# Vidya Sagar Revisionist v. State of U.P. & Anr

- **Citation:** (2024) 2 ILRA 39
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-11-03
- **Case number:** Criminal Revision No. 3588 of 2017
- **Bench:** Ram Manohar Narayan Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vidya-sagar-revisionist-v-state-of-u-p-anr-50889
- **Pages:** 6

## Headnote

Criminal Law - Indian Penal Code, 1860 -
Sections 379 & 427 - Code of Criminal
Procedure, 1973
-
Section 245(2)
-
Against rejection of discharge application
-
Accused/applicant
contended
that
complainant's
earlier
application
u/s
156(3) Cr.P.C. for registration of F.I.R. and
investigation,
dismissed,
this
fact
concealed while filing present complaint -
Revisionist moved application u/s 245(2)
Cr.P.C. raising several factual grounds, not
duly considered by trial court while
dismissing same - It is urged that
revisionist and co-accused are on enimical
terms, leaving no occasion for joint
commission of theft or mischief as alleged
- Held, admitted fact that criminal revision
filed
against
summoning
order
was
dismissed,
thereafter
accused
moved
application u/s 245(2) Cr.P.C. seeking
discharge at pre-trial stage - Revisionist is
not yet on bail - No proceedings taken
between summoning order and discharge
application - Since summoning order
affirmed in criminal revision on same
facts, discharge application u/s 245(2)
40 INDIAN LAW REPORTS ALLAHABAD SERIES
Cr.P.C. not maintainable - Trial court
rightly
dismissed
it,
observing
that
grounds raised involve disputed questions
of fact, which can be adjudicated upon
evidence, thus charges cannot be held
groundless at this stage - Accused retains
right
to
cross-examine
prosecution
witnesses u/s 244 Cr.P.C. before framing
of charge, to establish that no trial is
required and to seek discharge u/s 245(1)
Cr.P.C., including by confronting witnesses
with supporting documents that dispute is
civil in nature - No illegality in impugned
order, dismissed. (Para 5, 6, 8, 14)

Revision dismissed. (E-13)

List of Cases cited:

## Text

2 All. Vidya Sagar Vs. State of U.P. & Anr.
39
consideration the fact that the revisionist
has not given any documentary evidence in
support of alleged harassment of his son by
her wife. It has also mentioned that no
suicide note was found which may
corroborate
the
averment
regarding
abetment of suicide by the wife of the
deceased. The Magistrate has also taken
into consideration the fact that a case was
filed by the wife of the deceased against the
revisionist/applicant, namely, Misc. Case
No. 149 of 2022 (Smt. Vijay Lakshmi @
Bulbul and Another Vs. Bharat Singh
Kushwaha) filed u/s 372 of the Indian
Succession Act, 1925, for issuance of
succession certificate in favour of opposite
party no. 2 and her son regarding the bank
deposit of the deceased.

13. The revisionist has not mentioned
that he had filed affidavit in support of
application u/s 156 (3) Cr.P.C. nor he has
filed certified copy of any such affidavit as
mandated by the Hon'ble Apex Court in the
case
of
Mrs.
Priyanka
Srivastava
(supra).

14. Considering the facts and
circumstances of the case and prima facie
evidence on record in the light of the law
propounded by the Hon'ble Supreme Court
for passing order by Magistrate on
application u/s 156 (3) Cr.P.C., the Court is
of the considered opinion that no illegality,
irregularity or impropriety has been found
in the impugned order passed by the
learned Magistrate.

15. There is no merit in the criminal
revision and the same is liable to be
dismissed.

16.

The
criminal
revision
is
dismissed, accordingly.

17. Let a copy of this order be sent to
the concerned trial court for necessary
action.
----------
(2024) 2 ILRA 39
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 03.11.2023
BEFORE

THE HON'BLE RAM MANOHAR NARAYAN
MISHRA, J.

Criminal Revision No. 3588 of 2017

Vidya Sagar ...Revisionist
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionist:
Sri Lok Nath Shukla

Counsel for the Opposite Parties:
G.A., Km. Nisha Singh, Sri Prem Chandra

Criminal Law - Indian Penal Code, 1860 -
Sections 379 & 427 - Code of Criminal
Procedure, 1973
-
Section 245(2)
-
Against rejection of discharge application
-
Accused/applicant
contended
that
complainant's
earlier
application
u/s
156(3) Cr.P.C. for registration of F.I.R. and
investigation,
dismissed,
this
fact
concealed while filing present complaint -
Revisionist moved application u/s 245(2)
Cr.P.C. raising several factual grounds, not
duly considered by trial court while
dismissing same - It is urged that
revisionist and co-accused are on enimical
terms, leaving no occasion for joint
commission of theft or mischief as alleged
- Held, admitted fact that criminal revision
filed
against
summoning
order
was
dismissed,
thereafter
accused
moved
application u/s 245(2) Cr.P.C. seeking
discharge at pre-trial stage - Revisionist is
not yet on bail - No proceedings taken
between summoning order and discharge
application - Since summoning order
affirmed in criminal revision on same
facts, discharge application u/s 245(2)
40 INDIAN LAW REPORTS ALLAHABAD SERIES
Cr.P.C. not maintainable - Trial court
rightly
dismissed
it,
observing
that
grounds raised involve disputed questions
of fact, which can be adjudicated upon
evidence, thus charges cannot be held
groundless at this stage - Accused retains
right
to
cross-examine
prosecution
witnesses u/s 244 Cr.P.C. before framing
of charge, to establish that no trial is
required and to seek discharge u/s 245(1)
Cr.P.C., including by confronting witnesses
with supporting documents that dispute is
civil in nature - No illegality in impugned
order, dismissed. (Para 5, 6, 8, 14)

Revision dismissed. (E-13)

List of Cases cited:

1. Ajay Kumar Ghose Vs St. of Jharkhand & ors.
(2009) 14 SCC 115

2. Harinarayan G. Bajaj Vs St. of Mah. & Ors.
(2010) 11 SCC 520

3. Ajay Kumar Ghose Vs St. of Jharkhand & ors.
(2009) 14 SCC 115

4. Satender Kumar Antil Vs C.B.I.& anr. reported
in 2022 SCC Online SC 825

(Delivered by Hon'ble Ram Manohar
Narayan Mishra, J.)

1. Pleading have already been
exchanged between the parties.

2. The instant criminal revision has
been
preferred
by
the
accusedrevisionist against the order dated
05.08.2017
passed
by
learned
Additional Chief Judicial MagistrateIII, Jaunpur, in Criminal Case No. 5690
of 2017 (Jagnarayan Vs. Sher Bahadur)
under Sections 379, 427 I.P.C., P.S.-
Barsati,
District-
Jaunpur,
whereby
discharge application under Section
245(2) Cr.P.C. moved by the accusedrevisionist has been dismissed.

3. Heard the submissions of Sri Lok
Nath Shukla, learned counsel for the
revisionist, Sri Deepak Kapoor, learned
A.G.A. for the State, Sri Prem Chandra,
learned counsel for opposite party No. 2
and perused the record.

4. The brief facts relevant for present
revision are that the complainant filed
present complaint against the revisionist
and four other accused persons on
02.09.2005
with
averment
that
on
17.05.2005, he was going towards her
village in the evening from District Court,
Jaunpur, after disembarking from a train,
when he reached near border of his village
around 07:00 P.M., he heard some noise
from his bamboo cluster situated at Plot
No.234/ 1.30. He reached near his bamboo
cluster and found that the accused persons
were cutting bamboo from said cluster and
accused Shravan Kumar was carrying the
cut bamboos on his shoulder. He cried and
shouted to catch them, whereupon the
witnesses
Deepak and Ajay
Prakash
reached the spot, however, the accused
persons made their good escape. In the
meanwhile, accused persons carried away
10 bamboos which were cut from his
cluster amounting to Rs. 500 and left two
cut bamboos on the spot, due to which he
suffered Rs. 400 more loss. He got a
written report prepared next day, when he
reached the court and produced the same
before
Additional
S.P.
Jaunpur,
the
complaint was registered before trial court.
The complainant examined himself under
Section 200 Cr.P.C. and statements of
witnesses Deepak and Ajay were recorded
under Section 202 Cr.P.C. in support of
complainant's version. The learned court
below summoned the revisionist under
Section 379 and 427 I.P.C. vide order dated
31.03.2006. Feeling aggrieved by the
summoning order, the revisionist preferred
2 All. Vidya Sagar Vs. State of U.P. & Anr.
41
a Criminal Revision No. 4210 of 2006
(Vidya Sagar Vs. State of U.P. and another)
before this Court which was decided vide
order dated 07.10.2016. Thereafter, present
revisionist moved an application under
Section 245(2) Cr.P.C. for discharge before
court below on ground that he has been
falsely implicated in the case. The
complainant did not lodge any F.I.R.
deliberately on pretext of being sick at that
time. His application under Section 156(3)
Cr.P.C moved before court below was
dismissed and thereafter he filed present
complaint. There is an old enmity between
the accused on the one hand and the
complainant as well as father of the witness
Deepak, namely Balraj on the other hand
and due to this enmity many criminal and
civil litigations are proceeding between the
accused applicant and complainant and
father of these witnesses. The complainant
had assaulted accused on 15.07.1996
regarding which a criminal case S.T. 419 of
2010 State Vs Hubanarayan is pending
before Special Judge, E.C. Act, Jaunpur
and another case was lodged by Tirthraj,
the brother of accused applicant against
Usardan and others under Section 147, 452,
504, 506 I.P.C. and a criminal revision was
also preferred in that case. A civil suit is
also proceeding between the accusedapplicant and co-accused Sharvan Kumar,
Praveen Kumar and Ram Prakash. Apart
from that a criminal case is pending in the
court against the accused Sher Bahadur. In
that case, this is not possible that the
accused-applicant would commit theft
along with co-accused. The complainant
has filed present complaint on creating a
false story in collusion with co-accused of
this case, no bamboo cluster is existing in
the plot No. 234/1.30 of the complainant,
he is neither owner nor in possession of
said bamboo cluster. In fact, said bamboo
cluster was planted by Babu Ram, the
grand-son of Bhagwan Das and he is
owner, in possession of said bamboo cluster
and Civil Suit No. 1049 of 1994 Babu Ram
Vs. Usardhan is also pending with regard to
said bamboo cluster. No offence of theft is
made out in the case against the accused
applicant and he is liable to be discharged
in this case. Learned court below dismissed
discharge application on premise that
grounds taken in discharge 245(2) Cr.P.C.
are matter of evidence and the evidence of
party is yet to be adduced and the court can
give its finding after adducing of evidence
in the case.

5. The accused applicant has preferred
present revision with averment that the
application under Section 156(3) Cr.P.C.
initially filed by the complainant for
lodging
an
F.I.R.
and
directing
investigation by police with regard to
alleged incident was dismissed by court
below
vide
order
dated
07.07.2005,
however, the complainant filed present
complaint by concealing this fact. The
accused filed an application under Section
245(2) Cr.P.C. comprising many factual
and legal grounds, but same were not
properly addressed by learned court below
while dismissing his application. The
accused revisionist and co-accused are
themselves on enmical terms and no
question arises that the revisionist and coaccused will involve in commission of theft
and criminal mischief as alleged in the
complaint.
The
charge
against
the
revisionist are groundless and he deserves
to be discharged and the impugned order is
liable to be set aside.

6. Learned counsel for the revisionist
addressed the grounds taken in discharge
application as well as in revision memo
while his arguments and submitted that the
matter is essentially of civil nature as the
42 INDIAN LAW REPORTS ALLAHABAD SERIES
ownership of said bamboo cluster is
subjudice to civil court and on that account
also no case of theft or criminal mischief is
made out against the revisionist and
therefore, the impugned order is liable to be
setaside.

7. Per contra, learned A.G.A. for the
State and learned counsel appearing for
opposite party No. 2 submitted that the
learned trial court has applied his judicial
mind and rightly passed the impugned
order dated 31.03.2006 whereby discharge
application moved by the revisionist has
been
dismissed.
The
chargesheet
is
submitted against the complainant in
criminal case No. 1286 of 2003 (State Vs
Sudeep Narayan and others) which is
pending trial. The complainant has rightly
filed the complaint case against the
revisionist and the summoning order
31.03.2006 is legal and genuine.

8. This is admitted fact that criminal
revision filed by the present revisionist
against the summoning order passed by
learned court below in present case has
been dismissed and just thereafter the
accused has moved an application under
Section
245(2)Cr.P.C.
and
claiming
discharge at pre trial stage. The revisionist
is not enlarged on bail as yet as informed
by his learned counsel. No further
proceedings were taken by court below
between summoning order and filing of
discharge application by the revisionist. As
the summoning order was affirmed in
criminal revision against summoning order
by this Court on same facts, application for
discharge under Section 245 (2) Cr.P.C.
filed by the revisionist could not be allowed
by trial court and the trial court has rightly
dismissed the discharge application with
observation that the grounds taken in the
discharge application are matter of fact
which can only be adjudicated after
adducing of evidence. Disputed questions
of facts cannot be adjudicated to hold that
the charge levelled against the accused are
groundless in facts and circumstances of
the present case.

9. In a complainant's case two stages
of discharge are provided, first at pre trial
stage under Section 245(2) Cr.P.C. and
secondly after recording of evidence under
Section 244 Cr.P.C. The provision of
Section 245 Cr.P.C. are reproduced as
under:

"Section 245 in The Code Of
Criminal Procedure, 1973

245. When accused shall be
discharged.

(1) If, upon taking all the
evidence referred to in section 244, the
Magistrate considers, for reasons to be
recorded, that no case against the accused
has been made out which, if unrebutted,
would
warrant
his
conviction,
the
Magistrate shall discharge him.

(2) Nothing in this section shall
be deemed to prevent a Magistrate from
discharging the accused at any previous
stage of the case if, for reasons to be
recorded by such Magistrate, he considers
the charge to be groundless"

10. Thus, from perusal of provisions
of Section 245, it is obvious that a
Magistrate may discharge an accused at any
previous stage of the case before recording
evidence under Section 244 Cr.P.C. if, for
reasons to be recorded by such Magistrate,
he considers charge to be groundless.
Whereas under Section 245(1) Cr.P.C. the
wide amplitude has been given to the
Magistrate, who may discharge the accused
if on taking of evidence under Section 244,
he considers, for reasons to be recorded,
2 All. Vidya Sagar Vs. State of U.P. & Anr.
43
that no case against the accused has been
made out which, if unrebutted would
warrant his conviction. As discharge
application under Section 245(2) Cr.P.C.
has been filed by the accused before
Magistrate on similar grounds which would
have been taken by him while challenging
summoning order before this Court in
Criminal Revision No. 4210 of 2006
(Vidhya Sagar Vs. State of U.P. and
Another), the charge cannot be held
groundless at this stage.

11. Hon'be Supreme Court in Ajay
Kumar Ghose Vs. State of Jharkhand
and others (2009) 14 SCC 115 held that:

"There is difference in Sections
245(1) and 245(2) CrPC. Under Section
245(1), the Magistrate has the advantage of
the evidence led by the prosecution before
him under Section 244 and he has to
consider whether, the conviction of the
accused would be warranted if the evidence
remains
unrebutted.
If
there
is
no
discernible incriminating material in the
evidence, then the Magistrate proceeds to
discharge the accused under Section 245(1)
CrPC. The situation under Section 245(2)
CrPC is, however, different. There, the
Magistrate has the power of discharging
the accused at any previous stage of the
case i.e. even before such evidence is led.
However, for discharging an accused under
Section 245(2) CrPC, the Magistrate has to
come to a finding that the charge is
groundless. There is no question of any
consideration of evidence at that stage,
because there is none. The Magistrate can
take this decision before the accused
appears or is brought before the court or
the evidence is led under Section 244
CrPC. The previous stage would be before
the evidence of the prosecution under
Section 244(1) CrPC is completed or any
stage prior to that. Previous stage could be
from Sections 200 to 204 CrPC and till the
completion of the evidence of prosecution
under Section 244 CrPC. Thus, the
Magistrate can discharge the accused even
when the accused appears, in pursuance of
the summons or a warrant and even before
the evidence is led under Section 244
CrPC, and makes an application for
discharge."

12. Hon'ble Supreme Court in
Harinarayan G. Bajaj v. State of
Maharashtra & Ors. (2010) 11 SCC 520
and Ajay Kumar Ghose Vs. State of
Jharkhand and others (2009) 14 SCC
115 considered the legal position with
regard to difference of procedure in trial of
warrant cases on the basis of police report
and that instituted otherwise than a police
report, and held that right of an accused to
cross-examine the witnesses produced by
the prosecution before framing of a charge
against him was a valuable right. It was
with their cross-examination the accused
could show to the Court that there was no
need for a trial against him and that the
denial of the right of cross-examination
under Section 244 would amount to denial
of an opportunity to the accused to show to
the Magistrate that the allegations made
against him were groundless and there was
no reason for framing of charge against
him.

13. The trial court cannot frame the
charge against accused without recording
evidence under Section 244(1) Cr.P.C. and
even at the stage of Section 244 Cr.P.C., the
accused has right to cross-examine the
witnesses. This Court has already held that
right to cross-examine the witnesses, who
are examined before framing of charge is a
very precious right, because it is only by
cross-examination that the accused can
44 INDIAN LAW REPORTS ALLAHABAD SERIES
show to the court that there is no need of
trial against him. It is to be seen that before
framing of the charge under Section 246
Cr.P.C., the Magistrate has to form an
opinion about their being grounds for
presuming that the accused had committed
the offence triable under the Chapter. If, it
is held that there is no right of crossexamination under Section 244, then the
accused would have no opportunity to
show to the Magistrate that the allegations
are groundless and that there is no scope of
framing of charge against him.

14. On the basis of foregoing
discussions and observations, this Court is
of considered opinion that the learned trial
court has not committed any illegality,
irregularity or perversity while dismissing
the discharge application moved by the
accused revisionist under Section 245(2)
Cr.P.C., however, the accused will have
right to cross-examine the prosecution
witnesses at the stage of evidence under
Section 244 Cr.P.C. and before framing of
charge, so that he may be able to show to
the court that there is no need of trial
against him and he is liable to be
discharged under Section 245(1) Cr.P.C. He
can confront the witnesses with regard to
documents placed in support of his claim
that the matter is essentially of civil nature
and no charge as alleged against him is
made out in the case.

15. Accordingly, the revision stands
dismissed with above observations.

16. However, in case the accusedrevisionist is not already enlarged on bail in
the case, he is at liberty to move a bail
application before the court below and the
same will be disposed of in the light of
guidelines issued by Apex Court in
Satender Kumar Antil Vs. Central
Bureau of Investigation and another
reported in 2022 SCC Online SC 825.
----------
(2024) 2 ILRA 44
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 18.12.2023
BEFORE

THE HON'BLE SUBHASH CHANDRA
SHARMA, J.

Criminal Revision No. 4122 of 2023

Keshav Singh ...Revisionist
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionist:
Sri Rajeev Kumar, Sri Prashant Yadav

Counsel for the Opposite Parties:
G.A., Sri Chandra Prakash Pandey, Sri Firoz
Ahmad Khan

Criminal Law - Indian Penal Code, 1860 -
Sections 363, 366, 376-D, 328 - POCSO
Act, 2012 - Section 3⁄4 - Instant criminal
revision filed by complainant/informant
against orders of J.J.Board and Children's
Court, whereby opposite party declared
juvenile on basis of date of birth recorded
in matriculation certificate, while ignoring
date of birth recorded in primary school
records from Classes I to V - Held, on
consideration of St.ments of C.W.1, C.W.3,
C.W.4 and entries in S.R. Registers of
concerned schools, it established that
opposite party first attended Primary
School Kukandai, Kheragarh, Agra in Class
I on 13.07.2009, continued his studies
upto 31.01.2013, where his date of birth
recorded as 17.07.2003 - Subsequently,
without producing any transfer certificate
or documents relating to date of birth, his
uncle secured admission on basis of test in
Shanti Devi Saraswati Shishu Mandir,
Kheragarh, Agra by concealing earlier
records and mentioning date of birth as
17.09.2006 - For determination of age of
child, date of birth recorded in first