Bhagwan Devi and Anr. Vs State of U.P. and Anr.

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Neutral Citation No. - 2025:AHC-LKO:50332

Reserved

A.F.R.

Court No. - 10

Case :- MATTERS UNDER ARTICLE 227 No. - 8432 of 2021 Petitioner :- Bhagwan Devi And Anr. Respondent :- State Of U.P. And Anr. Counsel for Petitioner :- Sushil Kumar Singh,Vijai Kumar Tripathi Counsel for Respondent :- C.S.C.,Abhishek Pandey,Nuzhat Ali Siddiqui,Shrawan Kumar

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Hon'ble Rajnish Kumar,J.

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1. Heard, Sri Sushil Kumar Singh, learned counsel for the petitioners, Sri Shrawan Kumar, learned counsel for the respondent no.2 and learned A.G.A. for the State.

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2. The instant petition under Article 227 of the Constitution of India has been filed for setting aside the judgment and order dated 08.03.2021 passed by learned Sessions Judge, Ambedkar Nagar in Criminal Revision No.45 of 2020 (Bhagwan Devi and Another Vs. State of U.P. and Another) and the order dated 19.02.2020 passed by learned Chief Judicial Magistrate, Ambedkar Nagar in Criminal Case No.4610 of 2019 (State Vs. Bhagwan Devi and Another) arising out of Case Crime No.258/2016, under Sections 419, 420, 467, 468 and 471 I.P.C., Police Station Kotwali Tanda, District Ambedkar Nagar, by means of which, application under Section 239 of the Code of Criminal Procedure, 1973 (here-in-after referred as CrPC) filed by the petitioners has been dismissed.

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3. Learned counsel for the petitioners submitted that a civil dispute between the petitioners and the respondent No.2 has been converted into criminal. The respondent No.2 had already filed a suit for cancellation of will executed in favour of the petitioner No.1 by the husband of the petitioner No.1 and the respondent No.2, which is pending before a civil court, thus, during pendency of the civil suit, criminal proceedings could not have been initiated.

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4. He further submitted that on the basis of registered will executed in favour of the petitioner No.1, the name of the petitioner No.1 has been mutated in the revenue records. He further submitted that while filing

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application for lodging of F.I.R. and also in the F.I.R., there is material concealment as the fact of filing of the civil suit and the mutation in favour of the petitioner No.1 have not been disclosed, otherwise the version of the respondent No.2 is identical in both i.e. in the civil suit as well as the F.I.R.

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5. He further submitted that the mutation in favour of the petitioner No.1 was made after affording opportunity and recording the statements of the witnesses of the will. The order passed in the mutation proceedings has not been challenged. It has further been submitted that the will is only with regard to the agricultural properties situated at Tanda, District Ambedkar Nagar and Late Santram gave the properties of Delhi to the respondent No.2. He further submitted that the application for discharge filed by the petitioners was dismissed by the learned trial court without considering the grounds taken in the application. The learned revisional court also dismissed the revision without considering the grounds raised by the petitioners, hence, the present petition has been filed challenging the orders passed by the learned trial court as well as the learned revisional court. He further submitted that the impugned orders alongwith the proceedings of the criminal case are liable to be set aside.

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6. Learned counsel for the petitioners has relied upon judgments passed by the Hon'ble Supreme Court of India in the cases of Naresh Kumar & Another Vs. The State of Karnataka & Another; (2024) SCC Online SC 268, Jit Vinayak Arolkar Vs. State of Goa & Others; (2025) SCC Online SC 31 and Vishnu Kumar Shukla and Another Vs. The State of Uttar Pradesh and Another; 2023 LiveLaw (SC) 1019.

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7. Per contra, learned counsel for the respondent No.2 submitted that this petition under Article 227 of the Constitution of India, challenging the orders passed by the learned courts below, is not maintainable. He further submitted that the impugned orders have been passed rightly and in accordance with law, therefore, nothing could be pointed out against the impugned orders.

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8. He further submitted that the registration of will deed is not impediment in lodging of the F.I.R. in regard to the criminal act of the accuseds i.e. the petitioners. He also submitted that second wife is not recognized in the Hindu Law, therefore, the names of the petitioners could not have been mutated in the revenue records. He further submitted that the will does not disclose any act of the respondent No.2. He further submitted that no ground for discharge of the petitioners is made out and there is sufficient material on record placed by the prosecution to frame charges against the petitioners. Thus, the impugned orders have rightly been passed and this petition has been filed on misconceived and baseless grounds, which is liable to be dismissed.

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9. He has relied upon judgments passed by the Hon'ble Supreme Court of India in the cases of Radhey Shyam & Another Vs. Chhabi Nath and Others; 2015 LawSuit(SC) 190 and State of Rajasthan Vs. Fatehkaran Mehdu; (2017) 3 SCC 198.

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10. Learned A.G.A. for the State also vehemently opposed the submissions of learned counsel for the petitioners and he submitted that the impugned orders have rightly been passed in accordance with law and there is no illegality or infirmity in the same, which may call for any interference by this Court. The petition is misconceived and lacks merit, therefore, it is liable to be dismissed.

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11. I have considered the submissions of learned counsel for the parties and perused the record.

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12. The respondent No.2 moved an application under Section 156(3) CrPC for lodging of the F.I.R. against the petitioners on 07.10.2015 and in pursuance of the order passed by the learned Chief Judicial Magistrate, Ambedkar Nagar, the F.I.R. vide Case Crime No.258/2016, under Sections 419, 420, 467, 468 and 471 I.P.C. was lodged on 10.11.2016 at Police Station Kotwali Tanda, District Ambedkar Nagar. The F.I.R. has been lodged alleging therein that the complainant; Kamla Devi W/o Late Santram is resident of Village Ajmeri Badshahpur, Police Station Kotwali Tanda, District Ambedkar Nagar and also a wedded wife of Santram. Santram and Kamla Devi have a son, namely, Rohit and a daughter, namely, Deepa. The husband of the complainant, namely, Santram was working on the post of Deputy Secretary in Vigilance Commission and was posted at Delhi. Bhagwan Devi W/o Premchand and Sangeeta D/o Premchand by playing fraud, making conspiracy and with intention to usurp the properties of crores of husband of the complainant, namely, Santram, got their names recorded in Family Register on 11.12.2008 and also got a forged sale deed prepared and executed fraudulently from Late Santram on 01.11.2008 in the name of Bhagwan Devi in Tehsil Tanda. Bhagwan Devi and Sangeeta, who are the ladies and conspirators by nature, have done similar incident with Sanjay S/o Premchand, who is son of Bhagwan Devi. The complainant; Kamla Devi came to know about it when they started making possession at their house situated at Village Ajmeri Badshahpur, Police Station Tanda Kotwali. Then she ran to the Police Station Tanda Kotwali and gave an application but, the Incharge of the Police Station Tanda Kotwali in collusion with the Bhagwan Devi, had not taken any action, therefore, she moved an application before the Superintendent of Police, Ambedkar Nagar but there also no action was taken, therefore, she was constrained to move the application under Section 156(3) CrPC.

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13. The police, after investigation, in pursuance to the aforesaid F.I.R., filed a final report dated 06.02.2017 recording that on the basis of statements and

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documentary evidence, no offence is made out and from the statements of witnesses, it has come to light that husband of the complainant, Late Santram had executed and got registered a sale deed in favour of his second wife, namely, Bhagwan Devi in his life time and in peshbandi, a false case has been lodged against the respondent.

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14. The respondent No.2 moved a protest petition alleging therein that the final report has been filed without recording any statement and considering the evidences made available by her. The learned Magistrate allowed the protest petition by means of order dated 10.02.2018 and rejected the final report No.05/2017 and took cognizance and held that the case shall go on as a State Case and, accordingly, issued the summons. The order dated 10.02.2018 was challenged by the petitioners in Criminal Revision No.37 of 2019, which was dismissed by means of order dated 02.11.2019 by the learned Sessions Judge, Ambedkar Nagar upholding the order dated 10.02.2018 passed by the learned trial court. Consequently, the petitioners approached this Court by means of application under Section 482/378/407 No.154 of 2020 (Smt. Bhagwan Devi and Another Vs. State of U.P. and Another), but, after arguing at some length, learned counsel for the petitioners got the petition disposed of with liberty to move an application for discharge before the concerned court. In pursuance of the said order, an application under Section 239 CrPC was moved by the petitioners before the learned Chief Judicial Magistrate, Ambedkar Nagar on 18.01.2020, which was dismissed by means of order dated 19.02.2020. The said order was challenged by the petitioners in Criminal Revision No.45 of 2020. The criminal revision has also been dismissed by means of an order dated 08.03.2021. Hence, this petition has been filed challenging both the orders.

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15. An objection has been raised by learned counsel for the respondent No.2 that this petition under Article 227 of the Constitution of India is not maintainable. In this regard, he has relied on the judgment of the Hon'ble Supreme Court rendered in the case of Radhey Shyam & Another Vs. Chhabi Nath and Others (Supra) . The Hon'ble Supreme Court in the said judgment upon reference by two Hon'ble Judges has answered that the judicial orders of civil court are not amenable to writ jurisdiction under Article 226 of the Constitution of India and jurisdiction under Article 227 is distinct from jurisdiction under Article 226 of the Constitution of India. One of the point for reference was that under Article 227 of the Constitution, the High Court does not issue a writ of certiorari. Article 227 of the Constitution vests the High Courts with a power of superintendence, which is to be very sparingly exercised to keep tribunals and courts within the bounds of their authority. Under Article 227, orders of both civil and criminal courts can be examined only in very exceptional cases, when manifest miscarriage of

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justice has been occasioned. Such power, however, is not to be exercised to correct a mistake of fact and of law.

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16. In view of above while referring the matter, the Hon'ble Division Bench of the Hon'ble Supreme Court had observed that under Article 227 of the Constitution of India, orders of both civil and criminal courts can be examined only in very exceptional cases when manifest miscarriage of justice has been occasioned.

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17. The inherent powers under Section 482 CrPC can be exercised by this Court to do right and to undo wrong in course of administration of justice. The power of superintendence under Article 227 of the Constitution of India has been vested in the High Court, which can be brought into play at any time, if the High Court considers it necessary to drop on the same and this Court can interfere when an error of law is apparent on the face of its record, which has resulted in gross injustice. Thus, both the powers can be exercised by this Court in the interest of justice to undo the wrong or illegality.

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18. The Hon'ble Supreme Court, in the case of Asian Resurfacing of Road Agency P. Ltd. vs Central Bureau of Investigation; (2018) 16 SCC 299, has held that order framing charge may not be held to be purely interlocutory order and can in given situation be interfered under Section 397(2) or 482 CrPC or Article 227 of the Constitution of India, which is a constitutional provision.

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19. By means of the impugned order passed by the learned trial court, while rejecting the application for discharge, it decided to frame the charge and fixed the case for framing the charge and the revisional court dismissed the revision upholding the same. Thus, in view of the aforesaid reports of the Hon'ble Supreme Court of India, the present petition under Article 227 of the Constitution of India cannot be said to be not maintainable only because a remedy under Section 482 CrPC is available, when under Article 227 of the Constitution of India, this Court can exercise powers in civil and criminal both and in each provision, this Court is exercising the inherent jurisdiction over the district courts and power of superintendence over the courts and tribunals etc., respectively to correct the wrong done by it. It is also to be noticed that this petition was filed in the year 2021 and entertained and an interim order was granted by this Court by means of order dated 15.06.2021, therefore, merely on this ground, this Court does not deem it appropriate to dismiss the petition at this stage after exchange of affidavits as both the powers are to be exercised by this Court.

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20. The main argument of learned counsel for the petitioners is that a civil dispute has been converted into criminal. However, every proceedings of criminal case cannot be set aside on account of a civil dispute between the parties as there is no bar against the prosecution if the offences punishable

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under criminal law are made out against the party/parties to the civil suit and also there is no bar of continuance of both the proceedings simultaneously. The Hon'ble Supreme Court, in a recent judgment in the case of Kathyayini v. Sidharth P.S. Reddy & Others; (2025) SCC Online SC 1428, has held that no such bar exists against the prosecution if the offences punishable under criminal law are made out against the parties to the civil suit and pendency of civil proceedings on the same subject matter, involving the same parties is not a justification to quash the criminal proceedings, if a prima facie case exists against the accused persons. The relevant paragraphs 19 to 23 are extracted here-in-below:-

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" 19. We now come to the issue of bar against prosecution during the pendency of a civil suit. We hereby hold that no such bar exists against prosecution if the offences punishable under criminal law are made out against the parties to the civil suit. Learned senior counsel Dr. Menaka Guruswamy has rightly placed the relevant judicial precedents to support the above submission. In the case of K. Jagadish v. Udaya Kumar G.S. and another3, this Court has reviewed its precedents which clarify the position. The relevant paragraph from the above judgment is extracted below:

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“8. It is thus well settled that in certain cases the very same set of facts may give rise to remedies in civil as well as in criminal proceedings and even if a civil remedy is availed by a party, he is not precluded from setting in motion the proceedings in criminal law.”

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20. In Pratibha Rani v. Suraj Kumar and another4, this Court summed up the distinction between the two remedies as under :

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“21. … There are a large number of cases where criminal law and civil law can run side by side. The two remedies are not mutually exclusive but clearly coextensive and essentially differ in their content and consequence. The object of the criminal law is to punish an offender who commits an offence against a person, property or the State for which the accused, on proof of the offence, is deprived of his liberty and in some cases even his life. This does not, however, affect the civil remedies at all for suing the wrongdoer in cases like arson, accidents, etc. It is an anathema to suppose that when a civil remedy is available, a criminal prosecution is completely barred. The two types of actions are quite different in content, scope and import. It is not at all intelligible to us to take the stand that if the husband dishonestly misappropriates the stridhan property of his wife, though kept in his custody, that would bar prosecution under Section 406 IPC or render the ingredients of Section 405 IPC nugatory or abortive. To say that because the stridhan of a married woman is kept in the custody of her husband, no action against him can be taken as no offence is committed is to override and distort the real intent of the law.”

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21. The aforesaid view was reiterated in Kamaladevi Agarwal v. State of W.B. and others5,

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“17. In view of the preponderance of authorities to the contrary, we are satisfied that the High Court was not justified in quashing the proceedings initiated by the appellant against the respondents. We are also not impressed by the argument that as the civil suit was pending in the High Court, the Magistrate was not justified to proceed with the criminal case either in law or on the basis of propriety. Criminal cases have to be proceeded with in accordance with the procedure as prescribed under the Code of Criminal Procedure and the pendency of a civil action in a different court even though higher in status and authority, cannot be made a basis for quashing of the proceedings.”

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22. After surveying the abovementioned cases, this Court in K. Jagadish (supra) set aside the holding of High Court to quash the criminal proceedings and held that criminal proceedings shall continue to its logical end.

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23. The above precedents set by this Court make it crystal clear that pendency of civil proceedings on the same subject matter, involving the same parties is no justification to quash the criminal proceedings if a prima facie case exists against the accused persons. In present case certainly such prima facie case exists against the respondents. Considering the long chain of events from creation of family tree excluding the daughters of K.G.Yellappa Reddy, partition deed among only the sons and grandsons of K.G.Yellappa Reddy, distribution of compensation award among the respondents is sufficient to conclude that there was active effort by respondents to reap off the benefits from the land in question. Further, the alleged threat to appellant and her sisters on revelation of the above chain of events further affirms the motive of respondents. All the above factors suggest that a criminal trial is necessary to ensure justice to the appellant. "

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21. The Hon'ble Supreme Court, in the case of Naresh Kumar & Another Vs. The State of Karnataka and Another (Supra) , relied by learned counsel for the petitioners, relying on a judgment rendered in the case of Paramjeet Batra Vs. State of Uttarakhand; (2013) 11 SCC 673 , in which it has been held that the complaint disclosing civil transactions may also have a criminal texture, but the High Court must see whether a dispute, which is essentially of a civil nature, is given a cloak of criminal offence, found that the dispute between the parties was not only essentially of a civil nature but in the said case the dispute itself was settled later by the parties.

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22. The Hon'ble Supreme Court, in the case of Jit Vinayak Arolkar Vs. State of Goa & Others (Supra), found that taking the complaint as correct, the offence of cheating under Section 415 of IPC was not made out against the appellant. Moreover, the complaint was filed by the 4th respondent for the first time after a time gap of two years from the date of institution of the civil suits and the complaint is suppressed with the fact that civil suits were already filed, in which applications for temporary injunction were made. When there was a dispute over the title, the act of the 4th respondent of setting in motion

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criminal law two years after the date of filing of the suits amounts to nothing but abuse of the process of law.

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23. In view of above, the criminal proceedings in a case cannot be allowed to be continued and liable to be quashed if the dispute is essentially purely civil in nature and no criminal offence is made out against the accused and in case in an essentially civil dispute, the civil proceedings have been instituted and pending and if the same are not disclosed, while instituting the criminal proceedings, but it has to be seen on the fact and circumstances of each and every case and merely because there is a civil dispute and the civil proceedings are pending, the criminal prosecution cannot be quashed.

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24. The Hon'ble Supreme Court, in the case of Vishnu Kumar Shukla and Another Vs. The State of Uttar Pradesh and Another (Supra), has held that the protection against vexatious and unwanted prosecution and from being unnecessarily dragged through a trial by melting a criminal proceeding into oblivion, either through quashing an FIR/Complaint or by allowing an appeal against an order rejecting discharge or by any other legally permissible route, as the circumstances may be, in the deserving case, is a duty cast on the High Courts.

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25. Adverting to the facts of the present case, the F.I.R. has been lodged on 10.11.2016 alleging therein that after death of the husband of the respondent No.2, when the petitioners started making possession on her house then she came to know about the inclusion of names of the petitioners in the Family Register on 11.12.2008 and execution of the will on 01.11.2008 in favour of the petitioner No.1, whereas the petitioner No.1 is wife of one Premchand and the petitioner No.2 is daughter of Premchand and petitioner No.1 had also played fraud with her son at Delhi. A suit for cancellation of sale deed has also been filed by the petitioners in the court of Civil Judge (Junior Division), Ambedkar Nagar on 23.09.2015.

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26. So far as the plea of learned counsel for the petitioners that while lodging the F.I.R., the fact of filing of civil suit for cancellation of sale deed has not been disclosed is concerned, the respondent No.2 has disclosed in counter affidavit that when it came to the knowledge of respondent No.2 that a fraud has been committed against her by preparing forge document in the name of her husband Late Santram by petitioner No.1, she made a complaint to the police authorities in this regard and when she failed to get registered her F.I.R. against the petitioners, then she made the application under Section 156(3) CrPC for lodging F.I.R. and consequently the F.I.R. was registered against the petitioners. It has been further stated that she was also advised to file Regular Suit No.461/2015 in the court of learned Civil Judge (J.D.), Tanda, Ambedkar Nagar for cancellation of alleged will deed, as the deed is forged one. The F.I.R. also discloses that the respondent No.2 firstly approached to the police station for lodging of the F.I.R. but the F.I.R. was not

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lodged, therefore, she preferred an application before the Superintendent of Police, Ambedkar Nagar but no action was taken, therefore, she was constrained to approach the court for lodging the F.I.R. on 07.10.2015. Thus, it is apparent that the respondent No.2 had taken action for instituting both the proceedings simultaneously. However, since it took some time in approaching the concerned police station and Superintendent of Police, Ambedkar Nagar, the application for F.I.R. could be moved after filing of the suit for cancellation of will deed. Thus, the reason for delay in lodging the F.I.R. after filing of the civil suit and it's non disclosure has been explained. Even otherwise, the present petition has been filed challenging the order passed on application for discharge moved by the petitioners and the revisional order, by means of which, the order passed on the application for discharge has been upheld. 27. The petitioners had earlier approached this Court by means of the application under Section 482 CrPC seeking quashing of entire proceedings arising out of Case Crime No.0258 of 2016, under Sections 419, 420, 467, 468 and 471 I.P.C. registered at Police Station Tanda, District Ambedkar Nagar as well as the order dated 10.02.2018 passed by learned Civil Judge (J.D.)/Judicial Magistrate, Ambedkar Nagar, the order dated 02.11.2019 passed by learned Sessions Judge, Ambedkar Nagar as well as the order dated 25.11.2019 passed by learned Chief Judicial Magistrate, Ambedkar Nagar, issuing bailable warrant against the petitioners, however, after arguing at some length, learned counsel for the petitioners themselves got the petition disposed of with liberty to file an application before the trial court concerned in conformity with the provisions of CrPC, which was directed to be considered and decided by the learned trial court. Thus, the challenge to the same orders as well as the entire criminal proceedings on the aforesaid grounds was not pressed and the application was got disposed of by the petitioners with liberty to file appropriate remedy under the provisions of CrPC and, thereafter, the petitioners moved an application for discharge under Section 239 CrPC on 18.01.2020 and in this petition the order passed thereon and the revision challenging the order passed on the said application has been challenged, therefore, in this petition, this Court has to see as to whether any illegality or error has been committed by the trial court or the revisional court in passing the impugned orders while considering the application for discharge and the revision filed by the petitioners and failed to discharge the petitioners, despite they are entitled to be discharged or not, for which the yardsticks have been provided in CrPC itself.

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28. Section 239 CrPC provides as to when an accused shall be discharged, which is extracted here-in-below:-

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" 239. When accused shall be discharged:- If, upon considering the police report and the documents sent with it under Section 173 and making such examination, if any, of the accused as the Magistrate thinks

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necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing."

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29. According to the aforesaid Section 239 CrPC, if the magistrate upon considering the police report and the documents sent with the same under Section 173 CrPC and making such examination, if any, of the accused as he thinks necessary and after giving opportunity of being heard to the prosecution as well as to the accused, considers the charge against the accused to be groundless, he shall discharge the accused by passing a reasoned order. Thus, it has to be considered as to whether, on the basis of material placed before the Magistrate by the prosecution, the charge against the accused i.e. the petitioners in the instant case is groundless and not on the basis of any plea, material or evidence of the accused, which can be considered only during investigation or trial after evidence.

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30. The Hon'ble Supreme Court, in the case of State of Tamil Nadu Vs. R. Soundirarasu and Others; (2023) 6 SCC 768 , has held that Section 239 CrPC lays down that if the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused and the word 'groundless' used in Section 239 of the CrPC means that the materials placed before the Court do not make out or are not sufficient to make out a prima facie case against the accused and it has further been held that the exercise at this stage is to be confined to considering the police report and the documents to decide whether the allegations against the accused can be said to be “groundless”. The relevant paragraphs 62, 63, 64, 67, 68, 75, 76 and 77 are extracted here-in-below:-

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" 62. Section 239 of the CrPC lays down that if the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused. The word 'groundless', in our opinion, means that there must be no ground for presuming that the accused has committed the offence. The word 'groundless' used in Section 239 of the CrPC means that the materials placed before the Court do not make out or are not sufficient to make out a prima facie case against the accused.

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63. The learned author Shri Sarkar in his Criminal P.C., 5th Edition, on page 427, has opined as:-

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"The provision is the same as in S. 227, the only difference being that the Magistrate may examine the accused, if necessary, of also S. 245. The Magistrate shall discharge the accused recording reasons, if after (i) considering the police report and documents mentioned in S. 173; (ii) examining the accused, if necessary and (iii) hearing the arguments of both sides he thinks the charge against him to be groundless, i.e., either there is no legal evidence or that the facts do not make out any offence at all."

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64. In short, it means that if no prima facie case regarding the commission of any offence is made out, it would amount to a charge being groundless.

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65. .............................................................. 66. ..............................................................

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67 . Thus the word 'groundless', as interpreted by this Court, means that there is no ground for presuming that the accused has committed an offence.

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68. This Court has again dealt with this aspect of the matter in Superintendent and Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja, AIR 1980 SC 52. This Court has stated in the said case as:-

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"At this stage, even a very strong suspicion found upon materials before the Magistrate, which leads him to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged, may justify the framing of charges against the accused in respect of the commission of that offence."

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69. ......................................................... 70. ......................................................... 71. ......................................................... 72. ......................................................... 73. ......................................................... 74. .........................................................

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75. The ambit and scope of exercise of power under Sections 239 and 240 of the CrPC, are therefore fairly well settled. The obligation to discharge the accused under Section 239 arises when the Magistrate considers the charge against the accused to be "groundless". The Section mandates that the Magistrate shall discharge the accused recording reasons, if after (i) considering the police report and the documents sent with it under Section 173, (ii) examining the accused, if necessary, and (iii) giving the prosecution and the accused an opportunity of being heard, he considers the charge against the accused to be groundless, i.e., either there is no legal evidence or that the facts are such that no offence is made out at all. No detailed evaluation of the materials or meticulous consideration of the possible defences need be undertaken at this stage nor any exercise of weighing materials in golden scales is to be undertaken at this stage - the only consideration at the stage of Section 239/240 is as to whether the allegation/charge is groundless.

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76. This would not be the stage for weighing the pros and cons of all the implications of the materials, nor for sifting the materials placed by the prosecution- the exercise at this stage is to be confined to considering the police report and the documents to decide whether the allegations against the accused can be said to be “groundless”.

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77. The word "ground" according to the Black's Law Dictionary connotes foundation or basis, and in the context of prosecution in a criminal case, it would be held to mean the basis for charging the accused or foundation for the admissibility of evidence. Seen in the context, the word "groundless" would connote no basis or foundation in evidence. The test which may, therefore, be applied for determining whether the charge should be considered groundless is that where the

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materials are such that even if unrebutted, would make out no case whatsoever.

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31. The Hon'ble Supreme Court, in the case of State of Karnataka Vs. M.R. Hiremath; (2019) 7 SCC 515 , has held that 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 to constitute the offence. The relevant paragraph 25 is extracted here-in-below:-

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"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 of the 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 to constitute the offence. In the State of Tamil Nadu v N Suresh Rajan10, adverting to the earlier decisions on the subject; this Court held :

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“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.”

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32. The allegations in the F.I.R. are that the respondent No.2 is the wedded wife of Late Santram and they had a son, namely, Rohit and a daughter, namely, Deepa. The petitioner No.1; Bhagwan Devi, who is wife of Premchand and the petitioner No.2; Sangeeta, who is daughter of Premchand, to usurp the properties of her husband, Late Santram, fraudulently showing wife and daughter respectively of Late Santram, got their names recorded in the parivar register on 11.12.2008 and also got a will deed executed in the name of petitioner No.1; Bhagwan Devi on 01.11.2008. As per findings recorded by the learned trial court, the petitioner No.1 has placed on record a copy of family register, in which, Bhagwan Devi has been shown as wife of Santram and Sangeeta as daughter of Santram. In the said family register, the

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respondent No.2; Smt. Kamla Devi has also been shown as wife at first and Rohit and Deepa as son and daughter respectively. The respondent No.2 has placed on record a copy of voter list showing Bhagwan Devi as wife of Premchand, which has not been filed before this Court by the petitioners. Thus, as per the documents placed on record, the petitioner No.1; Bhagwan Devi is wife of Late Premchand and the petitioner No.2; Sangeeta is daughter of Late Premchand. This fact has not been disputed by the petitioners even in this petition, but they are claiming themselves to be the wife and the daughter of Late Santram respectively. It has also not been disputed in the application filed under Section 239 CrPC before the trial court, a copy of which has been placed on record of this petition as annexure No.8. It has also not been disclosed as to when the petitioner No.1 got married to Late Santram and whether, if married, the marriage was solemnized during lifetime of Late Premchand or thereafter or after divorce. It has also not been disclosed that as to how the petitioner No.2; Sangeeta can be shown the daughter of Late Santram without valid adoption.

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33. As pleaded in the application for discharge, the names of the petitioners were got recorded in the family register in the year 2008 and no objection was raised by the respondent No.2, but it has not been disclosed as to whether the respondent No.2, who was residing in Delhi, admittedly on the alleged date of incident and even thereafter had any knowledge of the recording of names of the petitioners in the family register of Late Santram and any opportunity was afforded to them. It has specifically been stated in paragraph 8 of the application for discharge that Late Santram was married in his childhood in Village Bhitaura, Police Station Jalalpur, District Ambedkar Nagar and the respondent No.2; Kamla Devi also lived as second wife of Late Santram but since they had differences, therefore, she left him and was living with somebody else in Delhi, thereafter, the Late Santram married to Bhagwan Devi and took Sangeeta in adoption and got their names recorded in the family register. Though in paragraph 6, it has been mentioned that Late Santram has got names recorded in the family register but no document in this regard has been placed on record and it has also not been disclosed as to when he married to the petitioner No.1; Bhagwan Devi and when and how he adopted Sangeeta as his daughter and whether adoption was made in accordance with law or not. Whereas, as per Hindu law, during subsistence of first marriage and lifetime of the first wife, a person cannot solemnize second marriage and accordingly a lady can not marry, therefore, even if married, the second wife cannot be legally wedded wife and her daughter, the daughter of the person to whom she marries. Thus, the name of petitioners No.1 and 2 could also not have been recorded in his family register legally but the petitioners knowingly got their names recorded showing them wife and daughter respectively.

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34. A plea has also been taken that Late Santram executed a registered sale deed of a house on 08.06.2010 in Tehsil Tanda in favour of petitioner No.1; Bhagwan Devi. It also creates doubt about entry of names in family register by him and execution of will by Late Santram in favour of Bhagwan Devi on 01.11.2008 because if a will was already executed in favour of Bhagwan Devi regarding his properties, the question of execution of sale deed of a house in favour of the petitioner No.1; Bhagwan Devi was not required paying stamp duty on the same.

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35. It has also been pleaded in the counter affidavit filed before this Court that Late Santram never executed any will deed to any person, introducing the petitioner No.1 as second wife of Late Santram. Thus, the petitioners are not only trying to grab the property of Late Santram with conspiracy but also maligning the character of Late Santram i.e. husband of respondent No.2. It has also been stated that the name of respondent No.2 is recorded in the service book of Late Santram as his wife and, accordingly, she is getting pension after death of her husband Late Santram. These averments in the counter affidavit have not been specifically denied by the petitioners in the rejoinder affidavit. It is also apparent from the rejoinder affidavit that the paragraphs 18 onwards of the counter affidavit have not been replied.

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36. It is also apparent that the allegations and the material placed on record by the prosecution, considering which the cognizance has been taken rejecting the final report and the petitioners have been summoned, have even not been disputed or specifically denied, considering which the alleged offences are prima facie made out.

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37. The learned trial court as well as the learned revisional court have passed the impugned orders in accordance with law after considering the grounds of the petitioners and the material placed on record by the prosecution. This Court does not find any illegality or error in the impugned orders, which may call for any interference by this Court. This petition is misconceived and lacks merit.

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38. The petition is, accordingly, dismissed.

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(Rajnish Kumar,J.)

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Order Date :- 27.08.2025 Saurabh

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Digitally signed by :- SAURABH VERMA High Court of Judicature at Allahabad, Lucknow Bench

Bhagwan Devi and Anr. v. State of U.P. and Anr.

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Bhagwan Devi and Anr. v. State of U.P. and Anr.

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