High Court · 2025

2. Heard learned counsel for the revisionist as well as the learned A.G.A. for the State and perused the entire record. As per office report, notice sent to the opposite party no.2 returned back with the report that the said opposite party has expired.

3. Admit.

4. It is submitted by the learned counsel for the revisionist that revisionist is innocent and has been falsely implicated in this case. The police has also submitted charge sheet on the basis of insufficient evidence against the revisionist. Essential ingredients to constitute the alleged offences are lacking. The present prosecution has been instituted with a malafide intention. Learned counsel for the revisionist impressed upon certain documents and statements in support of his contention. It is further submitted that offence under Section 308 IPC is not made out but the trial court has completely ignored the essential ingredients to establish the offence under Section 308 IPC. It is also submitted that no specific role has been assigned to the present revisionist and he has referred to injury reports particularly the x-ray report of the injured persons. It is further submitted that regarding the disputed land a civil litigation is pending between the parties and only on the basis of litigation animosity the revisionist has been falsely implicated in this case. It is also submitted that the discharge application moved on behalf of the revisionist was rejected in an arbitrary manner by the trial court and it has committed grave legal error in rejecting the said application. The impugned order suffers from infirmity, illegality and lack of judicial mind warranting interference by this Court.

5. Per contra, the learned AGA opposed the prayer and submitted that at the stage of considering the discharge application, the Magistrate / Court dealing with the matter is required to apply judicial mind only with a view to find-out as to whether prima- facie case has been made out against the accused or not. It is also submitted that in this matter the Court concerned after applying its judicial mind has passed the impugned order on the basis of satisfactory evidence on record. Sufficient and ample evidence has been collected against the revisionist during investigation and on the basis of the said evidence charge sheet has been submitted against him. It is also submitted that this is a very initial stage of the trial and witnesses are still to be examined. There is nothing on record on the basis of which the revisionist may be discharged. There is no infirmity or illegality in the impugned order warranting interference by this Court. Hence, the revision having no force is liable to be dismissed.

6. I have considered the rival submissions made by the learned counsel for the parties and have gone through the entire record including the impugned order.

7. The parameters for grant of relief of discharge are well settled by a catena of judicial precedents. The Hon'ble Supreme Court in the case of P. Vijayan vs. State of Kerala, (2010) 2 SCC 398 held that the Judge is not a mere post office to frame charge but the Judge should exercise his judicial mind and discretion to determine whether a case for trial has been made out by the prosecution. It was further clarified that the Judge should be satisfied that the evidence produced by the prosecution before the Court discloses suspicion that the accused has committed the crime.

8. In the case of Dilawar Balu Kurane vs. The State of Maharashtra, (2002) 2 SCC 135, the Hon'ble Apex Court observed that in exercising powers under Section 227 of the Criminal Procedure Code, 1973, the settled position of law is that the Judge while considering the question of framing the charge under the said section 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 and whether the materials placed before the Court discloses grave suspicion against the accused which has not been properly explained to the Court, then in such a case the Court will be fully justified in framing the charge and proceed with the trial. On the other hand, if the Judge is satisfied that the evidence produced before the Court gives rise to some suspicion but not grave suspicion then the Judge will be fully justified in discharging the accused.

9. So far as the case in hand is concerned, the prosecution claims that the accused revisionist made assault upon the informant, his son and wife with the aid of kicking, fisting and lathi danda alongwith other accused person on 23.4.2006. Though the revisionist was named in the F.I.R. and the witnesses of this case including the informant have affirmed this fact when they were interrogated by the I.O. under Section 161 CrPC but medical evidence does not corroborate the prosecution case. From the perusal of the material available on record it reveals that the injured persons were medically examined but all injuries, except one of each injured, are found to be simple in nature and as per the x-ray report no adversity has been discovered to any of the injured persons, which means that the said injuries were also simple in nature. Hence, it appears that the trial court while dealing with the discharge application of the revisionist has not applied its judicial mind and mis-read the evidence available on record. From a perusal of the material available on record and keeping in view the facts of the case, at this stage it cannot be said that the revisionist was having any intention or knowledge to do away with the injured by his act of assault and by this reason offence under Section 308 IPC levelled against the revisionist is not made out. Hence, I am of the opinion that the evidence on record falls short of establishing the requisite ingredients of Section 308 IPC and the Court concerned erred in rejecting the discharge application in toto.

10. However, there is some force in the submissions made by the learned AGA so far as the offences under Sections 323 and 324 IPC are concerned. Certainly on the basis of material and oral and medical evidence on record offence under Sections 323 and 324 IPC is clearly made out against the revisionist. The impugned order dated 20.9.2024 suffers from infirmity and lack of judicial mind in connection with the offence under Section 308 IPC and the same is liable to be set-aside upto that extent and so far as it relates to the offence under Sections 323 and 324 IPC, it is liable to be affirmed and the criminal revision is liable to be partly allowed.

11. With the aforesaid observations, the criminal revision is partly allowed accordingly. Order Date :- 12.8.2025 MAHBOOB SAFI MAHBOOB SAFI High Court of Judicature at Allahabad High Court of Judicature at Allahabad

2. Heard learned counsel for the revisionist as well as the learned A.G.A. for the State and perused the entire record. As per office report, notice sent to the opposite party no.2 returned back with the report that the said opposite party has expired.

3. Admit.

4. It is submitted by the learned counsel for the revisionist that revisionist is innocent and has been falsely implicated in this case. The police has also submitted charge sheet on the basis of insufficient evidence against the revisionist. Essential ingredients to constitute the alleged offences are lacking. The present prosecution has been instituted with a malafide intention. Learned counsel for the revisionist impressed upon certain documents and statements in support of his contention. It is further submitted that offence under Section 308 IPC is not made out but the trial court has completely ignored the essential ingredients to establish the offence under Section 308 IPC. It is also submitted that no specific role has been assigned to the present revisionist and he has referred to injury reports particularly the x-ray report of the injured persons. It is further submitted that regarding the disputed land a civil litigation is pending between the parties and only on the basis of litigation animosity the revisionist has been falsely implicated in this case. It is also submitted that the discharge application moved on behalf of the revisionist was rejected in an arbitrary manner by the trial court and it has committed grave legal error in rejecting the said application. The impugned order suffers from infirmity, illegality and lack of judicial mind warranting interference by this Court.

5. Per contra, the learned AGA opposed the prayer and submitted that at the stage of considering the discharge application, the Magistrate / Court dealing with the matter is required to apply judicial mind only with a view to find-out as to whether prima- facie case has been made out against the accused or not. It is also submitted that in this matter the Court concerned after applying its judicial mind has passed the impugned order on the basis of satisfactory evidence on record. Sufficient and ample evidence has been collected against the revisionist during investigation and on the basis of the said evidence charge sheet has been submitted against him. It is also submitted that this is a very initial stage of the trial and witnesses are still to be examined. There is nothing on record on the basis of which the revisionist may be discharged. There is no infirmity or illegality in the impugned order warranting interference by this Court. Hence, the revision having no force is liable to be dismissed.

6. I have considered the rival submissions made by the learned counsel for the parties and have gone through the entire record including the impugned order.

7. The parameters for grant of relief of discharge are well settled by a catena of judicial precedents. The Hon'ble Supreme Court in the case of P. Vijayan vs. State of Kerala, (2010) 2 SCC 398 held that the Judge is not a mere post office to frame charge but the Judge should exercise his judicial mind and discretion to determine whether a case for trial has been made out by the prosecution. It was further clarified that the Judge should be satisfied that the evidence produced by the prosecution before the Court discloses suspicion that the accused has committed the crime.

8. In the case of Dilawar Balu Kurane vs. The State of Maharashtra, (2002) 2 SCC 135, the Hon'ble Apex Court observed that in exercising powers under Section 227 of the Criminal Procedure Code, 1973, the settled position of law is that the Judge while considering the question of framing the charge under the said section 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 and whether the materials placed before the Court discloses grave suspicion against the accused which has not been properly explained to the Court, then in such a case the Court will be fully justified in framing the charge and proceed with the trial. On the other hand, if the Judge is satisfied that the evidence produced before the Court gives rise to some suspicion but not grave suspicion then the Judge will be fully justified in discharging the accused.

9. So far as the case in hand is concerned, the prosecution claims that the accused revisionist made assault upon the informant, his son and wife with the aid of kicking, fisting and lathi danda alongwith other accused person on 23.4.2006. Though the revisionist was named in the F.I.R. and the witnesses of this case including the informant have affirmed this fact when they were interrogated by the I.O. under Section 161 CrPC but medical evidence does not corroborate the prosecution case. From the perusal of the material available on record it reveals that the injured persons were medically examined but all injuries, except one of each injured, are found to be simple in nature and as per the x-ray report no adversity has been discovered to any of the injured persons, which means that the said injuries were also simple in nature. Hence, it appears that the trial court while dealing with the discharge application of the revisionist has not applied its judicial mind and mis-read the evidence available on record. From a perusal of the material available on record and keeping in view the facts of the case, at this stage it cannot be said that the revisionist was having any intention or knowledge to do away with the injured by his act of assault and by this reason offence under Section 308 IPC levelled against the revisionist is not made out. Hence, I am of the opinion that the evidence on record falls short of establishing the requisite ingredients of Section 308 IPC and the Court concerned erred in rejecting the discharge application in toto.

10. However, there is some force in the submissions made by the learned AGA so far as the offences under Sections 323 and 324 IPC are concerned. Certainly on the basis of material and oral and medical evidence on record offence under Sections 323 and 324 IPC is clearly made out against the revisionist. The impugned order dated 20.9.2024 suffers from infirmity and lack of judicial mind in connection with the offence under Section 308 IPC and the same is liable to be set-aside upto that extent and so far as it relates to the offence under Sections 323 and 324 IPC, it is liable to be affirmed and the criminal revision is liable to be partly allowed.

11. With the aforesaid observations, the criminal revision is partly allowed accordingly. Order Date :- 12.8.2025 MAHBOOB SAFI MAHBOOB SAFI High Court of Judicature at Allahabad High Court of Judicature at Allahabad