learned
Senior Advocate assisted by Sri Anil
Pathak, learned counsel for opposite party
No. 2, learned A.G.A. for the State and
perused material on record.

2. This application under Section 482
Cr.P.C. has been filed to set-aside the order
dated 16.3.2021 passed by Sessions Judge,
Chandauli in Criminal Revision No. 27 of
2020, arising out of judgment and order
dated
21.9.2019
passed
by
Judicial
Magistrate, Chakia, District- Chandauli in
Criminal Case No. 340 of 2019 (State Vs.
Asharani and others) arising out of Case
Crime No. 0153 of 2018 under Sections
419, 420, 465, 466, 467, 468 and 472
I.P.C., Police Station- Chakia, District-
Chandauli, pending in the Court of Judicial
Magistrate, Chakia, Chandauli as well as
allow the discharge application filed by the
applicant before the court below. A further
prayer has also been made to stay the
further proceedings of the aforesaid case.

3.

The
applicants
Shila
Devi
Purchased property sold by recorded by
owner Asharani Shukla wife of Shivendra
Dutt Shukla vide sale deed dated 9.7.2018.

4. The FIR was lodged on 11.7.2018
in case Crime No. 153 of 2018 under
Sections 419, 420, 465, 466 I.P.C., Police
Station Chakia, District- Chandauli by
Ramendra Kumar Shukla against three
persons namely, Asha Rani and her
320 INDIAN LAW REPORTS ALLAHABAD SERIES
husband Shrivendra Dutt Shukla (real
brother of informant) and Shila Devi.

5. In the said FIR dated 11.7.2018 the
informant made allegations that his father
Vidyasagar Shukla gifted the Benami
Property to him on 1.6.2018 and the said
property has been sold by Asha Rani
Shukla
(Bhabhi
of
the
complainant)
fradulently.

6. The police collected the material
and charge sheet was filed against the
applicant and the applicant had challenge
the charge sheet by filing Crl. Misc. Case
No. 24708 of 2019 and this Court directed
that applicant is permitted to move
discharge application through counsel vide
order dated 28.6.2019. In pursuance of the
direction issued by this Court the applicant
preferred discharge application which was
decided by the Judicial Magistrate Chakia,
District Chandauli on 21.9.2019 and the
said discharge application was dismissed.
Thereafter, the revision was preferred
which too was dismissed on 16.3.2021
passed by the Sessions Judge, Chandauli in
Criminal Revision No. 27 of 2020. The
applicant
being
aggrieved
has
filed
application U/s. 482 before this Court

7. Submission of counsel for
applicant:

A. That before the Magistrate,
applicant relied on the judgment i.e. 2013
Vol. I ACR 591 (S.C.) Satish Mehra Vs.
State of N.C.T. of Delhi & another
relating to quashing of charges. It was
arising out of Criminal Petition under
Section 482 Cr.P.C. decided by Delhi High
Court. Paragraphs 20 to 22. It is stated that
charges under sections 420, 467, 468, 471
and 12B of I.P.C. are quashed by High
Court against one of the Accused S.K.
Khosala and Apex Court has held that High
Court had not committed any error in
quashing the charges against the accused.

B.
That
another
judgment
referred by trial court as cited by applicant
is 2009 Volume VIII SCC 741 M. Ibrahim
Vs. State of Bihar. It is again related to
quashing of criminal proceeding/ complaint
case after framing charge and Apex Court
examined the matter under Sections 420,
467, 471 and 504 I.P.C. and held that sale
deed executed by accused do not forge a
document, hence held in paragraph 12 of
said judgment that there is no forgery,
hence Section 467/471 I.P.C. is concern, it
has been held that since ingredient of
cheating as per section 415 I.P.C. are not
found and therefore, offence is made out. It
was also found that there is no deceit or
fraud committed by accused person of that
case and ultimately conclusion had been
arrived by Apex Court that charges framed
under those sections are also quashed.

C. That the two judgments, State
Vs. Daraswmami and others, reported in
AIR 2019 S.C. 1518 and another judgment
State of Tamilnadu Vs. N. Suresh Rajan
reported in 2104 (84) AC 656. These two
judgments
referred
by
trial
court/Magistrate;
but
the
learned
Magistrate did not consider these two
judgment which were cited by informant
before the Magistrate relates the matter
under Prevention of Corruption Act and
accordingly these two judgments are not at
all relevant for the prepose of present case.
However
also
otherwise
these
two
judgments are not relevant case I as much
relating to principles laid down in Yogesh
@ Sachendra Jagdish Joshi Vs. State of
Maharashtra reported in 2008 Vol. X SC
394. Apex Court in this judgment held that
High Court wrongly acted as appellate
3 All. Smt. Shila Devi Vs. State of U.P. & Anr.
321
court against the order of Special Court.
Approached was wrongly adopted by High
Court
and
therefore,
Supreme
Court
interfered
with
the
judgment.
It
is
submitted that these judgments are not
applicable because those were cases under
prevention of Corruption Case and High
Court had exceeded its power in interfering
in trial.

D. That as regard to Order dated
16/3/2021 passed in Criminal Revision 27
of 2020 by Session Judge Chandauli, there
is error committed in not dealing with merit
of the Prosecution Case as to ascertain
whether any offence is made out. In fact as
evident from the FIR and evidence
collected in investigation, it is simple case
of civil dispute of title as well as boundary.
The Revision Court further committed
though several judgments of Apex court
and High Court have been cited or referred
in the order by revisional court. However,
two judgments Vikram Jauhar Vs. State
of U.P. reported in AIR 2019 S.C. 2109,
the Hon'ble Supreme Court considered the
fact and law, regarding disposal of
discharge application. In that matter, trial
court rejected discharge application then
matter again came up before the Hon;bel
High Court who rejected revision and
ultimately, Apex Court quash the charges
and allowed the Appeal of accused persons.

E. Another case as reported in
2003 Vol. II SCC 711 Paragarah 11,
State of Orrisa Vs. Devendra Nath
Padhi, this judgment relates to Prevention
of Corruption Act and not applicable
although paragraphs No.11 of the said
judgment of quoted below:-

Para11:"
From
the
above
judgments referred to by the learned
counsel for the appellant, it is clear that all
the court has to do a the time of framing a
charge is to consider the question of
sufficiency of ground for proceeding
against
the
accused
on
a
general
consideration of the material placed before
it by the investigating agency. There is no
requirement in law that the court at that
stage shroud either give an opportunity to
the accused to produce evidence in defence
or consider such evidence the defence may
produced at that stage".

F. Further the following case laws
are being cited by applicant before the
Hon'ble Court in support of case including
in reply to the preliminary objections raised
by
opposite
party
regarding
non
maintainability
of
Present
Petition/Application under Section 482
Cr.P.C.

G. That in the case of Jaswant
Sing Vs. State of Punjab, reported in
2021(6) JKJ 93 SC (20) as well as in the
matter of Randheer Singh Vs. State of
U.P., 2021 (5) JKJ 386 SC (31-33) the
matter arising out of pure civil matter and
therefore, Criminal proceedings have been
set-aside and quashed.

H. That as regard to case of
Superintendent
&
Remembrance
Vs.
Mohan Singh, reported in AIR 1975 SC
1002, paragraph No. 2 holding that Section
482 Cr.P.C. for quashing proceeding is
maintainable and this judgment followed in
the recent case by Apex Court in the case
of Vinod Kumar Vs. UOI reported in
2021(4) CTC 495. Paragraph No.4 and
again held that second application under
Section 482 Cr.P.C. is maintainable.

I. That as regard to case of Union
of India Vs. Praful Kumar Samal,
reported in 1979 (3) SCC 4, relevant
322 INDIAN LAW REPORTS ALLAHABAD SERIES
paragraph are paragraph No. 7, 23, 24, and
25. The details of exercising power of
Discharge is given under Section 227
Cr.P.C. in absence of any legal evidence
there is no sufficient evidence found
against the accused in execution of the sale
deed.

J.
That
in
case
relied
by
Applicant, Krishnan and others Vs.
Krishna Veni and others, reported in
1997(4) SCC 241, the relevant paragraph
are 3, 12 and 14. It is pertinent to mention
here that the Case Law Dharampal case
(AIR 1993 SC 1361) which has been relied
by respondent i.e. has been over ruled by
Full Bench of Hon'ble Apex Court.
Furthermore case of Dharampal and
others Vs. Ramshri and others, AIR
1993 SC 1361 is concerned and paragraph
No. 12 of said judgment of Krishnan and
others Vs. Krishnan Veni 1997(4) SCC
241, it is held that heh said judgment of
Dharampal case was only related to
exercise of power to issue of order of
attachment under Section 146 Cr.P.C. and
in that respect it was held that inherent
power under Section 482 Cr.P.C. was
prohibited. It is further held in Krishnan
case that view taken by Apex Court in
Dharampal case is not correct. Therefore,
no reliance could be placed by opposite
party/informant upon overruled case of
Dharampal.

K. The applicant has further relied
upon case of Prabhu Chawala Vs. State of
Rajasthan, reported n AIR 2016 SC 4245
(6) wherein, the Apex Court held in
paragraph no.6 as follows: which are
relevant.

"6.In our considered view any
attempt to explain the law further as regards
the issue relating to inherent power of High
Court
under
Section
482
Cr.P.C.
is
unwarranted. We would simply reiterate that
Section 482 begins with a non-obstante
Clause to state; "Nothing in this Code shall
be deemed to limit or affect the inherent
powers of the High Court to make such
orders as may be necessary to give effect to
any order under this Code, or to prevent
abuse of the process of any court or
otherwise to secure the ends of justice." A
fortiori, there can be no total ban on the
exercise of such wholesome jurisdiction
where, in the words of Krishna Iyer, J. ''abuse
of the process of the Court or other
extraordinary situation excites the court's
jurisdiction. The limitation is self-restraint,
nothing more'. We venture to add a further
reason in support. Since Section 397 Cr.P.C.
is attracted against all orders other than
interlocutory, a contrary view would limit the
availability of inherent powers under Section
482 Cr.P.C. only to petty interlocutory
orders! A situation wholly unwarranted and
undesirable."

L. That applicant has further relied
upon judgment of Vinu Bhai Hari Bhai
Malviya Vs. State of Gujarat, reported in
2019(17) SC 1. The relevant paragraphs is
paragraph no. 16 & 17 of the said judgment.

M. That the applicant has relied
upon recent detail judgment on section 227
Cr.P.C. which is akin to 2398 Cr.P.C. It is
pointed out the respondent counsel made an
attempt that the principle governing to 227
Cr.P.C. would not apply to Section 239
Cr.P.C. in case of Asim Sarif Vs. National
Investigating Agency, reported in 2019
(7) SCC 148 (16, 17 & 19), the most
relevant paragraph is paragraph no. 19 of
the said judgement.

"Taking not of the exposition of
law on the subject laid down by this Court, it
3 All. Smt. Shila Devi Vs. State of U.P. & Anr.
323
is settled that the judge while considering the
question of framing charge under Section 227
Cr.P.C. in sessions cases (which is akin to
section 239 Cr.P.C. pertaining to warrant
cases) has the undoubted power to sift and
weigh the evidence for the limited purpose of
finding out whether or not a prima facie case
against the accused has been made out: where
the material placed before the court discloses
grave suspicion against the accused which
has not been properly explained, the court
will be fully justified in framing the charge;
by and large if two views are possible and
one of them giving rise to suspicion only as
distinguish from grave suspicion against the
accused the trial judge will be justified in
discharging him. It is thus clear that while
examining the discharge application filed
under Section 227 Cr.P.C., it is expected
from the trial judge to exercise its judicial
mind to determine as to whether a case for
trial has been made out or not. It is true that in
such proceedings, the court is not supposed to
hold a mini trial by marshalling the evidence
on record.

8. Submission of counsel for opposite
party :-

A. In the case at hand, instant case
has been filed against the impugned order,
dated 16.3.2021 and 21.9.2019, passed by the
learned court of Sessions Judge Chandauli
and learned Judicial Magistrate Chakiya,
Chandauli, the impugned order, dated
16.3.2021 as well as also 21.9.2019, reveals
entire ordeal, both the learned court below by
passing such type of impugned order have
not committed any error of and in as much as
also miscarriage of justice.

B. It is well settled law, inherent
power u/s 482 Cr.P.C., must be exercise
sparingly only in order to secure the end of
justice. It is further submitted, in the case at
hand, the applicant has been completely
failed to make out any case either any error
of law or miscarriage of justice have been
committed by the learned courts below by
passing such type of impugned orders.
Therefore,
the
applicant
has
been
completely failed to make-out the case to
be interfere by the Hon'ble Court in order
to exercise inherent power. So as such, the
instant case is devoid of merit and liable to
dismissed out rightly.

C. It is also well settled law, in
order to dealt and decide the discharge
application filed u/s 239 Cr.P.C., only those
evidence shall be taken into consideration,
which are the part of the case diary not
otherwise. It is further submitted, at that
very stage, the defence of the accused
cannot be taken into consideration. It is
further submitted, in order to decide
discharge application meticulous in detail
reference of evidence does not require in
order to decide discharge application. At
least, discharge rejection order must reveal,
there is application of judicial mind and the
learned Judicial Magistrate has carefully
gone through the evidence available before
him. It is further submitted, in the case at
hand, that the impugned orders passed by
the learned Session Judge, Chandauli and
learned
Judicial
Magistrate,
Chakiya,
Chandauli reveals there is application of
mind. So as such, both the orders, dated
16.3.2021 and 21.9.2019 are just, proper
and legal. Therefore, do not require any
interference by the Hon'ble Court under
Section 482 Cr.P.C.

D. In fact, under the garb of the
instant case, the applicant (Smt. Shila Devi)
want to create an obstruction in the
administration of justice, needles multiple
of procedure unnecessary delay in trial and
protraction of proceeding. Whereas, the
324 INDIAN LAW REPORTS ALLAHABAD SERIES
object of criminal trial is rendered public
justice, to punish the criminal and to see i.e.
trial is concluded expeditiously before the
memory of the witnesses fades out.
Meaning thereby, the instant case, is
nothing else but it is only abuse of process
and multiplicity of the litigation. Therefore,
aforesaid case is liable to be dismissed,
accordingly, in the interest of justice, so the
justice may be done.

Reference
of
citations
by
opposite party :-

1.
Three
Hon'ble
Judges
Judgment of Apex Court, passed in the
matter
of
Krishnan
and
others
vs
Krishnaveni and Others, (1997) 4 SCC
241, relevant para No. 10 & 12

2. Three Hon'ble Judge judgment
of the Allahabad High Court passed in the
matter of H.K. Raval Vs. Nidhi Prakash,
1989 (0) JIC 540 relevant para no. 19.

3.
Three
Hon'ble
Judges
judgment of Apex Court passed in the
matter of State of Orissa Vs. Debendra
Nath Padhi, AIR 2005 SC 359, relevant
para no. 23.

Finding of the Court :-

9. Prabhu Chawla Vs. State of
Rajasthan AIR 2016 SC 4245 (6) has
been dealt exhaustively and the scope of
482 Cr.P.C. has been dealt. The Hon'ble
Supreme Court has observed that High
Court has got inherent power under Section
482 Cr.P.C., and nothing in the course shall
be deemed to limit over the inherent power
of the High Court to make such orders as
may be necessary to give effect to any
order under the Court, or to prevent abuse
of the process of any Court or otherwise to
secure the end of justice. The Supreme
Court has further enunciated that 397 is
attracted against all orders other than
interlocutory and 482 Cr.P.C. power cannot
be limited by curtailing inherent powers.

10. The counsel for opposite party has
relied the judgment of Full Bench of
Hon'ble Supreme Court Dharampal and
others Vs. Ramshri and others, AIR
1993 SC 1361. Learned counsel for
opposite party No. 2 submitted that in view
of law laid down in Dharampal Case 482 is
not maintainable against the revisional
order. So far as the case of Dharampal
and others Vs. Ramshri and others
(Supra) is concerned, the said judgment of
Krishnan and others Vs. Krishna Veni
and others, reported in 1997(4) SCC 241,
it is held that the said judgment of
Dharamapal case was only related to
exercise of power to issue of order of
attachment under Section 146 Cr.P.C. and
in that respect I was held that inherent
power under Section 482 Cr.P.C. was
prohibited. It is further held in Krishnan
and others Vs. Krishna Veni and others
case that the view taken by Apex Court in
Dharampal Case is not correct. The reliance
of Dharampal case placed by opposite party
No. 2 is overruled.

11. Legal submission regarding the
maintainability of the 482 application by
learned counsel for opposite party No. 2 is
not sustainable and it is held that against
the revisional order of the Sessions Court
482 is maintainable.

12. In view of the aforesaid
discussion, now I have to see whether the
order passed by the court below is against
law or whether the court below discussed
merit of the case by applying its mind. I
have gone through the judgment of lower
3 All. Smt. Shila Devi Vs. State of U.P. & Anr.
325
court and there is no discussion of the
evidences on record and material which are
placed before the court below are not
discussed. Once the court below is forming
opinion
for
deciding
the
discharge
application, it has to discuss the material of
the charge sheet available before him but
bare perusal of the order of the court below
would indicate that case laws has been
discussed and the facts narrated by the
parties have been recorded but while taking
the decision courts below have not taken
note of the facts and material available on
record. The said aspect is dealt in various
judgment of Hon'ble Supreme Court. The
Supreme Court has held in State of
Karanataka Vs. Muniswamy and others
(1997) 2 SCC 699 that court while
deciding discharge application has to
record its reasons while rejecting the
discharge application perusal of record and
reasons to be recorded are must. Para 7 of
the aforesaid judgment is herein under :

"The
second
limb
of
Mr.
Mookerjee's argument is that I any event
the High Court could not take upon itself
the task of assessing or appreciating the
weight of material on the record in order to
find whether any charges could be
legitimately
framed
against
the
respondents. So long as there is sme
material on the record to connect the
accused with the crime, says the learned
counsel, the case must go on and the High
Court has no jurisdiction to put a
precipitate or premature end to the
proceedings
on
the
belief
that
the
prosecution is not lively to succeed. This, in
our opinion, is too broad a proposition to
accept. Section 227 of the Code of Criminal
Procedure, 2 of 1974, provides that :

If, upon consideration of the
record of the case and the documents
submitted therewith, and after hearing the
submissions of the accused and the
prosecution in this behalf, the judge
considers that there is not sufficient ground
for proceeding against the accused, the
shall discharge the accused and record his
reasons for so doing.

This section is contained in
Chapter XVII called "Trial Before a Court
of Session". It is clear from the provision
that the record and hearing the parties he
comes to the conclusion, for reasons to be
recorded, that there is not sufficient ground
for proceeding against the accused. The
object of the provision which requires the
Sessions Judge to record his reasons is to
enable the superior court to examine the
correctness of the reasons for which the
Sessions Judge has held that there is or is
not sufficient ground for proceeding
against the accused. The High Court
therefore is entitled to go into the reasons
given by the Sessions Judge in support of
his order and to determine for itself
whether the order is justified by the facts
and circumstances of the case. Section 482
of New Code, which corresponds to Section
561-A of the Code of 1898, provides that :

Nothing in this Code shall be
deemed to limit or affect the inherent
powers of the High Court to make such
orders as may be necessary to give effect to
any order under this Code or to prevent
abuse of the process of any Court or
otherwise to secure the ends of justice.

In the exercise of this wholesome
power, the High Court is entitled to quash
a proceeding if it comes to the conclusion
that allowing the proceeding to continue
would be an abuse of the process of the
Court or that the ends of justice require
that the proceeding ought to be quashed.
326 INDIAN LAW REPORTS ALLAHABAD SERIES
The saving of the High Court's inherent
powers, both in civil and criminal matters,
is designed to achieve a salutary public
purpose which is that a court proceeding
ought not to be permitted to degenerate
into
a
weapon
of
harassment
or
persecution. In a criminal case, the veiled
object behind a lame prosecution, the very
nature of the material on which the
structure of the prosecution rests and the
like would justify the High Court in
quashing the proceeding in the interest of
justice. The ends of justice are higher than
the ends of mere law though justice has got
to be administered according to laws made
by the legislature. The compelling necessity
for making these observations is that
without a proper realisation of the object
and purpose of the provision which seeks to
save the inherent powers of the High Court
to do justice between the State and its
subjects, it would be impossible to
appreciate the width and contours of that
salient jurisdiction."

13. Hon'ble Supreme Court has again
discussed the scope of 227 and 228 Cr.P.C.
in Sunil Kumar Jha and Others Vs. State
of Bihar in Crl. Misc. Case No. 22050 of
1996 decided on 5.2.1997. Para 6 is herein
under :

"From
bare
perusal
and
comparison of the aforesaid two provisions
it appears that while in the case of
discharge of an accused under Section 227
of the Code it is obligatory for the Judge to
record his reasons for doing so. But while
framing charge under Section 228 of the
Code the provision does not say in a very
specific word that the Court msut record
reasons. Nevertheless Section 228 provides
that while framing charge, the Court must
be of the opinion that there is ground for
presuming that the accused has committed
an offence. In other words, there must be
valid reasons and foundation for framing
an opinion that the accused has committed
an offence."

14. The case decided by Allahabad
High Court in Smt. Kalawati Vs. State of
U.P. decided on 11.7.1990 passed in Crl.
Revision No. 1012 of 1990 wherein it has
been held that though the full statements of
the witnesses need not be discussed but
prima
facie
case
should
be
briefly
indicated. Para 3 is herein under :

"It is true that for determining
prima facie case court need not weigh or
sift the evidence or make roving enquiry. It
need not give full statements of the
witnesses. Evidently for a judicial speaking
order it is necessary that the evidence
constituting prima facie case should be
briefly indicated and should not be
substituted
by
vague
words
or
by
conclusion alone."

15. The court has to see whether the
material placed before the court have been
properly explained. If there are two views
emerging then the court has to examine
discharge application filed under Section
227 Cr.P.C. by discussing the evidences on
record and then forming the opinion to pass
order on the application. Both courts below
have not discussed the evidences and
material available before them and reasons
have not been recorded. The order passed
by the Sessions Court dated 16.3.2021 in
Crl. Case No. 340 of 2019 (State Vs. Asha
Rani and others) in Crl. Revision No. 27 of
2020 and the judgment and order dated
21.9.2019 passed by Judicial Magistrate,
Chakia, District- Chandauli are set-aside.

16. The matter is remitted back to
Judicial
Magistrate,
Chakia,
District-
Chandauli to take fresh decision in view of
3 All. Rajesh @ Rajeshwar & Ors. Vs. State of U.P. & Anr.
327
the observation made above within a period
of three months. The applicant will furnish
the copy of the order passed by this Court
before the court below within two weeks
from today.

17. The application is accordingly,
allowed.
----------
(2022)03ILR A327
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 14.02.2022

BEFORE

THE HON'BLE BRIJ RAJ SINGH, .J.

Application U/S 482 No.26550 of 2021

Rajesh @ Rajeshwar & Ors. ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Anuj Bajpai

Counsel for the Opposite Parties:
A.G.A.

(A) Criminal Law - Indian Penal Code,
1860 - Sections 302 & 201 - The Code
of Criminal Procedure, 1973 - Section
482 - Inherent power - Section 311 -
Power to summon material witness, or
examine
person
present
-
discretionary
power
vested
under
Section 311 CrPC has to be exercised
judiciously
for
strong
and
valid
reasons
and
with
caution
and
circumspection to meet the ends of
justice - cardinal rule of law of
evidence - best available evidence
must be brought before the court to
prove a fact, or a point in issue -
object underlying Section 311 Cr.P.C .
- there may not be failure of justice
on account of mistake of either side in
bringing the valuable evidence on
record.(Para - 7,9,12)
Application under Section 311 Cr.P.C. - to call
the witness - statement of witness under
Section 161 Cr.P.C. recorded - not examined
before court below - last witness of the incident
- material witness to reach out the truth - to be
examined in the interest of justice - allowed
application under Section 311 Cr.P.C. - accused
applicant filed an objection before court -
ground - belated application filled to delay the
trial.(Para - 2,3)

HELD:-Order passed in consonance with the
provisions of Section 311 Cr.P.C. Summoning
the witness by the court below is important
whose statement has already been recorded
under Section 161 Cr.P.C. which is part of
charge sheet . Witness has to be examined, so
that court can reach to the truth. No illegality or
perversity in the observations and findings
recorded by the trial court in the impugned
order. (Para - 13,14)

Application u/s 482 Cr.P.C. dismissed. (E7)

List of Cases cited:-

1. Natasha Singh Vs C.B.I., 2013(5) SCC 741

2. Mohanlal Shamji Soni Vs U.O.I. & anr., AIR
1991 SC 1346

3. Rajeswar Prasad Misra Vs The St. of W.B. &
anr., AIR 1965 SC 1887

4. Rajendra Prasad Vs Narcotic Cell through its
Officer-in- Charge, Delhi, AIR 1999 SC 2292 P

5. Sanjeeva Rao Vs St. of A.P., AIR 2012 SC
2242

6. Hoffman Andreas Vs Inspector of Customs,
Amritsar, (2000) 10 SCC 430

7. T. Nagappa Vs Y.R. Muralidhar, AIR 2008 SC
2010

(Delivered by Hon'ble Brij Raj Singh, J.)

1. By means of this application under
section 482 Cr.P.C., the applicant has
invoked the inherent jurisdiction of this