Ajaypal Singh Kateria vs State of Up and Another

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HIGH COURT OF JUDICATURE AT ALLAHABAD

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CRIMINAL REVISION No. - 1657 of 2024

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Ajaypal Singh Kateria

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.....Revisionist(s)

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	Versus
State of U.P. and Another	.....Opposite Party(s)
Counsel for Revisionist(s)	: Manoj Kumar Patel, Sr. Advocate
Counsel for Opposite Party(s)	: G.A., Girish Chandra Yadav

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Court No. - 19

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HON'BLE DIVESH CHANDRA SAMANT, J.

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Heard Sri Indra Kumar Chaturvedi, learned Senior Counsel assisted by Sri Manoj Kumar Patel, Advocate, appearing on behalf of the revisionist, Sri Girish Chandra Yadav, learned counsel for opposite party No.2, learned AGA for the State and perused the material available on record.

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Instant Criminal Revision has been preferred by the revisionist assailing the judgment and order dated 09.02.2024 passed by learned Additional Sessions Judge-Fast Track Court No.2/Special Judge (DAA), Auraiya rejecting the discharge application of the revisionist preferred under Section 227 Cr.P.C. in Sessions Case No. 982 of 2023 (State of U.P. Vs. Rakesh Kumar and 6 others) under Section 120B, 364, 395 and 412 I.P.C., Police Station-Kotwali Auraiya, District-Auraiya arising out of Case Crime No. 561 of 2023.

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An F.I.R. was lodged by the informant against unknown accused persons alleging that revisionist along with his maternal uncle's son-Ravi Soni, Sister-in-law-Sonali Soni and her daughter Aashi were coming to Auriaya from Banda in his car driven by driver and four persons, two of them were dressed normally and one was wearing the uniform of a Police Inspector and had a pistol while the other was dressed as a Constable having a carbine in his hand, stopped the car of the informant and asked the driver to produce his ID. Thereafter, all the four persons started searching the car of the informant and found two bags containing 30 pieces of Silver bricks which they kept in their Scorpio car and they also

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got the driver sat into their Scorpio car. Thereafter they dropped the driver under Bhaupur bridge taking away with them all the Silver bricks.

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Learned Senior Counsel for the revisionist argued that the court below has erred in law by rejecting the revisionist’s discharge application. It is submitted that the revisionist was about to get a promotion, and only to create obstruction in this promotion, some colleague-opponents created a false case and wrongly connected the revisionist with the present incident. It is further submitted that the revisionist’s name appeared only in the confessional statement of co-accused Sanjay Chikwa, but such a confession made by a co-accused is not admissible in law and cannot be used against the revisionist. Learned Senior Counsel has drawn the attention of this Court to the G.D. entries which clearly show that on 06.06.2023, the revisionist was not part of the police team of S.I. Chintan Kaushik. Instead, he was present in the Police Lines with another police team from 06:03 a.m. to 5:39 p.m. It is also argued that although the recovery memo dated 09.06.2023 mentions the presence of the revisionist along with co-accused S.I. Chintan Kaushik, the revisionist’s signature is not found anywhere on the recovery memo. The I.O. has also not stated that the revisionist refused to sign it. This raises serious doubt about the claim that he was present at the time of recovery. It is submitted that the revisionist neither took part in any conspiracy with the co-accused nor was any recovery made in his presence. After S.I. Chintan Kaushik was detained on the instructions of senior officers, the revisionist was also illegally arrested from the police station without any lawful basis. It is lastly argued that the impugned order is illegal and unjust, as the court below failed to properly consider the evidence on record. Therefore, the rejection of the discharge application is incorrect. The order dated 09.02.2024 should be set aside and the matter should be sent back for fresh consideration.

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Per contra, learned counsel appearing for opposite party nos. 2 to 4, as well as the learned A.G.A. for the State, have vehemently opposed the submissions advanced on behalf of the revisionist. It is submitted that the court below, upon due consideration of the material available on record and upon proper appreciation of the evidence collected during investigation, has rightly rejected the discharge application filed by the revisionist. The

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impugned order does not suffer from any illegality, perversity, or infirmity warranting interference by this Court in exercise of its revisional jurisdiction.

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I have heard the rival submissions advanced on behalf of the parties and perused the material available on record.

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A perusal of the F.I.R. shows that it was lodged on 07.06.2023 at 03:52 hours under Sections 379 and 420 of the I.P.C., regarding an incident alleged to have occurred between 06.06.2023 and 07.06.2023. According to the F.I.R., four persons were present in a white Scorpio vehicle, out of whom two were in civil clothes, one individual was wearing the uniform of a Daroga and carrying a pistol, and another was wearing the uniform of a Sipahi . As per the Fard-Giraftari (arrest memo) of accused Rakesh Kumar, Jamaluddin, Rafat, and Sanjay Chikwa, they were arrested on 09.06.2023 at about 09:25 p.m. It is stated that during their confessional statements, the names of Daroga Chintan Kaushik, Inspector Bhognipur Ajaypal Singh, and Diwan Shiv Shankar Singh came to light. In the statement of accused Sanjay Chikwa, the revisionist has been attributed the role of the main conspirator who allegedly devised the plan pursuant to which Daroga Chintan Kaushik and Diwan Ram Shankar are said to have committed the robbery of 30 small silver bricks from the vehicle of the informant, Manish Soni.

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Learned counsel for the revisionist has disputed the prosecution case by asserting that the revisionist was neither present at the spot nor connected with the alleged incident. It is further argued that the Sections mentioned in the recovery memo and the site plan appear to have been ante-timed and manipulated. A perusal of the Fard-Baramadgi (Paper No. 74) indicates that at the top of the memorandum, Case Crime No. 961/2023 under Sections 379 and 420 I.P.C. is mentioned. On the third page of the recovery memo, it is stated that on the basis of the alleged recovery, the amended offences under Sections 379, 420, 411, and 120-B I.P.C. were communicated to the accused and the recovered silver bricks were taken into custody. The Fard-Baramadgi also records that the recovery was made on 09.06.2023 and that accused Sanjay purportedly identified the revisionist-accused Ajaypal Singh along with Daroga Chintan Kaushik,

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and both allegedly admitted the allegations. It is further noted that on the pointing out of the revisionist and co-accused Chintan Kaushik, the looted silver was recovered from the room of S.I. Chintan Kaushik. However, learned counsel for the revisionist strongly disputes these facts, submitting that the revisionist’s name has been falsely inserted in the Fard-Baramadgi . It is emphasized that the revisionist was not present at the time of alleged recovery and that his signature does not appear anywhere on the recovery memo, nor is there any mention that he refused to sign it.

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Learned Senior Counsel further submits that the Investigating Officer prepared a site plan in which Sections 395, 364, 411, and 120-B I.P.C., Police Station-Auraiya, have been mentioned, and the site plan is shown to have been prepared on 07.06.2023. This, according to counsel, creates serious doubt about the prosecution story because the F.I.R. registered on 07.06.2023 contained only Sections 379 and 420 I.P.C., and the additional Sections were shown to have been added only after the alleged recovery dated 09.06.2023. Learned counsel for the revisionist has also argued that due to departmental enmity, the revisionist has been falsely implicated in order to deprive him of his promotional prospects. In fact, on the date of occurrence, the revisionist was engaged elsewhere, which is evident from the General Diary, where his departure is recorded at G.D. No. 51 at 17:39 hours when he proceeded to Police Lines, Mati, Kanpur Dehat.

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Application for discharge under Section 227 Cr.P.C. can be rejected when the Court finds that there exist "sufficient grounds for proceeding against the accused." A discharge is not warranted if the materials placed by the prosecution disclose a "grave suspicion" against the accused, indicating that the accused may have committed the offence, thereby necessitating a full-fledged trial. The core provision under Section 227 Cr.P.C. is as under :-

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" Section 227 Cr.P.C. Discharge - If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing. "

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The Hon'ble Supreme Court has consistently outlined the principle and ground for rejecting a discharge application, primarily revolving around the existence of prima-facie grave suspicion. The most crucial for the existence of prima-facie case against the accused. The Court is not required to find material for conviction, but merely enough to suspects accused involvements.

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In Union of India v. Prafulla Kumar Samal & Another , (1979) 3 SCC 4 , the Hon'ble Supreme Court held that at the stage of framing of charge, the Judge is not a mere post office, but at the same time, he is not required to meticulously evaluate the evidence as would be done at the stage of trial. If, upon consideration of the material on record, the Judge forms an opinion that there exists a grave suspicion against the accused, he is required to proceed with the trial, and the application for discharge must be rejected. The material produced by the prosecution must be such that, if unrebutted, it would be capable of leading to the conviction of the accused.

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In State of Maharashtra & Others v. Som Nath Thapa & Others , (1996) 4 SCC 659 , the Hon'ble Supreme Court clarified that if the material placed before the Court gives rise to a strong suspicion against the accused, it is sufficient for the Court to proceed with the framing of charge, thereby necessitating the rejection of the plea for discharge. The test laid down is whether the material on record, if taken at face value, suggests that the accused has probably committed the offence. At this stage, the Court is not required to evaluate the evidence meticulously but only to determine whether the prosecution's material makes out a prima facie case warranting a full trial.

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In the case of State Of Orissa vs Debendra Nath Padhi, 2005 (1) SCC 568 , the Hon'ble Supreme Court held that at the stage of Section 227 and 228 Cr.P.C., the Judge has to consider only the material placed by prosecution. The defence material is generally not to be looked into unless it is patent or unchallengeable to the extent that it renders the prosecution case absolutely absurd or inherently improbable. The rejection is warranted when the prosecution material, taken at face value, is sufficient to constitute the offence.

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Similarly in the case of M.E. Shivalingamurthy vs Central Bureau Of Investigation, Bengaluru, (2020) 2 SCC 768 , the Hon'ble Apex Court referring the case of Debendra Nath Padhi (supra) held that the defence of the accused cannot be looked into at this stage of discharge under Section 227 Cr.P.C. The Court must only examine whether the material brought on record by the prosecution disclose a prima-facie case.

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It is also a settled principle that the Court cannot reject the discharge application by conducting a detailed, meticulous examination of the evidence as that would amount to a 'mini-trial'. In a case of Stree Atyachar Virodhi Parishad Etc. versus Dilip Nathumal Chordia & Anr., 1989 SCC (1) 715 , the Hon'ble Supreme Court cautioned against embarking on a 'mini-trial' to determine the truthfulness of the evidence at the stage of discharge. If the record disclose "grounds for presuming" that the accused has committed the offence, the application must be rejected, and the case must proceed to trial.

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It appears from the discharge application filed by the revisionist that he has disputed the entire narrative, primarily on the ground that the F.I.R. was registered against unknown persons and that he was not present at the scene of the alleged incident. The revisionist has also alleged certain fabrications by the Investigating Officer. It is apparent that prior to the arrest of the accused Sanjay and six others, and before the recovery of the alleged stolen property, the I.O. had invoked Sections 395, 364, 120B, and 411 of the I.P.C. However, in the site-plan prepared the very next day, i.e., 07.06.2023, the recovery memo mentions only Sections 379 and 420 of the I.P.C. Furthermore, the revisionist’s role has been assigned merely as that of a conspirator, and he has been implicated in this case solely on the basis of the confessional statement of a co-accused. The revisionist has also submitted documents pertaining to his posting at Rawangi Police Line, Kanpur Dehat, which were enclosed with the discharge application. Despite raising these grounds, the learned trial court has not addressed them specifically and has passed the impugned order in a cursory and routine manner. There may be some possibility of conspiracy against the accused revisionist but that has to be supplemented with cogent and reliable evidences. At prima facie value for it, the discrepancies in the police papers mentioning those Sections in the site-

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plan which are discovered after the preparation of site-plan and the disputed presence of the accused revisionist at the time of the alleged recovery have not been considered by the learned trial court, therefore, the learned trial court had committed manifest error by not considering the ground taken into application for discharge and passed the order which appears to be a routine order. therefore, the impugned order is liable to be set-aside.

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Accordingly, the present criminal revision is allowed .

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The impugned order dated 09.02.2024 passed by learned Additional Sessions Judge-Fast Track Court No.2/Special Judge (DAA), Auraiya rejecting the discharge application of the revisionist preferred under Section 227 Cr.P.C. in Sessions Case No. 982 of 2023 (State of U.P. Vs. Rakesh Kumar and 6 others) under Section 120B, 364, 395 and 412 I.P.C., Police Station-Kotwali Auraiya, District-Auraiya arising out of Case Crime No. 561 of 2023 is hereby set aside.

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The matter is remanded back to decide afresh after affording opportunity of hearing to all the affected parties preferably within a period of one month from the date of receipt/production of a certified copy of this order, which ever is earlier.

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The observations made herein are strictly limited to the decision of the instant revision and should not be interpreted as an expression of opinion on the merits of the case during the trial.

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(Divesh Chandra Samant,J.)

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December 10, 2025

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Karan

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Digitally signed by :- KARAN KUMAR RAO High Court of Judicature at Allahabad

Ajaypal Singh Kateria v. State of Up and Another

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Ajaypal Singh Kateria v. State of Up and Another

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