Mohammad Morsalin @ Mursalin And Another State of U.P. Thru. Addl. Chief Secy. Home v. … on 04 Sep 2025 — Misc. Case No. 3082 of 2023

Judgment

1. Heard Shri Prabhat Kumar Mishra, learned counsel for the revisionists, Shri Badrul Hasan, learned A.G.A. for the State and perused the material brought on record.

2. By means of the present revision, the revisionists- Mohd. Morsalin @ Mursalin and Mohd. Mustkim have impeached the order dated 05.07.2025, passed by Additional Chief Judicial Magistrate, Kunda, Pratapgarh in Crl, Misc. Case No.3082 of 2023 (CNR No.UPPG160042842023) (State Vs. Mohd. Mustkim and another), arising out of Case Crime No.416 of 2022, under Section 286 I.P.C. & Section 9(B) of Explosives Act, 2 Crl. Revision No.984 of 2025 1884 (in short ‘Act 1884’), Police Station- Kunda, District- Pratapgarh.

3. Vide order dated 05.07.2025, under challenge, the trial court has rejected the prayer seeking discharge sought by the revisionists in the application dated 12.04.2024.

4. The operative portion of the order dated 05.07.2025 reads as under :- ्ቚस्तुत ्ቚकरण में, यह किवचारणीय किबन्2ु है, अभि(cid:14)योजन प्ቌ का यह आरोप है किक ्ቚाቕኍ(cid:27)गण / "(१०.) अभि(cid:14)यु्ሹगण आपस में किमली(cid:14)गत करते हुए ्ቚ्቞गत लाइसेंस के मानकों का उ्ቤंघन करते हुए मो० मुस्तकीम के मकान में अवैधाकिनक रूप से औतितशबाजी आकि2 वस्तुओं का किनमा4ण, (cid:14)ण्डारण एवं किव्ቅय किकया जा रहा ቕኍा। इस स्तर पर किबना उ(cid:14)यप्ቌ के साቌኚय लिलए गुण2ोष के आधार पर अंतितम रूप से यह न्यायालय इस किनष्कष4 पर नहीं पहु ंच सकता किक ्ቚ्቞गत लाइसेस के मानकों का किकसी (cid:14)ी ्ቚकार से उ्ቤंघन किकया गया है अቕኍवा नहीं। ्ቚ्቞गत लाइसेंस के मानकों का उ्ቤंघन हुआ है अቕኍवा नहीं हुआ है, ँकिक अभि(cid:14)योजन का यह आरोप है किक मकान में अत्यतिधक आतितशबाजी आकि2 वस्तुओं का किनमा4ण व (cid:14)ण्डारण कर ्ቚाቕኍ(cid:27)गण / अभि(cid:14)यु्ሹगण ्ቛारा ्ቚ्቞गत लाइसेंस के मानकों का तो इस ्ቚकार ्ቚቕኍम दृ्ቖया यह स्प्ቖ होता है किक ्ቚाቕኍ(cid:27)गण / उ्ቤंघन किकया गया है, अभि(cid:14)यु्ሹगण ्ቛारा उ्ሹ उ्ቤंघन करते हुए ऐसा कृ त्य किकया गया है, जिजससे किक मानव जीवन अቕኍवा सुर्ቌा खतरे में पड़ जाए। इस ्ቚकार, ्ቚቕኍम दृ्ቖया ्ቚस्तुत अभि(cid:14)योजन २८६ (cid:14)ारतीय 2ण्ड संकिहता एवं धारा-९बी कቕኍानक एवं साम्ቇी के आधार पर धारा- किवस्फोटक अतिधकिनयम, के आवश्यक तत्वों की पूቔኌत होती है। जो साቌኚय के स्तर पर ही 2ेखा जा सकता है। चू लाइसेंस मानकों का उ्ቤंघन) १८८४ ( के आ2ेश कि2नांकिकत ११.०३. अतः उपरो्ሹ किव्ቨेषण एवं माननीय उ्ሴ न्यायायल इलाहाबा2 (लखनऊ २०२५ का समय से अनुपालन सुकिनति\त न करने अभि(cid:14)यु्ሹगण का उ्ሹ उन्मोचन ्ቚाቕኍ4ना प्ቔ किनरस्त किकये जाने (११.) पीठ) के आधार पर ्ቚाቕኍ(cid:27)गण/ योग्य है। आ2ेश ्ቚाቕኍ(cid:27)गण / हस्तगत ्ቚाቕኍ4ना प्ቔ कि2नांकिकत १२.०४. किकया जाता है। प्ቔावली कि2नांक १५.०९. पेश हो। ्ቚाቕኍ(cid:27)गण / तक ्ቚस्तुत प्ቔावली में सशरीर उपቝኌस्ቕኍत होना सुकिनति\त करेंगे, किवरू्ቍ उत्पीड़नात्मक काय4वाही अमल में लायी जायेगी।" अभि(cid:14)यु्ሹगण मो० मुस्तकीम एवं मो० मोरसलीन की ओर से ्ቚस्तुत २०२४ बाबत आरोप मु्ሹ किकये जाने किनरस्त २०२५ को वास्ते हाजिजरी अभि(cid:14)यु्ሹगण अभि(cid:14)यु्ሹगण को यह किन2_शत किकया जाता है किक वह किनयत तितभिቕኍ अन्यቕኍा उनके

5. According to the case of prosecution, in nutshell, as

indicated in the FIR No.0416 dated 22.09.2022 lodged at P.S.- Kunda, District- Pratapgarh, under Sections 286 I.P.C. & Section 98 of Act 1884, the firecrackers (explosive) were found/recovered by the police party from the front portion of 3 Crl. Revision No.984 of 2025 the house of the accused- Mohd. Mustkim s/o Aas Mohammad situated at Shekhpur Ashiq, Tehsil- Kunda, P.S.- Kunda, District- Pratapgarh and the licence in this regard was given by the District Magistrate, Pratapgarh to accused Mohd. Morsalin @ Mursalin and this is also evident from the statement(s) on record of Investigating Officer-Sanjay Kumar Singh, Sub-Inspector-Vijay Kumar, Sub-Inspector- Shivmurat, Constable- Satyadev Muarya, Constable- Santosh Yadav, Constble- Ramakant Gaud, Constable– Rajat Kumar and Constable- Bandana Yadav and also from cite plan, annexed at page no.44 of the paper book.

6. The document annexed as Annexure No.8 to the revision, which is FORM- 1 (Article 3 of schedule IV) which refers to licence provided in exercise of power under Act 1884, indicates that explosive should not be kept in a dwelling house. The relevant portion of the same is extracted hereinunder. "2. all explosive on the premises shall be kept in one or other been of the followings mises viz. mode A. that is to say:- (A) in a buildings substantially constructed of brick stone or concrete on in a securely constructed fire proof safe; (B) IN an excavation formed in solid rock or earth or mine refuse not liable to ignition, not opening into from or out of any such mine quarry, tunnel or underground place, as in use of or the carrying on of any work or for the employment of any person. Separated from dwellings house, highway, street public thought fare buildings or public or another licensed premises by the distance in the case of gun powder of gun powder and fireworks of 300ft. or in the case of fireworks only of 150ft and so made and closed as to prevent unauthorized person from having access there to 4 Crl. Revision No.984 of 2025 and to secure it from anger from without mode B that is to say:- In a substantial receptacle (whether or not a fire proof safe). closed and secured as above and placed inside a dwellings house or inside any such buildings such as in not itself qualified for the keepings of explosive in mode A.

3. There shall not be kept on the premises any explosive other than gunpowder a safety furse for blassings or fireworks.

4. There shall not be kept on the premises any explosive other than gun powder safety furse a' for blassings or fireworks.

5. there or of every buildings and receptacle used for keepings explosive and shalves and fittings there in shall be so constructeed or so lined and covered as to prevent the explosure of any iron or steel or the detechings of any iron steel or similar substance in such manner as to come into contract with explosive such interior shalves and fittings shall so for as is reasonable practicable be kept free from grit and otherwise clean.

6. The buildings or receptable in which explosive is kept shall be used only for the keepings of such explosive and for no other purpose whatsoever.

7. Gunpowder and safety fuse or fireworks and safety fuse may be kept together in on buildings or receptacle but gunpowder and fireworks shall be kept in separate receptable or shall be so separated as to prevent explosive or fire communicating from one to the other.

8. All explosive exceeding 1lbs in amount shall be kept in a substantial bag consider or case made and closed so as to prevent any explosive from expecting and shall be otherwise packed and marked in accordance with rules 8 and 9 of the explosive rules 1940. 9(1). the explosive shall be manufactured in a tant or lightly constructed one stroried buildings kept and only for the purpose of such manufactured and seprated from the storage place by distance of 150 feet and separated from any dwellings house other buildings another licenced premises highway street public through fare or public place by a distance in the case of fireworks. (2) The place of manufacture, the storage place and the stored for keepings ingredients, shall be all situated in one compact area (Note a compact area means that the distance separating the different structures in such as area shall not be more than 200 yards. 5 Crl. Revision No.984 of 2025

10. The ingredient for the manufacture of gun powder shall be kept in separate storage district from each other and separated by a distance of at least 150 ft from the place where gun powder in manufactured or stored, provided that when a licence is granted for storage expulsively in mode B. THE licensing authority may at his discretation permit storage of the ingredient the manufacture of gun powder in seprate substantial receptacles as prescribed in mode B. in condition 2 for the storage of explosive.

11. Not more than four person shall be allowed at any one time in any one buildings or tent in which the explosive is being manufactured and only person actually employed in manufacturing or superintending manufactured shall be allowed inside the place of manufacture.

12. No iron or steel implement shall be used in manufacture only copper gun metal or wooden tools are permissible.

13. All explosive as manufactured shall or removed without delay to the licenced place of storage and no explosive shall be allowed to accumulate in the place of manufacture.

14. Manufacture shall only carried on between sunrise and sunset and no smoking or light shall be allowed in or near the place whether explosive are being manufacture.

15. No oils, paints, matches, light any articles or highly inflammable or explosive pature or liable to cause fire or explosive or any accident or similar substance shall brought or kept on the licenced premises.

16. No tools implements, balance, weight etc. made of iron or steel shall be kept at any time on the licenced premises and no person on the licenced premises shall have any iron or steel in his possession, or attached to or on his boots or shoes.

17. The licence shall keep records and accounts of all explosive manufacture of all stock in hand of all sales in such, from as the district authorities may from time direct and shall exhibit his stock and his books and records as any of the officers authorities under the rule 106 of the explosive rules 1940], whenever such officer may call upon his so to do. Provided that where the license extends only to the manufacture, possession and sale of manufactured fireworks and the quantity permitted to be kept a tonce time does not exceed fifty pounds the licence shall not be required to keep or exhibit records of account of the same. 6 Crl. Revision No.984 of 2025

18. All sales of explosive under this licence must be effected the premises describe on the face of the licence and an explosive shall not be sold to any person under the age of 16 years.

19. The licence may be filling cattriages making charges or dry in shifting fillings or otherwise accept or prepare for use any explosive he is authorised to purchase under this licence provided that :- (a) There shall not be in the work shop in which such adoptation or preparation is carried on more than one hundred pounds of gun powder or such quantity of other explosive is prescribed by the licensing authorised to possess. (b). The total quantity of explosive on the licensing premises including the work shop shall not exceed the quantity the licence is athorised to possess. (c). No work unconnected with such adoptation or preparation shall be carried on. (d). The said work shop shall be teached from the magazine or licensed premised out shall be situated in the immediate neighbour hood there a at such distanced there from as may be specified shall not be unmade or resolved into in its ingredients and granting same.. (e). An explosive of one deseription shall not be covered into in explosive of any other description shall not be unmade or resolved into its ingredients and. (f) the licensee shall give notice to the authority which granted his licenced that no intends to carry on such adoption or preparation as is allowed by this conditions.

20. There shall not be carried on the factory the manufacture of any nitroglycerine or explosive of the 3rd. (nitro compound) clase or any explosive on 5th (fulminate) class.”

7. It is not in dispute that licence in terms of the Act of 1884 was given to accused- Mohammad Mursaleen, indicated as Mohd. Morsalin @ Mursalin in the application.

8. The fact as to whether the recovery of the firecrackers (explosive) was from the front of the house situated in 7 Crl. Revision No.984 of 2025 residential area can be adjudicated by the trial court after adducing the evidence by the parties.

9. It is trite that the words appearing in the Section postulate exercise of judicial mind on the part of the Judge to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. However, in assessing this fact, the Judge has the power to sift and weigh the material for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. The test to determine a prima facie case depends upon the facts of each case and in this regard it is neither feasible nor desirable to lay down a rule of universal application. By and large, however, if two views are equally possible and the Judge is satisfied that the evidence produced before him gives rise to suspicion only as distinguished from grave suspicion, he will be fully within his right to discharge the accused. At this stage, he is not to see as to whether the trial will end in conviction or not. The broad test to be applied is whether the materials on record, if unrebutted, makes a conviction reasonably possible. [See: State of Bihar Vs. Ramesh Singh (1977) 4 SCC 39 and Union of India Vs. Prafulla Kumar Samal and Another (1979) 3 SCC 4 (supra)]"

10. The Hon'ble Apex in the case of Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460 has observed as under:-

17. Framing of a charge is an exercise of jurisdiction by the trial court in terms of Section 228 of the Code, unless the accused is discharged under Section 227 of the Code. Under both these provisions, the court is required to consider the “record of the case” and documents submitted therewith and, after hearing the parties, may 8 Crl. Revision No.984 of 2025 either discharge the accused or where it appears to the court and in its opinion there is ground for presuming that the accused has committed an offence, it shall frame the charge. Once the facts and ingredients of the section exists, then the court would be right in presuming that there is ground to proceed against the accused and frame the charge accordingly. This presumption is not a presumption of law as such. The satisfaction of the court in relation to the existence of constituents of an offence and the facts leading to that offence is a sine qua non for exercise of such jurisdiction. It may even be weaker than a prima facie case. There is a fine distinction between the language of Sections 227 and 228 of the Code. Section 227 is the expression of a definite opinion and judgment of the Court while Section 228 is tentative. Thus, to say that at the stage of framing of charge, the Court should form an opinion that the accused is certainly guilty of committing an offence, is an approach which is impermissible in terms of Section 228 of the Code.

18. It may also be noticed that the revisional jurisdiction exercised by the High Court is in a way final and no inter court remedy is available in such cases. Of course, it may be subject to jurisdiction of this Court under Article 136 of the Constitution of India. Normally, a revisional jurisdiction should be exercised on a question of law. However, when factual appreciation is involved, then it must find place in the class of cases resulting in a perverse finding. Basically, the power is required to be exercised so that justice is done and there is no abuse of power by the court. Merely an apprehension or suspicion of the same would not be a sufficient ground for interference in such cases.

19. At the initial stage of framing of a charge, the court is concerned not with proof but with a strong suspicion that the accused has committed an offence, which, if put to trial, could prove him guilty. All that the court has to see is that the material on record and the facts would be compatible with the innocence of the accused or not. The final test of guilt is not to be applied at that stage. We may refer to the well-settled law laid down by this Court in State of Bihar v. Ramesh Singh [(1977) 4 SCC 39 : 1977 SCC (Cri) 533] : (SCC pp. 41-42, para 4) “4. Under Section 226 of the Code while opening the case for the prosecution the Prosecutor has got to describe the charge against the accused and state by what evidence he proposes to prove the guilt of the accused. Thereafter comes at the initial stage the duty of the court to consider the record of the case and the 9 Crl. Revision No.984 of 2025 documents submitted therewith and to hear the submissions of the accused and the prosecution in that behalf. The Judge has to pass thereafter an order either under Section 227 or Section 228 of the Code. If ‘the Judge considers that there is no sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing’, as enjoined by Section 227. If, on the other hand, ‘the Judge is of opinion that there is ground for presuming that the accused has committed an offence which (b) is exclusively triable by the court, he shall frame in writing a charge against the accused’, as provided in Section 228. Reading the two provisions together in juxtaposition, as they have got to be, it would be clear that at the beginning and the initial stage of the trial the truth, veracity and effect of the evidence which the Prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defence of the accused. It is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under Section 227 or Section 228 of the Code. At that stage the court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a strong suspicion which leads the court to think that there is ground for presuming that the accused has committed an offence then it is not open to the court to say that there is no sufficient ground for proceeding against the accused. The presumption of the guilt of the accused which is to be drawn at the initial stage is not in the sense of the law governing the trial of criminal cases in France where the accused is presumed to be guilty unless the contrary is proved. But it is only for the purpose of deciding prima facie whether the court should proceed with the trial or not. If the evidence which the Prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial. An exhaustive list of the 10 Crl. Revision No.984 of 2025 circumstances to indicate as to what will lead to one conclusion or the other is neither possible nor advisable. We may just illustrate the difference of the law by one more example. If the scales of pan as to the guilt or innocence of the accused are something like even at the conclusion of the trial, then, on the theory of benefit of doubt the case is to end in his acquittal. But if, on the other hand, it is so at the initial stage of making an order under Section 227 or Section 228, then in such a situation ordinarily and generally the order which will have to be made will be one under Section 228 and not under Section 227.”

11. Subsequently, the ambit and scope of Section 227 Cr.P.C. as well as parameters regarding exercise of jurisdiction under Section 227 Cr.P.C. came to be considered by a three Judges Bench of Supreme Court in Tarun Jit Tejpal Vs. State of Goa and Another, 2019 SCC OnLine SC 1053, wherein Court concluded as under in paragraphs 8 and 9:-

8. Now, so far as the prayer of the appellant to discharge him and the submissions made by Shri Vikas Singh, learned Senior Advocate on merits are concerned, the law on the scope at the stage of Sections 227/228 CrPC is required to be considered.

8.1. In 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] this Court had an occasion to consider in detail the scope of the proceedings at the stage of framing of the charge under Sections 227/228 CrPC. After considering earlier decisions of this Court on the point, thereafter in paras 29 to 31 this Court has observed and held as under : (SCC pp. 721-23) “29. We have bestowed our consideration to the rival submissions and the submissions made by Mr Ranjit Kumar commend us. True it is that at the time of consideration of the applications for discharge, the court cannot act as a mouthpiece of the prosecution or act as a post office and may sift evidence in order to find out whether or not the allegations made are groundless so as to pass an order of discharge. It is trite that at the stage of consideration of an application for discharge, the court has to proceed with an assumption that the materials brought on record by the prosecution are true and evaluate the said materials and documents with a view to find out whether the facts emerging therefrom taken at 11 Crl. Revision No.984 of 2025 their face value disclose the existence of all the ingredients constituting the alleged offence. 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.

30. Reference in this connection can be made to a recent decision of this Court in Sheoraj Singh Ahlawat v. State of U.P. [Sheoraj Singh Ahlawat v. State of U.P., (2013) 11 SCC 476 : (2012) 4 SCC (Cri) 21] , in which, after analysing various decisions on the point, this Court endorsed the following view taken in Onkar Nath Mishra v. State (NCT of Delhi) [Onkar Nath Mishra v. State (NCT of Delhi), (2008) 2 SCC 561 : (2008) 1 SCC (Cri) 507] : (Sheoraj Singh Ahlawat case [Sheoraj Singh Ahlawat v. State of U.P., (2013) 11 SCC 476 : (2012) 4 SCC (Cri) 21] , SCC p. 482, para 15) ‘15. … “11. It is trite that at the stage of framing of charge the court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom, taken at their face value, disclosed the existence of all the ingredients constituting the alleged offence. At that stage, the court is not expected to go deep into the probative value of the material on record. What needs to be considered is whether there is a ground for presuming that the offence has been committed and not a ground for convicting the accused has been made out. At that stage, even strong suspicion founded on material which leads the court to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged would justify the framing of charge against the accused in respect of the commission of that offence.” (Onkar Nath case [Onkar Nath Mishra v. State (NCT of Delhi), (2008) 2 SCC 561 : (2008) 1 SCC (Cri) 507] , SCC p. 565, para 11).’