# Vikas Asthana Revisionist v. State of U.P. & Anr

- **Citation:** (2022) 6 ILRA 1142
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-05-31
- **Case number:** Criminal Revision No. 494 of 2022
- **Bench:** Brij Raj Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vikas-asthana-revisionist-v-state-of-u-p-anr-48636
- **Pages:** 14

## Headnote

Criminal Law - Code of Criminal
Procedure,
1973
-
Section
227Application
for
discharge
rejectedchallenged-probative value of the material
on record cannot be gone into -material
on record has to be accepted as true-it
shows
prima
facie
case
against
accused=no
right
to
produce
any
document at the stage of framing of
charges-power of discharging should be
exercised very sparingly.

Revision dismissed. (E-9)

List of Cases cited:

## Text

_Characters 0–39,915 of 43,571. This is a partial read: ask again with offset=39915 for what follows._

1142 INDIAN LAW REPORTS ALLAHABAD SERIES

23. However, there is no order as to
costs.
----------
(2022)06ILR A1142
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 31.05.2022

BEFORE

THE HON'BLE BRIJ RAJ SINGH, J.

Criminal Revision No. 494 of 2022

Vikas Asthana ...Revisionist
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionist:
Sri Rajesh Chandra Mishra, Sri Akhilesh
Kumar Kalra

Counsel for the Opposite Parties:
Govt. Advocate

Criminal Law - Code of Criminal
Procedure,
1973
-
Section
227Application
for
discharge
rejectedchallenged-probative value of the material
on record cannot be gone into -material
on record has to be accepted as true-it
shows
prima
facie
case
against
accused=no
right
to
produce
any
document at the stage of framing of
charges-power of discharging should be
exercised very sparingly.

Revision dismissed. (E-9)

List of Cases cited:

1. St. of Orissa Vs Devendra Nath Padhi

2. Rekha Jain Vs St. of Karn. & anr.; 2022 SCC
online SC 585

3. Sanjay Kumar Rai Vs St. of U. P. & anr.; 2021
SCC Online SC 367

4. N. Vijay Kumar Vs St. of T. N.; (2021) 3 SCC
687;
5. Central Bureau of Investigation, Hyderabad
Vs K. Narayana Rao; (2012) 9 SCC 512

6. Archana Rana Vs St. of U.P. & anr.; (2021) 3
SCC 751.

7. St. of Raj. Vs Fatekh Karan Medhu; (2017) 3
SCC 198

8. St. Represented By Deputy Superintendent of
Police, Vigilance And Anti-Corruption, Tamil
Nadu Vs J. Doraiswamy & ors. (2019) 4
Supreme Court Cases 149

9.
Srilekha
Sentil
Kumar
Vs
Deputy
Superintendent Of Police, Central Bureau OF
Investigation, ACB, Chennai; (2019) 7 SCC 82

10. St. By Karnataka Lokayukta, Police Station,
Bengaluru Vs M. R. Hiremath; (2019) 7 SCC 515

11. M. E. Shivalingamurthy Vs Central Bureau of
Investigation, Bengaluru; (2020) 2 SCC 768
(Delivered by Hon'ble Brij Raj Singh, J.)

1. This criminal revision has been
filed with a prayer to set aside the order
dated 26.02.2022 passed by Additional
Session Judge/Special Judge, Prevention of
Corruption Act, 1988, Court No. 9,
Lucknow in Criminal Case No. 957 of
2018 (State Vs. Vikas Asthana & Others)
whereby the application for discharge filed
by the revisionist has been rejected as well
as to quash the order dated 06.04.2022
whereby the ourt below has framed the
charges against the revisionist under
Section 7/13 (1) (d) read with Section 13
(2) of the Prevention of Corruption Act,
1988, under Section 8/13 (1) (d) read with
Section 13 (2) of the Prevention of
Corruption Act, 1988, under Section 420
I.P.C. and under Section 120B I.P.C.
arising out of Case Crime No. 264 of 2017,
under Sections 7, 8, 13 (1) (d) and 13 (2) of
the Prevention of Corruption Act, 1988 and
Sections 410, 420, 120B, 34 I.P.C, PS
6 All. Vikas Asthana Vs. State of U.P. & Anr.
1143
Barhpura, District Etawah and discharge
the
revisionist-accuesd
from
all
the
charges.

2. Prior to discussing the present
controversy, it is necessary to discuss the
detail background of "discharge" enshrined
under Criminal Procedure Code which
would be also relevant to decide the present
controversy.

3. Introductory Part:-

The provison of discharge is
available to the accused to demonstrate
before the court that after perusing the
material and evidence, he has been
maliciously charged. Under the Criminal
Procedure Code, 1973, the Discharge
Application is envisaged to provide remedy
to the person who has been maliciously
charged. If the allegations which have been
made against him are false, this Code
provides the provisions for filing a
discharge application. If the evidence given
before the Court is not sufficient to satisfy
the offence and in the absence of any prima
facie case against him, he is entitled to be
discharged.

4. Division of Criminal Cases:-

There
are
two
major
classifications of criminal cases under the
Code of Criminal Procedure that is:

(1) Cases instituted on the basis
of a police report (Section 238-243).

(2) Cases instituted otherwise
than on police report based on the
complaint (Section 244-247).

There are four types of the trial
procedures provided under CrPC:

1. Summary trials (Section 260265),

2. Trial of summons cases by
Magistrates (Section 251-259),

3. Trial of warrant cases by
Magistrates (Section 238-250), and

4. Trial before a court of Sessions
(Section 225-237).

The procedure of warrant cases is
used for the trial of warrant cases by the
Magistrates and the trial before the court of
sessions whereas trial of summons cases by
Magistrates and summary trials are tried in
a summons case trial.

5. Summons Cases:-

Section 2 (w) of the CrPC defines
''Summons case' as a case that is related to
an offence and it is also not a ''warrant
case'. It includes those offences other than
warrant cases i.e, those offences which are
not
punishable
with
death,
life
imprisonment, or imprisonment exceeding
two years.

6. The Warrant Cases:-

Warrant case is defined under
Section 2 (x) of the CrPC as a case of an
offence which is punishable with death, life
imprisonment, or imprisonment exceeding
two years.

Discharge on the basis of a police
report:-

The procedure of law is that the
police after completing its investigation
files the final charge sheet under Section
173 of the code. Trial against the accused
begins by the concerned Court thereafter.
1144 INDIAN LAW REPORTS ALLAHABAD SERIES
However, Section 239 and 227 of CrPC,
provide provisions that before the charges
are framed against an Accused person, he
can be discharged. However, in warrant
cases only, these provisions can be used by
the Accused.

7. Discharging in warrant case on a
police report before Magistrate:-

It is procedure of law that the
police, after completing its investigation, files
the final charge sheet against the accused.
Thereafter the accused has to face trial as the
charges are framed against him, by the
concerned Court. However, the Code of
Criminal Procedure grants a procedure that
states that the Accused person can be
discharged before the charges are framed
against him.

Section 239 of the Code of
Criminal Procedure states when accused shall
be discharged.

Upon due consideration of the
police reports and all the documents sent
under Section 173, after hearing prosecution
as well as accused, the Magistrate may
consider the charge to be groundless against
the accused and he can discharge the accused
and also record his reasons for doing so.

The significant value of the
materials on record cannot be looked into at
the stage of framing of a charge by the
Magistrate and the materials brought on
record by the prosecution against the accused
have to be trusted as true at that stage. The
emerging judicial view is that the Court
cannot initiate an in-depth inquiry into the
evidence at this stage.

8.

Important
elements
for
Discharge:-

The Court will have to consider
the Charge sheet and the Police Report
submitted to it by the Police under Section
173, following are the essential elements:

- The Magistrate may, if he
deems fit, examine the Accused.

- Thereafter the arguments of
both the Prosecution and the Accused
Parties and their versions would be heard
versions.

- Grounds against the accused to
be baseless- There should not be any
evidence present against the accused. The
Court also has to assure itself that there is
no prima facie case against the accused.

If all the above conditions are
fulfilled, then the Accused shall be
discharged.

9. Whether the magistrate has to
take cognizance of the material brought
by the accused?

Under Section 239 of the code,
the Magistrate has to give the prosecution
and the accused a chance of being heard
besides taking cognizance of the police
report and the documents sent therewith.
The Code makes it mandatory for the Court
to give a hearing to the accused to
determine whether it is essential to proceed
to the next stage. It is a matter of the
application of the judicial mind.

Nothing in the code restricts the
scope of such an audience to oral
arguments. If the accused produces any
trustworthy material at that stage which
might drastically affect even the very
feasibility of the case, it would be very
inappropriate to recommend that no such
6 All. Vikas Asthana Vs. State of U.P. & Anr.
1145
material shall be taken into consideration
by the Court at that stage. The word ground
includes the insufficiency of evidence to
justify the charge.

10.

When
accused
shall
be
discharged in Sessions trial:-

Section 227 of the Code defines
that if the judge considers that there is no
sufficient ground for proceeding against the
accused, upon hearing the submissions of
the prosecution and the accused in the
behalf and consideration of the record of
the case along with the documents
submitted therewith, he shall discharge the
accused and record his reasons also for so
doing.

Only after considering allegations
in the charge-sheet and the relevant caselaw, the Discharge of an accused can be
ordered.

11. Mandatory cases where Sessions
Judge is bound to discharge:-

1. Where he is precluded from
proceeding because of a prior judgment of
High Court,

2. Where the prosecution is
clearly barred by limitation,

3. Where the evidence produced
is not sufficient,

4. Where there is no legal ground
for proceeding against the accused, or

5. Where no sanction has been
obtained.

12. Decision of Court for Sufficient
ground:-

As per Section 227 of the Code,
the magistrate should ensure that there is no
sufficient ground for proceeding, it means
that no prudent person can conclude that
there are grounds or even a single ground
to sustain the charge against the accused. If
the Sessions Judge is certain that the trial
would only be a futile exercise or complete
waste of time, he has the authority to
discharge the accused.

For the purpose of deciding
whether the grounds are sufficient for
proceeding against an accused, the Court
determines
the question whether the
material on record, if it is un-rebutted, is
sufficient to make the conviction possible.
It postulates the exercise of the judicial
mind to the facts of the case to decide
whether a case has been made out by the
prosecution for trial.

13. Judicial Scrutiny for prima
facie case:-

It is only through the facts of
each case through which the judge can
determine if it is a prima-facie case and in
this regard, it is neither possible nor
desirable to formulate rules of universal
application. However, if both of the views
are possible and the Judge is convinced that
the evidence presented before him gives
rise to suspicion but not grave suspicion, he
can discharge the accused. At this stage, he
does not need to bother whether the trial
will lead in conviction or not.

The test to be applied is whether
the materials on record, if unrebutted, is
sufficient to make conviction possible. The
ground word used in the context is a
ground for putting the accused on trial and
not a ground for conviction. If the evidence
produced is not sufficient for the judge to
1146 INDIAN LAW REPORTS ALLAHABAD SERIES
proceed against the accused, it may be a
ground or that the prosecution is barred by
limitation or as no sanction has been
obtained, the accused cannot be proceeded
with or due to a prior judgment of the High
Court, he is precluded from holding the
trial.

14. Whether the material which is
produced by the accused can be looked
into by the session's court?

In the case of Satish Mehra v.
Delhi
Administration
and
Another
reported in (1996) 9 SCC 766, the Hon'ble
Supreme Court held that if the accused
produces any convincing material at the
stage framing of charge which might
drastically affect the very sustainability of
the case, it is unfair to suggest that no such
material should be considered into by the
court at that stage.

It was held that the main motive
of granting a chance to the accused of
making submissions as envisaged in
Section 227 of the CrPC, is to assist the
court to determine whether it is required to
proceed to conduct the trial. It was also
observed that nothing in the Code limits the
ambit of such hearing to oral arguments
only and, therefore, the trial court can
consider the material produced by the
accused at the stage observed under Section
227 of the Code. However, the said
judgement Satish Mehra (supra) decided by
Hon'ble Supreme Court, has been turned
down by Hon'ble Supreme Court in the
case of State of Orissa Vs. Devendra
Nath Padhi and it has been observed by
Apex Court that at the time of framing
charge or taking cognizance the accused
has no right to produce any material. No
provision in the code of criminal procedure
1973 grants to the accused any right to file
any material or document at the stage of
framing of charge.

15. The Judicial power of the Court
at the time of considering the discharge
application:-

The
Magistrate
cannot
be
assumed to be a post office to frame the
charges
at
the
instruction
of
the
prosecution, and application of judicial
mind to the facts of the case is necessary to
determine whether a case has been made
out by the prosecution for trial. In
determining this fact, it is not mandatory to
dive into the pros and cons of the matter by
the court.

At
the
stage
observed
under Section 227, the Judge has to merely
examine the evidence in order to determine
whether or not the grounds are sufficient
for proceeding against the accused. The
nature of the evidence recorded by the
police or the documents produced in which
prima facie reveals that there is a
suspicious situation against the accused so
as to frame a charge against him before the
court would be taken into account in order
to find out the sufficiency of ground.

16. Discharge after Framing of
Charge:-

If there are no sufficient grounds
for proceeding against the accused, the
accused has to be discharged, but if the
Court is of the opinion after such
consideration that there is ground for
presuming that the accused has committed
the offence which is exclusively triable by
the Court of Session then the charge against
the accused must be framed. Once the
charges are framed, the accused is put to
trial and thereafter either acquitted or
6 All. Vikas Asthana Vs. State of U.P. & Anr.
1147
convicted, but he cannot be discharged.
Once charges are framed under Section 228
of the code, there is no back-gear for
discharging the accused under Section 227
of the code. Discharge post framing of
charge is not viewed in CrPC.

17. Discharge is not Acquittal:-

The discharge of an accused
under Section 227 of CrPC, is not
tantamount to the acquittal of an accused.
Under Section 227 of the code, the accused
is released on the ground of nonavailability of the materials collected by the
officeduring the investigation, the Court
does not absolve the accused from all the
charges at that stage. The discharge may be
due to inept inquiry and investigation. The
discharged person can again be charged
subsequently after proper investigation and
collection of relevant materials. The basic
intention of the legislature is to prevent
one's subjection to the judicial process
without any foundation.

18. Review of a Discharge Order:-

Discharge Order does not lead to
acquittal as no trial has taken place. Where
the Magistrate had discharged some of the
accused after recording the evidence let in
by the prosecution, but if the fresh
materials are found against the discharged
accused, he can consider the offence as it is
not the review of the discharge order,
earlier passed by the Magistrate.

19. Discharge of the accused by
Court of Sessions:-

In the case of Sanjay Gandhi vs
Union of India reported in AIR 1978 SC
514, it was held that there is no such
provision that permits the Magistrate to
discharge the accused. Discharge order can
be given only by a trial court and in respect
of the offences exclusively triable by a
court of session, the court of the Judicial
Magistrate is not the trial Court.

20. Discharge of accused in
Warrant Cases instituted on Complaint:-

Section 245 of CrPC: When
accused shall be discharged;

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

2) Nothing in this section can
forbid a Magistrate from discharging the
accused at any precedent stage of the case
if he contemplates the charge to be
groundless and the reasons shall be
recorded by him.

Under
Section
245(1),
the
Magistrate has to consider whether the
evidence produced by the prosecution, if
remains unrebutted, is sufficient to make
conviction of the accused possible. If there
is no convincing material on record against
the accused, then the Magistrate shall
proceed to discharge the accused under
Section 245(1) CrPC.

Section 245(2) CrPC empowers
the Magistrate to discharge the accused at
any precedent stage of the case which
means even before such evidence is led.
However, the Magistrate has to come to the
conclusion that the charge is groundless in
order to discharge an accused under
Section 245(2) CrPC. The Magistrate can
1148 INDIAN LAW REPORTS ALLAHABAD SERIES
take this decision even prior to the
appearance of the accused before the Court
or the evidence which is taken under
Section 244 CrPC. The words ''At any
previous stage of the case' written in
Section 245(2) CrPC. brings clarity to this
position.

21. What is the previous stage?

The previous stage in the context
means that any stage prior to the evidence
of the prosecution, under Section 244(1) of
the code, is completed. Such stages would
lie under Section 200 Cr.P.C. to Section
204 CrPC.

22. Discharge in Summons Case:-

Whether
the
magistrate
is
empowered to drop proceedings and
discharge an accused in a Summons case
which is instituted on a complaint has the
power?

Section 251 of the CrPC states:

The substance of accusation to be
stated- In a summons case, When the accused
appears or is brought before the Magistrate,
he should be made aware of the particulars of
the offence of which he is accused, and the
question shall be asked to him whether he
pleads guilty or has any defence to make, but
it shall not be obligatory to frame a formal
charge. On a bare reading ofSection 251
CrPC, it becomes clear that there is no
particular power to discharge or drop
proceedings granted to the Magistrate in a
Summons Trial.

23. Brief facts of the case:-

The revisionist filed application
before the Court below to discharge him
from the charges in Case No. 0264 of 2017,
under Sections 7, 8, 13 (1) (d) and 13 (2) of
the Prevention of Corruption Act, 1988 and
Sections 410, 420, 120B, 34 I.P.C, PS
Barhpura, District Etawah.

In the application it is stated that
provision of Section 120B I.P.C. and Section
34 I.P.C., both cannot stand simultaneously
and charge sheet is vitiated. It is further stated
in the application that C.O. V. S Veer Kumar
arrested the revisionist first and thereafter, the
first information report was lodged and made
entry in G.D. The proceeding was done on
the information given by unknown informant
who was not made eye witness of the
recovery. It has further been submitted in the
application that accused alongwith other coaccused were doing their public duty,
therefore, the offence under Sections 419 and
420 I.P.C. is not made out. It has further been
submitted in the application that applicant
was posted as Passenger Tax Officer in
Farrukhabad and he was assigned the duties
by the office and in pursuance of the order
passed by the department, he was checking at
the check post village Udi, District Etawah.
As a public officer he was performing his
duties and Rs 9,500/- recovered by the police
but the said amount was belonging to
revisionist. The total recovery of Rs.20,290/-
has been shown against all the 7 accused
persons which is not a case of trap. The
procedure of Section 212 Cr.P.C. has not
been followed and the recovery has been said
to be illegal.

24. The prosecution had opposed the
application for discharge and after hearing
both the parties, the impugned orders dated
26.02.2022 and 06.04.2022 have been
passed by the Court below.

25. Heard Sri Akhilesh Kumar Kalra,
learned counsel for the revisionist and Sri
6 All. Vikas Asthana Vs. State of U.P. & Anr.
1149
Anurag Verma, learned A.G.A. for the
State.

Sri Akhilesh Kumar Kalra has
argued that Sections 7, 13 of the Prevention
of Corruption Act, 1988 and Section 120 B
I.P.C. are not made out. He has also invited
attention towards the paper which is part of
case diary as contained Annexure-8 and
argued that the said paper indicates that the
revisionist was posted as Passenger Tax
Officer at the relevant place and he has not
committed offence. Sri Akhilesh Kumar
Kalra has also invited attention towards
challan which was done by the revisionist
in his official duty as contained in
Annexure-10 and has argued that he was
doing his official duty but has been falsely
implicated in the present case. It has been
argued by counsel for the revisionist that
A.R.T.O. had entrusted duty on 1st Ocober,
2017 by which the revisionist was directed
to check the Udi check post situated at
District Etawah and thus, he was doing his
official duty but police has implicated him
falsely. Sri Akhilesh kumar Kalra, learned
counsel for the revisionist has placed
reliance on the following judgements
reported by Hon'ble Supreme Court:-

(i) Rekha Jain Vs. State of
Karnataka and Another; 2022 SCC online
SC 585 (ii) Sanjay Kumar Rai Vs. State of
Uttar Pradesh and Another; 2021 SCC
Online SC 367 (iii) N. Vijay Kumar Vs.
State of Tamil Nadu; (2021) 3 SCC 687;
(iv) Central Bureau of Investigation,
Hyderabad Vs. K. Narayana Rao; (2012) 9
SCC 512 (v) Archana Rana Vs. State of
Uttar Pradesh and Another; (2021) 3 SCC
751.

26. Sri Anurag Verma, learned
A.G.A. has made submission that order
passed by the court below is justified and
there is sufficient evidence and material
against the revisionist. The court below has
recorded finding after considering the
evidences and material collected by the
police and the discharge application has
rightly been dismissed. He has further
submitted that once there was sufficient
material available before the court below,
there is no option left except to frame
charges and the court under the revisional
jurisdiction has limited jurisdiction to see
the legality and perversity of the order. He
has
further
submitted
that
court
in
revisional
jurisdiction
cannot
exercise
power of the appellate court and evidences
cannot be weight and appreciated, collected
by the police and he has placed reliance of
the
several
following
judgements
pronounced by the Hon'ble Apex Court :-

(i) State of Rajasthan Vs Fatekh
Karan Medhu; (2017) 3 SCC 198 (ii) State
Represented By Deputy Superintendent of
Police, Vigilance And Anti-Corruption,
Tamil Nadu Vs. J. Doraiswamy And Others
(2019) 4 Supreme Court Cases 149 (iii)
Srilekha
Sentil
Kumar
Vs.
Deputy
Superintendent Of Police, Central Bureau
OF Investigation, ACB, Chennai; (2019) 7
SCC
82
(iv)
State
By
Karnataka
Lokayukta, Police Station, Bengaluru Vs.
M. R. Hiremath; (2019) 7 SCC 515 (v) M.
E. Shivalingamurthy Vs. Central Bureau of
Investigation, Bengaluru; (2020) 2 SCC
768

27. Sri Akhilesh Kumar Kalra has
submitted that provision of 7/13 (1) (d)
read with Section 13 (2) of the Prevention
of Corruption Act, 1988, under Section
8/13 (1) (d) read with Section 13 (2) of the
Prevention of Corruption Act, 1988 is not
attracted in the present case. After looking
into the material on record, it is evident that
revisionist was standing at barriers situated
1150 INDIAN LAW REPORTS ALLAHABAD SERIES
at Village Udi, District Etawah and he was
illegally receiving money from the trucks
by using barriers and upon the raid made
by C.O. he was was arrested. Thus, Section
7/13 (1) (d) read with Section 13 (2) of the
Prevention of Corruption Act, 1988, under
Section 8/13 (1) (d) read with Section 13
(2) of the Prevention of Corruption Act,
1988 is made out. Similarly conspiracy was
made by accused/revisionist alongwith coaccused Constable Laxmikant, Constable
Shobhit
Kumar,
Constable
Rajnesh,
Rampratap, Umesh Chandra and Janved
Singh and illegal money was obtained by
stopping the truck, all the accused had
conspired by making plan and illegal
money was received by them. Thus,
Section 420 I.P.C. is made out against all
the accused. Section 120B I.P.C. is also
made
out
for
the
reason
that
accused/revisionist and all the other coaccused
had
made
conspiracy
and
committed offence which is a penal offence
under Section 120B I.P.C. Paragraph
Nos.10 and 11 of the judgement Rekha Jain
(supra) will not be applicable in the present
case. In the case of Rekha Jain (supra) there
was no allegation whatsoever to the effect
that accused Rekha Jain induced the
complainant to part with the gold jewellery.
In the absence of allegation of inducement
Rekha Jain was not liable to be prosecuted
but in the present case, the specific
allegation has been levelled against the
accused
and
co-accused
who
made
conspiracy to receive illegal money by
stopping trucks at the barrier. The said case
Rekha Jain will not be applicable in the
present case.

28. Counsel for the revisionist has
placed the judgement of Sanjay Kumar Rai
(supra)
which
is
regarding
the
maintainbility of the revision. There is no
doubt that under the revisional jurisdiction,
the court is not merely a post office. After
looking the entire evidences, if the court
comes to the conclusion that no charge is
made out, the Court can discharge. Thus,
there is no claimer on the point of
maintainbility. The case Archana Rana
(supra) has been relied by the counsel for
the revisionist. Paragraph Nos. 7 and 8 of
the said judgement has been placed before
me in which it is observed that even if
averments made in the complaint are taken
on their face, they do not constitute the
ingredients necessary for the offence under
Sections 419, 420 I.P.C. In the present case
the material evidences collected by the
Investigating Officer indicates that offence
is made out under Sections 420 and 120-B
I.P.C.

29. Sri Akhilesh Kalra has relied on
the para-22, 23, 24 and 30 of judgement of
Central Bureau of Investigation, Hyderabad
(supra). The ingredients of offence of
criminal conspiracy are that there should be
an agreement between the persons who are
alleged to conspire even if some acts are
proved to have been committed, it must be
clear that they were so committed in
pursuance of an agreement made between
the accused persons who were charges to
the alleged conspiracy. In the present case,
I have seen that all the seven accused
including the revisionist have conspired to
receive illegal money by stopping the truck
and all of them committed offence and
recovery was made to that effect. Since,
there was sufficient material, therefore, the
court framed the charges and there was no
option left to court while considering the
evidences collected by the Investigating
Officer.

30. The next judgement cited by Sri
Akhilesh Kumar Kalra, learned counsel for
the revisionist, N. Vijay Kumar (supra) is
not applicable in the present controversy
6 All. Vikas Asthana Vs. State of U.P. & Anr.
1151
for the reason that accused was convicted
and sentenced was imposed for the offence
committed
under
the
Prevention
of
Corruption Act. Against the judgement,
appeal was preferred before the High Court
which too was dismissed on 15.09.2020. It
is thus clear that said case is arising out of
the judgement of trial court and this is
discharge application which has been
dismissed and the aforesaid judgement
relied by counsel for the revisionist is not
applicable in the present case.

31. Per contra, Sri Anurag Verma,
learned A.G.A. has cited the judgement of
State of Rajasthan (supra). Paragraph nos.
26, 27, 28 and 29 of the said judgement are
quoted below:-

"26. The scope of interference
and exercise of jurisdiction under Section
397 CrPC has been time and again
explained by this Court. Further, the scope
of interference under Section 397 CrPC at
a stage, when charge had been framed, is
also well settled. At the stage of framing of
a charge, the court is concerned not with
the proof of the allegation rather it has to
focus on the material and form an opinion
whether there is strong suspicion that the
accused has committed an offence, which if
put to trial, could prove his guilt. The
framing of charge is not a stage, at which
stage final test of guilt is to be applied.
Thus, to hold that at the stage of framing
the charge, the court should form an
opinion that the accused is certainly guilty
of committing an offence, is to hold
something which is neither permissible nor
is in consonance with the scheme of the
Code of Criminal Procedure.

27. Now, reverting to the limit of
the scope of jurisdiction under Section 397
CrPC, which vests the court with the power
to call for and examine the records of an
inferior court for the purposes of satisfying
itself as to the legality and regularity of any
proceedings or order made in a case. The
object of this provision is to set right a patent
defect or an error of jurisdiction or law or the
perversity which has crept in the proceeding.

28. It is useful to refer to the
judgment of this Court in Amit Kapoor v.
Ramesh Chander [Amit Kapoor v. Ramesh
Chander, (2012) 9 SCC 460 : (2012) 4 SCC
(Civ) 687 : (2013) 1 SCC (Cri) 986] , where
scope of Section 397 CrPC has been
succinctly considered and explained. Paras
12 and 13 are as follows : (SCC p. 475)

"12. Section 397 of the Code vests
the court with the power to call for and
examine the records of an inferior court for
the purposes of satisfying itself as to the
legality and regularity of any proceedings or
order made in a case. The object of this
provision is to set right a patent defect or an
error of jurisdiction or law. There has to be a
well-founded error and it may not be
appropriate for the court to scrutinise the
orders, which upon the face of it bears a
token of careful consideration and appear to
be in accordance with law. If one looks into
the various judgments of this Court, it
emerges that the revisional jurisdiction can
be invoked where the decisions under
challenge are grossly erroneous, there is no
compliance with the provisions of law, the
finding recorded is based on no evidence,
material evidence is ignored or judicial
discretion
is
exercised
arbitrarily
or
perversely. These are not exhaustive classes,
but are merely indicative. Each case would
have to be determined on its own merits.

13. Another well-accepted norm
is that the revisional jurisdiction of the
higher court is a very limited one and
1152 INDIAN LAW REPORTS ALLAHABAD SERIES
cannot be exercised in a routine manner.
One of the inbuilt restrictions is that it
should not be against an interim or
interlocutory order. The Court has to keep
in mind that the exercise of revisional
jurisdiction itself should not lead to
injustice ex facie. Where the Court is
dealing with the question as to whether the
charge has been framed properly and in
accordance with law in a given case, it may
be reluctant to interfere in exercise of its
revisional jurisdiction unless the case
substantially falls within the categories
aforestated. Even framing of charge is a
much advanced stage in the proceedings
under CrPC."

29. The Court in para 27 has
recorded its conclusion and laid down
principles to be considered for exercise
of
jurisdiction
under
Section
397
particularly in the context of quashing of
charge framed under Section 228 CrPC.
Paras 27, 27.1, 27.2, 27.3, 27.9 and 27.13
are extracted as follows : (Amit Kapoor
case [Amit Kapoor v. Ramesh Chander,
(2012) 9 SCC 460 : (2012) 4 SCC (Civ)
687 : (2013) 1 SCC (Cri) 986] , SCC pp.
482-83)

"27. Having discussed the scope
of
jurisdiction
under
these
two
provisions i.e. Section 397 and Section
482 of the Code and the fine line of
jurisdictional distinction, now it will be
appropriate for us to enlist the principles
with reference to which the courts
should
exercise
such
jurisdiction.
However, it is not only difficult but is
inherently impossible to state with
precision such principles. At best and
upon
objective
analysis
of
various
judgments of this Court, we are able to
cull out some of the principles to be
considered
for
proper
exercise
of
jurisdiction, particularly, with regard to
quashing of charge either in exercise of
jurisdiction under Section 397 or Section
482 of the Code or together, as the case
may be:

27.1.Though there are no limits
of the powers of the Court under Section
482 of the Code but the more the power,
the more due care and caution is to be
exercised in invoking these powers. The
power of quashing criminal proceedings,
particularly, the charge framed in terms
of Section 228 of the Code should be
exercised
very
sparingly
and
with
circumspection and that too in the rarest
of rare cases.

27.2.The Court should apply
the test as to whether the uncontroverted
allegations as made from the record of
the case and the documents submitted
therewith prima facie establish the
offence or not. If the allegations are so
patently
absurd
and
inherently
improbable that no prudent person can
ever reach such a conclusion and where
the basic ingredients of a criminal
offence are not satisfied then the Court
may interfere.

27.3.The High Court should not
unduly
interfere.
No
meticulous
examination of the evidence is needed for
considering whether the case would end
in conviction or not at the stage of
framing of charge or quashing of charge.

27.9.Another very significant
caution that the courts have to observe is
that it cannot examine the facts, evidence
and materials on record to determine
whether there is sufficient material on
the basis of which the case would end in
a conviction; the Court is concerned
6 All. Vikas Asthana Vs. State of U.P. & Anr.
1153
primarily with the allegations taken as a
whole whether they will constitute an
offence and, if so, is it an abuse of the
process of court leading to injustice.

27.13.Quashing of a charge is
an exception to the rule of continuous
prosecution. Where the offence is even
broadly satisfied, the Court should be
more inclined to permit continuation of
prosecution rather than its quashing at
that initial stage. The Court is not
expected to marshal the records with a
view
to
decide
admissibility
and
reliability of the documents or records
but is an opinion formed prima facie."

32. erintendent of Police, Vigilance
And Anti-Corruption, Tamil Nadu (supra).
Paragraph nos. 11, 13, 14 and 15 of the
aforesaid judgement are relevant and the
same are quoted below:-

"11. We find that the High Court
acted like an appellate court than as a
revisionary court as if it was hearing the
appeal against the final verdict of the
Special Court.

13. In our view, such approach of
the
High
Court while
deciding
the
discharge applications of the respondents
(accused) is not legally correct and,
therefore, it cannot be upheld.

14. In our view, consideration of
the record for discharge purpose is one
thing and the consideration of the record
while deciding the appeal by the appellate
court is another thing.

15. While considering the case of
discharge sought immediately 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 the
witnesses as was done by the High Court in
the
impugned
order
[State
v.
J.
Doraiswamy, 2016 SCC OnLine Mad
17955] running in 19 pages. It is not
legally permissible."

33. Sri Anurag Verma has also shown
the judgement of Srilekha Sentil Kumar
(supra). Paragraph no. 9 of the said
judgement is quoted below:-

"9.In other words, we are of the
view that the issues urged by the appellant
and the same having been refuted by the
respondent are such that they can be
decided more appropriately and properly
during trial after evidence is adduced by
the parties rather than at the time of
deciding the application made under
Section 239 CrPC."

34. Sri Anurag Verma has further
relied the judgement of State By Karnataka
Lokayukta,
Police
Station,
Bengaluru
(supra). Paragraph no. 25 of the said
judgement is quoted below:-

"25. The High Court ought to
have been cognizant of the fact that the
trial court was dealing with an application
for discharge under the provisions of
Section 239 CrPC. The parameters which
govern the exercise of this jurisdiction have
found expression in several decisions of
this Court. It is a settled principle of law
that at the stage of considering an
application for discharge the court must
proceed on the assumption that the
material which has been brought on the
record by the prosecution is true and
evaluate the material in order to determine
whether the facts emerging from the
material, taken on its face value, disclose
the existence of the ingredients necessary
1154 INDIAN LAW REPORTS ALLAHABAD SERIES
to constitute the offence. In State of T.N. v.
N. Suresh Rajan [State of T.N.v.N. Suresh
Rajan, (2014) 11 SCC 709 : (2014) 3 SCC
(Cri) 529 : (2014) 2 SCC (L&S) 721] ,
adverting to the earlier decisions on the
subject, this Court held : (SCC pp. 721-22,
para 29)

"29. ... At this stage, probative
value of the materials has to be gone into
and the court is not expected to go deep
into the matter and hold that the materials
would not warrant a conviction. In our
opinion, what needs to be considered is
whether there is a ground for presuming
that the offence has been committed and
not whether a ground for convicting the
accused has been made out. To put it
differently, if the court thinks that the
accused might have committed the offence
on the basis of the materials on record on
its probative value, it can frame the
charge; though for conviction, the court
has to come to the conclusion that the
accused has committed the offence. The law
does not permit a mini trial at this stage."

35. Pragraph Nos. 17.7, 17.8, 18, 28
and 29 of the judgement of M. E.
Shivalingamurthy (supra) has been relied
by Sri Anurag Verma, learned A.G.A.
and the aforesaid paragraphs are quoted
below:-

"17.7.At the time of framing of
the charges, the probative value of the
material on record cannot be gone into,
and the material brought on record by the
prosecution, has to be accepted as true.

17.8.There
must
exist
some
materials for entertaining the strong
suspicion which can form the basis for
drawing up a charge and refusing to
discharge the accused.

18. The defence of the accused is
not to be looked into at the stage when the
accused seeks to be discharged under
Section 227 CrPC (see State of J&K v.
Sudershan Chakkar [State of J&K v.
Sudershan Chakkar, (1995) 4 SCC 181 :
1995 SCC (Cri) 664 : AIR 1995 SC 1954]
). The expression, "the record of the case",
used in Section 227 CrPC, is to be
understood as the documents and the
articles,
if
any,
produced
by
the
prosecution. The Code does not give any
right to the accused to produce any
document at the stage of framing of the
charge. At the stage of framing of the
charge, the submission of the accused is to
be confined to the material produced by the
police (see State of Orissa v. Debendra
Nath Padhi [State of Orissa v. Debendra
Nath Padhi, (2005) 1 SCC 568 : 2005 SCC
(Cri) 415 : AIR 2005 SC 359] ).

28. It is here that again it
becomes
necessary
that
we
remind
ourselves of the contours of the jurisdiction
under Section 227 CrPC.